author: LEE, Justice, for the Court:

text:
    Dianne MARTIN v. STATE of Mississippi.
    No. 50541.
    Supreme Court of Mississippi.
    Aug. 2, 1978.

      Eaves & Eaves, G. Jyles Eaves, Henry L. Rodgers, Louisville, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Dianne Martin and Charles E. Martin, husband and wife, were jointly indicted in the Circuit Court of Webster County for manslaughter of Joseph Brian Ramage, twenty-six month old son of Mrs. Martin and stepson of Charles Martin. A severance was granted, Charles Martin was tried, convicted and sentenced to twenty (20) years. That conviction was affirmed by this Court February 8, 1978 [Martin v. State, 354 So.2d 1114 (Miss.1978)]. Dianne Martin was tried May 24, 1977, convicted and sentenced to twenty (20) years and she appeals here. We reverse.

Appellant contends that a motion for directed verdict at the conclusion of all the evidence should have been sustained, and that there is no direct or circumstantial evidence connecting her with the crime.

About 8:00 a. m. on May 5, 1976, appellant went to town in the family automobile for the purpose of buying groceries. Her husband and child remained at home. About 8:30 on the same date, a neighbor, Terence Lee Atkins, saw Martin running across the yard with a child in his arms. Atkins got in his automobile, caught up with Martin and took him and the child to the Webster County Hospital. Martin told Atkins that the child had fallen from his high chair.

Mrs. Gayle Hitt, duty nurse at the hospital, detected that the child had no respiration, that there were multiple contusions about his head, that both eyes were black and swollen, that his pupils were of unequal size and non-reactive. Martin also told her that the child had fallen from bis high chair a short while before. Emergency treatment was administered, a tube was inserted in the child’s trachea, and he was flown to the University Medical Center in Jackson where he was attended and treated by Dr. Gwendolyn Hogan, an expert in the field of pediatrics and neurology, Dr. Nell Ryan, a specialist in pediatric neurology, and Dr. Robert Sanford, a neurosurgeon. The treatment by those physicians was ineffective and the child died after about seven (7) hours.

An autopsy was performed by Dr. Yazdi in the presence of Drs. Hogan and Ryan. It was his opinion from the autopsy that the cause of death was brain swelling (edema) as a result of trauma. The attending physicians were also of the opinion that the cause of the child’s death was swelling and tearing of the membranes of the brain and that the trauma was a result of jostling the brain when the head was battered from side-to-side. Also, they were of the opinion that the brain injury could not have been sustained by falling from a high chair. There was no noticeable lump or knot on the child’s head. They detected recent bruises about the child’s head, and bruises over his trunk, back and genitalia which were probably two or three days old.

Martin testified that he and the child were at home alone, the child was sitting in a high chair, a poodle dog jumped up on the chair and the child fell to the floor, striking his forehead and rendering him unconscious. He picked up the child and was taking him to the hospital when he was intercepted by Atkins. He explained the bruises on the child’s body as having been sustained when the child fell over some lumber at one time and fell in a boat another time. Martin exonerated appellant of any fault or blame in the matter, and it is undisputed that she was not present when any injuries or bruises were sustained by the child.

Appellant denied having struck the child or having done anything to cause him injuries. She testified that she was not present at any time when Martin chastised the child, that she inquired of him about some marks or bruises on the child, and that Martin gave a satisfactory explanation.

In passing on a motion for directed verdict, all the evidence, together with reasonable inferences, are accepted as true. Lee v. State, 338 So.2d 395 (Miss.1976). The trial court must consider all evidence and reasonable inferences flowing therefrom in the light most favorable to the State. Glass v. State, 278 So.2d 384 (Miss.1973). Likewise, the principle is established that where the evidence is insufficient to support a verdict of guilty, a peremptory instruction of not guilty or a directed verdict of not guilty should be granted. Davenport v. State, 144 Miss. 273, 109 So.2d 707 (1926).

The evidence introduced against appellant is circumstantial. The height to which the evidence must rise in a circumstantial evidence case to sustain a guilty verdict is stated in Pryor v. State, 239 So.2d 911 (Miss.1970), and numerous other cases, as follows:

“The defendant and both of his coin-dictees testified that he took no part in the robbery and knew nothing about it until they were arrested. The defendant denied that he was in the front seat of the automobile at any time and said that he never at any time ‘got behind the wheel.’ Guilt by mere association is not a concept of criminal law in this state. Matual v. State, 220 So.2d 833 (Miss.1969).
All the evidence on which the State seeks to base a verdict of guilty is circumstantial. In order for circumstantial evidence to rise to that degree of proof necessary to establish a fact above mere suspicion it must be such as to exclude every other reasonable hypothesis than that of guilt. Love v. State, 208 So.2d 755 (Miss.1968); Westbrook v. State, 202 Miss. 426, 92 So.2d 251 (1947).” 239 So.2d at 912-913.

The only evidence connecting appellant with the crime indicated there were some old bruises on the child with the inference that appellant knew about them, and that appellant did not show concern when she. saw the child at the Webster County Hospital. The State contends that a parent is charged with the custody, welfare and protection of her child and cites Mobley v. State, 227 Ind. 335, 85 N.E.2d 489 (1949). However, that case simply states that to actively countenance and support the doing of a criminal act by another is to encourage it within the meaning of the aiding and abetting statute and that a person encouraging the commission of a felony is guilty as a principal. The evidence in the present case does not indicate that appellant encouraged the abuse of her child by Martin, or that she was present, aiding and abetting in any abuse of the child.

We are of the opinion that the evidence against appellant does not measure up to the rule established in Pryor v. State, supra, that it has not risen to the degree necessary to establish her guilt above mere suspicion and to the exclusion of every other reasonable hypothesis than that of her guilt, and that the trial court should have sustained the motion for a directed verdict of not guilty.

In view of the conclusion we have reached on the first assignment of error, it is unnecessary to discuss the other assigned errors.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Walter D. POPE v. Wally ANDREWS, d/b/a Mary Walker Marina.
    No. 50636.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Bryan, Nelson, Allen & Schroeder, John W. Chapman, Pascagoula, for plaintiff-appellant.
    Shaddock & Dryden, George S. Shaddock, Pascagoula, for defendant-appellee.
    Before PATTERSON, WALKER and LEE, JJ.
   PATTERSON, Chief Justice, for the Court.

This suit originated in the County Court of Jackson County. There the plaintiff, Walter D. Pope, filed a declaration for the loss of a 19-foot boat and miscellaneous tackle due to the alleged negligence of Wally Andrews, doing business as Mary Walker Marina. The theory of the declaration is that the appellant had stored his boat with the appellee marina, a commercial concern, for the payment of a $26 monthly storage fee, and that it was not redelivered to the plaintiff when requested but rather was lost due to the negligence of the defendant.

The evidence in pertinent part concerning the loss is that following the boat’s use by the plaintiff on a Saturday, it was returned to “Al,” an employee of the marina, under the following circumstances:

Q. And what, if anything, did you do when you came back in?
A. Well, the first thing I did I gased (sic) the boat up to see how much gasoline that I had used. I asked Al what to do with the boat. I explained to him that I was through fishing for the day and I would probably be using it the next morning. He told me to tie the boat up to the dock and leave it there and he would take care of it.
* * * * * *
Q. Alright. And this was approximately noon on a Saturday?
A. Right.
Q. Did you return to Mary Walker Marina the next morning?
A. Between six and seven o’clock.
Q. And what did you find when you got there?
A. Didn’t find anything. I ■ couldn’t find my boat.
Q. Have you seen your boat since then?
A. No.

On cross-examination:

Q. Mr. Pope, just a few questions. You have told us that you had previously kept two boats at Mary Walker Marina. Is that correct?
A. Right.
Q. And have you ever had anything stolen off any of your boats there?
A. Never had anything missing off my boats there, no sir.
******
Q. Have you ever had anything stolen down there prior to this time?
A. Prior to this, no sir.
Q. And you know that Mr. and Mrs. Andrews live on the premises?
A. Correct.
Q. And you know that they have fenced those premises?
A. That’s correct.
******
Q. And in addition to that they have chains across the road . . . when the main gate is open during the day time to prevent people who are non boat owners or who are not guests of boat owners from just driving through there don’t they?
A. Knowing all this, I felt that my boat would be safe there.

At the conclusion of plaintiff’s testimony, the case being rested without other witness, the trial court sustained defendant’s motion for a directed verdict. This action of the county court was affirmed on appeal by the circuit court of the district.

The significant assignment of error is whether the county court erred in sustaining defendant’s motion for a directed verdict.

Undoubtedly, there existed a bailment for the benefit of the bailor-appellant and the bailee-appellee because the bailment was one of hire. It also is well settled that an ordinary bailee is not an insurer of the goods or chattels delivered into his keeping [Milner Enterprises, Inc. v. Jacobs, 207 So.2d 85 (Miss.1968)], but rather is burdened with due care, that is, reasonable care commensurate with his responsibility. Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695 (1909); Yazoo & M. V. R. Co. v. Hughes, 94 Miss. 242, 47 So. 662 (1908). And see A. Dobie, Handbook on the Law of Bailments and Carriers, section 16, page 32, and section 17, page 36 (1914).

