author: HEFLIN, Chief Justice.

text:
    Wiley WALDREP v. Spurgeon JOCHUM et al.
    SC 1575.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    Sherman Powell, Jr., Decatur, for appellant.
    St. John & St. John, Cullman, for appel-lees.
   HEFLIN, Chief Justice.

Plaintiff Wiley Waldrep appeals from a non-jury judgment against him.

Defendants Evolena Jochum, Willie Joc-hum and Spurgeon Jochum operated a dairy in Cullman County, with Evolena and Willie Jochum, parents of Spurgeon Jochum, owning a one-half interest and Spurgeon Joc-hum owning the other one-half interest. In 1969 Evolena and Willie Jochum conveyed their one-half interest in the cattle and milk base with Pet Milk to plaintiff Wiley Wal-drep. The precise amount of consideration involved in the transfer is not stated in the record, however, it appears that Waldrep agreed to pay an amount in excess of $17,-000 to the Jochums, which sum was to be paid in monthly installments of $200 with an interest rate of six percent. The debt was evidenced by a note made by Waldrep and secured by a mortgage on the dairy herd executed by Waldrep to Evolena and Willie Jochum at the time of the conveyance.

Thereafter, Wiley Waldrep and Spurgeon Jochum operated the dairy as equal partners under the Name of J & W Dairy. The partnership understanding between Wal-drep and Spurgeon Jochum was that Wal-drep would take care of the cattle and the milking while Jochum farmed and raised the feed. Each partner was to share in the losses and to be entitled to half of the profits.

In May of 1972, Waldrep executed a replacement security interest agreement with Evolena and Willie Jochum being the secured parties. The agreement recited Wal-drep’s one-half (V2) partnership interest in the dairy as collateral for a debt of $17,413 which was the balance he owed on the purchase price of the one-half interest in the dairy.

On July 18, 1973, the partnership was dissolved when Spurgeon Jochum asked Waldrep to leave the premises. Waldrep moved away and Spurgeon Jochum took over the operation of the dairy.

Plaintiff Waldrep brought an action in the trial court seeking an accounting of the partnership assets and liabilities. He asserted that he was entitled to a 50% interest in the dairy herd and milk base and that the only way an equitable division could be achieved was to sell the herd, pay off the partnership debts and split the remaining assets from which he would pay Evolena and Willie Jochum the balance due to them under their security interest.

Evolena and Willie Jochum filed an answer and cross-bill alleging that default had been made in the payment of the secured indebtedness. The answer and cross-bill also alleged that following the dissolution of the partnership they had notified Wal-drep on August 16, 1973, that they were retaining his interest in the cattle and milk base in satisfaction of the obligation and asked that the court hold that they were entitled to the sum owing under the security instrument ($14,068.08 on July 10, 1973). Mr. and Mrs. Jochum further asked for a judgment and order of the court for the sale of the collateral under the provisions of Section 9-504, Title 7A, Ala.Code (1966).

As a separate defense, they alleged that part of the consideration of the sale by them of their interest in the dairy was an agreement by Waldrep that he would carry out his obligations under the partnership with their son, Spurgeon, and that Waldrep failed in his performance of these obligations. They further asserted that they were entitled to take the collateral in satisfaction of their indebtedness in lieu of conducting a sale of the herd which would be to their detriment. They further alleged that plaintiff Waldrep filed an objection after receiving notice that they planned to retain the collateral in satisfaction of the debt, and that such objection was made within the 30-day period provided for under Section 9-505(2) of Title 7A.

The trial court entered judgment in favor of Willie and Evolena Jochum, against Wiley Waldrep, and made the following findings: 1) The partnership between Waldrep and Spurgeon Jochum was dissolved on July 18,1973; 2) At the time of dissolution each partner owned a one-half interest in the milk base and the dairy herd of J & W Dairy; 3) J & W had cash on hand of $885.92 at the time of dissolution and one-half of that amount is property of Waldrep; 4) The accounts payable on July 18, 1973 totaled $8,810.09; 5) Profits and losses of the J & W Dairy, by agreement, were to be borne equally by the partners; 6) “Wiley Waldrep having mortgaged to Willie and Evolena Jochum his one-half interest in the milk base and the dairy herd before the partnership was formed, all of the right, title and interest of Wiley Waldrep in the milk base and dairy herd is transferred to Willie and Evolena Jochum and the mortgage thereon is cancelled.”

During the trial various witnesses testified as to the value of the dairy herd and the other cattle which were owned by the partnership. The bases used for these valuations were not uniform and as a result the estimates varied considerably, with the highest valuation being $76,000. However, the record indicates that even under the lowest valuation the value of the herd was sufficient to pay the partnership debts and, after allowing for a division of the assets between the partners, sufficient funds would be available for Waldrep to pay the mortgage indebtedness and still have a balance. There was never a valuation made of the milk base.

The security interest here is one involving personalty and, therefore, is controlled by Article 9 of Alabama’s Uniform Commercial Code (Title 7A). The applicable sections of Title 7A are 9-503 through 9— 505, the pertinent parts of which are as follows:

“§ 9-503. Secured party’s right to take possession after default. — Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. « * 9k it
“§ 9-504. Secured party’s right to dispose of collateral after default; effect of disposition. — (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to the article on sales (article 2). The proceeds of disposition shall be applied in the order following to
“(a) the reasonable expenses of retaking, holding, preparing for sale, selling and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party;
“(b) the satisfaction of indebtedness secured by the security interest under which the disposition is made;
* * * * * *
“(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency. * * *
“(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, * *
“§ 9 — 505. Compulsory disposition of collateral; acceptance of the collateral as discharge of obligation.
* * * * * *
“(2) In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor * * * If the debtor * * objects in writing within thirty days from the receipt of the notification * * * the secured party must dispose of the collateral under section 9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor’s obligation.” (Emphasis supplied.)

Section 9-505 specifically provides that if the debtor objects in writing within 30 days of receipt of notification of the proposal of the secured party in possession to retain the collateral in satisfaction of the obligation then the secured party must dispose of the collateral under Section 9-504. Waldrep filed a written objection within the 30-day period after receiving notice from Willie and Evolena Jochum of their proposal to retain the collateral in satisfaction of the debtor’s obligation. Therefore, the trial court erred in not requiring compliance with Section 9-504.

The Jochums contend that the above-quoted provisions of Alabama’s Uniform Commercial Code are not applicable, but instead assert that the case of Sloan v. Wilson, 117 Ala. 583, 23 So. 145 (1897), is controlling. In Sloan one of two equal partners executed a mortgage on his one-half interest in the partnership assets (composed entirely of personalty) as security for a personal debt. Subsequently the partnership was dissolved and the question arose as to whether the mortgagee and thus her successor had sufficient interest in the mortgagor’s portion of the partnership property to allow the mortgagee’s successor to bring a detinue action against a later transferee of the partnership property. While the court noted that legal title to partnership personal property is normally vested in the partnership, it, nevertheless, held that upon the dissolution of the partnership the legal title to the portion of the partnership assets of the mortgagor-partner became vested in the mortgagee. The court concluded that the successor to the mortgagee’s interest was thus entitled to recover in a detinue action.

It appears that the Jochums, relying on Sloan, contend that the legal title of Wal-drep’s half of the partnership property vested in them following the dissolution of the partnership and therefore Waldrep could not maintain the suit since he had no title in the partnership assets. This conclusion overlooks the fact that Sloan was not brought in an equity court and consequently the equitable interests of the mortgagor were not considered. This argument also ignores the fact that under the Alabama Rules of Civil Procedure law and equity have now been merged into one uniform procedure. In the Committee Comments to Rule 2, ARCP, the following appears:

“This rule does not affect the various remedies which have heretofore been available. Instead the merger of law and equity and the abolition of the forms of action supply one uniform procedure by which a litigant may present his claim in an orderly manner to a court empowered to give him whatever relief is appropriate and just; * * * ”

The importance which the Jochums place upon the ownership of the legal title of Waldrep’s partnership assets following the dissolution of J & W Dairy is diminished when the following language found in Section 9 — 202 of the Alabama Uniform Commercial Code is considered:

“Each provision of this article with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.”

Therefore Sections 9-504 and 9-505 of Title 7A, Alabama Code 1966), govern the rights and obligations of the parties to this action.

The cause is reversed and remanded.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Lee WESTPHAL et al. v. Carlos LaGRAVE.
    SC 1645.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    Brutkiewicz & Crain, Mobile, for appellants.
    Sigler, Kearney & Davis, Mobile, for ap-pellee.
   MADDOX, Justice.

This is an action to quiet title to a parcel of land in the City of Mobile.

