text:
    Josephine KNIGHT et al. v. BURNS, KIRKLEY & WILLIAMS CONSTRUCTION COMPANY, INC., et al.
    SC 1252.
    Supreme Court of Alabama.
    May 7, 1976.

      Albert W. Copeland, Montgomery, for appellants.
    Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellee.
   HEFLIN, Chief Justice.

This case is an appeal from a dismissal granted by the trial court pursuant to a Rule 12(b)(6) motion filed by the defendant Burns, Kirkley and Williams Construction Company (Burns). This court reverses.

The action was originally brought by the dependent mother and sister of Shade Knight for Knight’s wrongful death under the provisions of Title 26, Section 312, Code of Alabama, 1940, as amended. The case is before the court on the allegations of the complaint alone. The facts alleged in the complaint show that Shade Knight died while working for Smith Plumbing and Heating Company which had contracted with defendant to install an underground sewer in a trailer park the defendant was constructing as general contractor. At the time of his death, Knight was working on the trailer park project in a trench more than 10 feet deep. He died when the sides of the trench caved in.

The complaint, as to the defendant Burns, is in two counts. Count I alleges that Burns, at the time of Knight’s death, was subject to the Occupational Safety and Health Act of 1970 and the regulations promulgated thereunder, which prescribe that, where persons are required to work in a trench more than five feet deep in unstable soil, appropriate precautions must be taken to shore, sheet, brace, properly slope or otherwise support the sides of the trench to avoid a cave-in. 29 C.F.S. § 1926.652 (a)-(b) (1975). The count goes on to allege that these precautions were not taken and that Burns’ negligent failure “to take appropriate precautions to shore, sheet, brace * * *, to furnish Shade Knight safety devices and safeguards, * * * to adopt and use methods and processes reasonably adequate to render the employment of Shade Knight and the places where his employment was to be performed reasonably safe * * * or * * * to do> everything reasonably necessary to protect the life, health and safety of the said Shade Knight, who, at the time of his injury and death as aforesaid was not a trespasser” was the proximate cause of Knight’s death.

Count II of the complaint alleges liability of the general contractor based on the following theory:

“On said date the work being performed by Shade Knight as an employee of Smith was inherently or intrinsically dangerous, however skillfully done and the defendant Burns knew, or in the exercise of due diligence should have known, of the dangers inherent in the performance of such work.”

This count further asserts that Burns’ negligent failure “to see that all reasonable precautions were taken during the performance of the work by Smith to the end that employees of Smith such as Shade Knight could have been effectively protected against injury or death” was the proximate cause of Knight’s death.

The only error assigned by appellants is the trial court’s action in dismissing the complaint. In reviewing this assignment, this court must determine whether it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. This standard for determining the merits of a motion to dismiss was recognized by the court in Bowling v. Pow, 293 Ala. 178, 186, 301 So.2d 55, 63 (1974) which follows the rule established in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The defendant argues that the Occupational Safety and Health Act (OSHA) creates no duty on defendant’s part and gives no private remedy to plaintiffs. The defendant cites Skidmore v. Travelers Insurance Company, 483 F.2d 67 (5th Cir.1973); Russell v. Bartley, 494 F.2d 334 (6th Cir.1974); and Hare v. Federal Compress and Warehouse Company, 359 F.Supp. 214 (N.D.Miss.1973). In Russell v. Bartley, supra, the 6th Circuit in a per curiam opinion said:

“OSHA’s declared purpose is ‘to assure so far as is possible every working man and woman in the Nation safe and healthful working conditions. . . .’ 29 U.S.C. § 651(b). To this end the Act specifies safety requirements for employers engaged in interstate business and emphasizes the duty of the employer to provide safeworking conditions. Enforcement of that duty is by criminal sanction, civil penalty and the right to injunctive relief. However, nowhere in the statute or in the record of the debate on the Act in Congress is there any mention of a private civil remedy against anyone for damages suffered by an employee because of a violation of the Act. On the contrary, the Act provides that:
‘Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.’ 29 U.S.C. § 653(b)(4).
“Arguments not unlike those made by appellant were advanced in two cases emanating from the Fifth Circuit. Hare v. Federal Compress and Warehouse Co., 359 F.Supp. 214 (N.D.Miss.1973); Skidmore v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.La.1973), aff’d per curiam, 483 F.2d 67 (5th Cir.1973). In Hare the plaintiff sought to fix liability upon a property owner or the prime contractor who hired the subcontractor whose employee was killed as a result of alleged OSHA violations. The court dismissed this claim because ‘the act does not “enlarge or diminish or affect any . liabilities of employers . . . under any law . . . .’29 U.S.C. § 653(b) (4).” 359 F.Supp. at 218. Skidmore involved a complaint filed against executive officers of the injured workman’s employer for the employer’s failure to comply' with the Act. The Skidmore court stated as follows: ‘While the statute imposes a duty on employers, . . . it does not mention any private civil remedy against the employer . . . .’ 356 F.Supp. at 671. In neither of the above cases was the employer named as a defendant, but both courts clearly recognized the difficulty in concluding that OSHA directly or impliedly created any type of civil remedy in favor of employees.
“[T]here is no legislative history or case law to support appellant’s proposition that OSHA created a private civil remedy and the clear language of § 653(b)(4) of the Act specifically evidences a congressional intention to the contrary. Therefore, the District Court’s determination that it lacked jurisdiction under 28 U.S.C. § 1331 was eminently correct.”

The plaintiffs have not directed this court’s attention to any case which holds that OSHA establishes a new private civil remedy against anyone for damages suffered by an employee because of a violation of the Act. In its own independent research, this court has found no such cases. This court holds that the plaintiff does not have a private civil remedy in this case because of a violation of the Occupational Safety and Health Act of 1970 or the regulations promulgated thereunder. However, this does not mean that appropriate and relevant standards and safety requirements established by OSHA or accompanying regulations are completely and totally irrelevant. In the case of City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939) this court upheld the admission into evidence of “Safety Rules For the Installation and Maintenance of Electrical Supply and Communication Lines” from the “Handbook of The Bureatt of Standards, No. 10,” for the jury to consider in determining whether a defendant was negligent or not. These safety rules were promulgated by an agency of the United States Government. Under proper circumstances Occupational Safety and Health Act provisions and regulations may be admissible for a jury to consider in determining the standard of care that a defendant should have followed, if properly introduced in accordance with the requirements of the City of Dothan v. Hardy, supra.

Plaintiffs’ complaint alleges that defendant’s negligence caused Shade Knight’s death. Defendant argues that the complaint is “fatally insufficient” because it fails to set out a duty owed to plaintiffs’ decedent by defendant Burns. The cases cited for this proposition were decided prior to the adoption of the Alabama Rules of Civil Procedure which require only a short and plain statement of the claim so as to give defendant fair notice of the claim against him. The complaint in this case is sufficient under Rule 8(a) to put defendant on notice even though there is no specific allegation of a duty owed; thus, it is not subject to dismissal on this account. Watwood v. R. R. Dawson Bridge Co., Inc., 293 Ala. 578, 307 So.2d 692 (1975).

On the question of the prime contractor’s liability to Knight, the Alabama cases hold as a general rule that a prime contractor is not liable for the acts of an independent subcontractor whom he has employed. Williams v. Wise, 255 Ala. 322, 51 So.2d 1 (1951); Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23 (1931); Baker v. Atlanta B. & A. Ry. Co., 163 Ala. 101, 49 So. 751 (1909); Caldwell v. Atlantic B. & A. Ry. Co., 161 Ala. 395, 49 So. 674 (1909). But the contractor is liable for his own negligence which injures an employee of a subcontractor. Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87 (1967); Tennessee Coal, Iron & R. R. Co. v. Burgess, 158 Ala. 519, 47 So. 1029 (1908). Also at least two exceptions exist to the general rule set out above: (1) the general contractor may be liable for injury to a third person where the work “is of such kind or class that the doing of it, however carefully or skillfully performed, will probably result in damage, or is necessarily and intrinsically dangerous * * *,” Baker v. Atlanta B. & A. Ry. Co., 163 Ala. 101, 105, 49 So. 751, 752 (1909); Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757 (1905). (2) The general contractor “is responsible for the manner of the performance of his nondelegable duties, though done by an independent contractor * * * ” Dixie Stage Lines v. Anderson, 222 Ala. 673, 675, 134 So. 23, 24 (1931); Southern Ry. Co. v. Lewis, 165 Ala. 555, 51 So. 746 (1910). Thus, if the contractor owes a duty to a third person by reason of a contract or by law, he cannot divest himself of liability for the negligent performance of his duty by employing an independent subcontractor.

Here, because of the dismissal of their action, plaintiffs were given no opportunity to prove facts which would bring them under any of the exceptions to the general rule of non-liability. Conceivably there are such facts which if proven would support their claim and entitle them to relief.

The facts of this case and our disposition of it follow closely the recent case of Watwood v. R. R. Dawson Bridge Co., Inc., 293 Ala. 578, 307 So.2d 692 (1975). In Watwood, plaintiff was injured when a power saw supplied by his employer, a subcontractor to the defendant R. R. Dawson Bridge Company, “kicked back,” severely cutting his leg. In his complaint against the defendant prime contractor, plaintiff alleged liability based on defendant’s “negligently causing, negligently permitting and negligently allowing” the Plaintiff to use the unsafe power saw “in violation of the Federal Safety and Health Regulations for Construction * * Defendant moved for summary judgment, which was granted by the trial court. This court overturned the trial court’s action finding that the complaint contained sufficient language to put the defendant on notice that the plaintiff was raising the issue of ordinary negligence and raised material issues of fact sufficient to withstand summary judgment. In the case presently before the court, plaintiffs have been given no opportunity to present facts other than those alleged in the complaint. But, there are conceivable facts which, if proven, would entitle plaintiffs to relief. Therefore, this court finds that the trial court’s dismissal of the action was inappropriate and is due to be reversed.

