author: LEE, Justice,

text:
    Louis P. TROTTER v. LITTON SYSTEMS, INC.
    No. 51134.
    Supreme Court of Mississippi.
    April 25, 1979.
    Robert P. Krebs, Pascagoula, for appellant.
    Karl Wiesenburg, French Caldwell, Pas-cagoula, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Louis P. Trotter filed suit in the Circuit Court of Jackson County against Litton Systems, Inc. (Litton) seeking damages for a personal injury sustained while in its employ. Litton answered the declaration and pled, as an affirmative defense, that Litton is an employer within the provisions of the Mississippi Workmen’s Compensation Law and has secured payment of compensation as required by said law; that, at the time of the injury, Trotter was an employee of Litton, working in the scope of his employment, and that said injury arose out of such employment; that Trotter’s sole and exclusive remedy is under the provisions of the Mississippi Workmen’s Compensation Law; and that Litton is not liable in a common law negligence action. The trial judge sustained the affirmative defense, which was heard preliminarily, and dismissed the declaration, from which order Trotter appeals here.

The appellant received a cut on his left thumb June 6, 1975, while working in the appellee’s West Bank Shipyard in Jackson County. He immediately went to the First Aid Station at said shipyard, and one Jerry Newman, an employee of the appellee, working in the first aid station, sutured appellant’s thumb. Newman was not a licensed physician and was not qualified to perform such function. The suturing resulted in an infection of appellant’s thumb, which caused him to suffer acute cellulitis of the thumb and arm, resulting ultimately in the loss of use of his thumb. Appellant charged that the injury resulting from the infection was due to the negligence of ap-pellee in placing an unqualified person in the first aid station and in not providing proper medical care and attention for appellant.

This is a case of first impression in the State of Mississippi, and it deals with the dual capacity doctrine. 2A Larson, The Law of Workmen’s Compensation, 14-112, 14-117 (1976) discusses the doctrine as follows:

“In comparatively recent years there has appeared in various contexts what might be called the dual-capacity doctrine. Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.
* * * * * *
The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first but with whether the second function generates obligations unrelated to those flowing from the first, that of employer. The legal obligation of a shipowner to maintain the vessel in seaworthy condition, for example, is quite independent of the status of employer. It differs in character and extent from that of a stevedoring company, even if the stevedoring company also is the shipowner. The obligation would exist even if the shipowner had no employees, and it runs to persons other than employees.”

Larson further discusses the doctor-employer relationship and opposing views.

Appellant relies upon the cases of Szydlowski v. General Motors Corp., 59 Mich. App. 180, 229 N.W.2d 365 (1975); Vesel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75 (1940); and Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 (1952) in his brief.

In Szydlowski his widow filed a wrongful death action to recover damages resulting from the death of Szydlowski due to a heart attack suffered while working for General Motors. She contended that her husband died as a result of treatment, drugs and medicine furnished (administered) him prior to his death. The Michigan court held that the treatment given Szydlowski was illegally furnished and that her action was well pled. (This case is absent a charge in the declaration that his death did not arise out of or in the course of his employment with General Motors).

In Vesel, the employee was struck in the eye by a piece of steel. He received medical aid at the direction of his employer from a woman not qualified to treat him and, as a result, he lost the sight of his right eye and the sight in his left eye was impaired. A demurrer was sustained. On appeal, the Montana Supreme Court held that the employer was not bound to render care but that when it did, the employer was bound to exercise reasonable care; that the Workmen’s Compensation Act was intended to apply only to injuries sustained by an employee in the course of his employment and as to such person, the act is exclusive unless falling under an exception provided by the act. The Court further held that the employer could not hide behind the compensation act and escape liability from his negligent or malicious acts toward an employee having no connection with the course of employment, and that the cause of action was well founded.

In Duprey, a practical nurse was employed by the Shane Diagnostic Foundation. She received injuries while working there and was treated by Dr. Harrison, a fellow employee, and by Dr. Shane, her employer. As a result of the treatment, she incurred a new and further disability. The California Court held that the employer, Dr. Shane, was responsible in a civil action for his negligent acts in treating her injuries.

Mississippi Code Annotated Section 71-3-3(g) (1972) defines “injury” as “actual injury or accidental death arising out of and in the course of employment.”

Mississippi Code Annotated Section 71-3— 15 (1972), a part of the Mississippi Workmen’s Compensation Act, provides with reference to medical services and supplies, the following:

“(1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. If the employer fails to provide the same after request by the injured employee, such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services, except in emergency cases, unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman, having knowledge of such injury, shall have neglected to provide the same. Nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician giving such treatment furnish to the employer and the commission a report of such injury and treatment, on a form prescribed by the commission. . ******
(4) The liability of an employer for medical treatment as herein provided shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, not in the same employ, provided the injured employee was engaged in the scope of his employment when injured. The employer shall, however, have a cause of action against such third party to recover any amounts paid by him for such medical treatment. . . . ”

Appellee relies upon Dixon v. Ford Motor Co., 53 Cal.App.3d 499, 125 Cal.Rptr. 872 (1976) where the Court, in restricting the Duprey principle and denying the suit, said:

“Considered in the light most favorable to the plaintiffs (see Desny v. Wilder, 46 Cal.2d 715, 725, 299 P.2d 257), the factual presentation before the superior court on the summary judgment proceedings is here summarized. At deceased’s place of employment, his employer, Ford Motor Company, maintained for the convenience and welfare of its employees an emergency first aid medical facility. The facility was staffed by a nurse and an orderly and such care was provided to all employees regardless of the source of their illness or injury. During his working hours deceased suffered physical distress and went to the facility for aid. He was negligently treated or advised by the facility’s attendants, which negligence proximately resulted in his death. We have concluded as a matter of law that upon proof, and a finding of such facts, deceased’s dependents would be entitled to workmen’s compensation benefits. Our reasons follow.
If the negligent treatment of deceased be deemed to have been rendered in the course of his employment and his death proximately resulted from such negligence, then of course his employer’s liability for workmen’s compensation would be undisputed. But we understand plaintiffs to contend that the treatment was of a personal nature, administered when deceased was not actually engaged in working for his employer, and was accordingly not in the course of his employment.
It is of course true that deceased was not actually engaged in performing the duties of his employment at the time of Ford Motor Company’s claimed negligence, and the injury and death allegedly resulting therefrom. But it is established law that: ‘Recovery of compensation is not conditional upon the employee’s rendering service to the employer at the time of the injury.’ ” 125 Cal.Rptr. at 875.

In Warwick v. Hudson Pulp & Paper Company, Inc., 303 So.2d 701 (Fla.App. 1974), the Florida Court said:

“Warwick, during the course of his employment with Hudson, suffered an injury to his back, compensable under the Florida Workmen’s Compensation Act. Warwick was initially treated in Hudson’s clinic which was staffed by nurses employed by Hudson, which treatment Warwick alleged was negligently performed resulting in serious aggravation of the injury. In resisting Hudson’s affirmative defense that workmen’s compensation coverage is the exclusive remedy Warwick theorizes that the negligent treatment afforded him by Hudson’s clinic did not constitute injuries arising out of and in the course of employment, as Hudson’s activities fell within the scope of the ‘Dual Capacity Doctrine.’
The Florida Workmen’s Compensation Act is a prototype of this jurisdiction’s ‘no fault’ concept of social legislation. The cases are numerous which have held that the immunities of the law inure to those who accept the liabilities imposed therein. One of the primary obligations and responsibilities of the employer under the Workmen’s Compensation Act is to provide medical treatment to employees. This jurisdiction has held that medical treatment which aggravates an original injury, whether it be negligent or not, is compensable under the Florida law. . ******
Thus, it appears that the Florida rule is that when an injury necessitates treatment and the treatment aggravates the original injury, such aggravation is compensable. It necessarily follows that if the employer is held liable as a result of the contract dictated by the statutory enactment, such employer is entitled to the immunity of common law liability prescribed therein.” 303 So.2d at 702.

The Florida compensation statutes are practically identical with Mississippi’s statutes. In Universal Manufacturing Company v. Barlow, 260 So.2d 827 (Miss.1972), the Court held that aggravation of a preexisting infirmity (which also means the aggravation of an existing injury) is compensable under the Act. The principle has been applied many times. Also, aggravation by a physician of an injury sustained by an employee in the scope of his employment is compensable.

In McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240 (Tenn.1977), the Tennessee court said:

“We hold, that in the field of workmen’s compensation law, and in suits by a worker against his employer, the initial injury is the cause of all that follows, even where there is superimposed upon the original injury, a new, or additional or independent injury during the course of treatment, negligent or otherwise.”

We are of the opinion that, under Mississippi statutes, the principle announced in Dixon v. Ford Motor Co., supra, Warwick v. Hudson Pulp & Paper Co., Inc., supra, and McAlister v. Methodist Hospital of Memphis, supra, pronounces the better rule, and the dual capacity doctrine should not be applied, absent legislative enactment.

The judgment of the trial court is affirmed.

AFFIRMED.

PATTERSON, C. J., and SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    George SCHWINDLING v. STATE of Mississippi.
    No. 51196.
    Supreme Court of Mississippi.
    May 2, 1979.
    Paul D. Snow, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

AFFIRMED.


text:
    GULF OIL CORPORATION and H. B. Reid Construction Company, Inc. v. Malcolm DAVIS et ux.
    No. 51190.
    Supreme Court of Mississippi.
    May 2, 1979.
    Gibbes, Graves, Mullins, Bullock & Ferris, Denton Gibbes, Laurel, for appellants.
    Oates & Houston, R. K. Houston, Jr., Bay Springs, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Jasper County; George B. Grubbs, Judge.

