author: PER CURIAM. EMBRY, Justice

text:
    Sam E. RAGLAND et al. v. ALABAMA POWER COMPANY, a corporation, et al.
    77-59.
    Supreme Court of Alabama.
    June 16, 1978.
    As Corrected On Denial of Rehearing Sept. 22, 1978.

      James B. Kierce, Jr., Stone, Patton & Kierce, Bessemer, for appellants.
    Edward S. Allen, Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellees.
   PER CURIAM.

This appeal by plaintiffs, Sam E. and Annette J. Ragland, is from summary judgments for defendants Alabama Power Company and Asplundh Tree Expert Company holding that defendants had the right to enter on the lands of the plaintiffs and cut fifteen trees and top three others grounded on the right under an easement to cut “danger trees adjacent thereto where necessary.” We consider the grant of summary judgment to have been inappropriate and reverse and remand.

Asplundh Tree Expert Company, under contract with Alabama Power Company, entered on plaintiffs’ lands and cut 15 trees and topped three others, which trees were located near an electric transmission line right-of-way easement of the Alabama Power Company. The easement granted, inter alia, “the right to cut and keep clear all trees and undergrowth and other obstruction on the [right-of-way], and danger trees adjacent thereto where necessary.”

The issue presented for review is, “Whether the cut and topped trees fell within the easement right to cut ‘danger trees adjacent thereto where necessary’ so that summary judgment was appropriate in this case?” We would answer “no” to this issue.

We do not disagree that the law of the case is enunciated in Collins v. Alabama Power Company, 214 Ala. 643, 108 So. 868 (1926). There, Mr. Justice Sayre, writing for the Court, construed “danger trees” (within the meaning of a clause identical to the one in the case at bar) “to mean trees which, by reason of size or condition, and contiguity to complainant’s right of way, involve a concrete threat of injury to complainant’s transmission or telephone lines, 4c 4c 4c>>

There is at least one question of fact, or mixed question of law and fact, under the Collins definition. “Were these ‘danger trees’?” That is, “Were they, by reason of their size or condition, and contiguity to the right of way, a concrete threat of injury to the transmission lines?”

It is uncontroverted that the trees cut and topped were healthy, disease free and varied from three to fourteen inches in diameter.

Examining the affidavits filed by Alabama Power Company in support of summary judgment, we find the affidavits showed, “It is most important * * * that all transmission lines be kept free of hazards * * * a major hazard being the location of trees within falling distance * * * on these transmission lines”; it is Alabama Power Company’s practice to cut as “danger trees” those which “in falling they would come within five feet of the nearest current carrying wire”; that three electric transmission lines of high voltage abut the property of the plaintiffs; that “every tree which was cut or trimmed would have actually struck the nearest electric conductor on the transmission line right of way in falling, without regard to the usual five foot clearance * *

Examining the counter affidavits filed by plaintiffs, we find the trees were cut “after [defendants were] warned” not to do so; the youngest of the trees was approximately fifteen years old and the oldest no older than thirty years and they “were strong and sturdy, alive and healthy, and free from disease”; that none of the “said trees cut down or topped by defendants involved a concrete threat of injury to the transmission lines”; based upon an examination of the stumps, other trees in the vicinity, “the stacks of the trees that were cut down,” photographs, and topography of the land, the trees cut did not “involve a concrete threat of injury to the” transmission lines nor would such trees “have fallen or been blown down except by winds of 80 miles per hour” and even with such “winds of 80 miles per hour * * * there is considerable doubt that the trees that were cut would be blown down in the direction of the conductors because of their location on the downslope of a hill or ridge and because of the fact that the trees which were cut were protected from the West by numerous other healthy trees” and the fact that the “conductors are located to the East of the trees which were cut.” (Emphasis added.)

These conflicting statements of the Alabama Power Company’s employees and those of the plaintiff and his forester lead us to conclude that summary judgment was inappropriate in this case.

We have said many times that summary judgment should be rendered only if the pleadings, depositions and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56 A.R.C.P.; Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975).