REVERSED AND REMANDED.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Helen B. CONE v. Jack B. CONE.
    SC 1595.
    Supreme Court of Alabama.
    May 7, 1976.
    Smith & Smith, Dothan, for appellant.
    Samuel L. Adams, Dothan, for appellee.
   BLOODWORTH, Justice.

Appellant, Mrs. Helen B. Cone, appeals from a declaratory judgment adjudging the ownership of certain property (title to which is held in Mrs. Cone’s name) to he in her ex-husband, appellee Jack B. Cone.

Appellee, Jack B. Cone filed a declaratory judgment complaint against appellant Helen B. Cone on August 2, 1973, setting forth that he and Mrs. Cone were divorced on December 14, 1972, and that during their marriage they owned certain real and personal property and that portions of said property had been purchased with his funds and placed in his wife’s name in trust. It is alleged that á resulting trust was established to provide protection from the husband’s judgment creditors because of the speculative nature of his business ventures. The wife filed a motion to dismiss the complaint, which was denied. She then filed an answer and trial was set for November 27,1973.

Over objection of Mrs. Cone, the trial court consolidated this declaratory judgment case No. 6037 with: the earlier divorce case No. 5853; a previously filed declaratory judgment case No. 5911 relating to certain Daleville property held in Mrs. Cone’s name; and a previously filed deti-nue case No. 7782 relating to two trucks.

On July 16, 1974, the trial court entered a final judgment decreeing that, of the property held in Mrs. Cone’s name, Mr. Cone was to receive the following items: one 1965 Cheyrolet pickup truck; one 1955 or 1957 GMC dump truck; a parcel of land in Daleville, Alabama; and the benefits of a lease of the Daleville property. Mrs. Cone was awarded all real property in Houston County. Each was awarded their own personal property.

On this appeal, Mrs. Cone cites error in the consolidation of this declaratory judgment action with the earlier divorce action, the declaratory judgment suit, and the deti-nue suits. Mrs. Cone insists that the divorce decree of December 14, 1972, operates as a bar to these proceedings eight months later which adjudicated and granted Mr. Cone’s prayer for relief in this declaratory judgment. She further claims that no resulting trust was created due to the legal presumption that a transfer of title from husband to wife is intended as a gift of the property. The record shows that the parties were in disagreement as to the source of the funds which were used to purchase the items at issue. Mrs. Cone asserts that she owned and paid for the property awarded to her husband and that, therefore, the award to her husband is in the nature of alimony. Mrs. Cone argues that Alabama law does not recognize alimony in favor of a husband. Furthermore, she argues, once a final divorce decree has been issued, a suit for alimony can no longer be maintained.

The next error contended for by Mrs. Cone arises from an alleged failure on the part of the court clerk to notify her of the decree dated July 16, 1974. Mrs. Cone relies on Rule 60(b) of the Alabama Rules of Civil Procedure for the proposition that she was entitled to be relieved from the decree due to her failure to receive notice of it. Rule 60(b) A.R.C.P. reads: “[T]he court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . or (6) any other reason justifying relief from the operation of the judgment.”

On October 7, 1974, Mrs. Cone moved to set aside the judgment rendered in the cause under Rule 60. The motion was set down for a hearing on October 30, 1974. On November 25, 1974, the motion was denied. It is contended that this was error and that the evidence was insufficient to support a resulting trust. Finally, it is insisted that the trial court erred in rendering the award of the property to Mr. Cone.

Although Mrs. Cone has raised the several claims of error hereinabove set out, her strongest argument is that the trial court erred in awarding the property (title to which was in Mrs. Cone) to Mr. Cone on the basis of a resulting trust. This is the only error we need consider in view of the result we reach.

According to Alabama case law, “[a] resulting trust is a creature of equity, based on the presumption that he who furnishes the consideration for the purchase of lands intends the purchase for his own benefit.” Leonard v. Duncan, 245 Ala. 320, 322, 16 So.2d 879, 881 (1944). Resulting trusts have been recognized under three different situations [Comment, The Law of Trusts in Alabama, 25 Ala.L.Rev. 467., 470-71 (1973)], two of which are not relevant to this discussion since they involve express trusts. The third situation under which a resulting trust may arise occurs when “property is purchased and the purchase price is paid by one person and at his direction the vendor transfers the property to another person . . . ” Restatement (Second) of Trusts § 404, comment a (1959).

The facts of the instant case do not bring it under this third situation. The property here in question was not purchased with the funds of one party and title taken in the name of the second. On the contrary, here the property was purchased by Mr. Cone and title was taken in his name. It was not until several years subsequent to his purchase that Mr. Cone transferred title to Mrs. Cone. Thus, the elements of a resulting trust are not present.

Moreover, even where there are circumstances under which a resulting trust would normally arise, if the property has been paid for by a husband but title has been taken in his wife’s name, then “equity .takes the position that the normal reasonably inferred intent . . . is an intent to make a gift to the wife.” Bogert, Trusts & Trustees, § 459, at 579 (2d ed. 1964). This Court has explained this rule as follows:

“While it is the general rule that where one buys land in the name of another and pays the consideration money, a resulting trust will be declared in favor of the purchaser in the absence of all rebutting circumstances evincing a contrary purpose,' this is only a rule of presumption. .
“ ‘Such a presumption will not arise however, when the conveyance is to the wife with purchase by the husband, as he is considered under legal or moral obligation to make provision for her, and a gift will be presumed.’ (Citation omitted.)”

Roubicek v. Roubicek, 246 Ala. 442, 449, 21 So.2d 244, 250 (1945).

However, the presumption that a gift was intended is, of course, rebuttable. It “may be overcome by proof of the real intent of the parties as reflected in the conditions and circumstances attending the transaction.” Swendick v. Swendick, 221 Ala. 337, 339, 128 So. 593, 594 (1930). Attempting to overcome the presumption that he intended to make a gift to Mrs. Cone, Mr. Cone has emphasized his original reason for the transfer, i. e., the protection of the transferred property from the claims of his creditors. We find that this contention is insufficient to rebut the presumption that the transfer was a gift or to establish the existence of a resulting trust. Under our cases, “it is incumbent on one who claims the existence of such [resulting] trust to establish it by clear, positive, and unequivocal averments 'ánd clear and satisfactory proof.” Swendick v. Swen-dick, id. We think that no such standard proof has been met in this case.

Finally, we note that the concept of a resulting trust is “a creature of equity.” Leonard v. Duncan, 245 Ala. 320, 322, 16 So.2d 879, 881 (1944). It is axiomatic that one who seeks equity must do equity and that equity will not redress the grievances of one who comes before the court with unclean hands.

It is also “well settled that conveyances, or gifts, made to hinder, delay, or defraud creditors, are valid and operative between the parties when fully consummated, and that neither party can rescind or defeat them.” Glover v. Walker, 107 Ala. 540, 545, 18 So. 251, 253 (1894). The following language from that case is appropriately addressed to the issues here at hand:

“ ‘. . .If men in consummation of frauds, employ instruments, binding and conclusive in their legal operation and effect, it is sound reason, good policy, sheer justice, to leave them where they have placed themselves, bound as they have bound themselves, without assistance from the courts to unlose them, when it becomes their interest to be unloosed, encouraging them and others to commit similar fraud.’ . . . Here, an equitable trust is sought to be raised, and is by the contention of the appellant, declared to arise out of a transaction confessedly actually fraudulent. . But, the rule is of universal recognition that a court of equity will never imply or enforce a trust, springing out of a transaction, in which the party seeking to enforce it, has been guilty of fraud and immoral conduct.”

Id. at 545, 18 So. 253-54.

Furthermore,

“. . . this court has consistently applied the doctrine [of unclean hands] in suits involving conveyances to defraud creditors, where the creditor was not a party to the suit and the suit was brought by the grantor to vacate the transfer he had fraudulently made to the respondent.”

Matthews v. Matthews, 292 Ala. 1, 11, 288 So.2d 110, 119 (1974). We find that the doctrine of unclean hands is controlling under the instant facts. Hence, any alleged resulting trust that might otherwise have arisen under the facts of this case will not be enforced. “[I]f A pays for land and has it conveyed by absolute deed to B, with the intent of cheating A’s creditors, the court will render A no aid in securing the enforcement of the resulting trust which would normally be implied for his benefit . . .” Bogert, Trusts & Trustees, § 463, at 634-35 (2d ed. 1964). This is, moreover, the doctrine of our cases.

REVERSED AND REMANDED.

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


author: MERRILL, Justice.

text:
    Minnie BARRON v. Mr. and Mrs. William A. ABERNATHY, Sr., et al.
    SC 1646.
    Supreme Court of Alabama.
    May 7, 1976.

      Ronnie E. Keahey, Grove Hill, for appellant.
    Thomas H. Boggs, Jr., Demopolis, for appellees.
   MERRILL, Justice.

