text:
    Jacqueline CARR, Appellant, v. Ruth Freiday GRACE et al., Appellees.
    Nos. 74-1614, 75-91.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Dec. 2, 1975.
    Jacqueline Carr in pro. per.
    Walton, Lantaff, Schroeder, Carson & Wahl, Stephens, Magill, Thornton & Sevier, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, plaintiff in the trial court, brings these consolidated appeals to review an order of dismissal -entered October 30, 1974, and a cost judgment, entered December 11, 1974, in favor of appellees, defendants in the trial court.

Among the many assignments of error designated by appellant, representing herself in these appeals, is one contending the trial judge erred in entering an order on pending motions dated September 27, 1974 which contained the condition that appellant appear and be represented by counsel of her choice ready for trial on October 28, 1974 and that upon failure to appear with counsel said cause would be subject to dismissal upon appropriate motion and order of the court. Predicated upon this order and appellant’s failure to appear with counsel the trial judge subsequently entered the order of dismissal from which appellant appeals.

In support of appellant’s contention, she cites § 454.18, Fla.Stat., F.S.A., which provides that, inter alia, any person, whether an attorney or not, may conduct their own cause in any court of this state, subject to the lawful rules and discipline of such court.

Based upon the facts in the record before this Court, it appears the trial judge erred by imposing a condition in his order that appellant be represented by counsel or be subject to dismissal of her cause, which dismissal in fact occurred by the trial judge’s order dated October 30, 1974. However, also based on our review of the record in this appeal, we feel it obligatory to underline for appellant in § 454.18, Fla.Stat., F.S.A., upon which she relies, that part which provides she may represent herself "subject to the lawful rules and discipline of such court.’’ Appellant’s self representation does not relieve her of the obligation to comply with any appropriate rules of the court and the rules of civil procedure.

Based upon our decision above, we conclude that the cost judgment entered by the trial judge was premature and should await the outcome of the main cause on the merits.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that the trial judge erred in entering the order of dismissal dated October 30, 1974. Therefore, for the reasons stated and upon the authorities cited, the order of dismissal appealed is reversed and the cost judgment is vacated.

Reversed in part and vacated in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The AMBASSADOR SOUTH DEVELOPMENT CORP., a Florida Corporation, Appellant, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 74-299.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Ronald Sales and Gary I. Zwickel, Sales & Christiansen, Palm Beach, for appellant.
    William Rutter and H. Adams Weaver, Asst. County Attys., West Palm Beach, for appellee-Palm Beach County.
    Geoffrey B. Dobson, Gen. Counsel, and Winifred Sheridan Smallwood, Tallahassee, for appellee-DOT.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Jerry E. Oxner, Asst. Atty. Gen., Tallahassee, for appellee-State of Florida.
   PER CURIAM.

Affirmed on the authority of Seaside Properties, Inc. v. State Road Department, 190 So.2d 391 (3rd DCA Fla.1966).

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


author: PEARSON, Judge. HENDRY, Judge

text:
    Perry L. SCOTT et al., Appellants, v. Harry L. GORDON and Hazel J. Gordon, Appellees.
    No. 75-536.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Dec. 3, 1975.

      George V. Lanza and John A. Finn, Coral Gables, for appellants.
    Pallot, Stern, Proby & Adkins, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PEARSON, Judge.

This plaintiff climbed on a fence, jumped and landed on a dog. He broke his leg and then sued the dog owner upon the theory that the dog injured him. The plaintiff’s testimony on deposition was that when he jumped, the dog was not there but that as he was coming down to the ground, the dog suddenly appeared underneath his feet. The trial judge entered a partial summary judgment for the plaintiff holding the dog owner absolutely liable under Florida’s ancient “damage [done] by dogs” statute, Fla.Stat. § 767.01.

We feel that the trial judge was premature in his determination of liability, and would hold on this appeal that the plaintiff does not meet the second portion of the summary judgment rule which requires that the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that “the moving party is entitled to a judgment as a matter of law.” [emphasis supplied] See RCP 1.510(c).

Under the meager facts presented which do not show (1) where the dog was immediately prior to plaintiff’s jump, or (2) whether the plaintiff could have seen the dog prior to the jump, it does not appear as a matter of law that the dog did the damage. Therefore, the applicability of the statute to the facts of this case is a mixed question of law and fact to be submitted to the jury under proper instructions. See the rule stated in Meigs v. Lear, Fla.App. 1968, 210 So.2d 479, 480, and Pollock v. Kelly, Fla.App. 1960, 125 So.2d 109, 111.

Reversed and remanded.

HENDRY, Judge

(dissenting).

I would affirm on the authority of Allstate Insurance Company v. Greenstein, Fla.App.1975, 308 So.2d 561.


author: DOWNEY, Judge.

text:
    Donald D. MacKINLAY et al., Appellants, v. CITY OF STUART, a Florida Corporation, Appellee.
    No. 74-435.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.

      Burton C. Smith, Jr., of Jones, Paine & Foster, P. A., West Palm Beach, for appellants.
    W. R. Scott, of Scott & Tilton, P. A., Stuart, for appellee.
   DOWNEY, Judge.

Appellants, as plaintiffs in the trial court, filed suit for declaratory relief against the appellee, City of Stuart, to determine their rights and status under seven annexation ordinances passed by appellee (numbers 535, 536, 538, 539, 540, 541 and 542).

It appears from the record that the owners of several parcels of property in the unincorporated area of Martin County filed seven petitions with the appellee city over the period December 31, 1970, to July 25, 1972, requesting annexation. On September 25, 1972, the appellee commenced passing the above cited ordinances to accomplish the requested annexation. Between the time the petitions seeking annexation were filed and September 25, 1972, the petitioners conveyed the land involved to various persons, including the appellants.

The record also shows that after the annexation ordinances became final the ap-pellee city issued revenue bonds to substantially increase the size of its water and sewer facilities in order to accommodate the sharp increase in population anticipated from the planned construction in the newly annexed area. The appellee also increased its capacity to furnish other municipal services such as police protection, garbage collection, and building inspection. Finally, the transition from county taxing rolls to city rolls resulted in changes in the ap-pellee’s millage and budgets.

In October 1973, appellants filed a declaratory judgment suit, which appellants’ brief describes in the following way:

“The allegations of the complaint essentially group the Plaintiffs into [two] categories; first, [certain of the named plaintiffs] sought a declaration of their rights and a voiding of Ordinance numbers 535, 536, 538, 539, 540, 541 and 542 of Defendant, City of Stuart, on the grounds that their property, in the unincorporated areas of Martin County, was, as a result of those certain Ordinances, completely surrounded by the incorporated areas of the City of Stuart.
“[the remainder of the named plaintiffs] prayed for a declaration of their rights and a voiding of the same Ordinances of the Defendant, City of Stuart, on the grounds that their property, formerly a part of the unincorporated areas of Martin County, was, as a result of said Ordinances, allegedly incorporated without their consent into the City of Stuart.”

Trial of the case resulted in a final judgment for the appellee.

Appellants’ contentions here are that the circuit court should have declared the seven ordinances invalid because: (a) certain of the ordinances lacked contiguity because their adoption resulted in creating islands or enclaves of unincorporated areas owned by some of the appellants; (b) appellee failed to file copies of the ordinances with the Secretary of State within the time set forth in § 171.16(3), F.S.1971; (c) appellants did not petition to have the land annexed or consent to the annexation; (d) none of the land involved in any of the ordinances under attack physically abutted (or was contiguous to) the appellee city at the time any ordinance became effective.

The following rules of law contradict several of the positions taken by appellants and demonstrate them to be without merit:

(1) Annexation ordinances are not invalid for lack of contiguity if their adoption results in the creation of islands or enclaves of unincorporated territory within the adopting municipality. See cases cited at 2 McQuillan, Municipal Corporations, § 7.20, pg. 365, note 2, (3d Ed. 1966).

(2) Annexation ordinances are not invalid if there is a delay in filing those ordinances with the Secretary of State. Ford v. Incorporated Town of North Des Moines, 80 Iowa 626, 45 N.W. 1031, 1034 (1890).

(3) Annexation ordinances may be enacted validly even though the original petitioners for annexation have transferred the land to persons who have not so petitioned. See State ex rel. DeConcini v. City of Phoenix, 74 Ariz. 46, 243 P.2d 766, 769 (1952); Schulte v. Flick, 89 Ohio App. 252, 101 N.E.2d 301 (1951).

Appellants’ most compelling argument is that the time sequence in which the city adopted various annexation ordinances, including those under attack, renders vulnerable the seven ordinances involved in this case.

On September 25, 1972, the seven ordinances in question (Nos. 535, 536, 538, 539, 540, 541 and 542) were passed on first reading. All seven were also passed on second reading on October 9, 1972, and became effective November 9, 1972.

