author: SHORES, Justice.

text:
    L. E. CAMPBELL, Individually and d/b/a All-Type Business Machines Sales and House of Typewriters v. REGAL TYPEWRITER CO., INC.
    SC 1607.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      Charles L. Howard, Jr., of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    Joe M. Berry and James T. Baxter, III, of Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellee.
   SHORES, Justice.

This controversy has been in litigation since March of 1971. It began when Regal Typewriter Company, Inc. (Regal) filed suit against L. E. Campbell, Individually and d/b/a All-Type Business Machines Sales and House of Typewriters (Campbell) claiming $87,585.25 due by verified account from August 7,1970. The first trial was to a jury, but the trial court withdrew the case from the jury and entered judgment for Regal. The trial court was reversed in Campbell v. Regal Typewriter Co., Inc., 291 Ala. 334, 280 So.2d 764 (1973).

The cause was remanded for a second trial which resulted in a mistrial.

In the present case, Regal claims damages in the amount of $87,664.24 for merchandise sold from August, 1969, through August, 1970. Campbell denied that he owed Regal any amount, said that the account was paid, pleaded accord and satisfaction, and the bar of the three-year statute of limitations. He also filed counterclaims which charged breach of an oral agreement for exclusive territory and damages for fraud and deceit in misrepresenting the price Campbell would pay for machines from Regal.

The case was tried to a jury which rendered a verdict in favor of Regal in the amount $94,812.45. Campbell appealed.

In 1969, Campbell met with representatives of Regal in Atlanta, Georgia, to discuss terms of an agreement under which Campbell would purchase all of Regal’s typewriters in seven southeastern states. Various terms of the contract were discussed between the parties in Atlanta, and it was agreed that the terms would be reduced to writing by Regal and forwarded to Campbell. Campbell began picking up the used typewriters immediately. Thereafter, on March 31, 1969, Regal sent to Campbell the written agreement, which essentially provided that Campbell would purchase all secondhand typewriters traded in against new Royal typewriters at various district offices located throughout the southeast. Campbell was to pay for all merchandise on a 30-day basis and was to pay any freight costs incurred in removal of the typewriters from the district offices. Regal agreed to accept charge-backs on incomplete and damaged machines, and Campbell was to make such machines available for inspection by Regal, if requested. Charge-backs were to be made within 60 days after Campbell took possession.

Regal also agreed that no “as is ” or secondhand typewriters would be sold directly by them in the seven states involved, and agreed to refer all requests for secondhand machines in this area to Campbell. The agreement provided that it was understood by Campbell that Regal had no restrictions on any of its wholesalers as to the areas in which its secondhand typewriters were sold. The price to be paid for these machines was determined by a wholesale list of current prices, which list Campbell had. The written agreement was said to contain the entire agreement between the parties.

When Campbell received the written agreement, he called Regal in Atlanta, objected to the 30-day terms, and insisted that he be given 90-day terms. He testified that he also questioned the meaning of a warranty provision set out in the agreement because he did not understand it, and still did not understand it at the time of the trial. The agreement was never signed, but both parties operated under the terms of it, Campbell being given 90-day terms instead of the 30-day term. They had no more discussion about the contract.

Campbell testified that, by the winter of 1969, he was not getting credit for his charge-back requests and complained to Regal about it. According to Campbell, he never did receive all of the charge-back credit. Regal denied that and its representative testified that Campbell received all of the credit to which he was entitled.

Also at about the same time, Campbell said he received information that Regal was selling to other wholesalers at prices substantially lower than Campbell was getting; and that, in the spring of 1970, he discovered that Regal had consummated a transaction with another wholesaler whereby that wholesaler was charged prices far below the unit prices being invoiced to Campbell. Regal denied this. Thereafter, Campbell made no further payments, stopped picking up the used machines, and advised Regal of his intention to terminate the agreement.

The transcript in this case is long and complex. There is evidenced much acrimony between the parties. On appeal, Campbell cites some one hundred and thirty issues to be considered by this court. To attempt to simplify the issues and in an effort to focus the parties on the major areas of contention on appeal, we granted a motion for a pre-hearing conference under the new rules of appellate procedure. See ARAP 33. Three members of this court constituted a panel before which the attorneys for both appellant and appellee appeared and agreed that the primary issues involved on appeal were in the areas which will be treated herein.

Campbell argues that he was prejudiced by the court’s failure to require Regal to make full and complete answers to interrogatories, to produce certain documents sought by Campbell, and should have imposed more stringent sanctions for Regal’s failure to fully answer interrogatories and produce documents. He also argues that the trial court abused its discretion in requiring him to answer interrogatories and requiring him to produce various documents at the motion of Regal, says that he should have been awarded expenses incurred by him by being required to make answers to various interrogatories, and should not have been subjected to deposition in the manner required by counsel for Regal.

The thrust of Campbell’s argument is that the court abused its discretion in allowing Regal greater discovery than was permitted Campbell.

As we have indicated, the record in this case is long, and it is replete with discovery motions of various kinds. Both sides sought, and were permitted, extensive discovery. Both were required to answer lengthy interrogatories, both were required to produce voluminous documents, and both were required to submit to deposition at the instance of the other. The trial court was very generous, properly so, in allowing exhaustive discovery by both parties. It finally entered an order requiring that all discovery be completed by a specific date. Neither party discovered all that was sought.

The Alabama Rules of Civil Procedure permit very broad discovery and the rules must be broadly and liberally construed. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975). However, ARCP 26(c) recognizes that the right of discovery is not unlimited, and gives the court broad power to control the use of the process and to prevent its abuse by any party. The rule does not allow an arbitrary limit on discovery, but instead vests the trial court with discretion in the discovery process. The question on review then becomes one of whether, under all of the circumstances, the trial court has abused this discretion. Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1957). In exercising its discretion, the trial court should be guided by the spirit of the rules, which is to permit full discovery so as to save time, effort and money and to expedite the trial with a view to achieving substantial justice for each litigant. First National Bank in Greenwich v. National Airlines, Inc., 22 F.R.D. 46 (D.C.N.Y.1958).

The particular details of the discovery process must necessarily be left to the sound discretion of the trial court. The court may enter appropriate orders under ARCP 26(c) and if necessary, on a showing of undue burden, it may order alternative means of discovery. Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973). Of course, the fact that it may be difficult to produce information which is discoverable is not a justification for disallowing the discovery of that information and the fact that it is frequently burdensome to answer extensive interrogatories is not sufficient alone for excusing a party from making such answers. Krantz v. United States, 56 F.R.D. 555 (D.C.W.Va.1972).

Applying these rules to the instant case, we conclude that, under the circumstances presented by the record before us, the trial court did not abuse its discretion. As indicated, discovery was extensive and was evenly allowed each party. Both were required to produce extensively. On occasion, the court required Regal to pay the expenses incurred by Campbell in meeting the discovery requirement. We find no reversible error in the court’s handling of the discovery process.

Campbell next contends that the trial court erred in permitting Regal’s witness, a Mr. Centracchio, to testify as to the amount which Regal contended was due on account from Campbell.

The record reflects the following:

“Q. Mr. Centracchio, I hand you what has been marked Plaintiff’s Exhibits 1 through 32, inclusive, and ask you if you have previously looked at those and gone through them?
“A. Yes, I have.
“Q. Mr. Centracchio, were those records records of Regal Typewriter Company kept in the regular course of business?
“A. Yes, they were.
“Q. Were they kept under your supervision and control?
“A. Yes, sir.
“Q. Do those records accurately and truly reflect the amount of money due, owing and unpaid from Mr. L. E. Campbell to Regal Typewriter Company?
“MR. HOWARD: We object to the form of that question, if the Court please, and to the lack of predicate for the testimony that is now called for.
“THE COURT: Overrule.
“Q. Mr. Centracchio, what is the total amount owed by Mr. L. E. Campbell to Regal Typewriter Company, as reflected by the records of Regal Typewriter Company?
“MR. HOWARD: We object to that, if the Court please, the witness is going to sit there and read from an instrument
“THE COURT: Overrule.
“A. The account is $87,585.25.”

Campbell contends that Mr. Centracchio was not qualified to testify as to the amount owed because the invoices, Exhibits 1 through 32, constitute the best evidence of the amount due from Campbell to Regal. In making this argument, Campbell relies upon Bear v. Swift & Co., 259 Ala. 668, 68 So.2d 718 (1953). In that case, this court held that a witness, who had no personal knowledge of the ledger sheets, which were not in evidence, was erroneously permitted to state the amount the defendants owed to the plaintiff. The court held:

“The said ledger sheet was the best evidence of what it portrayed and the witness . . . should not have been permitted, over the objection of the defendants, to testify as a conclusion that the defendants owed the plaintiff the sum indicated on the paper. [Citations Omitted].” (259 Ala. at 670, 68 So.2d at 720.)

There is a distinction here, however. The invoices were in evidence. Mr. Campbell admitted that he had received them and that he had no record that they had been paid. The invoices were properly predicated under Title 7, § 414, Code. The witness was authorized to state what those invoices reflected as the amount due.