Appellant, Minnie Barron, filed a complaint against appellees, Mr. and Mrs. William Abernathy, Sr. and William Abernathy, Jr. Mrs. Barron sought to have a deed from herself to her great-nephew, Abernathy, Jr., declared null and void, along with a judgment that appellees had no right, title or interest in the land in question. The circuit court found that the deed was valid, properly executed and delivered in accordance with the law, and denied relief. From that judgment she appeals.

Mrs. Barron is an eighty-six-year-old woman who can neither read nor write. In 1963, when she was seventy-four, testimony reveals that she deeded the land in question to her great-nephew, who was then twelve years of age. That testimony is supported by the fact that the deed’s transfer was recorded in 1963. Mrs. Barron, however, does not recall deeding the land to Abernathy, Jr.

The record is replete with testimony as to the occurrence in question. Mrs. Barron brought a prepared deed to her niece’s house. She signed it and her niece and acquaintances signed as witnesses. Mrs. Barron was the instigator of the transfer-ral of the deed. The only attack upon the witnesses’ testimony from Mrs. Barron is that she had no recollection of it. The record shows that Mrs. Barron understood what was going on at the trial and she handled herself exceptionally well for a woman of her age while she was testifying.

No question of law is presented on this appeal. Mrs. Barron contends that the execution and delivery of the deed was the result of undue influence. That contention was rejected by the trial court.

It has long been the law in Alabama that the determination as made by the trial judge, when the evidence is taken ore tenus, as here, is favored with a presumption of correctness, which we will not disturb on appeal unless plainly erroneous or manifestly unjust. There is no evidence before us which would merit reversal. Mangina v. Bush, 286 Ala. 90, 237 So.2d 479; Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761; Baldwin v. Odom, 291 Ala. 129, 278 So.2d 713.

AFFIRMED.

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


text:
    SOUTHERN HAULERS, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 1432.
    Supreme Court of Alabama.
    May 7, 1976.

      William K. Martin and Robert S. Richard, Montgomery, for appellants.
    Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Vance, Thompson & Brown, Birmingham, for appellees.
   BLOODWORTH, Justice.

This is an appeal by protestants from a judgment of the Circuit Court of Montgomery County affirming an order of the Alabama Public Service Commission [hereinafter referred to as “APSC”] which issued a motor carrier certificate of public convenience and necessity to R. D. Wood for a dump truck operation. We affirm.

Wood applied to the APSC for issuance of a certificate [under the provisions of Tit. 48, §§ 301(1), et seq., Code of Alabama 1940 (Recompiled 1958)] to authorize Wood’s operations to engage in intrastate commerce over irregular routes as a common carrier by motor vehicle. Wood sought authority to employ his dump truck vehicles in. the transportation of various road materials between all points in eighteen specified, contiguous counties located in the geographical center of the state. Protests against Wood’s application were filed by ten motor vehicle common carriers [hereinafter referred to as “protestants”] who had already obtained authorization similar to that sought by Wood.

A hearing on Wood’s application was held before the APSC. Because a majority of the APSC was not present throughout the entire hearing, an examiner’s report and recommended order was filed. The examiner’s report recommended that Wood’s application be denied on the grounds that “the Applicant has not carried the burden placed on him by law to prove the present or future public convenience and necessity requires the proposed service, and that existing transportation service is not adequate to meet the reasonable public needs.”

In an order dated January 16, 1975, the APSC “adopt[ed], in general, the summary of the evidence contained in the Examiner’s Report and Recommended Order . . . ” but declined to adopt the examiner’s “resulting conclusions and findings therein.” With respect to six of the eighteen counties for which authority was requested, the APSC found that the applicant is fit, willing and able to perform the proposed service and that the proposed service is required by present or future public convenience and necessity. Thus, Wood only got authority to serve six of the eighteen counties. With respect to the remaining twelve counties, the APSC found Wood’s proposed service was not required by present or future public convenience and necessity, and his application was denied.

Seven of the original 10 protestants appealed the APSC’s order to the Circuit Court of Montgomery County, where the APSC order was affirmed and costs taxed against the protestants. Six of the seven protestants, who appealed the APSC order to the circuit court, now appeal to this Court.

On this appeal, protestants maintain that there is no dispute as to the facts surrounding Wood’s application for a certificate. What the protestants dispute is the APSC’s conclusion that the applicant met the burden of proof imposed on him to affirmatively establish that he is entitled to certification. Case law requires the applicant for a certificate to affirmatively show that the certification requirements of Tit. 48, § 301(9) have been met. See Service Express, Inc. v. Baggett Transportation Co., 281 Ala. 666, 207 So.2d 418 (1968). The protestants maintain that the APSC misapplied the law to the facts of this case when it determined that Wood met the burden of proof imposed upon him.

Under Tit. 48, § 82 of the 1940 Code, an APSC order may be set aside by the circuit court or by this Court only if “the commission erred to the prejudice of appellant’s substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based on a finding of facts contrary to the substantial weight of the evidence.”

Protestants voice no objection to the summary of facts that the APSC adopted (i. e., the summary set out in the hearing examiner’s report) nor do they contend that the APSC order was “based on a finding of facts contrary to the substantial weight of the evidence.” However, protestants do contend that their “substantial rights” were prejudiced by the APSC’s application of the law to, what protestants refer to as, the “undisputed facts.”

Consequently, a determination of the sole question here before us, i. e., whether there was a misapplication of the law to the facts, depends upon whether the certification requirements of Tit. 48, § 301(9), were met. That section provides that a certificate shall be issued, if, first, “the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this article and requirements, rules and regulations of the commission thereunder,” and, second, if “the proposed service . . . is or will be required by the present or future public convenience and necessity . . . .” The section further provides that in making its determination the Commission is to “consider” the following factors:

“(1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs. (2) Financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year round. (3) The advantages to the public of the proposed service.”

Upon review, a presumption of correctness is ordinarily to be accorded to an order of the APSC. Alabama Power Co. v. APSC, 278 Ala. 597, 179 So.2d 725 (1965) (construing Tit. 48, § 82, Code of Alabama of 1940). However, where the evidence has been heard ore tenus by a hearing examiner and not by the commission members themselves, the presumption of correctness normally accorded to the commission’s order will instead be accorded to the examiner’s findings of fact. APSC v. Perkins, 275 Ala. 1, 151 So.2d 627 (1962).

The record in the instant case states that the evidence presented at the hearing was heard before a hearing examiner but also notes parenthetically that “[p]ortions of this case were heard also by Kenneth Hammond, President, and Juanita W. McDaniel, Associate Commissioner.” From this statement in the record we gather that the hearing examiner was present throughout the entire proceedings, giving him first-hand opportunity to hear and weigh the testimony of all the witnesses. We also gather that the two commission members, who were present when “portions of the evidence” was presented, did not have this first-hand opportunity of hearing and weighing all the testimony.

However, here the APSC adopted the summary of facts set out in the hearing examiner’s report. That summary of facts carries with it the presumption of correctness which is properly to be accorded to the conclusions of one who heard the evidence ore tenus. Furthermore, the protestants indicate in brief that they are in agreement with the hearing examiner’s summary of facts.

Hence, the issue at hand becomes that of determining whether the APSC misapplied the law to the facts set out in the hearing examiner’s summary of facts. In other words, do the conclusions of law set out in the APSC’s order find support in the examiner’s summary of facts?

In drawing their legal conclusions from the facts, the APSC had to consider the three factors specified by Tit. 48, § 301(9). We find that the examiner’s report includes some evidence supporting Wood’s position with respect to all three factors. First, on the question of the applicant’s financial ability to furnish adequate, continuous and uninterrupted year-long service, the summary of facts indicates that the applicant’s debts are current, that he had a sizable gross income and net profit per month, and that he has 13 vehicles and 13 drivers. On the question of the adequacy of existing services, the summary of the facts indicates that existing services have not been adequate during critical periods for the industry and that even during noncritical periods shippers have relied heavily on. Wood’s services even though Wood does not presently have APSC authorization. On the question of the advantages to the public of the proposed services, the summary of the facts indicates that Wood’s services have been needed and used, and that his services have evidently been satisfactory to his customers.

Furthermore, we believe that the hearing examiner’s summary of facts also includes support for the APSC’s finding that the applicant is “fit, willing, and able” to perform the requested service and that present or future public convenience and necessity requires the proposed service. As noted above, the examiner’s report supports a finding of the applicant’s financial ability to adequately perform the service proposed, and also indicates that the applicant’s services are presently in demand, evidently having been found satisfactory by his present customers. Additionally, the public’s present reliance on Wood’s services would appear to indicate that the applicant’s services are in the interests of public convenience and necessity. We note here that the requirement of a showing of public “necessity” means not that the service must be absolutely indispensable, but instead means merely that the service must be reasonably necessary for the public good. APSC v. Higginbotham, 256 Ala. 621, 56 So.2d 401 (1952). We think the evidence summarized in the examiner’s report shows the applicant’s services to be “reasonably necessary.”

Admittedly, there is evidence supporting the examiner’s legal conclusions leading to his recommendation that the certificate be denied. However, although the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner’s findings of fact when he alone has heard the evidence, the ore tenus rule does not also mandate a presumption of correctness in favor of the examiner’s conclusions of law. Furthermore, we are not aware of any instance in which this Court has accorded such a presumption to the examiner’s legal conclusions.

