author: MADDOX, Justice.

text:
    WESTCHESTER FIRE INSURANCE COMPANY, a corporation v. BARNETT MILLWORKS, INC., a corporation.
    77-245.
    Supreme Court of Alabama.
    Sept. 29, 1978.
    Rehearing Denied Dec. 1, 1978.
    Alton R. Brown, Jr. and Philip H. Partridge, Mobile, for appellant.
    Mitchell G. Lattof and Christopher E. Peters, Mobile, for appellee.
   MADDOX, Justice.

This is an appeal from a final decree rendered in a declaratory judgment action in the Circuit Court of Mobile County. The decree declared the appellant, Westchester Fire Insurance Company (Westchester), liable under a comprehensive catastrophe excess liability policy of insurance issued to appellee, Barnett Millworks, Inc. (Barnett).

On November 4, 1970, Barnett initially purchased its policy of insurance from Westchester. It was in full force and effect at all times relevant to this action. At the time this policy was purchased from West-chester, there was in effect an underlying general liability policy issued by The Travelers Insurance Companies to Barnett providing coverage up to $50,000 on products liability claims. Traveler’s policy was also in effect at all times relevant to this lawsuit.

Barnett was in the business of manufacturing, among other things, wood door units consisting of the wood door, jam, and trim; wood window units consisting of wood window, jam, and trim; and wood molding.

The primary purchasers of these products were retailers of building products and contractors engaged in construction work. During the year 1972, Barnett began receiving complaints regarding certain products it had sold. These claims hit their peak during the years 1973 and 1974, and continued to a limited extent into 1975 and 1976. The basis of the claims was the emergence of beetles from the wood products manufactured by Barnett, which had been integrated into residences and other buildings located primarily in Alabama, Florida and Mississippi. Approximately, 1,000 claims were involved. The beetles did not attack or damage any other part of the buildings into which the products were integrated.

As the number of claims increased substantially during 1972, Barnett Millworks, Inc., established its own work crew to examine and correct the damage as reported to it by the retailers and contractors who had purchased the products. This work crew would, with permission, remove the damaged product from the walls into which it had been integrated, clean the surrounding area, spray a material to destroy any live beetles or larvae, integrate a new product unit, and paint and restore the premises to a finished condition.

The claims against Barnett exceeded the underlying insurance coverage provided by Traveler’s during the policy periods of November 2, 1972, to November 2, 1973 and November 2, 1973, to November 2, 1974. Barnett submitted the excess of these claims to Westchester as the excess liability carrier, in the amount of $90,651.52. West-chester denied liability on the basis of its interpretation of exclusion clauses contained in its policy; it refused to pay Barnett’s claim.

The pertinent coverage and exclusions of the Westchester policy are as follows:

I COVERAGE—
“The Company agrees to indemnify the insured for ultimate net loss in excess of the retained limit hereinafter stated, which the insured may sustain by reason of the liability imposed upon the insured by law, or assumed by the insured under contract: .
(b) Property Damage Liability. For damages because of injury to or destruction of tangible property including consequential loss resulting therefrom, caused by an occurrence; ...
* * * * * *
“EXCLUSIONS
“This policy shall not apply:
(a) . . .
(b) under Coverage 1(b), to injury to or destruction of (1) property owned by the insured or (2) any goods, products or containers thereof manufactured, sold, handled or distributed, or work completed by or for the insured, out of which the occurrence arises; or (3) property rented to, occupied or used by or in the care, custody or control of the insured to the extent the insured is under contract to provide insurance therefor; .
(g) under Coverage 1(b), to claims made against the insured
1. for repairing or replacing any defective product or products manufactured, sold or supplied by the insured or any defective part or parts thereof nor for the cost of such repair or replacement;
2. for the loss of use of any such defective product or products or part or parts thereof;
3. for improper or inadequate performance, design or specification; but nothing herein contained shall be construed to exclude claims made against the insured for personal injuries or property damage (other than damage to a product of the insured) resulting from improper or inadequate performance, design or specifications; . . . ” (Emphasis supplied.)

On October 14, 1975, Barnett initiated this action by filing a complaint in which it sought a declaratory judgment establishing Westchester’s liability under the policy of insurance.

On November 23, 1976, Barnett filed a motion for summary judgment seeking:

“[a] declaratory judgment that the Defendant is liable to the Plaintiff under the express provisions of its insurance policies issued to Plaintiff, with respect to products liability damages sustained by the Plaintiff in excess of $50,000 in any policy year, for the costs and expenses of removing Plaintiff’s products from houses and other installations where installed together with the costs and expenses of installing the replacement product and correcting the damage to such houses and other installations, excluding therefrom only the cost of the replacement product itself.”

The trial court, pursuant to Rule 56(c), ARCP, granted a partial summary judgment, finding that Westchester was liable to Barnett under the terms of the policy. At a later date, after receiving testimony and other evidence, the court made a determination that the sum due to be recovered by Barnett was $90,561.52.

From this final judgment Westchester brings the present appeal.

Westchester, as appellant, notes that the evidence clearly shows that the infestation of this lyctus beetle was confined to the banak wood incorporated into the door and window units and molding, and that the damage did not extend to any other parts of the structures containing Barnett’s products. It argues that for this reason the clear and unambiguous language of the exclusion exempts Westchester from liability on this claim since the expense incurred by Barnett was in replacing its defective products.

Appellee Barnett admits that Westches-ter is not liable for the cost of the replaced Millwork but argues that the policy covers its liability for damage to the structures into which its defective products were incorporated. It contends that there was damage to more than the unit itself since “when one product is integrated into a larger entity and the product proves defective, the damage is considered damage to the larger entity.” The case of Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354, 65 N.W.2d 122 (1954) is cited for this proposition. In Hauenstein the Supreme Court of Minnesota was faced with a near analogous set of facts. There, Hauenstein Company manufactured and sold a new type of plaster. The plaster was sold to a contractor who used it on a construction job. The plaster proved defective and had to be removed and replaced. The contractor sued Hauenstein for breach of warranty and Hauenstein’s insurer refused to assume liability for the claims. The Minnesota court noted:

“At all times herein plaintiffs were covered against liability for accidental property damage by an insurance contract with the defendant insurance company under which contract the defendant-insurer agreed:
“ ‘TO PAY any loss by reason of the liability imposed by law or contract upon the Insured for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.’
“The policy also contained an exclusionary clause providing that:
“ ‘This Policy does not apply:
* * * * * *
“ . . .to injury to or destruction of . any goods or products manufactured, sold, handled or distributed by the Insured . . .
242 Minn. at 355-56, 65 N.W.2d at 124.

In concluding that the insurer was liable under its insurance contract for accidental damage to property caused by the application of the defective plaster, the Court reasoned:

“Aside from any injury to the plaster itself, was the building injured and damaged by its application? It is undisputed that after this new type of plaster had been applied it shrunk and cracked to such an extent that it was of no value and had to be removed so that the walls and ceilings could be replastered with a different material. No one can reasonably contend that the application of a useless plaster, which has to be removed before the walls can be properly replast-ered, does not lower the market value of a building. Although the injury to the walls and ceilings can be rectified by removal of the defective plaster, nevertheless, the presence of the defective plaster on the walls and ceilings reduced the value of the building and constituted property damage. The measure of damages is the diminution in the market value of the building, or the cost of removing the defective plaster and restoring the building to its former condition plus any loss from deprival of use, whichever is the lesser.” (Emphasis supplied.) 242 Minn. at 357-58, 65 N.W.2d at 125.

See also Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co., 51 Cal.2d 558, 334 P.2d 881 (1959), on remand 63 Cal.2d 602, 47 Cal.Rptr. 564, 407 P.2d 868 (1965).

Hauenstein and Geddes & Smith would be persuasive to our court but for a single important distinguishing factor — the difference in the wording of the exclusionary clauses. The clause in the policy before us contains language not found in the policies considered in the above cited cases. The Westchester policy states:

“This policy shall not apply . to claims made against the insured (1) for repairing or replacing any defective product or products manufactured, sold or supplied by the insured . . . nor for the cost of such repair or replacement.”

We are fully aware of the rules of’ construction that exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage for the insured, Georgia Cas. & Sur. Co. v. University Underwriters Ins., 534 F.2d 1108 (5th Cir. 1976), and that such clauses must be construed most strongly against the company that drew the policy and issued it. American Liberty Ins. Co. v. Soules, 288 Ala. 163, 258 So.2d 872, (1972). However, we are equally aware that the courts must enforce insurance contracts as written and cannot defeat express provisions in a policy, including exclusions, by judicial interpretation. Aetna Ins. Co. v. Pete Wilson Roofing & Heat. Co., 289 Ala. 719, 272 So.2d 232 (1972) and cases cited therein.

Had the exclusion clause before us not contained the reference to “repairing and replacing” we would feel compelled to follow the reasoning of Hauenstein, supra, but the language in the policy here is clear and unambiguous, and may have been added to avoid a result as was reached in Hauenstein.

For the above reasons we conclude that the trial court erred in finding the appellant, Westchester Fire Insurance Company liable under its policy of insurance issued to the appellee Barnett Millworks, Inc.

REVERSED AND REMANDED.

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

      . Powder post beetle, of the family lyctidae, having larvae which feed in very dry wood or lumber, reducing the interior to powder.

      . Any of several central American timber trees especially shipped from Belize.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Hugh TYSON et al. v. Emma Lee JACKSON et al.
    77-558.
    Supreme Court of Alabama.
    Oct. 27, 1978.
    Rehearing Denied Dec. 1, 1978.

      Jerry L. Thornton, Hayneville, and J. Milton Coxwell, Jr. of Coxwell & Coxwell, Monroeville, for appellants.
    Charles P. Miller and D. Wayne Perdue, Montgomery, for appellees.
   SHORES, Justice.