Campbell asserts that the trial court erred in charging the jury with respect to the statute of frauds, as contained in § 2-201, U.C.C. Campbell’s contention at trial was that the written agreement drawn after the meeting of the parties in Atlanta did not constitute the entire agreement between the parties. He contended that the agreement reached between them actually included terms which were not incorporated into the written agreement. In that regard, the court charged the jury as follows:

“Ladies and gentlemen, in this case it is for you to determine what the contract was between the parties if, in fact, there was a contract between these parties and it is for you to determine the terms of such contract. In connection with this, I will read to you a certain portion of our Uniform Commercial Code and in connection with the reading of that codification, I will say to you that the fact that I read it to you does not mean that it is applicable in this case. It is for you to determine whether or not such section applies but I will charge you that within the meaning of the section I will read to you, both of these parties, the plaintiff and the defendant, were merchants as the term is used in the section. As I say to you, our Uniform Commercial Code has a provision which you may or may not find to be applicable in this case, depending on what you find the true facts to be. . That section provides:
“ 'Except as otherwise provided in this section, a contract for the sale of goods for the price of $500.00 or more, is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought, or by his authorized agent or broker. A writing is not sufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in the writing.’”

The court went on to restate that the jury was the trier of fact, and it was left to the jury to determine whether the writing constituted the entire agreement between the parties. It was Campbell who contended, in one of his counterclaims, that Regal was liable to him for breach of contract. Regal defended that claim by asserting the written agreement. Campbell denied that the writing included the full agreement between the parties. This constituted a direct conflict in the evidence, which the court properly submitted to the jury. We find no error to reverse on this ground.

We agree with Campbell that he was entitled to go to the jury on his claims of fraud. Campbell asserted that Regal had fraudulently entered into the agreement with him, having no intention of performing its part of the contract. He was entitled to have this issue submitted to the jury, whether or not the agreement was in writing. See Clanton v. Scruggs, 95 Ala. 279, 10 So. 757 (1891).

Campbell contends that the court improperly charged the jury on the statute of limitations referable to the fraud. After defining for the jury the elements of fraud, and the burden of proof, the trial court charged the jury:

“As a second defense to the counterclaim based upon fraud, the plaintiff has asserted the statute of limitations of one year. The counterclaim which asserts the alleged fraud was filed in this action on August 28, 1974. The statute of limitations under our law provides that an action based on fraud must be brought within one year of the date when the cause of action of fraud accrues. This one year statute of limitations in our state is subject to limitation which is found at Title 7, Section 42 of our Code and I will read that to you. Now, the fact that I read this section to you does not connote to you and should not be taken by you as meaning or implying that it is applicable in this case. It is for you to determine whether or not it applies considering all of the facts.
“. . . ‘In actions seeking relief on the grounds of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.’
“Now, of course, as I told you, the fact that I read that to you does not mean it applies in this case. This section . would have no application in this case if the defendant knew of or discovered his right of action founded on fraud more than one year before August 28, 1974.
“The discovery or notice of any alleged fraud does not mean actual notice. Of course, a fraud is deemed to be discovered within contemplation of our law when it is readily discoverable or when a party is put on notice thereof. It is for you to determine whether the statute of limitations creates a bar to the counterclaim founded on fraud in this case.”

Campbell objected to the court’s oral charge stating “. . . the defendant excepts to the portion of the oral charge in which the Court stated that the statute of limitations would apply in this case, in that this being a counterclaim arising out of a transaction relied upon by the plaintiff in this case, the limitation would not apply . We except to the charge of the Court restricting the time of discovery to one year prior to August 28, 1974 . .”

Campbell asserts here that the counterclaims for fraud are not subject to the one-year statute of limitation. The last sentence of ARCP 13(c) provides: “All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff’s claim arose.” According to the Committee Comments, the inclusion of this relation back of counterclaims was to harmonize with Title 7, § 355, Code, which provides:

“When the defendant pleads a set-off to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his set-off, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in suit.”

The significance lies in the distinction between recoupment and set-off. Alabama law is consistent with the statement in City of Grand Rapids, Mich. v. McCurdy, 136 F.2d 615, 619 (6th Cir. 1943):

“. . . Recoupment differs from set-off mainly in that the claim must grow out of the same transaction which furnishes the plaintiff’s cause of action, and is in the nature of a claim of right to reduce the amount demanded. Recoupment goes to the justice of the plaintiff’s claim, while set-off is not necessarily confined to the justice of such particular claim. . . . ”

See Norton v. Bumpus, 221 Ala. 167, 127 So. 907 (1930); Walker v. McCoy, 34 Ala. 659 (1859); and Mauldin, Montague & Co. v. Armistead, Ex’r, 14 Ala. 702 (1848).

A counterclaim in the nature of a set-off is subject to applicable statutes of limitation in accordance with Title 7, § 355, supra, as per ARCP 13(c), supra. Counterclaims in the nature of recoupment are not defeated by the general statutes of limitation. See Anno. 1 A.L.R.2d 630, 666.

Harton v. Belcher, 195 Ala. 186, 70 So. 141 (1915), was an action upon a promissory note to which the defendant pleaded two pleas of recoupment alleging that the defendant was defrauded and deceived by the plaintiff in the sale of timber and lands for which the note was given. Responding to the contention that the pleas were defective in failing to show that they were not barred by the statute of limitation, this court said:

“. . . Defendant’s claim sprung out of the contract between the parties and affected the considerations moving between them; it ran with the contract, so to speak, and, so far at least as it went to the consideration, as it did in the case here, defendant might rely on it without regard to the statute of limitation. So long as the contract, upon a breach of which the claim is predicated, subsists, and may be enforced, the claim itself may be pleaded in reduction, at least, of the demand on the contract; and this notwithstanding the matter of recoupment, independently considered, may be barred, not only when it is pleaded, but also when the right of action, against which it is asserted, accrued. [Citation Omitted].” (195 Ala. at 190, 70 So. at 142.)

This states the rule generally followed in this country. The following appears at 1 A.L.R.2d 666, 667:

“Almost without exception the cases which deal with recoupments, so recognized and named, run to the effect that if a defendant’s claim is in fact a recoupment the general statutes of limitation do not defeat it; on the contrary it may be availed of defensively so long as plaintiff’s cause of action exists.”

See also: Wilson v. Montgomery Bank & Trust Co., 203 Ala. 340, 83 So. 64 (1919).

The ARCP has not altered this general rule. The adoption of ARCP 13 has made matters of recoupment the subject of compulsory counterclaims and has not affected matters of set-off which are the subject of the limitation expressed in ARCP 13, which embodies the provisions of Title 7, § 355, Code.

Clearly, the matter asserted by Campbell in this case grew out of and was a part of the transaction sued on by Regal. It constitutes a compulsory counterclaim under Rule 13, ARCP. Therefore, his claim cannot be defeated by the general statute of limitations for fraud actions. The trial court, therefore, erred in so charging the jury; and, for that reason, the judgment appealed from must be and the same is reversed and remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, EM-BRY and BEATTY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    SOUTHLAND OF ALABAMA, INC., a corporation v. JULIUS E. MARX, INC., a corporation, etc., et al.
    SC 1711.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      John W. Parker, of Tonsmeire, McFadden & Riley, Mobile, for appellant.
    Benjamin H. Kilborn, Mobile, for appellee Julius E. Marx, Inc.
    John A. Courtney, Mobile, for appellee Hartzog Broadcasting, Inc.
   BLOODWORTH, Justice.

Plaintiff appeals from a judgment for defendants on their counterclaims for breach of a lease and of a contract. We affirm.

In July 1971, defendant, Hartzog Broadcasting, Inc., (lessee) assigned its lease on a suite of offices in the Milner Building in Mobile to plaintiff, Southland of Alabama, Inc., (assignee) as part of a transaction in which Hartzog (lessee) also sold radio station WLIQ to Southland. Defendant Julius E. Marx, Inc., (the owner’s leasing agent, herein “lessor”) had leased the offices to Hartzog (lessee) in 1970 for a term of five years ending June 30, 1975. The rent was $610 per month, $305 to be paid in cash and $305 to be paid in advertising time.

The lease provided that the rent would be paid promptly when due, that the lease could be assigned only with the written consent of the lessor, and that in the event of an assignment of the lease the lessee would remain liable for payment of the rent for the entire term.

On February 26, 1972, Marx (lessor) wrote Southland (assignee) declaring the lease in default for late payment of rent, for failure of Hartzog (lessee) to obtain written consent to the assignment of the lease, and for Southland’s failure to confirm that the lessor had the right to use the “past due” advertising time. The letter declared the lease terminated, ordered the premises vacated within thirty days from March 1, and demanded $610 per month in cash for the duration of Southland’s occupancy.

Southland (assignee) did not vacate the offices within the time set, but, after negotiations with Marx (lessor), began paying $610 per month in cash. Southland (assign-ee) deducted $304 per month from its payments to Hartzog (lessee) on the contract for the sale of WLIQ in order to pay the increased cash rental.

In February 1973, Southland (assignee) vacated the premises without giving Marx (lessor) oral or written notice.