The narrow issue presently is whether the plaintiff established a prima facie ease of negligence so that the burden of proof shifted to the defendant to go forward with the evidence. In Yazoo & M. V. R. Company, supra, it was held that when a bailor shows that goods were delivered to a bailee in good condition and were lost or destroyed or returned in a damaged condition, this fact creates a prima facie presumption of negligence and it thereupon devolves upon the bailee to absolve himself from negligence. And see the more recent case of Hamm v. Walker & Sons, Inc., 198 So.2d 817 (Miss.1967), wherein it was held that a boat damaged while in the possession of a bailee cast upon him the burden to show that the damage was not caused by his negligence.

We are of the opinion the plaintiff established by his testimony a prima facie case of negligence against the bailee entitling plaintiff to judgment unless the defendant absolved himself of negligence by going forward with proof establishing his due and reasonable care for the boat. It is true the plaintiff testified as to past reasonable practices of the marina in safekeeping of the boat, but there was no testimony of reasonable care on the night the boat disappeared.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    James E. FORD v. James H. THOMPSON, former Administrator of Jones County Community Hospital, et al.
    No. 50465.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Andalman, Bergmark, Adelman & Steiner, Martha Bergmark, Hattiesburg, for appellant.
    Holifield & Harper, Matthew Harper, Jr., Laurel, Roberts & Easterling, M. M. Roberts, Hattiesburg, Odom & Parrish, William Harold Odom, Maxey & Clark, Laurel, for appellees.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    JACKSON COUNTY, Mississippi v. Alfred E. RUSHING.
    No. 50463.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Megehee, Brown & Williams, John M. Kinard, Pascagoula, for appellant.
    Robert Oswald, Pascagoula, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    Nick DENLEY v. BOARD OF SUPERVISORS OF TALLAHATCHIE COUNTY ex rel. Gerald CHATHAM, District Attorney.
    No. 50472.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Joe L. Tennyson, Charleston, J. W. Kel-lum, Sumner, for appellant.
    John W. Whitten, Jr., Sumner, for appel-lee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    LINCOLN COUNTY COOPERATIVE, AAL, et al. v. James H. TERRELL.
    No. 50488.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Richard E. Stratton, III, Brookhaven, for appellants.
    William B. O’Neal, Brookhaven, for ap-pellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    Ricky TAVARES v. STATE of Mississippi.
    No. 50658.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Thornton & Dorrill, George L. Dorrill, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    Oscar F. WILKINSON v. Mrs. Emma Elizabeth E. DeCOURCEY, Mrs. Jimmy Nell B. Jackson and Mrs. Joyce Jean B. Jones.
    No. 50637.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellant.
    O. B. Triplett, Jr., Forest, L. D. Pittman, Raleigh, for appellees.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    William M. McCOY v. STATE of Mississippi.
    No. 50616.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Travis T. Vance, Jr., Vicksburg, for appellant.

      A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Sammie Lee HASKINS and Johnnie Ray Holmes v. Carl O. REDDING.
    No. 50459.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Boyce Holleman, Ben F. Galloway, Gulf-port, for appellants.
    Bryan, Nelson, Allen & Schroeder, Gail A. Crowell, Gulfport, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


author: FAULKNER, Justice.

text:
    Eligha MARSHALL et al. v. Ron E. KOPESKY, as Administrator, etc.
    SC 2814.
    Supreme Court of Alabama.
    July 21, 1978.

      W. Boyd Reeves and Norman E. Waldrop, Jr., Mobile, for appellants.
    John D. Richardson, Patrick M. Sigler, Donald M. Briskman, Mobile, for appellee.
   FAULKNER, Justice.

Vernell Hollings was killed when the pulpwood truck he was driving was struck by a tractor-trailer rig driven by defendant Eligha Marshall, an employee of Underwood Builders Supply Co. Marshall and Underwood appeal from a jury verdict of $100,000 against them in favor of the administrator of Hollings’ estate. We affirm.

This suit for wrongful death was originally instituted in March, 1975, by Lucrether Mae Hollings, the purported common-law wife of Vernell Hollings, as administratrix of his estate, and her two children, Edward and Melvin. It has never been seriously disputed that Hollings was the father of the two children and that they weré dependent upon him for them support at the time of his death. Several months after suit was filed the Alabama Forest Products Industry Workmen’s Compensation Self-Insurer’s Fund was allowed to intervene as it had been paying compensation benefits to plaintiffs since the death of Hollings. In September, 1975, Patricia Hollings, Comer Joyce Hollings, and Lydia Elaine Hollings filed a motion either to intervene or to be substituted as party-plaintiffs. This motion alleged that Patricia had married Hollings in 1950 and had never been divorced from him. The two children of this marriage, Comer and Lydia, were not dependent upon Hollings at the time of his death. In December, 1975, Patricia and her children were allowed to intervene as party-plaintiffs so that a struggle to gain control of the lawsuit ensued between the common-life wife (Lucrether) and her. dependent children and the lawful wife (Patricia) and her nondependent children. The morning of the trial the Self-Insurer’s Fund was dismissed from the case with prejudice as against all parties on its own motion, thereby removing any issue of workmen’s compensation from the case as tried. In addition, an amended complaint was filed changing the style of the case and adding a charge of wantonness so that the trial commenced in the name of Ron E. Kopesky as administrator and Edward Lernell Hollings and Melvin Shelton Hollings as dependent minor children. At the close of all the evidence defendants filed a motion for directed verdict which was granted as to the two dependent minor children but denied as to the administrator, Kopesky.

The fatal accident which prompted this litigation occurred on the afternoon of April 23, 1973, on Interstate 10 east of Mobile near the Loxley cut-off. That morning at 5:00 AM Marshall left Underwood Builders Supply in Mobile in a ’61 tractor-trailer rig owned by Underwood to deliver' a load of stone to Fort Walton Beach. On his return trip at approximately 3:40 in the afternoon he collided with the pulpwood truck driven by Hollings. Conflicting evidence was presented at trial on exactly how and why the accident occurred. Plaintiffs basically maintained that Marshall simply ran Hollings down, while defendants argued that Hollings pulled out in front of Marshall. The collision caused Marshall’s rig to veer off into the median. Marshall was injured and taken to a nearby hospital. Hollings was not so lucky. The force of the impact caused the pulpwood truck to tip over so that Hollings was crushed to death by either the truck itself or its load of logs. Roy Hay, an eyewitness who had been behind Marshall, stopped to render assistance. Along with several other travelers Hay moved trash out of the left-hand lane so traffic could pass.

About 35 minutes after the accident occurred State Trooper Aubrey Little arrived on the scene and began his investigation. He indicated on his accident report that Marshall had struck Hollings from behind in the right-hand lane. Little’s report further stated that Marshall had apparently fallen asleep at the wheel. When testifying at the trial four years later, Little could not remember what prompted him to draw these conclusions; in fact, Little obviously could not remember much about the fatal accident at all, even though he was allowed to refresh his memory by referring to the accident report.

Defendants strenuously argued at a pretrial conference that Trooper Little’s conclusions were suspect because the accident scene had been changed by Hay and others before Little’s arrival. In addition defendants felt that Little’s inability to remember the basis for his conclusions would prevent the admission of certain statements on the report, notably the statement that Marshall had fallen asleep at the wheel. Consequently, defendants were given permission by the trial court to conduct a voir dire examination of Little before he testified in front of the jury. Plaintiffs, however, began by calling Marshall as a hostile witness and during his examination asked Marshall if he had fallen asleep at the wheel. Defendants’ resultant motion for mistrial was denied. Trooper Little was then called as a witness. After the voir dire examination the trial court ruled that no questions were to be asked about the sleep comment on the accident report. Throughout his testimony the accident report was relied on heavily by Little to refresh his recollection and was referred to by counsel for both parties. The trial was a heated one, marked by frequent outbursts and bickering among counsel, and culminated in closing statements interrupted five separate times by objections from both sides. The jury received the case on theories of negligence, wantonness, and contributory negligence and returned a general verdict for the one remaining plaintiff, the administrator. Other details of the trial will be set out below as necessary.

Defendants assert on appeal that there was insufficient evidence to justify submitting the wantonness count to the jury. If that contention is correct, the case must be reversed and remanded. After examining the entire record, we do not, however, agree with defendants’ analysis of the evidence. Alabama only requires a scintilla of evidence to allow a count to go to the jury. The rule was stated in Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), where this Court observed:

“In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint.”

In Kilcrease this Court also, gave as thorough a definition of wantonness as is possible.

‘Wantonness’ is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and [where] conscious disregard of known conditions of danger and . . . violation of law brings on the disaster. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Knowledge need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference.” (Citations omitted.)

In applying this definition of wantonness we believe that the necessary scintilla of evidence was presented. Of course, the evidence was in conflict, but from the conflicting evidence a jury could have found that prior to impact Hollings’ pulpwood truck was moving down the highway, partially in the right lane and partially on the shoulder, at a speed of 45 mph, that Marshall spotted Hollings from a distance but made no effort to brake and instead simply took his foot off the gas to slow down, that Marshall began to change lanes but in the process struck the pulpwood truck. In other words a jury could have found that Marshall, aware of a perilous situation, took only limited means to prevent the accident and in effect bore down on Hollings’ pulpwood truck at a speed of 60 mph without braking. Under the scintilla rule the trial judge did not err in submitting the wanton count to the jury.

