author: MADDOX, Justice.

text:
    COX AND PERRY, INC., a corporation v. Robert A. PERRY et al.
    SC 949.
    Supreme Court of Alabama.
    June 18, 1976.
    Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
    Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   MADDOX, Justice.

Cox and Perry, Inc., a corporation, filed this suit against Robert A. Perry, its president, general manager and director; W. B. Whitfield, a director, and Charles Cummings, Jr., seeking to have a constructive trust imposed upon the profits resulting from certain contracts entered into by the defendants and the federal government. In the alternative, the corporation asked for money damages. The corporation argues that by entering into these contracts, Perry usurped a corporate opportunity or violated his fiduciary duty to the corporation. The trial judge rejected these arguments. We affirm.

The corporation is a closely held organization which was formed in 1965 as a general construction company. Shareholders at the time of incorporation were Robert A. Perry, 10,000 shares; Charles E. Cox, 3,000 shares; Frank A. Mickle, 3,000. shares; Earl Keith Copeland, 5,000 shares; and W. B. Whitfield, 4,000 shares. These shareholders have remained unchanged except for an agreement to transfer Copeland’s shares to John Luker, pending the outcome of this suit.

In 1969, the corporation encountered financial difficulty. A number of the construction projects it had undertaken had to be completed by the corporation’s bonding company. In 1969, a projection of cash requirements revealed a deficit of $48,000. In the same year, the bonding company notified the corporation that it would no longer issue performance- bonds for the corporation’s projects. The trial judge found that “other than parttime work by Luker, Copeland, and Perry in attempting completion of a few small non-bonded jobs, Cox and Perry, Inc., was, for all practical purposes, reduced to a listing in the telephone directory.”

In August of 1969, hurricane Camille struck parts of the coast of Mississippi, causing extensive damage. John Luker, an employee of the corporation, learned that the federal government was going to supply mobile homes as temporary housing for the victims of Camille. The federal government, acting through the Department of Housing and Urban Development, planned to lease mobile homes for one year and sublease the trailers to the victims. Luker persuaded the corporate shareholders that providing mobile homes to HUD might be a way of getting the corporation out of its financial trouble. The corporation secured a contract to provide 200 mobile homes to HUD for $598,000 with the trailers going back to the corporation after one year.

The corporation made several unsuccessful attempts to acquire financing for the project. It then entered into a joint venture with Madison Industries, Inc., whereby Madison Industries would obtain the mobile homes and financing for the project and the corporation would install the trailers in and around Gulfport, Mississippi. Before Madison, Inc. could obtain financing, the lending institution required the personal guarantee of the shareholders of Madison Industries, Inc. and defendant Perry.

This venture was profitable. The corporation was still in debt at the time of the trial by about $14,000 but this was a big improvement over the corporation’s onetime deficit of $70,000. Other than selling the mobile homes as they were released by HUD, the corporation was doing very little business. In 1970, the State Licensing Board for General Contractors denied the corporation’s application for a general contractor’s license. Defendant Perry testified that from 1969 until 1970, he was winding down the corporation. The shareholders hoped that the profits from the Camille contract would cancel the corporation’s indebtedness.

This lawsuit challenges the propriety of conduct taking place in late July and early August of 1970. Defendant Perry and defendant Cummings (the president of Madison Industries, Inc.) learned that a hurricane was expected to strike the Gulf coast of Texas in the Corpus Christi vicinity. They expected HUD to once again be in the market for mobile homes. When hurricane Celia struck on August 3, 1970, Cummings and Perry, in their individual capacities, submitted bids to furnish mobile homes to HUD. They were awarded contracts to provide 425 trailers. There was no meeting of the corporate officers in which participation in the Celia contracts was discussed.

The corporation explains the theory upon which it seeks recovery in its brief as follows:

“Although Plaintiff may have been ‘insolvent’ on August 3, 1970, when Hurricane Celia occurred, in the sense that its liabilities may have exceeded its assets by a few thousand dollars, it could probably have obtained and performed contracts of the nature of those obtained by Perry and Cummings in connection with ‘Celia.’ If such contracts had been obtained, and if Plaintiff could not have financed their performance in the same general manner financing was obtained for the ‘Camille’ contracts, or otherwise, Plaintiff’s interest in the contracts could have been sold by Plaintiff to some other entity, especially in view of the large profits made by the C & P-Madison Industries joint venture on the ‘Camille’ contract.”

Whitfield and Cummings were joined as defendants on the theory that they conspired with Perry in breaching his fiduciary duty to the corporation. Under this theory, if Perry is not liable, neither are they.

The corporation supports its theory of recovery by arguing that (1) the Celia contracts were a corporate opportunity or (2) Perry should be held liable on principles of agency.

One of the leading cases in the area of corporate opportunity is Lagarde v. Anniston Lime & Stone Co., 126 Ala. 496, 28 So. 199 (1900). It is dispositive of the corporate opportunity question raised by this appeal. In Lagarde, the corporation owned a 1/3 interest in a limestone quarry; had a contract to purchase another 1/3 interest, and was negotiating for the last i/3 interest: The Lagardes were directors and majority stockholders of the corporation. They learned of an opportunity to purchase the 2/3 interest through their connection with the corporation. This court subjected the interest in which the corporation had contractual rights to a constructive trust but found that the Lagardes did not violate their fiduciary duty by purchasing the 1/3 interest for which the corporation had merely been negotiating. In so ruling, the court delineated three restrictions on the business dealing of corporate officers.

“ * * * [T] he legal restrictions which rest upon such officers in their acquisitions are generally limited to property wherein the corporation has an interest already existing, or in which it has an expectancy growing out of an existing right, or to cases where the officers’ interference will in some degree balk the corporation in effecting the purposes of its creation.” Lagarde at 502, 28 So. at 201.

The corporation in the case at bar fits within none of the criterion set out above. The corporation had no pre-exist-ing interest in the contracts. The corporation had no existing rights in the contracts. The corporation was created to do general construction; this purpose was in no way thwarted when Perry and Cummings secured contracts to provide mobile homes to the federal government. In addition, the corporation’s insolvency affected the existence of a corporate opportunity. Consequently, Perry did not usurp a corporate opportunity by securing the Celia contracts for himself.

Regarding the question of agency, the corporation contends that as general manager, Perry had a duty to act for the corporation or at least actively inform the corporation that he was pursuing his individual interests. In rejecting this contention, the trial court found that the master-servant relationship had terminated because “for all intent and purposes [the corporation was] dead and ready for burial.” Assuming arguendo, that, standing alone, the fact of insolvency would not terminate the agency; nevertheless, the trial judge supported his determination that the agency was terminated with the following findings of fact, none of which are plainly and palpably wrong.

The court found that defendant Perry no longer drew a corporate salary from the corporation. He found that Camille contracts were, in fact, not performed by the corporation but through a joint venture in which the corporation provided employees to set up the trailers, with financing by Perry and Madison, Inc. The Court found that Cox and Perry, Inc., couldn’t provide profits or income sufficient to perform work in its ordinary course of business, that its bonding company had to take over its job for completion, that its employees had left the corporation, and that it was insolvent. The court noted:

“It had no existing contracts other than the winding up of Camille that had any prospect of success.
“It had no city, county, or state license to do business.
“It was refused a general contractor’s license by the State of Alabama.’’

It appears that the trial court has found that for the corporation to have secured the Celia contract, Perry would have had to give his personal signature. He had no such obligation.

Having found that the Celia contracts were not a corporate opportunity, we conclude that Perry had no duty to inform the other stockholders of his intention to bid on the contracts. As pointed out by this Court in Lagarde, supra, at 502, 28 So. at 202:

Good faith to the corporation does not require of its officers that they steer from their own to the corporation’s benefit, enterprises, or investments, which, though capable of profit to the corporation, have in no way become subjects of their trust or duty.”

For the reasons above-stated, the judgment of the lower court is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Virgie Hargrove WILBANKS v. HARTSELLE HOSPITAL, INC., a corporation.
    SC 1518.
    Supreme Court of Alabama.
    June 18, 1976.

      James J. Thompson, Jr., Birmingham, for appellant.
    Joe Calvin, Decatur, for appellee.
   MADDOX, Justice.

This case is an appeal from the entry of a summary judgment in favor of the defendant hospital. The facts from which the dispute arose occurred in early August of 1970. The plaintiff was being treated in the defendant hospital for a sprained left knee. She maintains that while she was in the hospital a brown recluse spider bit the calf of her right leg, causing her serious injury. She sued the hospital claiming damages for negligence or breach of implied contract. In March of 1973, a jury awarded her $10,000.

The trial judge, however, granted the hospital’s motion for a new trial on the grounds that (1) the evidence failed to show a breach of duty by the hospital, and (2) the verdict and judgment was contrary to the weight of the evidence. The Alabama Court of Civil Appeals affirmed the granting of a new trial. Wilbanks v. Hartselle Hospital, Inc., 54 Ala.App. 630, 312 So.2d 29 (1975). The case went back to the trial court, and on September 30, 1975, the trial judge granted the hospital’s motion for summary judgment, which is the order under review in this appeal.

The requisites for the entry of a summary judgment under Rule 56, ARCP, are “ * * * that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The comments to Rule 56 make it clear that if there is a scintilla of evidence supporting the non-moving party, a summary judgment is inappropriate. In this case, we are fortunate to have a full record from which to make our determination. Not only has the case already been tried, but the plaintiff candidly admits that a second trial will produce the same evidence which resulted in the granting of the hospital’s motion for a new trial. We can examine the record of the March 1973, trial to determine whether the hospital was entitled to judgment, as a matter of law.