Marx (lessor) then filed suit against Southland (assignee) on the lease to collect the rent for February and March 1973. Whereupon, Southland (assignee) brought this present action against Marx (lessor) and Hartzog (lessee) for an injunction against the action brought by Marx and for a declaratory judgment adjudging: that the assignment was binding on Marx in spite of Hartzog’s failure to obtain written consent; that Marx breached the lease; that Marx’s letter of February 16, 1972, terminated the lease; that Marx’s breach was caused by Hartzog’s failure to obtain written consent for the assignment; and, that Hartzog’s failure was a breach of the contract for the sale of WLIQ. Marx (lessor) counterclaimed for the amount due on the lease, and Southland (assignee) implead-ed Hartzog (lessee), who counterclaimed for the amount due on the contract of sale.

The trial court denied the equitable relief sought by Southland (assignee) and awarded Marx (lessor) $19,459 and Hartzog (lessee) $13,084. (Apparently, $9,729 of the award to Hartzog (lessee) was intended as reimbursement for a judgment which Marx (lessor) was awarded against Hartzog (lessee) on a cross-claim based on Hartzog’s liability for payment of rent for the entire term of the lease.)

Southland (assignee) appeals.

I. Marx’s Counterclaim Against Southland

Southland (assignee) urges this Court to declare that the lease was terminated as of February 16, 1972, when Marx (lessor) wrote Southland declaring the lease in default and terminated, and that thereafter Southland was a tenant-at-will, liable only for actual use and occupation of the premises, which terminated in February 1973.

The trial court found that, after the negotiations, Southland (assignee) agreed to pay $610 per month cash rental for the remainder of the lease term. On the basis of this finding, the trial court concluded that the lease was not terminated on February 16, 1972, but that it was modified, and that the modification affected only the rental provisions of the lease.

The trial court’s finding was based on the following evidence: a letter from South-land (assignee) to Hartzog (lessee) stating that it was going to pay Marx (lessor) $610 cash per month and was going to deduct $305 per month from its payments to Hart-zog and that it hoped that a better arrangement could be worked out but it was about to be evicted; a letter from Marx (lessor) to Southland (assignee) acknowledging receipt of a copy of Southland’s letter to Hartzog and stating that Marx agreed to accept $610 per month cash for the remainder of the term; testimony that Marx permitted Southland to continue to pay $305 for an additional month only because it expected Southland to remain for the entire term; and, Southland’s payment of $610 per month through January 1973.

Southland urges this Court to declare that any attempt to revive the original lease after its termination or to create a new lease at the increased cash rental was barred by the statute of frauds, since there was no writing signed by Southland, the party to be charged. Southland contends that the doctrine of part performance does not avoid the requirement of a writing in this case because its continued occupation of the premises was attributable to a tenancy by the month, not to a revival of the original lease.

The heart of Southland’s argument is that Marx’s letter of February 26, 1972, terminated the lease as a matter of law and that consequently Southland’s holding over must be attributed to a new agreement. We do not agree.

Notice to vacate leasehold premises may be waived or revoked by the landlord with the consent of the tenant. Speer v. Smoot, 156 Ala. 456, 47 So. 256 (1908); Annot., 120 A.L.R. 557; 51C C.J.S. Landlord and Tenant § 89(7). Cf. W. H. Kirkland Co. v. King, 248 Ala. 643, 29 So.2d 141 (1947). Therefore, such notice does not necessarily terminate a lease.

In this case, the notice to vacate was never enforced by lessor Marx. To the contrary, Marx (lessor) accepted payments of rent subsequent to the date given in the notice for vacating the premises and stated in a letter to Southland (assignee) that it would accept $610 cash per month for the remainder of the term of the lease. Marx’s actions constituted a waiver or revocation of its notice to vacate. Speer v. Smoot, supra.

Furthermore, the trial court’s finding that Southland agreed to pay $610 cash for the remainder of the term indicates that Southland consented to Marx’s revocation or waiver of its notice to vacate.

Although the issue as to whether South-land (assignee) did consent to a continuation of the lease or to a month-to-month tenancy is disputed, we cannot say that the trial court’s finding is clearly erroneous. See Rule 52(a) ARCP. In fact, Southland’s failure to disclaim any intention to stay for the remainder of the term upon receiving Marx’s letter stating that Marx agreed to accept $610 cash per month for the remainder of the term is strong support for the trial court’s finding.

Modification of the terms of a lease upon the insistence of the landlord is not a repudiation of the lease by the landlord and thus does not prevent a waiver or revocation of notice to vacate. Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552 (1921).

Because Marx’s notice to vacate was revoked or waived, the lease was not terminated. Consequently, there was no new agreement and no need for an additional writing to satisfy the statute of frauds.

Further, there was no need for a writing evidencing the modification of the terms of the lease, because a lease may be modified by oral agreement. Rudder v. Trice, 236 Ala. 234, 182 So. 22 (1938); Messer v. Dupuy-Burke Realty Co., 226 Ala. 438, 147 So. 193 (1933).

II. Hartzog’s Counterclaim Against Southland

Southland (assignee) urges this Court to declare that Hartzog (lessee) breached its contract with Southland by failing to obtain the written consent of Marx (lessor) to its assignment of the lease and that Hartzog is therefore liable to Southland for $305 per month for twelve months, the amount of its increased cash payments to Marx.

The trial court found that Marx had waived the requirement by accepting rent from Southland for several months and concluded that Southland’s liability to Marx was caused by its own failure to pay its rent on time and not by Hartzog’s failure to obtain written consent. The trial court thus held that Hartzog was entitled to recover $3,355, the amount withheld by Southland. Southland relies on the statement in Marx’s letter that Hartzog’s failure to obtain consent was a reason for its declaring default in February 1972.

We agree with the trial court. A lessor, who, knowing of the assignment of a lease, accepts the assignee as substituted lessee by receiving rent from him without objection, is held to have consented to the assignment. City Garage & Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257 (1926).

Thus, even though Marx cited Hart-zog’s failure to obtain its consent to the assignment as a reason for its notice of termination of the lease, Hartzog’s failure to obtain Marx’s consent was not a valid basis for forfeiting the lease and thus could not constitute a breach of Hartzog’s contract with Southland.

Furthermore, Southland’s argument is based on the theory that Marx breached the lease by declaring forfeiture, but, as the trial court found, Marx had good reason for declaring forfeiture, viz., Southland’s chronic tardiness in paying its rent. Since Marx did not breach the lease, Hartzog could not be liable for causing Marx to breach the lease.

AFFIRMED.

JONES, EMBRY and BEATTY, JJ., and CATES, J., sitting by designation of the Chief Justice, concur.


author: MADDOX, Justice.

text:
    Santoney McGUIRE et al. v. WHITEWATER MISSIONARY BAPTIST CHURCH.
    SC 1747.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    E. C. Orme, Orme & Faulk and Richard Calhoun, Brantley & Calhoun, Troy, for appellants.
    N. J. Cervera, Cervera & Folmar, Troy, for appellee.
   MADDOX, Justice.

Santoney McGuire and Ozellar McGuire (defendants below), appeal from an adverse judgment in a quiet title proceeding. The trial court heard the evidence ore tenus, and entered a decree awarding the disputed property to the Trustees of the Whitewater Missionary Baptist Church. We affirm.

The disputed land adjoins the church grounds and in the plaintiff’s amended complaint is described as follows:

“All that part of the Northeast quarter of Northeast quarter, Section 1, Township 8, Range 21, lying east of the Ozark road running from Troy to Ozark via Hilliards Crossroads in Pike County, Alabama . . . ”

The facts are undisputed that on March 3, 1906, T. E. Murphree and wife, Willie P. Murphree, executed a deed conveying the above-mentioned property to the Trustees of the Whitewater Colored School and their successors in office. On October 6, 1973, Charlie McGuire, as sole surviving trustee of the Whitewater Colored School, conveyed by deed this tract to the Whitewater Missionary Baptist Church. Subsequently, the church asked the trial court to reform the deed to the extent that the grantee would be shown as the Trustees of Whitewater Missionary Baptist Church.

In their amended answer, the McGuires claim title to the tract by virtue of a deed executed to them on January 25, 1974, by the Pike County Board of Education.

The basic issue on appeal is whether the reformed deed from Charlie McGuire to the Trustees of the Whitewater Missionary Baptist Church, dated October 6, 1973, and recorded in the office of the Judge of Probate of Pike County on October 8, 1973, conveyed a title paramount to the recorded deed of January 25, 1974, from the Pike County Board of Education to the McGuires. The court found that it did. We affirm.

Defendants contend that plaintiff failed to allege and prove peaceable possession. We cannot agree. Furthermore, the McGuires argue that Tit. 52, §§ 61(16) and 71, Code of Alabama 1940 (Recompiled 1958), had the effect of transferring and vesting legal title to the Pike County Board of Education. The trial court held otherwise. We affirm the trial court because under the evidence in this case, the property never vested by law in the public school authorities of Pike County. There was evidence to support the trial court’s finding that the Whitewater Colored School was privately owned. Admittedly, during the years that the school remained open, the Pike County Board of Education paid teachers’ salaries and furnished textbooks. The school closed its doors sometime between 1955 and 1956. However, the evidence is uncontradicted that the Pike County Board of Education made no claim to the property until it executed the deed to the McGuires in 1974. W. C. White, a deacon of Whitewater Missionary Baptist Church, testified that since the school was closed, it had not been used for anything other than as a church. Furthermore, B. C. Botts, former superintendent of the Pike County Board of Education during 1955 to 1967, testified that the property did not belong to the Board of Education, but was in the name of the local trustees. In addition, the records of the bookkeeper of the board reveal that the board made no disposition of the property. Botts further testified that it was his understanding that after the school was closed the property went back to the original owner.