Prior to the first reading of the foregoing ordinances the appellee had begun annexation (by first reading of Ordinance 521 on August 28, 1972, and of Ordinances 528 and 529 on September 11, 1972) of certain parcels of land which lay between the land involved in the seven ordinances under attack and the boundaries of the appellee city as those boundaries existed on September 25, 1972. It is undisputed that the earliest relevant ordinance (No. 521) involves the only land abutting the appellees’ boundaries. That ordinance did not become final until after September 25, 1972. Since a parcel of land which is the subject of an annexation ordinance does not become part of the municipal corporation adopting the ordinance until such time as the ordinance becomes final, the land involved in Ordinance 521 was not part of the appellee city when the seven ordinances in question had their first reading. Thus, none of the land involved in the seven ordinances in question was contiguous to the city at the time those ordinances had their first reading. See McDowell and Craig v. City of Santa Fe Springs, 54 Cal.2d 33, 4 Cal.Rptr. 176, 178, 351 P.2d 344, 346 (1960); Tn. of Bartlett v. City of Memphis, by & Through Loeb, Tenn.App., 1972, 482 S.W.2d 782; City of Arlington v. City of Grand Prairie, Tex.Civ.App. 1970, 451 S.W.2d 284. Section 171.16, F.S.1972, the statute pursuant to which the ordinances in question were adopted, made contiguity a requirement for annexation. Moreover, contiguity appears to be a requirement even without that statute. See McQuillan, supra, § 7.20, and Anno, at 49 A.L.R.3d 589. Since the lands involved in Ordinances 535, 536, 538, 539, 540, 541 and 542 were not contiguous to the appellee city on September 25, 1972, the trial court erred in finding that the ordinances had been enacted properly. However, that does not end the inquiry since the trial court also found that the appellants were estopped from questioning the validity of the ordinances. The doctrine of estoppel is applicable in cases such as this. See State ex rel. Landis v. City of Coral Gables, 120 Fla. 492, 163 So. 308, 101 A.L.R. 578 (1935); City of Winter Haven v. State ex rel. Landis, 125 Fla. 392, 170 So. 100, 105 (1936); McQuillan, supra, § 7.42.

In orally stating the reasons for denying the appellants the relief they sought, the trial court, among other things, stated:

“. . . there is an affirmative defense of an estoppel by inaction for a period of one year, at least over one year and it is apparent that most of this annexation took place over a year before this lawsuit was brought. There is no showing of any good reason why the one year’s delay at which time the City itself and the County have readjusted to the annexation . . .. There is no showing of why there was a year’s delay. There is showing in my opinion that, that the city and County have made changes, have expended money, have made plans, have committed themselves in various ways. It would be inequitable to reverse the process at this late date.”

The foregoing statement is supported by substantial, competent evidence. We therefore affirm the circuit court judgment denying appellants’ request that ordinances 535, 536, 538, 539, 540, 541 and 542 be declared invalid.

Affirmed.

CROSS and OWEN, JJ., concur.


author: PER CURIAM. HOBSON, Acting Chief Judge.

text:
    CRAWFORD DOOR SALES COMPANY, INC. and Catawba Insurance Company, Appellants, v. James P. DONAHUE, Jr. and Marion Donahue, his wife, et al., Appellees.
    No. 75-634.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
    On Rehearing Oct. 29, 1975.
    William A. Post, Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellants.
    James B. Thompson, Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellees.
   PER CURIAM.

Affirmed. See Armor Elevator Company, Inc. v. Elevator Sales & Service, Fla.App.3d 1975, 309 So.2d 44.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.

ON PETITION FOR REHEARING

HOBSON, Acting Chief Judge.

Appellant, Crawford Door Sales Company, Inc. (Crawford) brings this interlocutory appeal to review an order dismissing with prejudice its cross-claim against North American Door Company (North American). Although Crawford filed this appeal as an interlocutory appeal, we will treat it as a full appeal as the order of dismissal was with prejudice and was a final order as to Crawford and North American.

The plaintiffs, Donahues, filed an action for damages in the trial court alleging that defendant Crawford negligently installed a door, which negligence caused the door to fall and injure the plaintiff wife. The plaintiffs also joined North American as a defendant, alleging that it negligently manufactured the door, causing the door to fall and injure the plaintiff wife. Crawford filed its answer denying all allegations against it of negligence. Combined with its answer, Crawford filed a cross-claim against North American alleging that North American was guilty of active and primary negligence which was the sole, direct and proximate cause of injuries or damages claimed by the plaintiffs and prayed for indemnification. Crawford also cross-claimed against North American for indemnification under the theory of implied warranty. The trial court entered an order granting with prejudice North American’s motion to dismiss the cross-claim.

This question has recently been ruled upon by our sister court in Central Truck Lines, Inc. v. White Motor Corp., Fla.App.3d 1975, 316 So.2d 579, wherein it was held:

The precise question now before us is whether the defendant is ‘locked in’ by an allegation in the plaintiff’s complaint that the defendant is the active tort feasor, thus precluding the defendant from alleging in a third party complaint that he is but a passive tort feasor and that the third party defendant is the active tort feasor and defeating the maintenance of a third party claim in the same action. We think not.
“The general purpose of third party practice is to avoid two actions which should be tried together in order to save the time and expense involved in duplication of evidence, to obtain consistent results from identical or similar evidence and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against the third party defendant.”
sfc s(i ‡ ‡ rfc jk
“ . . . We find the result reached in Seaboard Coast Line Railroad Company v. Brown, Fla.App. 1974, 297 So.2d 843, to be applicable to the instant situation. In that case it was held that Rule 1.180, RCP, allows the defendant, third party plaintiff, charged with active negligence in the original complaint to place his own characterization upon the events and maintain a third party claim alleging active negligence on the part of a third party defendant and only passive negligence, if any, on his own part. ‘The purpose of the rule is to settle the controversy in a single action, and it would be unfair to the defendant-third party plaintiff to confine it to the version of facts asserted by the plaintiff in the first instance.’ Seaboard v. Brown, supra, page 844.”

We agree with the Central Truck Lines opinion and, accordingly, reverse the order dismissing the cross-claim of Crawford with prejudice and reinstate it.

Reversed with directions.

BOARDMAN and SCHEB, JJ„ concur.


text:
    WALTHAM A. CONDOMINIUM ASSOCIATION et al., Appellants, v. VILLAGE MANAGEMENT, INC., et al., Appellees.
    No. 75-771.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Dec. 3, 1975.

      Michael B. Small, Small, Ciklin & Jacobson, West Palm Beach, for appellants.
    John B. McCracken, Jones, Paine & Foster, West Palm Beach, for appellees.
   PER CURIAM.

Upon examination and study of the briefs and record and consideration of the argument of counsel it is our judgment that reversible error has not been made to appear.

Affirmed.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


text:
    Karen June ALFORD, Appellant, v. Jack J. ALFORD, Appellee.
    No. 74-168.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Rehearing Denied Dec. 3, 1975.
    Stanley L. Seligman, Hollywood, for appellant.
    John R. Harrington of Law Office of John R. Harrington, Fort Lauderdale, for appellee.
   PER CURIAM.

The final judgment dissolving the marriage of the parties contains a clerical omission in the paragraph numbered 15. Therein the appellee-husband was ordered to be “responsible for all necessary and reasonable hospital, medical and dental expenses of $20.00 per month in the aggregate, not otherwise covered by insurance”. It is clear from the transcript of the proceedings that the court intended that appel-lee-husband be “responsible for all necessary and reasonable hospital, medical and dental expenses in excess of $20.00 per month in the aggregate, not otherwise covered by insurance”. The final judgment is modified accordingly. As modified, the judgment is affirmed.

Affirmed as modified.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


author: PER curiam;

text:
    Johnny T. MILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1268.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Dec. 2, 1975.
    Johnny T. Milton, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER curiam;

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: OWEN, Judge.

text:
    Jean Wilder HOLLENDER, Appellant, v. S. R. F., INC., d/b/a Sara Fredericks of Palm Beach, Appellee.
    No. 75-205.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 3, 1975.
    Larry Klein, Cone, Wagner, Nugent, Johnson & McKeown, P.A., West Palm Beach, for appellant.
    William H. Pruitt, Prior & Pruitt, West Palm Beach, for appellee.
   OWEN, Judge.

By interlocutory appeal, appellant seeks review of a temporary injunction enjoining her from engaging in employment competitive with plaintiff/appellee, her former employer, with whom she had executed a non-compete agreement.

Appellant urges that the point on appeal is whether the court should enforce the agreement by a temporary injunction where the evidence before the court at the hearing on the application for temporary injunction showed no consideration for the execution of the restrictive agreement. It is apparent that the trial court has made no determination as to the validity of the agreement. Thus, we cannot say from this record that the court abused its discretion in entering the temporary restraining order pending a final determination of this cause, the outcome of which apparently will turn upon the validity of the agreement.

Affirmed.

DOWNEY, J., and NESBITT, JOSEPH, Associate Judge, concur.


text:
    BUCKLEY TOWERS CONDOMINIUM, INC., a Florida Corporation, Appellant, v. Herbert BUCHWALD, Trustee, Appellee.
    No. 75-201.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Dee. 1, 1975.
    Joseph S. Paglino, Miami, for appellant.
    Darrey A. Davis, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This appeal is taken by Buckley Towers Condominium, Inc. to review the validity of the trial court’s order enforcing a court approved settlement agreement between the parties to this litigation.