On the contrary, we are convinced of the soundness of the rule that “[c]ourts should not and do not overturn [APSC] findings save upon a clear conviction that their orders are wrong and unjust.” North Alabama Motor Express v. Rookis, 244 Ala. 137, 140, 12 So.2d 183, 185 (1943). We have not reached such a clear conviction in this case. Instead, we have found that the APSC’s order is reasonably supported by the facts set out in the hearing examiner’s report.

A three judge federal court reached an almost identical result on quite similar facts in Frozen Food Express, Inc. v. United States, 301 F.Supp. 1322 (D.C., 1969). There, action was brought to review a decision of the ICC granting twelve motor vehicle carrier applications. The hearing examiner had denied the applications. It was argued the ICC was bound by the examiner’s conclusions. The court held that the ICC accepted his findings of facts, simply disagreeing with his conclusions of law based on those findings. The court affirmed the ICC’s conclusions holding “there is substantial evidence of record” to support the same.

Having found that the APSC order is supported by legal evidence of substantial weight and therefore that there was no misapplication of law to the prejudice of the protestants’ substantial rights, we affirm the judgment of the circuit court in its refusal to set aside the order of the APSC.

AFFIRMED.

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

      . During a part of the hearing, two commissioners were present; during a part, only one commissioner was present. The examiner was present throughout.


author: ALMON, Justice.

text:
    JEANNIE’S GROCERY et al. v. BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION.
    SC 1187.
    Supreme Court of Alabama.
    April 30, 1976.
    J. Don Foster, Foley, Fred G. Helmsing, Mobile, Champ Lyons, Jr., Montgomery, for appellants.
    John Chason, Bay Minette, Charles B. Arendall, Jr., and W. Ramsey McKinney, Jr., Mobile, for appellee.
   ALMON, Justice.

This is an appeal from a judgment of the Circuit Court of Baldwin County dismissing the complaint of appellants, Jeannie’s Grocery et al.

The complaint was filed as a class action suit against appellee, Baldwin County Electric Membership Corporation, a cooperative, organized under the Electric Cooperative Act, Act 231, Alabama Laws, 1939, Tit. 18, Chapter 3, Sections 31-59, Code of Alabama 1940, Recompiled 1958, in contemplation of the Rural Electrification Act of 1936 as amended, 7 U.S.C., Sections 901-950(b).

Appellants brought this action on behalf of themselves and members of a class. The class was broken into sub-classes of “residential” and “commercial” consumers of electricity supplied by appellee. Appellants complained of the implementation of a seasonal premises classification which re-suited in the charges to them and others similarly situated of higher rates than those not so classified. It was further averred by appellants that the criteria for determination of seasonal premises .consumers was arbitrary, capricious, not reasonably related to a rational standard for determination of “seasonal premises” consumers, and that the degree of disparity in price treatment between those subject to the seasonal premises classification and those not subject to it constituted an unlawful price discrimination. Finally, appellants averred that the appellee is a public service corporation and, as such, has an obligation independent of contract, franchise, or statute, not to charge extortionate or discriminatory rates and has breached that obligation.

Appellants claimed money damages plus attorneys’ fees.

The rate classification complained of by appellants incorporated a “demand charge” factor. Essentially, the members of appel-lee included in this classification were charged at the rate of 75% of their peak electrical demand for the preceding eleven months, regardless of the amount of electrical energy actually used by them.

The only issue on appeal is whether the trial court erred in granting appellee’s motion to dismiss.

Appellants contend that even if they are denied the specific relief requested in the form of money damages, they have alleged sufficient facts to authorize the court to award declaratory or injunctive relief on the question of whether the rates imposed upon appellants were discriminatory and unreasonable.

Appellants also contend that the trial court erred in its determination that it lacked jurisdiction over the subject matter and in its conclusion that appellee is immune from judicial review.

The principal points of appellee’s argument in response may be summarized as follows:

1. Sections 42 and 43 of the Alabama Constitution of 1901 bar the judiciary from exercise of legislative power or assumption of legislative functions.
2. Rate making is a legislative function, not a judicial function.
3. The judiciary cannot engage in rate making, either directly or indirectly.
4. The appellants here are asking the court to determine what their reasonable electrical rate would have been and award them damages for the difference between that rate and what they actually paid.
5. To determine damages, therefore, would necessarily involve the court in retrospective rate making, a function which the judiciary is constitutionally barred from undertaking.

Three grounds were set forth in appel-lee’s motion to dismiss the complaint. They are set out in the transcript as follows :

“1. The Second Amended Complaint and each cause of action asserted therein fail to state a claim upon which relief can be granted.
“2. The Court lacks jurisdiction to grant the relief demanded with respect to each cause of action asserted in the Second Amended Complaint.
“3. The Court lacks jurisdiction over the subject matter of the Second Amended Complaint.”

When the trial court granted the motion to dismiss, it did not state upon which of three grounds it was granting the motion. Therefore, we will consider each of the grounds individually.

The first ground in the motion is under Rule 12(b)(6) of the Alabama Rules of Civil Procedure. This is a motion which should seldom be granted and should only be granted when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1958); Trabits v. First National Bank, 295 Ala. 85, 323 So.2d 353, 358 (1975). It does not appear to us that at this stage of the case the appellants would be unable to prove any set of facts in support of their claim which would entitle them to relief.

Grounds two and three both seem to encompass Rule 12(b)(1), which is a motion to dismiss for lack of jurisdiction over the subject matter.

While we are cognizant that courts do not engage in rate making, we are not persuaded that, under any conceivable set of circumstances, the appellants are without judicial remedy of any kind. It would be premature for us now to address ourselves to subject matter jurisdiction. For to do so would of necessity require us to engage in speculation since we are without the benefit of facts beyond those alleged in the complaint.

There was some suggestion in the trial court’s order that one of the reasons for granting the motion to dismiss was the appellants’ failure to seek declaratory or injunctive relief. If this was a reason for the dismissal of the action, it was error. Rule 54(c) of the Alabama Rules of Civil Procedure states that “ . . . [e]xcept as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

The judgment is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    G. M. SHOOK, Intervenor, v. DAVIS-DAY TIMBER COMPANY, INC.
    SC 1470.
    Supreme Court of Alabama.
    March 2, 1976.
    Rehearing Denied May 28, 1976.

      Perdue, Johnson & Boone, Jenkins & Wallis, Birmingham, for appellant.
    Keener & Keener, Centre, Inzer, Suttle & Inzer, Gadsden, for appellee.
   PER CURIAM.

This appeal is from judgment in behalf of appellees Davis-Day Timber Company, Inc., a corporation and H. M. Day and against appellant G. M. Shook. The trial was ore tenus without a jury and the trial court made findings of fact which are incorporated in the judgment.

We affirm.

Issues Presented for Review

(1) Did provisions of a contract providing for payment of real estate sales commissions to one Shook make these contingent and conditioned upon full performance of a real estate sales contract by the purchaser, Bush, under his contract with the seller, Davis-Day Timber Company, Inc.

(2) Did the Alabama Real Estate License Act of 1951 render provisions for the payment of real estate sales commissions, to an agent not licensed under it, void? Code of Ala., Tit. 46, § 311(2).

The Facts

Substantially all the essential facts from .the evidence are to be found in the findings made by the trial court contained in the judgment. They are:

“1. That on, to-wit: December 9, 1969, Davis-Day Timber Company as Seller and Floyd D. Bush as Purchaser entered into a ‘Real Estate Sales Contract’ providing for the sale of 2639.5 acres of land in four Alabama counties for a total appraised price of $211,160. Bush subsequently made the down payment in cash but defaulted in payment of the amount secured by purchase money mortgage and said mortgages were foreclosed under the powers of sale. Davis-Day Timber Company became the purchaser at the foreclosure sales.
“2. On, to-wit: May 25, 1970, Davis-Day Timber Company entered into a written contract with the intervenor, G. M. Shook, providing for payment of certain real estate commissions to Shook for his services in assisting in negotiating the Davis-Day-Bush contract dated December 9, 1969. Shook’s rights to recover real estate commissions were by the terms of the contract made contingent and conditional upon performance by Floyd D. Bush of the terms of the Davis-Day-Bush contract dated December 9, 1969.
“3. At the time Shook performed services in connection with the Davis-Day-Bush contract providing for the sale of said real estate, he was not properly licensed as a real estate broker or real estate salesman as required by the Alabama Real Estae [Estate] License Act of 1951. The Court concludes that the Davis-Day-Shook contract contravenes public policy of the State of Alabama and is void, illegal and unenforceable.
“4. The Court further finds that by the very terms of the Davis-Day-Shook contract dated May 25, 1970, it is rendered null and void by reason of the non-performance of Floyd D. Bush in that he failed to discharge the duties and obligations imposed upon him by the terms and conditions of the Davis-Day-Bush contract dated December 9, 1969.”

Under the real estate sales contract between Davis-Day and Bush of 9 December 1969, to which reference is made in the Davis-Day and Shook commission agreement of 25 May 1970, Bush made the down payment on the lands and executed two purchase money mortgages securing the unpaid balance. Bush defaulted and the mortgages were foreclosed. Davis-Day, mortgagee, purchased at the foreclosure sales. Bush assigned, for an actual valuable consideration, his rights of redemption to another who exercised them, thus acquiring title to the lands.