Some of the facts are not disputed. Everyone agrees that the plaintiff was a patient in the hospital from July 31, through August 5, 1970. On the first or second of August, the plaintiff felt a chill during the night and asked a nurse to bring her a blanket. The nurse got a blanket from the linen closet in the basement of the hospital and spread it over Mrs. Wilbanks from the waist down. Mrs. Wilbanks testified she stayed in bed all night and when she woke up the next day, she had a bite on her right leg. This portion of her testimony was disputed. The nurse who got the blanket testified that on the night in question, she saw Mrs. Wilbanks in the hall and in the patio behind the hospital. Another hospital employee testified that Mrs. Wilbanks told her that she did not know when she was bitten. A third witness testified that Mrs. Wilbanks said she was bitten before she came into the hospital.

There is no dispute about the fact that Mrs. Wilbanks was seriously injured. The plaintiffs support their position that the injury was caused by the bite of a brown recluse spider by citing the hospital records, which state:

“ * * * [Possibility of brown recluse spider bite is entertained.”
“ * * * [H]as one-half by one-half centimeter ulceration of right lower leg where she thinks something bit her.”
“ * * * [Ejtiology unknown, possibly spider.”

The plaintiffs also rely upon the testimony of a medical doctor who testified that the attending physician told him that he “felt like she had been bitten by a brown recluse spider.” This testimony was inadmissible, as hearsay. Prince v. Lowe, 263 Ala. 410, 82 So.2d 606 (1935); Clark v. Hudson, 265 Ala. 630, 93 So.2d 138 (1957).

The hospital argues that there was a failure of proof as to what caused the plaintiff’s injury. The evidence is that the brown recluse spider, as its name indicates, is non-aggressive and that it avoids activity, and well-lit places as much as possible. Treatment and control of the brown recluse spider is quite difficult because its inactivity makes it unlikely that the spider will come in contact with pesticides. The testimony was that these spiders are normally found in dark places. The evidence showed that they are likely to be found in a barn or woods, but could be brought into a hospital on luggage or flowers. If such a spider were brought into a hospital, it would likely seek a secluded spot to remain until it died.

About four years prior to Mrs. Wil-banks’ injury, there was an outbreak of brown recluse spiders in several southern states, including northern Alabama. This fact was published in local newspapers about three years before the injury. Two years before the injury, Cook’s Pest Control, with which the hospital had a contract from 1960 to February, 1970, sent a circular to all of its customers describing the brown recluse spider. During the time when the incident occurred and from February 1970, until June 1971, two maintenance men at the hospital performed the hospital’s exterminating work. They followed a routine similar to that of Cook’s employees. The contract the hospital had with Cook’s was similar to the contracts other hospitals in the area carried. These contracts protected against ants, rats, mice and roaches, but did not provide spider control. Cook’s procedure provided that, if they saw spiders, they would bring it to the attention of the customer. If the customer then elected not to get spider protection, Cook’s would put a notation on the contract, “No spider coverage.” The hospital contract contained no such notation.

The only insects anyone reported having seen in the hospital were silver fish and "water bugs.” These were seen in the storage area near the kitchen.

Since the case is before this Court upon the granting of a summary judgment, we must view the evidence in the light most favorable to the non-moving party.

There is a scintilla of evidence that Mrs. Wilbanks was bitten by a brown recluse spider while in the hospital; therefore, for the purposes of this opinion, we assume that is what happened. The fact of a bite is not dispositive.

The issue in this appeal is whether the hospital exercised that degree of care “which persons of common prudence, engaged in the hospital business, exercise under like conditions.” Mobile Infirmary v. Eberlein, 270 Ala. 360, 367, 119 So.2d 8 (1960). We conclude from the evidence, that there is not a scintilla of evidence that the hospital failed to meet its standard of care. No one who testified at the trial had ever seen a spider in the defendant hospital. The hospital is a clean, modern, well-lit facility, which brown recluse spiders would not be likely to inhabit. Therefore, we conclude that there was not a scintilla of evidence tending to show that the hospital failed to meet that degree of care, skill and diligence which persons of common prudence, engaged in the hospital business, exercise under like conditions.

For the reasons above-stated, we affirm the trial judge’s granting of a summary judgment.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Robert HANCOCK v. J. Sherrill HANCOCK.
    SC 1437.
    Supreme Court of Alabama.
    July 2, 1976.

      Robert E. Willisson, Huntsville, for appellant.
    Richard L. Taylor, Birmingham, for ap-pellee.
   PER CURIAM.

This is a law suit between two brothers, Robert and Sherrill Hancock, as legatees under their mother’s will, for the division of testatrix’s estate. The trial Judge, in his decree:

1. Found that the mortgage which Robert claimed was an asset of the estate had been equitably assigned to Sher-rill by gift;
2. Found that interest of $125 was allowable to Sherrill’s children as interest on their $8,000 legacy;
3. Found that Robert had converted property of the estate equal in value to $15,000, which amount should be offset against Robert’s distributive share of the estate;
4. Awarded $8,000 to Sherrill as executor’s fee; and
5. Awarded $8,000 to Sherrill for attorney’s fees.

Robert appealed, contending:

1. The trial Court erred in considering Sherrill’s testimony that the mortgage was equitably assigned to him because of the Dead Man’s statute and because a co-mortgagor is incompetent to testify about such a transaction. Cousins v. Crawford, 258 Ala. 590, 63 So.2d 670 (1953);
2. Sherrill’s children are not entitled to the $125 interest because Sherrill did not show a compelling reason for paying interest under Tit. 61, § 335, Code;
3. The evidence does not support the trial Court’s finding of conversion; and
4. The executor’s fee and the attorney’s fee are unreasonable.

Sherrill answers, contending:

1. Taylor v. First National Bank of Tuskaloosa, 279 Ala. 624, 189 So.2d 141 (1966), holds that the rule of Cousins, cited by Robert, is not applicable when the adverse party calls the comortgagor to the stand. Further, no objection was raised; thus, no adverse ruling was invoked;
2. The children were entitled to the $125 interest because a legacy to minors draws interest from the date of a testator’s death. Henry v. Henry, 103 Ala. 582, 15 So. 916 (1893);
3. The finding of conversion is supported by the competent evidence and, under the ore tenus rule, this finding is due to be affirmed; and
4. The executor’s fee and the attorney’s fee are reasonable.

We reverse that portion of the judgment below relating to the award of interest; and we affirm the judgment in all other respects.

The Dead Man’s Statute

The posture of the record precludes us from disturbing the trial Court’s finding with respect to the “equitable assignment” issue. The error complained of is that the Dead Man’s statute prevented the trial Court from considering Sherrill’s testimony concerning an assignment to him by the testatrix of a mortgage executed by him to his mother. Our problem in treating this issue arises from the absence of any objection posed to this line of questions. Robert’s attorney contends that, since he was placed in the position of having to call Sherrill as his witness, he was not in a position to object even when this testimony was adduced during cross examination. We cannot agree.

Rule 43(b), ARCP, which was invoked by Robert’s attorney in calling Sherrill as his witness, does not alter the operative effect of Rule 43(c), which abolished the old equity “Lazy Lawyer” rule. (Tit. 7, § 372(1) ). Since no ruling was invoked, there is nothing to review. See Rule 46, ARCP, and Committee Comments thereto.

The Interest Payment

The testatrix’s will made specific bequests to each of Sherrill’s two children of $4,000. The payment of these legacies was effected by cashing certificates of deposit, the face value of which was $8,000 plus $125 accummulated interest, for a total disbursement of $8,125. Since a legatee’s application to compel payment cannot be brought within six months from the granting of letters testamentary, it follows, absent a testamentary directive to the contrary, that interest is not due where, as here, the payment of the legacy is made within this six-month period. Title 61, § 335, Code. See Hallett and Walker, Executors, v. Allen, 13 Ala. 554 (1848). Had the bequest specified the certificates of deposit rather than $8,000 cash, of course, the result would be different.

The Conversion of Estate Property

The issue of Robert’s conversion of estate property involves our ore tenus rule of review. Attorneys for the parties are in agreement that, because of the nature of the case and the circumstances of the litigants, no useful purpose can be served by a detailed recital of the facts giving rise to this protracted and complex litigation. Suffice it to say, our careful study of the record and our conference with the attorneys for the parties constrain us to conclude that the judgment of the trial Court with respect to this issue is supported by competent and credible evidence, and we are not convinced that the decree below is plainly and palpably wrong. Hill v. Delchamps, 294 Ala. 14, 310 So.2d 871 (1975).

Executor’s and Attorney’s Fees

By virtue of the stipulated value of the estate, we find that the trial Court’s award of $8,000 does not exceed the statutory maximum compensation allowable to an executor. Tit. 61, § 377, Code, fixes the maximum (“not to exceed”) compensation at 2i4% of receipts and 214% of disbursements.

The statute further provides:

“ . . . and the court may also allow actual expenses, and, for special or extraordinary services, such compensation as is justified . . . ”

Under this statutory formula, we cannot say that the trial Court abused its discretion in allowing $8,000 as compensation to the executor. Likewise we affirm the $8,000 award for attorney’s fee as being reasonable and within the trial Court’s discretion to grant. Tit. 61, § 379, Code. King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      . Sherrill is himself an attorney; but, in his capacity as executor of the estate, he was represented by Richard L. Taylor to whom the attorney’s fee was awarded.