Having considered the evidence, we find that the Pike County Board of Education did not have the authority and power to sell and convey by deed to the McGuires the disputed tract of land. The trial court’s decree is supported by the evidence; and, in our opinion, its award of title to the property in question to the trustees of the Whitewater Missionary Baptist Church is correct.

AFFIRMED.

FAULKNER, SHORES and BEATTY, JJ., and EMBRY, FRANK, Supernumerary Circuit Judge, sitting by designation, concur.


author: PER CURIAM.

text:
    Gerald W. HARPER v. BAPTIST MEDICAL CENTER-PRINCETON and G. Barnett Hardy.
    SC 1870.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      Grover S. McLeod, Birmingham, for appellant.
    Lawrence B. Clark, Birmingham, for ap-pellee, G. Barnett Hardy.
    Roy W. Scholl, Jr., Birmingham, for ap-pellee, Baptist Medical Center-Princeton.
   PER CURIAM.

This is an appeal from an order granting defendant’s motions for directed verdict. Whether the trial court was correct in granting the motions is the principal issue in this case. We hold that he was, and affirm his order.

On October 28,1974, Gerald Harper interrupted his journey to work by parking his car and visiting with some friends. His visit over, he tried to start his engine. Nothing happened. He jumped the switch, and by doing so, the safety mechanism preventing movement while in park position was by-passed. When the engine started, the car moved forward and pinned him against the wall of a building. He was taken to the emergency room of the Baptist Medical Center-Princeton by an ambulance. There he was diagnosed by a staff orthopedic surgeon as having a severed popliteal artery just below the knee.

Emergency room treatment of Harper was provided by Baptist, but it would not admit him as a patient upon learning that he did not have hospital insurance. After remaining in the Baptist emergency room for about 4 hours, Harper was transferred to Mercy Hospital, a charitable institution. There, he underwent surgery.

Harper has a permanent foot drop. He walks with a limp, and allegedly is in constant pain. His malpractice suit against Baptist and G. Barnett Hardy, M.D., alleges negligence in their treatment, or their refusal to treat his injuries. Baptist and Hardy contend that they were under no duty to accept Harper as a patient, and deny the negligence alleged against them.

Neither Baptist nor Hardy owed a duty to Harper to provide him medical care because they had not accepted him as a patient before sending him to Mercy Hospital. See Birmingham Baptist Hospital v. Crews, 229 Ala. 398, 157 So. 224 (1934). The facts do not show that Harper was admitted to Baptist. An ambulance took him to the Baptist emergency room where he was given medication for pain and examined by a staff orthopedic surgeon. An admissions officer asked him whether he had hospital insurance. Determining that he did not, she explicitly stated that he could not be admitted without insurance. At no time was Harper told that he had been admitted to Baptist.

This court, in Crews, held that evidence showing that an ill child was brought to a private hospital where she was given medication and oxygen, but then was sent away with advice to see her family physician, did not justify a finding that the hospital undertook to render service. In both Crews and this case, there was no evidence that the medication or treatment received at the hospital, created a condition which was the proximate contributing cause of the patient’s permanent condition. The treatment rendered by Hardy and Baptist was not known to be likely to, and did not, create a condition which was extremely dangerous without further service. All of the evidence, including the only expert testimony, that of Harper’s own witness, shows that Hardy and Baptist followed the proper procedures and administered the proper treatment, and that the after-effects complained of resulted solely from the initial injury.

The expert witness testified on cross-examination as follows regarding the injury:

“Q. Doctor, is it your opinion that Mr. Harper’s foot drop and his present condition is due to the automobile accident?
“A. I think that it is, yes.”

The burden of proof to establish negligence in a medical malpractice case is on the plaintiff. Berry v. Robertson, 285 Ala. 623, 235 So.2d 657 (1970). “A showing that an unfortunate result has followed does not of itself shift the burden of proof;” the patient in a malpractice case must still show negligence. Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969). And, Harper has not presented any evidence of negligence of Baptist and Hardy. His present state, as his evidence shows, is the result of the accident.

There are two other issues presented for review in this appeal:

1. Whether medical articles were properly authenticated so as to be admissible.
2. Whether an expert witness should have been permitted to testify without the benefit of hypothesis.

1

The trial court did not commit reversible error by refusing to admit into evidence Exhibits 2-6 which were articles from medical journals. To be authenticated for admission, a scientific treatise must be “testified to by an expert as being a standard and trustworthy” in the profession (Berry v. Robertson); and it must be relevant to the facts and issues at bar. Occidental Life Ins. Co. v. Nichols, 266 Ala. 521, 97 So.2d 879 (1957). Exhibit 2 was properly excluded as it was not shown to be a standard. Exhibits 3-6 were found by the lower jcourt to be irrelevant. The determination of the relevancy of the evidence rests largely in the discretion of the court and its ruling will not be reversed on appeal unless it is plain that error was committed. Occidental Life Ins. Co. Harper has not shown why we should not follow the determination of the trial court.

Moreover, if any error did occur, it was merely harmless error. “[A]n error in excluding evidence as to a certain fact is harmless where the fact is established by other evidence.” McLemore v. Alabama Power Co., 289 Ala. 643, 648, 270 So.2d 657, 660 (1972). Harper’s Exhibit 7 was admitted and Harper’s expert witness admitted that Hardy did not depart from the standards of treatment established by that work. Since one of Harper’s exhibits showing the standard of treatment was admitted, Harper cannot be heard to complain.

2

The trial court did not commit reversible error by requiring Harper’s attorney to use hypothetical questions to solicit expert testimony as to the issue of the standard of care. A trial court’s ruling on this matter will not be disturbed on appeal absent a showing of abuse of discretion. Barfield v. Wright, 286 Ala. 402, 240 So.2d 593 (1970). There was no abuse of discretion here.

As stated recently by this court in Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974),

“An expert may give his opinion based upon his own knowledge of the facts, stating these facts, then his opinion; or, he may give an opinion based upon a hypothetical question, based upon facts in evidence.”

The court did not prevent Harper from fully examining his witness, but only from using improper questioning. The use of hypothetical questions was an avenue open to Harper from the beginning of the trial and was suggested by the court numerous times as the proper mode of examination. In fact, Harper’s attorney did use hypothetical questions without objection and was able to present his case fully and without harm. Thus, Harper failed to show that the court abused, its discretion.

The motion for directed verdict was properly granted.

AFFIRMED.

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


text:
    William Russell GREENFIELD, M.D. v. Leon HAMRICK, Chairman of the Board of Medical Examiners.
    SC 1920.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    James Jerry Wood, Montgomery, for appellant.
    John T. Mooresmith, Montgomery, William J. Baxley, Atty. Gen., and James R. Cooper, Jr., and L. G. Kendrick, Asst. Attys. Gen., for appellee.
   MADDOX, Justice.

Dr. William Russell Greenfield’s certificate to practice medicine was revoked by the Alabama State Board of Medical Examiners when the Board received a copy of Greenfield’s conviction in federal court for unlawful distribution of controlled substances. The Board gave Greenfield no notice or an opportunity to be heard prior to revoking his certificate. He claims this procedure denied him due process of law. We agree.

The Board seeks to sustain its action on two theories. First, it contends that Greenfield’s due process rights were not violated because he was accorded a full, fair and impartial hearing in the trial court. The Board also contends that Title 46, § 277, Code, 1940, authorizes it to revoke or suspend a certificate based on the receipt of a certified copy of a judgment of conviction of crime. We disagree with the Board in both instances.

We hold that § 277, insofar as it authorizes a revocation or suspension without notice and an opportunity to be heard, is unconstitutional.

Act No. 161, § 6, May 2, 1975, which amended Title 46, § 271, Code, establishes a procedure which comports with due process requirements. It should be followed.

The order of the Board of Medical Examiners is reversed and set aside. Title 46, § 278, Code 1940, Recomp. 1958, as amended.

REVERSED AND RENDERED.

FAULKNER, SHORES and BEATTY, JJ., and SIMMONS, BOWEN, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.

      . “Certificate of qualification suspended or revoked. — Whenever it has been established by the judgment of a court of competent jurisdiction that a physician, osteopath or chiropodist has committed any of the acts, or come within any of the disabilities enumerated in section 270 of this title, the filing of a certified copy of such judgment with the board shall be sufficient to justify the suspension or revocation of his certificate of qualification without further hearing (unless the board is of the opinion that fairness to said practitioner requires that a regular hearing be held); and of such action the state licensing board for the healing arts shall be advised.”


author: EMBRY, Justice.

text:
    Cammie Olivia BRASHER et al. v. The CITY OF BIRMINGHAM, a Municipal Corp.
    SC 1959.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      William W. Smith, Birmingham, of Earl R. Peyton and Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Thomas P. Anderson, Birmingham, for appellee.
   EMBRY, Justice.