Plaintiff, Carlos LaGrave, filed his complaint to quiet title. He claimed title was vested in him because of adverse possession and by purchase of the land from the State Land Commissioner in 1941. He assessed the land and paid the taxes thereon. Lillian Westphal filed her answer and cross-complaint, in which she denied LaGrave had been in adverse possession of the land for more than 20 years, or under color of title for more than 10 years. On the other hand, she claimed title by virtue of a deed from her father in 1931, which she said was lost and never recorded. She also claimed that she went into actual possession of the disputed parcel in the late 1930’s, fenced it, kept horses on it, and put up “No Trespassing” signs.

After hearing the evidence, the trial court quieted title in LaGrave. Westphal appeals.

Westphal’s main argument here is that the court’s judgment is contrary to the great weight of the evidence and is plainly and palpably wrong.

We have read the evidence and it is hopelessly conflicting, but there is substantial evidence, if believed, to support the findings made by the trial judge. In view of the presumption accorded his findings, we cannot say they are clearly and palpably wrong.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Bertrum L. HOWELL v. MOBILE INFIRMARY, a corporation, et al., etc.
    SC 1658.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    Michael J. Salmon, Mobile, for appellant.
    Brown, Hudgens & Richardson, Mobile, for Mobile Infirmary and Dr. Edward L. Bryant.
    Benjamin H. Kilborn, Mobile, for Dr. Shepard Jerome.
    W. Boyd Reeves, Mobile, for Dr. Harry Webster.
   BEATTY, Justice.

Plaintiff-appellant, Bertram L. Howell, filed an action in Mobile Circuit Court seeking damages from Mobile Infirmary, Dr. Shepard Jerome, Dr. Harry Webster and Dr. Edward Bryant. Howell alleged that due to the negligence of the aforementioned defendant-appellees he suffered a burn to his leg. After extensive pre-trial discovery, each appellee was awarded a summary judgment. From these judgments, Howell appeals.

Defendants Webster and Bryant filed motions to dismiss Howell’s appeal relying on the contention that it was not timely filed. The movants contended that the summary judgments as to them, granted on October 1, 1974, were final, appeala-ble judgments and that Howell’s failure to file notices of appeal within six months of that date (he filed on January 20, 1976) warranted the dismissals. However, on the authority of Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974) we must overrule the motions to dismiss. Summary judgments in favor of the remaining co-defendants were granted after the judgments of October 1, 1974; therefore, the judgments of October 1 were not final and appealable at the time of their rendition.

The crux of this appeal is whether the summary judgments were correctly granted. We hold that the trial court erred in granting the summary judgments and, therefore, reverse and remand for trial.

Rule 56(c), ARCP, provides that summary judgment “. . . shall be rendered . if . there is no genuine issue as to any material fact and . the moving party is entitled to a judgment as a matter of law.”

After carefully studying the record in this case, we have concluded that there are genuine issues of material facts which should be determined by trial and, therefore, the summary judgments were improvidently granted. The record reveals that prior to appellant’s entry into the operating room he had no burn on his left leg. Approximately four or five hours after the operation, when the spinal anesthetic he had been given began to dissipate, appellant felt a pain in his lower left leg. He complained to his wife who found “a real red place about the size of a half dollar” on his lower left leg. Dr. Jerome, one of the co-defendants, said it looked like an electrical burn perhaps caused by the omission of a ground plate. This would have been a feasible explanation in light of the use of a Bovie Electro-surgical unit to cauterize bleeding from the veins. A second doctor, Dr. Crump, concurred. A plastic surgeon called in by Dr. Jerome described it as a third degree burn and did some skin grafts.

Hospital records included in the transcript contain the report of Dr. Jerome: “. . . because of the presence of the burn postoperatively, which was not present preoperatively, administration was notified of this complication.” A second entry in the hospital records is equally persuasive. Concerning appellant the records reveal: “Received leg injury in surgery and is upset.”

Appellant’s affidavit, submitted in opposition to the motions for summary judgment, sets out similar facts. He dispells the notion that he could have been injured in the recovery room, while being conveyed to his hospital room, or in his room because although he had no feeling in his lower body as a result of the spinal, he was cognizant and could see his lower extremities at all times. However, while he was in the operating room, due to a shield, he could not see what was happening with regard to either the operation or his lower extremities which were deadened by the spinal injection. He contends that the only time he was not in a position to know he had been burned was during the operation.

The burn caused appellant serious problems. The record reveals that prior to the burn he had a varicose vein condition in both legs, but the condition did not require treatment. The skin graft required as a result of the burn did not heal properly, according to the plastic surgeon, and the veins in the left leg became infected. In November 1974, the plastic surgeon placed appellant in the hospital again and Dr. Curtis Smith stripped the varicose veins in appellant’s left leg.

What is clear from the record is that appellant’s left leg was burned at some point during the period of time appellant was being “prepped” for surgery until he was taken to the recovery room. The hospital admits that the only electrical instrument used on appellant was the Bovie Elec-tro-surgical unit, which requires grounding on the patient’s lower extremities. The depositions of the three physician-appellees agree in assigning possible causes for such a wound as the following:

1. A malfunction in the Bovie Electro-surgical unit, or groundplate, causing a burn.
2. Pressure, either a heavy object for a short period of time, or a milder pressure for a long period of time, at least several hours.

In this regard it is important to comprehend the incapacity of the patient; Dr. Jerome testified that the patient could not even move his legs to cross them until the spinal anesthetic had worn off.

It is quite obvious that the entire record leaves many questions unanswered, a predominating one being the major issue in this case: how did the injury occur? This question raises a genuine issue of material fact which, were the answer known, would document responsibility or cause for the burn. Without the answer to this question the trial court should not have granted summary judgments in favor of the appellees because the trial judge could not determine on the basis of information before him that they were entitled to judgments as a matter of law.

3 Barron & Holtzoff, Federal Practice and Procedure, § 1231 (1958) is instructive:

“The summary judgment procedure is a method for promptly disposing of actions in which there is not genuine issue as to any material fact. * * * The summary judgment procedure is not a substitute for the trial or disputed issues of fact. * * * The procedure is well adapted to expose sham claims and defenses but cannot be used to deprive a litigant of a proper trial of genuine issues of fact." (Emphasis supplied.)

The tendency of the evidence upon submission for summary judgment appears to us to present at least a degree of negligence on the part of the defendants. How a jury would assess the evidence presented, or whether any such view would correspond with ours, we do not comment upon.

This Court is not at liberty to deprive the plaintiff of a proper trial against any defendant-appellee. It appears from the record that each defendant-physician, and some of the hospital’s agents, were in the operating room during the surgery, and it is a fair inference that each bore some responsibility for the plaintiff’s care and successful treatment.

Because the record leaves so many issues unanswered that might be answered at trial, we must reverse each judgment granted by the trial court.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    A. R. BOROUGHS et al. v. Leo JOINER.
    SC 1825.
    Supreme Court of Alabama.
    Sept. 10, 1976.

      Nicholas S. Hare and Nicholas S. Hare, Jr., Monroeville, for appellants.
    Wyman 0. Gilmore, Grove Hill, for appel-lee.
   SHORES, Justice.

This appeal is from an order dismissing an action brought by the Boroughs against Leo Joiner. The complaint stated in substance that:

On July 26, 1973, Leo Joiner procured or employed J. F. Carter to make a custom application of pesticide by means of an aircraft in flight to his crops in the immediate vicinity of the fish pond of the plaintiffs in Monroe County; that the lake of the plaintiffs was built in 1965 at a cost of approximately $15,000 and was stocked with game fish and used as a recreation area for fishing and water pleasure and added to the value of the adjoining real estate; that on or about July 27, 1973, large numbers of fish started dying in the plaintiffs’ pond as well as in another pond in the vicinity of plaintiffs’ pond, and that the fish continued to die until all of the fish in the pond were dead; that the plaintiffs restocked the pond but the pond was still unfit for its original purpose; that scientific tests conducted on the fish and water established that the fish kill was caused by the pesticide Endrin; that Endrin is an intrinsically dangerous substance many times more toxic and lethal than DDT to humans, animals, and aquatic life; that the intrinsically dangerous qualities of Endrin are substantially augmented when spread by aerial application, and it is often impossible to contain the poison in the target area and it sometimes drifts several miles from the target area as it did in this case; that from July 26, 1973, through September 1, 1973, spraying operations were conducted on nearby farm land owned by defendant Joiner, the pesticide was permits ted to escape or drift onto the property of plaintiffs and into plaintiffs’ fish pond and, as a proximate consequence, the lake was contaminated and the fish died and the value of the plaintiffs’ land was depreciated. The complaint also alleged that Carter was an independent contractor employed by Joiner to do the spraying.

The trial court dismissed the case on motion for summary judgment filed by Joiner on the ground that the plaintiff could not recover against the landowner unless it was alleged and proved that Carter, the man who flew the airplane and sprayed the landowner’s cotton, was an agent of Joiner. The allegation was that Carter was an independent contractor. Summary judgment was granted on the pleadings and no affidavits were filed by either party.