Buckley Towers Condominium was developed by the appellee herein, Herbert Buchwald, in the late 1960’s. During the years 1970 and 1971 the unit owners of Buckley Towers Condominium became dissatisfied with, inter alia, the management contract contained in the declaration of condominium and instituted litigation to divest themselves therefrom. Subsequently, the parties entered into a written settlement agreement which was approved by order of the trial court. Incorporated in this agreement was a provision concerning the 99 year lease of the recreational facilities by the condominium unit owners (hereinafter referred to as the community facilities lease). The community facilities lease was secured by collateral assignment of the rents by special bank deposits. The order approving the settlement agreement expressly provided:

“2. The above styled consolidated cases are dismissed with prejudice. The Court retains jurisdiction of this consolidated litigation solely for the purpose of enforcing the terms, provisions and conditions of said Agreement, and for the entry of such orders as may be necessary or reasonably required in connection with the performance of said Agreement.”

The parties performed all the terms of the settlement agreement until November 19, 1974 when appellant association informed appellee Buchwald that it questioned the legality of the community facilities lease and refused to pay the rent prescribed therein. Thereupon, Buchwald filed the instant motion to compel enforcement of the court approved settlement agreement. Buckley Towers Condominium, Inc. filed a response alleging the lease was illegal, it was in the process of filing a complaint in the U.S. District Court with respect to the illegality of the lease, and the trial court was without jurisdiction in that appellee has not filed a new complaint. After a hearing thereon, the trial judge entered the appealed order which reads in part:

“1. The settlement agreement made and entered into on April 8, 1971, a copy of which is attached to and made a part of the order of this Court rendered herein on May 12, 1971, ratifying, confirming and approving the settlement agreement, is valid and in full force and effect and binding in all respects on the parties executing the settlement agreement.
“2. All parties, including plaintiff condominium association, BUCKLEY TOWERS CONDOMINIUM, INC., and the condominium apartment unit owners and members of said condominium asso-cation, as class plaintiffs, are required to comply with, perform, abide by, and live up to the terms and conditions of said settlement agreement, including the Community Facility Lease made a part of the settlement agreement.
“3. That the defendant, HERBERT BUCHWALD, TRUSTEE, as lessor, have and recover from plaintiff, BUCKLEY TOWERS CONDOMINIUM, INC., as lessee, the sum of $32,105.87 as unpaid delinquent rents due under the Community Facility Lease on December 1, 1974, and January 1, 1975, with interest to the date hereof, for which let execution issue.
“4. The said plaintiff condominium association shall pay to said defendant forthwith and immediately the ad valo-rem tax escrow installments due on December 1, 1974, and January 1, 1975, in the aggregate sum of $2,000.00.
“5. The Court reserves ruling on defendant’s application for attorneys’ fees to be awarded in accordance with the provisions of the Community Facility Lease, pursuant to further hearing upon due notice.
“6. This Court retains jurisdiction of the subject matter and the parties for the purpose of enforcing the terms and conditions of the said settlement agreement and the provisions of this order.”

Appellant condominium association basically contends the trial judge was without jurisdiction over the subject matter or the parties. We cannot agree.

There are numerous case law holdings that even without an express reservation thereof, jurisdiction inherently remains in the trial court to make such orders as may be necessary to enforce its judgment. See Dade County, et al. v. Richter’s Jewelry Co., Inc., Fla.App.1969, 223 So.2d 375; City of Miami Beach v. Cummings, Fla.App.1971, 251 So.2d 715 and Hopwood, et al. v. Revitz, et al., Fla.App. 1975, 312 So.2d 516 and cases cited therein. Moreover, we find the motion for order requiring appellant to comply with the court approved settlement agreement filed by the appellee to be a proper pleading to institute the enforcement action. Cf. Taylor v. Woodruff, Fla.App.1957, 97 So.2d 341; Coggan v. Coggan, Fla.App.1966, 183 So.2d 839, 841 and see Annot., 94 A.L.R.2d 504, 514 (1964) and cases cited therein.

, , . , „ , We also have reviewed appellant s remaining points on appeal and find them to be without merit.

Accordingly, the order appealed is affirmed.

Affirmed.


text:
    The STATE of Florida ex rel. Rolando BARDINA, Relator, v. Jack SANDSTROM, Director, Dade County Department of Corrections and Rehabilitation and, Ellen J. Morphonios, Circuit Judge, Respondents.
    No. 75-1662.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Pollack, Tunkey, Robbins, Weiner & Leen, Miami, for relator.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for respondents.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

By this petition for writ of habeas corpus, we are called upon to review the amount of bond set by the trial court in a capital felony cause. The petitioner was indicted for the crime of murder in the first degree and robbery. He has also been charged with buying, receiving, or concealing stolen property and possession of a short barrelled shotgun.

The trial judge found, as to the charge of murder in the first degree and robbery, that the proof of guilt was not evident and the presumption of guilt was not great and that, therefore, under the law, the defendant would be entitled to reasonable bail on these charges pursuant to Art. I, § 14, Constitution of the State of Florida. The trial court thereupon fixed bail on these charges in the amount of $350,000.00 and the amount of $1,500.00 on the remaining charges.

This petition for writ of habeas corpus has been filed, contending that the amount of bail is excessive, the record disclosing that the defendant is a refugee from Cuba, having come to this Country some fifteen years ago and resided in New York until approximately seven months ago; that the defendant has had no criminal record for the past fifteen years; that he lives in the Miami area with his wife and child, although he has a brother who resides in Mexico; that he is self-employed in the jewelry business; that he has a number of friends in the community who spoke up for him; that private counsel has been retained by his friends and family, even though the trial judge did find that he was indigent for the purposes of costs.

The amount of bond to be fixed in a cause such as this is discretionary with the trial court and each case must turn on its particular facts. State v. Schulz, Fla.App.1965, 180 So.2d 367; Matera v. Buchanan, Fla.App.1966, 192 So.2d 18; State v. Untreiner, Fla.App.1971, 246 So.2d 158. However, it has often been held that when a defendant is entitled to bail he is entitled to reasonable bail [Jones v. Cunningham, 126 Fla. 333, 170 So. 663; Mathis v. Starr, Fla.1963, 152 So.2d 161; State v. Schulz, supra], and that excessive bail, depending on the financial circumstances of the defendant, is tantamount to no bail. Mendenhall v. Sweat, 117 Fla. 659, 158 So. 280; Jones v. Cunningham, supra; State v. Schulz, supra; Matera v. Buchanan, supra. Under the particular facts of the instant case, we find that the amount of $350,000.00 bond is excessive by $300,000.00 and that a reasonable amount of bail should be $50,000.00, in view of the fact that the trial judge had found that the proof was not evident nor the presumption great that the defendant committed the crimes upon which he was indicted.

Therefore, the order under review is hereby reversed, with directions to reduce the amount of bail to $50,000.00 on these charges.

      . The trial judge made certain references in her order denying the reduction of bail based upon hearsay testimony. We have not considered these findings, as this was evidence that should not have been received nor considered by the trial court. Rodriguez v. State, Fla.App.1974, 305 So.2d 305.


text:
    James P. GREATHOUSE, Sr., Appellant, v. A. G. FEICK REALTY, INC., et al., Appellees.
    No. 74-1270.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles Alfred DAMIANO, Appellant, v. STATE of Florida, Appellee. Richard James GRAVEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1428, 74-1435.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearings Denied Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Johnny JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-802.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Walter A. VINES, Petitioner, v. FLORIDA REAL ESTATE COMMISSION and Jack King, Respondents.
    No. 75-547.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
    Rehearing Denied Dec. 1, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Joseph V. AGAR, Appellant, v. Maureen C. AGAR, Appellee.
    No. 75-1805.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1975.
   Appeal quashed.


text:
    Edwin A. GEHM, Jr., Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and the Jolly Fisherman, Inc., Respondents.
    No. 75-798.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1975.
   Certiorari dismissed.


text:
    Hampesle Lee JOHNSON, Sr., Appellant, v. Louie L. WAINWRIGHT, Director, Department of Offender Rehabilitation of Florida, Appellee.
    No. 75-1755.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1975.
   Habeas corpus denied.


text:
    STATE of Florida ex rel. D. Scott SPENCER-WOLFF, Petitioner, v. Basil GAINES as Sheriff, Pasco County, State of Florida, Respondent.
    No. 75-1520.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1975.
   Habeas corpus denied.


text:
    John J. TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1534.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1975.
   Habeas corpus denied.


text:
    Robert Johnson WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1826.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1975.
   Habeas corpus denied.


text:
    John C. ACKER, Appellant, v. Shirley Ida ACKER, Appellee.
    No. 75-972.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    GREYHOUND RENT A CAR COMPANY, a Florida Corporation, Appellant, v. Peter P. BEDZIS and Estelle Bedzis, his wife, Appellees.
    No. 75-924.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    Frank Lee SMITH, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. 75-1876.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1975.
   Habeas corpus denied.


text:
    William Edward VAN POYCK, Appellant, v. The STATE of Florida, Appellee.
    No. 74-262.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    Debbie WHITING, Appellant, v. STATE of Florida, Appellee.
    No. 74-832.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    Debbie WHITING, Appellant, v. STATE of Florida, Appellee.
    No. 74-833.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    Lynda Ann Munroe GIBSON, Appellant, v. James A. R. GIBSON and Shirlee Gibson, his wife, Appellees.
    No. 75-1065.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1975.
   Appeal dismissed.