The question before us in this case is whether failure to file a claim with the City Clerk of Birmingham, as required by Tit. 62, § 659, Code, under any set of circumstances, is fatal to the pursuit of negligence actions against the City. We hold it is not and reverse summary judgments in favor of the City.

Plaintiffs, the Brashers, filed suits against the City of Birmingham for damages on account of injuries allegedly received by Mrs. Brasher in a fall on a City sidewalk on 26 December 1974. In spite of the clear language of the statute, the lawyer filed notices of the claims against the City March 25, 1975, with the Mayor’s Office, along with a request that the Mayor forward such notices to the City’s Legal Department. Plaintiffs filed suits October 3,1975. The cases proceeded until this year when the City’s motions for summary judgments were granted and judgments entered accordingly.

The pertinent statute states:

“No suit shall be brought or maintained * * * against the city on a claim for personal injury * * * unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto * * * ”

Compliance with the provisions of this statute is a condition precedent to bringing suit. But, it is sufficient if there is substantial compliance, and the statute will be liberally construed in an effort to determine whether a claimant has so complied with its requisites as to serve the purpose of the statute. Alibritton v. City of Birmingham, 274 Ala. 550, 150 So.2d 717 (1963).

Its purpose is to provide sufficient notice so that the City has an opportunity to investigate the claim, prepare its defenses or negotiate a settlement. Ray v. City of Birmingham, 275 Ala. 332, 154 So.2d 751 (1963). In another case, City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), the claimant failed to file a sworn statement with the city clerk, but instead, wrote a letter to the mayor informing him of the claim. Although that case differs from the present one in that it went off on an estoppel theory when it was shown that the city had actually mislead claimant as to the sufficiency of his notice, it is authority for us to say that compliance with the statute as to with whom notice was filed may not be subject to a test of technical accuracy. In keeping with the purpose of the statute, plaintiffs should be permitted to develop facts which would indicate the City did have benefit of notice; therefore there was either substantial compliance with the statute or the City is estopped to deny there was.

When the Brashers’ attorney filed an affidavit showing that notice of claim was given the Mayor’s Office, with a copy to the City’s Legal Department, no additional matter was presented by the City, as movant, to show there was no genuine issue of a material fact and it was entitled to judgment as a matter of law. No additional facts were shown that would preclude the Brashers’ right to recover under a cognizable theory of law: the City had received benefit of the notices, there was substantial compliance with the notice of claim statute and facts estopping the City from asserting a defense by reason of that statute. See Weldon, supra; Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975), and Ray v. Midfield Park, Inc., 289 Ala. 137, 266 So.2d 291 (1972); Rule 56, ARCP.

Accordingly, we reverse the ruling of the trial court granting summary judgments and remand.

REVERSED AND REMANDED.

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


author: MADDOX, Justice. JONES, Justice

text:
    Brett WEATHERBY, who sues by and through his father and next friend, Michael E. Weatherby v. Larry B. MEREDITH and Kaye C. Meredith.
    SC 1976.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Frank 0. Burge, Jr., and Van Gamble, Birmingham, for appellant.
    Duncan Y. Manley, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
   MADDOX, Justice.

Plaintiff, Brett Weatherby, almost three years old at the time of his accident, broke his leg while playing on a swing-set in defendant’s backyard. The trial court, after considering the pleadings, depositions and other evidence, granted the defendant’s motion for summary judgment.

The facts, briefly, are as follows: On April 11, 1974, young Brett went with his mother and sister to his aunt’s house. Plaintiff’s aunt, Barbara Thompson, lived next door to the Merediths (the defendants). Someone at the Thompson residence called defendant Kaye Meredith and they decided to play cards at the Merediths’ house. Upon their arrival at the Merediths, Margaret Weatherby, Barbara Thompson and Donis Reed began playing cards with Kaye Meredith at the dining room table. Young Brett, his sister, Michelle, Tracy Reed and defendants’ two children, Brian and Christy, went out into the backyard to play.

At the time of the accident, plaintiff, his sister, Michelle, Tracy Reed and Brian Meredith, were in the backyard. Michelle was six years of age and the oldest child playing in the backyard. From where the adults were seated in the house, they could not see the children playing in the yard at the time of the accident. The adults were first alerted of plaintiff’s accident when they heard crying. Shortly thereafter, Michelle came to the door to inform her mother that Brett had been hurt. In her deposition testimony, Michelle stated that at the time of the accident, she and Tracy Reed were on the glider swing-set and that it was going fast. Plaintiff placed his foot on the floor of the glider while it was still going, but she did not know what caused him to get hurt.

Plaintiff, who was four years of age at the time he was deposed, testified that he did not remember how he was hurt. Both Margaret Weatherby and Barbara Thompson testified; however, their testimony as to how the accident occurred is based solely on an account of the accident as related to them by the children. Mrs. Weatherby testified that Michelle told her that Brett got his leg caught under the glider portion of the swing as he tried to get on and that the children could not stop the swing.

Young Brett claims that the Merediths were negligent in placing the legs of the swing-set too deep in the ground, thereby causing the swing floor (place where a person’s feet would rest while seated in the glider swing) to be so close to the ground that it actually dug out a hole in the ground under it.

One of the deponents testified that she heard two or three different tales as to how the accident occurred: (1) plaintiff was pushing the swing when he got hurt; (2) Michelle and plaintiff had a fight; and (3) the swing hit plaintiff while he was trying to get on. The record shows that plaintiff and the other children had used the swing set on other occasions and there was testimony that no other children had been hurt.

On appeal, plaintiff urges that summary judgment was inappropriate because he could have amended his complaint to allege a cause of action under the so-called “dangerous instrumentality doctrine,” set out in Section 339, Restatement of Torts 2d (1965) and adopted in Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976).

Section 339 sets forth five conditions all of which must be met to fall within the dangerous instrumentality doctrine. Section 339(b) requires that the condition upon the landowner’s premises be one which:

“. . . the possessor knows or has reason to know and which he realizes will involve an unreasonable risk of death or serious bodily harm to such children.” (Emphasis added.)

The swing-set in question consisted of a platform swing, two ordinary swings, a glider, and a slide. This Court judicially knows that swing-sets of this type are commonly used.

Under plaintiff’s theory of liability, the question presented is whether the defendants should have reasonably anticipated that an unreasonable risk of death or serious bodily harm would result from the condition of maintaining a swing-set on their property in the manner shown. Reasonable minds may differ as to whether an air rifle that may have been cocked and ready for firing constituted an obviously dangerous condition with which children were likely to come into contact, as was the case in Tolbert. In this case, however, when we consider whether defendants should have reasonably anticipated the injury and taken steps to guard against it, we find from the evidence presented that the swing-set in question could not be considered a dangerous instrumentality. We recognize that normally the question of whether an instrumentality is dangerous is for the jury. Here, however, the depositions, along with the diagram of the glider and the photograph of the swing-set, do not show a dangerous condition. In effect, there are no allegations or evidence to support plaintiff’s theory of liability.

Having considered the pleadings, depositions, exhibits, briefs, and arguments of counsel in a light most favorable to the plaintiff, we are of the opinion that the trial court’s action in granting defendants’ motion for summary judgment was not erroneous.

AFFIRMED.

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

FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent and express my disapproval of a continuation by this Court to permit property law influence to dominate the law of tort liability.

I am opposed to further perpetuation of the social guest/business invitee distinction. Here, the majority opinion looks to the “dangerous instrumentality” exception of Tolbert; finds, as a matter of law, that the playground swing does not constitute a dangerous instrumentality; and affirms the trial Court’s grant of summary judgment for want of legal duty absent a willful or wanton injury.

I have no quarrel with the finding that the swing, as a matter of law, is not a dangerous instrumentality. The playground swing, here, and the loaded air rifle, in Tolbert, are materially different; but “dangerous instrumentality” does not equate the “reasonably foreseeable risk of harm” negligence theory on which plaintiff’s claim is based. See Harvard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974). To resort to the “dangerous instrumentality” exception is to acknowledge the social guest or licensee test of liability, i. e., willful or wanton injury. How can a two-year-old child be a social guest? Does not this status necessarily imply a voluntary will or consent?

Beyond these two questions, however, lies the more basic problem: Can society continue to tolerate the artificial distinction— based on the priority of property over personal rights — between invitees and licensees? (I should be careful to note, however, that I do not favor the abolition of the invitee/trespasser distinction.)

The invitee/licensee distinction produces this strange and illogical anomaly. Two guests slip and fall on the same throw rug in the slick tile entrance hall of a private home. One is a friend who was invited to dinner; the other is the pest control service man making his regular but unscheduled monthly inspection. The former is denied recovery; the latter is allowed recovery. WHY?


text:
    Val L. McGEE v. T. L. BOROM.
    SC 2230.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      Robert H. Brogden, Ozark, for appellant.
    Charles L. Woods, of Woods & Corbitt, Ozark, for appellee.
    Thomas G. Steele, Athens, for Judge D. L. Rosenau, Jr., Judge of the Limestone County Superior Court.
   SHORES, Justice.