The general rule in this state, and in most others, is that:

“. . . one is not ordinarily responsible for the negligent acts of his independent contractor. But this rule, as most others, has important exceptions. One is that a person is responsible for the manner of the performance of his nondel-egable duties, though done by an independent contractor, and therefore, that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance by reason of the employment of such contractor. [Citations Omitted].” Dixie Stage Lines v. Anderson, 222 Ala. 673, 675, 134 So. 23, 24 (1931).

See also: Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665 (1938).

It is also generally recognized that one who employs a contractor to carry on an inherently or intrinsically dangerous activity cannot thereby insulate himself from liability. Montgomery Street Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757 (1905); Mayer and Alderman of Birmingham v. McCary, 84 Ala. 469, 4 So. 630 (1887).

Although the courts have had some difficulty in stating a precise definition of activity which is inherently or intrinsically dangerous, the cases seem to agree that an intrinsic danger in an undertaking “. is one which inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it.” 41 Am.Jur.2d, Independent Contractors, § 41.

The rule is stated in Restatement of the Law, Torts 2d, Vol. 2, § 427 (1965), as follows:

“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

Crop dusting and spraying having been the subject of much litigation in recent years. Many courts have categorized such activity as inherently or intrinsically dangerous, making inapplicable the rule that a principal is not liable for the torts of his independent contractor. Typical of the airplane spraying cases which have applied the nondelegability rule are Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138 (1951); Miles v. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260 (1937); and Gerrard Co. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933).

The reasoning of the courts which have dealt with this problem has been summarized in 12 A.L.R.2d 438:

“There can be no doubt that farmers, orchardists, and, in fact, all horticulturists have the right to use the many beneficial new dusts and sprays to protect their growing fruits and vegetables from the ever-increasing invasion of insects, worms, borers, weevils, etc., and to assure the best possible product by dusts and sprays which eliminate weeds that would otherwise choke out or stunt growth.
“But such preventive measures cannot be used with absolute impunity. Due care must be exercised in seeing to it that the weather conditions are right, that the operator spreading the material does not place it so close to fence lines that cattle can reach through and eat poisoned grass; that airplane spreaders cut off the dust or spray distributor when making turns over the crops of others which the material would injure or over pasture land of others which would be poisoned for animals thereon, and that they do not spread dust when the wind is so blowing as to float it to the crops of others or the hives of bees and kill them. Care must likewise be taken that poisonous spray is not blown on pasture land.
“In other words, an owner of premises may be liable to damages for spreading poisonous dusts and sprays negligently.”

The Legislature of Alabama has recognized that insecticides and pesticides are intrinsically dangerous and has adopted statutes regulating the sale, distribution and application of those products in this state. The legislature stated its purpose in enacting the Alabama Pesticide Act of 1971 (Title 2, § 337(9a), et seq.). § 337(12a) is as follows:

“The purpose of this article is to regulate, in the public interest, the application of pesticides. In recent years many new materials have been discovered or synthesized which are valuable and necessary for the control of insects, plant diseases and weeds. However, such materials when misused may seriously injure health, property, crops, wildlife, bees and fish. Pesticides may also injure man or animals, either by direct poisoning or by gradual accumulation of poisons in the tissues. The drifting or washing of pesticides into streams or lakes can cause appreciable damage to acquatic [aquatic] life. A pesticide applied by aircraft or ground equipment for the purpose of controlling diseases, insects or weeds in a crop which is not itself injured by the pesticide may drift, sometimes for miles, and injure or contaminate other crops and other things with which it comes in contact. Therefore, it is deemed necessary and in the public interest to provide some means of regulating the application of pesticides.”

Under the statutory scheme adopted by the legislature, such products must be registered with the Department of Agriculture and Industries. Each must bear a label describing the degree of toxicity, and each must bear warnings of the dangers inherent in the use thereof. One must have a permit to purchase such products. Aviators must be licensed to engage in crop dusting or spraying and must pass an examination satisfactory to the Commissioner of Agriculture demonstrating knowledge of the dangers involved in the application thereof.

We hold that aerial application of insecticides and pesticides falls into the intrinsically or inherently dangerous category and, therefore, the landowner cannot insulate himself from liability simply because he has caused the application of the product to be made on his land by an independent contractor.

In so holding, we do not adopt the view, as some courts have done, that such activity is ultrahazardous thereby rendering one strictly liable, notwithstanding his exercise of the utmost care. Leo v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957).

The test of liability on the part of the landowner is one of reasonableness. Liability is not absolute but is imposed on the landowner for his failure to exercise due care in a situation in which the work being performed is sufficiently dangerous that the landowner himself has a duty to third persons who may sustain injury or damage from the work unless proper precautions are taken in the performance thereof.

The judgment appealed from is, therefore, reversed and the cause is remanded.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    Benjamin L. HAMILTON v. Edgar Eugene KINSEY.
    SC 1425.
    Supreme Court of Alabama.
    Sept. 17, 1976.

      B. Nicholas Kearney, Mobile, for appellant.
    Donald F. Pierce, Benjamen T. Rowe, Mobile, for appellee.
   FAULKNER, Justice.

On Rehearing.

On application for rehearing, the original opinion is withdrawn, and this one substituted therefor.

Hamilton, a passenger in a car driven by Eich, was injured in a two-ear collision on State Highway 59 South, about 0.3 miles south of Gulf Shores. Eich made a left turn across oncoming lanes of traffic and collided with Kinsey, a policeman chasing a speeding- motorist.

Hamilton testified that he never saw Kinsey’s police car, notwithstanding that two fishermen some 500-600 yards behind the Eich-Hamilton car were able to see it clearly just before the accident.

Hamilton admitted that he and Eich had a couple of drinks, though he contended they were not drunk. Kinsey’s evidence tended to show that Hamilton and Eich were both intoxicated at the time of the accident.

When the accident occurred, Kinsey’s polios car was traveling at excessive speed without a flashing blue light or sounding siren.

Hamilton, the passenger, filed suit in Circuit Court, claiming damages for permanent injuries suffered as a direct and proximate result of the negligence of Kinsey. Kinsey denied negligence and contended Hamilton was contributorily negligent. The trial resulted in a jury verdict in favor of Kinsey. Hamilton contends that the Circuit Court erred by giving Charge No. 12 requested by Kinsey. That charge is as follows:

“I charge you, members of the jury, that, under the law of Alabama, contributory negligence is a complete defense to any right of recovery of Benjamin L. Hamilton for simple initial negligence, and, if you are reasonably satisfied from the evidence in this case that Benjamin L. Hamilton was guilty of negligence and that his negligence proximately contributed to the accident of which he complains, even in the slightest degree, then Benjamin L. Hamilton cannot recover under his first claim.”

Hamilton contended that the charge improperly omitted an instruction within the charge to the effect that to impute negligence of the driver of an automobile to a passenger, the passenger must have assumed control and direction of the vehicle, or must have some right to a voice in the direction, management or control of the automobile. Hamilton further argued that no plea of joint venture remained under which the charge as given might be proper.

On application for rehearing, Kinsey contends that it was not error for the trial court to give Charge No. 12, on the ground that Hamilton’s objection was limited to the principle of imputed negligence and did not extend to the principle of passenger negligence. It is on this distinction that we find the charge was properly given. The application for rehearing is granted.

It is well established in Alabama that a gratuitous automobile passenger is not absolved of all personal care for his own safety, but is under a duty of exercising reasonable or ordinary care to avoid injury, such care as would be exercised by an ordinarily prudent person under like circumstances, and generally is chargeable with contributory negligence barring a recovery, if his failure to exercise such care contributes proximately to his injuries. E. g., Moore v. L. & N. R.R., 223 F.2d 214 (5th Cir. 1955); Iverson v. Phillips, 268 Ala. 430, 108 So.2d 168 (1959); Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289 (1946). This duty exists even though the passenger is not chargeable with the driver’s negligence. Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971). The obligation to exercise reasonable care for one’s own safety exists independent of the imputation principle. See Proctor v. Coffey, 227 Ala. 318, 149 So. 838 (1933). Passenger negligence does not require that the passenger have authority or control over the movement of the car in which he was a passenger. Passenger’s duty to use due care for his own safety is not affected by the question of agency or pursuit of joint enterprise. McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508 (1919).

When a driver is negligent, reckless or incompetent, and this is known to the guest, the duty of due care on the part of the guest arises. Williams v. Pope, 281 Ala. 382, 203 So.2d 105 (1967). Under the facts of this case, a jury could have found that Hamilton’s entering the automobile as a passenger when the driver was intoxicated was contributory negligence, and could have found his failure to keep watch after entering, was also contributory negligence.