Defendants next argue that counsel for plaintiff intentionally presented prejudicial material to the jury through the questioning of witnesses, thereby necessitating a new trial. This contention was presented to the trial court in a motion for mistrial and later a motion for a new trial. Both motions were denied. Two incidents involving statements on the accident report are particularly complained of. The first occurred while plaintiff’s counsel was questioning the defendant Marshall on direct as a hostile witness:

MR. BRISKMAN:
“All right. Mr. Marshall, when you — when you spoke to the Officer, did you — did you tell him anything about you being drowsy or dozing?
“A. No, I did not.
“Q. Did you tell him anything that you dozed off at the wheel before the accident?
“A. No.
“Q. Have you had an opportunity to see the police report?
“A. No, I haven’t.
“Q. Had — have you been told that the
“MR. WALDROP: Wait a minute
“MR. REEVES: Wait a minute
“MR. WALDROP: We would object to that, Your Honor.
“THE COURT: I don’t think he has finished his question.
“MR. BRISKMAN: I will withdraw it, Judge.
“(A brief pause.)
“A. Mr. Marshall, do you know that on the report of the Police Officer, there was a statement as to what the cause of the accident was, do you know that?
“A. No, I don’t.
“Q. Do you know that there is a — there is some remarks on there concerning you dozing at the wheel?
“MR. WALDROP: Your Honor, we would object to that.
“THE COURT: I sustain.”

At this point defendants moved for a mistrial. After argument by counsel the motion was denied and the jury brought back in. The trial court then gave the following instructions to the jury:

“THE COURT: Ladies and gentlemen of the jury, the last question propounded by the attorney for the Plaintiffs dealt with an accident report. There was no answer to the question and there was nothing in evidence for you to consider. The Court would instruct you that this accident report is not in evidence and is not admissible and should not be considered by you. There is nothing before you in evidence dealing with the accident report. You should not take any question propounded by the attorney for the Plaintiffs as suggesting anything that will be in such report.”

Counsel then pursued another subject and the question of drowsiness did not come up again in the presence of the jury.

The second incident occurred when plaintiff’s counsel was questioning Trooper Little. The accident report was mentioned repeated times as Little used it to refresh his recollection while testifying, but in this regard references to the report were made by counsel for both plaintiff and defendants, so defendants can hardly complain about these separate references now. Defendants, however, particularly object to the following questions:

MR. RICHARDSON:
“Officer, I note on these reports here you have these different marks here where you fill in and it’s a form report. Where you have contributing circumstances under Ver-nell Hollings there, did you—
“MR. WALDROP: Your Honor,—
“MR. RICHARDSON: Well, may I ask the question?
“MR. WALDROP: Go ahead.
“Q. All right, under the block of contributing circumstances here, I turn here to the back pages, I see it says no improper driving. Is that what is your determination as to the driving conduct of the pulpwood driver on that occasion?
“MR. WALDROP: Your Honor, we would object to that.
“THE COURT: Sustained.”

Again, upon the trial court’s ruling counsel dropped this line of questioning and did not return to it.

In Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389 (1930), this Court stated:

“It is the generally accepted rule that it will constitute grounds for a new trial if counsel, in disregard of the court’s ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury to the prejudice of the unsuccessful party. .
“ ‘The misconduct of counsel complained of . was the repeated asking of incompetent questions over the objection of counsel for defendant, and in the face of the rulings of the court that such questions were incompetent. . Of course a large discretion is allowed an attorney in presenting his case, and so long as it does not appear that he is knowingly and intentionally violating the rules of practice in the introduction of evidence, or otherwise, the fact that he does so will furnish no grounds of complaint to opposing counsel, where the error is corrected by the court; but . where counsel persistently pursues a line of interrogation which the court rules to be wrong, and which one reasonably well acquainted with the rules governing the admission of evidence must know to be improper, the conclusion is irresistible that it is done for the purpose of influencing and prejudicing the minds of the jury in arriving at a verdict. No court should countenance such conduct. * *
“ ‘Where an incompetent question is asked, opposing counsel must either permit it to be answered or enter his objection; and, although the trial court refuses to permit the question to be answered, the very fact that the same question in a different form is repeatedly asked, and a vigorous objection interposed to its answer, emphasizes its importance in the minds of the jury, and necessarily prejudices the case, and for this reason, if for no other, where this practice is pursued to the extent indicated in the record in this case, the judgment should be reversed.’ ”

The core of this rule is persistence in the face of the trial court’s ruling that a particular line of questioning is improper. This principle is illustrated by Gwin v. Church, 272 Ala. 674, 133 So.2d 880 (1961), where this Court in applying Blackwell noted eight separate instances in which improper references to insurance were made in front of the jury. In the instant case it was known from the pre-trial conference that the sleep statement would be challenged, but no definitive ruling had been made by the trial court at the time the matter was raised. Furthermore, only two incidences which could seriously be complained of occurred. Curative instructions were given by the trial court and the matter was not broached again by counsel in front of the jury. Under these circumstances the following remarks from Kilcrease are applicable:

“It has been said that each case of this character must be decided upon its own merits and that there is no horizontal rule by which these qualities can be ascertained in all cases. Much depends on the issues, the parties, and the general atmosphere of the particular case. The final test is: ‘Can the prejudicial tendency or effect of the improper statement be counteracted by an appropriate instruction from the trial judge, or is it probably beyond the reach of such remedial action?’ Since the trial judge was present, saw and heard what took place, assessed the tone of the statement, and observed the reaction of the jury and that of others about him to the remark of counsel, as well as the follow-up effect of his own rulings and instruction to the jury, much discretion is to be accorded the trial court in such a situation. Unless the trial court has abused its discretion, we will not reverse the case on the stated ground when presented to us. In order to cure any harm caused by the statement, the court promptly and affirmatively sustained the appellants’ objection to the remark, instructed the jury to disregard the statement, and directed counsel not to refer to it. In this action the court acted correctly.” (Citations omitted.)

Here the questions were not answered and were followed by curative instructions upon request. We note also that plaintiff’s counsel were not the only ones who were at times overzealous in presenting their case, for the trial court sustained two separate objections to defendants’ closing statements. After a thorough review of the record we do not find that the trial court abused its discretion in denying defendants’ motion for mistrial or motion for new trial. The trial judge was there. He was in a much better position than this Court to judge the effect of these questions on the trial as a whole. Consequently, we do not feel it is appropriate in this instance to disturb his ruling on appeal.

In addition defendants argue that Trooper Little should not have been allowed to give his opinion on point of impact. We have discussed this issue just recently in Sharp v. Argo-Collier Truck Lines, 12 ABR 809 (Mar. 3, 1978), and Dyer v. Traegar, 12 ABR 814 (Mar. 3,1978). There we observed that whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court. The trial court’s decision will be reversed on appeal only for palpable abuse. Once qualified as an expert the witness who will testify as to point of impact must detail the facts upon which his conclusion is based. Here, in a torturous series of questions and objections Little testified that he found some debris in the right lane, although he could not recall the nature of the debris. He also testified that he traced the paths of the trucks as they veered off the interstate in opposite directions. The eyewitness Hay testified that there was debris all over the road and that he moved “trash” from the left lane to allow traffic to pass. Hay did not, obviously, testify that he swept the street. Pictures showed logs scattered over the area. We think that a jury could infer from this information that while large obstructions — “trash” in Hay’s words — had been removed, enough debris remained to allow Trooper Little to determine the point of impact. As noted in Dyer, the alleged paucity of facts upon which the opinion was based goes to the weight, rather than the admissibility, of the evidence. We find no error in the trial court’s ruling.

As a final ground for reversal defendants assert that the proper plaintiffs were the dependent children and not the administrator of the estate since this litigation at one time came under Tit. 26, § 312, Code of Ala. 1940 (Recomp.1958). The morning of trial the Alabama Forest Products Industry Workmen’s Compensation Self-Insurer’s Fund, which had been paying benefits to the dependent illegitimate children was dismissed from the case with prejudice against all parties. Thus all issues of workmen’s compensation were removed from the suit and it went to trial purely and simply as a wrongful death action. Under Tit. 7, § 123, Code of Ala. 1940 (Recomp. 1958), the proper party is, of course, the personal representative, here, the administrator Kopesky. Proper parties are not determined by what posture the case may have had at one time, but by the posture of the case as finally tried.

Of course, when the workmen’s compensation claims were dropped from the case the morning of trial the testimony of Melvin Hollings, the illegitimate dependent child, became irrelevant. No objections, however, were posed to his testimony, nor was this issue raised by any motion to the trial court. In fact, plaintiff’s counsel offered to stipulate to dependency, thereby avoiding this child’s testimony in front of the jury, but defendants apparently declined to do so. Consequently, defendants cannot now complain that they were prejudiced when the child was allowed, improperly, to testify in this wrongful death action.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    C. O. OSBORN, d/b/a Nob Hill Apartments v. Sarah Helen BROWN et al. C. O. OSBORN, d/b/a Nob Hill Apartments v. Sandy F. SOVEROW, etc., et al. CINCINNATI INSURANCE COMPANY v. Sarah Helen BROWN.
    77-50, 77-202 and 77-203.
    Supreme Court of Alabama.
    July 21, 1978.

      William C. Wood, Jr., Birmingham, for appellants.
    Duncan Y. Manley and Charles F. Carr of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
    John B. Tally, Jr., Birmingham, for appel-lees Sandy F. Soverow and Allstate Ins. Co.
   BLOODWORTH, Justice.