This case requires resolution of an asserted ambiguity in the new Judicial Article of the Constitution passed by the people of this state on December 18, 1973. Amendment 328, proposed by Act No. 1051, Acts of Alabama 1973, page 1676. The following provisions of the Judicial Article are involved, particularly the italicized language:

Section 6.01(a) creates a unified judicial system and vests the judicial power of the state:

“ . . . exclusively in a unified judicial system which shall consist of a supreme court, a court of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known as the circuit court, a trial court of limited jurisdiction known as the district court . . .”;

Section 6.07 sets out the qualifications of judges in this state:

“Judges of the supreme court, courts of appeals, circuit court and district court shall be licensed to practice law in this state and have such other qualifications as the legislature may prescribe. Judges of the probate court shall have such qualifications as may be provided by law.” (Emphasis Supplied);

Section 6.16 deals with judicial retirement and provides:

“The legislature shall provide by law for the retirement of judges, including supernumerary judges, with such conditions, retirement benefits, and pensions for them and their dependents as it may prescribe. No person shall be elected or appointed to a judicial office after reaching the age of seventy years, provided that a judge over the age of seventy may be appointed to the office of supernumerary judge if he is not eligible to receive state judicial retirement benefits.” (Emphasis Supplied); and

Section 6.21(d) deals with continuation of courts and provides in pertinent part:

“All judges of any court in this state . whose salaries or compensation are paid by their respective counties, who are qualified under the provisions of this Article, and who are holding office at the time of the approval of this Constitutional Amendment by the legislature and on the date of the establishment of the district court, shall be commissioned judges of the district court. Each such judge, accepting commission as a district judge, shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next general election after he has completed three years in office as a district judge. At such election said judicial office shall be filled for a full term of office beginning at the end of the term for which such judge was commissioned.”

The legislature passed Act No. 1205, Acts of Alabama 1975, Regular Session, implementing the Judicial Article. Article 4 of Act No. 1205 establishes the District Court system, pursuant to the Judicial Article, and provides:

"(a) Establishment. The district court of Alabama, a trial court of limited jurisdiction, is created and established, effective January 16, 1977, and shall be subdivided according to districts and may be styled the district court of the county.
“(c) Transition. All courts which are not authorized by Article 6 of the Constitution shall retain their power through January 15,1977, at which time they shall be abolished. . . . ”

T. L. Borom is a licensed attorney and the incumbent Judge of the Inferior Court of Dale County, which was created by an act of the legislature in 1971. Act No. 25, Acts of Alabama 1971, Second Special Session, page 4151. Judge Borom will continue in office as Judge of the Inferior Court of Dale County until that court is abolished on January 15, 1977, and the District Court is established on January 16, 1977.

Judge Borom has timely applied to be commissioned as the District Court Judge of Dale County under the provisions of Section 160 of the Judicial Article. The commission has been denied him by the Secretary of State, acting upon the advice of the Attorney General, who has advised the Secretary that:

“Since the judge of the Inferior Court of Dale County is more than seventy years old, he is not qualified under the provisions of the Judicial Article and may not be commissioned as a district judge

Mr. Val L. McGee, a licensed attorney, was nominated by the Democratic Party as a candidate for election to the office of District Judge of Dale County, and was elected by the people of that county, without opposition, in the General Election held November 2, 1976.

Judge Borom filed a declaratory judgment action seeking a declaration that he was qualified to be commissioned as District Judge of Dale County. The circuit court so ruled, and Mr. McGee appealed. We affirm.

The issue presented is whether Judge Bo-rom, who is more than seventy years of age, is qualified to be commissioned as district judge under Section 160 of the Judicial Article, or whether he is disqualified because of his age.

The only reference to age of judges in the Judicial Article is contained in Section 6.16 which deals with judicial retirement. That section provides that no person shall be elected or appointed to a judicial office after reaching the age of seventy years. No mention is made of being commissioned a district judge. The only qualification to hold office mentioned in Section 6.07 is that all judges must be licensed to practice law in the state.

The Constitution is a document of the people. Words or terms used in that document must be given their ordinary meaning common to understanding at the time of its adoption by the people. Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1938). In construing a constitutional provision, the courts have no right to broaden the meaning of words used and, likewise, have no right to restrict the meaning of those words. We are, therefore, not at liberty to disregard or restrict the plain meaning of the provisions of the Constitution. McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1892).

This general rule was restated by the Supreme Court of Florida in Ervin v. Collins (Fla.), 85 So.2d 852, 855 (1956), as follows:

“We are called on to construe the terms of the Constitution, an instrument from the people, and we are to effectuate their purpose from the words employed in the document. We are not permitted to color it by the addition of words or the en-grafting of our views as to how it should have been written. ... it must be presumed that those who drafted the Constitution had a clear conception of the principles they intended to express, that they knew the English language and that they knew how to use it, that they gave careful consideration to the practical application of the Constitution and arranged its provisions in the order that would most accurately express their intention.”

But where the language included in the Constitution is not explicit or admits of doubt, it is our responsibility to determine what was intended. There are some general principles which are helpful in this case.

It goes without saying that one must possess the qualifications prescribed by law to hold public office, and one possesses no inherent right to such office. It is equally true, however, that the right to hold public office is a valuable one, and that right should not be declared prohibited absent plain provisions of law.

In the instant case, Mr. McGee contends that the Judicial Article requires that one be under seventy before he can be commissioned to a district judgeship. To reach that conclusion, Section 6.16 has to be read to include, in addition to the words “elected or appointed,” the word “commissioned,” which is not stated in that section of the Judicial Article. A reference to Section 6.07, which specifies the qualifications of judges, simply says that judges shall be licensed to practice law in this state. No mention is made in that section of an age limitation. Obviously, Mr. McGee and Judge Borom are in disagreement as to what the Constitution provides. As stated by Justice Terrell for the Supreme Court of Florida in Ervin v. Collins, supra:

“ . . . For the purpose of argument only, let it be assumed that said provision [of the Florida Constitution] is ambiguous. The effect could do no more than cast a doubt on eligibility [to hold office]. If it amounted to this, under every accepted rule of interpretation, the doubt or ambiguity must be resolved in favor of eligibility. . . .” (85 So.2d at 856)

The Judicial Article is silent as to age requirements, except to say that no person shall be elected or appointed to judicial office after reaching the age of seventy years.

It does not say that one must be under seventy years of age to be commissioned a district judge. For this court to supply that qualification would be to make the qualifications for holding judicial office more stringent than the Constitution provides. This we cannot do. The Judicial Article simply says that no person shall be elected or appointed to judicial office after reaching age seventy. Inasmuch as it does not say that one may not be commissioned a district judge after reaching that age, it follows that Judge Borom is eligible to be commissioned a district judge under Section 6.21(d) of the Judicial Article.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

HEFLIN, C. J., not sitting.

      . The Judicial Article appears in the unofficial Code of Alabama (1958 Recompiled — 1973 Cumulative Supplement) as Article VI, §§ 139-160.


author: BRADLEY, Judge.

text:
    FARMERS AND GINNERS COTTON OIL CO., a corporation v. RELIANCE INSURANCE COMPANY, a corp., et al.
    Civ. 434, A, B, C, D & E.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    Rehearing Denied April 7, 1976.

      Whitmire, Morton & Coleman, Birmingham, for appellant.
    C. William Gladden, Jr., Birmingham, for appellees.
   BRADLEY, Judge.

On November 15, 1971 the W. C. Griffith Gin, Hanceville, Alabama, was totally destroyed by fire. Defendants are insurance companies which had in force on that date policies covering the gin equipment and the building. The mortgage clause of those policies provided that plaintiff, as the gin’s mortgagee, was entitled to the proceeds from the insurance to the extent of its mortgage interest.

Plaintiff filed suit to recover on these policies on February 15, 1973. A jury trial was held, and at the conclusion of the evidence plaintiff moved for directed verdict against each defendant. Denied. Interrogatories were then submitted to the jury. In answer to the interrogatories, the jury found that plaintiff was entitled to recover under the policies; that plaintiff had sustained damages as a result of the gin fire; and that the amount of damages was $2,000 for the building and $7,000 for the machinery. The trial court prorated the $9,000 award plus six percent interest among the several insurers.

On March 25,1974 plaintiff filed a motion for judgment n.o.v. or alternatively for new trial. The ground cited for this motion was that the jury’s answer to the interrogatory assessing the amount of damages was inadequate and not supported by the evidence. On June 7, 1974 this motion was overruled. Hence this appeal.

Plaintiff argues that the jury’s award of $9,000 in damages is contrary to the unre-butted expert testimony of a much greater loss, and that it is the manifest product of bias, prejudice, or other improper motive. For this reason, plaintiff states that its motion of June 7 should have been granted.