The plaintiffs (appellants) filed suit against defendants (appellees) seeking to have the court declare plaintiffs to be the fee simple owners of a 28.6-acre tract of land in Lowndes County. The defendants denied the plaintiffs’ claim to the land and, by counterclaim, asked the court to declare them the fee simple owners. After a hearing, the court entered its order in favor of the defendants and the plaintiffs appealed.

In December, 1944, Matthew Jackson and A. F. Jackson acquired a tract of land by deed from G. R. and Quintilla Beers. The lands conveyed by this deed included the 28.6-acre tract, which is the subject of this litigation, and other lands.

In,July, 1967, Matthew Jackson and A. F. Jackson made a physical division of part of the lands acquired from the Beerses by executing quitclaim deeds to each other. The 28.6-acre tract was not included in this division and remained of record in joint ownership in Matthew and A. F. Jackson under the original deed from the Beerses.

Matthew Jackson died intestate in 1968, leaving a widow and several children, who are the defendants-appellees in this cause.

In 1974, A. F. Jackson conveyed his interest in the 28.6-acre tract to Hugh Tyson and others, the plaintiffs-appellants.

The testimony of several witnesses established that Matthew Jackson, during his lifetime, and certain of his sons, after his death in 1968, had farmed the 28.6-aere parcel, had kept fences around it and paid taxes on it. The trial court found “. that the possession of the respondents was so open, notorious, exclusive and adverse as to amount to notice to the complainants and those through whom they claim, and from which an ouster can be inferred.”

We reverse and remand.

The rule has long been established in this jurisdiction that the possession of one tenant in common is presumed to be the possession of all; and such possession does not become adverse to the cotenant until he is actually ousted or short of ouster, the adverse character of the possession of one is actually known to the other, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the cotenant on notice of its adverse character. Foshee v. Foshee, 278 Ala. 205, 177 So.2d 99 (1965); Barry v. Thomas, 273 Ala. 527, 142 So.2d 918 (1962); Markstein v. Schilleci, 258 Ala. 68, 61 So.2d 75 (1952); Hames v. Irwin, 253 Ala. 458, 45 So.2d 281 (1949); Ratliff v. Ratliff, 234 Ala. 320, 175 So. 259 (1937).

Before the possession of a cotenant may be regarded as adverse to his cotenant, he must repudiate the cotenant’s interest in the property by act or declaration. Livingston v. Livingston, 210 Ala. 420, 98 So. 281 (1923). This means that there must be some express denial of title and right to possession of the fellow cotenant brought home to him openly and unequivocally. Williams v. Sinclair Refining Co., 39 N.M. 388, 47 P.2d 910 (1935); 86 C.J.S. Tenancy in Common § 27. In Ratliff v. Ratliff, supra (234 Ala. at 322, 323, 178 So. at 261), this court stated the rule as follows:

". . . The possession of a tenant in common exercising the customary acts of ownership does not alone operate as a disseisin of cotenants; but there must be positive information of the facts, however informally communicated or acquired. . . ."

In the instant case, there is no evidence that Matthew Jackson, during his lifetime, or his heirs, after his death, ever indicated by word or act that they held adversely to the interests of the cotenant, A. F. Jackson. That being the case, there is no evidence to overcome the presumption that the possession of Matthew or his heirs was for the benefit of the cotenant A. F. Jackson and his successors in title. To prevail, the appellees are required to overcome this presumption by the evidence. Having failed to do so, the judgment in their favor must be reversed.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    Lawrence BILLINGSLEY, Jr., a minor, etc. v. C & S VENTURES, INC., a corp., et al.
    S.C. 1286.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Orzell Billingsley, Jr., Birmingham, for appellants.
    James G. Adams, III, Birmingham, for the City of Birmingham, appellee.
    Curtis 0. Liles, III, Birmingham, for ap-pellees, C & S Ventures, Inc., Mrs. Marguerite Law, Dewayne N. Morris and Lawyers Title Insurance Co.
   FAULKNER, Justice.

Defendants’ motion for summary judgment was granted in open court on the same day it was filed and served on plaintiffs. Although proper notice of the motion was not given, it is clear from the record that no substantial rights of any party have been injuriously affected. We affirm.

Plaintiffs Lawrence, Laura Etta, and Lisa Jean Billingsley are minor residents of Massachusetts who claim joint ownership of a lot in Birmingham through their great-grandparents. In 1964 the lot was purchased by the City of Birmingham at a public sale held for satisfaction of a local improvement assessment lien. Six years later the City conveyed the lot to C & S Ventures, Inc. On December 16, 1970, title was quieted in C & S Ventures.

On June 12, 1973, plaintiffs filed a “Bill in the Nature of Bill of review and/or Bill of Review” against C & S Ventures, the City of Birmingham, and others. The bill alleged fraud in obtaining the 1970 decree quieting title and claimed $1,000,000 for trespass. Defendants were called upon to set forth their title, claims, or interest in the lot. Defendants’ demurrers were overruled and answers were filed. The cause was set for hearing on October 15, 1974.

On the day of the hearing the parties entered into a stipulation which detailed the procedures surrounding the 1964 public sale of the lot and the 1970 decree quieting title. With this stipulation in hand the defendants moved for summary judgment in open court prior to the taking of any evidence. Service was made on the plaintiffs’ attorney, Orzell Billingsley, by simultaneously handing him a copy of the motion. The trial court then heard arguments by counsel and received defendants’ memorandum brief in support of the motion. That same day the cause was “summarily dismissed, with prejudice,” primarily on the basis of Hill v. Di Beneditto, 253 Ala. 229, 43 So.2d 819 (1950). After repeated extensions of time to file the reporter’s transcript, plaintiffs’ appeal was finally argued and submitted to this Court.

Rule 56(c) of the Alabama Rules of Civil Procedure clearly states that a motion for summary judgment must be served on the adverse party at least ten days prior to the hearing on the motion. In Billingsley v. Gordon, 340 So.2d 743 (Ala.1976), we held that a summary judgment granted on oral motion on the day set for trial did not comply with the notice requirements of Rule 56 and was reversible error.

The principle of that case naturally leads to the conclusion that plaintiffs here are entitled to a reversal. Nevertheless, under the doctrine of “error without injury” we feel the trial court’s judgment should be affirmed. Rule 45 of the Alabama Rules of Appellate Procedure provides in pertinent part:

“No judgment may be reversed or set aside, ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

We have examined the entire record in the case and it is clear that plaintiffs’ suit is barred by § 11-48-55, Code 1975 (formerly Title 37, § 563, Code 1940). That statute provides that the final limit for redemption of property sold in satisfaction of local improvement assessment liens is six years. In Hill, this Court held that this statute runs against minors as well as adults who claim an interest in the property. As the trial court noted, the 1970 decree quieting title is regular on its face and plaintiffs’ allegations do not present any justification for limiting the operation of this rule of law. Because plaintiffs’ suit was barred, the judgment of the trial court did not “injuriously affect the substantial rights of the parties.” Consequently, the judgment is affirmed, even though proper notice of the motion for summary judgment was not given.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Richard Walter JONES v. Roger WATKINS et al.
    77-100.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Myron K. Allenstein, Gadsden, for appellant.
    Jack W. Torbert of Torbert, Turnbach & Warren, Gadsden, for appellees.
   EMBRY, Justice.

Richard Walter Jones filed an action against Roger Watkins and Charlie Watkins. The portions of his complaint pertinent here read:

“1. On or about April 25th, 1975, Plaintiff was employed by Watkins Metal Company of Gadsden, Alabama and was working on a contract at Acipico Pipe and Steel of Birmingham, Alabama.
“2. That on said date, Plaintiff was severely injured in that his leg was broken and he sustained numerous injuries to all parts of his body.
“3. That Roger Watkins and Charlie Watkins were the supervisors of said job and as such were responsible and had a duty to provide safe working conditions at said job site.
“4. That Defendants negligently allowed dangerous conditions to exist at said job site which were the proximate cause of Plaintiffs’ injuries.”

Although not relevant to a decision we note that Jones’ wife Karen was added as a plaintiff by amendment, claiming damages for loss of consortium.

To the complaint, the Watkinses filed a motion to dismiss the grounds of which are:

“1. For that said complaint fails to state a cause of action against the Defendants.
“2. For that it affirmatively appears from the allegations of said complaint, that the Defendants in this cause were fellow employees of the Plaintiff, Richard Walter Jones, as defined in Title 26, Section 312 of the Code of Alabama, and that they are not third-parties against whom an action may be maintained.
“3. For that it affirmatively appears from the allegations of the complaint, that the Plaintiff cannot maintain this action against the Defendants who were his fellow employees in that said action is prohibited by Title 26, Section 312 of the Code of Alabama.
“4. This motion is based upon the affidavit of Roger Watkins, which is attached hereto as Exhibit “A”, and Charlie Watkins, which is attached hereto as Exhibit “B”, and incorporated by reference.”

Each Watkins affidavit reads:

“My name is Roger Watkins [Charles Watkins]. On 25 April, 1975, I was an employee of Watkins Metal Company of Gadsden, Alabama. On said date, Richard Walter Jones was also an employee of Watkins Metal Company of Gadsden, Alabama, and both Richard Walter Jones and Watkins Metal Company of Gadsden, Alabama were subject to the Workmen’s Compensation Act of the State of Alabama.”

The trial court granted the motion to dismiss, undoubtedly treating it as a motion for summary judgment as permitted by Rule 12(b)(6), ARCP. Judgment was entered dismissing Jones’ action and he appeals.

The trial court dismissed Jones’ action before this court announced its decision in Grantham v. Denke, 359 So.2d 785 (Ala.1978), holding unconstitutional the immunity from suit granted co-employees by, what is now, § 25-5-11, Code 1975.