Defendants, C. 0. Osborn, doing business as Nob Hill Apartments, and Cincinnati Insurance Company, appeal from denial of their motion for a new trial following a jury verdict against them in favor of plaintiffs, Sarah Helen Brown and State Farm Fire and Casualty Company in Case 77-50, and for Sandy F. Soverow for the use and benefit of Allstate Insurance Company in Case 77-202, and for defendant Brown in Case 77-203. We reverse and remand Cases 77-50 and 77-202, and affirm Case 77-203.

In late 1972, plaintiffs Brown and Sover-ow agreed to rent separate apartments from defendant Osborn in Nob Hill Apartments in Birmingham. Because their single apartments were not yet completed, Brown and Soverow agreed to rent a larger apartment in the complex from defendant Osborn until their separate apartments were finished. On December 30, 1972, a fire occurred in the apartment shortly after Brown had cooked some leftover livers and gizzards (for her dogs) on the electric stove and had left the apartment. Plaintiffs’ property in the apartment was greatly damaged or destroyed.

Three separate suits, which were consolidated for trial, resulted. In the first suit, plaintiff Brown and her insurer, State Farm Fire and Casualty, sought damages from the owner of the complex, Osborn, for negligence and breach of contract. In the second suit, plaintiff Soverow, suing on behalf of her insurer, Allstate Insurance Company, sued her roommate, Brown, for negligence and Osborn for negligence and breach of contract. In the third suit, Cincinnati Insurance Company, Osborn’s insurer, claimed damages against Brown for her negligence. The jury returned a verdict in favor of Brown and State Farm (plaintiffs in the first suit) and Allstate and Soverow (plaintiffs in the second suit) against defendant Osborn, but in favor of Brown (defendant in the second and third suits brought by Soverow, Allstate and Cincinnati). After Osborn’s and Cincinnati’s motion for judgment notwithstanding the verdict and new trial was overruled, this appeal followed.

Appellants’ first contention is that reversible error was committed when the attorney representing plaintiffs State Farm and Brown stated to the jury, “. . .1 would like to know where the analysis is that was run on the stove by Cincinnati Insurance.” They contend there was no factual basis for the attorney’s statement because there was no proof any analysis was run, and it thus constituted reversible error. We cannot agree. Appellees argue the evidence shows that Cincinnati took the stove and it may be inferred an analysis was run.

It is, of course, true that, in argument to the jury, counsel may not argue as a fact that which is not a fact in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. Teele v. Gravlee, 294 Ala. 126, 313 So.2d 169 (1975). It it also true that in the matter of an attorney’s argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its ruling. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). We need not decide whether the argument constituted legitimate inference or not. For, to justify reversal because of an attorney’s argument to the jury, this Court must conclude that substantial prejudice has resulted. Teele v. Gravlee, supra. Here we do not find that any prejudicial error has resulted; in large measure, because of the trial court’s prompt and effective admonition to the jury following defense counsel’s objection to the statement, viz:

“THE COURT: Just a minute, Gentlemen. Let’s keep it cool. Ladies and Gentlemen, I don’t recall whether there was any evidence about any analysis or not. My recollection is that there wasn’t. I will say this to you, you rely upon your recollection as to whether there was or was not, and it’s not any duty on anyone to bring it here. Each of them has the right to discover and take depositions, as you have heard about, and as to whether or not the parties are equally available to — the evidence is equally available. With that instruction and admonition, let’s keep things within the realm of the evidence here and- not have any outbursts.” (Emphasis added.)

Appellants next contend that the trial court erred in admitting photographs made at the scene of the fire (which indicate that the circuit breakers were in the “on” position) because they were not authenticated and were not made soon enough after the fire. We must disagree.

A picture is not admissible unless a witness testifies that the picture as exhibited accurately reproduces the objects or actions which he observed. International Union, UAW v. Russell, 264 Ala. 456, 88 So.2d 175 (1956), aff’d, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958).

But, the determination as to the sufficiency of the preliminary proofs offered to identify thte photograph or to show that it is an accurate representation of the objects which it purports to portray is a matter within the sound discretion of the trial court and will not be reviewable except for gross abuse. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

After some confusion in her earlier testimony, Brown finally testified that the picture was taken, to the best of her knowledge, on the same night as the fire. She further testified that, to the best of her knowledge, no change was made in any of the positions of the switches, and that the pictures substantially depicted the condition of the circuit breaker at the time the picture was taken. Thus, we think the pictures were properly authenticated, and there was no error in admitting them into evidence.

Appellants next maintain that the trial court erred in allowing an expert witness to respond to hypothetical questions which called for his opinion as to whether a fire would ignite if a staple was put into a hot wire, causing a short circuit, and the circuit breaker was not operating properly. Appellants contend there was no evidence introduced at any time regarding the malfunction of the circuit breaker, and thus the question was improper. We cannot agree.

The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the sound discretion of the trial court. Dyer v. Traeger, 357 So. 2d 328 (Ala.1978). We find no abuse of the trial judge’s discretion here.

Initially, the trial judge sustained an objection to the question because no evidence had been offered to prove the circuit breaker had malfunctioned and because appel-lee’s attorney was unable to represent to the court that evidence would be offered on that point. However, the trial judge later allowed the expert to so testify. In so doing, the judge made the following comment:

“Based upon some twenty-some-odd years as a fireman, sir, and I believe you have some knowledge of electricity, I will let you give your best judgment as to whether that could or would or would not cause a fire.”

The expert witness then testified as follows: “I would say under the right circumstances, everything being right it’s possible.” We do not think that allowance of this testimony was an abuse of discretion.

Appellants also contend that the trial judge erred in refusing to give two of their requested jury instructions regarding inferences of fact, i. e., APJI 15.00 and 15.01. Although these charges appear to contain correct statements of the law, we think the failure to give these charges, if error, was harmless error. The charges, moreover, were “abstract.” Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970).

Appellants’ main contention is that Osborn as landlord did not breach any obligation or duty to the appellees. We agree and hold that submission of the case to the jury against Osborn constituted reversible error.

A landlord, in the absence of a covenant to repair, is liable only for latent defects of which he knows at the time the lease is made and which he conceals from the tenant. Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975). However, appel-lees’ able and resourceful counsel advance five theories to support recovery which are said to take this case out of the general rule. We will consider these theories seri-atim.

The first theory asserted for recovery is that the two women were invitees, rather than tenants, and thus were owed a higher standard of care. The trial court charged the jury that it might find, under the evidence, that the two women were invitees. This was error.

An invitee is a visitor, a transient who enters property at the express or implied invitation of the owner or occupier for the material or commercial benefit of the occupier. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). A tenant, on the other hand, does not merely visit, but acquires an interest in the property, including the exclusive legal possession of the leased premises. See Rehfuss v. McAndrew, 250 Ala. 55, 33 So.2d 16 (1947).

We think the evidence clearly establishes a landlord-tenant relationship. The two women were not visitors, but were parties who leased an apartment, albeit temporarily, obtained possession, and paid rent. The payment and receipt of rent has been held to establish the relationship of landlord and tenant. Hackney v. Griffin, 244 Ala. 360, 13 So.2d 772 (1943)’. Also, the word “apartment,” which has been used by all the parties to refer to the leased premises, signifies in its ordinary connotation that the occupant has the right to exclusive legal possession and is a tenant. Stowe v. Fritzie Hotels, Inc., 44 Cal.2d 416, 282 P.2d 890 (1955).

The mere fact that some of the construction foremen used pass keys to enter the apartment in order to perform some final finishing up did not convert Brown’s and Soverow’s status from tenants to invitees, since it does not appear that the entry of these construction workers was under a permanent right of entry retained by the landlord. Moreover, the fact that the resident manager and the bookkeeper possessed pass keys, in and of itself, does not prevent the establishment of a landlord-tenant status, since there is no evidence that the retention of the keys was pursuant to the landlord’s control, care or supervision of the apartment.

Appellees suggest a second theory — that the two women were lodgers — to whom a landowner owes a duty of reasonable care not to injure. A lodger is one who has the use of property without actual or exclusive possession, such as one who lives in a spare room of a house whose owner retains direct control, supervision or care of the entire house. Rehfuss v. McAndrew, supra. We think the evidence clearly shows a lease of the apartment with a transfer of possession, control and care to the lessees, who were tenants and not lodgers.

A third theory advanced by appellees is that the landlord, Osborn, retained control of the electrical wiring of the apartment complex and was under a duty to exercise reasonable care to maintain the wiring. It is claimed that the jury could have found a malfunction of the electrical system to be the proximate cause of the fire.

The only case in which this Court has held that a landlord retained control over the electrical wiring of a leased premises, Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585 (1924), differs from this case in several respects. There, the lessor contracted with the State to supply light, heat and water to the leased building, which was to be used as a hospital. Moreover, the lessor generated its own electricity which was delivered over its own private line. The Court held that the electric wires in the building were essential to the furnishing of electricity under the contract, so that the lessor necessarily retained control over the wiring.