The moving party must clearly show that the other party could not recover under any discernible set of circumstances and must show the absence of a genuine issue as to any material fact. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

The factual allegations in pleadings and affidavits of the party opposing the motion for summary judgment (here the plaintiff) must be taken as true in ruling on the motion. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975).

We have no difficulty at all finding that there are genuine issues of fact in this case and summary judgment was therefore inappropriate.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent.

What this appeal actually involves is a determination of what, as a matter of law, is a “danger” tree.

The Raglands filed their action for damages against'the Power Company and As-plundh complaining of trespass upon their real estate and conversion of trees thereon.

The essential facts, as shown by the pleadings, affidavits, admissions, and exhibits upon which the motions of the Power Company and Asplundh for summary judgments were submitted, disclose that:

Asplundh, under hire by the Power Company, entered on the lands of the plaintiffs and cut 15 trees and topped three others; the trees were located adjacent to an electric transmission line right-of-way easement of the Power Company; the granted easement included “the right to cut and keep clear all trees and undergrowth and other obstruction on the right-of-way and danger trees adjacent thereto where necessary”; the trees cut and topped were healthy, disease free, and varied from three to fourteen inches in diameter; the trees were of such size and so located that, if they were caused to fall, they would have actually struck the nearest electric conductor wire of the transmission line.

There is no dispute in the facts presented by the affidavits filed in behalf of the parties to this action; only the conclusions drawn by the various affiants. The conclusion drawn by affiants whose affidavits support the position of the Raglands is that the cut and topped trees presented no concrete threat to the power lines because they were not likely to fall or be blown down.

To Illustrate

From the affidavit of the Power Company’s Birmingham Division Transmission Line Superintendent:

u* * * It is most important to the maintenance of electric service that all transmission lines be kept free of hazards to service interruptions, a major hazard being the location of trees within falling distance of electric conductors on these transmission lines. In spite of Alabama Power Company’s program of periodically reclearing such trees, called ‘danger trees,’ approximately 15% of the permanent line interruptions to Alabama Power Company’s transmission system over the past ten years have been due to such trees. By ‘permanent,’ I mean that the lines remained out of service until they could be repaired by a transmission line crew. It is also appropriate to mention that of these outages caused by falling danger trees, 4% were caused by trees which were dead or dying, and 96% were caused by green or live trees.
“Because of these operating experiences, Alabama Power Company must continually reclear danger trees adjacent to transmission lines, * * *”

From the affidavit of the Power Company’s Supervisor of Line Clearing — Large:

“* * * On December 19, 1975, Alabama Power Company cut 15 trees and topped two other trees on the Ragland property adjacent to the Alabama Power Company right of way mentioned above. All of the danger tree cutting and trimming which was carried out on this occasion, although carried out by contractors, was done under my direct supervision and direction and in my presence.
“In the instance of cutting the trees on the property of Mr. and Mrs. Ragland, every tree which was cut or trimmed would have actually struck the nearest electric conductor on the transmission line right of way falling, without regard to the usual five foot clearance for future growth and wind action. I personally measured each of the trees cut or trimmed, the distance of each tree from nearest conductor and the conductor height at the location of each tree * *
******
“* * * The foregoing is a complete list of the trees cut or topped on the Ragland property on the occasion made the basis of this law suit. I have calculated the angle of fall of each of these trees, and each and every tree cut or topped on this property would have actually struck the nearest electric conductor on the transmission line right of way abutting the Ragland property in falling toward the transmission lines." (emphasis added)
From the affidavit of Mr. Ragland:
“* * * It is my opinion, based upon the size, condition and contiguity of the trees cut down and topped by defendants, and based upon my knowledge of having observed said trees practically every day for seven years under varying weather conditions, that none of the said trees cut down or topped by defendants involved a concrete threat of injury to the transmission lines or conductors of defendant Alabama Power Company.” (emphasis added)

From the affidavit of Mr. Ragland’s expert forester:

“I visited the Ragland property on October 25, 1976, and examined the stumps of approximately 15 trees which Sam E. Ragland pointed out to me as being the ones cut down by the defendants on December 19, 1975. I also examined approximately 3 other trees from which the tops had been cut. In my judgment, based upon my training and experience as a forester, the youngest of these trees was approximately 15 years and the oldest probably about 30 years. I also examined closely the other trees located in the immediate area of the stumps.
“From examining these stumps, it would be my opinion that the diameter at breast height, i. e., approximately 4Vi feet above the ground, would range between approximately 3 inches and 14 inches.
“I have read the affidavit of Kenneth A. Berry [Power Company’s Supervisor of Line Clearing — Large] attached to defendant’s motion for summary judgment. Assuming what he said is true at the bottom of page 2 of his affidavit, in which he gives the height of the trees, the distance of the trees from the conductor and the conductor height, and based upon my examination of the stumps, the other trees in the immediate vicinity of the stumps, the stacks of the trees that were cut down which I examined on October 25,1976, and the photographs numbered 1 through 23 attached to Mr. Rag-land’s affidavit, which I examined, and based upon the topography of the land from which the trees were cut, I am of the opinion that because of the condition, size, and contiguity of the trees cut and topped by defendants, that the same did not, on December 19, 1975, involve a concrete threat of injury to the conductors. Upon examining the stumps and stacks of trees that were cut, examining the photographs referred to above, and the trees yet standing in the immediate vicinity, and based upon my training and experience as a forester, I am of the opinion that the trees cut were alive and healthy at the time they were cut. In my opinion, based upon my training and experience and knowledge of pine trees of the size, shape and condition that were cut, such trees would not have fallen or been blown down except by winds of 80 miles per hour or more. Even with winds of 80 miles per hour, or more, there is considerable doubt that the trees that were cut would be blown down in the in the direction of the conductors because of their location on the downslope of a hill or ridge and because of the fact that the trees which were cut were protected from the West by numerous other healthy trees. The conductors are located to the East of the trees which were cut.” (emphasis added)

The contention of the Raglands is, as stated, that the phrase concrete threat means likely to fall. To agree, defies logic. Were it to have that meaning, there could be no program of periodic cutting and topping to reasonably insure against unwarranted interruption of electrical power service to the consuming public. To hold as does the majority, would require daily examination of each tree adjacent to each right-of-way of the Power Company, throughout the length and breadth of Alabama, in order to determine the health of each of those trees before there would be the right to cut or top them. Neither the statute nor the grant of easement so requires. The opinion of the majority renders the Power Company liable if they cut or top if there be difference of opinion about whether a tree is likely to fall. It also imposes liability should the doubt be resolved favorably to the landowner and a healthy tree encounters an electrical transmission line producing injury. This is an irreconcilable inconsistency: be damned if you do; be damned if you don’t.

Were the cut and topped trees, “danger” trees as a matter of law?

The Raglands contend that the trees cut and topped were not in such condition, of such size, or contiguity to Alabama Power’s conductors as to pose a concrete threat to the conductors; therefore not danger trees under the facts of the case. The principal authority relied upon to support this proposition is Collins v. Alabama Power Company, 214 Ala. 643, 108 So. 868 (1926).

The Power Company and Asplundh contend that, as a matter of law, danger trees within the meaning of electric transmission line easements include trees of such size and contiguity to the transmission line right-of-way that, if they fell, they would strike and likely damage or endanger the lines on that right-of-way. They also cite Collins as authority to support this contention.

I am compelled to agree with the contention of the Power Company and Asplundh; and accordingly with the correctness of the trial court’s entry of summary judgment in their behalf.

Collins, supra, is not authority for the theory that a danger tree is only one that is likely to fall and injure and damage an electrical transmission line but it is authority for the proposition that a danger tree is one that would likely injure or damage the line if it fell.

The right to cut or top danger trees granted by the instrument conveying the easement in this case is the same right which would be acquired had the easement been the subject of eminent domain proceedings initiated by the Power Company. § 37-4-130, Code 1975. That right must be paid for as it is a servitude upon lands adjacent to the easement and time of payment is upon acquisition of the right-of-way easement. Wiggins v. Alabama Power Co., 214 Ala. 160, 107 So. 85 (1926).