AFFIRMED FOR $2,500 ACTUAL DAMAGES; REVERSED AS TO $4,000 PUNITIVE DAMAGES AND RENDERED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and COFER, JJ., concur.


text:
    Robert L. JORDAN v. Thomas TOUCHSTONE et al.
    No. 51035.
    Supreme Court of Mississippi.
    May 2, 1979.
    Melvin & Melvin, Leonard B. Melvin, Jr., Sarah L. Entrekin, Laurel, for appellant.
    Pack, Ratcliff & Ratcliff, Kalford C. Rat-cliff, Laurel, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED.


text:
    Hattie RAMSEY v. Jacob RAMSEY, Jr.
    No. 51171.
    Supreme Court of Mississippi.
    May 2, 1979.
    Sekul, Hornsby, Wallace & Teel, Michael B. Wallace, Biloxi, for appellant.
    No brief filed on behalf of appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    DEPOSITORS SAVINGS ASSOCIATION v. MISSISSIPPI STATE TAX COMMISSION.
    No. 51176.
    Supreme Court of Mississippi.
    May 2, 1979.
    Stuart Robinson, Jackson, for appellant.
    James H. Haddock, Joe D. Gallaspy, William N. Lovelady, Jr., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

AFFIRMED.


author: BLOODWORTH, Justice.

text:
    J. D. KIRBY, Bennett Ray Kirby, and Lucille Kirby v. Edward JONES and Betty Jo Jones.
    77-717.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    C. B. Caine, Jr., Moulton, for appellants.
    Kenneth Shelton, Decatur, for appellees.
   BLOODWORTH, Justice.

J. D. Kirby, Bennett Ray Kirby and Lucille Kirby appeal that portion of a judgment in a boundary line dispute which permanently enjoins their use of a gravel driveway across the Edward Jones land and orders that the gravel driveway be closed. We affirm.

This action was instituted by J. D. Kirby against Edward Jones to obtain damages for trespass and a temporary injunction to enjoin the obstruction of a right-of-way. The respective wives were later joined as parties when a counterclaim was filed by Jones against J. D. Kirby and against Bennett Ray Kirby, and wife Lucille Kirby, as third-party defendants to establish judicial boundary lines between two tracts of land owned by Jones and two tracts of land, one of which is owned by J. D. Kirby and wife Rosa Lee Kirby, and one of which is owned by Bennett Ray Kirby and wife Lucille Kirby. The third-party suit sought to have a roadway which runs across Jones’ property in an east-west direction closed.

For a better understanding of the case, we refer to Appendix A which contains a drawing showing the tracts owned by the parties and the roads and driveways in question.

The trial court established judicial boundary lines between the property owned by Jones- (B&C) and the two tracts of land owned by J. D. Kirby (A) and Bennett Ray Kirby (D) and adopted the survey of Guy S. Johnson by reference. Appellants do not contest the boundaries so established. In addition to establishing the judicial boundary lines between the properties, the court found the east-west roadway (the dotted line approximates its location) to be a public road and enjoined all parties from obstructing it. Further, the court permanently enjoined the use by J. D. Kirby and Rosa Lee Kirby of a gravel driveway (the dashed line represents its approximate location) across the Jones (B) property and ordered the gravel driveway closed.

It is from the order enjoining the use and ordering the closing of the gravel driveway that this appeal was taken.

W. M. Kirby was the common grantor in the chain of title to the properties owned by Edward Jones and wife, Betty Jo Jones, J. D. Kirby, and Bennett Ray Kirby and wife, Lucille Kirby.

The appellees acquired their property in two separate transactions. The first tract (B), originally conveyed by W. M. Kirby to Dorothy Bradley and Roan Bradley, was acquired by the appellees from Midstate Homes. The other tract (C), originally conveyed by W. M. Kirby to Bobby Glenn Aldridge and Barbara Aldridge, was acquired by appellees from the Aldridges. The descriptions overlap, but that is not pertinent here.

W. M. Kirby conveyed the land now owned by J. D. Kirby (A) directly to J. D. Kirby and wife, Rosa Lee Kirby. (J. D. Kirby is now divorced and possesses the interest of his former wife in the property along with the interest he possessed prior to the divorce.) In the deed to J. D. Kirby and Rosa Lee Kirby, W. M. Kirby granted a twenty-five foot wide nonexclusive easement for the purposes of a roadway (south of J. D. Kirby’s land) to join it and a public road to the east of the Jones’ tract B.

Noting the existence of the twenty-five foot easement, the trial court found that J. D. Kirby had access to a public road and therefore enjoined him from using the gravel driveway across the Jones’ tract B and ordered the gravel driveway closed.

Appellants Kirby contend that the trial court erred in closing the gravel driveway and enjoining its use. They assert that appellant J. D. Kirby is completely landlocked and that the gravel driveway should be declared an easement by implication or an easement of necessity. In support of this contention, appellants cite the testimony of several witnesses; however, on examination of the record, we find that many statements in regard to the location of the twenty-five foot easement are ambiguous and that there are indications that witnesses were “indicating” and “pointing” to positions on exhibits and stating “here,” “there,” etc. Neither party took the necessary steps to clarify these statements or to preserve a record as to these references. The trial court saw the indications made by the witnesses on the exhibits. We cannot say that his findings are “clearly erroneous” under Rule 52, ARCP. Smith v. Clark, 341 So.2d 720 (Ala.1977).

On appeal, a judgment establishing a boundary will be affirmed if, under any reasonable aspect of the case, the decree is supported by credible evidence; the trial court will not be reversed unless there is a clear and decided preponderance of the evidence against its judgment. Ferrell v. Shomo Land Co., 345 So.2d 297 (Ala.1977). The record reflects credible evidence that a twenty-five foot easement exists giving appellant J. D. Kirby access to the public road. Thus, we cannot reverse that portion of the trial court’s judgment which enjoined the use of the gravel driveway and ordered it closed.

AFFIRMED.

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

Appendix to follow.


author: SHORES, Justice. JONES, Justice

text:
    ALABAMA POWER COMPANY, a corporation, v. Robert C. ALEXANDER.
    77-673.
    Supreme Court of Alabama.
    March 2, 1979.
    Rehearing Denied April 27, 1979.

      Thomas W. Christian, Birmingham, Sam A. LeMaistre, Eufaula, for appellant.
    Russell L. Irby, Eufaula, for appellee.
   SHORES, Justice.

This is an appeal by the Power Company from a judgment for the plaintiff in a personal injury action.

Plaintiff Alexander was employed by Billy Snead as part of a three-man crew hired to drill a well on a lot bordering Gammage Road in Barbour County. Alexander was injured when a 37-foot metal pipe, which he and the other crew members were removing from the well, came into contact with an uninsulated 7200-volt power line owned and maintained by Alabama Power Company.

The power line involved extends along the right-of-way of Gammage Road in a rural area of Barbour County and is located on an easement which has been held by Alabama Power Company since 1968. The line is 28' 5" above the ground and is in plain view; unobstructed by trees or other objects and inaccessible by structure or facility existing.

The property adjacent to Gammage Road is subdivided into lots; upon most of which mobile homes have been located.

The well being drilled when Alexander was injured was located only 17 feet from the power line. It could have been located at a point more distant from the line; but it was located as it was so that the pump house would be located in the center of a circular driveway to be built by the owner of the lot.

Alexander was injured on the second day of work on the well. To drill the well, 3 subsections of pipe were forced into the ground, joined one to the other, creating an ever-increasing length of pipe extending deeper into the ground. At the end of the first workday, the pipe was withdrawn from the well and disjointed so that the maximum length of any one unit was less than 10 feet as it was withdrawn from the well.

On the second day, the pipe sections were reinserted into the existing hole in sections and joined as on the day before. At the end of the workday, however, one of the crew members suggested that they remove the pipe in one-unit lengths “to save time.” After some discussion about removing it without disjointing it, Snead said “. ‘If you think you can hold it, it is up to you.’ ” The crew, of which Alexander was one, then pulled a 37' 3" section out of the hole. As they were holding this section upright, it either became “top-heavy” beyond their ability to hold it or the wind caused it to fall onto the line. Alexander received an immediate electrical shock, resulting in severe personal injuries.

At trial, Snead testified that he knew the power lines were there but “figured we were far enough away” from the lines. Alexander testified that he knew they were there but did not know they were uninsulated.

The accident occurred the first time the workmen attempted to remove the pipe in one section.

At the end of the plaintiff’s evidence, the Power Company asked for a directed verdict, which was denied; and after the jury returned a verdict in plaintiff’s favor, it moved for a judgment notwithstanding the verdict. This appeal followed.

The duty of one who maintains a power line has been stated as follows:

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

Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975); Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228 (1962); Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So.2d 300 (1954). Electric companies are not insurers of the public’s safety; and the law does not impose strict liability for all accidents involving their power lines. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975); Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231 (1950).