Appellees cite several other cases to support their theory that a landlord retains control over the electrical system of an apartment building. Gladden v. Walker & Dunlop, 83 U.S.App.D.C. 224, 168 F.2d 321 (1948); Kelley v. First National Bank, 281 Mass. 169, 183 N.E. 174 (1932); Lipsitz v. Schechter, 377 Mich. 685, 142 N.W.2d 1 (1966); Niman v. Plaza House, Inc., 471 S.W.2d 207 (Mo.1971); Green v. Kahn, 391 S.W.2d 269 (Mo.1965); Thompson v. Paseo Manor South, Inc., 331 S.W.2d 1 (Kansas City, Mo., Ct.App.1959); Fleischer v. Dworsky, 90 Misc. 628, 153 N.Y.S. 951 (App.T. 1915); O’Connor v. Andrews, 81 Tex. 28, 16 S.W. 628 (1891). The principle established by these cases is expressed in Gladden, supra, as follows:

“It is familiar law that a landlord who keeps control over parts of an apartment house must use reasonable care for their safety. We have applied this principle to the lighting of a common entrance stairway. With regard to plumbing and heating systems, the principle extends to operative fixtures in the apartments leased to tenants and operation through them. We think the principle is equally broad with regard to the electrical system.” (Footnotes omitted.)

83 U.S.App.D.C. at 225, 168 F.2d at 322.

There is some evidence that Osborn did retain control over the electrical wiring. When a tenant had trouble with the wiring, he was to notify the landlord, who would then send a maintenance man to examine the problem. If the problem was the responsibility of the electrical contractor, he would be called in to fix it. Otherwise, one of Osborn’s employees would repair the wiring. The tenants were not to do any wiring work themselves.

Even if this is enough evidence to establish control, this theory would still not support a recovery under the evidence. A lessor’s liability under this theory is based upon his failure to exercise reasonable care when such exercise would have disclosed a dangerous condition and the risk involved, and the lessor could have made the condition safe. This is the rule embodied in the Restatement (Second) of Torts §§ 360-61 (1965). See Chambers v. Buettner, supra.

Knowledge, either actual or constructive, must be present in order to hold the landlord liable in a retained control situation. “The landlord is not an insurer of the safety of the system, but is liable only for action or inaction that is negligent in view of what he or his representatives know or reasonably should know.” Gladden v. Walker & Dunlop, supra, 83 U.S.App.D.C. at 225, 168 F.2d at 322.

Liability in each of the cases cited by appellees to support their retained control theory arose from the landlord’s actual knowledge of a dangerous condition through complaints by the tenants (Gladden, Fleischer) or his own observations (Green), or constructive notice due to the open nature of the condition and the opportunity of discovery (Kelley, Lipsitz, Thompson, O’Connor). Niman was a res ipsa lo-quitur case in which the question of the landlord’s knowledge was deemed to be merged with the question of his control.

In the present case, the alleged dangerous condition was a staple driven through an electric wire located in a wall space of the damaged apartment. The wire was covered by sheetrock, and wooden cabinets were then hung on the wall. We have not found in the record evidence that Osborn, in the exercise of reasonable care, could have discovered the dangerous condition or the risk involved after the sheetrock had covered the wiring. There were no complaints made to Osborn by Brown or Soverow about any trouble with the electrical system.

However, appellees contend that Osborn or his employees may have had an opportunity to see the wiring before the sheetrock was hung. The record does show that Osborn or his employees entered some apartments in order to check the progress of the work performed by the contractors and subcontractors. We have not found any evidence to establish that Osborn, or any of his employees, ever saw or inspected the wiring in the apartment in question before the sheetrock was installed, nor does the record show that such an inspection would, in the exercise of reasonable care, have alerted Osborn to any dangerous condition in the wiring or to any risk involved.

The fourth theory of appellees is that the landlord would be liable either for negligent inspection of the electrical wiring during construction or, under respondeat superior, for negligent construction in the installation of the wiring.

A landlord is under no duty to inspect his premises for latent defects. James & Son, Inc. v. Breedlove, 347 So.2d 1330 (Ala.1977). But, as a general rule, when one assumes a duty requiring skill or care, such a duty must be performed with reasonable care. Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973). In Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971), an insurer who made safety inspections of a business premises was held to be under a duty to third parties to inspect with reasonable care.

The Restatement (Second) of Torts § 323 (1965) states this rule as to the liability for a negligent undertaking as follows:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.”

We have found no evidence to support the theory of negligent inspection, i. e., that the landlord ever assumed a duty to inspect the wiring system for safety. Thus, the instant case is to be distinguished from Beasley, supra, where the defendant insurance company undertook safety inspections as part of an insurance agreement.

An examination of the record reveals that Osborn’s inspections were not safety inspections, but rather were checks on the progress of construction by the contractor and various subcontractors undertaken to see that they were fulfilling their contractual obligations according to the plans and specifications. There was no rendering of services to another, since Osborn presumably acted for his own benefit. The record does not show that Brown or Soverow relied upon any undertaking by Osborn, nor have we found any testimony from which one could infer that the risk of harm had been increased by an undertaking on Osborn’s part. In short, there simply was no “undertaking” by Osborn.

An owner-landlord should not be held liable for negligent inspection merely because he checked the progress of construction. To follow appellees’ argument to its ultimate conclusion would reward the lax and penalize the diligent owner.

In order to recover under responde-at superior, appellees would have to establish the relationship of master and servant or employer and employee. We have found no evidence to support this theory.

“To recover against a defendant upon the theory of respondeat superior, it is necessary for the plaintiff to establish the status of master and servant and that the act done was within the scope of the servant’s employment. United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685.
“It is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relation between the parties is that of an independent contractor or of employer and employee — master and servant. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757.
“For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Weeks v. C. L. Dickert Lumber Co., 270 Ala. 713, 121 So.2d 894 and cases there cited.”

Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 398, 232 So.2d 638, 640 (1970). (Emphasis supplied.)

The record discloses that Osborn did not direct the manner in which the various contractors performed their work; he merely inspected the results to determine if performed in accordance with the plans. There is no evidence of a reserved right of control over the installation of the electric wiring.

Appellees’ fifth theory is that certain statements made by Osborn’s rental agent amounted to an express warranty of habitability or a covenant to provide a safe place to live. We find no such warranty or covenant arising from the agent’s statement that the temporary apartment was “liveable.” In the context in which it was made, this expression simply indicated (as Brown testified) that “there was some work to be done on it to finish it out, but it was available for us to move into * * *.”

Finally, appellees urge us either to expand the standard of care owed by a landlord to a tenant or to recognize the existence of an implied warranty of habitability in leases of new residential apartments. This Court expressly declines to do so. See Bevis v. L & L Services, 360 So.2d 296 (Ala.1978).

For the foregoing reasons relating to appellant Osborn’s liability, Cases 77-50 and 77-202 are due to be reversed and remanded for a new trial. There being no cross-appeal from the verdict for defendant Brown in Case 77-202, no issue to Brown is before us.

All of appellants’ contentions relating to Cincinnati Insurance Company’s suit against Brown having been answered in favor of appellee Brown, Case 77-203 is due to be affirmed.

CASES 77-50 AND 77-202 REVERSED AND REMANDED.

CASE 77-203 AFFIRMED.

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


author: BEATTY, Justice.

text:
    Matthis W. PIEL, as administrator, etc. v. Doris M. BROWN.
    77-200.
    Supreme Court of Alabama.
    July 28, 1978.

      Maury D. Smith and Charles S. Coody, Montgomery, for appellant.
    Charles H. Volz, Jr., Montgomery, for appellee.
   BEATTY, Justice.

This is an appeal from a decree of the Montgomery County Circuit Court revoking letters of administration previously granted appellant and ordering that appellee serve as administratrix of the estate of James W. Brown, deceased. We affirm.

James W. Brown died intestate July 11, 1977. Nine days later, pursuant to Alabama Code of 1975, § 43-2-40, appellant Matthis W. Piel filed his petition for letters of administration with the probate court of Montgomery County. That petition was granted. On July 22, 1977 Doris Brown, the appellee, petitioned that court to revoke the appointment of Piel and instead to grant the letters of administration to her in accord with the statute. The matter was removed to the circuit court of Montgomery County on August 15, 1977 when appellee petitioned for a declaration of her rights as the deceased’s widow. Following a trial judgment was rendered for appellee on November 4, 1977. Appellant’s motion for a new trial was denied on November 30,1977.

Mrs. Brown’s success below was bottomed essentially upon the court’s finding that she had statutory priority over Mr. Piel as administrator for the estate. Code of 1975, § 43-2-42 (formerly Tit. 61, § 81, Alabama Code (Recomp. 1958) provides that:

(a) Administration of an intestate’s estate must be granted to someone of the persons herein named if willing to accept and satisfactory to serve in the following order:
(1) The husband or widow.
(4) Such other person as the judge of probate may appoint.

Mrs. Brown contended that she fit within (1) above as the widow of the intestate.

The primary issue is the legality of Mr. Brown’s marital status. The uncontested evidence shows that the appellee, Mrs. Brown, and the deceased, James W. Brown, were legally divorced in 1968, and did not again formally remarry. Hence, only if a common-law marriage between these two existed at the intestate’s death could Mrs. Brown fit within the statute’s order of priority and prevail over the appellant Piel.-

The facts heard ore terms are uncontested. Following their divorce in 1968 Doris and Jim Brown continued living together, sharing the same home on Court Street in Montgomery. In 1970 the couple moved to a house on Damon Drive which was purchased in Doris’ name under the FHA 235 program and which, in 1976, was sold by Doris as a divorced woman. Several witnesses testified however that many times in the years following the divorce Doris introduced Jim as her husband and she, in turn, was introduced as his wife. Further, in 1972 the two of them traveled to his father’s funeral in Mississippi where his mother introduced them to friends and acquaintances as her son and his wife Doris. In that same year Jim organized a business subsequently called Diamond Enterprises, in which both he and Doris were stockholders and directors. Through this corporation a number of laundromats were operated. Doris was generally known to the managers of the laundromats as Jim’s wife, and in 1976 when Jim was recuperating from a heart attack she handled the entire business for him.