      . Our reference to this now superseded Code section in the common vernacular, “Lazy Lawyer” rule, is a mere matter of convenience in referring to the old procedure; it is not to be interpreted as a personal reflection on counsel in the context of the instant case. •

      . Rule 33, ARAP, was invoked by the Court for a prehearing conference. This served as an invaluable aid to our understanding of the factual complexities in relationship to the issues presented. We acknowledge our appreciation to counsel for the parties for their cooperation.


author: BLOODWORTH, Justice.

text:
    Virginia Ann WHITFIELD et al. v. John R. MATTHEWS, Jr., etc.
    SC 1641.
    Supreme Court of Alabama.
    June 25, 1976.

      Richard H. Gill, Montgomery, for appellants.
    Jerry L. Cruse, Montgomery, for appel-lees.
   BLOODWORTH, Justice.

This appeal is taken by the guardian ad litem from a judgment construing a provision of an intervivos trust created by L. B. Whitfield, Jr., for the children of his two sons.

The trustee, John R. Matthews, Jr., filed a bill seeking a construction of the trust as to whether Vanda Whitfield, adopted daughter of L. B. Whitfield, III, falls within the clause “children now or later born to my son L. B. Whitfield, III,” as it appears in the trust instrument.

The trial judge ruled that “Vanda Whitfield is a child of L. B. Whitfield, III, entitled to the benefits of a child born of L. B. Whitfield, III, upon the terms and conditions set out in the trust instrument.”

The trust instrument was executed by L. B. Whitfield, Jr., on August 1, 1963. It was divided into two parts. One part made an irrevocable transfer of one half of certain assets in trust “for the benefit of the children now or later born to my son, L. B. Whitfield, III.” Basically the trust provides that the trustee pay the income to the beneficiaries. [A like provision was made for the children “hereafter born” to the settlor’s other son, Frank G. Whitfield.] Each trust also provided for a “pour-over” into the other trust should the beneficiaries of either trust all die without surviving issue.

L. B. Whitfield, III, had children at the time of the execution of the trust. As Frank G. Whitfield then had no children, the trust provided that its one half of the income would be accumulated until he had children. L. B. Whitfield, III, now has four natural children and the one adopted child, Vanda Whitfield. He is married for the third time. He is divorced from Van-da’s mother. Frank G. Whitfield has one child. He is divorced. All the beneficiaries are parties to this litigation. Minors are represented by a guardian ad litem. The trustor is now deceased. Prior to his death he and his son Frank G. Whitfield signed the following instrument consenting for the trustee to treat Vanda Whitfield, the adopted child of L. B. Whitfield, III, the same as if she were born to him, viz:

“We, the undersigned L. B. Whitfield, Jr., trustor in the trust agreement mentioned above, and Frank G. Whitfield, one of the sons of L. B. Whitfield, Jr., do hereby consent for Fred S. Ball, Jr., as trustee, to treat an adopted child of L. B. Whitfield, III, the same as if that child had been born to the said L. B. Whitfield, III, and to make distribution to such adopted child or for said child in the same manner as is provided with reference to distributions for children born to L. B. Whitfield, III.
“Signed this 24th day of July, 1972.”

The basic issue on this appeal is whether Vanda Whitfield, the adopted daughter of L. B. Whitfield, III, is a beneficiary under the trust. To resolve that issue we must consider two questions, viz: (1) whether Vanda falls within the class to whom the gift is given — “children now or later born to my son L. B. Whitfield, III”; and, (2) whether any effect is to be given the 1972 “consent” executed by the trustor and Frank G. Whitfield.

Could a gift to “children now or later born to my son L. B. Whitfield, III” be any more plainly stated? The gift is clearly made to those grandchildren who had already been or would be born to the son. Had the trustor intended that adopted children be included in his irrevocable trust it is passing strange that he would specifically use the words “born to my son.” It seems obvious he intended to favor his blood descendants with the fruit of his bounty. Had the trustor intended to favor those his sons legally adopted as well as his blood descendants, it would seem he could easily have accomplished this by saying so.

Thus, we think logic compels the result we reach which is that the trial court erred to a reversal in holding the adopted daughter to be included in the trust as a child “born to my son.”

However, there are even more compelling reasons for the result we reach.

It has long been the rule of our decisions that “child” or “children” standing alone does not include “adopted children.” In Russell v. Russell, 84 Ala. 48, 3 So. 900 (1887), the Court held, under statutory provisions regulating the adoption of children [Code of 1876, § 2745; Code of 1886, § 2367], that an adopted child is declared “capable of inheriting” the estate, real or personal, of the adopting parent, but that the statute is confined to cases of intestacy, or property left undisposed of by will and gives the adopted child no right to share with a child of the testator under the provisions of a will, devising property to the testator’s “children,” executed before the adoption, and not afterwards changed.

Russell was followed in Hamilton v. Smith, 264 Ala. 199, 86 So.2d 283 (1956), in an opinion authored by Mr. Justice Merrill, wherein the Court held that the use of the words “born” and “birth,” in the pre-termission statute, is indicative that such statute was intended to apply only to natural children, and held that an adopted child does not become a pretermitted heir upon death of his adoptive parent, even though adoption was made final after execution of the will — which made no provision for contingency of after-born children. The Court stated, “A mere reading of this statute [the pretermission statute, Tit. 61, § 10, Code 1940] containing the words ‘born’ and ‘birth’ is indicative that it is intended to apply only to a natural child or children.”

As a result of that decision the legislature amended Tit. 61, § 10, at the same time amending Tit. 27, § 5, so that they both read fundamentally the same as they do in the 1958 Recomplied Code.

The same year that Hamilton was rendered, Chief Justice Livingston wrote for the Court Peck v. Green, 266 Ala. 321, 96 So.2d 169 (1957), in which this Court held that the words “child or children of any deceased child,” in a will providing that trust property was to be divided between testator’s children, share and share alike, the child or children of any deceased child taking the share which the parent would have taken if living, did not include adopted child of a deceased child of testator.

The same argument was made in the case at bar as was made in that case to the effect that the legislature had changed the adoption statute and the pretermission statute since the decisions in Russell and Hamilton and that therefore neither decision is controlling. This Court held, however, in Peck that the right to share in an estate belongs only to those made beneficiaries by the will. Thus, expressions of public policy, as pronounced by the legislature in statutes lawfully enacted, such as Tit. 61, § 10 [the pretermission statute] or Tit. 27, § 5 [inheritance by adopted children under descent and distribution statutes], do not control the right of a testator to direct in what manner and to whom his estate shall be distributed. “A will, unless it contravenes some provision of positive law, or some principle of public policy, is the law of succession.” Russell v. Russell, supra.

In view of this Court’s having rendered the Peck decision just six years prior to the execution of the trust instrument by trustor, it would seem evident that he and his attorney had a right to rely on that opinion. Since that decision held that “child or children” did not include an adopted child, one would have a right to assume that the additional phrase “born to my son” would make assurance double sure.

We now proceed to the second question: what effect, if any, is to be given the 1972 “consent”? We conclude it is to be given no effect.

The trust is irrevocable. No unilateral action by the trustor could effect any change in the trust instrument. Nor could the trustor effect any bilateral change with another person such as has been attempted here. Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975). The language of the trust itself with respect to the gift to “children now or later born to my son” is clear and unambiguous. It is only when the language in a trust is ambiguous that resort to extrinsic evidence is permitted. Trabits v. First National Bank of Mobile, supra; Ingalls v. Ingalls, 256 Ala. 321, 54 So.2d 296 (1951).

Appellee Vanda Whitfield argues that the execution of the “consent” indicates the trustor was uncertain as to whether Vanda was covered as a beneficiary and therefore executed the “consent” to make it certain that she was.

We take note that the “consent” does not even purport to modify the trust instrument. It merely consents that the trustee make distribution to Vanda as a beneficiary. Moreover, as appellant contends, a more logical argument is that the trustor was aware that the trust instrument did not permit distribution to Vanda as a beneficiary and, for that reason, he executed the “consent.”

Whatever may be our views as to the soundness of our prior holdings that the word “children” in a will does not include adopted children, we think that use of the additional words “born to my son” make it clear that the trustor did not intend to include adopted children.

In conclusion, this appeal presents a question of law: Is an adopted child a beneficiary under the trust as falling within the class of “children now or later born to my son” ? Under our decisions, we hold she is not. We reverse and render.

REVERSED AND RENDERED.

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


text:
    SOUTHERN GUARANTY INSURANCE COMPANY, a corp. v. Melvin THOMAS et al.
    SC 1638.
    Supreme Court of Alabama.
    July 9, 1976.

      Bryan, Nelson, Nettles & Cox and J. F. Janecky, Mobile, for appellant.
    Lee B. Williams, Grove Hill, for appel-lees.
   BLOODWORTH, Justice.

This is an appeal from a declaratory judgment requiring the insurer, Southern Guaranty Insurance Company, to defend its insured, Melvin Thomas, in a damage suit pending against him and to save him harmless in that action up to the policy limits. We reverse and render.

On December 5, 1973, the insured strung a cable across a trail on property owned by his aunt to discourage trespassers from dumping trash on that property and on adjoining property which he owned. The following day the insured was visited by two deputy sheriffs and Billy Daugherty. They asked whether he had strung the cable. When the insured admitted that he had, they informed him that Daugherty’s son had been knocked off his motorcycle by the cable, resulting in his being seriously injured.

Approximately two weeks later, the insured received a letter from Daugherty’s attorney advising him that he intended to proceed with the case to recover damages for the injuries sustained by Daugherty’s son in the accident. [See the letter, post.] The letter specifically suggested that the insured notify his insurance carrier if he had homeowner’s insurance. A day or so later, the insured read over the policy briefly. [At trial, he testified that he did not understand that the policy would cover him under these circumstances.]