Alexander does not contend that the Power Company was in violation of any duty imposed by either statute or municipal ordinance in excess of 25 feet (28' 5") when all that was required by the regulatory agencies was a height of 18 feet. He contends, however, that, under the facts of this case, the Power Company should have anticipated that persons, pursuing business or pleasure, would come in contact with the power lines. Therefore, he contends the Power Company had a duty to insulate these wires; and that a breach of that duty resulted in his injuries.

Where the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury. Where, however, the facts are undisputed, the existence of a duty, under those facts, is a question of law. Sammons v. Garner, 284 Ala. 131, 222 So.2d 717 (1969) (sustaining of a demurrer to a complaint held proper for failure to show the existence of a duty); Stockley v. Alabama Power Co., 283 Ala. 664, 220 So.2d 605 (1969) (granting of request for an affirmative charge in favor of the defendant held proper in absence of facts from which a duty could arise). See L. Green, Judge and Jury 55 (1930). See also: Gilbert v. Gwin-McCollum Funeral Home, 268 Ala. 372, 106 So.2d 646 (1958); Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305 (1945).

In this case, there is no evidence that Alabama Power Company had either actual or constructive notice that well drilling was in progress at a site near their power lines. Absent this notice, the Power Company had no duty to insulate the wires or take other precautionary measures unless under the totality of circumstances, the Power Company should have reasonably anticipated that persons, pursuing business or pleasure, might come in contact with the power lines.

In Alabama Power Co. v. Tatum, supra, it was held that the Power Company should have reasonably anticipated that small children would climb trees which were located in residential areas and, in so doing, come in contact with power lines. There, the Power Company was said to have a duty to insulate and properly maintain those wires so as to prevent injury. This was also the holding in Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

Alabama Power Co. v. Irwin, supra, is factually similar to this case except for at least one material distinction. In that case, a metal pipe was being removed from a well when it struck uninsulated power lines. However, the power line in Irwin had been installed by the Power Company near a well which had been in existence for many years; and the Power Company knew that the well required periodic maintenance, usually on an annual basis. Under those facts, the court held the Power Company had a duty to insulate the power lines.

In each of these cases, there was evidence to support a conclusion that the Power Company should reasonably have anticipated conduct in the area of the power lines which might result in contact with the wires and resulting injury.

This is not such a case. To the contrary, the evidence shows that all other wells in the area were located 130 to 140 feet distant from the wires. The power line was put in place in 1968, many years before the well in this case was drilled. The Power Company could not reasonably anticipate that a well would be placed within 20 feet of its lines and, even if it had, that a 35' length of pipe would be pulled from the well in one section. The only time this was done was on the occasion of the accident.

The injuries suffered by Mr. Alexander are severe and the accident causing them was unfortunate. However, we are bound to follow the law and it simply does not impose upon the Power Company, under these facts, liability to him.

Therefore, the directed verdict requested by Alabama Power Company should have been granted. United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 (Ala. 1977); Coburn v. American Liberty Ins. Co., 341 So.2d 717 (Ala.1977).

The judgment appealed from is, therefore, reversed and remanded for the entry of judgment consistent herewith.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX and BEATTY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur specially in order to underscore my unqualified agreement with the opinion. Unarguably, this horribly and permanently injured young man was the unwitting victim of one of society’s most dangerous in-strumentalities — an uninsulated high-voltage electrical wire. Our legal system provides reparation for such injuries, however, only within the fault concept. Liability for maintenance of risk of harm to others in these cases is measured by the “reasonable foreseeability” test. The most routine and well-regulated activities of modem society expose each of us to multiple risks of harm. But the fault concept translates into a “reasonable and due care” standard of duty; and, more specifically here, the Power Company’s liability for the alleged breach of their duty is whether, under all the circumstances shown by the evidence of record, the jury could reasonably infer that the Company should have reasonably foreseen the probability of risk of harm to others and thus have eliminated the risk by insulating the lines at the location of the incident.

The Plaintiff concedes the Power Company’s two principal affirmative factual premises for its argument supportive of its motion for directed verdict: 1) Its occupancy was in the exercise of a lawful right. Its lines were properly and legally on the public right-of-way. 2) The height of its lines well exceeded the minimum safety standard established and recognized by the industry.

Plaintiff contends, and I agree, that these two factors, standing alone and in combination, of themselves are insufficient to take the case from the jury. As Plaintiff points out, it is the totality of the circumstances that must be looked to in applying the requisite test. This totality of circumstances, argues the Plaintiff, includes the fact that Plaintiff was an invitee engaged in a lawful pursuit on the property of another and that it was within the jury’s province to conclude that the Company reasonably should have foreseen domestic activity upon and about property of this nature and character and guarded against those risks naturally incident thereto. Plaintiff further contends, and correctly so, that it is not necessary that the jury find that the Company should have foreseen this particular activity or risk in question. The Power Company counters by asserting additional negative, that is the absence of, circumstances that would reasonably support any inference or foreseeability of harm. No other domestic wells in this vicinity were located on the “front edge” of these residential lots. There was no evidence, direct or circumstantial, from which any notice of such activity reasonably could be inferred. Additionally, the evidence is clear that all the well drilling crewmen, including the Plaintiff, were aware of the presence of the Company’s lines and the danger, and that shortly before this incident the crewman had commented on the necessity for watching out for the overhead wires.

To impose liability under the facts of this case would raise the degree of care owed by the Power Company to that of an insurer, and the fault concept, at least in this context, would have been dealt its death blow.


author: SHORES, Justice.

text:
    Scott MATTHEWS v. Dewitt MATTHEWS.
    77-765.
    Supreme Court of Alabama.
    March 2, 1979.
    Rehearing Denied April 27, 1979.
    Edwin C. Page, Jr., Evergreen, J. Milton Coxwell, Jr., Monroeville, for appellant.
    David T. Hyde, Jr., Evergreen, for appel-lee.
   SHORES, Justice.

Edmond D. Matthews died testate in 1976. He left the following will:

“STATE OF ALABAMA
“CONECUH COUNTY
“I, Edmond D. Mathews [sic], a resident of Conecuh County, Alabama, being of sound mind and disposing memory do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking any and all other last wills and codicils heretofore made by me at any time and disposing of all my worldly estate in the manner following:
“ITEM ONE
“I direct my Executrix, hereinafter named, to first pay all of my just debts and funeral expenses, and all taxes due by my estate.
“ITEM TWO
“I hereby give, devise and bequeath all of my personal property of which I die seised [sic] and possessed or to which I may be entitled at the time of my death, to my wife, Minnie B. Mathews [sic], to be her property absolutely.
“ITEM THREE
“I hereby give, devise and bequeath all of my real property of which I die seised [sic] and possessed, or to which I may be entitled at the time of my death, to my wife, Minnie B. Mathews [sic], for and during her natural life.
“ITEM FOUR
“I hereby give, devise and bequeath to my son, Dewitt C. Mathews [sic], of Birmingham, Alabama, all of the remainder interest in the following described real property of which I die seised [sic] and possessed or to which I may be entitled at the time of my death, as follows: Northeast Quarter of Northeast
“Quarter of Section 17, Township 4 North, Range 13 East, and Southeast Quarter of Northeast Quarter of Section 17, Township 4 North, Range 13 East, SAVE AND EXCEPT, the South 64 yards of said 40 acres;
“I hereby give devise and bequeath the remainder interest in the following described real property to my grandson, Scott Mathews [sic], of Conecuh County, Alabama, as follows:
“All of the South 64 yards of the Southeast Quarter of Northeast Quarter of Section 17, Township 4 North, Range 13 East, Northeast Quarter of Southeast Quarter of Section 17, Township 4 North, Range 13 East, and all of the Northwest Quarter of Southeast Quarter of Section 17, Township 4 North, Range 13 East, lying East of the Brooklyn and Evergreen Highway, and known as the old Ben Frazier home place. Two (2) acres, more or less, in the Northwest comer of the Southeast Quarter of Southeast Quarter of Section 17, Township 4 North, Range 13 East, and more particularly described as follows: Beginning at the Northwest corner of Southeast Quarter of Southeast Quarter of Section 17, Township 4 North, Range 13 East, and running South 27 yards to the Evergreen and Brooklyn Highway, thence in a Southerly direction along the East margin of said highway 125 yards, thence due North 167 yards to the fence, thence West to the point of beginning; being intended to describe and convey the 4 acres of land, more or less, conveyed to E. D. Mathews [sic] by Bessie Ralls and husband, Ed Ralls, as shown by warranty deed dated the 22nd day of December, 1939 and recorded in the office of the Judge of Probate of Conecuh County, Alabama, in Deed Record A-60 at page 135;
“both remainder interests to be owned in fee simple respectively by the beneficiaries named, after the death of my beloved wife, Minnie B. Mathews [sic].
“ITEM FIVE
“I hereby nominate, constitute and appoint my wife, Minnie B. Mathews [sic], to be the Executrix of this my Last Will and Testament, and I hereby exempt my said Executrix from making any bond in any Court for the faithful performance of her duties as my Executrix. I further exempt my said Executrix from the filing of any inventory or appraisement of my estate or making any report or final settlement to any officer, Court or tribunal for her actions as such Executrix.
“In the event my wife, Minnie B. Mathews [sic], does not survive me, then in such event, I hereby direct that my grandson, Scott Mathews [sic], be the Executor of this my Last Will and Testament with all exemptions provided in this subdivision of my Will.
“IN WITNESS WHEREOF, I, Edmond D. Mathews [sic], have hereunto set my hand and seal to this, my Last Will and Testament, contained in these three (3) typewritten pages of paper on each of which I have also signed my name at Evergreen, in the State of Alabama, on this the 8th day of June, 1971.
“/s/ Edmond D. Matthews (SEAL)”

Edmond D. Matthews’ wife predeceased him. The will was duly probated and the estate was administered by Scott Matthews, as executor. After final settlement in the probate court, Scott Matthews filed an action to quiet title in himself to a certain tract of land owned by Edmond D. Matthews but not described in the will. Dewitt Matthews answered, claiming an undivided one-half interest in the land by descent from Edmond D. Matthews. He also sought a sale of the land for division.