In 1969, after the divorce, Doris had her checking account separated from that of Jim and from it made the house payment and food purchases while Jim paid the utility bills. Other testimony shows that from 1969 until Jim’s death in 1977 Jim and Doris lived together and shared marital duties and relations and generally held themselves out to the public as man and wife.

In 1976 the couple moved from Damon Drive into two apartments, one at the Fox-croft Apartments on Calmar Drive, rented in the name of Diamond Enterprises, and the other a block away at Spanish Quarters Apartments, rented in Doris’ name. The first month’s rent at the latter apartment was paid by Jim Brown while Diamond Enterprises paid the rent at Foxcroft. All their furniture from Damon Drive was originally moved into Foxcroft, but some of it was subsequently moved into Spanish Quarters so that Jim could get to his equipment and tools. Their mail was received at both the Foxcroft Apartment and at P. 0. Box 7022 which was also rented by Diamond Enterprises. Only the power bill on the Spanish Quarters apartment was received at that apartment.

During part of 1976 Jim’s mother, Mrs. Maggie Brown, lived with them at the Fox-croft apartment until she was placed in a nursing home. She was visited there frequently by both Doris and Jim and on holidays was taken home with Jim and Doris to their Foxcroft apartment. The administrator of the nursing home testified that Jim had introduced Doris as his wife and told her that since he was out of town often on business she should call his wife any time anything was needed for his mother. Also in 1976 a lot in Arrowhead was purchased with funds provided by Mrs. Maggie Brown with the stated intention of building a house big enough for the three of them to live together.

On July 8, 1976 Jim had a heart attack and was taken to the hospital. While Jim was recovering The Reverend Albert Newton visited and Jim was introduced to him as Doris’ husband. Doris and Jim showed interest in his church and were subsequently placed on the church’s mailing list as Mr. and Mrs. James W. Brown, 5727 Calmar Drive (Foxcroft Apartments). They also made a contribution to the church and received a contribution statement from the church addressed to Mr. and Mrs. James W. Brown.

There is evidence that in 1976 Doris filed an individual tax form listing herself as single, and the same was done by Jim in 1977. Further, the death certificate relative to Jim’s death July 11,1977 lists Jim as a single man and lists Doris as the informant though there was also testimony that Jim’s eldest son, whom he had not seen in seven years, Jimmy Glenn Brown, was the actual informant.

The Alabama law pertaining to common-law marriages is less than semantically clear. There can be no doubt, however, that such a marital device exists in this state, not as an exception, but as a co-equal, alternate method of validating the connubial union of two people. The case of Campbell v. Gullatt, 43 Ala. 57 (1869) made it clear that a marriage is not to be declared invalid provided the requirements of the common law have been substantially complied with in the celebration of the marriage; i.e., “that a marriage good at the common law, is to be held a valid marriage in this State.”' A later case instructed that, “[t]he parties [to a common law marriage] stand to each other in the relation of husband and wife, having all the rights, and subject to all the duties, flowing from a marriage in strict conformity to the statute.” Beggs v. State, 55 Ala. 108 (1876). See also, White v. Hill, 176 Ala. 480, 58 So. 444 (1912); Wall v. Williams, 11 Ala. 826 (1847). Citation of the numerous other cases on this point is needless for the issue in the present case turns not upon the legality of a common-law marriage but upon the existence of it based upon facts of this case.

Generally, to have a marriage good at common law there must be (1) capacity, (2) present agreement or consent to be husband and wife, and (3) consummation. See 52 Am.Jur.2d Marriage § 42 (1970).

Capacity of the deceased and appellee Doris Brown to enter a valid marriage is not disputed here. The second element, present agreement or consent to be husband and wife, is in issue, however. Admittedly, language contained in earlier cases would establish conflicting legal requirements. For example, when the issue of a common-law marriage was before the court in Whitworth v. Whitworth, 256 Ala. 296, 54 So.2d 575 (1951), the Court quoted language contained in a Florida case for a pertinent expression of the controlling principle:

‘ “Neither cohabitation and repute nor circumstances, whose sole function is to show mutual consent of the parties, establishes a common-law marriage of itself. There must be words of present assent per verba de praesenti.” In re Price’s Estate, 127 Fla. 467, 176 So. 492, 493. (Emphasis supplied).’

That is the requirement insisted upon by the appellant here, although such a verbal assent in itself was not necessarily the form of assent required by the earlier opinion. Indeed, the present agreement element has been stated with words which have not included a verbal assent:

[Tjhere must be mutual understanding to presently enter into the marriage relationship, . there must be words of present assent. Humphrey v. Humphrey, 293 Ala. 118, 120, 300 So.2d 376, 377 (1974).
[A] present agreement, a mutual understanding to presently enter into the marriage relationship, . . . Beck v. Beck, 286 Ala. 692, 697, 246 So.2d 420, 425 (1971).
[A]n actual and mutual agreement to enter into a matrimonial relation, . Brown v. Brown, 276 Ala. 153, 155, 159 So.2d 855, 856 (1964).
There must be words of present assent ‘per verba de praesenti’ to lawfully contract marriage, . . . Goodman v. McMillan, 258 Ala. 125, 130, 61 So.2d 55, 59 (1952).
[MJutual understanding between the parties to presently enter into the marriage relation, . . . Reynolds v. Scott, 257 Ala. 670, 672, 60 So.2d 690, 691 (1952).
No particular words or formalities are required to constitute a common law marriage in the State of Alabama. . it is only necessary that there should be a mutual consent . . . . Smith v. Smith, 247 Ala. 213, 217, 23 So.2d 605, 609 (1945).
Of course a valid common law marriage must rest upon mutual consent of the parties, a mutual agreement to be husband and wife, . . . Gilbreath v. Lewis, 242 Ala. 510, 513, 7 So.2d 485, 488 (1942).
[0]nly necessary that there shall exist a mutual consent or agreement between the parties to be husband and wife, . Tartt v. Negus, 127 Ala. 301, 28 So. 713 (1899).

Appellee insists that the law does not require direct proof of such an agreement, however, but that it can be inferred from the circumstances, /. e., from the cohabitation and reputation. Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166 (1944).

Certainly the law requires mutual understanding between two people to presently enter into the marriage relationship. However, proof of actual words of agreement or consent has never been required by this Court, rather, the test is one of intention in accord with the language of Beck v. Beck, supra: “[n]o ceremony and no particular words are necessary to constitute a valid common-law marriage.” That intention can be inferred from the circumstances. Watford, supra. And the court must determine that intention in each case according to its own particular facts and the circumstances of the parties, Beck v. Beck, supra; Goodman v. McMillan, supra.

In all cases then, the question is whether the evidence discloses facts manifesting a mutual intention by the parties to be man and wife. This manifestation must show present intention, not an intention to marry in the future. Humphrey v. Humphrey, 293 Ala. 118, 300 So.2d 376 (1974); Turner v. Turner, 251 Ala. 295, 37 So.2d 186 (1948). We believe the present case shows sufficient evidence from which the trial court could infer that there was indeed a present, mutual intention of the parties to enter into a marital relationship. When consummated, this intention created a common-law marriage which could only be ended by death or divorce. Huffmaster v. Huffmaster, 279 Ala. 594, 188 So.2d 552 (1966).

The third element, consummation, has likewise been subject to different language used to convey the same thought. Mr. Justice Lawson in Beck v. Beck, supra, found it prudent to avoid what he described as “in-undat[ion] in a sea of semantics” pertaining to this element.

None of our earlier cases has been ideally instructive on the manner in which a man and woman must live following formation of their marital intention. Most of the cases speak generally of “cohabitation.” Herd v. Herd, 194 Ala. 613, 69 So. 885 (1915); Ashley v. State, 109 Ala. 48, 19 So. 917 (1896); Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640 (1905). Some add “as man and wife” or “ ‘their mutual assumption openly of marital duties and obligation.’ ” White v. Hill, 176 Ala. 480, 58 So. 444 (1912); Goodman v. McMillan, supra; Brown v. Brown, supra; Watford, supra. The better articulation of the requirement of consummation is that, following their mutual formation of intention the parties must so live as to achieve public recognition of their status as husband and wife. Beck v. Beck, supra; Humphrey v. Humphrey, supra; Huffmaster v. Huffmaster, supra. The case of Vinson v. Vinson, 260 Ala. 254, 69 So.2d 481 (1954) explains that this requirement rests upon reasons of public policy. There it is said that common-law marriage is based upon presumptive proofs, and that public recognition is the most persuasive of those proofs in demonstrating that marriage rather than mere concubinage has been intended by the parties. We believe cohabitation is a definite factor in gaining for the relationship its public recognition as a marriage but it need not be the only factor.

An excerpt from Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822 (1884), cited with approval in Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485 (1942) and Murphy v. Jacobs, 249 Ala. 594, 32 So.2d 306 (1947), is pertinent:

“But where no such ceremonies are required, and no record is made to attest the marriage, some public recognition of it is necessary as evidence of its existence. The protection of the parties and their children, and considerations of public policy, require this public recognition; and it may be made in any way which can be seen and known by men, such as living together as man and wife, treating each other and speaking of each other in the presence of third parties as being in that relation, and declaring the relation in documents executed by them while living together, such as deeds, wills, and other formal instruments. . . .”