Opinion

It is not necessary to write to issue No. 2. This opinion will deal exclusively with issue No. 1. The contract between Davis-Day and Shook governing payment of commissions to Shook in pertinent part provided:

“NOW, THEREFORE, for and in consideration of the premises and of the said services rendered by the second party the first party does hereby promise and agree to pay to the second party a commission consisting of any amount over $60.00 per acre of all lands actually sold and conveyed by the first party to the said Floyd D. Bush under the terms and conditions of said contract dated December 9, 1969, said commission being payable as follows:
“1. Ten per cent (10%) of such commission shall be due and payable at the time of the closing of the said contract executed on, to-wit: December 9, 1969, by and between the first party and the said Floyd D. Bush, with the balance of such commission due and payable in ten (10) equal annual installments, or as the said Floyd D. Bush shall pay for said lands under the terms and conditions of said contract, whichever event shall sooner occur.
* * * * * *
“4. It is further agreed by the parties to this instrument that in the event the said Floyd D. Bush shall fail or refuse to complete the terms of the contract referred to herein this agreement shall be null and void.”

Shook contends that redemption by another with payment in full to the seller (Davis-Day) constitutes full performance by Bush of the Davis-Day contract, thereby entitling Shook to the balance of his commissions. Shook was paid a commission arising from partial performance by Bush in making down payment. Shook says, when there is assignment of rights of redemption and full payment to the seller by the assignee that fully satisfies the requirement of performance by Bush. This for the reason, he says, that the assignee did all Bush was contractually obligated to do.

Davis-Day and Day counter with an argument reasoned from the provisions of the commission contract supra. It proceeds from the premise that it is not akin to the ordinary sales commission proviso in the standard real estate sales contract. They state the purpose of its uniqueness as being for protection of Davis-Day per its terms. Performance by Bush per contract with Davis-Day was a condition precedent to their liability to Shook for commissions, they contend. With this contention we agree.

Shook places emphasis on the proposition in brief:

“Where a real estate broker procures a purchaser who is ready, willing and able to purchase land and this purchaser is accepted by the seller and a contract of sale entered into, the broker is due his commission, even where the contract fails.”

One of the cases he cites as illustrative of this is Nunis v. Wood, 254 Ala. 69, 46 So.2d 813 (1950). The commission proviso in Nunis was a stock one, unlike that under consideration here. It read:

“ * * * ‘The undersigned seller agrees to pay L. B. Wood, as his agent, as compensation for negotiating this sale, a commission of five percent of the selling price.’ ”

When later a conditional sales contract was substituted for the original sales contract (calling for cash payments and deferred payments) and no mention was made in the conditional sales contract of a commission, objection was made by the agent. Thereupon Nunis, by letter, confirmed his agreement to pay a commission of five percent on the sale.

Nunis argued the inapplicability of the proposition advanced by Shook, which we here address, where a seller has made only a conditional agreement of sale and the prospective purchaser defaults as to a condition precedent of such agreement. The Nunis court in rejecting that argument has this to say:

“ * * * But the argument fails because a careful consideration of the entire evidence convinces us that the parties did not intent that the ultimate payment oi the $10,000 check to Mrs. Lewis was a condition precedent to the binding efficacy of the agreement. This question is one of fact, and we find ourselves in accord with the finding of the trial court.”

We comprehend an apt analogy in the argument of Nunis to that of Davis-Day and Day, although the facts differ here. The Davis-Day contract with Bush though not executory, as to passing title to lands, was, as to deferred payment of consideration. Certainly the commission contract between Davis-Day and Shook was completely ex-ecutory as to future payment of commissions. Just as certain it contained a condition precedent; default by Bush under his contract with Davis-Day. This could not be more clear when paragraph 4 of the commission contract specified that a default by Bush would render the commission contract null and void.

The trial court found as fact: (1) Bush defaulted. (2) Shook’s rights to recover commissions were contingent and conditional upon performance by Bush of the terms of the Davis-Day contract. (3) The very terms of the Davis-Day-Shook contract rendered it null and void by the nonperformance of Bush under his contract with Davis-Day.

The record fails to demonstrate the findings of fact by the trial court to be clearly erroneous, therefore the same will not be disturbed. Rule 52(a), ARCP; Eubanks v. Richards, 294 Ala. 30, 310 So. 883. Inasmuch as these findings are the basis for the judgment and there is substantial evidence to support that judgment, it will not be reversed.

Able counsel have filed exhaustive and excellent briefs urging their respective positions. Not writing to each point and counterpoint made in briefs—and orally argued with skill and eloquence—does not mean we are unmindful of them. However, since this opinion, as it deals with the first issue for review, disposes of this appeal, no good purpose would be served by a discussion of other assertions of the parties relating to that issue or to the second issue.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Richard Hail BROWN v. Joseph A. BATEH. Richard Hail BROWN v. FIRST NATIONAL BANK OF BIRMINGHAM.
    SC 1058, SC 1058-A and SC 1058-B.
    Supreme Court of Alabama.
    April 30, 1976.
    Rehearing Denied May 28, 1976.

      McMillan & Spratling-, Birmingham, for appellant.
    William M. Acker, Jr., Ferris S. Ritch-ey, Jr., Birmingham, for appellee, Joseph A. Bateh.
    Cabaniss, Johnston, Gardner, Dumas & O’Neal and L. Vastine Stabler, Jr., Birmingham, for appellee, First National Bank of Birmingham.
   FAULKNER, Justice.

These cases are a continuation of the series of lawsuits that Justice Merrill termed “long and vexatious” litigation in 1972. See Bateh v. Brown, 289 Ala. 695, 271 So.2d 830 (1972); Bateh v. Brown, 289 Ala. 699, 271 So.2d 833 (1972); and Cole v. Brown, 289 Ala. 712, 271 So.2d 846 (1972).

The instant litigation, like the aforementioned cases, is directed at the dissolution and liquidation of the various business entities owned or controlled by Brown and Bateh, the B-D Development Company in S.C. 1058, and the BBC Investment Company, Inc. in S.C. 1058-A. S.C. 1058-B involves the First National Bank’s foreclosure on certain realty mortgaged by Brown and Bateh.

Justice Merrill’s three opinions cited above reversed and remanded a final judgment by Judge William C. Barber in the Circuit Court of Jefferson County, sitting in equity. Judge Barber’s final decree, dated August 31, 1971, had dissolved the business entities and divided the property “in-kind.”

Justice Merrill wrote that the cases had been improperly consolidated and that there was insufficient evidence in the record to support an “in-kind” distribution of the assets and liabilities of the partnership and the corporation. Consequently, we reversed Judge Barber’s decree, ordered a new trial set, and suggested that the business entities be dissolved according to statute, unless the parties could settle the case. We indicated that an “in-kind” distribution would be acceptable if both parties agreed, the creditors were fully protected, and the court approved the division.

On February 7, 1973, Brown filed a motion for multiple relief, seeking to determine which issues would be litigated in light of the remand, to ascertain how to restore the status quo, and to set an early oral hearing. Bateh responded with a motion to strike, and a motion for compliance with the Supreme Court’s opinion. Cross-bills of complaint, answers and demurrers were filed by the appropriate parties. To sort things out and to determine the course of further proceedings, the trial court scheduled a hearing. By June 12, 1973, claims against the partnership had been filed by Dun and Bradstreet, Inc. and by H. L. Raburn & Co. The court then ordered the consolidation of the various cases. On January 31, 1974, an interim decree was issued, ordering money owed to the various entities controlled by Bateh and Brown paid to the acting register of the court. A final decree was issued on June 14, 1974, again dissolving the partnership and the corporation and providing for an “in-kind” distribution of the assets. The decree also disposed of the Bank’s foreclosure action. Brown petitioned for a rehearing which was denied. Bateh filed reports alleging his compliance with the decree. He then by letter and affidavit requested the institution of collection processes against Brown, for money owed pursuant to the decree. Brown filed a supersedeas bond and took the instant appeal, The bond required was raised from $25,000 to $250,000 in response to Bateh’s motion to strike the bond or increase its size. The larger bond Brown was unable to post. He did, however, take the instant appeal. The case was orally argued and submitted on October 22, 1975.

Justice Merrill should have added “complex” to his list of adjectives describing this litigation. Even though the cases were consolidated on appeal, clarity demands that the contentions of the parties be dealt with on a step-by-step basis. The facts and legal maneuverings are generally applicable to all three cases; any differences will be noted infra.

S.C. 1058—The B-D Partnership

This court feels that the proper starting point is the partnership dissolution. We are well aware that Brown has petitioned for writs of mandamus and that Bateh, and other appellees, have filed motions to dismiss. Why we have postponed discussion of these will become apparent. Let us first examine the positions of the parties and their contentions as to the dissolution of the partnership and the distribution of the assets and liabilities.

This case began on March 7, 1968, when Brown filed a petition to dissolve the partnership. He desired that the lands be sold and all proper charges paid, and the balance distributed to the partners. Bateh, in his answer, agreed with this. On May 18, 1971, Brown amended his complaint to change the prayer from a sale for division of the partnership real property to a partition or division “in-kind.” His prayer still requested that only the lands “in excess of those needed to pay the debts of B-D” be partitioned. This amendment came after a strong suggestion by the trial judge that there be an “in-kind” division. Bateh v. Brown at 711, 271 So.2d at 837.

Brown’s initial assignment of error is that the trial judge failed to conduct a new trial after Justice Merrill’s reversal and remand. Brown’s position is that this court reversed the decree in toto and ordered a new trial if the case were not settled. At the first trial there was insufficient evidence in the record to support the decree and the trial judge failed to follow the dictates of Title 43, § 31.