Neither party disputes that the measure of recovery in the present case is the market value of the destroyed property, Sussex Fire Ins. Co. v. Barton, 225 Ala. 570, 144 So. 439. The only evidence in the record as to this value is the testimony at trial of Mr. Jack Wells Kidd, plaintiff’s president, and the deposed testimony of Mr. Talmadge Smith, a field representative for plaintiff. In Mr. Kidd’s opinion the building had a value of $12,000 to $15,000, and the machinery of $31,000 to $33,000. However, on voir dire Mr. Kidd testified that he was not sure of the names of parts of the equipment, their original cost, or date of purchase. Mr. Smith stated that in his opinion the building was worth $15,000 and the machinery $30,000 to $35,000, but also admitted he could not itemize his estimate.

It is apparent that plaintiff’s appeal is not based on any indication of jury bias or misconduct other than the discrepancy between the award of damages and the valuation testimony of these two witnesses.

The jury has no right to capriciously or arbitrarily disregard competent opinion testimony as to market value, O’Neill v. City of Birmingham, 221 Ala. 580, 130 So. 87, However, opinion evidence, even of experts, is not conclusive; it cannot substitute for the jury’s own determination, Obear-Nester Glass Co. v. Mobile Drug Co., 208 Ala. 618, 95 So. 13. The jury has the duty to reach its own conclusion, giving no weight to opinion testimony as to valuation when, after due consideration of it, the jury is reasonably satisfied that it deserves none, Batterton v. City of Birmingham, 218 Ala. 489, 119 So. 13.

Appellant argues that the jury’s right to assign weight to the opinion testimony of witnesses is limited by a line of eminent domain cases: State v. Edmundson, 282 Ala. 293, 210 So.2d 926; State v. Walker, 281 Ala. 182, 200 So.2d 482; State v. Crawford, 277 Ala. 568, 173 So.2d 109. Appellant cites these cases for the principle that the highest and lowest values for real property testified to by opinion witnesses establish a range within which the jury’s verdict must fall, or that verdict will be set aside.

This rule first appeared in Crawford, where the supreme court acknowledged that opinion evidence, even without conflict, is not conclusive on the court. However, Crawford, citing O’Neill v. City of Birmingham, supra, went on to state that, in an eminent domain case, a jury verdict awarding compensation to the landowner greater than the amount testified to by any witness appeared to be “in absolute disregard” of the evidence. Later condemnation cases hardened this finding into the rule relied on by appellant.

We do not feel that Crawford is apt authority on the jury’s duty to weigh opinion evidence of value outside the context of eminent domain. In that area of the law the public policy may very well require a narrower field of operation for the jury than obtains in ordinary civil suits. Where, as here, the plaintiff seeks damages for property already destroyed and thus unavailable for inspection, any limitation on the jury’s right to weigh the credibility of opinion evidence will tend to create an advantage for a property owner whom the law holds competent to testify about the property even though he may have an exaggerated opinion of it. In such cases the jury’s awareness of factors pointing to such exaggeration prevents us from saying an award of a lesser amount is in absolute disregard of all the evidence. A new trial should be granted where the jury, out of arbitrary or improper motive, disregards the opinion of witnesses; but one need not be granted where the jury weighed it and found it lacking credibility.

In the instant case, appellant presents nothing that indicates capricious or arbitrary rejection of evidence by the jury. The verdict as to value was substantially less than the opinion of the witnesses; but we cannot infer from that alone that the jury violated its duty to consider and weigh all competent evidence. It is obvious only that the jury gave little credence to the testimony of Mr. Kidd and Mr. Smith, and considering the matter elicited on voir dire, it was well within its rights to so assess such testimony, Morgan v. Harris, 55 Ala.App. 694, 318 So.2d 723.

There being no error below, the judgment is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. JONES, Justice MADDOX, Justice

text:
    In re FARMERS AND GINNERS COTTON OIL CO., a corp. v. RELIANCE INSURANCE CO. et al. Ex parte Farmers and Ginners Cotton Oil Co., a corp.
    SC 1811.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Bryant A. Whitmire, of Whitmire, Gordon & Coleman, Birmingham, for petitioner.
    C. William Gladden, Jr., of Balch, Bing-ham, Baker, Hawthorne, Williams & Ward, Birmingham, for respondent.
   FAULKNER, Justice.

Farmers and Ginners appealed from a decree of the Circuit Court of Jefferson County, granting a $9,000 jury verdict for a fire loss. The Court of Civil Appeals affirmed. We granted certiorari. We reverse and remand.

Insured, Farmers and Ginners Cotton Oil Co., sustained a fire loss and sued six insurance companies to recover. At the trial two expert witnesses for the insured testified as to the value of the loss. One stated that the value of the building was between $12,000 and $15,000 and the machinery between $31,000 and $33,000. The other’s estimate was $15,000 for the building and between $30,000 and $35,000 for the machinery. Neither could itemize his estimate. Answering interrogatories, the jury returned a verdict of $9,000. The insured’s motion for a new trial was denied. The Court of Civil Appeals affirmed. Insured’s application for rehearing was overruled. This court granted a writ of certiorari.

The question is whether the jury violated its duty to consider and weigh all competent evidence.

The jury is not the sole judge of the sufficiency of the evidence to sustain the verdict. We have the power to review. Franklin Fire Ins. Co. v. Slaton, 240 Ala. 560, 200 So. 564 (1941); Massengale-Manaster Poultry Co. v. Burnett, 284 Ala. 465, 225 So.2d 869 (1969). The jury does not have an absolute right to disregard the testimony of competent witnesses and substitute its own conclusion for undisputed evidence. Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421 (1945).

Here the only direct testimony as to the value of the property was that of the insured’s expert witnesses. There was no other evidence as to value, and their testimony was uncontradicted.

In State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965), this court reversed and remanded on the ground that the verdict was contrary to the evidence. There all testimony valued the property at either $600 or $1,250, and the jury returned a verdict of $1,900.

This court, speaking through Mr. Justice Coleman, said:

“In deciding this case, we are not unmindful of the rule that evidence of value is necessarily opinion evidence, and that it is not conclusive on courts and juries, even when without conflict. Dean v. County Board of Education, 210 Ala. 256, 97 So. 741; State v. Hunter, 270 Ala. 57, 116 So.2d 383. In this connection, however, there is also the rule that there is no ‘absolute’ or ‘unrestricted’ right in the trier of facts to disregard evidence of witnesses declared competent by the statute, § 367, Title 7, whether expert or not. Such evidence is not conclusive, as of course, but is to be considered like other evidence in connection with all the facts and circumstances and in the light of the knowledge and experience of the jury in finding the true value. O’Neill v. City of Birmingham, 221 Ala. 580, 584, 130 So. 87.”

Although Crawford was an eminent domain case, its rule is not limited to those cases. Crawford used as its authority an ordinary civil suit, Donavan v. Fandrich, 265 Ala. 439, 92 So.2d 1 (1957).

In the case before us, the jury disregarded the only evidence of value before it, and brought in a verdict without support from the evidence. If the jury had chosen not to believe the witnesses, the verdict would have been in favor of the insurance companies, or only nominal damages for the insured. The verdict here is neither nominal damages nor damages in light of the evidence. Where a jury verdict cannot be justified on any reasonable hypothesis presented by the evidence, it should be set aside. Donavan.

We hold the jury verdict was not supported by any evidence. Therefore, the judgment of the Court of Civil Appeals is reversed and the cause remanded with instructions to order the trial court to set aside the jury verdict and grant a new trial.

REVERSED AND REMANDED.

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

JONES, J., concurs specially.

MADDOX, J., dissents.

BEATTY, J., not sitting.

JONES, Justice

(concurring specially):

I concur in the result. I agree that the jury verdict awarding $2,000 for the building is so disproportionate to the only evidence presented for the jury’s consideration as to require reversal and remand for a new trial. That the jury cannot totally disregard the only competent evidence presented for its consideration is a sound rule. But I would not want to be understood as agreeing with a holding that our rule in condemnation cases — the verdict to be sustainable must be within the range of the whole of the before and after value of the property taken — is the controlling rule here. The condemnation cases present a clear-cut disregard of the evidence situation. In each of these cases where the rule has been applied, there was testimony from both sides, and the jury verdict either exceeded the highest value or fell below the lowest value proffered by the evidence. This case does not fit into that neat pattern. The literal application of that rule here would strip the jury of one of its most time-honored functions of passing on the credibility of the witnesses. Particularly is this function indispensible to the judicial process where the witness in question is interested in the litigation. If I understand the majority holding, the only sustainable verdict in this case would be a verdict of not less than $42,000 — $12,000 for the building and $30,000 for the machinery.

I agree that, under the facts of this case, the strongest presumption of correctness of the jury verdict and the judge’s order overruling the motion for a new trial does not place beyond our review a $2,000 verdict for the total loss of a building that housed a cotton gin. This is especially true in view of the insurable value placed on the building by the agents for the insurance companies. But no rule of law should require a $12,000 verdict for the loss of the building in order for the verdict to be sustainable. Such a rule would erode one of the primary functions of the jury in our judicial system.

MADDOX, Justice

(dissenting).

The Court of Civil Appeals, in its opinion, held that opinion evidence of value, even of experts, is not conclusive. I agree with that holding and think it is consistent with our prior decisions. Consequently, I would affirm.