That Hamilton was also intoxicated was no defense. Drunkenness does not exempt a person from the responsibility of his own acts; and if intoxication renders him reckless or indifferent to the consequences, and he fails to exercise due care, such failure will not be excused because superinduced by intoxication. Johnson v. L. & N. R.R., 104 Ala. 241, 16 So. 75 (1894). The law exacts from one voluntarily intoxicated the same care as it would from a sober person of ordinary prudence under like circumstances. Johnson v. L. & N. R.R., supra. He cannot negligently abandon the exercise of his own faculties and trust entirely to the vigilance of the driver if the driver is known to have been intoxicated. Bradford v. Carson, 223 Ala. 594, 137 So. 426 (1931). Hamilton’s intoxication was self-imposed, was not known to Kinsey and imposed no special duty on Kinsey. See Johnson v. L. & N. R.R., supra.

A jury could have found recovery should be denied Hamilton because of his own negligence. No instruction regarding control was, therefore, necessary. Although Hamilton could not be barred from recovery by imputed negligence because the pleas did not show that he had control of the vehicle, he could, nevertheless, be barred by contributory negligence. Charge No. 12 was correctly given.

APPLICATION FOR REHEARING GRANTED.

ORIGINAL OPINION WITHDRAWN.

AFFIRMED.

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

      . The term “slightest degree” should not be used in a charge on contributory negligence. The charge found in Alabama Pattern Jury Charges, § 21.03, p. 297, should be used where defendant raises contributory negligence in his answer.


text:
    Linda Ophelia HUNNICUTT, as Administratrix, etc. v. CITY OF TUSCALOOSA et al.
    SC 1471.
    Supreme Court of Alabama.
    Sept. 17, 1976.

      Thompson & Stilson and Olin. Zeanah, Tuscaloosa, for appellant.
    J. Wagner Finnell and Glenn N. Baxter, Tuscaloosa, for appellees.
   HEFLIN, Chief Justice.

This appeal is brought by Linda Ophelia Hunnieutt, as administratrix of the estate of Doris Louise Burkhalter, from the granting of summary judgment for the City of Tuscaloosa in an action for the wrongful death of Doris Louise Burkhalter.

The defendant city’s motion for summary judgment contained the following grounds: 1) The plaintiff failed to file a claim against the city within six months of the accrual of the cause of action as required by Section 476, Title 37, Alabama Code of 1940 (Recompiled 1958) and 2) The plaintiff failed to file a claim against the city stating substantially the manner in which injury was received and the day and time when the accident occurred as required by Section 504, Title 37, Alabama Code of 1940 (Recompiled 1958).

The trial court granted the defendant city’s motion without stating the reason or reasons. Plaintiff alleges error by the trial court in granting the motion on either of these two grounds and alternatively attacks the constitutionality of sections 476 and 504 of Title 37 of the Alabama Code on equal protection grounds.

On June 23, 1974 the decomposed body of Doris Louise Burkhalter was found inside an automobile in the waters of Lake Tuscaloosa by a diver at a point near Watermelon Road Landing within the city limits of the City of Tuscaloosa. The body of Curtis Cleveland Espey was also found in the automobile. The complaint filed by the plaintiff alleged that Doris Burkhalter died while a passenger in á car driven by Curtis Espey and that her death was a result of the negligence of the City of Tuscaloosa in failing to maintain suitable barriers to warn motorists that the end of Old Watermelon Road goes into Lake Tuscaloosa. It was further alleged that the failure to post warning signs amounted to a defect in the public street. The complaint also alleged that the exact date and time when the automobile went into the lake were not known but that Doris Burkhalter and Curtis Espey were last seen alive on October 2, 1973.

The post-mortem examination of the toxicologist who examined the bodies on June 23, 1974 stated that the death of Doris Burkhalter had occurred as the result of drowning. An affidavit made by the same toxicologist stated that death had occurred at some time between six and nine months before the discovery of the bodies and that his examination results would be consistent with an estimation of death having occurred in October 1973.

The complaint named the Administrator of the estate of Curtis Espey as a co-defendant, however, this appeal is limited to the summary judgment granted to the City of Tuscaloosa.

The plaintiff, daughter of Doris Burkhal-ter, was appointed Administratrix of the Estate of Doris Burkhalter on August 16, 1974. Plaintiff filed a claim with the City of Tuscaloosa on December 9,1974 and filed the complaint from which this action arose on December 20, 1974. The following is the pertinent text of the claim which was filed with the defendant city:

* * * * * *
“My name is Linda Ophelia Hunnicutt, Administratrix for the Estate of Doris Louise Burkhalter, Deceased, and a copy of my letters of administration is attached hereto as Exhibit A. The body of my mother, Doris Louise Burkhalter, Deceased, was discovered in the City of Tuscaloosa, Tuscaloosa County, Alabama, to-wit, off the Watermelon Road Landing in southwest Lake Tuscaloosa on or about the afternoon of June 23, 1974. My mother died while a passenger in a vehicle driven by Mr. Curtis Cleveland Espey. Mr. Espey drove said vehicle off the end of Old Watermelon Road at, to-wit, the Watermelon Road Landing on Lake Tuscaloosa, said vehicle going into Lake Tuscaloosa. This vehicle went into Lake Tuscaloosa as a result of the City of Tuscaloosa failing to properly maintain suitable barriers. The exact date and time that this vehicle went into Lake Tuscaloosa is not known but it is believed to be on or before June 23, 1974, said date being the date my mother’s body was discovered and was the first evidence I had that my mother had died. See the attached Exhibit B concerning the discovery of my mother’s body in Lake Tuscaloosa off the end of Watermelon Road.” [Exhibit B was a clipping from the Tuscaloosa News of June 24, 1974 which contained a picture and an account of the recovery of the automobile from the lake.]
* * * * * *

The resolution of this appeal will be bottomed on answering the question of whether the plaintiff sufficiently complied with the requirements of §§ 476, 504, Title 37, Alabama Code of 1940 (Recompiled 1958) in providing the city with notice of her claim ,in order to allow her to maintain the suit. These sections provide as follows:

§ 476: “All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.’’
§ 504: “No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed.” (Emphasis added.)

This court will first address the question of whether the claim filed by the plaintiff complied with the requirements found in section 476, that it be filed “within six months from the accrual thereof.” The defendant city argues that the claim accrued on the day of the death of Doris Burkhal-ter, which according to the toxicologist’s affidavit was probably in October 1973 and thus section 476 barred the claim because it was filed some 14 months later, in December 1974. The plaintiff on the other hand contends that the claim did not accrue until there was someone capable of bringing the action, in this case not until she was appointed administratrix of the estate of her mother.

In construing the provisions of sections 476 and 504 of Title 37 this court has stated that they should be considered in pari materia. Howell v. Dothan, 234 Ala. 158, 174 So. 624 (1937).

This action was brought under the Alabama Wrongful Death Act, Title 7, § 123, Alabama Code of 1940 (Recompiled 1958). The only person who may maintain an action under this section is a personal representative. Ivey v. Wiggins, 276 Ala. 106, 159 So.2d 618 (1964); Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912 (1911). Further, section 504 makes specific mention of the claim being filed by a personal representative in the event of the death of the person against whom a municipality is alleged to have committed a tort. In Alabama, a personal representative cannot be appointed for the estate of a deceased, until at least five days have passed from the time the death is “known.” Title 61, § 86, Alabama Code of 1940 (Recompiled 1958). Under the unusual circumstances of this case a personal representative could not have been appointed until after June 28, 1974.

The question of when an action accrues within the meaning of section 476 is one of first impression for this court and in order to address this question this opinion will consider the interpretation given the term “accrue” in cases involving the statute of limitations.

It is a general rule in Alabama that the statute of limitations begins to run from the time the plaintiff’s cause of action accrues. It has been determined that the accrual of a cause of action occurs as soon as the party aggrieved is entitled to begin the prosecution of his cause of action. Esslinger v. Spragins, 236 Ala. 508, 183 So. 401 (1938); Provident Life & Accident Ins. Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934); Larue v. Kershaw Contracting Co., 177 Ala. 441, 59 So. 155 (1912).

In Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468 (1973), this court stated: “It is clear from our cases that the statute of limitations begins to run when the cause of action accrues, and that the cause accrues' as soon as the party in whose favor it arises is entitled to maintain an action thereon.” 291 Ala. at 608, 285 So.2d at 473.

Under the facts of this case, the party who was entitled to initiate this action was the personal representative of the deceased, who could not have been appointed prior to June 28, 1974 (5 days after the date that death became “known”). Therefore, the date that the claim was filed by the personal representative, December 9, 1974, was within six months from the date of accrual of the claim, June 29, 1974.