text:
    Philip S. SHAILER, Individually and as the State Attorney for the 17th Judicial Circuit, and the 1975 Spring Term Grand Jury of Broward County, Appellants, v. James LONGO, as the Chief of Police of the City of Hallandale, Florida, Appellee.
    No. 75-1745.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1975.
   Appeal dismissed.


text:
    Nicholas Daniel GAMMAL, Appellant, v. STATE of Florida, Appellee.
    No. Z-4.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Ernest Hiram LOVE, III, Appellant, v. STATE of Florida, Appellee.
    No. X-329.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Teddy Lee MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. X-513.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Comer Lex PARKER, Appellant, v. STATE of Florida, Appellee.
    No. Y-390.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Cary SOLOMAN, Appellant, v. STATE of Florida, Appellee.
    No. Y-276.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Henry Silas FAXON, Relator, v. Honorable Louis WEISSING, as Judge of the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, Florida, Respondent.
    No. 75-1906.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 1975.
   Prohibition denied.


text:
    Leroy TOOMBS, Appellant, v. STATE of Florida, Appellee.
    No. Y-426.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Jeffrey E. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. Y-105.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael BROWN, Appellant, v. STATE of Florida, Appellee.
    No. V-309.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    John Michael BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 75-399.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Phillip CHARTIER, Appellant, v. STATE of Florida, Appellee.
    No. 75-741.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    COMPRESSIVE INDUSTRIES, INC., et al., Appellants, v. LANDMARK BANK OF PLANTATION, formerly known as Plantation First National Bank, a National Banking Association, Appellee.
    No. 75-1142.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   Appeal dismissed.


text:
    Bennie Dell DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1653.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    William Everett GATLIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-264.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Carrol C. GILL, Appellant, v. Robert Monroe HAGGARD and Willie M. Haggard, his wife, Appellees.
    No. 75-294.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Larry James HAMAKER, Appellant, v. STATE of Florida, Appellee.
    No. 75-201.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Paul L. HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-497.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenneth JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-20.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Johnny JOHNSON, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-826.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Harriet KEITHS, Appellant, v. Arthur H. KEITHS, Appellee.
    No. 75-1497.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   Appeal dismissed.


text:
    Billy LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 74-1295.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Marshall MANNING, Appellant, v. Billie D. MANNING, Appellee.
    No. 75-232.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    MARINA PLAZA ESTATES LIMITED et al., Appellants, v. Alex BERGER, Appellee.
    No. 74-1459.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Henry J. MORIN, Appellant, v. Ireen MORIN, Appellee.
    No. 75-237.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Lemirah PROPHET, Appellant, v. STATE of Florida, Appellee.
    No. 74-813.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Melvin SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 75-506.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    STRATHMORE RIVERSIDE VILLAS ASSOCIATION, INC., Appellant, v. John W. MIKOS et al., Appellees.
    No. 75-691.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Van TERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 75-286.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenneth G. VAUGHN, Appellant, v. STATE of Florida, Appellee.
    No. 75-273.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronnie Ellis WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 74-817.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    William Banks WILLIAMS, Appellant, v. Sharon E. WILLIAMS, Appellee.
    No. 75-376.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Franklin D. Roosevelt MASON v. STATE of Mississippi.
    No. 48761.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    J. Hal Ross, Brandon, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Ca-j oleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and INZER and ROBERTSON, JJ.
   Affirmed.

RODGERS, P. J., and PATTERSON, SMITH, SUGG, WALKER and BROOM, JJ., concur.

(Written Opinion is not for publication.)


text:
    Wiley Tom WADE v. Garvis WARD.
    No. 49091.
    Supreme Court of Mississippi.
    Oct. 30, 1975.
    E. Howard Eaton, Taylorsville, for appellant.
    Satterfield, Shell, Williams & Buford, Michael S. Allred, Jackson, for appellee.
   Considered En Banc.

Affirmed without opinion.


author: JONES, Justice.

text:
    In re Robert William HUSKEY et al. v. W. B. GOODWYN COMPANY, INC., an Alabama Corporation, et al. Ex parte Robert William Huskey et al.
    SC 1249.
    Supreme Court of Alabama.
    Nov. 6, 1975.

      Guy F. Gunter III, Opelika, for petitioners.
    Samford, Denson & Horsley, Opelika, for W. B. Goodwyn Co., Inc., an Ala.Corp., opposed.
   JONES, Justice.

This is a petition for a writ of mandamus from the Circuit Court of Lee County to require Judge L. J. Tyner to allow petitioners Robert Huskey, Aubrey Huskey, and Blanche Huskey to amend the complaint they filed against respondents W. B. Goodwyn Company and Pawnee Construction Company.

The Huskeys filed their original complaint on October 22, 1974, alleging damages to their medical office building as a result of defendants’ trespass and negligence in performing construction work. After both respondents filed answers, a pre-trial conference was held and Judge Tyner entered a pre-trial order on March 26, 1975. Subsequently, on April 9, the petitioners moved the Court for leave to amend their complaint. The amended complaint added a claim for punitive damages, a claim for interference with the medical practice of Aubrey Huskey, and a third cause of action, alleging that a heart attack suffered by Blanche Huskey was a direct result of the respondents’ activities. The amount of damages sought was raised from $12,000 for property damages to $140,000 for the additional claims of punitive damages, interference with medical practice, and personal injuries.

On April 14, 1975, respondents moved the Court to strike the third cause of action contained in the amended complaint or in the alternative to continue that cause until the next term of court. They moved the Court to strike the petitioners’ entire amended complaint on April 16, and Judge Tyner entered such an order. The Hus-keys then filed a petition for rule nisi and writ of mandamus in this Court. This Court entered an order on April 23 requiring Judge Tyner to show cause why he should not be required to vacate his order sustaining the respondents’ motion to strike and why he should not allow the petitioners to amend. Judge Tyner answered the show cause order on may 23, forcing this adjudication on the writ of mandamus. We grant the writ.

This case presents two basic issues for review. First, is mandamus a proper remedy to review an order striking amended pleadings ? Second, does the entry of a pre-trial order substantially foreclose further amendments to the pleadings ?

On the first issue, both petitioners and respondents base their arguments upon the two recent Alabama cases, Ex parte Miller, 292 Ala. 554, 297 So.2d 802 (1974), and Ex parte Stead, Jr., 294 Ala. 3, 310 So.2d 469 (1975). Both cases address the issue of whether mandamus is an appropriate remedy for a party whose right to amend his complaint has been denied by the trial judge.

In the Miller case, the trial Judge had denied the petitioner’s attempt to add two new defendants by amendment. Justice Coleman reviewed previous Alabama law to the effect that mandamus is only proper where adequate relief cannot be had by appeal. He observed that if the petitioner were denied relief through mandamus they would have to go through an entire trial against the originally named defendants before trying their case against the two additional defendants. Such a result, he concluded, rendered appeal inadequate in that case. Still, he cautioned that “[i]t is not to be assumed or understood . that mandamus will be allowed as a method of reviewing all rulings denying the right to amend a complaint or other pleading.”

In Stead, the issue of whether mandamus was a proper remedy to review the denial of pleading amendments was addressed by Justice Faulkner. In the Stead case, the plaintiff had moved to continue the trial several times during a two-year period between the first filing- of the complaint and the proposed amendment. The amendment changed the entire theory of the action from a simple contract action to an action encompassing fraud, misrepresentation, negligence, and wanton breach of contract. Pointing out the petitioner’s “long history of delays and continuances,” Justice Faulkner concluded that this was one of the cases in which mandamus should not be allowed to review the ruling denying the right to amend. The rationale for denying mandamus in the Stead case was to weigh the prejudice to the opposing party against the possibility that the petitioner would have to go through a second trial. Where the trial on the issues would be unduly delayed or the opposing party unduly prejudiced, the petition should be denied.

Applying the Stead guidelines to the instant case, we find that the petitioners do not have a long history of delays in this trial; they have asked for no continuances and have offered no other amendments. Although it added a new cause of action for Blanche Huskey’s heart attack, the amended complaint still arises from the same general fact situation involved in the original complaint. With a continuance for medical depositions, the respondents can defend the amended complaint as easily as the original claims for relief. The continuance will, of course, delay the trial, but the crux of the Stead test is whether the amendment will “unduly delay” the trial or “unduly prejudice” the respondents. We hold that in the context of this case, where the bad faith elements of Stead are absent, the trial is not unduly delayed and the respondents are not unduly prejudiced by the amended complaint; therefore, mandamus is the proper remedy.

Turning now to the second basic issue of this case, we must decide what effect the entry of a pre-trial order should have upon the right to amend pleadings. This question is unresolved in Alabama practice.

The practice in the federal system is not standardized. Many circuits adhere to the strict view that the pre-trial order should not be altered except to prevent manifest injustice. Idzojtic v. Pennsylvania R. Co., 47 F.R.D. 25 (W.D.Pa.1969); Ely v. Reading Co., 424 F.2d 758 (3d Cir. 1970). Other circuits require that Rule 16 be read in conjunction with Rules 1 and 15 to allow amendments when justice so requires. Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973); Bucky v. Sebo, 208 F.2d 304 (2d Cir. 1953) ; Dering v. Williams, 378 F.2d 417 (9th Cir. 1967).