Shortly after receiving the letter, the insured took it to his lawyer, who asked him to check into whethei; his homeowner’s policy would cover the accident. The insured stated that he never got around to checking with his agent. The insured’s lawyer also asked the insured to bring the policy to him for examination. The insured stated that he looked the policy over but did not see anything that appeared to cover this accident and that he subsequently forgot to take the policy to his lawyer, in spite of repeated reminders. The insured did not take the policy to his lawyer until after suit was filed in June 1974, approximately six months after the accident occurred.

The policy in question provides the following :

“COVERAGE E — PERSONAL LIABILITY
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company’s liability has been exhausted by payment of judgments or settlements.”

The policy further provides that medical payments will be made to persons who sustain

“. . . bodily injury . . . caused by an accident while such person is: 1. on an insured premises with the permission of any Insured; or 2. elsewhere, if such bodily injury . is caused by the activities of any Insured . . . . ”

Under a portion of the policy entitled “3. INSURED’S DUTIES IN THE EVENT OF ACCIDENT, OCCURRENCE, CLAIM OR SUIT,” the following appears:

“(1) In the event of an accident or occurrence, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to this Company or any of its authorized agents as soon as practicable. (2) If claim is made or suit is brought against the Insured, the Insured shall immediately forward to this Company every demand, notice, summons or other process received by him or his representative.” [Emphasis supplied.]

Another provision of the policy states,

“No suit or action shall lie 'against this Company, unless: (1) as a condition precedent thereto there has been full compliance with all the provisions and stipulations of this policy . . . .”

The insured did not notify the insurer of the accident or of the demand letter from Daugherty’s attorney until after suit was actually filed, some six months after the accident. Because of this delay, the insurer denied coverage and filed suit seeking a declaratory judgment that there was no duty on its part to defend the insured or to pay any judgment against him.

At trial, the jury, in response to special interrogatories, answered that the insured had given the insurer “reasonably timely notice” of the accident and of the demand letter. Judgment was entered for the insured. Having been denied a directed verdict at the close of the evidence, the insurer moved for judgment notwithstanding the verdict or, in the alternative, for a new trial on the grounds that the insured failed to give “reasonably timely notice” of the accident and of the demand. The motion was denied.

On appeal, the insurer contends that, where the facts are undisputed and the evidence warrants but one inference, whether notice was given within a reasonable time is a question of law for the judge, not a question of fact for the jury, and that under the circumstances of this case the trial court should have ruled that as a matter of law the insured failed to give reasonably timely notice.

The insured contends: that reasonableness is a question for the jury since it must be determined on the basis of all the facts and circumstances of each case; and, that his delay was reasonable because he believed that the policy did not provide coverage, that he was not liable, and that suit would not be filed. The insured further contends that the insurer must show that its position has been prejudiced by the delay and that the insurer here has not done so.

The terms “as soon as practicable” and “immediately” (as they are used in the suit policy) have been generally construed to mean that notice must be given “within a reasonable time” in view of all the facts and circumstances of the case. See, e. g., American Liberty Ins. Co. v. Soules, 288 Ala. 163, 171, 258 So.2d 872, 879 (1972); Pan American Fire & Casualty Co. v. De-Kalb-Cherokee Counties Gas District, 289 Ala. 206, 214, 266 So.2d 763, 771 (1972); Annot., 18 A.L.R.2d 443, 462ff.

Thus, the fundamental issue on this appeal is whether notice of the accident and of the demand letter were given to the insurer within a reasonable time as a matter of law.

Where facts are disputed or where conflicting inferences may reasonably be drawn from the evidence, the question of the reasonableness of a delay in giving notice is a question of fact for the jury. Provident Life & Accident Insurance Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934). Conflicting inferences concerning the reasonableness of a delay may sometimes be drawn where the insured offers evidence of mitigating circumstances.

“However, where an insured fails to show a reasonable excuse or the existence of circumstances which would justify a protracted delay, the Court should as a matter of law hold that there has been a breach of the condition as to notice

Zurich General Accident & Liability Insurance Co. v. Harbil Restaurant, Inc., 7 A.D.2d 433, 184 N.Y.S.2d 51, 53 (1959). Accord, Provident Life & Accident Insurance Co. v. Heidelberg, supra; Annot., 18 A.L.R.2d 443, 504ff. See also Lennon v. American Farmers Mutual Insurance Co., 208 Md. 424, 118 A.2d 500 (1955), where it was held that

“[w]here the facts are undisputed and only one conclusion is reasonably possible, the question whether or not the insured under a liability policy complied with the requirement of notice is a question of law for the court; but where the facts are disputed or more than one conclusion is reasonably possible, the question is one for the jury.”

In this case, the insured offers excuses for his delay in giving notice to the insurer. If those excuses may reasonably be said to justify the delay, the trial court did not err in submitting the issue of the reasonableness of the delay to the jury.

It is implicit in what has been said up to this point that under Alabama law there are only two factors to be considered in determining the reasonableness of a delay in giving notice to an insurer: the length of the delay and the reasons for the delay. The insured has argued that another factor should be considered, viz, the absence of prejudice to the insurer from the delay. But, under our cases, whether the insurer was prejudiced by the delay is immaterial to a determination of the reasonableness of the delay where the giving of reasonably timely notice is expressly made a condition precedent to any action against the insurer, as in this case.

“The rule established by the great weight of authority is that where, as in the policy involved in this case, notice of the accident and forwarding of any demand, notice, summons or other process are specifically made a condition precedent to any action against the insurer, the failure to give a reasonably timely notice of the accident or of the receipt of any demand, notice, summons or other process will release the insurer from the obligations imposed by the contract, although no prejudice may have resulted. . . .” [Emphasis supplied.]

American Fire & Casualty Co. v. Tankersley, 270 Ala. 126, 130, 116 So.2d 579 (1959).

As this Court stated in Soules, supra,

“[t]he authorities are more or less uniform to the effect that where a named insured, who is usually in possession of a policy, fails to give notice within a reasonable time of an occurrence, the insurer is relieved of liability under the policy where ‘reasonable’, ‘immediate’, or ‘as soon as practicable’ notice is required in the policy and such notice is made a condition precedent to an action on the policy.”

Thus, dispositive of the issue in this case is whether the insured’s excuses, offered for his six-month delay in giving notice to his insurer, are reasonable.

First, the insured argues that his delay was reasonable because he “believed” that the policy did not provide coverage. He cites American Liberty Insurance Co. v. Soules, 288 Ala. 163, 258 So.2d 872 (1972), where it was held that a delay of eleven months was not unreasonable on the part of a claimant who was an unnamed additional insured in a homeowner’s policy owned by 'his parents but who did not even know that his parents had such a policy. The Soules case itself contains language which clearly distinguishes it from the present case:

“We consider this case significant in that one of the cases cited and relied on by the appellant is . Kellum v. Pacific National Fire Ins. Co. (Tex.Civ.App.), 360 S.W.2d 538, involving a declaratory judgment action. The named insured had injured another party on a hunting trip. Notice was given the insurer by the named insured some ten months later. The policy required notice as soon as practicable. The insured’s excuse for the late notice was that he was unaware that the policy covered this type of accident. The court concluded that since Kellums had possession of the policy and ample opportunity to read it, the terms of the policy had been breached as a matter of law by the late notice.”

Id. at 172, 25,8 So.2d at 880. In the present case, we are confronted with a named insured who not only had possession of the policy and ample opportunity to read it but also was advised by the injured party’s attorney to notify his homeowner’s insurance carrier. Moreover, he was repeatedly advised by his own attorney to bring the policy to him and of the need to determine whether the accident was covered under his homeowner’s policy. This excuse is clearly unreasonable and affords no basis for submitting the reasonableness of the delay to the jury.

Second, the insured argues that the delay was reasonable because of his “belief” that he was not liable for the accident. He cites Pan American Fire & Casualty Co. v. DeKalb-Cherokee Counties Gas District, 289 Ala. 206, 266 So.2d 763 (1972). There, a general liability insurer was seeking a declaratory judgment that it had no duty to defend the insured gas company in a suit arising out of the explosion of a gas heater. The insured knew nothing of the explosion until its manager was interviewed by the adjuster for the homeowner’s insurer, who indicated only that a claim was being made under a homeowner’s policy. Notice of the explosion was not given the gas company’s insurer until after suit was filed eleven months after the explosion. This Court held that notice was given as soon as practicable under the circumstances, citing 44 Am.Jur.2d Insurance § 1474:

“ ‘It is generally recognized that the insured may be excused for a delay or failure to give the required notice to the insurer where it appears that, acting as a reasonably prudent person, he believed that he was not liable for the accident. Thus where the insured has no reasonable grounds for believing that any act or omission by it, or any act of its employees was the cause of an injury upon which an action was later based by an injured party against the insured, the insured was held not to be required to give any notice to the insurer under a liability policy requiring notice of an accident to be given “as soon as practicable” . . .’” [Emphasis supplied.]

Id. at 216, 266 So.2d at 773. In the Pan American case, the gas company had no reason to believe that “any act or omission by it, or any act of its employees was the cause of an injury , . ..” In the present case, the insured knew the day after the accident that it was claimed that the cable, which he admitted putting up, had caused the accident. Any belief that he may have had that his actions had not caused the accident cannot be regarded as reasonable. That purported belief provides no basis for submitting the reasonableness of the delay to the jury.

This conclusion is supported by the case of Jeannette Glass Co. v. Indemnity Insurance Co., 370 Pa. 409, 88 A.2d 407 (1952). There, the Supreme Court of Pennsylvania held that the fact that the insured had investigated the accident and had determined that it was not liable did not excuse the insured from giving notice “as soon as practicable.” A directed verdict for the insurer was affirmed, the only question being one of law for the court.