The Watkinses argue that under Grantham and subsequent decisions of this court:

“While the majority of the Court holds that the involved section of the code is unconstitutional under Section 13 of the Constitution of Alabama of 1901, it is the contention of the Appellee, that as set forth in the dissenting opinion of Mr. Justice Maddox, that the Workmen’s Compensation Act itself, provides the ‘remedy’ which Section 13 of the Constitution requires. In the instant case, as in many cases, the supervisory personnel, are the president and vice president of a corporation, which is owned by them. Accordingly, the Plaintiff in this case gets a double shot, one at the corporation, which is owned by the individuals, and in fact, one and the same as the individuals, and then has another cause of action against them in their individual capacity. * * * >>

The “involved” section of the code is that part of § 25-5-11, Code 1975, reading:

“ * * * provided, however, that neither an officer, director, agent, servant or employee of the same employer nor his personal representative nor any workmen’s compensation insurance carrier of the employer nor any officer, director, agent, servant or employee of such carrier nor any labor union or any official or representative thereof making a safety inspection for the benefit of the employer or its employees shall be considered a party other than the employer against whom such an action may be brought. * * *"

At the outset, we note there is no evidence in the affidavits that the Watkins-es are other than co-employees. That being true, we have before us nothing different from the fact situation in Grantham. Thus, there is nothing in this record showing a bar to Jones’ action. Under the pleadings and affidavits it is possible Jones might recover in his action. Benson v. Pachetti, 349 So.2d 17 (Ala.1977). The case must, therefore, be reversed and remanded.

For guidance of the trial courts and litigants we observe that immunity of officers, directors, etc., was not raised in Grantham, nor was it addressed. Neither was it properly raised, nor is it addressed here. Even if it be assumed that officers, directors, etc., may be held immune from suit by an injured employee of the corporation without violating Section 13 of the Constitution of Alabama of 1901 there remains the question of whether he, or she, is immune from suit by the injured employee when standing in the shoes of the corporate entity as such. The answer to this question may well turn on the nature of the function or work being performed by the officer or director who may then become a co-employee of the injured employee. Mount Pleasant Mining Corp. v. Vermeulen, 117 Ind.App. 33, 65 N.E.2d 642 (1946). The North Carolina Supreme Court in Jones v. Planters’ National Bank & Trust Co., 206 N.C. 214, 173 S.E. 595 (1934), held the test to be not the title of the person, but the nature and quality of the act he is performing. Although these cases deal with officers seeking employee status in order to claim workmen’s compensation, we find this test one which may be applicable in resolving the question implicit in the arguments, pro and con, on the question of whether one holding a position as cdrporate officer, director, etc. may be legally immunized by the statute from suit by an injured corporate employee.

An officer may exercise a dual function and enjoy a dual capacity in a corporation. Depending on his, or her, function at the time of injury, he, or she, may not be immune from suit by an injured employee.

Which function the officer is fulfilling is a matter of fact. In small closely held corporations the likelihood of officers or directors acting as employees is greater than that in larger corporations. See In re Raynes, 66 Ind.App. 321, 118 N.E. 387 (1917).

Nevertheless, no evidence concerning the Watkinses’ functional role in the corporation at the time of Jones’ injury is present in this case. The judgment of the circuit court must, therefore, be reversed and the cases remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER and AL-MON, JJ., concur.

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


author: JONES, Justice.

text:
    Harry D. HESTER and Bart Nelson, Individually and d/b/a Barstone Apartments Partnership, Ltd., an Alabama Limited Partnership v. Bob L. MILLER.
    77-162.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Malcolm Tanner, Birmingham, for appellants.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   JONES, Justice.

This appeal, from a judgment for Plaintiff-Appellee, Bob L. Miller, in a suit for breach of contract and specific performance, presents two issues: 1) Whether the trial Court was correct in its construction of the agreement; and 2) Whether Appellants, Harry D. Hester and Bart Nelson, as limited partners, may be held individually liable under the agreement. We affirm.

Prior to August 29, 1974, Miller, Hester and Nelson were limited partners in Bar-stone Apartments, Ltd. On August 29, 1974, Miller executed an agreement with the limited partnership to “convey a twenty-four percent (24%) interest in the net operating income of said partnership” to the other partners — “retaining a one percent (1%) interest in said partnership”. The agreement provided as consideration for the transfer that Miller would be allowed to continue to share in the depreciation of the partnership assets at a rate of 25% for no longer than three years. As further consideration, Miller was to be indemnified for any losses that might occur.

The pertinent provisions of the transfer agreement provide:

Paragraph six:
“At such time as the undersigned is relieved of all liabilities now outstanding, whether such relief occurs within three (3) years or otherwise, the undersigned agrees to execute all instruments necessary to effect the transfer of his remaining one percent (1%) interest in said partnership.”
Paragraph eight:
“In the event, within a period of three years from the date hereof, the partnership effects a sale of the partnership real property now owned, and in the further event that the purchaser of such property does not agree or the internal revenue laws do not permit the undersigned to retain his right to depreciation, then the undersigned will sell to said partnership his remaining one percent (1%) interest for a cash consideration equal to (Vfe) one-half of the amount of depreciation that could have been taken by him during the remainder of such three year period.”

On February 26, 1975, the partnership realty was transferred to the Rise Company, another partnership. Because Miller could no longer claim depreciation, he sought cash consideration of one-half (Vfe) the remaining depreciation for the remainder of the three-year period. Appellants contend that, under paragraph six of the August 29 agreement, they owe no money because, incident to the sale of the partnership realty, Miller was relieved of all liabilities. It is Appellants’ position that paragraph six prevents utilization of paragraph eight; i. e., because Miller was relieved of liabilities under the terms of the sale to Rise, paragraph eight does not come into play.

Miller, on the other hand, argues that paragraph eight applies notwithstanding paragraph six; that is, Miller was entitled to be relieved of liabilities under paragraph six and he was entitled to receive the cash payment in lieu of depreciation as provided for in paragraph eight of the agreement. The trial Court so found. We affirm.

The court below based its interpretation of the contract primarily on two facts: 1) That Miller transferred his interest in the net operating income of the partnership to the partners and not the partnership assets; 2) That the requisite intent of the parties was expressed in a letter written by Appellant, Nelson, to Miller, dated August 29, 1974. The letter with reference to paragraph eight reads:

“In the event the 25% depreciation is disallowed by the Internal Revenue Service, then in such event, we agree to 12.5% depreciation and a like amount in cash for each given year in accord with the terms of the agreement. This applies also to paragraph eight in the ‘Transfer of Partnership Interest’ relating to the sale of real property owned by the partnership.”

The Court placed emphasis on the word “also” in the last sentence quoted above as pointing to the intention of the parties that both paragraph 8 and paragraph 6 applied to the situation then at bar.

The ore terms rule does not allow this Court to alter the trial Court’s findings where those findings are not “clearly erroneous or manifestly unjust.” Atkinson v. Anderson, 341 So.2d 723 (Ala.1977). There is clearly sufficient credible evidence to support the trial Court’s findings in this case.

The Appellants urge the Court to adopt the rule of interpretation that, where two contract provisions are in conflict, the first in time should control. Upon a reading of the paragraphs here in question, we can determine no conflict between them. The rule contended for, even if applicable, must have for its operation a conflict between its provisions which cannot be resolved upon a reading of the whole instrument. Because the evidence supports the trial Court’s finding that no such conflict exists, the rule has no operation here.

We think the better rule is to determine the intent of the parties by considering the contract as a whole as well as the surrounding circumstances of the agreement. Charles H. McCauley Associates, Inc. v. Snook, 339 So.2d 1011 (Ala.1976). This rule is applicable if, upon the face of the instrument, an ambiguity exists. The provisions of the two paragraphs involved in this case were treated by all parties as ambiguous; i. e., subject to more than one interpretation. In Flagg-Utica Corp. v. City of Florence, 275 Ala. 475, 156 So.2d 338 (1963), this Court held that, if an ambiguity exists in a contract, the fact finder should look to the surrounding circumstances to determine the parties’ intent.

Finally, Appellants argue that as limited partners they cannot be held individually and personally liable under the transfer agreement. This overlooks the pre-trial order which recites the stipulation that Appellants executed the original transfer agreement, stating that their responsibility was both “individual and as partners.” The case was fully tried on the merits on the theory that Appellants were responsible under the contract, if at all, as individuals. It is axiomatic that an issue cannot be raised for the first time on appeal.

AFFIRMED.

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

      . The apparent difference in interest suggested by this language between the interest conveyed (in the net operating income of the partnership) and the interest retained (in the partnership) was the subject of inquiry by this Court during oral argument. Counsel conceded that no difference in interest was intended by this variance in terms.

      . This rule of construction has been applied in deeds of conveyance cases. See Lowery v. May, 213 Ala. 66, 104 So. 5 (1925). Because the facts here are insufficient to invoke its operation, we need not decide whether it applies to construction of contracts generally.

      . For the sake of clarity, it should be noted that we, as well as the court below, treated this issue of interpretation of the contract in the context of an ambiguity. The issue was so postured on appeal. Our opinion is not to be construed as a holding that the language of the two paragraphs in question, when read together and in light of the contract as a whole, is ambiguous.


author: BLOODWORTH, Justice.

text:
    Jacqueline SPURLOCK et al. v. Jerry SPURLOCK, Sr.
    77-271.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Vaughan H. Robison, John M. Bolton, III, Montgomery, for appellants, Jacqueline Spurlock, et al.
    Tabor R. Novak, Jr., Montgomery, for appellant, Louie Frank Spurlock..
    James G. Clower, Troy, for appellee.
   BLOODWORTH, Justice.

Defendant corporation and eight of eleven non-corporate defendants appeal from a judgment for plaintiff cancelling four leases and ordering a sale for division of land owned by plaintiff and the non-corporate defendants as tenants in common. We reverse and remand.

Plaintiff, Jerry Spurlock, and the eleven non-corporate defendants are the twelve children of Frank Spurlock, owner and operator of a junk business, who died in 1955. In an action brought in 1965, plaintiff and defendant Louie Spurlock filed suit against the other heirs for an accounting and for a sale for division of Frank’s real and personal property. As part of the settlement of that case, plaintiff, defendant Louie Spur-lock, and defendant Ollie Belle Spurlock Cash each made a lease of his or her interest in the real property to the remaining brother Paul and eight sisters. The nine lessees then formed a corporation and leased to it the entire interest in the real estate.