The majority relies heavily upon State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965), in reversing and remanding. I think Crawford is distinguishable. In Crawford, this Court stressed the fact that the jury did not view the property. This implies to me that had the jury viewed the property in Crawford, they would not have been bound by the opinion evidence of the experts. For instance, in Crawford, this Court noted:

“We have noted that the jury did not view the land. We are not to be understood as holding that the verdict would stand if the jury had viewed the land. That question is not presented. In this connection see: State v. Carter, 267 Ala. 347, 350, 101 So.2d 550; State v. Long, 269 Ala. 270, 271, 112 So.2d 480.”

Carter and Long, cited in Crawford, I believe, hold that where a jury views the premises, the jury is not bound by the estimate of damages given by witnesses.

The jury did not view the premises in this case, but I do not believe that the testimony of the experts on value should have been conclusive.

The Court of Civil Appeals held:

“In the instant case, appellant presents nothing that indicates capricious or arbitrary rejection of evidence by the jury. The verdict as to value was substantially less than the opinion of the witnesses; but we cannot infer from that alone that the jury violated its duty to consider and weigh all competent evidence. It is obvious only that the jury gave little credence to the testimony of Mr. Kidd and Mr. Smith, and considering the matter elicited on voir dire, it was well within its rights to so assess such testimony, Morgan v. Harris, 55 Ala.App. 694, 318 So.2d 723.”

I went to the original record to determine what testimony was elicited to discredit the opinion evidence, and I concur with the assessment made by the Court of Civil Appeals.

The plaintiff, as the loss payee under the fire policy, had the burden of proving the actual damages it sustained. Great American Ins. Co. v. Railroad Furniture Salv., 276 Ala. 394, 162 So.2d 488 (1964). Plaintiff, to sustain its burden, used its president and field representative. I do not question the admissibility of their testimony, but I seriously object to making it conclusive and binding on the jury as the majority does.

While opinion evidence of value is admissible under the provisions of Title 7, § 367, Code, 1940, if one has had an opportunity to form an opinion, the degree of opportunity that the witness may have had for forming an opinion goes to the weight of the evidence. See Gossett v. Morrow, 187 Ala. 387, 65 So. 826 (1914). The opinion evidence as to the value of the gin and the equipment, even assuming it was unanimous and uncontroverted, was not conclusive on the jury, in my opinion. 9 Ala.Dig., Evidence, «=>570.

I would affirm the Court of Civil Appeals, which affirmed the trial judge, who saw and heard the witnesses and denied the plaintiff’s motion for a new trial.


text:
    FARMERS AND GINNERS COTTON OIL CO., a corporation v. RELIANCE INSURANCE COMPANY, a corp., et al.
    Civ. 434-434E.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1977.
   On Remand from Supreme Court

BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be reversed in accordance with the opinion rendered by the supreme court on December 10, 1976 in the above cause, 341 So.2d 147, reversing 341 So.2d 144, and remanded to the Circuit Court of Jefferson County, Alabama, for that court to set aside the jury verdict and grant a new trial.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    LEE ASSOCIATES, INC., a corp. v. SPECIALTY CONSTRUCTION COMPANY, INC., a corporation, et al.
    Civ. 938.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1976.
    Rehearing Denied Dec. 29, 1976.

      Dieter Schrader, Huntsville, for appellant.
    Watson, Moore & Mason, Huntsville, for appellees.
   HOLMES, Judge.

The appellant-Lee was awarded a $9,673.20 judgment against appellee-Spe-cialty Construction Company, Inc. The judgment was rendered by the trial court after a hearing ore tenus. From this judgment Lee appeals.

Lee contends that the judgment should have been rendered against an individual, Robert Sanders, and that the amount of the judgment is inadequate. We disagree with these contentions and affirm.

The record reveals the following : Consolidated Kinetics Corporation sued Specialty Construction Company, Inc., Robert Sanders et al. for money alleged to be due Consolidated. The complaint consisted of three counts. One count was on an account, a second on an account stated, and a third was for goods sold and delivered. Specialty Construction et al. thereafter filed a counterclaim against Consolidated for breach of an agreement. Specialty Construction also filed a third party complaint against Lee Associates, Inc., for breach of an agreement; and Lee Associates filed a counterclaim against Specialty Construction Company, Sanders et al. Lee’s counterclaim contained the same counts and covered the same subject matter as Consolidated’s complaint.

Consolidated’s complaint and Lee’s counterclaim against Specialty Construction et al., as both were based on the same transaction, claimed the identical sum of $15,-649.20. Likewise, Specialty Construction Company et al.’s counterclaim against Consolidated and its third party complaint against Lee were premised on the same transaction and, accordingly, sought an identical amount from both parties, to wit, $6,537.60. The judgment appealed from by Lee was for $9,673.20. As noted earlier, this judgment was in Lee’s favor and against Specialty Construction Company, Inc.

Able counsel for Lee’s first argument in his brief is that the trial court erred to reversal in failing to award Lee a judgment against Robert Sanders individually, as opposed to Specialty Construction Company, Inc., a corporation.

Specifically, Lee contends that the evidence shows that Lee was not made aware that it (Lee) was dealing with a corporation. Specialty Construction Company contends otherwise.

We have carefully reviewed the record in this ease. We do not deem it necessary to set out the evidence in detail. Suffice it to say that Lee supplied Specialty Construction Company with material used by Specialty. Lee contends that Specialty did not pay for these supplies. Specialty contends that Lee did not deliver the goods as promised and that such action caused Specialty to suffer certain damages. The testimony consists of less than forty pages of transcript and there is scant evidence regarding the business relationship between the parties. The evidence presented by Lee tends to show Lee was dealing with Sanders as an individual. Specialty’s evidence tends to show Sanders was the president of Specialty Construction and that Lee was aware that it was dealing with a corporation and not with Sanders as an individual.

It is clear from the above that it was incumbent upon the trial court to resolve an apparent conflict in the testimony.

It is appropriate to quote what this court said in American Home Building & Loan Association v. Long, 24 Ala.App. 34, 129 So. 793:

“To hold in line with the contention of appellant would in effect necessitate a ruling by this court that the judgment so rendered is manifestly and palpably against the evidence in this case, and that the preponderance of the evidence is decidedly adverse to the judgment pronounced and entered. This we cannot do under the general and well-settled principle of law that the verdict of a jury, or judgment by the court upon a trial without the intervention of a jury, should not be disturbed unless the adjudication reached below is far afield from the evidence and the law applicable thereto. A rule of this import is declared in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. The rule therein stated has been approved and followed by innumerable decisions of the appellate courts of this state.” (24 Ala.App. at 36, 129 So. at 794)

The case of Cobb v. Malone, supra, was reaffirmed by the Supreme Court of Alabama on September 24, 1975, in Hubbard Bros. Construction Co., Inc. v. G. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169.

We therefore find no error in regard to the above.

Lee lastly urges error in that the amount of the judgment is insufficient. Specifically, the appellant-Lee argues that the amount of the judgment, to wit, $9,673.20, cannot be arrived at by any precise mathematical formula.

It is obvious to this court that the trial court in arriving at the amount of the judgment considered and allowed Specialty Construction Company’s claim of damages against Lee. The claim by Lee against Specialty was for $15,000 plus; the claim by Specialty against Lee was for $6,000 plus. The evidence adduced by Specialty as to the amount of its damages was $6,000 plus; however, this is not an exact figure as there was testimony that Specialty’s loss of profits as a result of Lee’s action was greatly in excess of $6,000.

In any event, in this instance, where the amount of damages in uncertain, their assessment must be for the trier of facts. Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565; Worthington v. Cleveland Lumber Co., 16 Ala.App. 614, 80 So. 688. In view of the testimony noted above, we find no abuse by the trial court in regard to the amount of its judgment even though we cannot presently determine how the trial court arrived at the amount of the judgment.

The case is due to be and is affirmed.

AFFIRMED.

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

ON REHEARING

Appellant-Lee, in its application for rehearing, contends this court failed to consider one issue it presented on appeal. Upon review of the original brief, we find that while Lee devoted insubstantial argument to this point, it did designate the matter in question as an issue.

Lee contends the judgment by the trial court against “Specialty Construction Company, Inc., a corporation” is erroneous in that it is against a nonexistent corporation. Rather, Lee states, the judgment should have been entered against “Specialty Construction Company of Alabama, Inc.,” the true name of the defendant-third party plaintiff corporation as shown by the evidence.

Perusal of the record discloses that Lee neglected to raise this issue in the trial court. A party may not raise an issue for the first time on appeal. Specifically, one may not suffer a judgment to be entered by the trial court and thereafter complain of the contents thereof for the first time on appeal. Garrett v. Brewton, 249 Ala. 440, 31 So.2d 338; Lawler v. Hyde, 230 Ala. 467, 161 So. 523; Walker v. Mobile Marine Dock and Mutual Insurance Company, 31 Ala. 529. Appellant Lee’s having failed to bring the alleged impropriety to the attention of the trial court precludes our consideration of the issue.

However, we do point out that our decision does not preclude appellant-Lee from seeking any other relief to which it might lawfully be entitled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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