The countervailing opinions of the federal circuits dealing with this problem diverge from a common philosophical origin. They attempt to “balance the need for doing justice on the merits between the parties (in spite of the errors and oversights of their attorneys) against the need for maintaining orderly and efficient procedural arrangements.” 3 Moore, Federal Practice, § 16.20, at 1136 (1975).

The strict view of preserving the pretrial order is grounded on a policy of expediency. To clear crowded dockets by obtaining admissions of fact and encouraging settlement, to prevent surprise by revealing lists of witnesses and expected testimony, to simplify the conduct of the trial by refining issues and amending pleadings are among the reasons advanced for strictly adhering to pre-trial orders. Courts following this view hold that the trial court has a right to expect that at pre-trial proceedings counsel will be as thoroughly familiar with the case as they will be at trial. McCarthy v. Lerner Stores Corp., 9 F.R.D. 31 (D.D.C.1949). In those circuits, the pre-trial order will generally not be modified without a showing of manifest injustice and the trial judge is given broad discretion to deny proposed amendments. Ely v. Reading Co., supra.

On the other hand, circuits which permit liberal amendment of pre-trial orders emphasize the need for doing justice between the parties over maintaining an orderly procedure. These circuits read Rule 16 in conjunction with Rule 15 and “the mandate of Rule 1 that rules shall be construed to secure a ‘just’ determination of every action.” 6 Wright and Miller, Federal Practice and Procedure, § 1491 at 456 (1971).

In the 5th Circuit case of Wallin v. Fuller, supra, the court said, “Unbending adherence to the strictures of Rule 16 would, however, frustrate another broad policy of the federal rules favoring liberality of amendment. This policy is principally embodied in Rule 15, which deals with amendments to the pleadings. It is unlikely that the pretrial order under Rule 16 was intended to make the pleadings, and therefore Rule 15, obsolete.”

In choosing from these two views a course of Alabama law, we draw upon both the textual additions to ARCP 15(b) and the committee comments to ARCP 15 and 16 to discern the thinking of the drafters. The primary textual difference between the Alabama and the Federal Rules regarding amended pleadings is the final two sentences of Alabama’s Rule 15(b). They read, “An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

In his treatise on Alabama Practice, Champ Lyons, the Committee Reporter, admits that “it could be persuasively argued that the rules dictated the result commanded in the last two sentences of Rule 15(b) without their inclusion. However, Committee sentiment was heavily on the side of abundant clarity.” 1 Lyons, Alabama Practice, § 15.5, at 308-9. In discussing the philosophy of Rule 15, Lyons says that it is the sine qua non for the philosophy of the entire ARCP that “pleadings are a means, not an end, and the action should be resolved on its merits, not upon technicalities. . . . Without [Rule 15’s] permissive approach to the right to amend, the allegiance to substance over form which permeates these rules would not be attainable.” 1 Lyons, Alabama Practice, § 15.1, at 308. Such statements indicate that in the balance between expedient disposition of law suits and full justice on the merits, Alabama’s rules are weighted more heavily in favor of the latter.

To apply Alabama’s policy of liberal amendments to the post pre-trial order situation, we refer to the Committee Comments to Rule 16 for guidance. The Committee seemed to be strongly opposed to following federal precedent in this area: “[a]s the Rule approaches middle age in the Federal System, its abuse has returned issue simplification to a level reminiscent of the common law technicalities it was designed to replace . . . this committee condemns the imposition of burdensome and often wasteful requirements on pretrial preparation.” Alabama Rules of Court, p. 66 (1975). Bearing this comment in mind, we find it unlikely that the Committee anticipated the rigorous enforcement of pre-trial orders practiced in those federal courts which expect the counsel to be as thoroughly familiar with the case at pretrial as they will be at trial.

We believe that Alabama Rule 16 must be read in conjunction with Rule 15 and Rule 1; therefore, liberal allowance of amendment when justice so requires must take precedence over strict adherence to the pre-trial order in Alabama practice. The vast majority of federal courts adopting this approach have faced the issue in the context of the trial or post-trial situation where amendments were offered to conform the pleadings to the evidence under Rule 15(b). It is important to note, however, that appellants in the instant case have offered their amendments before the beginning of trial. Therefore, this case presents an even stronger argument for allowing amendments than the line of federal cases we choose to follow. When amendments are offered before trial, the argument that the opposing party is prejudiced by unfair surprise vanishes. There is still time for discovery and preparation, and a continuance to allow opponents to counter either new claims for relief or theories of defense is less time-consuming before trial begins than during its progress or by post-trial procedure.

Our analysis is not intended to establish absolute guidelines for allowing amendments following the entry of pretrial orders. It is intended, rather, to ex-pouse the philosophy of the Alabama rules in this area and explain how that philosophy dictates certain results. Under Alabama practice, the entry of a pre-trial order does not supersede the Rule 15 requirement that “amendments shall be freely allowed when justice so requires.” To comply with Rule 15, the trial judge must allow a proposed amendment if it is necessary for a full determination of the merits of the case and it does not unduly prejudice the opposing party or unduly delay the trial.

In the context of the instant case, the merits cannot be fully litigated without allowing the amendment because the amendment introduced additional claims for relief. The only remaining issue is whether the amendment results in undue prejudice or delay.

Primarily, the petitioners were trying to accomplish three things by amendments. First, they wanted to add an allegation of malicious conduct, thereby seeking punitive damages. Second, they wanted to include a claim for additional damages to Aubrey Huskey’s medical practice. Third, they wanted to introduce a new cause of action by linking the respondents’ trespass to a heart attack suffered by Blanche Huskey.

The first portion of the amendment would require no additional preparation on the part of the respondents. If they were prepared to defend a charge of simple trespass for compensatory damages, they should be prepared to defend the punitive allegation which will be more difficult for the petitioners to prove.

On the second addition, the respondents were already preparing to defend the claim of damage to Aubrey Huskey’s medical practice because they had requested and received all his tax returns for the years in question.

The final portion of the proposed amendment adding the cause of action for the heart attack presents different considerations because it requires medical testimony and expert witnesses. To meet this claim, the respondents may justifiably request a continuance. As was previously discussed, a continuance before the beginning of trial does not, in the usual case, unduly delay the litigation, and should be granted whenever it is necessary to achieve a just determination on the merits.

In view of our holding that the trial Court erred in granting respondents’ motion to strike petitioners’ amended complaint, we feel constrained to conclude on a note of caution. Nothing in this opinion is to be construed as impinging on the exercise of the trial court’s sound discretion in disallowing post pre-trial amendments in instances where the judicial process would be unduly delayed or impeded, or where prejudice to the substantial rights of the parties would result.

Writ granted.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, TJ., concur.

      . This is not to be understood as favoring a policy of treating the pre-trial conference and order as relatively unimportant. To be sure, Rule 16 can be given a meaningful field of operation only in the context of adequate preparation commensurate with the highest standards of professionalism. We only emphasize that the pre-trial conference is not a trial on the merits, and it should not result in an order so rigid as to preclude a full adjudication of each case.

      . This standard results from a combination of our explication of Rules 15 and 16 and the test set out in the Stead case, which we believe, of necessity, merged the considerations for the propriety of mandamus vis-á-vis appeal with the guidelines for allowing amendment to pleadings.


author: EMBRY, Justice.

text:
    Lou Ella CHAMBERS, as Administratrix of the Estate of Terry Chambers, Deceased v. Emil BUETTNER et al.
    SC 1161.
    Supreme Court of Alabama.
    Nov. 13, 1975.

      Stephen K. Griffith and J. David Knight, Cullman, William W. Smith, Birmingham, for appellant.
    Ralph Bland, and Finis E. St. John, Cullman, Clarence L. McDorman, Jr., Birmingham, for appellees.
   EMBRY, Justice.

Appeal from judgment on directed verdict in favor of defendants in a wrongful death action arising out of a fire allegedly caused by a faulty electrical system. Motion for a directed verdict was granted at the close of plaintiff’s case.

Plaintiff/appellant is Lou Ella Chambers, administratrix of the estate of Terry Chambers. Defendants/appellees are Alene T. Buettner, administratrix of the estate of Emil Buettner, also d/b/a Buett-ner’s Paint and Hardware Company, and the Utility Board of the City of Cullman (The Cullman Power Board).

There are three issues for decision: (1) Did Chambers offer a scintilla of evidence upon which reasonable men could differ which would support her cause of action against either the Cullman Power Board or Buettner? (2) Did the trial judge commit prejudicial error in refusing to allow Chamber’s expert witness to testify as to what sections of the National Electric Code was violated by the defendant’s electrical system? (3) Did the trial judge abuse his discretion in refusing to allow Chambers to recall a witness ?

On Saturday, IS July 1973, Terry Chambers visited the apartment of Wallace Logan and James Holmes, tenants of Buett-ner. The apartment was located over Buettner’s Paint and Hardware Store. Emil Buettner was the owner and landlord. Terry Chambers and others who were at the apartment were listening to music and drinking beer. Sometime during the evening Chambers fell asleep on a couch in the living room of the apartment. During the early morning hours of Sunday a fire started in the building and spread to the apartment. When the fire was extinguished, Terry Chambers’ body was discovered under a bed in the apartment bedroom.