Each of the four leases contained a provision that the lessees would pay all taxes and provide hazard insurance on the real estate. It is uncontroverted that no hazard insurance was purchased by any of the lessees. There was no agreement providing for termination of the leases by the lessors for failure of the lessees to insure.

Plaintiff-lessor brought suit for cancellation of all four leases for breach of the covenants to insure, and for a sale for division, but made no alternative claim for damages. There was conflicting evidence as to losses occasioned by the failure to insure.

The trial court, after declaring that each brother and sister owned a Vn interest, held for plaintiff-lessor, cancelling all four leases and ordering a sale for division.

The issue presented to us is whether the remedy of cancellation is available in this case for the lessees’ breach of the agreements to insure and, if so, whether that remedy may be applied to the leases to which plaintiff-lessor was not a party.

Cancellation of an instrument, although within the discretion of the trial court, is an extraordinary remedy to be granted only in a clear case with strong and convincing evidence. Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211 (1955). In the usual case involving a lessee’s breach of an agreement to insure, the appropriate remedy is damages. E. g., Richmond v. Kelsey, 225 Mass. 209, 114 N.E. 319 (1916); Robinson v. Janay, 105 N.J.Super. 585, 253 A.2d 816 (1969); Rodriguez v. Nachamie, 57 A.D.2d 920, 395 N.Y.S.2d 51 (1977); Marconi Wireless Telegraph Co. v. Universal Transp. Co., 194 App.Div. 272, 185 N.Y.S. 65 (1920), aff’d, 233 N.Y. 581, 135 N.E. 926 (1922); Franck v. Stout, 139 Wis. 223, 120 N.W. 867 (1909).

However, plaintiff-lessor maintains that this case presents a special situation. The leases from plaintiff, Louie, and Ollie Belle were made to settle the disagreements which culminated in the 1965 suit. There is evidence of continued disharmony among the family members and testimony that plaintiff would not have leased his interest without the insurance clause. The trial court found these to be sufficient special circumstances, when added to the failure to insure, to warrant cancellation. We cannot agree.

The presence of ill will among the family members is not a circumstance entitling plaintiff-lessor to cancellation. Rather, the disagreement as to the division of the family property is the main reason for the existence of the leases. The leases were made to settle the previous suit and would have been unnecessary had there been no disputes between the family members. In Childs v. Julian, 241 Ala. 249, 2 So.2d 453 (1941), this court approved the policy that “family agreements by parties who are sui juris, not affected with deception or fraud, with a full understanding of the facts dealing with the common properties, are favored.” Accord, Ingalls Iron Works Co. v. Ingalls, 177 F.Supp. 151 (N.D.Ala.1959), aff’d, 280 F.2d 423 (5th Cir. 1960); Western Grain Co. Cases, 264 Ala. 145, 85 So.2d 395 (1955). There is neither allegation nor proof of fraud here. Further, any harm suffered by plaintiff can be adequately compensated through an award of damages, when sought by complaint and sustained by proof.

Even if we were to agree that cancellation is appropriate here, plaintiff would be entitled only to cancellation of his lease to his brother Paul and the eight sisters. This, in turn, would affect only plaintiff’s V12 interest subleased to the corporation. Plaintiff would not be entitled to cancellation of the other leases to which he was not a party. Thus, the lower court’s judgment is clearly erroneous to this extent.

Tenants in common hold separate and distinct titles and may lease or convey their separate interests. Relief by cancellation in a suit by one tenant in common involving leases made by several cotenants will be limited to the plaintiff’s interest alone. See Glass v. Cook, 257 Ala. 141, 57 So.2d 505 (1952).

For the reasons we have given, we hold that the trial court erred in cancelling the four leases. Thus, this cause is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    Martha M. WASHINGTON et al. v. CITY OF BIRMINGHAM, a Municipal Corporation.
    77-344.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Harold D. Rice, Jr. of Ackerman & Rice, Birmingham, for appellants.
    James L. North, Frank M. Young, III, Philip W. Norwood, Birmingham, for appel-lee.
   BEATTY, Justice.

This is an appeal from a declaratory judgment entered in favor of the City of Birmingham. We affirm.

In the late Fall of 1976 a group of citizens from the “Airport Hills” area of Jefferson County met to discuss annexation of the area to the City of Birmingham. A later meeting was held at the Mt. Zion Baptist Church at which three representatives of Birmingham were present: Dr. Richard Arrington, Chairman of the City Council Committee on Municipal Development; Mr. Larry Lavender, Executive Secretary to the Mayor; and Mr. Edward Co-berly of the Community Development Office. Thereafter, on December 21, 1976 the Birmingham City Council adopted Resolution No. 1229-76 (hereinafter Annexation Resolution) which found that an annexation of the area would promote the public good. A copy of the Annexation Resolution was certified and filed with the Jefferson County Probate Judge along with a map of the Airport Hills area. Thereafter the probate judge ordered that an election on the issue be held within the “Airport Hills” area. “Notice” of the annexation election was ordered published in the Birmingham Post-Herald once a week for three consecutive weeks prior to the election.

The results of the January 22, 1977 annexation election reflected that 340 persons were in favor of annexation while 149 persons opposed it. Pursuant to these results the probate judge issued a Final Order of Annexation declaring that the area had become a part of the City of Birmingham.

Plaintiffs, as concerned area citizens, brought the present action for a declaratory judgment to contest the validity of the annexation. Thereafter, an intervention complaint was filed against defendant on behalf of the Community Fire District [hereinafter plaintiff].

Trial occurred September 19-20, 1977, following which the court received briefs from the parties and took the matter under advisement. Thereafter, on November 28, 1977, the trial court entered its final judgment in favor of Birmingham, finding affirmatively “that the Airport Hills annexation was undertaken by the representatives of the City of Birmingham in full compliance with the provisions of [Alabama Code of 1940, Chap. 5] Article II of Title 37 [presently Ala.Code of 1975, Art. 3, § 11-42-40 et seq.] and all procedural requirements necessary to validate the annexation were complied with.” Plaintiffs’ motion for new trial was overruled on January 23,1978 and this appeal ensued.

Plaintiffs first contend that the provisions of Title 37, Chapter 5, Article 2 were not intended by the legislature to be employed in the annexation by a municipality of a densely populated residential area. Instead, they argue, the statute was intended to apply only to the annexation of sparsely populated and/or industrialized areas.' They argue this follows from the fact that Ala.Code of 1940, Tit. 37, §§ 154 and 155 provide for tax exempt status for a period of time after annexation of those areas has occurred. We hold otherwise. Sections 154 and 155 must be read in conjunction with § 153 of the statute which provides:

All territory brought within the corporate limits of a city under the provisions of this article, and all property having a situs within such territory, shall be exempt from city taxation or the payment of taxes to the city for . . not less than ten nor more than fifteen years . except as provided in sections 154 and 155 of this title. (Emphasis added)

The fact that §§ 154 and 155 are in the nature of exceptions to the general language of § 153 is crucial. As Professor Sands stated in 2A Sutherland Statutory Construction, § 47.11 (4th ed. 1973) “[Exceptions make it clear that statutes in which they appear should apply to all persons or situations not excepted.” [citation omitted]. This, together with the fact that at no point does Article 2 of Chapter 5 expressly or impliedly deny its coverage to densely populated residential areas, compels this Court to hold that any territory may be subject to an annexation election if there is compliance with the provisions of that statute.

Next the plaintiffs contend that the City conducted the annexation in a false or misleading manner. The gist of this allegation is that prior to the annexation the defendant “disseminated false information regarding the effects of the annexation” at the Mt. Zion Baptist Church meeting of December 13, 1976. This issue of fact was argued at trial and was discussed at length in the trial court’s decree:

This meeting was called and conducted not by the City of Birmingham, but by citizens of Airport Hills who were interested in annexation and who were not connected, to any extent, with the government of the City of Birmingham.
Plaintiffs rely heavily on the conduct of the December 13th meeting, asserting that the statement was there made that school children in Airport Hills would continue to remain in the Jefferson County school system for five years following annexation — a statement which has proved to be incorrect. Having weighed and evaluated the testimony concerning the December 13th meeting, the Court finds that it is possible that some erroneous facts concerning school attendance following annexation may have been circulated at the meeting. These statements, however, were not connected by the plaintiffs to the City of Birmingham. (emphasis added)
Plaintiffs also alleged that certain incorrect printed factual information was distributed at the December 13th meeting. However, there is no evidence that any information was passed out at the December 13th meeting or at any time prior to the annexation by representatives of the City of Birmingham. Furthermore, with regard to plaintiffs’ offer of Exhibit 2 which was a question and answer sheet containing information with regard to the consequences of annexation under the tax exemption statute and which contained an incorrect statement with regard to the school issue, the Court finds that this information sheet was obtained after the annexation election of January 22, 1977, and long after the December 13th meeting. There is absolutely no testimony to any extent linking this exhibit with any activity prior to the annexation election or with any representatives of the City of Birmingham who participated in this annexation effort. (emphasis added)

We find nothing in the record of this case which overcomes the presumption of validity attached to a trial court’s findings of fact in a case heard ore tenus. Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975).

Plaintiffs’ next contentions deal with the adequacy of “notice” of the annexation election. Notice is required by Ala.Code of 1940, Tit. 37, § 142:

The said judge shall give notice of the holding of such election by publication in at least one newspaper, and at the discretion of the judge, in more than one newspaper published in the county wherein such election is to be held, which notice shall state the day on which such election will be held, the voting place or places at which the election will be held, the boundaries within which voters must reside to vote at the respective voting places, which must be within the territory proposed to be brought into the city, and such notice must give a description of the territory proposed to be brought within the city, and must state that a map showing the territory proposed to be brought into the city is on file in the office of the judge of probate of said county, open to the inspection of the public.