I conclude from an examination of the pertinent authorities that the language in Collins defining the phrase danger trees: “ * * * to mean trees which, by reason of size or condition, and contiguity to complainant’s right of way, involve a concrete threat of injury to complainant’s transmission * * * lines * * when read with the language of § 37-4-130: “ * * * such timber as may injure or endanger * * *” (emphasis added), that the law is speaking of trees likely to injure or endanger should they fall rather than trees likely to fall.

Common sense compels one other conclusion. It is not contradicted that it is a practice of the Power Company to cut and top on a minimum cycle of four years, and in so doing to cut or top danger trees which, should they fall, would come within five feet of the nearest current carrying wire. To do otherwise would ignore the obvious: trees grow, healthy trees sway, fall, and are caused to fall, and when falling sometimes fall farther than their height for various reasons, including wind.

The summary judgment in behalf of the Alabama Power Company and Asplundh Tree Expert .Company should be affirmed.

TORBERT, C. J., and JONES and AL-MON, JJ., concur.

ON REHEARING

OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.

BLOODWORTH, MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., dissent.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Louise Herod SUDDUTH and Bobby G. Sudduth v. John W. SUDDUTH and Monie W. Sudduth.
    77-574.
    Supreme Court of Alabama.
    Jan. 26, 1979.

      John A. Tinney, Roanoke, for appellants.
    Michael D. Cook, Lanett, for appellees.
   ON REHEARING

MADDOX, Justice.

The original opinion in this matter is hereby withdrawn and the following substituted in lieu thereof.

Plaintiffs/appellees, John and Monie Sud-duth, are elderly people. On December 7, 1973, they executed a deed transferring their 9-aere tract and homesite to one Louise Herod, who later married their son, Bobby Sudduth, reserving “. . . the right during the lifetime of either, to occupy the house located on said above described property, rent free, as long as they so desire or until their death.” The consideration for the transfer, according to the elder Sudduths, was $3,000 and an oral agreement by Louise and Bobby Sudduth to “look after” them for the remainder of their lives.

The son and daughter-in-law moved a mobile home onto the premises. Disputes between the Sudduths and their son and daughter-in-law arose. Harassments occurred. Disagreement arose over ownership of household goods and garden tools. The son claimed that the personal property went to him under the agreement. The elderly couple disputed this. They filed suit on April 11, 1977, and asked that the trial court set aside the deed and decree that the household goods and garden tools belonged to them. The trial judge found, in part:

(1) There was no meeting of the minds between the parties in several respects, which were material to the validity of the agreement.
(2) That defendants, as a material part of the consideration for this transaction, agreed to “look after” the plaintiffs in their old age. (The court made no decision as to whether the deed was voidable under Alabama Code section 8-9-12, where a deed is held voidable if a material part of the consideration is an agreement to “support” since “there are other legal principles upon which plaintiffs may be granted relief.”)
(3) That the $3,000 consideration was substantially less than the fair market value of the land.

The judge concluded from the foregoing that “there was no meeting of the minds between the parties with respect to material elements of the agreement pursuant to which plaintiffs deeded their homeplace to one of the defendants, we have decided that plaintiffs are entitled to relief” and gave, the Sudduths an option to reform the deed or set it aside; they selected the second option which provided:

“The deed will be set aside and the whole transaction will be declared void. Plaintiffs will be required to refund the cash part of the consideration heretofore paid, and plaintiffs shall also be required to pay to defendants the value of all improvements placed on the property by the defendants which cannot be removed by the defendants. A special hearing will be held to determine the exact amount of money to be paid by plaintiffs to defendants. Upon payment of the amount determined to be due, defendants shall vacate the property.”

We affirm.

The trial judge sat without a jury and had the advantage of observing the witnesses for either side and their demean- or on the stand as well as observing the premises in question. Where testimony is taken ore tenus, the findings of fact made and entered by the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. The final decree appears fairly supported by the evidence and we cannot say the result is unjust.

AFFIRMED. ORIGINAL OPINION WITHDRAWN, NEW OPINION SUBSTITUTED. APPLICATION FOR REHEARING OVERRULED.