Bateh’s answer is that a trial judge’s failure to rule is not re viewable. Judge Barber did not respond to Brown’s motion requesting that the litigation be set for trial promptly. Since the judge did not rule adversely to him, Brown has no ruling from which to appeal.

Brown’s replication to this is that the trial judge did not merely fail to rule on a motion; he failed to obey the explicit mandate of this court. Failure to set a case for trial is always reviewable. Justice Merrill felt a new trial was necessary to develop the evidence needed to effect a fair distribution of the partnership assets. The only evidence subsequent to remand was Brown’s statement given on a “Petition to Order Collection of National Fil-tronics, Inc., Promissory Notes.” This statement has little relevance to the value of the partnership assets.

Bateh asserts that in the context of the present appeal by Brown, as opposed to the prior appeal by Bateh, there are admissions, pleadings and waivers of objection which are competent against Brown, and which are legally sufficient to sustain the decree. Brown, it is argued, did not object to the scheme of partition in the former decree. Consequently he waived any objection to such scheme. The prior scheme of distribution differs only in two details, the handling of certain parcels of land and the treatment of National Filtronics stock. Bateh claims that Brown has sworn in an affidavit and implied in open court that the parcels of land are interchangeable in value. The change in the National Filtronics stock distribution was made to settle an imbalance in capital accounts. Brown has not objected to this since he has gotten more than his share; he wants only to postpone collection. Bateh notes that he, Bateh, has waived his claim to more of the National Filtronics stock award in the interest of reaching ' a speedy settlement.

At first glance we would agree with Brown that Judge Barber should have set the cause down for trial when no compromise was reached after remand. According to Justice Merrill a new trial should have been held for the taking of evidence as to the value of the partnership assets to be sold or distributed. Any failure by a trial judge to follow an order of this court is, without question, open to review. A complete trial - de novo need not have been held, we believe, if Judge Barber satisfied the evidentiary requirements, or if the parties bound themselves to certain valuations by their pleadings and actions.

Brown’s second assignment of error is that Judge Barber erred once again in ordering an “in-kind” distribution of the partnership assets, and in dividing the partnership debts between the individual partners.

First, it is to be noted that the Alabama Partnership Act, Title 43, § 5(38) and (40), is inapplicable, as litigation began prior to the Act’s effective date of January 1, 1972. The controlling section of Alabama law, thus, is Title 43, § 31, which reads as follows:

“Each member of a partnership may require its property to be applied to the discharge of its debts, and has a lien upon the shares of the other partners for this purpose, and for the payment of the general balance if any due to him.”

How is this section to be interpreted? To simplify the positions of the antagonists, Brown believes that this section requires that the partnership assets be sold or distributed “in-kind” to the creditors. After the creditors have been provided for, then the remaining assets can be distributed to the individual partners, either “in-kind,” or sold and the proceeds divided.

Bateh takes the opposing view. Title 43, §31 allows an “in-kind” distribution of the partnership assets and liabilities as long as the creditors are protected. If the “in-kind”' partition is fair and supported by the evidence, if it is approved by the creditors, and if it is accepted by the chancellor in equity, then it is to be upheld by this court.

Bateh argues the proposition that upon dissolution of a partnership and payment of creditors, the former partners become tenants in common with respect to the partnership property. Partition is a matter of right, and property cannot be sold for division except upon averment and proof that the property is incapable of equitable partition “in-kind.” Howard v. Harrell, 275 Ala. 422, 155 So.2d 525 (1963). The burden of proving that the instant property cannot be equitably partitioned must be affirmatively carried by the party seeking a sale for division. Elliott v. Burch, 293 Ala. 244, 301 So.2d 557 (1974). Brown did not object to the partition scheme put forward by one Morton who was the “court-appointed manager,” commissioned to report to the trial court and suggest a partition “in.-kind.” Brown did apply for a rehearing after the decision on remand, but did not appeal the denial of his motion. Consequently he is bound by Morton’s report, which should have the same weight as a jury verdict.

We would propound a slightly different interpretation of Title 43, § 31. We agree that partition is a matter of right between tenants in common. Where land cannot be partitioned equitably, an equity court has jurisdiction to sell it for division among the joint owners or tenants in common. Whereas partition is a matter of right, sale for division is statutory; it must be proven that a fair and equitable partition cannot be made. Adams v. Mathieson Alabama Chemical Corp., 262 Ala. 166, 77 So.2d 667 (1954); Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951).

We would emphasize, however, that the right to partition in partnership dissolution does not arise until after the creditors have been satisfied. Obviously the creditors have a right to have their demands satisfied out of partnership property. But also, as Brown forcefully urges, and Bateh admits somewhat obliquely, a partner has a right to demand that the partnership property first be applied to the satisfaction of partnership debts. Granted, a partnership creditor can sue any partner individually for the payment of all or part of a partnership debt. A partnership debt is, admittedly, the joint and several obligation of the partners. Yet Title 43, § 31 plainly gives a partner the right to require that the partnership property be applied to the payment of partnership debts. If his individual property has been used to satisfy such debts, he has the right to indemnification from partnership property. The policy behind Title 43, § 31 was that partnership property be used to pay partnership debts; separate individual property, to pay private debts. A partner has a right to protect his private property from the demands of partnership creditors, if there is partnership property that can satisfy the partnership debts.

This is what Brown wants; he has stated in his reply brief that either partition or sale for division is acceptable, once the creditors’ demands have been satisfied from the partnership assets. He does have such a right to demand that the creditors first be satisfied, as we interpret Title 43, § 31. Whether he has waived his rights, as Bateh asserts, by his conduct or his formal pleadings, is another question.

Brown’s next assignment of error argued in brief is that Judge Barber erred in stopping Brown’s suit for surplus collateral after a mortgage foreclosure by the First National Bank of Birmingham. Since this alleged error constitutes the bulk of Brown’s appeal in S.C. 1058-B, it will be discussed later.

A further assignment of error is that the trial judge failed to enter separate decrees in the three cases. Justice Merrill, in his opinion remanding the case, stated that “In the event it is seen proper to consolidate the cases for the taking of testimony, separate decrees should be entered in the two cases.” Bateh v. Brown, at 699 and 712, 271 So.2d 845. Separate decrees were not entered, Brown points out; in fact, a third case was consolidated and dealt with in the final decree. Bateh answers that the final decrees recited that the cases were consolidated. Brown replies that the partnership case and the Bank case were ordered consolidated, but no order was ever entered consolidating these two with the corporation case. Bateh’s rejoinder is that separate decrees were entered; each transcript shows this. Brown’s surrejoinder is that the identical decree was typed three times. Bateh rebuts that the decrees are as responsive as possible to the issues and the parties’ pleadings and claims, given the nature of the parties’ business—a hodge-podge of inter-related transactions. Furthermore, Brown has not been harmed by the decrees being identical and he requested consolidation of the partnership and the Bank cases, and his attorney consented to an order consolidating the partnership and corporation cases.

The following assignment of error is concerned with the option apparently given to the creditors and to Bateh to set aside the final decree if Brown petitioned for a rehearing or appealed. Brown’s argument is that Judge Barber impaired his statutory right to appeal; such action was prejudicial on its face. Bateh responds that he, Bateh, has waived any right to invoke this portion of the decree. No other party has attempted to have the decree set aside because of Brown’s appeal. Brown cannot complain of prejudice, since he has actually appealed. In fact, this portion of the decree could be construed to benefit Brown, since if anyone exercised his option to set the decree aside, Judge Barber would order an immediate sale of the partnership assets, which is what Brown supposedly wants.

Brown’s final assignment of error is directed at what he calls an “automatic judgment” granted in favor of Joseph A. Bateh, Jr. against Brown and Bateh, Sr., $15,000 plus interest against each. Brown’s position is that a judgment had been rendered against Bateh, Jr. in a separate action and upheld by this court on appeal. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975). Brown’s argument seems to be well-taken on its face. Bateh counters that res judicata or collateral estoppel is an affirmative defense, and must be timely raised, if not apparent on the face of the complaint. Brown, it is alleged, did not raise this properly. Brown’s response to this allegation is that he could not be required to raise an affirmative defense when no pleading, or claim had been filed by either of Bateh’s sons. Res judicata could not have been put into issue until after Judge Barber entered the judgment in favor of Fred Bateh and Joseph A. Bateh, Jr. in his final decree.

Brown is absolutely correct in his assertions. Bateh’s sons are prohibited by res judicata or collateral estoppel from their claims. Judge Barber erred in granting judgment in their favor when they had lost their suits at the trial level and in this court. Brown, nevertheless, cannot get off scot-free. A short analysis of the former suits will explain.