First plaintiffs argue that the probate judge abused his discretion in directing that the required “notice” be published in the Birmingham Post-Herald, rather than in the Birmingham News. The evidence elicited at trial showed that the Post-Herald, though published in Jefferson County, had not been permanently delivered in the “Airport Hills” area for twelve years. However, there was no evidence that the probate judge knew of this fact at the time he ordered the notice published in that newspaper, nor does the statute impose any obligation on the probate judge to ascertain the actual degree of circulation of a newspaper. The legislature has determined that it is enough that the newspaper be one of general circulation published within the county wherein such election is to be held. It is true that the probate judge has discretion to order the notice published in more than one newspaper, but on the facts of this case there is no basis for concluding that he abused his discretion in not so ordering.

Secondly, on the notice issue, plaintiffs contend that the “notice” given of the annexation election was incorrect and misleading in that the map of the area filed pursuant to § 142 of Title 37 had at least one-half of the street names incorrect; that the map did not contain a description of the voting places; and because the legal description of the area referred to the “present city limits” as part of the boundary of the area to be annexed.

Section 140 (now § 11-42-42) provides that the certified copy of the resolution to extend the corporate limits — required by § 139 — “shall have attached thereto a plat or map of the territory proposed to be brought into the corporate limits of the city, which certified resolution and plat or map shall be filed with the judge of probate.” Section 152 of the same statute requires that this map or plat

[S]hould show the boundary of the territory proposed to be taken into the city, which territory must be contiguous to the boundary of the city at some point, and such territory may extend to or around the boundary line of any other city, but is not to embrace any territory within the corporate limits of another city.

The record discloses compliance with the statute in this instance. The fact that the map showed some streets with their original names rather than their present numerical designations does not in itself make the map inadequate to give notice to anyone who might inquire as to the territory involved. Nor does the statute require that the map contain any description of the voting place, although the published notice of the annexation election must state the voting place or places. Code of 1940, Tit. 37, § 142 (now § 11-42 — 44). There was no contention that such a statement did not appear in the published notice.

Plaintiffs’ contention that the legal description filed with the resolution and map was inadequate because it referred to “present city limits” as part of the area boundary is also without merit. That is a standard legal description and, in fact, serves to show satisfaction of the requirement of § 152 that the boundary of the territory be contiguous to the boundary of the city at some point.

Finally, on the notice issue, the trial court observed:

[T]hat no witness for the plaintiffs testified that he or she failed to receive actual notice of the election. To the contrary, four of the plaintiffs’ witnesses resided in the area affected and three of them testified that they voted in the election. The fourth resident witness did not testify whether she voted or not.

The court further found:

[P]articipation [in the election] of over 42 per cent of the electorate. This high participation in this special election strongly evidences that the notice of the time, place and date of the annexation election was not only received, but was understood by the eligible voters in the area.

Plaintiffs’ attempt to bring this case within the framework of City of Birmingham v. Community Fire District, 336 So.2d 502 (Ala.1976) is not well taken. That case affirmed the lower court’s setting aside of an annexation election on the ground that the City of Birmingham had “gerrymandered” the boundaries of the territory, thus unreasonably and unconstitutionally-excluding many voters with similar interests from voting on the issue. In the present case, however, we find no scheme to deny to anyone the right to vote on the annexation issue. This being the case, and mindful of our discussion above, we hold that the judgment of the trial court upholding the annexation was proper. Accordingly, let the decree of the trial court be affirmed.

AFFIRMED.

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


text:
    Norman A. CERAVOLO v. Norman K. BROWN.
    77-375.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Norman A. Ceravolo, pro se.
    Hudson John Myers, Birmingham, for appellant.
    W. Gerald Stone, Bessemer, and Thomas B. Huie, Birmingham, for appellee.
   FAULKNER, Justice.

Norman Ceravolo brought suit against Norman Brown for malicious prosecution and slander. Summary judgment was entered for Brown. Ceravolo appeals only as to the slander action. Because the complaint does not sufficiently allege a claim for relief for slander, even under our liberalized rules of procedure, we affirm.

Brown, an attorney in Bessemer, has been acting as counsel in a suit brought by MetroBank against Ceravolo and others. Ceravolo claims that during the pendency of that suit he has been the subject of several abusive outbursts by Brown. Cera-volo, acting pro se, brought a separate suit against Brown originally for malicious prosecution. Brown sought summary judgment on the grounds that the MetroBank suit was still pending. Subsequent to the filing of the motion for summary judgment, Cera-volo amended his complaint to base the action on slander. Brown, consequently, amended his motion to encompass the slander action. On summary judgment the trial court considered the affidavits of both parties as well as the entire record in the MetroBank suit, and entered judgment for defendant Brown. Ceravolo appeals, asserting that the complaint and affidavits entitled him to a jury trial on the slander count.

Brown’s motion for summary judgment was based on two propositions: (1) that the amended complaint did not sufficiently state a claim upon which relief can be granted, and (2) that Brown is immune from suit as attorney in the MetroBank action. Since we find that the first contention is meritorious, we do not reach the question of any possible immunity for Brown.

The substance of the amended complaint is as follows:

“The Defendant, Norman K. Brown, has on numerous occasions, and before people, threatened the Plaintiff with arrest and criminal prosecution, and did have others call and threaten the same. Defendant has called Plaintiff a dead beat and a crook, and has threatened before a large group of people to drive the Plaintiff crazy. Defendant has by his numerous malicious actions against this Plaintiff, including his use of abusive, insulting and offensive language and use of ethnic slurs against the Plaintiff, attempted to slander and libel the Plaintiff and to ruin his reputation and indeed drive him crazy.
“Plaintiff will show unto this Honorable Court that as a direct result of the Defendant’s actions, his reputation has been irreparably damaged, he has been ruined in the business community, and his credit standing has been diminished.”

Initially, we note that Ceravolo has not alleged any special damages. To state a claim Ceravolo’s allegations must charge slander per se.

This Court outlined the requirements for slander per se in Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927):

“The right to the enjoyment of a private reputation unassailed by malicious slander, is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property. Constitution of 1901, § 13 . . . . The foundation of an action for libel or slander is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation, is actionable either per se or per quod. .
“There is a distinction between actions of libel predicated on written or printed malicious aspersions of character, and actions of slander resting on oral defamation. . . . This distinction, however, is merely in respect to the question as to whether the imputed language or words are actionable per se.
“In eases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. While to constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude. . . .
“This distinction, however, does not deny the right to maintain an action for slander founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt, though it falls short of imputing the commission of such crime or misdemeanor. In such case the law pronounces the words actionable per quod only, and the plaintiff must allege and prove special damages as an element of the cause of action.”

The rules enunciated in this case have been consistently followed within this state and were most recently reaffirmed in Brown v. W.R.M.A. Broadcasting Co., Inc., 286 Ala. 186, 238 So.2d 540 (1970). See also Bryan v. Brown, 339 So.2d 577 (Ala.1976). While it may be odious to berate someone in public with threats and ethnic slurs and to attack someone with epithets such as “dead beat” and “crook,” such questionable behavior is, nevertheless, not actionable in Alabama absent allegations of special damages. Even under our liberalized rules of procedure, Rule 9(g) ARCP still requires special damages to be specifically stated, and without them Ceravolo’s complaint does not state a claim upon which relief can be granted.

AFFIRMED.

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


text:
    STATE of Alabama v. Willie E. Sanders PULLIHAM et al.
    77-419.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      William P. Gray, Jr., Tuscaloosa, for appellants.
    Joel L. Sogol, E. M. Ford, Tuscaloosa, for appellee.
   MADDOX, Justice.

The State of Alabama appeals from a judgment in a condemnation case, and claims: (1) that the trial court erred in allowing the owner to testify about the price she had paid for the property some ten years before, (2) that the trial court should have admitted into evidence photographs of the house which were taken after the date of the taking, and (3) that the trial court should have struck the testimony of the landowner’s expert witness because, says the State, the expert’s opinion was not based on value at the time of the taking, but was based on reproduction cost, without an allowance for depreciation.

We have examined the record and the transcript of the evidence, and have carefully considered the briefs and argument of counsel, and we are convinced that the trial court did not commit prejudicial error in any of the instances set forth.

AFFIRMED.

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


text:
    Jon S. GOSNELL v. Diane Allen SLAUGHTER.
    77-421.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      W. Kenneth Gibson and Lloyd E. Taylor, Fairhope, for appellant.
    E. E. Ball, Bay Minette, for appellee.
   JONES, Justice.

This appeal, from a malicious prosecution action, challenges the trial Court’s order overruling the Defendant’s motion for a new trial. Two grounds of that motion are properly presented for our review: 1) The sufficiency vel non of the evidence to support the verdict; and 2) The excessiveness vel non of the verdict. We affirm.

A brief recital of the factual background of this civil action will suffice for our purposes of review. Near the midnight hour of February 19, 1977, the Appellant/Defendant, Jon S. Gosnell, while operating a motorcycle on a public highway in Daphne, Alabama, was struck and injured by a car operated by the Appellee/Plaintiff, Diane Allen Slaughter. Gosnell, upon release from the hospital, “swore out” warrants for the arrest of Ms. Slaughter on two separate charges—Failure to Yield Right of Way and Leaving the Scene of an Accident. She was arrested, tried, found guilty of failure to yield and not guilty of leaving the scene. Subsequently, she brought this malicious prosecution action against Gosnell; and, upon trial, the jury rendered its verdict for the Plaintiff in the amount of $30,000.

In an action for malicious prosecution, the burden is on the Plaintiff to prove, in addition to the element of damages, that a judicial proceeding, initiated by the Defendant, without probable cause and with malice, was terminated favorable to the Plaintiff. Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969). The only elements here challenged are “without probable cause” and “with malice.” (The “excessive damages” issue is not a challenge of the element of damages essential to Plaintiff’s success in a malicious prosecution case.)