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

      . The court held:
      “. . . Without listing all of the instances with respect to which there was no meeting of the minds, two examples will be cited. First, defendants claim that as part of said transaction, they (the defendants) acquired all of the furniture and appliances in plaintiffs’ home, and all of the farm and garden tools and equipment owned by plaintiffs. There is no bill of sale to that effect, and the deed is silent on that point; plaintiffs claim that said personal property was not part of the transaction. Second, defendants claim that plaintiffs reserved in the deed only the bare right to occupy the house, which is all the deed states, while the plaintiffs claim that they were to have the use and enjoyment of appurtenant yards, driveway and outbuildings.”


author: EMBRY, Justice.

text:
    Steven GUNNELLS v. David DETHRAGE, a Minor. Steven GUNNELLS v. Fred DETHRAGE.
    77-260, 77-261.
    Supreme Court of Alabama.
    Jan. 26, 1979.

      George M. Van Tassel, Jr., Birmingham, for appellant.
    Gus Colvin, Jr., Anniston, and David D. Wininger, Birmingham, for appellees.
   EMBRY, Justice.

These appeals present a question of first impression: Is a minor held' to an adult standard in determining whether his conduct while operating a motor vehicle is wilful or wanton? We hold he is.

Appellee, David Dethrage, a minor, filed his action against appellant, Steven Gun-nells, also a minor, to recover damages for personal injuries received while a passenger in an automobile driven by Gunnells. Deth-rage had accompanied Gunnells on a late night trip from Birmingham to Anniston. During the trip Gunnells fell asleep at the wheel, and the automobile left the road and struck a bridge abutment. Fred Dethrage, David’s father, also brought suit to recover for loss of services of his minor son and the medical expenses incurred on account of his son’s injuries. The eases were consolidated for trial, and the jury returned a verdict of $25,000 for David Dethrage and $5,000 for Fred Dethrage. Gunnells’ motions for new trial were overruled in each case and he appeals.

Gunnells contends the trial court committed reversible error by refusing to instruct the jury that, in determining whether Gun-nells’ conduct was willful or wanton, the standard by which he is judged is that reasonable to expect from children of like age, intelligence and experience.

We disagree.

The overwhelming majority of jurisdictions hold minors to an adult standard in determining whether their conduct while engaging in an adult activity is negligent. See e. g., Robinson v. Lindsay, 20 Wash.App. 207, 579 P.2d 398 (1978); Prosser, Law of Torts, § 32, pp. 156-57 (4th Ed.1971); Annot., 97 A.L.R.2d 872 (1964). The prevailing view is that a minor who enters upon an adult activity such as the operation of a motor vehicle must exercise a commensurate degree of responsibility. Motor vehicles are dangerous instrumentalities and public safety demands that all who operate them exercise the same degree of care and competency. We adopt this view.

Gunnells, and some authorities, maintain that a minor should not be held to an adult standard because he cannot, in fact, meet it. See Wittmeier v. Post, 78 S.D. 520, 105 N.W.2d 65 (1960). Assuming, arguendo, this to be true, it is of little consolation to the innocent victim of a minor’s negligent or wanton conduct. The victim usually cannot predetermine the age of drivers he encounters on the road in order to compensate for their minority.

This court in Tindell v. Guy, 243 Ala. 535, 10 So.2d 862 (1942), held a person using a highway has the right to assume, without facts warning him otherwise, that other persons using the public highway will do so in a lawful manner. There is no room on the highways for multiple standards of conduct.

Additionally, we see no distinction between those cases involving negligent conduct and those involving wanton or wilful conduct. The policy reasons for holding all motorists to the same standard remain applicable. See e. g., Wagner v. Shanks, 56 Del. 555, 194 A.2d 701 (1963); Nielson v. Brown, 232 Or. 426, 374 P.2d 896 (1962); Fuller v. Wiles, 151 Ind.App. 417, 280 N.E.2d 59 (1972).