The second ground presented by the defendant for its motion for summary judgment, as mentioned earlier, was that the claim filed by the plaintiff did not comply with the requirements of section 504 in that it did not state the day and time the accident occurred. This court on several occasions has indicated that the purpose of this section is to provide a city with notice of the accident to allow the city to investigate the claim and perhaps make an adjustment with the claimant before the bringing of a law suit. McCarroll v. Bessemer, 289 Ala. 449, 268 So.2d 731 (1972); Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963); Bessemer v. Barnett, 212 Ala. 202, 102 So. 23 (1924). This court has also indicated that technical accuracy is not required by this section and that substantial compliance is all that is necessary. Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963).

Under the facts of the case here, it was not possible for the plaintiff to put the exact time and date of the accident in the claim. The claim provided the city with all the information necessary to achieve the objectives of this statute. Thus this court holds that the second ground argued by defendant in its motion for summary judgment was not sufficiently valid to support the granting of the motion.

In view of our holding in this case we do not think it necessary to consider plaintiff’s contentions of the unconstitutionality of sections 476 and 504 of Title 37, supra.

The granting of summary judgment in favor of the City of Tuscaloosa and against the Plaintiff-Administratrix is hereby reversed.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES and EMBRY, JJ., concur.

      . This case was originally assigned to another author on August 3, 1976. member of this court, but reassigned to the


author: EMBRY, Justice.

text:
    Joseph F. SCOTTI v. CITY OF BIRMINGHAM, a Municipal Corp.
    SC 1861.
    Supreme Court of Alabama.
    Sept. 17, 1976.

      Hare, Wynn, Newell & Newton and James J. Thompson, Jr., Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellant.
    King & Bass, Birmingham, for appellee.
   EMBRY, Justice.

The question in this case is whether, in a negligence action, defendant City of Birmingham is entitled to summary judgment because it was granted immunity, when operating a municipal airport, by Code of Ala., Tit. 4, § 24, and Tit. 62, § 660.

We hold the City immune and affirm.

The issue is whether the decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), effectively removes immunity granted the City by the Code sections mentioned.

Joseph F. Scotti sued the City of Birmingham after sustaining injuries in a fall allegedly caused by a wet, slippery mat at an entrance doorway of the Birmingham Municipal Airport. Defendant, City, filed a motion for summary judgment, contending it was immune from liability for its negligence at the airport. The motion was granted and the action dismissed. Scotti appealed from the judgment of dismissal.

The Code section upon which the City primarily relies in its motion reads:

“Governmental function. — The construction, maintenance and operation of municipal airports is hereby declared a public governmental function, and no action or suit shall be brought or maintained against any municipality for or on account of the negligence of such municipality, or its officers, agents, servants or employes [sic], in or about the construction, maintenance, operation superintendence or management of any municipal airport.” Code of Ala., Tit. 4, § 24 (Re-comp.1958).

The plaintiff, Scotti, says that as a consequence of our decision in Jackson these statutes are inoperative and municipal immunity from tort liability is abolished, in whatever form and however it may have been established. In that case the specific question addressed was, “ * * a re-evaluation of this court’s construction of Title 37, § 502, Code. * * * ” That decision correctly interpreted that Code section so that it would express its clear legislative intent; abolition of court-made municipal governmental immunity. In spite of the clear legislative mandate of § 502, this court continued adhering to judicially imposed municipal governmental immunity by making a distinction between those functions termed governmental and those termed corporate or proprietary. Giving § 502 its proper interpretation does not deprive municipalities of privileges, or defenses to actions, available under valid legislation; neither are duties imposed, or powers conferred, under such legislation, limited or restricted.

In this ease we need not deal with Tit. 62, § 660, supra. We have a definitive legislative expression in Tit. 4, § 24. Under the latter, we will let the will of the legislature prevail, as we made clear in Jackson that we would. We recognized there, as we do here, the legislature’s prerogative, within constitutional limitations, to enact legislation respecting municipal governmental liability; and this court’s duty to give proper effect to the clear intent of such legislation. The language of Tit. 4, § 24, is specific in expressing the legislature’s clear intent:

“ * * * no action or suit shall be brought or maintained against any municipality for or on account of the negligence of such municipality, or of its officers, agents, servants or employes [sic], in or about the construction, maintenance, operation superintendence or management of any municipal airport.” (emphasis added)

Scotti says this court, by its language in Jackson, limited the power of the legislature to immunize municipalities from tort liability and only legislation enacted after date of the Jackson opinion (1975) could do so. Also, he says, § 24 is an unwarranted intrusion upon the judicial branch that the legislature has no power to make; and in declaring the operation of a municipal airport to be a governmental function, the entire statute is so bound to the abolished judicial doctrine of municipal governmental immunity that it must fall.

To say the legislature had the power, in 1907 (when Tit. 87, § 502, was enacted), to abolish municipal governmental immunity by one statute, but lacked power to extend certain immunities later (in 1931 when Tit. 4, § 24, was passed) is contradictory; to so hold would be judicial usurpation of the very power we recognized in Jackson. Whether the legislature acted within proper constitutional limitations, in granting immunity, is not raised here. Therefore, we make no comment about that question.

That § 24 is not an unwarranted intrusion upon the powers of the judicial branch, not questioned on constitutional grounds, appears from a reading of this opinion and that in Jackson.

Use of the descriptive phrase “governmental function,” in the statutes under discussion, to classify an activity is one basis of Scotti’s argument that immunity granted by them was abolished in Jackson. True, § 660 refers generally to governmental functions and specifically to recovery of damages for personal injuries resulting from defects in highways. Seemingly, its purpose was to make legislative declaration of the exemption that this court made to its judicially found general rule of municipal governmental immunity. Although § 24 uses the term governmental function, its language is unequivocal in granting immunity in connection with operation of airports. The judgment dismissing this action was correct, therefore it is

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Patrick GILLIAM and Shirley Gilliam v. INDIANA NATIONAL BANK, a National Banking Assn., C.I.A., Division.
    Civ. 787.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.
    Rehearing Denied Sept. 15, 1976.

      McCain & White, Tuscaloosa, for appellants.
    Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order granting to Indiana National Bank, hereinafter called Bank, a writ of seizure entitling Bank to the immediate possession of a mobile home. .

On May 28, 1975, Bank filed suit in the Circuit Court of Tuscaloosa County, Alabama, against Patrick Gilliam and Shirley Gilliam, hereinafter called the Gilliams, claiming right of seizure of a mobile home. The Bank, as an assignee, claimed default on a promissory note and security agreement. On June 12, 1975, the Gilliams filed a motion to dismiss, alleging that the action was not prosecuted in the name of the real party in interest and further alleging that the Bank had not filed a Mini-Code affidavit as required by the Alabama Consumer Finance Act. This motion was overruled on June 13, 1976, after Bank filed a Mini-Code affidavit.

On July 9, 1975, the Gilliams filed an answer which alleged that the sale and transaction were unconscionable, and that the contract and security agreement were contracts of adhesion, and that there was a failure of consideration in the sale, and that by virtue of Title 5, Section 320, Code of Alabama (1940) (1973 Cum.Supp.) the Gil-liams had a defense against the seller which could be asserted against Bank to prevent Bank from being entitled to possession of the mobile home. The Gilliams also filed a counterclaim against Bank, and a third-party complaint against the retail seller, Donnie’s Mobile Homes, Inc. and the manufacturer, Pyramid Homes, Inc. Service of process was never perfected on seller and the manufacturer since both businesses were defunct by that time.

After taking testimony on June 13, 1975, and July 11, 1975, upon the application of Bank for a writ of seizure, the court took the matter under advisement, with the parties submitting memoranda trial briefs. On October 14, 1975, the court granted the Bank’s application.

The transaction out of which Bank’s security interest arose occurred as follows: On March 12, 1974, the Gilliams purchased a new mobile home from Donnie’s Mobile Homes. The manufacturer was Pyramid Homes. The Gilliams executed and delivered to David Goodman, a salesman of the retail mobile home dealer, two separate instruments: a customer’s purchase agreement and a note and security agreement. The seller assigned the security agreement to Bank.

The mobile home was transported to and installed upon the Gilliams’ lot by the seller approximately one week after the execution of the instruments of sale and security. After the installation the Gilliams entered the mobile home and discovered various defects in materials and workmanship.

The Gilliams immediately notified the seller of the defects. The seller told them they would “have to get in touch with Pyramid.” Gilliam contacted Pyramid by telephone. After delays and discussions, Pyramid, the manufacturer, made some repairs to the mobile home. Such repairs were incomplete and unsatisfactory to the Gil-liams.

The Gilliams made payments pursuant to the security agreement for a period of eight months. They failed to make any further payments. After six months of default in payment and demand for possession, suit was filed by the Bank.

The Gilliams contend that the Bank’s suit is subject to all their claims and defenses against the seller arising out of the sale. The Bank admits that Title 5, Chapter 14, Sections 316-341, Code of Alabama (1940) (1973 Cum.Supp.) commonly referred to as the Mini-Code, is applicable to this consumer credit sale. Bank further agrees that if the Gilliams had a claim or defense against the seller arising from the sale it would be subject thereto in accordance with Section 320 of the Mini-Code.