In an amended complaint, plaintiff alleged that Emil Buettner was under a duty to rent the apartment in a reasonably safe condition for the protection of persons who were invited to come to the apartment. It further alleged Buettner violated this duty by negligently renting the premises in an unsafe or defective condition. The complaint also alleged the Cullman Power Board violated a duty to members of the public who would rightfully be upon the property by negligently furnishing electrical power service to the apartment when the apartment electrical system was unfit to receive such service.

The tendencies of the evidence showed: the fire originated in an electrical conduit which ran from meter boxes on the outside of the building to a fuse panel box in the upstairs hallway of the building; that box served a meeting hall which Buettner rented to a labor union; precise point of origin of the fire was in the conduit several inches below the fuse box; the insulation on the wires inside the conduit box broke down; this caused electricity to arc from the wire to the conduit; the intense heat generated by this arcing melted a hole in the conduit and caused the plywood wall behind the conduit to ignite. There was some evidence that the outside meter boxes, the conduit, and the fuse panel box were improperly grounded. Such an improper grounding would allow arcing to continue instead of overloading the circuit and blow the fuses to shut off electrical power.

Further tendencies of the evidence were: the meter box on the outside of the building in which the apartment was located was improperly grounded; the supplier of electricity (Cullman Power Board) connects service at this box; visual inspection of the outside meter box and the electrical conduits originating from that box and entering the building should have indicated to the serviceman that the system as a whole was defective, therefore Chambers asserts that the Cullman Power Board knew or should have known that the system was defective, and power should not have been supplied to the building.

The Directed Verdict For The Cullman Power Board

Chambers claims the Power Board committed actionable negligence in supplying electricity to a defective electrical system. The duty of a supplier of electricity to premises wholly owned and controlled by the recipient of service is well settled. A supplier who merely furnishes electricity is not responsible for defects in the system to which electricity is supplied. It is under no duty to inspect the system to which electricity is supplied. The duty of the supplier ends when the connection is properly made, when the supplier has no control over the premises, and the supplier is without actual knowledge of any defective or dangerous condition. City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692 (1959). See also Chilton Butane Gas, Inc. v. Marcus, 289 Ala. 292, 267 So.2d 140 (1972).

“Until notice is brought home to the generating company that the distribution system of its customer is out of repair, so as to endanger life or property, the * * * [supplier] has the right, reasonably and justly so, to assume that the * * * [customer] will maintain proper equipment to receive and distribute the current, (citation omitted)” (emphasis added) Johnson v. Alabama Power Co., 230 Ala. 91, 94, 159 So. 695, 698 (1935)

If, on the other hand, the supplier of electricity also undertakes to install wiring, parts of the wiring system, or electrical appliances it is responsible for constructive knowledge of defects or insuf-ficiences which present potential hazards. Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729 (1934). Under the facts, disclosed by the evidence, in this case the Power Board could be liable only if it had actual knowledge of any defects in the electrical system to which it supplied electricity. The evidence was that the serviceman of Cullman Power Board who made the service connection to the meter box of the Buettner premises observed the box to be grounded. He was under no duty, under the evidence in this case, to further inspect as to the sufficiency of the grounding.

Careful review of the evidence, viewed most favorably to plaintiff Chambers, fails to turn up a scintilla to the effect that any agent of the Power Board had actual knowledge of any defect or insufficiency in the Buettner premises electrical system. Directing verdict for the Power Board was without error.

The Directed Verdict For Aleñe Buettner

Chamber’s complaint alleged Buettner had a duty to rent the premises in a reasonably safe condition for the protection of members of the public invited on the premises by the tenant; that Buettner negligently violated this duty owed to Terry Chambers who was visiting Buettner’s tenants on the night of the fire.

The general rule of law with respect to guests of tenants is well settled. The landlord, in the absence of a covenant to repair, is liable only for latent defects, known to him at the time of the leasing, and which are concealed from the tenant. Davenport v. Bonner, 275 Ala. 131, 152 So.2d 678 (1963). There was no proof in this case either that Buettner had agreed to make any needed repairs to the premises, a part of which were rented to Chambers’ hosts on the fateful occasion, or that Buettner knew of and concealed any latent defect in the premises relating to the electrical system.

Chambers claims Buettner’s liability can be properly bottomed on the rule of law with respect to injury to strangers caused by a defect in rented premises as expressed in Great Atlantic and Pacific Tea Co. v. Traylor, 239 Ala. 497, 195 So. 724 (1940). The instant case clearly is within the ambit of the rule of liability of landlord to tenant and his privies rather than the rule of liability of landlord to strangers.

Chambers further asserts that she was entitled to have her case submitted to the jury on the theory that the offending conduit ran to a panel box which served a union hall in the premises; that the conduit and panel box therefore were not part of the premises rented to Logan and Holmes (tenants of Buettner and invitors of decedent Chambers) hence in the exercise of reasonable care Buettner could and should have discovered the defect or insufficiency in the grounding of the conduit and owed a duty to decedent Chambers to correct any defect or insufficiency.

This theory must fail even if we assume, arguendo, that any defect or insufficiency present was “a dangerous condition” such as would invoke the rule set out in Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585 (1924). The rule as established in that case is also embodied in Restatement (Second) of Torts, § 361 (1965):

“A possessor of land who leases a part thereof and retains in his control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care
(a) could have discovered the condition and the risk involved, and
(b) could have made the condition safe.”

The two principal reasons the theory advanced by Chambers, last referred to, will not operate under the rule set out in the Restatement to permit a jury to pass on the liability of Buettner to Chambers are: (A) There was no evidence that Buettner retained control over that portion of the premises where the conduit was located that may have been insufficiently grounded. (B) There was no evidence that Buettner could have discovered the condition and the risk involved. As to B some evidence would be necessary which showed at least a rudimentary knowledge on the part of Buettner of proper methods of electrical wiring systems, grounding etc. so that any discoverable condition that existed would have alerted him to a risk of physical harm to anyone lawfully on the premises.

As is well known, a motion for a directed verdict at the close of the plaintiff’s case tests the sufficiency of the plaintiff’s evidence to entitle the claim for relief to be submitted to the jury for decision.

“ * * * If a trial judge decides there is not a scintilla of evidence upon which the jury could reasonably reach a verdict * * * he can direct the verdict without submitting the credibility of the witnesses to the jury if their testimony is uncontradicted and unimpeached. * * *” Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

The trial and appellate courts must view the evidence in the most favorable light to the party against whom the motion was made. Alabama Power Co. v. Taylor, supra; 5A Moore’s Federal Practice, |f 50.-02[1], at 2325 (1975); in this case in the most favorable light to Chambers. Thus viewed the evidence was not sufficient to amount to a scintilla upon which the jury could reasonably reach a verdict against either the Power Board or Buettner.

Expert Opinion As To Violations Of Electrical Code

During trial Chambers asked an expert witness the following question:

“Now, with reference to the grounding system and the connection as it existed as you saw it on September the 1st, and I think you said it appeared to have been in the same condition for a long time, does that system violate any specific paragraphs or sections of the National Electrical Code?”

Objection to this question was properly sustained. Alabama Power Co. v. Williams, 222 Ala. 75, 130 So. 788 (1930); 7 Wigmore on Evidence, § 1955, at 85-86 (1940).

Discretion Of The Trial Court

Chambers attempted to recall Cecil Langley, the electrician who installed the electrical system in Buettner’s store. The Cullman Power Board objected.

“THE COURT: I am going to sustain any questions to him, it is in rebuttal, I am assuming, you have nothing to rebutt (sic) at this time.”

Chambers made no offer of proof as to what he intended to show by recalling Langley nor did he attempt to disabuse the court of the assumption that the witness would be used merely in rebuttal. Both parties recognize that the right to recall a witness rests within the discretion of the trial court. The trial court did not abuse that discretion in this case.

There were no errors in the trial of this action which require reversal.

Affirmed.

BLOODWORTH, MADDOX, FAULKNER and ALMON, JJ., concur.

      . Emil Buettner died while the case was pending. This action was revived against his ad-ministratrix prior to trial.

      . A third defendant, Cecil Langley, the electrician who installed the system at Buettner’s Store, was dismissed as a party defendant upon motion by plaintiff.

      . Buettner and the Power Board attempted to elicit testimony that the fire originated in the apartment. However no evidence was presented which would support this hypothesis.


author: FAULKNER, Justice. JONES, Justice

text:
    In re the MEAD CORPORATION v. CITY OF BIRMINGHAM, Alabama, et al. Ex parte CITY OF BIRMINGHAM, a Municipal Corporation.
    SC 1211.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Rehearing Denied Nov. 26, 1975.
    Johnson, North, Haskell & Slaughter and Frank M. Young, III, Birmingham, for petitioner.
    Norman K. Brown, W. G. Stone, Fred A. Powell, Powell Lipscomb, Jack Harrison, Bessemer and Birmingham, for respondent.
   FAULKNER, Justice.

The City of Birmingham filed a petition for writ of mandamus, praying that this court require Judge Pickens to transfer the cause to the Birmingham Division. We grant the writ.