Third, the insured argues that his delay was reasonable because he did not “believe” that suit would be filed. The insured makes this argument in spite of the plain language of the letter which he received from the injured party’s attorney approximately two weeks after the accident:

“This is to advise you that I will proceed with this case to recover for the injuries and damages he has sustained. In the event you have a home owners insurance policy, I would suggest that you notify your insurance carrier and also advise me of the name of your insurance company. In the event you do not have insurance, then please contact me within the next seven days. Failure to hear from you or your insurance carrier will necessitate my filing suit without any effort to negotiate this claim.” [Emphasis supplied.]

It was not the insured’s duty under the terms of the policy to determine the probability of suit’s being filed; it was his duty to give the insurer notice of any accident or occurrence and to forward to the insurer every demand within a reasonable time.

We hold, therefore, that no reasonable excuse has been shown for the insured’s failure to give the insurer reasonably timely notice of the accident and of the demand and consequently that the delay was unreasonable as a matter of law.

REVERSED AND RENDERED.

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


author: PER CURIAM. EMBRY, Justice MADDOX, Justice

text:
    Christine HORTON et al. v. NORTHEAST ALABAMA REGIONAL MEDICAL CENTER, INC., et al.
    SC 1571.
    Supreme Court of Alabama.
    July 2, 1976.

      Wilson, Propst & Isom and Gordon F. Bailey, Jr., Anniston, for appellants.
    James M. Campbell, Anniston, for appel-lees.
   PER CURIAM.

This appeal by Christine Horton and Lawrence Wayne Horton is from judgment in favor of appellees entered after grant of motion for summary judgment. Appellees are Northeast Alabama Regional Medical Center, Inc. (Medical Center), Anniston Memorial Hospital and City of Anniston, Alabama.

Case

The Hortons filed suit against the Medical Center, Anniston Memorial Hospital and the City of Anniston, for damages resulting from injuries allegedly incurred by Christine Horton while a patient at the Medical Center in Anniston, Alabama. Plaintiff, Christine Horton, sues in count one of the complaint for breach of implied contract to properly nurse and care for her, and in count two of the complaint for negligent or wanton misconduct in the same regard. She alleges in count one that:

“1. On or about the 21st day of October 1974, Plaintiff, Christine Horton and Defendants entered into an agreement by which Defendants promised to nurse and provide medical treatment and medical care for the Plaintiff, Christine Horton.
“2. Defendants breached the agreement by failure to properly nurse and care for the Plaintiff, Christine Horton, following her surgical operation and as a proximate result of the Defendants’ breach of said agreement, the Plaintiff, Christine Horton, required additional or corrective surgery, incurred considerable medical and drug expenses, suffered great pain and mental anguish and became permanently injured.”

In count two she alleges the following:

“1. On or about the 22nd day of October, 1974, in the City of Anniston, Calhoun County, Alabama, the Defendants’ (sic) negligently or wantonly caused or allowed the Plaintiff, Christine Horton, to be pushed, shoved and generally treated in a rough manner, and said treatment caused Plaintiff to be injured so that corrective surgery had to be performed on the Plaintiff, Christine Horton.
“2. As a proximate consequence of the Defendants’ said negligence or wantonness, the Plaintiff, Christine Horton, was caused to suffer the following injuries and damages: Plaintiff, Christine Horton’s right ovarian vein was split or severed; Plaintiff, Christine Horton, suffered internal bleeding; Plaintiff had to be subjected to a second operation; Plaintiff, Christine Horton, suffered great physical pain and mental anguish; Plaintiff has suffered permanent injuries.”

Plaintiff, Lawrence Wayne Horton, alleges :

“COUNT THREE
“1. On or about the 21st day of October, 1974, the wife of Plaintiff, Lawrence Wayne Horton, one Christine Horton, and the Defendants entered into an agreement by which the Defendants promised to nurse and provide medical treatment and medical care for Christine Horton.
“2. Defendants breached the agreement by failing to properly nurse and care for the Plaintiff’s wife, Christine Horton, following her surgical operation and as a proximate result of the Defendants’ breach of said agreement, the Plaintiff’s wife, Christine Horton, required additional or corrective surgery, incurred considerable medical and drug expenses, suffered great pain and mental anguish and became permanently injured.
“COUNT FOUR
“1. On or about the 22nd day of October, 1974, in the City of Anniston, Calhoun County, Alabama, the Defendants negligently or wantonly caused or allowed the wife of Plaintiff, Lawrence Wayne Horton, one Christine Horton, to be pushed, shoved and generally treated in a rough manner so as to cause her to be injured, which injury required that corrective surgery be performed on the Plaintiff’s wife.
“2. As a proximate consequence of the Defendants’ said negligence or wantonness, the Plaintiff’s wife, Christine Horton, was caused to suffer the following injuries and damages: Plaintiff’s wife, Christine Horton’s right ovarian vein was split or severed; Plaintiff’s wife, Christine Horton, suffered internal bleeding; Plaintiff’s wife, Christine Horton, suffered great physical pain and mental anguish; Plaintiff’s wife, Christine Horton, suffered permanent injuries.”

The Medical Center and the City of An-niston filed a 12(b)(6) motion to dismiss. The trial court, following a pretrial hearing on the motions, ordered defendants to file affidavits and other evidence in support of the motions and proceeded to treat them as motions for summary judgment. Then, defendants filed motions for summary judgment based on the pleadings, affidavit of Austin Letson, and Anniston City Ordinance No. 74-0-13. After consideration of the affidavit and other evidence presented,t the trial court granted defendants’ motions for summary judgment, citing Hembree v. Hospital Board of Morgan County, 293 Ala. 160, 300 So.2d 823, as authority.

We reverse and remand.

Issue

Did the trial court err in granting defendant’s motions for summary judgment on the authority of Hembree v. Hospital Board of Morgan County?

Facts

Plaintiff, Christine Horton, was admitted to Northeast Alabama Regional Medical Center, formerly Anniston Memorial Hospital, in the City of Anniston, Alabama, on 21 October 1974. On 22 October 1974, a hysterectomy was performed on her.

The Medical Center, where Christine Horton was admitted and where the alleged mistreatment occurred, functioned prior to 7 May 1974, under the name of Anniston Memorial Hospital. That entity was organized, and operated, under the provisions of Code of Ala., Tit. 22, § 189, and Chapter 15 of the Code of the City of Anniston of 1961. Under that Code Section it was a municipal hospital.

However, on 7 May 1974, the Council of the City of Anniston, Alabama, adopted an ordinance which created and established the Regional Medical Center Board; the Board to be a body corporate and politic as permitted by Code of Ala., Tit. 22, § 190(1). The Regional Medical Center Board was doing business as Northeast Alabama Regional Medical Center at the time the alleged causes of action arose.

Decision and Opinion

It is axiomatic that summary judgment is to be granted to the moving party only where it is clear from the evidence presented that there is no genuine issue as to any material fact. On such motion the court cannot try issues of fact. Rather, it may only ascertain whether there are issues for a jury to determine. If, under - any conceivable set of circumstances the plaintiff may recover, the trial court must deny the motion for summary judgment. Rule 56, ARCP; Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92.

In this case the action brought by the plaintiffs was in tort, in counts two (2) and four (4), and in contract, in counts one (1) and three (3). The trial court granted defendants’ motions for summary judgment on the authority of Hembree v. Hospital Board of Morgan County, 293 Ala. 160, 300 So.2d 823. In Hembree the action sounded in tort only. The defense of governmental immunity was a bar to recovery since no express or implied contract existed.

The question presented here is whether, under the pleadings and evidence before the court, there was a cause of action upon which the plaintiffs might possibly recover. We answer in the affirmative.

The defense of governmental immunity to actions in tort against county hospital boards no longer exists. In Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631, full effect was given to the legislative intent expressed in Code of Ala., Tit. 22, § 204(24). That intent was not to immunize county hospital boards. Those boards have the power “ * * * to sue and be sued * * The Hortons could maintain actions in tort under counts two (2) and four (4) of their complaint but for the fact that Lorence, decided on 10 July 1975, was given prospective effect only. Christine Horton incurred her injury on 22 October 1974. The tort actions are therefore barred by the defense of governmental immunity.

The appellants argue that such immunity as applied in Hembree is not applicable here. This is based upon the contention that by adoption of Ordinance Number 74-0-13, establishing the Medical Center Board, the Council of the City of Anniston created an entity apart and separate from all county governmental ties. They argue that by creating the Medical Center Board, in compliance with Code of Ala., Tit. 22, § 190(1), the hospital was at the time of the alleged injury a public corporation so. far divorced and removed from governmental origin that it lay unprotected by any shields of immunity. Such is not true. The evidence shows that the Medical Center Board was created under Section 190(1), but this provision in no way removes the protective cloak of governmental immunity provided by the cases before the decision in Lorence, supra. The City Council merely withdrew the City of An-niston from operation of the hospital and placed its operation in a public body under authority of Section 190(1). However, the powers, obligations and duties of such a public body are the same as those of county hospitals, as provided in Code of Ala., Tit. 22, § 204(18)-(30), since those Code Sections are, by reference, adopted in Tit. 22, § 190(1).