This Court, in the recent Case of S. S. Kresge Co. v. Ruby, 348 So.2d 484 (1977), discussed in some depth the respective definitions of these elements—lack of probable cause and malice—in the context of an action for malicious prosecution. Additionally, the case law establishing the burden of proof as to each of these essential elements, the defense of advice of counsel, and the scope of appellate review is cited and reaffirmed. A restatement of these principles here would serve no useful purpose.

Furthermore, in view of the pending litigation between these parties (arising out of the referenced accident and the resulting injuries), we deem it improvident to review in detail the evidence as we test the challenge to its sufficiency. Suffice it to say that, upon carefully reviewing the record of trial, we hold that the tendencies of the evidence clearly support the jury verdict; thus, we find no error in the ruling of the trial Court on this ground of the new trial motion. The tendencies of the evidence of lack of probable cause and malice is highlighted by testimony on behalf of the Plaintiff that Gosnell attempted to use the prosecution of Ms. Slaughter for leaving, the scene of an accident in pursuit of his claim for damages, as well as Gosnell’s own testimony that he thought the criminal prosecution “was necessary for insurance purposes.” Additionally, Gosnell’s repeated efforts to induce the investigating officers to initiate the prosecution were declined; and, in doing so, the officers explained the factual basis for their decision.

The evidence is virtually without dispute that Ms. Slaughter absented herself from the accident scene only briefly and this for the sole purpose of using a telephone to notify law enforcement authorities of the accident and to summon aid for the injured operator of the motorcycle. See § 32-10-1 et seq., Ala.Code 1975.

Nor are we persuaded that, in in view of the actual damages suffered by the Defendant in the criminal prosecution and all the attendant circumstances, the verdict is so excessive as to require reversal. S. S. Kresge Co. v. Ruby, supra.

AFFIRMED.

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


text:
    Rufus and Mabel DIXSON v. C. & G. EXCAVATING, INC., a corporation.
    77-449.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      W. D. Scruggs, Jr. of Scruggs, Rains & Wilson, Port Payne, for appellants.
    Stuart M. Rosenblum, Henagar, and W. M. Beck, Sr., Fort Payne, for appellee.
   BLOODWORTH, Justice.

This is an appeal from a judgment denying cancellation of a mineral lease in a suit brought by the landowners, the Dixsons. We affirm.

On October 8,1974, the Dixsons (husband and wife) entered into an agreement with C. & G. Excavating, Inc., entitled “Option to Lease and Lease.” This agreement allowed C. & G. to strip mine coal from 100 acres of the Dixsons’ land for five years, with an option to renew for five years, in exchange for $100, future royalties, and the performance of specified covenants. C. & G. covenanted that it would reclaim the land, replacing top soil and planting grass or trees, and that it would complete reclamation within 90 days following the cessation of mining activity. The lease also contained a termination clause empowering the Dixsons to terminate the lease and re-enter the land in the event that C. & G. remained in breach of any covenant for 60 days following written notice of default.

C. & G. operated for approximately four months before ceasing to extract coal from the land. There were several open pits, filled with rain water, in which coal lay on the surface. There is evidence that some pits which did not contain coal were back-filled. The evidence is in sharp conflict regarding C. & G.’s efforts to continue mining or reclamation. The Dixsons assert that C. & G. had ceased mining operations, that the covenant to reclaim was breached, and that they did not prevent C. & G. or anyone else from entering the property to mine or reclaim. C. & G. counters that it has not abandoned the lease, that the covenant to reclaim has not been breached, and that Mr. Dixson threatened to shoot C. & G.’s employees or representatives if they attempted to mine the coal or reclaim the land.

In a prior case Mr. Dixson had sought cancellation of this lease on sixteen grounds, including breach of the covenant to reclaim and several other covenants. Relief was denied on June 21, 1976, due to failure to give notice of breach as required by the lease.

The present suit was brought on February 8, 1977, alleging breach of the lease, including breach of the covenant to reclaim, and seeking damages and cancellation. C. & G. counterclaimed for damages for breach of contract, assault, and slander of title, and for an injunction. The basis of the company’s counterclaim was that Mr. Dixson had made threats of physical violence which prevented its performance under the lease.

In accordance with a pre-trial order, there was a joint trial of the legal and equitable issues. The entire testimony in the first case was entered into evidence in the second trial, and additional testimony was taken. The case was submitted to the jury on the question of damages and to the court on the questions of cancellation and injunction. After the jury found for the Dixsons and awarded them $10,000 damages, the court denied relief under the Dix-sons’ prayer for cancellation and held the lease to be valid and in full force and effect. It is from the judgment denying cancellation that the Dixsons appeal. We affirm.

The issue presented for review, as stated by the Dixsons in brief, is whether the lease should be cancelled for breach of a covenant to reclaim when a jury hearing identical testimony awarded damages for breach of the covenant. C. & G. states the issue is whether the trial court’s decree is supported by the record, since the evidence, or part of it, was heard ore tenus.

We have examined the record and find that there is evidence to support the trial court’s decree. Several witnesses testified that Mr. Dixson refused them permission to enter the land to mine coal and threatened to shoot representatives of C. & G. if they attempted to enter the land to mine coal.

It is well-settled that one who seeks equitable relief must come into court with “clean hands” and that the application of this doctrine is peculiarly within the discretion of the trial court. Carter v. Carter, 282 Ala. 239, 210 So.2d 800 (1968). More specifically, a party to a contract who has caused a failure of performance by the other party cannot take advantage of that failure. Lovoy v. Ratliff, 276 Ala. 156, 159 So.2d 857 (1963); Selman v. Bryant, 261 Ala. 53, 72 So.2d 704 (1954). Further, a court in equity will not allow a lessor to declare a forfeiture under the termination clause in a lease when the alleged breach was caused by the lessor’s own conduct. Dunlap v. Macke, 233 Ala. 297, 171 So. 721 (1937).

Mr. Dixson insists that any threats he may have made were threats in word only and were not the cause of the breach of the covenant to reclaim. He further asserts that any threats he may have made were given after the breach of the covenant to reclaim. Some of the evidence concerning Mr. Dixson’s statements, which allegedly prevented the mining of coal, is contained in the transcript of the first trial, but most of the testimony regarding this matter was heard ore tenus by the court in the second trial. The rule is that where evidence is heard ore tenus, or partly so, the trial court’s decree will not be disturbed unless it is plainly and palpably erroneous. Hall v. Polk, 363 So.2d 300 (Ala.1978); Air Movers of America, Inc. v. State National Bank, 293 Ala. 312, 302 So.2d 517 (1974).

There is sufficient credible evidence in the record, regarding Mr. Dixson’s threats, to support the trial court’s decree. Our affirmance, however, need not be based upon this issue alone. In order to declare a forfeiture for breach of the covenant to reclaim (under the lease’s terms), there must be shown both a cessation of mining activity and written notice of default specifying the nature of the breach. The Dix-sons insist that filing suit in the first case is sufficient notice of default to support cancellation in the second case. Nevertheless, the lessee must be given 60 days from the receipt of notice in which to take curative action. The record will support a conclusion that mining activity had not ceased (in other words, that C. & G. had not voluntarily stopped mining coal), or that proper written notice specifying the alleged breach had not been given, or that C. & G. had not been given 60 days to take curative action. In short, there is evidence in the record, heard ore tenus, to support the trial court’s judgment on several grounds.

The Dixsons contend that the trial judge’s judgment is inconsistent with the jury’s verdict against C. & G. for $10,000. They state that the jury must have found a material breach and must have found that Mr. Dixson was not at fault.

The two verdicts are not inconsistent. Under the charges given, the jury need not have found a material breach in order to award damages. Moreover, the jury need not have considered the issues of cessation of mining activity, proper written notice, and opportunity for curative action which were involved in the prayer for cancellation tried to the court. The jury could have decided that damages were due to be assessed for breaches of the covenants of the lease but the court could have concluded that lessors were not due to have the lease canceled.

The parties agreed to a joint trial of the legal and equitable issues. This agreement, embodied in the pre-trial order, controlled the subsequent course of the action. Rule 16, ARCP. The use of joint trials of legal and equitable claims arising from the same or similar facts is proper under our rules and results in a saving of the time and expense occasioned by separate trials. See Rule 39, ARCP, and comments thereto. The Dixsons had their jury trial on the legal issues, as requested. Under our rules, “[a]fter the legal claim has been determined, the court, in the light of the jury’s verdict on the common issues, may decide whether to award any equitable relief.” Donaldson & Walls, Merger of Law and Equity in Alabama — Some Considerations, 33 Ala. Lawyer 134, 149 (1972). The court is not required to grant the equitable relief merely because the plaintiffs prevailed on the legal claim. Here, the trial court’s denial of equitable relief is supported by the record and will not be disturbed on this appeal.

For the foregoing reasons, this cause is due to be affirmed.

AFFIRMED.

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


text:
    Jim ZEIGLER et al. v. BLOUNT BROTHERS CONSTRUCTION CO. et al.
    77-452.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Stanley A. Cash of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellants.
    Richard J. Phelan of Phelan & Pope, Chicago, Ill., for defendant-appellee, Blount Bros. Corp.
    Edward 0. Conerly, Birmingham, for defendant-appellee, Harry Hendon & Associates, Inc.
    Robert McD. Smith and Lewis W. Page, Jr., Birmingham, for defendant-appellee, Southern Services, Inc.
    Thomas R. Elliott, Jr. of London, Yancey, Clark & Allen, Birmingham, for defendant-appellee, Harbert Const. Corp.
   BEATTY, Justice.

This is an appeal from the grant of motions to dismiss filed by the defendants. We affirm.