After hearing, the trial court entered final judgment holding that the plaintiff and defendant were joint owners of the land and ordered a sale for division. The plaintiff appealed.

The facts giving rise to the controversy are as follows:

Edmond D. Matthews acquired a tract of land from Bessie and Ed Ralls in 1939. He then built a house; but in 1961, he discovered that the house was approximately fifty feet off of the property acquired by the 1939 deed. He had the property surveyed and a description prepared to describe the property on which the house was situated. After the survey was prepared, J. M. Ralls and wife, successors in interest to Bessie and Ed Ralls, executed a deed to Edmond D. Matthews conveying the lands as disclosed by the survey. This amounted to approximately 3 acres of land in addition to that described in the 1939 deed.

In 1971, Edmond D. Matthews executed the will set out above. After providing a life estate in his wife in all of his property, he left specifically described property to his son, Dewitt, and specifically described property to his grandson, Scott. The will made no reference to the approximately 3 acres acquired in the 1961 deed and upon which his house was situated.

Scott Matthews contends that this omission was unintentional; that the testator intended to leave his house to him by the will; and that a latent ambiguity is thus created permitting extraneous evidence to show the testator’s intent. Dewitt Matthews, on the other hand, takes the position that no ambiguity exists; the property devised to each beneficiary by the will is accurately described, and can be exactly located on the ground; therefore, this is not a proper case for the admission of extraneous testimony. It is his position that his father simply died intestate as to the 3 acres acquired by the 1961 deed, since it is not mentioned in the will which contains no residuary clause; and he and Scott each own an undivided one-half interest. The trial court so held and we affirm.

The will is not ambiguous. It contains no reference to “my home place,” or the use of any other expression showing an intent to devise his home followed by a description of land which does not include the home place. After 1961, the testator knew that the house was not located on the lands described in the 1939 deed. Yet, in 1971, when he executed his will, he described the lands acquired in 1939 in the devise to Scott. He simply made no disposition by will of the 3 acres acquired in 1961.

The case is controlled by Baker v. Hendricks, 240 Ala. 630, 631, 632, 200 So. 615, 617 (1941), where this court held:

“. . .A will making specific devises only, with no residuary clause, can not be rewritten so as to include property so omitted. ... No presumptions or rules of construction can serve to rewrite a will at variance with its clear and unambiguous terms, whatever extraneous fact may have led the testator to make the will he did make. The sanctity of wills, safeguarded by law, would be weakened, if not destroyed, by thus disregarding the plain terms of the will. City Bank & Trust Co. v. McCaa et al., 213 Ala. 579, 105 So. 669; Meglemry et al. v. Meglemry, 222 Ala. 229, 131 So. 906; Spencer v. Title Guarantee Loan & Trust Co. et al., 222 Ala. 485, 132 So. 730; 69 C.J. § 1110, § 1148, Notes 98 and 99.”

The judgment appealed from is affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Frank HASKEW v. Marion BRADFORD, as Executor of the Estate of Dock Bradford.
    77-649.
    Supreme Court of Alabama.
    April 27, 1979.

      Emmett R. Cox and J. Harley McDonald, Jr., Mobile, for appellant.
    Richard C. Duell, III, Birmingham, for appellee.
   MADDOX, Justice.

This appeal involves the attempted foreclosure of a vendor’s lien on property for non-payment.

Dock Bradford sold the subject property to Robert and Louise Bradford in 1959. The conveyance, which was properly recorded in the Clarke County Probate Office, contained the reservation of a vendor’s lien. In 1961, Robert and Louise Bradford conveyed the property to Frank Haskew.

Dock Bradford died in 1963, and Marion Bradford was appointed executor of the estate. Robert Bradford died in 1974.

In contemplation of a possible sale of the real estate, Haskew made a title search in 1974, and discovered the unsatisfied vendor’s lien in his chain of title. Marion Bradford, executor for Dock Bradford, was asked to mark the lien satisfied of record. He refused, but instead, after searching available records, he filed a claim against the estate of Robert Bradford, original vendee, and instituted foreclosure proceedings in an effort to collect under the lien.

Haskew asked for, and received, a temporary restraining order or temporary injunction to enjoin foreclosure. The court held a hearing and granted the parties thirty days within which to file briefs. No briefs were filed and the judge entered an order, dated February 22,1978, in favor of Marion Bradford, granting his request to foreclose the vendor’s lien. The judge found that all the indebtedness evidenced by the lien had not been paid. He dissolved the temporary restraining order.

On April 28,1978, appellant Haskew filed a motion for relief from order pursuant to ARCP Rule 60(b). He alleged that he had not received notice of the order dated February 22, 1978, and the 42-day limitation period for appeal had expired.

The trial judge then reinstated the temporary restraining order. After conducting a hearing on the 60(b) motion, the judge prospectively reinstated and redated his order of February 22, 1978, and, in effect, made the order effective as of May 18,1978, thus allowing appellant 42 more days from May 18,1978, in which to appeal. Notice of appeal was filed within 42 days after May 18, 1978.

MOTION TO DISMISS

The appellee requests that this Court dismiss the appeal on the ground that the trial court had no jurisdiction to grant relief under Rule 60(b). He argues that the order of May 18, was a circumvention of the mandate of ARCP Rulé 59(e) which sets a 30-day limit upon motions to alter, amend, or vacate a judgment.

We hold, however, that the trial judge’s actions find support in Rule 60(b) ARCP, which provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

In relieving the appellant from the February 22 order, the court stated that:

“ . . . [t]he plaintiff has shown good cause for having failed to take appropriate action sooner, and in balancing the desire to remedy injustice against the need for finality of judgments, the Court finds that a disputed issue exists as to whether or not the plaintiff and/or his attorney had notice of the Order of this Court dated the twenty-second day of February, 1978, within time which to file and/or perfect a timely appeal of this Court’s said Order.”

Clause 6 of Rule 60(b) is a residual clause intended to provide ample grounds for relief from final judgments which the trial court, in the exercise of its broad discretion, finds necessary. The judge obviously considered relief to be justified. Motions under this clause should be made within a reasonable time, however.

The Rule 60(b) motion was filed within 65 days after entry of the February 22 order. We hold it was filed within a reasonable time.

A commentator on the Federal Rules has stated:

“Like Rule 60(b) generally, clause (6) should be liberally applied to situations not covered by the preceding five clauses so that, giving due regard to the sound interest underlying the finality of judgments, the district court, nevertheless has power to grant relief from a judgment whenever, under all the surrounding circumstances, such action is appropriate in the furtherance of justice.” 7 Moore’s Federal Practice ¶ 60.27[1].

Clause 6 of Rule 60(b) ARCP is identical to clause 6 of the federal rule and should be similarly interpreted.

MERITS

The appellant’s position on this appeal is that the trial court was clearly and plainly in error in finding the indebtedness secured by the vendor’s lien had not been paid in full. He argues that the testimony shows clearly and by direct evidence that Robert Bradford had, in fact, paid the debt owed to Dock Bradford for the real estate in question.

The appellant also contends that a vendor’s lien should not be enforced where as a result of unreasonable delay, the original transaction has become so obscure because of lapse of time, loss of evidence, and the death of both parties to the transaction, there is difficulty in doing justice and a very real danger of doing injustice.

Appellant supports his claim of injustice by citing evidence which came from the testimony of a friend of the parties to the original transaction, J. I. Henson, and from Dock Bradford’s widow. At trial, Henson testified:

“Q. Did you have any conversation with Robert Bradford about whether the land was paid for, or how it was paid for?
“A. Yes, sir. He told me that the stumpage paid all of it but $200.00, and he give Uncle Dock a check for the last $200.00. Said, T can sell it if I want to.’ * * * * * *
“Q. And he told you the stumpage paid for all of it except $200.00 of it, and he paid him by check for that?
“A. Yes, sir.
“Q. Did he cut the timber off this land sometime before he sold it to Mr. Has-kew?
“A. Yes, sir. * * * * * *
“Q. Mr. J. I., when you went to see Mr. Dock — did you go see Mr. Dock?
“A, Yes, sir.
“Q. Did you tell him Robert had asked you to show the land to Mr. Haskew? “A. Yes, sir.
“Q. He was aware that Robert was fixing to sell it?
“A. Yes, sir, I told him he was going to sell it. ******
“Q. In any conversation between y’all did he ever mention that any debt was owed on the land to him?
“A. No, sir.
Mrs. Bradford was questioned as follows: “Q. Did Mr. Dock ever object to Mr. Robert Bradford cutting the timber?
“A. Not to my knowledge.
“Q. And you were aware of it, wasn’t you, both of you?
“A. Yes.
“Q. And I will ask you isn’t it a fact that the stumpage was being paid to Mr. Dock for payment of the land?
“A. I suppose that is correct.
“Q. That was what you understood, wasn’t it?
“Q. Yes.”