The issue is whether the Gilliams have a meritorious claim or defense against the seller which may be asserted against the Bank. We find that the Gilliams do not have such a defense or claim. We agree with the Gilliams’ contention that the customer’s purchase agreement and not the security agreement, if there is conflicting language, governs the sale and any disclaimer, limitation or modification of the seller’s warranty. Title 7A, Section 9-206(2) Code of Alabama (1940). Comment 3 to Section 9-206(2) Code makes it clear that this provision “prevents a buyer from inadvertently abandoning his warranties by a ‘no warranties’ term in the security agreement when warranties have already been created under the sales arrangement.” White and Summers, Handbook of the Law Under the Uniform Commercial Code, Section 12-5 at 362 (1972). The terms of the customer’s purchase agreement provided that:

“It is mutually agreed that there are no warranties, either expressed or implied, made by either the seller or the manufacturer on the trailer, mobile home, or the parts furnished hereunder, except as follows: On new units the manufacturer’s warranty for the particularly described mobile home or trailer will apply, together with such other separate and individual warranties of the various makers of the accessories and equipment furnished. Each individual warranty will be for a duration of time, and will cover such usage as is particularly outlined in the separate manufacturer’s own guaranty, and to which the buyer is directed.”

This language gives notice of an express warranty by the manufacturer; it is not an express warranty by the seller. Nor, as contended by Gilliams, did the seller, by the inclusion of the notice of the manufacturer’s warranty adopt such warranty as its own. Such construction is indeed strained.

The Gilliams further contend that implied warranties of merchantability and fitness by the seller arose from the sale as provided by Sections 2-314 and 2-315 of Title 7A, Code of Alabama (1940), and such warranties were not disclaimed or excluded under Section 2-316(2). Title 7A, Section 2-316(2) Code of Alabama (1940) states that

“To exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.”

The Gilliams contend that since the word “merchantability” was not mentioned in the disclaimer nor were such disclaimer provisions conspicuous, the seller impliedly warranted that the mobile home was merchantable and that it was fit for the particular purpose of use as a home. However, Title 7A, Section 2-316(3)(a) Code, supra further provides “notwithstanding Subsection (2) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

There appears on the face of the customer’s purchase agreement the following: “Standard Manufacturer Warranty.” “OTHERWISE SOLD AS IS.” The latter appears herein as it does in the contract. There further appears on the back of the agreement the full paragraph which we have heretofore quoted. Plaintiff testified that this agreement was read and understood by them. In addition, the security agreement which was read and signed contemporaneously with the purchase agreement contained a disclaimer by the seller of express or implied warranties as to merchantability or fitness of purpose. Such disclaimer is in conspicuous print as required by Section 2-316(2). Having been executed together, the instruments should be construed together in the absence of conflict of terms. The purchase agreement excludes all implied warranties by use of terms approved by Section 2-316(3). That section does not require that the “as is” exclusion be conspicuous. Section 2-316(3) is to be read “notwithstanding Subsection (2).” DeKalb Agresearch, Inc. v. Abbott, N.D.Ala., 391 F.Supp. 152, 17 UCC Rep. Service 75.

The Gilliams contend that they are not in default under the terms of the “security agreement” because they refused to make payments pursuant to Title 7A, Section 2-.717, Code of Alabama (1940), which provides as follows:

“The buyer on notifying the seller of his intention to do so may deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due under the same contract.”

As implied warranties of fitness and merchantability were excluded in the sale, there was no breach and no damage to buyer to be deducted preventing default.

As Gilliams have no defense by way of breach of warranty against the seller, they have no defense upon default in payments against the right to seizure of the seller’s assignee. Title 5, Section 320(a), Code of Alabama (1940) (1973 Cum.Supp.).

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Brenda Turner DAVIS v. Tom W. TURNER and Hattie P. Turner.
    Civ. 755.
    Court of Civil Appeals of Alabama.
    June 30, 1976.
    Rehearing Denied Aug. 18, 1976.

      Ronnie E. Keahey, Grove Hill, for appellant.
    A. Michael Onderdonk, Chatom, for ap-pellees.
   BRADLEY, Judge.

This is an adoption case. The divorced natural mother, Brenda Turner Davis, a minor, appeals from a final decree of adoption entered by the Probate Court of Washington County on December 4, 1975. The decree established the divorced father’s parents, appellees here, as the child’s adoptive parents.

This case has previously been before the Court of Civil Appeals sub nom. Davis v. Turner, 55 Ala.App. 366, 315 So.2d 602. At that time we dismissed the natural mother’s appeal from an earlier order of the same probate court decreeing adoption by the same adoptive parents. Our ground for dismissal was that the earlier order was interlocutory and would therefore not support appeal. Since that dismissal, the probate court conducted a further hearing on December 4, 1975. At that hearing the special probate judge heard testimony ore tenus. The decree issued after the hearing is final under Title 27, Code of Alabama 1940, as Recompiled 1958, and will support the present appeal.

There are three separate proceedings which will be referred to in this opinion. The first, not currently on appeal but of factual significance, was the divorce proceeding before the circuit court. The second, held in probate court, was the original hearing on the adoption which led to the interlocutory decree of December 11, 1974. This second hearing elicited most of the evidence relevant to the findings now on appeal. The third hearing, also conducted by the probate court, was the hearing of December 4,1975 held after our dismissal of the earlier appeal. The third hearing produced little evidence of concern to us at this time. A special probate judge was required to conduct the second and third hearings because the regular probate judge, Tom W. Turner, is a party in this case. Judge Turner is the child’s paternal grandfather, one of the appellees here.

The basic facts of the case are these:

Brenda married David Turner, the child’s natural father, when she was fifteen and he seventeen years of age. Brenda was pregnant with the child in question at that time. The husband filed his complaint for divorce in the circuit court on July 16, 1974. Hearing was set for July 24, 1974, on the complainant’s prayer for temporary award of custody of the child.

On July 23, 1974 Brenda filed her answer and waiver. That same day, she executed an instrument nominating her attorney, Gaines McCorquodale, to be her guardian ad litem and in connection with the divorce.

The parties stipulated in open court that Brenda would consent to the adoption of her child by the paternal grandparents, Tom W. Turner and Hattie P. Turner.

On August 3, 1974 Brenda’s husband appeared before the clerk and gave a deposition stating facts in support of the divorce and child custody awards.

The divorce decree, issuing September 3, 1974, awarded custody of the child to appel-lees; no visitation privileges were reserved to Brenda.

On October 18, 1974 appellees filed a petition to adopt the child, attaching to the petition a written instrument dated July 25, 1974, signed by Brenda consenting to the child’s adoption.

On October 31, 1974 Brenda, through her next friend, filed an answer to the petition. The answer denied that she had given her consent; stated that the consent was obtained through fraud, coercion and misrepresentation, and that at the time of signing she did not know what she was signing or the consequences of the same; and further that she is a minor and revokes and rescinds any consent allegedly given.

On November 16, 1974 Brenda amended her answer, adding counts alleging that Brenda was advised that the consent form pertained only to custody and not to adoption, that if she signed she would be granted extensive visitation rights, and that Brenda relied on this advice in signing the form; that no guardian-ad-litem was appointed by the court to represent her at the signing, and it was not signed under supervision, of the court; and that appellee Tom W. Turner exercised undue influence as probate judge.

November 18, 1974: Brenda filed a motion to set aside the judgment of divorce and child custody. The grounds for the motion were that Brenda did not learn of the divorce decree until October 28, no copy having been served on her; that prior to learning of the decree she had informed her attorney that she did not consent for appel-lees to have custody of the child, and was advised that no judgment would issue and the cause would be set for trial; that the decree of September 3 was obtained through mistake, inadvertence, and surprise on Brenda’s part, and was due to her tender years and Judge Turner’s influence; and, in addition, the motion went on to reiterate grounds already set forth above.

The hearing on the interlocutory decree was held November 26, 1974. At that hearing the following pertinent testimony was elicited:

Gaines McCorquodale testified that prior to the custody hearing he had negotiated with the Turners’ lawyer about the divorce and custody of the child. The question of adoption was discussed between the lawyers. The Turners did not discuss directly with Brenda or her father the question of adoption. McCorquodale said he had authority from Brenda and her father to negotiate a settlement that day. A settlement was in fact reached, and a discussion was had with Brenda and her father prior to executing it. After orally agreeing, the parties appeared in open court and stipulated the agreement into the record. Judge Lindsey was on the bench.