Bateh, Jr. and Fred Bateh sued the B-D partnership in Jefferson County, seeking as cumulative relief the return of 75,000 shares of Southeastern Enamaling Company (SECO) stock. Joe’s suit sought either the return of 37,500 shares or $30,000 for money had and received; Fred sought only the return of the stock. In an affidavit in support of his motion for summary judgment, Brown swore that “the $30,000 allegedly delivered to B-D Development Company (a partnership comprised solely of Joseph A. Bateh, Sr. and the affiant) by Joseph A. Bateh, Sr. (the father of the plaintiff) [allegedly delivered by the father to purchase the SECO stock for his sons] in 1966 was in fact and in truth a loan by the said Joseph A. Bateh, Sr. to B-D Development Company . . . ”

The jury returned a verdict in favor of the defendants, the partners. Trial Judge James O. Haley entered a memorandum opinion on September 20, 1973, the same day judgment was entered. His opinion was that “ . . . the jury’s verdict and the judgment rendered thereon necessarily amounted to a finding by the jury and a judicial determination by the judgment that the Thirty Thousand ($30,000) Dollar item on the books of B-D Development Company as an account payable to Joseph A. Bateh, Jr. was in truth and fact an advance made by Joseph A. Bateh, Sr. to the partnership and this is an item that should be considered in settling the partnership account.” This court agreed with Judge Haley’s analysis, for it affirmed the lower court decision, but pointed out, in Justice Jones’ words that “Bateh, Sr., put up $30,000 toward the purchase price, all or substantially all of which came from a ‘common pool’ which the Bateh family, including Joe and Fred, jointly maintained.” Bateh v. Brown, 293 Ala. 704, 707, 310 So.2d 186, 188 (1975).

As we stated above, Judge Barber erred in the portion of his final decree granting judgment in favor of Joseph A. Bateh, Jr. This error was harmless. What Judge Barber should have done was to consider the $30,000 as a loan to the partnership by Joseph A. Bateh, Sr. and figured this in when balancing the capital accounts.

S.C. 1058-A—The BBC Investment Company

This case began on May 6, 1971, when Bateh filed a bill of complaint to dissolve the BBC Corporation. The assets and liabilities were divided along with those of the B-D Partnership by the single decree issued on August 31, 1971, Bateh appealed the “in-kind” distribution ordered.

As error Brown assign the same actions of Judge Barber as in the partnership case. Bateh informs us that there are no creditors of the corporation whose claims were divided between the shareholders, Brown and Bateh. All the creditors whose claims have been divided are creditors of the B-D Partnership. Further, Bateh avers in his “Second Amendment to Motion to Dismiss Appeals” that Brown has admitted that BBC has been dissolved and there are no creditors who have any remaining claims. No matter.

More important is that Brown, in a cross-bill of complaint and answer filed May 30, 1973, has asseverated it would be in the best interest of the BBC shareholders for the realty to be partitioned “ . . . after provision is made by the court for the payment, or by consent of the creditor-mortgagees a- division of the debt and division of collateral, cmd payment of other outstanding debts of the partnership to third parties.” (Emphasis added.)

Judge Barber, it can be seen, gave Brown exactly what he asked for. There can be no complaint on this issue, that the realty was partitioned. Bateh, it is to be remembered, was the party originally opposing an “in-kind” distribution, but he has waived his objection to such a distribution. The only remaining question is whether or not there is evidence properly at hand to show that the division was equitable. We believe there is and feel that Brown has been bound by his pleadings and his conduct in availing himself of the assets awarded him under the decree. He has acquiesced in the distribution scheme and waived his rights to complain.

S.C. 1058-B—The Bank Action

This case, as discussed above, involves a foreclosure by the First National Bank of Birmingham on certain lots awarded Brown and Bateh by the August 31, 1971 decree—which dissolved the partnership. Each party was ordered to assume one-half of a note due the Bank. The lots and certain listed securities served as security for the note. Because of the partners’ dispute, the Bank gave notice of foreclosure on the two lots. A coin toss determined that Brown’s lot would be sold first. A Mr. Nick Fawal offered $92,500 which he paid the Bank’s attorney. Brown then requested the excess of the sales proceeds over the $87,000 debt. He offered to deliver a warranty deed. The Bank returned the money to Fawal, believing that legal action would be taken if the sale were consummated. Brown then sued the Bank in a separate action for failure to close the sale and for the surplus collateral. The Bank filed a petition in equity to foreclose on Brown’s mortgage. Judge Barber then restrained Brown from proceeding with his separate suit against the Bank, pending a final decree in the partnership case. Subsequent to the trial a foreclosure sale was conducted. Brown entered the highest bid, $65,000, but failed to pay the purchase price into the registry of court. The sale was never confirmed. On June 14, 1974, Judge Barber included an order of foreclosure in his final decree. At the same time he made the temporary injunction permanent.

Brown has assigned as error the noncompliance of Judge Barber’s order making the temporary injunction permanent with Rule 65(d) ARCP.

Bateh counters with the argument that, even if the order does not comply with Rule 65(d), Brown has not been substantially harmed. His interests have been litigated in the instant action; he has merely been stopped from prosecuting a separate action. Brown has not complained of the substantive right to enter the permanent injunction. He has never denied the debt due the Bank.

The Bank argues this also. Brown replies that he is arguing more than a technical failure, that he has a right to have the reasons for the injunction set out. The Bank’s parry is that Brown was given an opportunity to litigate the Bank’s justification in aborting the first foreclosure sale, in the Bank’s equity suit for foreclosure. Additionally, Judge Barber’s order only amended the temporary injunction, making it permanent. The Rule 65 (d) requirements were met. The Bank wants to be able to foreclose in peace; it contends that the aborted foreclosure under a power of sale cannot preclude its foreclosure action in equity. This latter contention was not raised by Brown on appeal. In any case, we agree that the Bank should be allowed to foreclose, as Judge Barber decided. If there was any error in the order making the injunction permanent, it was harmless.

On December 3, 1974, Brown filed three petitions for alternative writs of mandamus, asking that Judge Barber be ordered to set aside his final decrees entered on June 14, 1974, or show cause why he should not do so. The same grounds were alleged as in Brown’s appeal, filed on November 15, 1974. The mandamus petitions were continued by this court on December 4, 1974, to be submitted at the time of the submission of the appeal. Bateh has claimed that Brown has waived his mandamus petitions by not arguing them. Brown has answered that this contention is without authority, that no brief is required on a mandamus petition prior to submission. We do not need to reach this question in denying the petitions for mandamus. The same issues are at stake on appeal. Brown’s contentions will be answered with the merits of his appeal.

In addition to all of Brown’s assignments of error, Bateh has presented us with a question we must answer. He has filed a motion to dismiss Brown’s appeal. This motion, filed on April 23, 1975, was continued to be submitted at the time of the submission of the appeal. In this motion Bateh has alleged numerous grounds for dismissal, some substantive, some procedural, The gist of the substantive reasons put forth for dimissal is that Brown has accepted the fruits of Judge Barber’s final decrees, and has wasted them, thus becoming unable to make restitution should he prevail on appeal. By so doing Brown has waived any objections to Judge Barber’s decrees. Brown cannot avail himself of the decrees and also attack them.

The court will address itself to these contentions infra. They are identical with the ones brought up on appeal.

Bateh has also accused Brown several procedural infractions. Allegedly Brown failed to issue citations of appeal to Bateh’s sons; he delayed in filing the transcripts of the evidence; he delayed in filing the transcripts of record; he violated Rule 37 in filing a motion for extension with someone other than the trial judge; he failed to furnish various appellees with copies of the appeals transcripts, and with copies of his briefs.

Bateh asks, rhetorically, if his motion to dismiss is hypertechnical. We are not going to answer this now, for we shall address the substantive issues of the appeal first.

Numerous questions have been left open in our opinion thus far. We shall now answer them and resolve the dispute.

1. Did Brown properly raise Judge Barber’s failure to order a new trial? Yes, either appeal or in the alternative, mandamus, was the proper method of bringing the question before this court. As we stated supra, any failure of a trial judge to follow an order of this court is open to review.

2. Did Judge Barber commit reversible error in failing to hold a new trial? No, we agree with Bateh that a trial de novo was not necessary. The only reason Justice Merrill ordered a new trial was to establish evidence for an equitable distribution of the assets. Brown’s acquiescence and waiver can be considered as having the same result as the settlement Justice Merrill encouraged. A new trial was necessary-only if the parties could not agree or did not become bound to a scheme of distribution. Judge Barber, while not following the remand order to the letter, did accomplish what we wanted him' to do. He developed the evidence necessary for an equitable partition. He presided at the first trial, received Morton’s report, and heard arguments on the various motions filed by the parties after remand.

3. Is there evidence properly in the record to support Judge Barber’s final decree ? Brown, of course, has argued no. His view is that since a new trial should have taken place, no evidence from the first trial is competent. His affidavit, dated May 10, 1971, suggesting certain valuations, is almost five years old. His amended complaint, wherein he asked for partition of assets and division of debts is from the former trial and consequently stale.

Bateh has asserted there is evidence competent against Brown. The initial decree was reversed because Justice Merrill felt there was no evidence competent against Bateh; there was, however, evidence competent against Brown. We need not resort to this, for in his “Second Amendment to Bill of Complaint” filed in open court on May 30, 1973, Brown reiterated his desire to have the assets and liabilities partitioned “in-kind.” He even proposed a division substantially similar to, if not identical with, the one later ordered by Judge Barber. Furthermore, the deputy register of the trial court certified in response to a writ of certiorari issued by this court on July 22, 1975, that the parties made admissions and statements in open court, not recorded, as to the equality of the division of the “Docray Lands.”