Mrs. Bradford also identified the signature of her husband on the back of a check for $200.00 written to him from Robert Bradford dated August 21, 1959.

The appellant submits that this testimony is clear and convincing evidence that the property had been paid for in full by Robert Bradford and that the vendor’s lien reserved by Dock Bradford had been extinguished. He argues that this evidence was not controverted by direct evidence and that where there is direct, uncontradicted testimony of a fact, which is consistent with other proven facts, as is true here, a finding to the contrary cannot be allowed to stand. Woodward Iron Co. v. Goolsby, 242 Ala. 329, 6 So.2d 11 (1942).

Appellee counters appellant’s argument by pointing out that this Court’s cases, relying upon the statutory law of this state, have consistently recognized that the proper recordation of vendor’s liens, as well as other interests in land, acts as notice, albeit constructive notice, to subsequent purchasers. Section 35—4—51 (Code 1975). Handley v. First National Bank of Huntsville, 235 Ala. 664, 180 So. 667 (1937). He contends that one who purchases property with notice, actual or constructive, of the interest of another in such property takes the property subject to the interest of that third person. Hill v. Taylor, 285 Ala. 612, 235 So.2d 647 (1975).

Notwithstanding the fact of notice to appellant, the issue is whether the evidence overwhelmingly supports his contention that the debt evidenced by the vendor’s lien was in fact paid even though not marked satisfied on the records of the probate office.

As a general rule the burden of proof is on the vendee to show payment of the vendor’s lien or that there has been an intentional waiver thereof. Lindsey v. Thornton, 234 Ala. 109, 173 So. 500 (1937). This Court has stated that “the fact that a written obligation providing for the payment of money is in the possession of the obligee and uncancelled, raises a rebuttable presumption that the debt evidenced thereby has not been paid. . . . ” McCary v. Crumpton, 267 Ala. 484, 103 So.2d 714 (1958). The same principles apply to the purchaser from the original vendee where the obligation is publicly recorded rather than in the possession of the obligee.

Here the judge heard the evidence without a jury. The direct evidence supports appellant’s claim of payment, but we cannot say that the trial judge’s finding that the debt had not been paid is plainly and palpably wrong.

The appellant additionally submits that the trial court erred in not applying the doctrine of laches or stale demand to prevent the enforcement of the vendor’s lien. A review of the record shows that had this claim been presented to the trial court, appellant may have had a substantial issue upon which to argue for a reversal; however, appellant did not assert the defense of laches in the trial court; consequently, we cannot review any on this ground. A question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal. Haigler v. Goldsmith, 168 Ala. 669, 52 So. 736 (1910).

Appellee, in brief, answers appellant’s argument on the laches issue. This argument is of no consequence because this Court will not review the trial court on issues not presented to that court even though asserted by agreement of the parties on appeal. See Statham v. Statham, 282 Ala. 322, 211 So.2d 456 (1968).

We must apply the two rules of review we have stated herein; therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    Ernest E. MITCHELL and Geraldine Mitchell v. Harold Ray ROGERS.
    77-731.
    Supreme Court of Alabama.
    April 27, 1979.
    C. V. Stelzenmuller, James M. Holmes, Birmingham, for appellants.
    Walker Norris, Birmingham, for appellee.
   MADDOX, Justice.

This appeal arises from an action in unlawful detainer for realty rented by Harold Ray Rogers (Lessee) from Ernest and Geraldine Mitchell (Lessors). The trial court found in favor of the Lessors in their unlawful detainer and detinue action, but against them for their claim of damages. The trial court decided against Rogers on his counterclaim for repairs. We. affirm.

The facts are as follows:

On February 28, 1975, Lessee agreed to pay the Lessors $600 per month for two years for the use of certain land and buildings located in Birmingham, Alabama. The lease contained a fire provision which stated that the Lessors could terminate the lease in the event a fire occurred and the insurance proceeds were insufficient to allow the Lessors to repair the building.

A fire occurred on March 25, 1976. On April 1, 1976, the Lessors notified Lessee that the lease was terminated. The testimony at trial was in dispute as to whether Lessors orally agreed that if Lessee repaired the premises the amount expended for repair would be set off against rent. While there was a dispute whether an agreement was made, it is undisputed that Lessee did undertake to repair the building.

On July 15, 1976, the Lessors sold the land and burned buildings to Berman Realty Co., Inc. of Birmingham, Alabama.

Lessee ceased to pay rent after the fire so the Lessors filed suit for the rent due from March 1, 1976, until July 15, 1976, the day that the property was sold to Berman Realty Co., Inc. Lessors obtained a judgment in district court for $2,700. The district court denied Lessee’s counterclaim for the amount that he had spent making repairs on the building. Lessee appealed the case to circuit court for a trial de novo.

On appeal to the circuit court, the Lessors amended their complaint to claim attorneys’ fees, damages from March 1, 1976, through February 28, 1977, and statutory double damages for the period after February 28, 1977 (the expiration date of the lease).

The jury found in favor of the Lessors in the unlawful detainer and detinue action; the jury found against the Lessors for damages, rent, and attorneys’ fees. They found against Lessee on his counterclaim for repairs and for breach of a covenant to repair. Lessors made a motion pursuant to Rule 50(b) ARCP for a judgment notwithstanding the verdict. This motion was denied; the Lessors appealed to this Court.

Lessors raised the following three issues: (1) Was it reversible error for the Lessee’s counsel to comment in his closing argument on the money received from various sources by the Lessors for this realty? (2) Where an action to recover rent and an action brought under § 6-6-314, Code of Ala.1975 (double damages) are consolidated for trial with an action for unlawful detainer, is it reversible error for the trial judge to allow Lessee to try the title to the property? (3) Could the jury verdict be justified on any reasonable hypothesis presented by the evidence?

I

In regard to the first issue, we have reviewed the argument and find that the statement made by the defense counsel to the jury in his closing argument was based on evidence admitted by the court during the course of the trial; therefore, there was no reversible error here.

II

The second issue relates to the fact that evidence was admitted at the trial concerning the sale of the subject property by the Lessors to Berman Realty Co.

Section 6-6-336, Code of Ala.1975, states the following:

“The estate or merits of the title cannot be inquired into on the trial of any complaint filed under this article, but all legal and equitable defenses may be had against a recovery for damages or for the unlawful detention of the land.”

This section was interpreted in Archer v. Sibley, 201 Ala. 495, 78 So. 849 (1918) to mean that while the parties may not inquire into the title for the purpose of defeating the plaintiff’s right to recover possession, it may be inquired into as a defense against the recovery of rent or damages for the detention. Thus, in the present case where the rent and damages were an element of the action, it was not error to inquire into the ownership of the property.

It should also be noted that the judge gave the following instructions to the jury:

“Now, under the law of this case, Mr. and Mrs. Mitchell are the proper parties to file suit for the possession of the property, and any damages for the detention, regardless of the present ownership of the property. In this kind of case, we do not try the Title to the property, or worry about anybody else’s interest in it. You are instructed, as a matter of law, that you will deal with Mr. and Mrs. Mitchell in this. Any damages that you may award to Mr. and Mrs. Mitchell for detention of the land and building, will be for the entire period after April 15,1976, and that award, if any, would enure to the benefit of any other person entitled to share in this, and would be binding on such other persons.”

Ill

The Mitchells’ third contention is that the verdict in favor of Rogers for the rent cannot be justified by any logical reasoning based on the evidence and is in direct conflict with the jury’s verdict on the unlawful detainer and counterclaim issues.

Every presumption is indulged in favor of a jury verdict, and this presumption is strengthened in cases where the trial judge refuses to grant a motion for a new trial. Hodges & Company v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972).

In determining if a reasonable hypothesis existed for the verdict, the following jury instructions are relevant:

“Now, in connection with the counter claim, Mr. Rogers says in his counter claim that Mr. and Mrs. Mitchell owed him by contract, the duty to repair the property after the fire. If you are reasonably satisfied that Mr. and Mrs. Mitchell knew of the repairs that Mr. Rogers had made prior to him being notified to cease and stop the repairs, then Mr. Rogers is entitled to set off the reasonable cost of such repairs so made, against the amounts due to the plaintiffs for rent. The amount of such set off is for your determination, based on the evidence.”

The jury could have inferred that the costs of repair by Lessee, and the damages suffered by him because of the Lessors’ failure to repair were equivalent to the Lessors’ legitimate claim for rent.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Hoyt JOHNSON v. Jewell KEENER.
    77-805.
    Supreme Court of Alabama.
    April 27, 1979.

      William L. Irons, Birmingham, for appellant.
    Ralph L. Armstrong, Bessemer, for appel-lee.
   JONES, Justice.

Appellee, Mrs. Jewell Keener, filed a complaint seeking to set aside two deeds conveying her fee simple interest in two separate parcels of property to herself and Appellant, Hoyt Johnson, jointly for life with remainder to survivor. Hoyt Johnson is the nephew of Jewell Keener. One of the parcels is located in Bessemer (Jefferson County), Alabama, and the other parcel is located in Clanton (Chilton County), Alabama.