Code of Ala., Tit. 22, § 190(1) is as follows:

“§ 190(1). Incorporation of public bodies created pursuant to this chapter; powers of such corporations. — Any public body heretofore or hereafter created and established by ordinance or resolution pursuant to chapter 6 of Title 22, Code of Alabama (1940) may become a body corporate and politic under the name set forth in such ordinance or resolution by filing a certified copy of such ordinance or resolution with the secretary of state, to be recorded in his office. The members of such public body shall constitute the members of the corporation until they are succeeded by other members as provided by said ordinance or resolution. Neither the members of the corporation nor its directors or officers shall be personally liable for the debts, torts, or undertakings of the corporation.
“The corporations provided for by this section shall have all the power and authority of county hospital boards as provided for by an act approved June 2, 1949, [§§ 204(18)-204(30) of this title], except that such corporations shall not have or exercise any power which is inconsistent with or repugnant to the provisions of the ordinance or resolution under which it came into existence.
“This section shall be deemed to be cumulative. (1957, No. 63, appvd. June 21, 1957.)”

Adoption by reference in § 190(1) of Tit. 22 of the provisions of §§ 204(18)-(30), as to county hospitals, clearly places in the public bodies operating thereunder the identical powers and immunities that may have existed at the time of the alleged injury. As of 22 October 1974, county hospital boards were immune from tort liability as held in Hembree; Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 and Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So.2d 762.

However, the immunity provided by the cases cited, which were prior to Lorence (e.g. Hembree and Smith), does not protect defendant Regional Medical Center Board from actions for breach of contract, either express or implied. Under the pleadings an action may be maintained in this case for breach of implied contract. Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817. Here the terms as well as the “specified” manner of performance may be implied from the facts. We arrive at this determination by the intendments manifested from the conduct and actions of the parties rather than by any expressed agreement or assent. Berry v. Druid City Hospital Board, 10 ABR 1060.

Whether the ajleged injury was the result of nonperformance or of misfeasance in performance of a contract, the action arising therefrom is in contract, not in tort. Druid City Hospital Board, supra.

Here, plaintiffs alleged a breach of promise to nurse and provide medical treatment and care. It would be illogical for a patient to enter a hospital for surgery, anticipating and expecting that corrective surgery would be required, owing to injuries resulting from improper treatment and care while in the hospital recovering from surgery. One would logically expect proper treatment and care after surgery.

REVERSED AND REMANDED.

HEFLIN, €. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, J., dissents.

EMBRY, Justice

(concurring specially):

One more step. As I see it, actions may be maintained for breach of contract implied in fact or for breach of quasi-contract. The terms of a quasi-contract, one implied in law, are defined by duties imposed by law upon the Hospital Board. The duty defines the contract in the case of quasi-contracts while the contrary is true as to express contracts or those implied in fact.

I reiterate what I expressed about this subject in dissenting opinions in Green v. Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701; Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631; and by special concurrence in Berry v. Druid City Hospital Board, 10 ABR 1060. The duty existing under a constructive contract, owed by a hospital to use due care in the treatment of its patients, demands that a remedy for the breach thereof be available; an action ex contractu.

HEFLIN, C. J., and BEATTY, J., concur.

MADDOX, Justice

(dissenting).

My position on the issue of “governmental immunity” in cases such as this one was first stated in Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1972), where I wrote as follows:

“We must have a reasonable respect for the doctrine of stare decisis and the division of powers between the Executive, Legislative and Judicial branches of our government. Alabama may one day return to the rule of governmental responsibility with which we began as a State. The frequency of the appeals to this Court asking that the rule be changed is some evidence that the constitutional provision granting governmental immunity may have served whatever purpose it was intended to serve and maybe it should not be abandoned. But that is a question addressing itself to the Legislature in initiating and proposing an amendment to the Constitution. The Legislature already has power, without necessity for a constitutional change, to adjust claims against the State.
The Legislature, when it deems necessary, can pass relief bills to compensate individuals who have been harmed. In fact, the Legislature now provides some relief to persons injured by appropriating money to the State Board of Adjustment for payment of claims against the State. Title 55, §§ 333-344, Code of Alabama, 1940 (Recomp.1958). See The Alabama State Board of Adjustment and the Law, 19 Ala.Law. 397 (1958). Therefore, a claimant is not completely without some recourse if he suffers injury because of the action of State officials in carrying out their duties.”

In Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), I specially concurred, stating:

“I believe this appeal to us for the second time points out the futility of attempting to widen the crack made in the ‘governmental immunity’ wall by Paul v. Escambia County Hospital Board, 283 Ala. 488,218 So.2d 817 (1969).
“My own personal view is that this Court should have never insulated county operated hospitals from tort liability in cases involving paying patients on the ground that counties operating such hospitals are engaged in a ‘governmental function.’ But it has, and not on just one occasion, but on several. See Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So.2d 583 (1969); Thompson v. Druid City Hospital Board, 279 Ala. 314, 184 So.2d 825 (1966); Clark v. Mobile County Hospital Board, 275 Ala. 26, 151 So.2d 750 (1963); Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So.2d 762 (1957); Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938); Laney v. Jefferson County, 249 Ala. 612, 32 So.2d 542 (1947).
“As I said as author of the opinion in Hutchinson v. University Board of Trustees, (decided November 11, 1971), 288 Ala. 20, 256 So.2d 281, the question of governmental responsibility is a pressing one, but the Legislature is the body which will have to deal with it in view of the interpretations which have been heretofore rendered with regard to governmental immunity.

The Legislature has not acted and this Court has been called upon once again to distinguish between actions ex contractu and actions ex delicto. The problem which we here face was created by Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969), which followed the questionable doctrine set out by a divided court in Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1956).

As the only member of the Court who believes that this is a legislative rather than a judicial matter, I hesitate to continue to dissent, but I firmly believe that a separation of powers question is presented and that this Court should not overrule precedents which were so recently established in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), and Hembree v. Hospital Board of Morgan County, 293 Ala. 160, 300 So.2d 823 (1974). The majority says that Smith and Hembree are distinguishable, holding:

“However, the immunity provided by the cases cited, which were prior to Lorence (e.g. Hembree and Smith), does not protect defendant Regional Medical Center Board from actions for breach of contract, either express or implied.”

That statement in the majority is wholly incorrect, in my opinion. In Smith, Hem-bree, and here, it is obvious that in each case, the plaintiff filed a contract action, as Justice Jones candidly stated in his dissent in Hembree, “in order to circumvent the sovereign immunity doctrine, . which circumvention had its inception in Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969).” Therefore, we have a situation where the majority bases its decision on Paul (a “circumvention”) which followed Vines (a “circumvention” of the doctrine of statute of limitation).

I believe that the Court should re-examine the traditional rule regarding the distinction between contract and tort. In Mobile Life Insurance Co. v. Randall, 74 Ala. 170 (1883), the following is stated:

“Mr. Justice Parsons, in Wilkinson v. Moseley, 18 Ala. 288, said: ‘Perhaps the best criterion is this: if the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but, if the cause of action arises from a breach of duty growing out of the contract, it is in form ex de-licto, and case.’ In 2 Wait’s Ac. and Def. 100, the doctrine is thus stated: ‘When there is a contract, either express or implied from which a common law duty results, an action on the case lies for the breach of that duty; in which case, the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. Thus, if a lawyer or physician is engaged by special contract to render professional service, and, in the performance of such service, he is guilty of gross ignorance or negligence, an action on the case will lie against him, notwithstanding such special contract.’ See, also, Pomeroy on Rem. §§ 567, 573.

In view of the above, I believe that both Smith and Hembree were correctly decided and I would follow them in this case.

Since a majority of this Court now holds that a patient can sue in tort, Lorence, I see no reason to cloud the law by use of the “circumvention” device. Why not treat Mrs. Horton the same as Mr. Lorence was treated, and allow her to maintain her tort action ? That is exactly what it is, has been, and as far as I am concerned, will always be. Therefore, I must respectfully dissent.


author: FAULKNER, Justice. FAULKNER, Justice.

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 136, et al. v. DAVIS CONSTRUCTORS AND ENGINEERS, INC. and Kimberly-Clark Corporation.
    SC 1500.
    Supreme Court of Alabama.
    May 14, 1976.
    As Corrected on Denial of Rehearing July 9, 1976.

      Cooper, Mitch & Crawford and John C. Falkenberry, Corretti, Newsom & Rogers, Birmingham, for appellants.
    Dixon, Wooten, Boyett & McCrary, and B. Clark Carpenter, Talladega, and Thompson, Ogletree & Deakins and Gardner G. Courson, Atlanta, Ga., for appellee Davis Constructors and Engineers, Inc.
    C. V. Stelzenmuller, Birmingham, for appellee, Kimberly-Clark Corp.
   FAULKNER, Justice.

The Brotherhood appeals from an order and judgment of the Circuit Court of Tal-ladega County, granting a preliminary injunction against the Union, its officers, and agents, enjoining mass picketing and violence in a labor dispute.

Paragraph 6 of the injunction is null and void. We reverse and remand.

Davis Constructors and Engineers, Inc. and Kimberly-Clark Corporation had entered into a contract to expand production facilities and install pollution control equipment at a plant owned by Kimberly-Clark in Childersburg, Alabama. Prior to August 30, 1975, members of the Unions had peacefully protested Davis’ employment of non-union members on the job. On August 30 a large number of Union members mássed at the entrance to the construction site. There they made threats, used abusive language and committed assaults and other acts of violence against employees of Davis and Kimberly-Clark. The same day, a Circuit Judge, specially assigned to hear the case, issued an ex parte temporary restraining order based on the plaintiffs’ verified complaint and supporting affidavits. At the scheduled hearing on September 2, after all parties had been given opportunity to present evidence, the court granted a preliminary injunction. In general terms, the order enjoined mass picketing, the blocking of entrances, threats, and violence.

The Unions have appealed from Paragraph 6 of the preliminary injunction, providing :

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

The Union contends that this paragraph constitutes an improper delegation of the court’s contempt power, with a concomitant “chill” on their First Amendment rights; that due process requires that persons charged with constructive contempt be given notice of the charges against them and be afforded an adequate opportunity to defend against such charges before punishment can be imposed.