McCorquodale further testified that he and Brenda and her father discussed the adoption of the child several times during the negotiations prior to the making of the written stipulation. They agreed that the formal consent would be handled later in his office. According to McCorquodale, Brenda’s father was present when she signed the consent for adoption, and the consequences of the consent were fully explained to her at that time. Prior to reaching the agreement, the lawyer advised Brenda that she had no chance to receive custody of the child due to damaging facts in the case. Pour thousand dollars was to be paid by the Turners in consideration of the consent to adoption and the waiver and answer filed in the divorce action. McCor-quodale said he held the waiver and answer and the consent form in his office until the $4,000 check was delivered to him, pursuant to an agreement with his client. Several weeks after receiving the check, Brenda went back to her lawyer’s office and said she wanted to stop the adoption and divorce, because she had changed her mind. McCorquodale said he had not received a divorce decree at this time.

Brenda’s father testified that McCorquo-dale told them that the Turners had offered to settle. Under the terms of the agreement, the Turners would have permanent custody, and would be allowed to adopt the child. Brenda would be given reasonable visitation rights and would be paid a sum of money. Brenda’s father said he and Brenda agreed to the settlement because they did not think they had any other alternative. He also testified that McCorquodale did not explain anything about the consent when she signed it, but just told her to sign it and he would hold it until he received the money. Brenda’s father further testified that he thought that his daughter was consenting to custody of the child and was to have visitation. He said they did not discuss adoption. He said he heard the stipulation read in open court but that he did not understand what it meant.

Brenda testified the agreement was intended to provide only for custody of the child, and there was no discussion of adoption prior to her giving written consent. She testified that she did not know, when she signed the consent form, that she was consenting to the adoption of her child, but she thought she was consenting to custody only. She stated that the petition for adoption was first served on her after she told Gaines McCorquodale to stop all proceedings including adoption; that she just learned of the decree granting custody to the Turners and denying her visitation rights on the day the petition for adoption was set for hearing. She further testified that she wished to withdraw her consent to the adoption, if it was found that she had in fact given her consent, and that the $4,000 was paid for custody of the child plus her education and bills. She spent all of the money in two months.

Subsequent to this hearing the special probate judge found the issues in favor of appellees and decreed adoption of the child in favor of the Turners. The previous appeal to this court followed, after which the third hearing in this case was conducted. Evidence at that hearing reestablished the above facts, and added additional testimony tending to show both Brenda’s and appel-lees’ fitness for custody of the child, and that the child had grown accustomed to living with the Turners. During this entire time the child has remained with appellees under provisions of the circuit court’s divorce decree.

On December 4, 1975 the probate court entered the order appealed from. This order finalized adoption by the grandparents.

The first argument raised on appeal is that the record conclusively shows that Brenda’s consent was obtained through mistake, coercion, fraud, or undue influence. Under Williams v. Pope, 281 Ala. 416, 203 So.2d 271, appeal after remand, 284 Ala. 456, 225 So.2d 861, revocation of the natural mother’s consent can be effectively predicated on the presence of those factors at the time consent was rendered. However, as the above summary of the record in this case shows, it is far from clear that any untoward circumstances accompanied the rendition of consent.

Brenda’s allegations are supported by her testimony and, to a lesser degree, by that of her father. The allegations are flatly contradicted by McCorquodale’s testimony and by the stipulation made in open court on July 23, 1974. It is the opinion of this court that the July 23 stipulation constitutes Brenda’s consent to the adoption of her child: the later consent form is merely a memorandum preserving that consent for later uses. The stipulation was given in open court in the presence of Brenda, her father, and her attorney who was also her guardian ad litem for all matters involved in the divorce proceedings. With the procedural safeguards attendant upon the entry of this stipulation, it cannot be gainsaid that the trial court below had sufficient evidence to find that consent was freely and knowingly given in a noncoercive atmosphere. The evidence being legally sufficient, we will not reverse on this ground, Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387.

Brenda’s second argument is that under Graves v. Graves, 51 Ala.App. 601, 288 So.2d 142, the consent of a natural parent may be revoked for legal cause prior to the entry of a final decree. It is Brenda’s contention that her status as a minor is legal cause for revocation. The effect of a natural parent’s nonage on consent to adoption is a novel question in Alabama.

It is clear that Brenda’s consent was required at some point in the adoption process. The Alabama adoption statute, Title 27, Section 3, Code of Alabama 1940, states in pertinent part:

“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, or who cannot be found, or who is insane or otherwise incapacitated from giving such consent, or who has lost guardianship of the child, through divorce proceedings, or by the order of a juvenile court or court of like jurisdiction, may be dispensed with, and consent may be given by the guardian if there be one, or if there be no guardian by the state department of public welfare. ...”

It is expressly provided in the quoted passage that the natural mother’s consent is mandatory before an adoption can come about, unless one of the enumerated occurrences has relieved her of the power to grant or withhold consent. None of these occurrences took place in the present case.

The nearest analogy in the instant facts to one of the enumerated occurrences is the circuit court’s grant of custody to the appellees as part of the divorce proceedings. Such grant of custody is not, however, for purposes of the adoption statute, equivalent to the appointment of a guardian, McGowen v. Smith, 264 Ala. 303, 87 So.2d 429.

Adoption is strictly statutory, Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169. Being unknown at common law, it cannot be achieved by contract, Prince v. Prince, 194 Ala. 455, 69 So. 906. Adoption is not merely an arrangement between the natural and adoptive parents, but is a status created by the state acting as parens patri-ae, the sovereign parent. Because the exercise of sovereign power involved in adoption curtails the fundamental parental rights of the natural parent, the adoption statutes must be closely adhered to. In a minority of jurisdictions, Alabama not among them, a contract alone will give rise to a limited number of enforceable obligations incident to legal adoption. Even in those jurisdictions, however, such “equitable adoption” is held to be distinct from true legal adoption which is statutory, not contractual, St. Vincent’s Infant Asylum v. Central Wisconsin Trust Co., 189 Wis. 483, 206 N.W. 921; Barney v. Hutchinson, 25 N.M. 82, 177 P. 890. In the present case we are not dealing with an alleged equitable adoption, but are presented with the issue of consent in its purely statutory context.

Under the Alabama statute it is the state’s sovereign power, manifested by court decree, which brings the adoption to pass. The consent of the natural parent is not the instrument of adoption: rather, the giving of consent at some point is one of the prerequisites to the probate court’s consideration of the subject matter.

Where this jurisdictional prerequisite has been satisfied at the time of the decree, the decree consummates the adoption and a later withdrawal of consent has no effect. Where a required consent has never been given, the trial court never obtains jurisdiction to proceed to the paramount question of the child’s welfare. In the case before us now, the natural mother gave consent at one point in time but attempted to repudiate this consent, relying on the disability of nonage, prior to the rendition of the final decree.

There is a split of authority among those states which have dealt with this problem. One line of cases holds that consent must continue up until the rendition of the decree or the trial court loses jurisdiction, In re Adoption of Schult, 14 N.J.Super. 587, 82 A.2d 491; In re Adoption of Susko, 363 Pa. 78, 69 A.2d 132; In re Adoption of McKinzie, 275 S.W.2d 365, Mo.App. The other line of decisions holds that jurisdiction attaches with the initial manifestation of consent and remains in spite of attempted repudiation of consent, Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778 (1960). This latter line of cases likens adoption to an in rem proceeding, analogous to divorce. The natural parent’s initial consent followed by placement of the child with the adoptive parents creates a res, a preadoptive relationship, over which the trial court maintains jurisdiction until adoption is finally decreed or denied. Since it is this res, not the consent agreement per se, which furnishes jurisdiction, repudiation of consent does not withdraw jurisdiction. By keeping jurisdiction, the trial court is fully able to inquire into the best interests of the child.

In light of the unique features of Alabama’s adoption statute, the in rem approach to jurisdiction is more appropriate. Jurisdiction attaches with the initial ac-knowledgement of consent by the natural parent, and, once the child is placed, remains despite attempts at revocation, so long as the child’s welfare is thereby furthered.

This is consistent with Graves, supra, and with Williams v. Pope, supra, wherein it was held that revocation of consent to adoption once the child has been placed is ineffective absent legal cause. The term “legal cause” mentioned in Williams v. Pope referred to prior or contemporaneous misconduct in the procurement of the consent, such that the consent could be considered void ab initio and to facts proving that revocation would be in the child’s best interest. There is no room for the suggestion that subsequent unilateral change of mind by the natural parent could amount to such legal cause.

With this context for consent, it is clear that the disabilities of nonage do not amount to such a legal cause as will support a finding that the consent was void at the outset. Minors’ obligations are not void, but voidable only, Sims v. Gunter, 201 Ala. 286, 78 So. 62. The undertaking of a minor is not totally ineffectual, it is merely unenforceable if later repudiated, Keller v. Ray Motor Co., 22 Ala.App. 252, 114 So. 422. The minor can elect to keep his agreement in force, but is not legally required to do so, Smoot v. Ryan, 187 Ala. 396, 65 So. 828.