Cohabitation is clearly present in this case. The couple lived together, shared household duties and expenses and engaged in numerous aspects of the day-to-day mutual existence of married persons. The evidence also shows that these facts were known to numerous persons.

Appellant asserts that the appellee, Doris Brown, failed to prove these factors by clear and convincing proof. We do not agree. It has been said that due to the serious nature of the marriage relationship, the courts will closely scrutinize a claim of common-law marriage and require clear and convincing proof thereof. Reynolds v. Scott, 257 Ala. 670, 60 So.2d 690 (1952); Goodman v. McMillan, 258 Ala. 125, 61 So.2d 55 (1952); Bishop v. Bishop, 57 Ala.App. 619, 330 So.2d 443 (1976). Applying that scrutiny to the facts of this case and keeping in mind the above discussion, we believe the trial court was correct in its finding that a common-law marriage existed.

Last, appellant argues that the trial court erred in allowing Mrs. Brown to testify over objection that she and the deceased were married. This argument is without merit. It is well-established in this state that a widow may testify to the fact of marriage between herself and her deceased husband. Cavin v. Cavin, 237 Ala. 185, 185 So. 741 (1939); Rogers v. McLeskey, 225 Ala. 148, 142 So. 526 (1932); Smith v. Smith, 247 Ala. 213, 23 So.2d 605 (1945).

The decree of the trial court is due to be, and is, affirmed.

Affirmed.

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


author: SHORES, Justice.

text:
    OPELIKA PRODUCTION CREDIT ASSOCIATION, INC. v. Samuel LAMB.
    77-229.
    Supreme Court of Alabama.
    July 28, 1978.

      Guy F. Gunter, III, for Maye, Melton, Kent & Gunter, Opelika, for appellant.
    Bob Faulk, for Faulk & Johnson, Phenix City, for appellee.
   SHORES, Justice.

Samuel R. Lamb filed suit against Reekie R. Barela seeking possession of 68 cows, 2 angus bulls, the increase thereof, and damages for the conversion of these animals. Opelika Production Credit Association (Ope-lika Credit) intervened in the action claiming all of the cattle in Barela’s care under a security agreement executed by Barela. The intervenor also claimed $74,582.28 due by open account from Lamb and Barela, jointly and severally, as well as money owed them by Barela separately on two promissory notes. All parties to the action agreed to sell all of the cattle in Barela’s possession and to deposit the proceeds with the court for allocation between the parties following a final determination by the court.

The trial court, at the close of Opelika Credit’s case, directed a verdict in favor of Lamb and his wife. Barela failed to appear to defend the action, and the trial court gave the affirmative charge in favor of Opelika Credit and against Barela. The jury returned a verdict of $69,422.40 against Barela. The court ordered a division of the proceeds of the cattle sale, totaling $8,400, awarding two-thirds to Lamb. Opelika Credit’s motion for new trial against Lamb was denied and it appealed. It urges that the trial court erred in directing a verdict on its claim against Lamb and in denying its motion for new trial. We affirm.

Lamb, a practicing physician from Jacksonville, Florida, and Barela, his son-in-law at the time, entered into a written contract for the operation of a cattle ranch on August 8, 1973, which provided:

“CONTRACT AGREEMENT
“THIS AGREEMENT made the 8th day of August, 1973, by and between SAMUEL R. LAMB, M. D. and HELEN E. LAMB, hereinafter called ‘Lamb,’ and RECKIE R. BARELA, hereinafter called ‘Barela.’
“The parties agree and contract as follows:
“1. Lamb has purchased from Barela 68 brood cows and 2 Angus bulls together with winter feed and pasture leases for said animals through January 5,1974, for the sum of $17,000.00.
“2. Barela agrees to keep said animals together with other cows as may be placed in his care by Lamb, pastured and fed through January 5, 1974. After January 5, 1974, pasturing and feeding will be renegotiated by both parties together and will be paid for from calf crop sales as common herd expense or such other way as may be expedient, equitable and mutually agreed to by both parties in writing and to be added to this agreement as an addendum.
“3. Barela further agrees to take care of all of said animals placed in his care by Lamb from the date of this agreement until their first full crop of calves come in. Barela’s compensation for his services in tending said animals for the first year of this contract will be one-half of the first calf crop or the proceeds therefrom. Barela’s compensation after the first year will be one-half of each year’s ensuing calf crop or proceeds therefrom from the herd as it enlarges from year to year. Barela will not receive any other compensation from Lamb for his services.
“4. In the event of the dissolving of this contract agreement all cows paid for by Lamb’s personal monies and/or all cows paid for by Barela personal monies shall belong entirely to each party thereto with the remaining purchase of the herd or proceeds therefrom being divided equally.
“5. It is further agreed that this contract shall be binding as stated above on both parties for three (3) years and that any and all proceeds are to be spent solely for maintenance, care and enlarging the herd brood cows as rapidly as possible. After the third year, this contract agreement will be renegotiated by both parties.
“IN WITNESS WHEREOF the parties have signed this agreement the day and year above stated.
/s/ Samuel R. Lamb
SAMUEL R. LAMB, M. D.
/s/ Helen E. Lamb
HELEN E. LAMB
/s/ Reekie R. Barela
RECKIE R. BARELA”

Lamb named the operation “Lambarela Ranch” and established a checking account in which he deposited $500 each month for its operation. Barela was authorized to write checks on this account.

In late 1973, Barela began the acquisition of a substantial number of additional cattle. Lamb testified that Barela informed him of the acquisition, stating that he was being sponsored by the Alabama Cattlemen’s Association which loaned him money at 6% interest to purchase the cattle, to be repaid from the proceeds obtained through a sale of the calf crop. Lamb denied any further knowledge of the source of the purchase money for the cattle. He and Barela agreed orally that Lamb would depreciate the newly acquired cattle, as well as the original herd purchased by Lamb, on his Income Tax Returns. In 1973, 1974 and 1975, Lamb took a total depreciation deduction on all of the cattle amounting to $34,-347.25.

Barela had actually borrowed the purchase money for the cattle from Opelika Credit. In his deposition, which was admitted into evidence at the trial because of his absence, Barela said that Lamb was aware of his dealings with Opelika Credit and, in fact, instigated the loan negotiations in order to increase the cattle herd without increasing his original capital investment. Barela never informed Opelika Credit of his business relationship with Lamb, and executed each of the documents required by Opelika Credit in his personal name. Opeli-ka Credit was unaware of the arrangement between Lámb and Barela.

Between September 17, 1973, and April 15, 1974, Barela borrowed $54,040 from Opelika Credit with which he purchased 187 head of cattle, three bulls, three horses, one pick-up truck, and 1300 shares of participating stock in Opelika Credit. To secure the loans, he executed a security agreement and several promissory notes. On December 2, 1974, he borrowed an additional $5,560 to recover cattle which had escaped from a pasture leased by Barela, and executed another note in that amount. In 1975, Barela executed a renewal note for $59,755 covering the original indebtedness, plus interest accrued, sendee charges, and agreed to purchase 114 additional shares in Opelika Credit. The jury’s award of damages to Opelika Credit reflected the sum of these notes less the value of the shares which Opelika Credit retained.

Lamb had directed Barela not to sell any cattle or any part of the calf crop without his knowledge. Lamb demanded records of all transactions for tax purchases. Lamb filed suit in 1975 because Barela sold off a number of cattle without Lamb’s permission. There is no evidence in the record that Lamb received any part of the proceeds of these sales. The only return received by Lamb or his investment was $3,000 from the sale of 10 head of cattle.

Opelika Credit maintains that Lamb is liable to it for the debts incurred by Barela under three alternative theories: (1) That Barela served as Lamb’s agent; (2) that Lamb and Barela were partners and the debts incurred by. Barela were partnership debts for which Lamb is jointly and severally liable; and (3) that even if Barela was not authorized to borrow money on Lamb’s behalf, his actions were subsequently ratified by Lamb. Opelika Credit argues that it presented at least a scintilla of evidence to support each of these theories.

The debts incurred by Barela to Opelika Credit were evidenced by promissory notes and negotiable instruments. Therefore, to recover against Lamb, the payee must show that he received the underlying consideration, and that Barela was Lamb’s agent, authorized to bind him contractually. The intervenor argues that there was evidence from which the jury could have found that Barela was acting as Lamb’s agent in making the loan. However, even if the agency were proven, Lamb’s liability is still limited because his status in the transaction would be that of an undisclosed principal. In such cases, the undisclosed principal is not liable on a negotiable instrument. Second Restatement, Agency, § 192. The party signing the instrument is liable thereunder. § 7 — 3—401, 1975 Code. This does not exempt the principal from liability for the debt. His liability may still arise under an equitable doctrine of quasi-contract. Under that doctrine, an undisclosed principal may not accept and retain the benefits of the agent’s agreement with a third party, but will be held liable for those benefits in restitution. Britton v. Mitchell, 361 F.2d 922 (10th Cir.1966); Lady v. Thomas, 38 Cal.App.2d 688, 102 P.2d 396 (1940); Johnson v. Maddock, 119 Fla. 777,161 So. 842 (1935). Any recovery by Opelika Credit on either of the three theories advanced must arise under this equitable remedy and is limited to the benefit received by Lamb. See Restatement, Restitution, § 111(2), Comment (1937); Dobbs, Remedies, § 12.1, p. 791 (1973).