To clinch the argument on this point, Bateh has sworn that Brown has dissipated certain of the assets awarded him. He has sold part of the Docray Lands; he placed a mortgage on the Hi-Way Host Motel in Hattiesburg, then sold his interest by warranty deed; he extended the amortization period of the mortgage and increased the interest rate on the Hi-Way Host Motel in Ozark; and he has permitted foreclosure, albeit by Bateh’s wife, on the Motel Continental in Montgomery. He has also allowed foreclosure by the First National Bank, Bateh contends. We do not agree with this latter contention, for Brown has resisted said foreclosure in S.C. 1058-B. He has, however, given SECO stock awarded him by the decree to his children and their spouses. And he has, along with Bateh, asked that final tax returns be prepared on the property awarded him.

For these reasons we think that Brown has waived his rights to complain that there was insufficient evidence to support Judge Barber’s final decree.

4. Did the trial judge err in his partnership distribution scheme? We think not. While the dictates of Title 43, § 31 were not followed precisely, we emphasize that we find no reversible error. The law in this state has long recognized the flexibility of the chancellor in equity. Equity applies its own established principles, and it has its own flexible modes of procedure. Donnor v. Quartermas, 90 Ala. 164, 8 So. 715 (1890). Naturally, all equities should be settled and all claims adjusted. Bean v. Northcutt, 240 Ala. 289, 199 So. 7 (1940). We are convinced that Judge Barber has settled all the equities in this case, except for the award to Bateh, Jr., which has been discussed supra.

Brown has bound himself to an “in-kind” distribution by his amendments to his complaint. As stated above, in his “Second Amendment” he said he would be satisfied with a division of the partnership debts. All the creditors have accepted such a division. They are bound by the final decree since their time for appeal has expired. Brown’s contention that his asking- for “payment or provision for payment of partnership debts” constituted merely a general plea for relief is without merit. So, too, is his contention all of the creditors of the partnership—namely, First Federal Savings and Loan of Bessemer—are not bound by the decree. Brown’s and Bateh’s obligation on the note to First Federal is only secondary. Even if the primary obligor, Inreco Corporation has defaulted, there is sufficient collateral to satisfy the obligation, the Holiday Inn in Bessemer.

5. Was it reversible error not to issue separate decrees P No, Judge Barber’s failure to order all three cases consolidated was an oversight. In any event, Brown and his attorneys requested consolidation. He has not been harmed by the congruence of the decrees.

6. Was it error to grant Bateh and the creditors options to set aside the final decree? Again we find no prejudicial error. No one elected to exercise his option. Judge Barber, sitting as chancellor, was attempting to protect a delicate decree. He recognized that if he followed the mandate of Title 43, § 31 and sold all the business assets, there would be stunning tax consequences to the parties.

For the above reasons we deny Brown’s petition for mandamus, deny the motions to dismiss, and affirm the trial court’s judgment, except for the award of $30,000 to Joseph A. Bateh, Jr. This we reverse, with instructions to treat the debt as discussed above.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

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


text:
    Graham F. JAMES v. ALLSTATE INSURANCE COMPANY, INC.
    SC 1348.
    Supreme Court of Alabama.
    April 30, 1976.

      Don R. White, Florence, for appellant.
    Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellee.
   ALMON, Justice.

This is an action for declaratory judgment. Graham F. James, plaintiff-appellant, was injured as a result of an accident which occurred on Alabama Highway No. 63 south of Montgomery. He seeks the benefits of the uninsured motorist and medical payments provisions of an automobile liability policy issued by the defendant-appellee, Allstate Insurance Company, Inc., to another person, Eugene Roberson.

The evidence showed that appellant, owner of James Motorcycle Company in Florence, had been racing motorcycles for the Yamaha Motor Company in the Day-tona Annual Speed Week Classic at Day-tona Beach, Florida. Michael E. Roberson, a seventeen year old employee of appellant, had gone with him to help out with the driving to Daytona Beach and back.

On the return trip to Florence they stopped at a restaurant approximately one hundred and fifty miles south of Montgomery. After their departure Roberson began driving and appellant was in the back of the truck lying on a blanket and sleeping bag. Roberson attempted to pass a truck on the right. The driver of the truck apparently did not see Roberson; the truck veered into the right lane; and appellant ran off the road and into a tree.

At the time of the accident, appellant was asleep. As a result of the accident, he received severe injuries and is now paralyzed from the waist down. He has incurred hospital, doctor, and medical bills in excess of $25,000.00.

The truck involved in the accident was a business truck owned by appellant and available to Roberson for his use in appellant’s business.

At the time of the accident appellant had a policy of insurance on the vehicle involved in the accident with Auto-Owners Insurance Company. By way of an out of court settlement Auto-Owners paid uninsured motorist benefits of $9,000.00 to appellant. He received another $8,500.00 in uninsured motorist benefits from Farm Bureau through a policy on his private family car. At the time of the accident Michael Roberson lived with his parents, Mr. and Mrs. Eugene Roberson. Eugene Roberson had a family protection policy with appellee covering three automobiles. There was uninsured motorist coverage and medical payments coverage on each car.

Appellant filed a suit for Declaratory Judgment in the Circuit Court of Lauder-dale County seeking to reach and stack the uninsured motorist and medical payments benefits of the Allstate policy. Appellant claimed that his coverage was provided by Section II.1.(b) of the policy which includes as an “insured” under the uninsured motorist section of the policy “any other person while occupying an insured automobile.”

This case was tried in conjunction with Eugene Roberson v. Allstate Insurance Company, Inc., Case No. 74-E-581 and Michael E. Roberson v. Allstate Insurance Company, Inc., Case. No. 74-E-580.

The evidence was heard by the court without a jury. The court rendered judgment in favor of Eugene Roberson against Allstate Insurance Company, Inc., and in favor of Michael E. Roberson against Allstate Insurance Company, Inc. The judgment here in question was in favor of Allstate Insurance Company, Inc., against appellant and the court found that there was no coverage for appellant under the Allstate policy.

Appellant states in brief that the sole issue is whether he was an insured under the uninsured motorist provision of the Roberson policy.

The uninsured motorist provision of the Roberson policy provided in pertinent part as follows:

“Allstate will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;”
“1. ‘insured’ means:
“(a) the named insured as stated in the policy, the spouse of any such named insured and relatives of either, while residents of the same household;
“(b) any other person while occupying an insured automobile; and
“(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a) or (b) above.” (Emphasis added).

Appellant maintains that when the lower court found in favor of Eugene Roberson and Michael E. Roberson in Eugene Roberson v. Allstate Insurance Company, Inc., Case No. 74-E-581, and Michael E. Roberson v. Allstate Insurance Company, Inc., Case No. 74-E-580, a judicial determination was made that Michael E. Roberson was an “insured,” that the vehicle which he was driving was an “insured automobile,” and that the sole proximate cause of the accident was the negligence of a hit- and-run driver. Consequently, appellant submits that he was an insured under the plain provision under “insured” as “(b) any other person while occupying an insured automobile.”

We have studied the final judgments of the trial court in Eugene Roberson v. Allstate Insurance Company, Inc. and Michael E. Roberson v. Allstate Insurance Company, Inc., and we have concluded that appellant’s argument has an incorrect premise. The trial court makes no mention of a finding in either final judgment that Michael E. Roberson was driving an insured automobile. The trial judge merely stated in both cases that he found the issues in favor of the plaintiff. Although the trial judge did not state his reasoning in those cases, it is clear to us that he found Michael E. Roberson an “insured” under (a) above as a relative of the named insured as stated in the policy.

It would have been both unnecessary and incorrect for the trial court to have found that Michael E. Roberson was driving an insured automobile. “Insured automobile” is defined under the uninsured motorist, provisions of the Roberson policy as follows:

“2. ‘insured automobile’ means an automobile :
“(a) described in the declarations as an insured automobile to which the bodily injury liability coverage of the policy applies;
“(b) while temporarily used as a substitute for an insured automobile as described in subparagraph (a) above, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
“(c) while being operated by a named insured or by his spouse if a resident of the same household; but the term ‘insured automobile’ shall not include:
“(iv) under subparagraphs (b) and (c) above, an automobile furnished for the regular use of the named insured or any resident of the same household.”

The truck which was driven by Michael E. Roberson was not (a) “described in the declarations” of the policy, nor (b) “temporarily used as a substitute for an insured automobile,” nor was it (c) “being operated by a named insured or his spouse.”

There was ample evidence from which the trial judge could conclude that the business truck was furnished by appellant and was regularly available to Michael E. Roberson for his use in appellant’s business. Michael Roberson testified as follows :

“Q. All right, this was a truck that was involved in this accident, this was the regular business truck that was used in Mr. James’ Motorcycle business ?
“A. Yes, sir.
“Q. And you drove it regularly ?
“A. Yes, sir.
“Q. And it was regularly available for your use or Mr. James’ use, either one, in the business ?
“A. Yes, sir.
“Q. And not only available, but you used it, didn’t you ?
“A. In the business, yes, sir.”

Thus, the vehicle would be specifically excluded from the definition of an “insured automobile” under (iv) above.

The only hope which appellant had for coming within the definition of “insured,” as defined above, was under (b) as “any other person while occupying an insured automobile; . . .” Since we have determined that the vehicle was not an “insured automobile,” we must conclude that appellant does not come within the scope of coverage of the Roberson policy.

Appellant cites State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), for the proposition that Tit. 36, § 74(62a), Code of Alabama 1940, Recompiled 1958, mandates uninsured motorist coverage for persons insured under a policy. We consider Reaves, supra, inapplicable as we have already determined that appellant was not an “insured” under the Roberson policy.

The judgment is hereby affirmed.

AFFIRMED.

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