On February 4, 1975, the City Council of Birmingham adopted a resolution of annexation of certain territory located outside the city limits. An election was ordered to be held on March 8, by the Probate Judge. Meanwhile, on February 17, Mead Corporation filed a complaint in the Bessemer Division of the Circuit Court challenging the legality of the election, and seeking a temporary restraining order, and a preliminary injunction. Judge Pickens issued a temporary restraining order. Subsequently Birmingham filed a motion to transfer the case to the Birmingham Division, alleging that the cause of action did not accrue or arise in the Bessemer Division, and therefore that division did not have jurisdiction. Judge Pickens overruled the motion. On appeal to this court, we suspended the temporary injunction that had held up the election. The election was held, as scheduled, and a majority of the qualified electors voted in favor of annexation. In accordance with our order, the results were not certified to the Judge of Probate.

After the election, Birmingham petitioned this court for a writ of mandamus, asking that Judge Pickens’ order denying the motion to transfer, be set aside. We issued a rule nisi requiring the Judge to show cause why his order should not be set aside, and the case transferred to the Birmingham Division. Judge Pickens answered that the territory sought to be annexed was within the Bessemer Division; consequently, the action was properly brought there. On the other hand, Birmingham asserts that the action was improperly brought in the Bessemer Division because the cause of action did not accrue or arise within the territorial limits of that division and that the Bessemer Division has exclusive jurisdiction only over causes of action arising within it.

In Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 10 So.2d 746 (1942) this court said, “. . . the court at Bessemer has exclusive jurisdiction of all civil actions at law upon causes of action arising in the territorial jurisdiction of that court, and such jurisdiction is limited to suits upon causes of action arising within such territory.” In Ex parte Southern Building Code Congress, 282 Ala. 523, 213 So.2d 365 (1968) this court re-emphasized that the venue approach had been abandoned, and adopted as a basis of jurisdiction in the Bessemer Division, the fact as to where the cause of action, or case, accrued or arose.

In this case we are of the opinion that the cause of action accrued or arose in the Birmingham Division. The subject matter of the suit does not involve title to land. On the contrary, the subject matter is an election having its situs in Birmingham. The Probate Judge ordered the election held in Birmingham, the ballots were canvassed in Birmingham, and the results were made known there. Thus, all of the facts giving rise to the suit occurred in Birmingham. The suit, therefore, should be heard in Birmingham, and the trial judge erred when he denied the motion to transfer.

The writ of mandamus is due to be awarded.

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

SHORES, J.; concurs in the result.

JONES, J., dissents.

JONES, Justice

(dissenting) :

I disagree with the result and the rationale of the majority. The question presented by this Petition for Mandamus is controlled by the Bessemer Court Act of 1919 (Local Acts of 1919, p. 62), §§ 2 and 9^4, which provides in pertinent part that all equity cases arising in the Bessemer CutOff may be brought either in Bessemer or Birmingham, and that no case at law or in equity is to be brought in Bessemer unless the case arose in the Bessemer Cut-Off. Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 10 So.2d 746 (1942). All of the territory sought to be annexed through the annexation election is situated in the Bessemer Cut-Off, and all of the people affected thereby live in the Bessemer CutOff. To hold — as the majority does — that, since the election was scheduled by the Probate Court to be held in Birmingham, the cause of action arose in Birmingham and not in the Bessemer Cut-Off is an adjudication of one of the principal issues raised in the complaint filed by Mead Corporation challenging the legality of the election.

The opinion states as a fact that “the subject matter is an election having its si-tus in Birmingham. The Probate Judge ordered the election held in Birmingham, the ballots were canvassed in Birmingham, and the results were made known there.”

it seems to me that the entire factual basis for concluding that the cause of action (Mead’s complaint contesting the election) did not arise in the Bessemer Cut-Off has been adjudicated adversely to Mead for the first time in this cause on appeal. The only issue properly before this Court is whether Mead’s election contest suit is an action which accrued in the Bessemer Cut-Off and thus was properly filed there.

For this Court to adjudicate the merits of Mead’s claim of contest can only have the effect of cutting the pattern to fit the cloth. By prejudging the merits of Mead’s main action, the Court has found a factual basis for concluding that the cause of action accrued outside the territorial limits of the Bessemer Cut-Off. The fact that the election has already been held in Birmingham, in support of the conclusion that the cause of action accrued in Birmingham, constitutes some sort of reverse rationale to which I am judicially unaccustomed.

I have made no prejudgment as to the merits of Mead’s contentions for contesting the election; but I have no difficulty in concluding that the legislative acts creating the Bessemer Cut-Off permit a suit to be filed and maintained in Bessemer which has as its gravamen the contest of an annexation election affecting solely the territory and people within the geographical confines of the Bessemer Cut-Off.


author: MERRILL, Justice.

text:
    Phillip HOOMES et al. v. INTERNATIONAL HARVESTER COMPANY, a corporation.
    SC 1222.
    Supreme Court of Alabama.
    Nov. 13, 1975.
    John L. Jernigan III (Stokes & Jerni-gan), Brewton, for appellants.
    Garrett, Thompson & Price, Brewton, for appellee.
   MERRILL, Justice.

This appeal is from summary judgment in favor of defendant. We reverse and remand for further proceedings.

Plaintiff’s second Count Four of their complaint charged fraud or deceit or misrepresentation on the part of defendant in that plaintiffs claimed that they purchased a truck which defendant represented as a new truck when, in fact, it was not new.

A pretrial hearing was held on February 6, 1974, and the deposition of the original plaintiff, Phillip Hoomes, was taken March 6, 1974. Defendant moved for a summary judgment on March 8 and it was granted on April 5. Plaintiff moved to amend by joining Carey Hoomes as a party plaintiff, and the amendment was allowed. On September 5, 1974, defendant moved for a dismissal of plaintiffs’ breach of warranty claim. Plaintiffs dismissed the action on November 11 and plaintiffs’ counsel withdrew from the case on January 27, 1975. Present counsel was given permission to refile and the second Count Four was refiled on February 13. Defendant again moved for summary judgment. The motion was heard on February 24, 1975.

The only evidence was the deposition of the plaintiff, Phillip Hoomes. He was an experienced truck driver and had been driving trucks for some nine years when he purchased the truck in question at defendant’s place of business in Dothan. He arrived in Dothan at 8:00 A.M. on March 16, 1974. He talked with defendant’s salesman, E. S. Patton. His testimony was that Patton represented to him that the vehicle was new and that the 1900 miles on the speedometer constituted the mileage from having been driven from the manufacturer’s place of business in Fort Wayne, Indiana to Dothan, and one demonstration ride into the State of Georgia and back. Hoomes inspected the truck. He found that the truck had a different number of miles on it than would have normally corresponded with the hours shown on the tachometer ; and that the tachometer actually showed 236 or 237 hours, that the speedometer showed 1900 miles. He asked that they set the number of hours back on the tachometer, which they did at his request. He noticed that the truck had a dead battery, a skinned place on the fender and “stuff like that.” The seller replaced U-bolts that he had requested. He also observed that the truck had a broken windshield. After all of his inspections, he then road-tested the truck himself and discovered that the oil pressure gauge on it did not work, and requested it be changed, and it was replaced. He left with the truck about 5:00 P.M. At one stage of his testimony, the following appears:

“Q. Phillip, with nineteen hundred (1900) miles on it you knew that this was not a new truck when you purchased it, didn’t you ?
“A. Well, Yeah, in a way and in a way not because I asked them about that and they said that is the mileage from Fort Wayne, Indiana, where the truck was manufactured, to Dothan, Alabama, and one demonstrator to Georgia and back.”

Hoomes drove the truck some 30,000 miles before filing the suit, His deposition also showed that the tachometer, which had been set back, was not the original tachometer that had been on the truck. The original had been replaced by defendant.

Part of the trial court’s decree reads:

“ * * * It is further ORDERED and ADJUDGED, that the motion for summary judgment as to the Second Count Four sounding in the theory of recovery on the basis of fraud or deceit or misrepresentation be and is hereby granted, based on the deposition of the plaintiff and the acknowledgement of the plaintiff therein that he knew that the truck was not ‘a new truck’ at the time it was purchased.”

It must be conceded that the tendencies of the evidence support the finding of the trial court; but the evidence that plaintiff “knew that the truck was not ‘a new truck’ at the time it was purchased” was not wholly uncontested. It can be seen that the quoted part of Phillip Hoomes’ deposition was equivocal, and his deposition did cast some doubt on the verity of the representations that he contended were made to him that the truck had only been driven from the manufacturing plant in Indiana to Dothan and on a demonstration trip into Georgia.

The deposition of Hoomes, taken in its entirety, does, raise, in our opinion, a sufficient genuine issue of fact for trial as required by ARCP 56(e), and there is no evidence by way of any counter affidavit on the part of the defendant. The plaintiffs’ evidence, though slight, was sufficient to avert a summary judgment at this stage of the proceedings.

Reversed and remanded.

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


text:
    Joseph RUDOLPH v. Mary BRADLEY et al.
    SC 1251.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    Arthur D. Shores, Birmingham, for appellant.
    Tipler, Fuller & Barnes, Andalusia, for appellees.
   JONES, Justice.

Is the trial Court’s finding, and decree rendered thereon, that Mary Bradley is an heir of Andrew Lee Rudolph, and thus owns a one-half undivided interest in certain property, supported by competent evidence? It is ; therefore, we affirm.

Under the posture of the record before us, Mary Bradley can sustain the burden of upholding the decree in her favor if there is any evidence from which the trial Judge could find that she was born after the marriage of her mother and father, Andrew and Annie Rudolph, or that Andrew Rudolph, her putative father, after his marriage to her mother, recognized Mary as his child.