The theoretical underpinnings of a quasi-contractual recovery were first articulated by Lord Mansfield in Moses v. Macferlan, 2 Burr. 1005, 97 Eng.Rep. 676, 678, 680 (K.B. 1760):

“ . . .If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (‘quasi ex contractu,’ as the Roman law expresses it).
“This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund . . . .”

Under modern authorities, the remedy has been expanded to reach benefits other than money received. A person may be considered to have conferred a benefit upon another if he has given him possession of, or an interest in, land, chattels, or choses in action, or if he performs some service which is beneficial to or at the request of the other person, or if he satisfies a duty on a debt of the other. Whenever one person adds to the other’s advantage in any form, whether by increasing his holdings or saving him from expense or loss, he has conferred a benefit upon the other. Restatement, Restitution, § 1(b); Sullivan, The Concept of Benefit in the Law of Quasi-Contract, 64 Geo.L.J. 1 (1975).

The remedy of quasi-contract is founded upon the familiar principle of avoiding unjust enrichment. Where the plaintiff has suffered a detriment, and the defendant has received a benefit as a result, it is said that justice demands the repayment by the defendant of the plaintiff’s loss. The measure of the defendant’s liability is, however, limited to the value of the benefit received, whether or not it is equal to, less than, or greater than the plaintiff’s loss. But, in any case, there must be a detriment, and a resulting benefit, and the two must be related. See, Edwards v. Lee’s Administrator, 265 Ky. 418, 96 S.W.2d 1028 (1936); Olwell v. NYE & Nissen Co., 26 Wash.2d 282, 173 P.2d 652 (1946); Comment, The Necessity of Conferring a Benefit for Recovery in Quasi-Contract, 19 Hast. L.J. 1259 (1968).

In the instant case, the evidence does not show that Lamb has obtained any benefit from the transactions between Barela and Opelika Credit. Lamb received no money, no profit from the sale of any of the cattle, and is in no better position as a result of the loan by Opelika Credit. The only evidence offered by Opelika Credit was to the effect that Lamb depreciated the cattle. This is not a benefit derived from Barela’s indebtedness as such; and, although it could not have arisen without the purchase of the cattle, it was not a direct benefit derived from the loan. The link between Barela’s transactions with Opelika Credit and Lamb’s depreciation of the cattle is too tenuous to support the remedy of restitution in quasi-cóntract. Lamb has nothing which belongs to Opelika Credit or which strengthened his position and weakened the position of Opelika Credit. The benefit must be realized as a direct result of the transaction. The majority of cases involving the liability of an undisclosed principal under similar 'circumstances present facts showing that the principal himself received the consideration for which the negotiable instrument was given by the agent, or money which was used to pay a debt of the undisclosed principal. See, Lady v. Thomas, supra; Schwaegler Co. v. Marchesotti, 88 Cal.App.2d 738, 199 P.2d 331 (1948); Johnson v. Maddock, supra; Plains State Bank v. Ellis, 174 Kan. 653, 258 P.2d 313 (1953). Such is not the case here. The only money ever received by Lamb was the $3,000 received as the proceeds for the sale of 10 head of cattle, but it was not shown that these cattle were ever removed from the ranch or that they were among the cattle purchased with Opelika Credit’s money.

Absent a showing of a direct benefit by Lamb which resulted from Opelika Credit’s loans to Barela, it has presented no evidence to support its claim against Lamb, even when the testimony is viewed most favorably toward Opelika Credit. In such cases, a directed verdict is proper. Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976); Riley v. Banks, 289 Ala. 56, 265 So.2d 599 (1972).

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: SHORES, Justice. MADDOX, Justice

text:
    Phoebe Duncan BRADLEY et al. v. Jim ESKRIDGE et al.
    77-284.
    Supreme Court of Alabama.
    July 28, 1978.

      David A. Reid, Livingston, for appellants.
    William C. Brewer, III of William C. Brewer, III and of Marcus E. McConnell, Jr., Livingston, for appellees.
   SHORES, Justice.

Will L. Eskridge died in Sumter County, Alabama, on January 11, 1975, leaving a Last Will and Testament which was duly admitted to probate. The will, in pertinent part, provides as follows:

“ITEM 3. I give, devise, and bequeath unto my wife, Bessie Eskridge, in fee simple, all of the real estate or interest in real estate which I may own at the time of my death.
“ITEM 4. I give, devise, and bequeath unto my wife, Bessie Eskridge, in fee simple, all of the personal and/or mixed property which I may own at the time of my death.
“ITEM 5. Upon the death of my wife, it is my desire that any of the real, personal, or mixed property which I bequeathed to her and which she has not disposed of at the time of her death shall be divided between my closest relatives and her closest relatives, share and share alike, in fee simple.”

At the time of Will Eskridge’s death, he was survived by his widow, Bessie Eskridge, who took possession of his properties under the will; his brother, Jim Eskridge; his sister, Addie Eskridge Duncan; and a number of nieces and nephews.

Bessie Eskridge died intestate on March 29, 1976, without having disposed of the property devised to her by her husband. She was predeceased by Addie Eskridge Duncan, who died intestate on February 18, 1976. The closest relatives of Will and Bessie Eskridge surviving at the time of Bessie’s death were Will’s brother, Jim, and Bessie’s sister, Magnoria Buchannon. Jim Eskridge and his wife, Adelaide, were appointed administrators of Bessie Eskridge’s estate. Addie Eskridge Duncan’s children filed a claim against Bessie’s estate claiming an interest therein under the will of Will Eskridge. The administrators thereupon filed an action for declaratory judgment in the Circuit Court of Sumter County asking the court to construe the provisions of Will Eskridge’s will as set out above.

The trial court held that the will created in Bessie Eskridge, the testator’s widow, an estate in fee simple defeasible subject to an executory interest in the closest relatives of the testator and his wife, who were alive at the date of his widow’s death. The court held that “closest relatives,” as used in the will, meant persons nearest in degree of blood relationship as computed by the rules of the civil law.

The children of Addie Eskridge Duncan appealed, contending that the trial court erroneously construed the will of Will Esk-ridge. We affirm.

Alabama has long recognized the existence and viability of the estate in fee simple defeasible. McRee’s Adm’rs v. Means, 34 Ala. 349 (1859); Flinn v. Davis, 18 Ala. 132 (1850). It has been defined as “ ‘an estate in fee simple which is subject to a special limitation, a condition subsequent, an executory limitation, or a combination of such restrictions.’ ” Brashier v. Burkett, 350 So.2d 309, 313 (Ala.1977). Restatement, Property, § 16. An executory interest or limitation is a nonvested interest in a transferee which is so limited that it will vest on the happening of a condition [the failure of the first taker to convey during his lifetime is a valid condition. Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950)], or on the occurrence of an event which is certain to take place, and which vests in derogation of a vested interest. Simes, Handbook of the Law of Future Interests, § 12, p. 25 (2d ed. 1966). It has also been defined as any future interest which is created in a person other than the transferor who is not a remainder. Bergin and Hoskell, Preface to Estates in Land and Future Interests, Ch. 3, p. 83 (1966).

Such interests are denominated ex-ecutory interests rather than contingent remainders because there can be no contingent remainders after a fee simple. Simes on Future Interests, supra, § 12.

In the instant case, the testator used the clear and unambiguous term “fee simple” in delineating his wife’s interest. When the language of a will is clear and unambiguous, as it is here, rules of construction cannot be employed to rewrite a will at variance with the meaning of the language used by the testator. Werneth v. Hanly, 262 Ala. 219, 78 So.2d 299 (1955); Fuller v. Nazal, 259 Ala. 598, 67 So.2d 806 (1953).

The appellants argue that to effectuate the intent of the testator, we must construe the will to create a life estate in Bessie Eskridge with power of disposition and a vested remainder in Jim Eskridge, Addie Eskridge Duncan and Magnoria G. Buchan-non. They argue that the remainder interest created by the will vested upon the death of Will Eskridge. For the reason stated above, we cannot agree with these contentions, nor are we at liberty to so construe the will of Will Eskridge.

Where the estate or interest is created in one clause of a will in clear and decisive terms, that interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of subsequent clauses, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965); Sewell v. Byars, 271 Ala. 148, 122 So.2d 398 (1960). We must conclude, therefore, that because the fee simple devise to Bessie Eskridge was in clear and distinct language, it cannot be diminished by any construction of a subsequent item of the will, nor by any rule of construction.

In Brashier v. Burkett, supra, we held that a conveyance in fee simple with a deed over of any property left undisposed of by the class of first takers, at the death of the last surviving member of that class, clearly conformed with the language necessary to create a fee simple defeasible. Under Title 47, §§ 76-79, Code 1940, Recompiled 1958 (now § 35 — 4-292, Code 1975), it was held that the future estate created by such a devise was an executory interest.

The trial court correctly held that the will created in Bessie Eskridge was a fee simple defeasible subject to an executory interest in the named class of relatives which vested in interest and possession at the time of her death. Its judgment is, therefore, affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH and BEATTY, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

I concur in the result only, because I believe that, by doing so, we carry out the intent of the testator in this case. The language of this will, which in one paragraph devises a fee simple absolute estate, and in another limits that estate with what could be construed as precatory words such as “it is my desire,” is not a model for creating a fee simple defeasible estate, but, as I say, the result most probably carries out testator’s intent. Therefore, I concur in affirming the trial court’s determination in this case.