Mrs. Keener’s complaint, as amended, alleges in substance that she was urged by the defendant to sign certain instruments that were falsely and fraudulently represented to the plaintiff to be legal documents other than deeds. Particularly, in regard to the Bessemer property, Mrs. Keener’s complaint states that her nephew falsely and fraudulently represented to her that she was signing a document necessary to insure that absolute title would be in her name, when, in fact, the instrument was a deed naming Jewell Keener as grantor and Jewell Keener and Hoyt Johnson as joint grantees for life with remainder to the survivor. Mrs. Keener’s complaint alleges that the defendant had knowledge of the falsity of the statements when they were made and that she believed and relied upon these false representations in affixing her signature to the instruments.

Mrs. Keener also contends that there was a confidential relationship between herself and the defendant and that the defendant was able to unduly influence plaintiff to execute the two deeds made the basis of this action. Additionally, it is alleged that the transfers were made for grossly inadequate consideration.

At trial, Mrs. Keener testified that when she signed the deed to the Clanton property she was told and believed she was signing a power of attorney. Mrs. Keener testified that when she signed the deed to the Bessemer property she was told, and believed, that she was signing an instrument necessary to insure absolute title in herself after her husband’s death. Mrs. Keener testified that her nephew’s name was added to this instrument after she had signed it and that she was not aware that his name appeared on the instrument until many years after the deed was recorded.

The trial Court found that a confidential relationship existed between the defendant and the plaintiff and that the defendant was the dominant party. The trial Court further found that the defendant had failed to rebut the presumption, created when a confidential relationship is shown, that the transaction was a result of undue influence. Based on these findings, the trial Court set aside the two deeds in question. We reverse.

Undue influence can generally be defined as influence which dominates the grantor’s will and coerces it to serve the will of another. Taylor v. Godsey, 357 So.2d 979 (Ala.1978); Terry v. Terry, 336 So.2d 159 (Ala.1976); Wyatt v. Riley, 292 Ala. 277, 293 So.2d 288 (1974). When the parties stand in confidential relationship and the evidence tends to show that the beneficiary is the dominant party, the law raises a presumption of undue influence and places on the beneficiary the burden to repel the presumption when the transaction is assailed. Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970); Taylor v. Godsey, supra.

Undue influence is a species of constructive fraud (Wyatt v. Riley, supra; Knox v. Knox, 95 Ala. 495, 11 So. 125 (1892)), and although difficult of direct proof, much latitude is allowed in the testimony. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970). It is because of the difficulty encountered in proving undue influence that the law provides a presumption of unlawful coercion where a beneficiary of a transaction is shown to have been in a confidential relationship with the grantor.

Fraud, on the other hand, is never presumed and the burden is on the one asserting fraud to prove it. Macon v. Alabama Mineral Land Co., 295 Ala. 222, 326 So.2d 715 (1977); Mangina v. Bush, 286 Ala. 90, 237 So.2d 479 (1970). Thus, while the law will closely scrutinize a transaction between parties in a confidential relationship to insure the absence of fraud, no presumption of fraud will arise merely because the relationship exists.

It is true that the words “fraud,” “duress” and “undue influence” are frequently used interchangeably in will contests or in actions seeking to cancel instruments. Under the facts of many cases, it is a mere choice of terms. As noted above, undue influence is correctly considered a species of fraud.

Without question, undue influence invalidating a deed may have its foundation in false and fraudulent representations; but, for false and fraudulent statements to enter as an element into undue influence as a ground for setting aside a deed, it is necessary that the misrepresentation be shown to have been intermingled with or made the basis of importunities and mental pressure on the grantor. See In Re Carson’s Estate, 184 Cal. 437, 194 P. 5 (1920).

Fraud in the sense of deceit is a ground for cancellation separate and distinct from that of undue influence. See Gockel v. Gockel, 66 S.W.2d 867 (Mo.1933); Estate of Ricks, 160 Cal. 467, 117 P. 539 (1911). See, also, Annot. 28 A.L.R. 790, supp. 92 A.L.R. 792, and cases cited therein.

At 79 Am.Jur.2d Wills § 410, the following is stated:

“It has been observed that fraud and undue influence are usually the very opposites of each other. Undue influence compels the testator to yield through fear and make a will [deed] which he would instantly repudiate if free and unconstrained, while fraud, although it may poison the mind of the testator, [grantor] leads him to use his testamentary power [power to grant] not only willingly, but often with pleasure and satisfaction, to disinherit persons who have the strongest natural claims upon his affections. Concisely stated, fraud wilfully deceives free agency, while undue influence overmasters it.”

We add to this that fraud may also, as alleged in this case, so deceive the grant- or as to make him unaware of the nature or results of his acts (i. e., signing a deed based upon the false representation as to the contents of the instrument). But this form of fraud is a form of misrepresentation or deceit and clearly is distinguishable from that species of fraud concerning the overpowering or domination of another’s will.

In this case, the plaintiff testified that when she signed the deed in Clanton she was fraudulently induced by her nephew’s representations to believe she was signing a power of attorney. As to the Bessemer property, the plaintiff testified that she was fraudulently induced by her nephew’s representations to believe she was signing necessary documents to insure that absolute title was in her name after the death of her husband. This testimony is totally inconsistent with the theory of undue influence. This is not a case where a plaintiff is complaining that the signing of the deeds was a result of coercion, dominance of her will, fear, and/or duress. Instead, the plaintiff here asserts that she was defrauded, tricked, deceived into signing deeds under the belief that the documents she signed were legal documents other than deeds.

The plaintiff’s testimony conclusively shows that the plaintiff can recover, if at all, only on a theory of fraud. As noted earlier, in a fraud case, no presumption arises from the fact that a confidential relationship exists and the burden is on the plaintiff to plead and prove the fraud. Even assuming that a confidential relationship was shown to exist between aunt and nephew, and that the nephew was the dominant party in that relationship, the plaintiff cannot recover based on a presumption of undue influence when her own testimony contradicts that theory of recovery, and for this reason the trial Court erred.

We turn now to the issue of whether the plaintiff proved fraud in the two transactions made the basis of this action. In Taylor v. Godsey, supra, this Court stated, per Mr. Justice Bloodworth, in reversing the trial court’s order setting aside a deed which the plaintiff/appellee contended was the result of undue influence and fraud:

“The general rule is that fraud, when alleged, must be clearly and satisfactorily proven. Ingram v. Horn, supra [294 Ala. 353, 317 So.2d 485 (1975)].
‘ “If the proof is uncertain in any material respect, it will be held insufficient, though the court may feel that a great wrong has been done; the court cannot grant the relief by reason of uncertainty; ” Wooddy v. Matthews, 194 Ala. 390, 69 So. 607 (1915).’
“In this case, the proof is too uncertain to sustain the trial court. The evidence shows that these deeds were signed and acknowledged on three separate occasions by a woman who had signed similar instruments in the past.
“This court is committed to the proposition that an acknowledgment is entitled to great weight and can be impeached only by evidence that is clear and convincing. Ingram v. Horn, supra.
“Each deed bore the inscription, 'Warranty Deed,’ on its face. Testimony by her attorney is to the effect that he had probably explained the significance of the transaction to her. Although Mrs. Hamby may not have read the instrument in its entirety, the law is clear in this State that when a grant- or fails to read a deed (having the ability to read and understand it) and this results in the grantor’s execution of an instrument which conveys realty, which it is subsequently averred the grantor did not intend to convey, the grantor’s mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced, inter alia, by fraud or misrepresentation. Ingram v. Horn, supra.
“Furthermore, there is no explanation in the record nor has any been advanced on appeal as to why Mrs. Hamby would execute (as she contends she intended to do) two wills at the same time, each devising different tracts of land.”

The facts of this case are almost identical to those in Taylor; likewise, the proof here is too uncertain to show fraud.

In this case, as to the Bessemer property, Mrs. Keener testified that her nephew took her to the office of E. L. Brobston in Bessemer. Mrs. Keener testified that E. L. Brobston was her attorney at that time. Mrs. Keener's present attorney states in brief:

“One thing here is perfectly clear, and that is Mr. Brobston would have nothing to gain from any such transaction and furthermore he is incapable of misusing a confidential relationship.”

Yet, if Mrs. Keener’s testimony is believed (that her nephew’s name was added after her signature was placed on the deed), it would mean that Mr. Brobston had prepared a deed naming Jewell Keener as sole grantor and Jewell Keener as sole grantee. This instrument would have been a nullity and Mr. Brobston could only have prepared such an instrument if he were a party to a fraud perpetrated upon Mrs. Keener. This is totally inconsistent with Mrs. Keener’s theory that her nephew alone defrauded her.

Furthermore, the deed states upon its face that it is a Warranty Deed, Jointly for Life with Remainder to Survivor. The deed contains a general acknowledgment notarized by Bernice Burke, Mr. Brobston’s secretary and a notary public. In order for Mrs. Keener to testify that her nephew’s name was added to the deed, she must have read the deed with sufficient scrutiny to realize that this was a joint deed and it would have been apparent to even a layman that this would have been a deed conveying property she already owned to herself with remainder to the survivor. This would have been a totally illogical transaction, and, therefore, Mrs. Keener cannot allege that she placed reliance on any misrepresentation by her nephew as to the effect of the instrument, or that his name was not part of the instrument she signed without completely contradicting herself.