Gunnells contends he should not be held to an adult standard because wantonness, unlike negligence, involves intent. Thus, he argues, if he is to be punished for his intent instead of his act, he should be judged by a standard reasonable to expect from children of like age, intelligence and experience.

This contention fails to accurately identify the crucial element of wantonness. It is not intent, but knowledge, which is crucial to wantonness. No intent to injure is necessary. Wantonness is the doing of some act or omission to do some act with reckless indifference to the knowledge that such act or omission will likely or probably result in injury. See Whaley v. Lawing, 352 So.2d 1090 (Ala.1977).

In determining whether a minor has knowledge of the circumstances and the probable consequences of his acts or omissions on the highways, he must be held to the same standard as all other users of the highways. Neither the licensing statute, § 32-6-1, Code 1975, nor the the guest statute, § 32-1-2, Code 1975, indicate there should be more than one standard. We will not now judicially recognize, or initiate, any lower standard.

Gunnells also contends the jury verdicts were not supported by the weight of the evidence. The verdicts, however, are presumed to be correct and we find nothing in the record to rebut that presumption. Gunnells testified he “might have had a little bit of drowsiness” and that the car had drifted over the center line and back just prior to the accident. There was also testimony by Greg Gossett, the ambulance driver, that Gunnells had told him he had dozed off two or three times before the accident. According to David Dethrage,. Gunnells told him he had run off the road two times prior to the wreck.

In Lankford v. Monk, 283 Ala. 24, 214 So.2d 301 (1968), this court held evidence of premonitory symptoms of sleep warranted submission to the jury the question of whether a defendant’s falling asleep at the wheel was wanton conduct. We hold the evidence of premonitory symptoms presented in these cases supports the verdicts of the jury.

The circuit court correctly charged the jury that a minor is held to an adult standard in determining whether his conduct while operating a motor vehicle is wilful or wanton. The jury’s verdicts finding Gunnells’ conduct to be wilful or wanton were supported by the weight of the evidence. The judgments of the circuit court must, therefore, be affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    SAM RAINE CONSTRUCTION CO., INC., an Alabama Corp. v. LAKEVIEW ESTATES, INC.
    77-335 & 77-607.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Clifford W. Hardy, Jr., Bessemer, for appellant.
    W. Gerald Stone, of Stone, Patton & Kierce, Bessemer, for appellee.
   SHORES, Justice.

Sam Raine Construction Co., Inc. (Raine) filed suit to enjoin Lakeview Estates, Inc. (Lakeview) from obstructing and thereby cutting off Raine’s access to its property on an allegedly public road.

Both sides filed motions for summary judgment with supporting affidavits. Raine supported its allegation that the road was a public road, either having been dedicated as such, or used by the public and kept up by the county for more than twenty years, thus becoming a public road by prescriptive use for more than twenty years.

Lakeview’s witness supported its assertion that the road was a private road.

The trial court granted summary judgment in favor of Lakeview and Raine appealed. We reverse.

There are at least two fact issues to be resolved in this case requiring reversal of the summary judgment. The evidence is in sharp conflict as to whether the road in controversy is a public road or a private road.

Lakeview argues that, even if it is, Raine has no standing to question its obstruction, contending that the obstruction of a public road constitutes a public nuisance and Raine has suffered no injury special to it and different from that suffered by the public generally. This, too; presents an issue of fact or perhaps a mixed question of law and fact. Raine has alleged in its complaint that it is denied access to its property by the obstruction. If that is found to be so, it clearly has standing to challenge the obstruction of this road, if the road is a public road.

As the successful moving party, on motion for summary judgment, Lakeview had the burden of negating the existence of any material issue of fact. This it clearly has not done. In fact, in brief, it asserts that the issue to be resolved in this controversy is whether the road is a public or private road. The facts determinative of a resolution of that issue must first be established in a trial.

As we have so frequently said, summary judgment is never proper if a genuine issue of fact remains in the case. Here, the central facts in the controversy remain.