The plaintiffs brought this action seeking to represent a class of persons who purchase electric power from Alabama Power Company (APCO). The action is grounded upon the failure in 1975 of the Walter Bouldin Dam which is located on the Coosa River in Elmore County, and which is part of the hydroelectric generating system of APCO. In their complaint the plaintiffs alleged that during 1963 or 1964 the defendant Blount Brothers Construction Company (Blount) as general contractor agreed with APCO to construct Walter Bouldin Dam. The defendant, Southern Services, Inc., allegedly prepared the plans and specifications for the dam. Harbert Construction Company (Harbert), another defendant, was a sub-contractor for the powerhouse excavation and embankments, and Harry Hendon & Associates (Hendon), another co-defendant, contracted with APCO to furnish inspections and to advise of possible construction defects. The complaint alleged that Southern Services improperly designed and prepared the plans and specifications, and that Blount and Harbert breached their contracts by failing to construct the dam in accord with the plans and specifications, causing it to collapse. Hendon’s inspections, it further alleged, did not detect' the deficiencies which resulted in the collapse. These failures, the plaintiffs continued, resulted in APCO, under Alabama law, Public Service Commission’s regulations, and the “fuel adjustment clause,” increasing the price it charged its customers proportionately by the price it was required to pay for electricity it otherwise would have generated using Walter Bouldin Dam.

The complaint as amended asserted three separate theories on which relief was based: (1) equitable subrogation; (2) third-party beneficiary principles; and (3) negligence. We shall treat these seriatim.

1. Equitable subrogation.

When the plaintiffs were required to pay the increased electricity rates passed on to them under the “fuel adjustment clause,” which is a part of the general rate schedule for APCO, this, they contend, enabled them to be subrogated to the rights of Alabama Power Company to claim those increases in rates allowed by the Public Service Commission. In short, by paying the increased rate, it is alleged, the plaintiffs paid for APCO’s injury and stand in APCO’s shoes. APCO cannot make any claim, it is stated, because APCO has passed these “damages” on to the ultimate consumer.

While we agree with the plaintiffs’ general statement that Alabama recognizes the doctrine of equitable subrogation, we must also note that its application is dependent upon the facts of the particular case and is not a matter of strict right. Jefferson Standard Life Ins. Co. v. Brunson, 226 Ala. 16, 145 So. 156 (1932). In this connection the parties concede that APCO has filed an action against some of these defendants, claiming damages for breach of contract and negligence which consequently resulted in the failure of the dam. If the argument of these plaintiffs is correct, then the rate increase allowed by the “fuel adjustment clause” and the damages which might be recovered by APCO, if any, are the same. Furthermore, according to the plaintiffs, those “damages” cannot be recovered by APCO because it has already collected them through increased rates.

We have been cited to nothing which convinces us of the soundness of either of these two propositions. We cannot determine from either the record or the briefs that the rate increase in question equated the damages recoverable in APCO’s separate action. Nor is there any basis indicated for concluding that APCO cannot recover those compensatory damages in that action. See Prestwood v. Carlton, 162 Ala. 327, 50 So. 254 (1909), and on the measure of damages, see Tennessee Corp. v. Barnett, 269 Ala. 450, 114 So.2d 135 (1959), and Nashville, C. & St. L. Ry. v. Campbell, 212 Ala. 27, 101 So. 615 (1924). If, as the plaintiffs assert, they have paid in increased rates a “debt” owed by the defendants to APCO, we cannot know from the record that the entire debt has been paid. Moreover, subrogation does not arise until the entire debt is satisfied, the reason being that otherwise the rights of the creditor (APCO here) in collecting the full amount of the obligation would be hampered. An exception to this rule is allowed only when there is no possibility of prejudice in the collection of the principal claim. Continental Bank & Trust Co. v. Alabama General Ins. Co., 274 Ala. 622, 150 So.2d 688 (1963); 73 Am.Jur.2d § 30, pp. 617-18. But here APCO is claiming damages for the same causative event on which these plaintiffs claim their “damages.” Thus that “debt” continues unsatisfied, either in whole or in part, and to acknowledge a right of subro-gation here possibly would embarrass that claim. The cause of action based upon sub-rogation, therefore, does not lie. Brunson, supra. We need not discuss, therefore, whether these facts show that subrogation also might not lie because the “debts” paid by the plaintiffs-class were their own utility bills and not any “debt” of the defendants.

2. The third-party beneficiary issue.

It is well-established in this jurisdiction that one who seeks recovery in contract as a third-party beneficiary must establish that the contract was intended for his direct, as opposed to incidental, benefit. Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965). In Anderson the Court looked to the plaintiff’s amended complaint and the surrounding circumstances of that direct benefit. We have applied that test here and we cannot conclude that these contracts were made for the direct benefit of APCO’s subscribers. Those agreements were made with APCO, and inured to its benefit. No reference in those agreements to any third parties is made in the plaintiffs’ complaint. Performance of the contracts would, and did, result in an enhancement of APCO’s real and riparian property holdings, to the direct benefit of the corporation itself. The acquisition of this improvement would have an ultimate effect upon the rate-fixing position of the corporation, see generally Tit. 48, § 52, Alabama Code (Recomp.1958) (Supp.1973) (now Code of 1975, § 37-1-80) and thus a corresponding ultimate bearing upon the rates its subscribers would be required by the Public Service Commission to pay. That Commission, not APCO, has the duty to fix utility rates. Illinois Central R.R. v. Thomas Ala. Kaolin Co., 275 Ala. 236, 153 So.2d 794 (1963). There is nothing contained in these contracts which suggests that in their making the power company was directly concerned with the amount of money subscribers for electrical power would be charged each month. Indeed, even the ultimate

completion of the dam, for reasons weighed by the Public Service Commission, might have resulted in no increase at all. To be sure, the construction of Walter Bouldin Dam doubtless was intended to favorably affect the profit-making position of the company, but that corporate decision would not necessarily disclose a purpose to exact the promises of Blount and others because of a direct concern for ultimate rate payers. Cf. Fidelity & Deposit Co. of Baltimore, Md. v. Rainer, 220 Ala. 262, 267, 125 So. 55 (1929). The subsequent imposition of the “fuel adjustment clause” would not establish any such direct concern. The element of direct concern, and thus direct benefit, distinguishes these contracts from the contract involved in Harris v. Board of Water and Sewer Commissioners, 294 Ala. 606, 320 So.2d 624 (1975), cited by the plaintiffs. In Harris this Court found that the people of the city, including the plaintiff Harris, were those who directly benefited from the Board’s contract to provide fire hydrants and water for fire protection. In the present case, however, the contracts for construction of the dam do not directly benefit the ultimate consumers of electric power, as we have shown, but inure to the company vis-a-vis its relative rate position before the Public Service Commission. At best, therefore, the plaintiffs are not direct, but only incidental beneficiaries who claim the loss of an economic benefit based upon the alleged failure of a promised performance by a party contractually bound to another. In this the case is not unlike Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927). In that case the United States Supreme Court held that the charterers of a steamship could not recover as third-party beneficiaries of a dry-docking contract between the company and the shipowners when, because of damage to the ship due to the docking company’s fault, the charterers’ use of the ship was delayed. Mr. Justice O. W. Holmes wrote that the claimants were neither parties to the contract nor intended to be directly benefited by it. This result was reached under factual circumstances which apparently disclosed the necessity of periodic drydocking to assure the operation of the ship. So in this case, while it might be necessary for APCO to construct dams (or to purchase a multitude of other services) in order to establish or maintain a hydroelectric network so that its utility business might serve members of the plaintiffs class, nevertheless the existence of those contracts does not ipso facto make all subsequent purchasers of the end product the direct beneficiaries of the promised performances simply because they have an ultimate economic interest in those performances.

3. Negligence.

The gist of plaintiffs’ negligence action is that these defendants owed a duty of care to the plaintiffs because the defendants could have anticipated that the collapse of the Bouldin Dam would cause subscribers to pay increased utility bills. They cite, inter alia, the case of Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974) for the proposition that “the ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if care is not exercised.” This Court posed the test of foreseeability in the following manner:

[w]ould an ordinary man in defendant’s position, knowing what they knew or should have known, anticipate that injury of the nature of that suffered was likely to result. .

Havard dealt with a contract between an engineering firm and the City of Mobile. Under that contract the firm was to make annual inspections and recommendations pertaining to the safe operation of a vehicular tunnel operated by the city. This Court held that a duty to the plaintiff was alleged in a complaint which charged that the defendant knew that petroleum fires were to be reasonably anticipated and that the purpose of fire equipment located in the tunnel was to provide emergency protection to the traveling public:

It could be foreseen or anticipated by Palmer & Baker that a fire could break out in the Tunnel and when it did break out, good and workable fire-fighting equipment would be needed to fight the fire. Otherwise, if a fire could not be foreseen or anticipated, why have any such equipment at all in the Tunnell. . . . Havard at 307, 302 So.2d at 232.

By analogy the plaintiffs conclude that the defendants, being construction and engineering firms, could have foreseen that the collapse of Bouldin Dam would have a “tremendous effect on the generating capacity of the Company system” and “would ultimately mean higher costs to power company customers.” Such an analogy, of course, assumes a foreseeable relationship between the construction of the dam and higher costs to consumers because of the imposition of the “fuel adjustment clause.”

We disagree with that analogy. The foreseeability aspect of Havard was premised upon the relationship between the ultimate risk of harm and the professional knowledge of the engineer defendants. The availability of emergency firefighting equipment was viewed as a subject within the scope of their expertise, and it was foreseeable that the particular harm suffered would necessitate the use of such equipment. But the situation here is materially different. The defendants here are construction and engineering firms. They might, indeed, be held to have foreseen the loss of generating capacity due to a collapse of the dam. They are not, however, utility rate makers nor do the facts otherwise suggest that they have any knowledge with respect to that technical subject. For aught that appears the “fuel adjustment clause” is a rate-fixing device authorized by the Public Service Commission. That body, as we have shown, possesses the authority to fix rates, and their power includes the power to allow the imposition of the “fuel adjustment clause.” If APCO has been allowed by the Public Service Commission to adjust its rates upward on account of the failure of Bouldin Dam, it is conceivable that APCO will be required by that Commission to adjust them downward should it recover damages in its lawsuit against some of these defendants. Such an issue is for the Commission to decide, not the courts. Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 268 Ala. 312, 321, 106 So.2d 163 (1958). Accordingly, we are persuaded that the application of the “fuel adjustment clause” was not a matter reasonably foreseeable by the defendants, but was a remote result. Accord, Petition of Kinsman Transit Co., 388 F.2d 821 (2nd Cir. 1968); Northern States Contracting Co. v. Oakes, 191 Minn. 88, 253 N.W. 371 (1934).