As to the Clanton property, Mrs. Keener testifies that she believed she was signing a power of attorney and not a deed. The testimony of Mr. Lawrence Gerald, the attorney who prepared the deed is that, when the aunt and nephew came to his office, Mrs. Keener said she wanted a deed to Mr. Johnson. Mr. Gerald testified that the aunt wanted a deed to the nephew alone and that he explained to her the difference between a straight warranty deed and a joint survivorship deed and that she said go ahead with the survivorship deed. Mr. Gerald stated that Mrs. Keener gave him the description of the property. The deed is acknowledged and notarized by Mr. Gerald’s secretary who testified she advised Mrs. Keener before she signed the deed as to the legal effect of the deed.

We hold that the evidence is too uncertain to prove fraud in the two conveyances involved in this case.

Finally, Appellee contends the testimony of Johnson is to the effect that the reason the property was conveyed into joint ownership was so he could take care of it for his aunt and to make sure the property stayed in the family; and that a material part of the consideration was Johnson’s promise to support and care for his aunt during her lifetime. Appellee thus asserts the trial Court’s order should be affirmed under the mandate of Code 1975, § 8-9-12, which provides:

“Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grantor, except as to bona fide purchasers for value, lienees and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.”

As noted in the discussion of undue influence, plaintiff’s theory at trial was that she did not know what she was signing at the time these deeds were executed. This theory is entirely inconsistent with a theory that, when plaintiff signed the deed, it was done for the consideration of a promise to provide for her care. This was not the theory of the pleadings, nor was the case tried on this theory. To allow Appel-lee the advantage of the statute at this point in time would be to allow Appellee to raise this theory for the first time on appeal. Appellee cannot have the trial Court affirmed on a theory totally inconsistent with the issues tried by that Court.

For the foregoing reasons, this case is due to be reversed and rendered.

REVERSED AND RENDERED.

MADDOX, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.


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    COTTON STATES MUTUAL INS. CO. v. NORRELL HEATING & AIR CONDITIONING CO., INC.
    77-807.
    Supreme Court of Alabama.
    April 27, 1979.

      Max Hudson of London, Yancey, Clark & Allen, Birmingham, for appellant.
    Charles L. Robinson and Jerry W. Powell, Birmingham, for appellee, Norrell Heating & Air Conditioning Co., Inc.
   SHORES, Justice.

On April 1, 1976, Cotton States Mutual Insurance Company (Cotton States) renewed, for a one-year term, a comprehensive general liability policy of insurance to Norrell Heating & Air Conditioning, Inc. (Norrell), being Policy No. GLA — 14643.

On November 5, 1976, a suit was filed by Barney L. Crowe and Ella Mae Crowe (hereinafter referred to as plaintiffs) against Norrell. The complaint alleges that on November 14, 1975, the plaintiffs entered into an oral contract with Norrell for certain repairs to an air conditioning/heating system located in a building owned by the plaintiffs, situated in the City of Huey-town, Jefferson County, Alabama. It was represented to the plaintiffs by Norrell that the air conditioning units needed servicing, that the coils to said air conditioning units needed cleaning, and that the plaintiffs relied on said representation and authorized Norrell to perform the said services. Thereafter, Norrell represented in writing to the plaintiffs that the coils had been cleaned and a charge was made by Norrell for said service; and it is further claimed in said count that representations of Norrell that the air conditioning coils had been cleaned were untrue and that said representations were made by Norrell intentionally to deceive the plaintiffs, or they were made recklessly without knowledge of the truthfulness thereof, or were made innocently and they were relied on by the plaintiffs. As a result thereof, compensatory and punitive damages are claimed.

Count B of the complaint alleges that on or about June 24, 1971, based upon representations made by Norrell to the plaintiffs, that a compressor for one of the air conditioning units at the same location in the City of Hueytown was defective, and the compressor was replaced with a new one. The compressor carried a five-year warranty against defects. On or about July 6, 1972, Norrell inspected the air conditioning/heating system at the' plaintiffs’ said premises in Hueytown, Alabama, and determined that the compressors in both air conditioning units should be replaced; however, the compressor which was replaced in 1971 was still within the warranty period and it would be replaced without cost to the plaintiffs; and that the compressor in the second air conditioning unit would be replaced with a new one and would carry a five-year warranty. The plaintiffs authorized these replacements and Norrell performed the work and submitted an invoice to plaintiffs which was paid.

It is further alleged that on July 7, 1976, tenants in the plaintiffs’ building, above referred to, notified Norrell that the air conditioning system for the premises was not functioning properly. It is alleged that Norrell failed to advise the plaintiffs of the complaint made by the tenants and further failed to inspect, service or repair the air conditioning units; and that, thereafter, on July 8, 1976, the plaintiffs learned of this problem and, upon contacting Norrell, they were advised that the compressor for each of said units should be replaced. The plaintiffs authorized the replacement of the compressors, again one of them being under the warranty and the other not. It is further claimed in this count of the complaint that representations of Norrell that the warranty had expired on one of the units was untrue; and that the misrepresentations by Norrell to the plaintiffs were made intentionally to deceive the plaintiffs or were made wantonly without knowledge of the truth or were made innocently; and the plaintiffs relied on said representations for which compensatory and punitive damages are claimed.

After being served with a copy of the summons and complaint in the Crowe case, Norrell forwarded it to Cotton States requesting that it (Norrell) be provided with a defense. By certified letter dated November 24, 1976, Cotton States returned the summons and complaint to Norrell advising that the causes of action as set out in the Crowe complaint did not fall within the coverages provided by the policy of insurance.

On July 27, 1977, Norrell filed an action for declaratory judgment against Cotton States asking the court to determine the coverage question.

The only evidence offered at the hearing was the testimony of Peter Franck, who testified that he was Vice President and General Manager of Norrell Heating & Air Conditioning, Inc. His duties consisted of supervising the service department, overseeing the office procedures as to sales and supervision of certain phases of bookkeeping. Mr. Franck testified that Norrell did business with Barney Crowe beginning in 1971. He explained that Mr. Crowe owned a building in Hueytown, Alabama, which he leased to the Post Office Department and that, from time to time, his company did service and repair work to the heating and air conditioning system in this building. There was no maintenance contract between Mr. Crowe and Norrell; however, when Mr. Crowe had problems with the heating and air conditioning system in this building, he would contact Norrell and, in many instances, would request that they provide him with an estimate before the work was done.

Mr. Franck testified that he had received a complaint from Mr. Crowe after his company had checked the air conditioning units at his building in Hueytown and found that both compressors had failed. In checking the records of his company, Mr. Franck stated that they found that one of the compressors was under the original manufacturer’s five-year protection, but the other was not. He negotiated a price with Mr. Crowe for the replacement of one compressor, including the purchase of a new one, and the price for the replacement of the compressor was still under the manufacturer’s warranty. Subsequently, Mr. Crowe and his wife filed suit against Norrell.

This witness also testified that the compressors involved in the suit brought by Mr. and Mrs. Crowe were originally installed by Norrell in 1965. The brand name of the compressors was “Tecumseh.” He explained that the compressors in question are not carried in stock by Norrell; however, when they receive an order for one, it is purchased from a wholesaler and Norrell is billed by the wholesaler. It is installed by Norrell’s personnel and the customer is then submitted a bill for the price of the compressor and the labor involved in installing it. The warranty to the Crowes was by the manufacturer of the compressors and not from Norrell.

The trial court found that Cotton States was required, under the terms of the “products hazard” provisions of the policy, to defend the action filed by the Crowes against Norrell and to pay on its behalf all sums which Norrell becomes legally obligated to pay as damages. Cotton States appealed.

The only issue presented is whether the trial court correctly found that Cotton States had a duty to defend its insured in the Crowe action or whether it has an obligation to pay any amount recovered by the plaintiffs in that suit.

The policy involved is a comprehensive general liability policy which defines one of the coverages as follows:

“ ‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.”

The comprehensive general liability portion of the policy provides as follows:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
“C. bodily injury or
“D. property damage
“to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, and the company shall have the right and duty 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, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”
The following are among the exclusions:
“This insurance does not apply:
“(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the insured will be done in a workmanlike manner;
“(n) to property damage to the named insured’s products arising out of such products or any part of such products;
“(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;
The lawsuit filed by the Crowes against Norrell seeks damages for alleged misrepresentations made by Norrell in servicing and cleaning the coils on one air conditioning unit, for misrepresentations allegedly made concerning the warranty on an air compressor which Norrell had previously installed and for installing a compressor in the other unit which had also been installed by Nor-rell.
Cotton States says these claims clearly fall within exclusions (n) and (o) set out above. Norrell says they clearly fall within the products hazard definition and within the specific exception set out in exclusion (a).
Cotton States argues that property damages to the air conditioning system resulting from representations with respect to the compressors and a breach of an implied warranty that the work was performed in a workmanlike manner are property damages “to the named insured’s products arising out of the products or any part thereof” [exclusion (n)]. The term “named insured’s products” is defined in the policy to mean “ . . . goods or products manufactured, sold, handled or distributed by the named insured . . . .” Cotton States necessarily must be contending that the air conditioning system installed by Norrell in the Crowes’ building in 1965 remained the named insured’s product within the meaning of exclusions (n) and (o) so as to exclude coverage for damage to the system arising out of the named insured’s products, the compressors, or reliance upon a representation or warranty made at any time with respect thereto. Under the particular facts of this case, this issue must be resolved in favor of the insured.
Clearly, an ambiguity exists between the products hazard coverage and the named insured’s product exclusion. Other courts faced with these two provisions have held that an ambiguity exists and have limited the exclusion to apply only to that part of the work or product which caused the damage. See: Pittsburg Bridge and Ironworks v. Liberty Mutual Insurance Co., 444 F.2d 1286 (3rd Cir. 1971); Cotton States Insurance Co. v. Diamond Housing, etc., 430 F.Supp. 503 (N.D.Ala.1977); S. L. Rowland Construction Co. v. St. Paul Fire and Marine Co., 72 Wash.2d 682, 434 P.2d 725 (1967).