The consent here was thus valid at the time it was given and remained so at the time the Turners took custody of the child. The subsequent attempt at repudiation, whatever its other possible effects, therefore does not withdraw the adoptive res from the trial court’s jurisdiction. The court had the jurisdiction to proceed to its final decree.

Finally, there is sufficient evidence for the trial court to find, as it did, that the child’s best interest lies with the Turners. There is no need to detail the evidence elicited at the various hearings reflecting negatively on Brenda’s marital conduct and immature attitude toward her responsibilities. Suffice it to say that, even crediting that testimony showing some recent improvement on her part, the evidence clearly tended to show the Turners to be better suited to parenthood than Brenda.

There being no reversible error in the record, the decree of the special probate judge is affirmed.

AFFIRMED.

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


author: EMBRY, Justice. JONES, Justice

text:
    In re Brenda Turner DAVIS v. Tom W. TURNER et al. Ex parte Brenda Turner Davis.
    SC 2022.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    Ronnie E. Keahey, Grove Hill, for petitioner.
    No appearance for respondent.
   EMBRY, Justice.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.

JONES, J., concurs specially.

ALMON, J., dissents.

JONES, Justice

(concurring specially):

I am in complete agreement with the holding of the Court of Civil Appeals, Ala. Civ.App., 337 So.2d 355; therefore, I agree to deny the writ. I disagree, however, with the final ground given by that Court for denying the natural mother’s revocation of consent for adoption of her child: “ . . . that the child’s best interest lies with the Turners.” The child’s best interest, as a matter of law, lies with its mother absent a finding that the mother is unfit to have custody of her child. Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939).


author: HOLMES, Judge.

text:
    Emma Jean Shepard SOKOLL v. HUMPHREY, LUTZ AND SMITH, a partnership, et al.
    Civ. 809.
    Court of Civil Appeals of Alabama.
    June 30, 1976.
    Rehearing Denied July 28, 1976.

      Sherman B. Powell, Jr., Decatur, for appellant.
    Humphrey & Smith, Huntsville, for ap-pellees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Madison County. The trial judge granted summary judgment for the defendants as to plaintiff’s claim, pursuant to Rule 56, ARCP. Plaintiff now appeals the trial court’s action to this court.

We conclude that defendants’ motion for summary judgment was improperly granted by the able trial judge, and reverse and remand the cause.

The record reveals the following pertinent facts:

Defendants are partners engaged in the practice of law. In November of 1966, plaintiff entered into a contract with defendants whereby defendants were to prosecute plaintiff’s claim for damages against the Chrysler Corporation. This claim was based on the common law and the Alabama Employers’ Liability Act. A contingent fee of 50% was provided by the contract.

Suit was subsequently filed against Chrysler Corporation in the United States District Court for the Northern District of Alabama. Chrysler Corporation moved for summary judgment on the ground that the action should have been brought as a workmen’s compensation claim. This motion was granted by the court with leave to amend the complaint to claim workmen’s compensation, which was done.

The litigation resulted in judgment being awarded in plaintiff’s favor in June of 1969, for total permanent disability under the Alabama Workmen’s Compensation Act. The court awarded defendants attorney’s fees of 15% of plaintiff’s recovery, pursuant to Tit. 26, § 261, Code of Alabama 1940. Chrysler Corporation appealed the judgment to the United States Fifth Circuit Court of Appeals, which affirmed the action of the trial court in July of 1970. A rehearing was subsequently denied by the Fifth Circuit Court of Appeals sitting en banc, and in September of 1970 defendants received payment of the judgment against Chrysler Corporation in the amount of $16,-685.15. Defendants deducted their expenses of $2,073.37 from the judgment monies and divided the remainder equally between plaintiff and themselves, each receiving $7,305.89.

Plaintiff in August of 1973 filed suit against defendant seeking to recover $5,073.12, which sum plaintiff alleged was wrongfully withheld by defendants from the judgment against Chrysler Corporation. Plaintiff based her contention upon the fact that defendants withheld 50% of her recovery, after deduction of expenses, as attorneys’ fees, although the federal district judge set a 15% attorneys’ fee under Tit. 26, § 261, Code of Alabama 1940. Defendants subsequently counterclaimed against plaintiff, alleging that she owed them money for services performed by them. In October of 1975, defendants moved for summary judgment in their favor as to both plaintiff’s claim and their counterclaims. Both parties submitted affidavits in connection with the motion, as provided by Rule 56, ARCP. The motion was granted by the trial court as to plaintiff's claim, and this appeal by plaintiff ensued.

The issue before this court, as presented by briefs of both parties, is: Does Tit. 26, § 261, Code of Alabama 1940, mandate that 15% of the amount of recovery is the maximum fee which an attorney may receive in a workmen’s compensation case where the fee is to be paid from the award? We answer in the affirmative, and reverse.

We initially note that defendants’ counterclaims were not ruled upon by the trial court in its disposition of the summary judgment motion, but were reserved, and as such are not before this court.

Rule 56, ARCP, providing for the summary judgment procedure, states in pertinent part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .”

Although the manner of agreement entered into between the parties is disputed the law which controls this case renders that dispute immaterial. That law is found in § 261 of Tit. 26, Code of Alabama 1940, which is part of the Alabama Workmen’s Compensation law and provides as follows:

“Legal Services. — No part of the compensation payable under article 2 of this chapter shall be paid to attorneys for the claimant for legal services, unless upon the application of a claimant to a judge of the circuit court such judge shall order or approve of the employment of an attorney by the claimant and in such event the judge upon the hearing of the petition for compensation shall fix the fee of the attorney for the claimant for his legal services, and the manner of its payment, but such fee shall not exceed fifteen percent of the compensation awarded or paid.”

This statute, which as noted above was relied upon by the federal district judge in the trial of plaintiff’s claim, provides for a maximum attorney’s fee in all workmen’s compensation cases where the fee is to be paid from the award. In such cases, it mandates that an attorney petition the trial court for approval of his employment by the claimant. Following trial of the claim the court is to fix the attorney’s fee. The fee so set is not to exceed 15% of the compensation awarded to the claimant.

The fee-limitation provision of § 261 has been upheld against constitutional attack in Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; and Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879. Limitation of attorneys’ fees in workmen’s compensation cases has also been upheld as a valid exercise of the police power by the United States Supreme Court in Yeiser v. Dysart, 267 U.S. 540, 69 L.Ed. 775, 45 S.Ct. 399. See also 159 ALR 912, 926; and 7 Am.Jur.2d Attorneys at Law § 252.

Fee-limitation in workmen’s compensation cases exists for reasons well stated in Larson, The Law of Workmen’s Compensation, § 83.11, as follows:

“When, however, this practice [the rule that one pays one’s own legal fees as attorney and client may contract] is superimposed upon a closely calculated system of wage-loss benefits, a serious question arises whether the social objectives of the legislation may to some extent be thwarted.. The benefit scales are so tailored as to cover only the minimum support of the claimant during disability. There is nothing to indicate that the framers of the benefit rates included any padding to take care of legal and other expenses incurred in obtaining the award.”

As the United States Supreme Court stated through Justice Holmes in Yeiser v. Dysart, supra:

“The Court adverts to the fact that a large proportion of those who come under the statute have to look to it in case of injury and need to be protected against improvident contracts, in the interest not only of themselves and their families but of the public. . . . ” (45 S.Ct. at 400)

In this instance, under the facts as shown above, the mandatory operation of § 261 renders ineffectual any contract between claimant and attorney as to fees. As was stated by the Alabama Supreme Court in the case of Gulf States Steel v. Christison, 228 Ala. 622, 154 So. 565, concerning the statutory predecessor of § 261:

“We think that the effect of that petition and order was to give record notice to the parties to the suit, that, regardless of any contract between plaintiff and his counsel, they were to be paid out of the award an amount to be fixed by the judge contingent upon the amount of such award.” [Emphasis supplied.] (228 Ala. at 627, 154 So. at 568)

That part of the contract between plaintiff and defendants which specified.a 50% contingent fee arrangement was thus of no force and effect once plaintiff’s claim was prosecuted under the Workmen’s Compensation Act. Accordingly, the maximum fee to which defendants were entitled was 15% of plaintiff’s recovery.

As seen by the above discussion, the learned trial judge erred to reversal by his granting of defendants’ motion for summary judgment. The case is therefore due to be and is reversed.

REVERSED AND REMANDED.

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


text:
    In re Emma Jean Shepard SOKOLL v. HUMPHREY, LUTZ and SMITH, a partnership, et al. Ex parte HUMPHREY, LUTZ and SMITH, a partnership, et al.
    SC 1992.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    Humphrey & Smith, Huntsville, for petitioner.
   HEFLIN, Chief Justice.

Petition of Humphrey, Lutz and Smith, a Partnership, et al. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Sokoll v. Humphrey, Lutz and Smith, a partnership, et al., Ala.Civ.App., 337 So.2d 362.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.