Davis and Kimberly-Clark argue that this case is not ripe for judicial determination, as no Union members have been arrested for contempt, contending that once arrests have been made, the proper method for review will be by writ of habeas corpus, if incarcerated; by writ of certiorari, if not. They allege the Union is attempting to avoid in advance the Alabama rule, that there is no right to appeal a contempt conviction.

Furthermore, Davis and Kimberly-Clark assert that criminal contempt is a public offense, and it is constitutionally permissible for sheriffs or police officers to make warrantless arrests for violations of the injunction committed in their presence. Indeed, they argue, it is necessary for warrantless arrests to be made, to prevent the repetition of violence and mass picketing, and to prevent would-be contemnors from leaving the jurisdiction before show cause orders could be served on them. Finally, they say any violation of the injunction committed in the presence of the sheriff or other police officers would be direct criminal contempt.

We are of the opinion that the Union has standing to take this appeal, and the issues presented are ripe for judicial resolution. The Union is not attempting to appeal not-yet-entered convictions for contempt; they have properly appealed from a portion of a preliminary injunction, pursuant to Rule 4(a), Alabama Rules of Appellate Procedure.

We agree with Davis and Kimberly-Clark that law enforcement officers may make warrantless arrests for public offenses committed in their presence. This is specifically provided by Title 15, § 154, of the Alabama Code, 1958, which reads, in part, as follows:

“An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence . . .”

This statute is perfectly in accord with the lastest pronouncement of the Supreme Court on warrantless arrest, U. S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed. 2d 598, 44 U.S.L.W. 4112 (1976).

The issue then becomes whether or not a violation of the injunction is a public offense, or a direct criminal contempt.

We think it is neither. Davis and Kimberly-Clark argue that a public offense is “an act or omission forbidden by law, and punishable as provided in this Code.” Title 1, § 5; that courts are given the power to punish for contempt by Title 13, § 2, and the possible sanctions for criminal contempt are set out in Title 13, §§ 9, 126(4), and 143. Since contempt is forbidden by law and is punishable, it is a public offense, reason Davis and Kimberly-Clark. We do not agree. Contempt is, and always been, treated as sui generis in Alabama. “ ‘A proceeding for contempt is sui generis, being neither a “civil action” nor a “criminal prosecution” within the ordinary meaning of those terms.’ ”

Ex Parte Hacker, 250 Ala. 64, 70, 33 So.2d 324, 330 (1947). Criminal contempt is not a public offense; it is not a criminal case has under the Alabama Constitution or the statutes. Ex Parte Evett, 264 Ala. 675, 89 So.2d 88 (1956).

Violation of an injunction is not direct criminal contempt. Title 13, § 2 enumerates seven broad classes of conduct which are punishable summarily as direct criminal contempt:

“Powers of court to inflict summary punishment. — The powers of the several courts in this state to issue attachments and inflict summary punishment for con-tempts, does not extend to any other cases than:
“Disrespectful, contemptuous, or insolvent [sic] behavior in court, tending in anywise to diminish or impair the respect due to judicial tribunals, or to interrupt the due course of trial.
“A breach of the peace, boisterous conduct, violent disturbance, or any other act calculated to disturb or obstruct the administration of justice, committed in the presence of the court, or so near thereto as to have that effect.
“The misbehavior of any officer of the court, in his official transactions, or the disobedience or resistance of any officer of the court, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command thereof.
“Deceit, or the abuse of the process of the proceedings of the court, by any person or party, or any unlawful interference with the process or proceedings of the court.
“Refusing to be sworn, or to answer, either in the court or before the grand jury, any lawful question as a witness or garnishee.
“When summoned as a juror in a court, improperly conversing with a party to an action, to be tried at such court, or with any other person in relation to the merits of such action, or receiving a communication from a party, or other person, in respect to it, without immediately disclosing the same to the court.
“Conversing with a juror, knowing him to be such, in relation to the merits of any action which he is engaged in the trial of; or supplying any juror with refreshments of any kind, except water, during the time he is engaged in the trial of any cause, without leave of the court.”

This court has not clearly drawn the outer limits of the phrase, “committed in the presence of the court, or so near thereto as to have that effect [of disturbing or obstructing the administration of justice].” In Ex Parte Morris, 252 Ala. 551, 42 So.2d 17 (1949), however, “presence” was extended to every part of the place set apart for the court’s use. How far “presence” extends depends on the individual facts of the case. We cannot say here that a violation of a preliminary injunction occurring at the plant site would be in the “presence of the court, or so near thereto” as to disturb or obstruct the administration of justice. As this court stated in Ex Parte Seymore, 264 Ala. 689, 89 So.2d 83 (1956), a proceeding on a violation of a temporary restraining order forbidding mass picketing, threats, and coercion in a labor dispute involves constructive criminal contempt.

Where there is doubt as to the character of the alleged contempt, that is, whether it is direct, or constructive, the doubt should be resolved in favor of its being constructive, expecially where the contempt charged is a criminal contempt. Ex Parte Hennies, 33 Ala.App. 377, 34 So. 2d 22 (1948).

That being the case, the federal constitution requires that for indirect contempt, not committed in open court, the accused be afforded due process of law; that is, notice of the charge and an opportunity to be heard before the court. Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). In In Re Tarpley, 293 Ala. 137, 300 So.2d 409 (1974), this court said that the question had also been spoken to in Alabama, citing with approval the holdings of Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948) and Ex Parte Bankhead, 200 Ala. 102, 75 So. 478 (1917) that according to both the federal and state constitutions, the accused must be given notice of the nature and character of the charges, and be given an opportunity to answer.

Is due process satisfied if alleged contemnors are advised of the charges against them after they have been arrested? No. Alabama cases have long required that actions for indirect contempt be initiated by a rule nisi or an arrest warrant. In Robertson v. State, 20 Ala.App. 514, 521, 104 So. 561, 567 (1924) the court said:

“ ‘It has been held that a proceeding to punish for other than direct contempt is a distinct and independent proceeding, as much so as a new suit, and necessitates the giving of notice of all proceedings.’ ”

In Hunter, the court found that constructive contempt proceedings were sometimes begun by issuing a warrant of arrest, and occasionally by issuing a citation or rule nisi to the accused ordering him to appear and answer the charge. The court went on to say, “This does not mean that a written accusation is not essential.” Id. 251 Ala. at 14, 37 So.2d at 278. Tarpley reaffirmed this. The con-trapositive of this proposition is the law in Alabama; a written accusation is essential to initiate an indirect contempt proceeding.

REVERSED AND REMANDED.

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

ON REHEARING

FAULKNER, Justice.

Opinion corrected.

APPLICATION FOR REHEARING OVERRULED.

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


author: SHORES, Justice.

text:
    SPARKS CONSTRUCTION COMPANY, INC. v. GENERAL MUTUAL INSURANCE COMPANY., etc., et al.
    SC 1506.
    Supreme Court of Alabama.
    June 18, 1976.
    Rutledge & Pruett, Gadsden, for appellant.
    Dortch, Wright & Ford, Gadsden, for General Mut. Ins. Co.
    Jack Floyd, Gadsden, for Donald F. Rogers.
   SHORES, Justice.

Cecil Dorsett filed an action in the Circuit Court of Etowah Coupty against Sparks Construction Company, Inc., claiming damages resulting from its negligence. Sparks Construction Company filed a third-party complaint against Donald F. Rogers claiming indemnity based upon a subcontract agreement between Sparks Construction and Rogers. Subsequently, General Mutual Insurance Company, which had issued a policy to Rogers, filed a bill for declaratory judgment, which is the subject of this appeal. The complaint sought a declaration that (1) the insurer was not obligated by the terms and provisions of the policy to defend Rogers, and (2) that the insurer was not obligated to indemnify Rogers against loss due to the terms and provisions of the subcontract. Each defendant (Rogers, Dorsett and Sparks) filed answers and Dorsett, in addition, counterclaimed against General Mutual asserting that he was a third-party beneficiary of the contract of insurance between General Mutual and Rogers.

The trial court determined that the indemnity provision in the contract between Sparks and Rogers was not broad enough as to require Rogers to indemnify Sparks, and that the parties to the agreement did not intend that Rogers should indemnify Sparks for loss occasioned by Sparks’ own negligence. The court then found the issues presented by the declaratory judgment action were moot and dismissed the bill. At the same time, the court dismissed the third-party complaint filed by Sparks against Rogers.

Sparks appealed from this judgment and contends that the dismissal of the third-party complaint was never requested, that it was unrelated to the issues presented by the instant complaint, which only sought a declaration of the obligations under the policy of insurance issued by General Mutual to Rogers, and thus should not have been dealt with by the trial court in its judgment.

General Mutual counters, saying that the question of whether Rogers was being sued for a legally enforceable contractual obligation was the primary question the court had to resolve to determine the issues presented by the declaratory judgment action, although it admits that this issue was not raised in its bill; but says that, under Rule 54(c), ARCP, it is the duty of the court to grant the relief to which a party is entitled irrespective of the prayer for relief in the pleadings.

General Mutual points out that the declaratory judgment action contained a general prayer for relief.

General Mutual also argues that, while a party may contractually agree to indemnify another for the consequences of the other’s negligence, the language of such an agreement must be clear and unambiguous; that the ambiguity in the instant case justified the trial court’s consideration of parol evidence to arrive at the intent of the parties; and that the findings of the trial court should not be disturbed unless clearly erroneous or manifestly unjust.