Let the judgment granting the defendants’ motions to dismiss be affirmed.

AFFIRMED.

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


text:
    Elizabeth R. SMITH, as Executrix of the Estate of Julia E. Holland, Deceased v. John E. HAYNES and Margaret H. Haynes.
    77-544.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    0. Stanley Thornton and Michael A. O’Brien of Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, for appellant.
    Donald W. Lang of Bell, Lang & Bell, Sylacauga, for appellees.
   BLOODWORTH, Justice.

This is an appeal by the Executrix of the Estate of a deceased mortgagee from a final judgment rendered in favor of the mortgagors and ordering satisfaction of the mortgage. We affirm.

According to the appellant-executrix, the issue in the trial court was whether the mortgagors’ testimony was admissible to show full payment of the balance of the mortgage debt to the mortgagee-decedent. Appellant’s contention on this appeal is that allowing the mortgagors to testify that the note and mortgage were paid contravened the provisions of the “Dead Man’s Statute,” § 12-21-163, Code 1975 [Title 7, § 433, Code 1940],

Appellees-mortgagors contend that it is evident from the record in this case that oral testimony was heard by the trial court, but no testimony appears in any transcript and no summary of any testimony was made in accordance with the provisions of Rule 10(d), ARAP. Therefore, appellees argue that there is no way for this court to determine whether or not the trial court committed reversible error in admitting evidence which the appellant claims to be in violation of the “Dead Man’s Statute.”

We have inspected the record and, although we do find a “DESIGNATION OF RECORD ON APPEAL” by appellant in which she, inter alia, requests the court reporter to transcribe the testimony of plaintiff and defendant, there is no transcript. There is a “REPORTER’S INDEX TO EXHIBITS” in which three letters, the mortgage, two warranty deeds and an envelope appear. These, along with the pleadings in the case, constitute the record on appeal.

Either a court reporter was present and took down the proceedings but failed to transcribe them, or the proceedings were not taken down by the court reporter and, therefore, could not be transcribed and made a part of the record on appeal.

The facts of this case are almost identical to the facts in the recent Court of Civil Appeals case of Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976). It appears from the opinion in that case, authored by Judge Bradley, that no court reporter was present and thus the testimony was not recorded. That appears to be the main factual difference with this case, although in that case (as in the case before us) the record on appeal did contain the pleadings and exhibits. There, the argument was urged on appeal that the trial judge’s judgment was based on evidence heard ore tenus and was plainly and palpably erroneous. Judge Bradley wrote:

“Reversal on such ground must be solidly based on the appellate court’s conclusion that the evidence virtually compels a result inconsistent with the trial judge’s findings * * *. It is impossible for an appellate court to make such a determination where none of the oral testimony is communicated to it.”

Id. at 177.

The appellees point out that the real issue is whether the trial court erred in admitting and considering the testimony of the appel-lees-mortgagors. When that testimony is not before this court, it is impossible for us to make a determination as to whether or not it was admissible under the “Dead Man’s Statute.”

We think the following holding in Adams v. Adams, supra, is pertinent and we cite the same with approval, viz:

“Under ARAP it is not necessary to submit the entire transcript; however, there is a minimum below which an appellant who bases his argument on the weight and sufficiency of the evidence may not fall and still present a reviewable issue. The complete absence of any transcript or 10(d) statement of oral testimony falls below such a minimum.”

Id.

We agree with the Court of Civil Appeals in its reiteration of the long-standing and well-settled principle of our cases that a trial court’s findings and conclusions on the facts will not be reviewed when it affirmatively appears there was evidence before the trial court which was not in the record on appeal, and that where all the evidence is not in the record, it is presumed the missing evidence is sufficient to support the judgment appealed from. We further agree with its analysis and conclusions with respect to the “Committee Comments” to Rule 10, ARAP, that the new appellate rules have abolished this well-settled principle, viz:

“Rule 10 does expressly provide that both appellant and appellee shall have the right to designate of what the record shall consist. By this provision, much of the scope of Davis v. Wolff, [53 Ala.App. 700, 304 So.2d 201, rev’d on other grounds, 293 Ala. 408, 304 So.2d 203 (1974)], and similar cases is vitiated: where existing matter is omitted from the record by appellant, appellee can no longer rely solely on the omission to gain affirmance, but must designate for inclusion in the record whatever else is available to help his case. The new rules thus shift emphasis away from technical imposition on appellant in favor of a mutual burden on both parties to assemble a record containing everything pertinent to a consideration on the merits.
“However, the change accomplished by the rules has no application to the present case. The premises for the relaxation of the Davis v. Wolff principle in most situations is the equal opportunity to designate matters for inclusion afforded to both parties. There is no such equality here. No transcript of testimony was made below; it is thus impossible for appellee to place such non-existent matter in the record by designation. Appellant, and appellant alone, is granted the opportunity under Rule 10(d) to prepare a statement of the proceedings in lieu of the usual transcript. Appellee has no right to initiate such a statement, but is allowed only to propose amendments and raise objections to appellant’s version.
“Under these circumstances, the statement appearing in the Committee Comment is based on a faulty premise.”

Id.

Whether it was “impossible” for the appellees to designate the transcript of the testimony in this case we cannot know, since we do not know whether a transcript was made. But, we think the appellees had a right to rely on the appellant’s designation of the transcript of the testimony of the plaintiff and the defendant. It is certainly the obligation of the party designating to see that the matters designated are placed in the record.

When, as here, the trial judge has heard evidence and that evidence is not before us, and we are called upon to consider whether that evidence, or certain portions thereof, is admissible or not under the “Dead Man’s Statute,” we have no alternative but to affirm. Moreover, it may be decisive to determine under what conditions the evidence, allegedly in violation of the “Dead Man’s Statute,” is offered. For instance, an objection to such evidence may be “waived” by failure to object or “waived” by introduction of like evidence by the objector himself.

This cause is then due to be affirmed.

AFFIRMED.

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


text:
    ORROX CORPORATION v. Lillian M. ORR.
    77-580.
    Supreme Court of Alabama.
    Dec. 1, 1978.

      Clinton B. Smith, Montgomery, for appellant.
    W. F. Horsley, Opelika, for appellee.
   EMBRY, Justice.

On 17 November 1977, Orrox Corporation was served with a Writ of Garnishment, issued from the circuit court, by which Lillian Orr sought to collect a judgment rendered in her favor in her divorce action against William Orr, President of Orrox.

The issues presented for review are:

(1) Did the Circuit Court of Lee County have jurisdiction to adjudicate the nature and incidents of Orrox Corporation’s employment relationship with William Orr?

(2) Does Orrox Corporation’s employment relationship with William Orr support the circuit court’s judgment concerning wages paid, and to be paid, by the corporation to him after the corporation answered Lillian M. Orr’s Writ of Garnishment?

The trial court held it had jurisdiction to adjudicate William Orr’s contract rights visa-vis Orrox Corporation and that his status with the corporation would support a continuing garnishment of future wages to be paid by it to him. Thereupon judgment was entered against Orrox for 25 percent of the amount of wages paid Orr since the writ was served, and for 25 percent of future wages to be paid him until Lillian Orr’s judgment was satisfied.

I

Orrox contends that because its principal place of business is in California, and William Orr is employed there, the circuit court has no jurisdiction over the matter. Section 6-6-391, Code 1975, gives subject matter jurisdiction to the circuit court. That section requires the Writ of Garnishment to be issued out of the court in which the judgment sued upon was entered. In this case that was the Circuit Court of Lee County.

By doing business in this state, as the evidence discloses, it submits itself to the jurisdiction and process of this state’s courts. William Orr could sue Orrox here to recover his wages. It offends no notion of “fair play and substantial justice,” as Orrox claims, to require it to answer the garnishment. See generally Pepperell Manufacturing Co. v. Alabama National Bank of Montgomery, 261 Ala. 665, 75 So.2d 665 (1954).

Orrox’s fears that William Orr might not be bound by the garnishment judgment are unfounded. Since, in this case, garnishment is an ancillary proceeding and not an original suit, William Orr is a party to this action. Olson v. Field Enterprises Educational Corp., 45 Ala.App. 438, 231 So.2d 763 (Ala.Civ.App.1970). He is barred from later asserting in another jurisdiction that Orrox has no right to withhold his wages. Sanders v. Armour Fertilizer Works, 292 U.S. 190, 54 S.Ct. 677, 78 L.Ed. 1206 (1934); 38 C.J.S. Garnishment § 293, p. 580 (1943).

II

Orrox cites Henry v. McNamara, 124 Ala. 412, 26 So. 907 (1899) to support its contention that because William Orr’s employment is terminable at will, his wages to be paid and accumulated by Orrox, are future indebtednesses not subject to garnishment. Henry and other cases cited by appellant were decided before Act No. 541, 1949 Legislature, amended Tit. 7, § 630, Code 1940 (§ 6-10-7, Code 1975). That section now reads in pertinent part:

* * * The garnishee shall retain 25 percent of the wages, salaries or other compensation of the laborer or employee during such period of time as is necessary to accumulate a sum equal to the amount shown as due by the court on the writ or levy, at which time the garnishee shall pay the same into court. * * * ”

Since 1949 it has not been necessary to bring repeated suits in order to garnish the wages of an employee whose employment is terminable at will. See 2 Ala.L.Rev. 390 (1950).

The circuit court having jurisdiction of the case and having properly found William Orr’s wages subject to garnishment, its judgment is affirmed.

AFFIRMED.

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