Certain background facts are not in dispute. Andrew Rudolph had one child, Irene, by his first marriage. At the time of Irene’s death she was survived by her husband and seven children, all of whom conveyed their interest to the appellant, Joseph Rudolph. After the death of Irene’s mother, Andrew married Annie Autrey on January 3, 1933. Annie had four daughters— Brunetta, Daisy, Annie Lee, and Mary. The three oldest children were admittedly born before Annie and Andrew married. Annie Lee, the youngest of the three, was born in 1930.

The factual controversy centers around the date of birth of the youngest child, Mary. The case was tried before the Court without a jury. The oral testimony is in sharp conflict and the documentary evidence is not conclusive. There was evidence, however, tending to prove that Mary was born in 1933 and that the youngest of Annie’s four children was not born until after Andrew came to live at “Uncle Amos’s”, the home where Annie was living at the time of her marriage to Andrew on January 3, 1933.

Moreover, there is ample evidence, though contradicted, to support the finding of legitimacy on the basis of Andrew’s recognition of Mary as his daughter following his marriage to Annie. Tit. 27, § 10, Code.

Our scope of review under the ore tenus rule is too well settled to bear repetition or elaboration. See Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 747, 287 So.2d 847 (1973).

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    Judy Norma WOMBLE v. Carlos Arthur WOMBLE, Jr.
    Civ. 528.
    Court of Civil Appeals of Alabama.
    Aug. 27, 1975.
    Rehearing Denied Sept. 24, 1975.

      Harry B. Cohen, Birmingham, for plaintiff.
    Robert S. Vance, Birmingham, for defendant.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of modification of a decree for child support.

The parties were divorced in 1962. There were two children. By agreement, the divorce decree awarded custody of the children and support in the sum of $100.00 per month to plaintiff. The children were then infants.

In 1970, upon petition of plaintiff, modification, based upon agreement, was entered increasing support to $150.00 per month.

The present petition was filed in July, 1974. Changed circumstances were alleged since 1970, which included increased age of the children, physical and mental disabilities of the children requiring expensive treatment and appliances, increased cost of living due to inflation and increase in ability of defendant to contribute.

Evidence was submitted by plaintiff that the children were 12 and 13 years of age. One child had a learning disability causing him to be two to three grades behind his peers in school. However, plaintiff had been advised that special schooling was needed. The cost of such school was $1,000.00 per year. The other child had a serious overbite which needed to be corrected by orthodontic treatment and appliances prior to age IS. Cost of such appliances and treatment was not shown. However, the trial judge announced to plaintiff that he had children of his own and was familiar with such costs. There was some itemization of expense incurred in the support and maintainence of the children by plaintiff. Such expense substantially exceeded the amount contributed by defendant. There was undisputed evidence that the income of defendant had increased some three to four thousand dollars since the last decree, and that his present income was approximately $18,000.-00 per year. It was shown that defendant had been transferred from Ohio to California and had been given a substantial increase in salary to compensate for the difference in cost of living between the two localities. There was a comparison of income after taxes between plaintiff and defendant in 1973, with the amount of support contributed by defendant added to the income of plaintiff and deducted from the income of defendant. The result was that their net incomes were approximately the same. It is to be noted that plaintiff at times had worked at more than one job to produce her income. It is to be noted that the trial court used such comparison of income in its decree. We will discuss this aspect later in this opinion.

The basic issue on this appeal is whether the court erred in its finding that there had been no material change of circumstances since the decree of 1970 warranting a modification thereof.

We repeat here what we said in Sellers v. Sellers, 50 Ala.App. 158, 277 So. 2d 616.

“We approach this appeal, as in all cases in which the testimony is heard orally by the court, with the presumption that the decree of the court is correct. Lee v. Lee, 283 Ala. 275, 215 So.2d 718; Alabama Elec. Co-op., Inc. v. Partridge, 283 Ala. 251, 215 So.2d 580; Jordan v. Ellis, 278 Ala. 116, 176 So.2d 244. That the modification of a prior decree for support and alimony, based upon changed circumstances of the parties, is largely a matter within the judicial discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if from a review of the evidence this court finds in the decree such an abuse of discretion as to be plainly and palpably wrong. Southern Sash of Huntsville, Inc. v. Jones, 286 Ala. 672, 245 So.2d 185; Brantley v. Hall, 286 Ala. 400, 240 So.2d 364; Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878.”

Our review of the evidence results in the conclusion that the court erred in finding that there had been no change in conditions and circumstances of the parties and that the “financial needs of the children have not substantially changed beyond the needs recognized and contemplated by the parties at the time this matter was last before the court.”

The conditions and circumstances of the parties, though pertinent, are not the controlling criteria in determining the changed needs of the children. It is the material change in the needs, conditions and circumstances of the children that is the most pertinent factor in considering modification of a decree of support. That factor coupled with the father’s financial ability to meet such needs determines the basis for modification. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797.

The finding in the decree that the children’s financial needs have not substantially changed beyond that recognized and contemplated by the parties at the time of the last decree implies that the court is to be bound by contemplation or agreements of the parties in determining the needs of the children. Such is not the law. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348; Hall v. Hall, 280 Ala. 275, 192 So.2d 727. The mother cannot waive or release a father from his obligation to meet the needs for support of his children as they are shown to exist at any time. If the father is financially able to respond to those needs as they may materially change from time to time, it is the responsibility of the court upon petition and proof to cause him to do so. The primary responsibility of support for minor children falls upon the father within his reasonable financial capabilities. Brock v. Brock, 281 Ala. 525, 205 So.2d 903.

The comparison of income and financial ability between the mother and father is not the proper criteria for determining the amount of support required of the father. The evidence shows without dispute that the mother, has throughout the life of the children in this case, furnished the majority of their financial needs. It is further undisputed that she has furnished all the love and parental care and attention they have received. The fact that she has by agreement, necessity, or acquiescence accepted and fulfilled such responsibility does not and cannot release tfie father from presently assuming an additional portion if the present needs of the children require it. If it be a fact that the mother’s income is as great or greater than the husband’s, such in no way changes the primary and compelling responsibility of the father to furnish support according to the needs of the children within his reasonable ability to do so. Brock v. Brock, supra. If it were otherwise, the liability of the father would not depend upon his means but upon that of the mother.

As we see it, the question presented by the request for modification by increase in support was: do the children, due to material changes in circumstances since the decree of 1970, have need for additional support from their father and does he have reasonable financial ability to meet all or some of such need?

Whether such increase in need was contemplated or recognized by the parties in 1970 appears immaterial.

It is without dispute that since 1970, events and circumstances have indicated that one child is having learning difficulty in school and is unable to keep up with his peers. The evidence indicates rather expensive special school is necessary for him to develop to his best capacity. It is further undisputed that the other child needs orthodontic care and appliances. The immediate and evident need for such care has arisen since 1970. It is a matter for judicial recognition that the sum of $150.00 per month has markedly lost purchasing power since 1970. It is further undisputed that because of advanced age and activity the cost of feeding, clothing, supplying school equipment and furnishing other needs of growing boys has increased.

Thus we have enumerated material changes of circumstances affecting the needs of the children since 1970. Plaintiff presented evidence from which the court might determine some of the cost of the needs brought about by such changed circumstances. The court may take judicial knowledge of increased need due to change in the state of the economy. Others may be determined upon remandment. The means available to defendant is before the court. It is within the discretion of the court to determine if and how much defendant, from such available means, is reasonably able to contribute. It does not require comparison of income to determine that whatever needs defendant is not required to supply, plaintiff or someone else must do so. Such has been the case for 13 years. Plaintiff is to be greatly commended for having performed so well from the age of 20.

Appellee cites our case of Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627, and indicates that it supports the balancing of abilities of the mother and father to furnish support as the court did in its decree. Our decision in that case gives no such support. We restated there the primary responsibility of the father to support his children but stated that if such responsibility was incapable of being performed we knew of no law which prevented requirement of support by a mother if she was shown capable of doing so. What we said in Thomason supports what we have said here and in no way indicates that the primary responsibility of a father is lessened by showing capability of the mother to contribute.

We hold that the trial court erred in finding in its decree that there had been no substantial change in the financial needs of the children since the decree of 1970. We therefore reverse the decree and remand for consideration of the needs of the children because of changed circumstances and determination of the financial ability to contribute to such needs.

Reversed and remanded.

On Motion to Dismiss

Where decree is a single unit, assignment of error alleging merely that the decree is not supported by the evidence is sufficient. Robbins v. Kelson, 284 Ala. 645, 227 So.2d 415; Powell v. Powell, 285 Ala. 230, 231 So.2d 103.

Motion denied.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    In re Judy Norma WOMBLE v. Carlos Arthur WOMBLE, Jr. Ex parte Carlos Arthur Womble, Jr.
    SC 1487.
    Supreme Court of Alabama.
    Oct. 30, 1975.
    Robert S. Vance, Birmingham, for petitioner.
    Harry B. Cohen, Birmingham, for respondent.
   FAULKNER, Justice.

Petition of Carlos Arthur Womble, Jr. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Womble v. Womble, 56 Ala.App. —, 321 So.2d 660.

Writ denied.

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