Rogers argues that it was entirely proper for the trial court to hold that the indemnity provision of the subcontract was invalid and, by so doing, rendered the question of coverage presented by General Mutual in the declatory judgment action moot.

The issue dispositive of this case is whether the trial court erred in dismissing the declaratory judgment action and granting the relief afforded in the last paragraph of its judgment:

“IT IS FURTHER ORDERED, ADJUDGED, DECREED AND DECLARED BY THE COURT that based on the above findings of Fact and Declarations of this Court, the Third-Party Complaint filed by the Defendant Sparks against the Defendant Rogers in Civil Action # 19,653 on the law side of this Court, is due to be dismissed.”

We note than an order was made in an attempt to modify the judgment, but the order was void as it was made beyond 90 days from the date of the judgment. ARCP 59.1.

The trial court determined that the indemnity provision of the contract between Rogers and Sparks Construction was the dispositive issue in the declaratory judgment action. Upon resolving that issue against Sparks Construction, the court dismissed the third-party action in the pending litigation filed by Dorsett against Sparks.

General Mutual says in brief:

“At first it was not apparent to General Mutual as to whether or not the determination reached by the trial court was in favor of or contrary to the interest of General Mutual. But now, on further recollection, it is apparent that General Mutual was mistaken in the specific relief prayed for, and that the validity or nonvalidity of the indemnity contract provision upon which the third-party action was founded was the initial issue. And, irrespective.of the dismissal of the declaratory judgment action, the adjudication of the indemnity contract provision between Sparks and Rogers by the trial court does in fact make a declaration of rights and legal relations of all the parties to this litigation.” (Emphasis Supplied)

It is not disputed that the validity or nonvalidity of the indemnity provision in the subcontract between Sparks and Rogers was central to the third-party complaint pending at the time this action was filed. General Mutual did not seek a declaration of rights under that provision. It merely sought a determination of whether it was required to defend its insured under the terms of its policy. The court did not make that determination, but, instead, dismissed the complaint in the declaratory judgment action concluding that, the indemnity provision being invalid, the insurance question was therefore moot. The court erred in dismissing the complaint in the declaratory judgment action. Whether General Mutual is bound to defend Rogers in the suit on the indemnity provision depends upon what its policy provides. The policy may exclude coverage to Rogers even though he may have incurred liability by virtue of the subcontract provision. General Mutual may owe its insured a defense in that action even though it is ultimately determined that the indemnity provision is insufficient to impose liability upon Rogers. None of these issues have been determined; and we cannot agree with the trial court that they are moot.

Had the court been asked, in the declaratory judgment action, to determine the validity of the indemnity agreement between Rogers and Sparks Construction, the court would have been wrong in doing so since this issue was pending at the time of the declaratory judgment action in the third-party action involving the same issue between Rogers and Sparks Construction. See Foreman v. Smith, 272 Ala. 624, 629, 133 So.2d 497 (1961). In Auto. Mut. Indemnity Co. v. Moore, 235. Ala. 426, 429, 179 So. 368, 370 (1938), this court observed that “. . . We have never held that after another suit has been begun, if it affords an adequate judicial determination of the question, a suit for a declaratory judgment may supersede it, and withdraw from that suit a decision of the question.” A declaratory judgment act is not designed to resolve the rights involved in a pending suit. Annot., 135 A.L.R. 934, 936 (1941). To permit otherwise would sanction the use of the declaratory judgment act as a vehicle to determine the sufficiency of defenses to a pending action.

Rule 54(c), ARCP, does not demand the affirmance of this case, since neither General Mutual nor Rogers was entitled to have the validity of the indemnity provision determined in this action, and obviously neither was entitled to a dismissal of Sparks’ third-party complaint.

The issues of coverage and defense, therefore, are not moot; and this case must be reversed and remanded for the resolution of those issues by the trial court. Since we have held validity or nonvalidity of the indemnity provision was not before the trial court, it follows that that issue is not before this court.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Alma H. MICKLE v. Darrol W. MICKLE.
    SC 1598.
    Supreme Court of Alabama.
    July 9, 1976.
    Louis W. Scholl, Birmingham, for appellant.
    Clifford W. Hardy Jr., Bessemer, for appellee.
   EMBRY, Justice.

This is an appeal by Alma H. Mickle from an amended judgment confirming sale of real estate for division of proceeds therefrom and directing the manner of payment of those proceeds to the parties. We affirm.

Darrol W. Mickle filed this action against his former wife, Alma, seeking sale, for division of proceeds between them, of two jointly owned parcels of real estate. Almost two years before this action was filed a decree of divorce was entered by the same trial court in which this action was filed. That divorce decree resolved questions of child custody and support, as well as divison of personal property, but made no disposition of the jointly owned real property.

On 1 July 1975 after submission on the pleadings, oral testimony and stipulation of the parties a decree was entered which in part provided that the property be:

“* * * sold at private sale on the ISth day of July, 1975, according to law. That from the proceeds from said sale, the clerk is ordered to pay to Darrol W. Mickle, $150.00 as expenses for over seeing repairs done on said property and for collecting the rent. Should either the Plaintiff or the Defendant in this cause bid on said property, then he or she shall only be required to pay one-half of the selling price to the clerk of this Court.”

Pursuant to that decree a private sale was had at which Darrol Mickle bid five thousand dollars ($5,000) for the parcel known as the Wylam property; Alma Mic-kle bid nine thousand four hundred twenty-five dollars ($9,425) for that parcel known as the Midfield property. Darrol paid, to the Clerk and Register of the court, twenty-five hundred dollars ($2,500); Alma paid forty-seven hundred twelve and 50/100 ($4,712.50). On 4 September 1975 the trial court entered a Final Decree confirming the report of the sale. In part it read:

“The said sale is hereby confirmed and the said J. B. Vines, Register, is hereby authorized, empowered and directed to make, execute and deliver a deed of Parcel #1 to Darrol W. Mickle and Parcel #2 to Alma H. Mickle of all of the right, title and interest of each of the parties to this cause in and to said described real estate situated in Jefferson County, Alabama.
“2. The Clerk is hereby directed to pay ONE HUNDRED FIFTY & NO/100 ($150.00) DOLLARS to Darrol W. Mickle and FOURTEEN HUNDRED FORTY TWO & 50/100 [DOLLARS] to Clifford W. Hardy, Jr., as attorney fee. After the payment of all court costs, then the balance is to be divided equally and a check is to be made out for one-half of the remainder to Darrol W. Mickle and one-half to Alma H. Mickle.”

On 12 November 1975, the trial court on its own initiative entered an Amended Final Decree. It altered the amount of payment to be made to each of the parties. In pertinent part it stated:

“2. The Clerk is directed to pay Two Thousand, Five Hundred & No/100 ($2,500.00) Dollars to Alma M. Mickle, less One Hundred Fifty & No/100 ($150.00) Dollars to Darrol W. Mickle, less Nine Hundred Thirty-seven & 63/100 ($937.63) Dollars attorney fees to be paid Clifford W. Hardy, Jr., less i/ of the court costs.
“3. The Clerk is directed to pay Four Thousand, Seven Hundred Twelve & 50/100 ($4,712.50) Dollars to Darrol W. Mickle, less Five Hundred Four & 87/100 ($504.87) Dollars attorney fees to be paid Clifford W. Hardy, Jr., less 1/2 court costs.”

Issue

After expiration of thirty (30) days from 4 September 1975 did the trial court have jurisdiction to amend, alter or vacate the judgment of that date on its own initiative ?

The determination of this issue depends upon whether the quoted provisions of the 4 September 1975 Final Decree can properly be deemed a clerical mistake. If it may be viewed as such, then, the trial court was acting within its powers to enter the 12 November 1975 Amended Final Decree.

Rule 60(a), ARCP provides in part:

“(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors, therein from oversight or omission may be corrected by the court at any time of its initiative or on the motion of any party and after such notice, if any, as the court orders * * * ”

It is clear that trial courts have the necessary power to correct clerical mistakes in judgments so that such judgments say what the record discloses was intended to be said. Rule 60(a), ARCP; Alabama Power Co. v. Cleckler, 295 Ala. 73, 323 So.2d 344. To the ends of justice, some discretion must be allowed the courts in this regard. Gorum v. Samuel, 274 Ala. 690, 151 So.2d 393.

It is evident from the record that the intent of the parties and of the trial court was to effect an equitable division of the proceeds of sale of the property. To that end the trial court attempted to allow a credit on the bid of each party of that party’s undivided one-half interest in the property for which he or she bid. However, in the original Final Decree it was provided that after certain deductions the net cash that had been paid in to court was to be divided equally between the parties. That resulted in a miscalculation of the effect of the undivided one-half interests of the parties as those interests related to the different values of the two parcels of property. Clearly that was a clerical mistake. The inequity which resulted is reflected in the difference in value of the properties — $4,425.

The Amended Final Decree is a correction of a clerical mistake. In re Estate of Martin Heller, 33 Misc.2d 798, 226 N.Y.S. 2d 260. It effected the equitable division of the proceeds, which the record discloses was intended, to within five tenthousandths of a mathematical certainty. Had the correction not been made Alma Mickle would have taken property of the value of $9,425; Darrol that of the value of $5,000, while each would share the net cash equally. Appellant makes no contention on this appeal that she is equitably entitled to such a disproportionate share of the proceeds of sale. She rests her claim to same entirely on the basis that the trial court had no power to amend the decree on its own initiative.

The record shows that the trial court erred in its initial final decree; the error was one of calculation; a clerical mistake as contemplated by Rule 60(a), ARCP, therefore the judgment is due to be and is hereby affirmed.

AFFIRMED.

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