In Cotton States Insurance Co. v. Diamond Housing, etc., supra at 507, Cotton States made the identical argument it advances here, with identical policy provisions. In rejecting that argument, Judge Foy Guin said:

“ . . . this court agrees with the reasoning of the court in [citing Pittsburg Bridge and Ironworks v. Liberty Mutual Insurance Co. and S. L. Rowland Construction Co. v. St. Paul Fire and Marine Co., supra], in holding that an exclusion of the nature present in this case is ambiguous when applied to a fact situation such as the one here. As those courts pointed out, it is not clear whether the exclusion applies only to the part of the entity which caused the damage or to the entire entity (mobile home) itself which the insured sold. More specifically, the court finds an ambiguity between the definitions of ‘products hazard’ and ‘named insured’s products’ as they are defined in the policy and exclusion (f) to said policy. . . . ”

We likewise find an ambiguity between these policy provisions. Such ambiguities must be resolved in favor of the insured. See: Billups v. Alabama Farm Bur. Mut. Ins. Co., 352 So.2d 1097 (Ala. 1977). Because an ambiguity exists affecting the construction of the “.named insured’s products” exclusion, the provision must be construed to apply only to the repair parts supplied by the insured, the compressors, and not to the air conditioning system installed in 1965. It had clearly become the property of the Crowes and was not, at the time of the repair, a product of the insured.

Cotton States also argues that the allegations made the basis of the Crowes’ complaint does not constitute an “occurrence” as defined in the policy. We cannot agree. The definition of “occurrence,” read in conjunction with the definition of products hazard coverage, clearly shows that “reliance upon a representation or warranty” is an “occurrence” covered by the policy-

We have carefully considered all of the contentions advanced by Cotton States; and we agree with the trial court that Cotton States owes Norrell a defense to the Crowes’ suit under the products hazard provision of the policy and is liable for any recovery resulting from the loss or use of the air conditioning systems as a result of Norrell’s misrepresentation or breach of implied warranty.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Regina HUTCHINS, et al., v. Rosetta SHEPARD.
    78-6.
    Supreme Court of Alabama.
    April 27, 1979.

      Joseph W. Adams, Birmingham, for appellants.
    Charles A. J. Beavers, Jr., Birmingham, for appellee.
   SHORES, Justice.

This is an appeal from the trial court’s decree in which it refused to vacate a 1973 decree of the Probate Court of Jefferson County, Alabama, which set apart real property owned by James Hutchins, deceased, as exempt to his widow, Mattie L. Hutchins. We affirm.

James Hutchins died in 1951 in Jefferson County. He was survived by his widow, Mattie, and an adult son, Henderson Hutch-ins. At the time of his death, James was the owner of a house and lot in Jefferson County which served as his residence.

In 1973, Mattie Hutchins petitioned the probate court for an exemption without administration. She stated in the petition that the whereabouts of Henderson Hutch-ins were unknown to her and that he was last known to be in Erie County, New York. Notice was given by publication in accordance with Title 7, § 204, Code 1940 (Recompiled 1958). The court appointed commissioners, who reported that the homestead property was all the real property owned by James Hutchins in Alabama; and that its value at the time of his death did not exceed $2000. The court confirmed the commissioners’ report and set aside the homestead to Mattie L. Hutchins. Mattie Hutch-ins died in 1976 leaving two children, not children of James Hutchins.

In 1977, the widow and children of Henderson Hutchins, then deceased, brought this action to vacate the probate court’s decree setting apart the homestead to Mattie. Mattie’s two children were made defendants. The plaintiffs alleged Mattie had perpetrated a fraud on the court in the 1973 proceeding in that she falsely swore that she had no knowledge of Henderson’s whereabouts. They also sought to vacate the probate court’s decree on their claim that the property had a value in excess of $2000 at the time of James’ death and that James owned other property in Alabama at his death. The matter proceeded to trial by the court ore tenus which found:

“1. That the evidence fails to sustain the presumption of correctness of the decree of Probate Court of Jefferson County, Alabama, entered on November 15, 1973.
“2. That the real estate set apart as homestead by the said decree was the only real estate owned by James Hutch-ins at the time of his death in August 1951.
“3. That the Plaintiffs have failed to establish that the real estate involved here exceeded $2,000 in value at the time of death of James Hutchins.
“4. That the evidence fails to sustain the burden of proof that Mattie L. Hutch-ins had knowledge of the residence address or mailing address of Henderson Hutchins, the son of James Hutchins, at the time she filed her petition for exemptions without administration.
“5. That, at the time of said hearings and decree before the Probate Court of Jefferson County, the said Court had jurisdiction over Henderson Hutchins by virtue of lawfully published notice to him.”

The plaintiffs appealed.

On oral argument in this court, the plaintiffs-appellants challenge, for the first time, the constitutionality of Title 7, § 204, supra, which allows notice by publication where the “. . . address of the defendant is unknown and cannot be ascertained after reasonable efforts . . .” This issue, however, was not raised in the trial court and cannot be raised for the first time on appeal. Brown v. Robinson, 354 So.2d 272 (Ala.1977); McWhorter v. Clark, 342 So.2d 903 (Ala.1977); McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975).

The plaintiffs-appellants next urge that the trial court committed clear error in finding Mattie Hutchins did not know the whereabouts of Henderson at the time of her petition in 1973. It is a well-known rule of review that where the trial court makes a factual determination based upon conflicting evidence taken ore tenus, its finding will not be disturbed on appeal unless plainly erroneous or manifestly unjust. White v. White, 350 So.2d 326 (Ala. 1977); Downs v. Downs, 260 Ala. 88, 69 So.2d 250 (1953); Stephens v. Stephens, 233 Ala. 178, 170 So. 767 (1936).

In Whitfield v. Sanders, 366 So.2d 258 (Ala.1978), we held that where uncontra-dicted evidence established that no effort was made to locate the defendant and that his address was easily accessible to the plaintiff, an affidavit claiming no knowledge of his whereabouts was a fraud on the court requiring reversal. Such is not the case here. The testimony here shows that the last contact between Mattie and Henderson was in 1951, when Henderson visited Mattie’s residence in Birmingham, Alabama, for the purpose of picking up a floor polisher. He did not attend his father's funeral and Mattie had no contact with him, nor he with her or his father, since the Mid-1940’s. There was other evidence that attorney Charles Beavers, Sr. had contacted Henderson by mail in 1964 but that the letter went unanswered. His son, who succeeded him in the law practice, testified that he had searched his father’s records and found nothing to indicate that either Mattie or his father knew Henderson’s address. There is no evidence to support the contention that Mattie swore falsely in the 1973 affidavit.

We affirm the trial court’s decree upholding the action of the probate court in setting aside the property to Mattie.

There was no evidence that James owned any other property in Alabama at the time of his death. There was evidence that this property did not exceed $2000 in value at that time. This evidence justified the probate court’s action in setting the homestead aside to Mattie under the law as it existed at James’ death. See: Mordecai v. Scott, 294 Ala. 626, 320 So.2d 642 (1975); Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967).

At the time of James Hutchins’ death in 1951, the operative statute in effect was Title 7, § 663, Code of Alabama 1940, which stated:

“When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title of such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not; but the title to the homestead shall not vest absolutely in them as against the other heirs of decedent until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars; but as against the creditors of decedent, the title of the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by decedent, and that it is of greater value than two thousand dollars, and the homestead secured hereby shall be held and governed as in section 661 of this title.”

Under this section, title to the homestead property can be vested only to the widow and minor child or children. This statute was later amended to allow adult children of a decedent to share in the homestead property. Title 7, § 663, Code 1940 (Recompiled 1958). This change, however, came too late to aid Henderson, who was an adult at the time of his father’s death and, therefore, not afforded a share of the homestead property under § 663. Finerson v. Hubbard, 255 Ala. 551, 52 So.2d 506 (1951); Keenum v. Dodson, 212 Ala. 146, 102 So. 230 (1924).

As an adult child at the time of his father’s death, Henderson is considered, for the purposes of § 663, to be one of the “other heirs of the decedent.” Regarding the statutory rights of such persons, the law has been correctly stated in Davis v. Bates, 239 Ala. 214, 216, 194 So. 647, 648 (1940):

“The grounds and only grounds given to ‘the other heirs’ by the statute on which they may contest the exemption-er’s right to have the homestead ‘so set apart,’ is that it exceeded in area one hundred and sixty acres, and in value $2,000 and was not all the real estate owned by such decedent at his death.

Each of these grounds were considered by the probate court and resolved in Mattie’s favor in 1973, and were reconsidered by the circuit court in this case and again resolved in favor of the widow. The evidence supports the decree. It is, therefore, affirmed.

AFFIRMED.

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