During the course of this controversy, which is apparently heated on both sides, Lakeview filed a petition for preliminary injunction seeking to keep Raine from using the road to transport heavy machinery to its property. A physical altercation had occurred between the property owners in Lakeview Estates on one side and Raine’s personnel on the other. The trial court granted a preliminary injunction maintaining the status quo pending the outcome of the litigation, which had the effect of enjoining Raine from using the road until that time. Raine appealed this order within fourteen years days under ARAP 4(a)(1)(A). We affirm.

A trial court has wide discretion in acting upon a complaint seeking a temporary injunction. Watts v. Victory, 333 So.2d 560 (Ala.1976). Here, there was evidence of physical violence growing out of Raine’s attempts to use what Lakeview contends is a private road to which the public has no rights. Until Raine proves the allegations of its complaint and establishes its assertions that it has a right to use the road because it is a public road, the trial court cannot be said to have abused its discretion in enjoining Raine in its use pending the outcome of the litigation.

The order granting a preliminary injunction in favor of Lakeview (Case No. 77-335) is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

MADDOX, JONES, ALMON and BEAT-TY, JJ., concur.


text:
    Teri Lynn BYRD, a minor, etc. v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation. Brenda W. BYRD v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation.
    77-428, 77-428A.
    Supreme Court of Alabama.
    Jan. 26, 1979.

      H. Darden Williams and George L. Stevens, Jr., of Rutledge, Williams, Williams & Norton, Anniston, for appellants.
    John M. Milling, Jr. and Harry Cole, of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   MADDOX, Justice.

This appeal involves a dispute between the parties where there was uninsured motorist coverage provided by an insurance policy.

Curtis L. Byrd owned and operated an automobile, in which Brenda W. Byrd and Teri Lynn Byrd were passengers, when he struck a bridge support on Alabama Highway 202 in Calhoun County., He was killed; his wife, Brenda, and his daughter, Teri Lynn, the appellants, were severely injured.

At the time of the accident, there was in full force and effect an automobile liability insurance policy issued by appellee, Alabama Farm Bureau Mutual Casualty Insurance Company, to Curtis L. Byrd, which was applicable to the automobile which he operated at the time of the accident.

The trial judge granted the insurance company’s motion for a summary judgment and held that the appellants were precluded from recovery for their injuries under the uninsured motorist provisions of the policy. In effect, the trial court followed Lammers v. State Farm Mutual Automobile Insurance Co., 48 Ala.App. 36, 261 So.2d 757, cert. denied 288 Ala. 745, 261 So.2d 766 (1972). The appellants believe that the Lammers opinion is wrong and they urge this Court to overrule it.

Appellants contend that the term “uninsured motorist vehicle” as it appears in § 32-7-23, Code 1975, means a motor vehicle with respect to the use of which there is no bodily injury bond or insurance policy in a solvent company applicable at the time of the accident to compensate the injured person asserting coverage. They say that since they are excluded from coverage under the liability provisions of the policy, there was no bodily injury bond or insurance policy in a solvent company applicable at the time of the accident to compensate them for their injuries; therefore, Curtis L. Bryd was “an uninsured motorist,” and the vehicle which he operated was “an uninsured motor vehicle” within the language of § 32-7-23, Code. 1975.

The question presented on this appeal was decided in Lammers, supra. We affirm.

AFFIRMED.

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


text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO. et al. v. Joyce BILLUPS et al.
    77-509.
    Supreme Court of Alabama.
    Jan. 26, 1979.

      William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellants.
    Jack Clarke, of Henley & Clarke, North-port, for appellees.
   SHORES, Justice.

The facts out of which this case arose are set out in Billups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So.2d 1097, 1101 (Ala.1977). There we held:

“Restricting uninsured motorist coverage to occupants of an automobile only if the automobile is used with the express permission of the named insured is repugnant to the statutory requirements and the decisions of this court. Reading the statutory requirement into the policy, American Southern Insurance Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963), the policy must afford uninsured motorist coverage to the occu-. pants of the automobile if it was used with the express or implied permission of the named insured. Tit. 36, § 74(62); State Farm Automobile Ins. Co. v. Reaves, supra [292 Ala. 218, 292 So.2d 95 (1974)].

Because the trial court had not made a factual determination as to whether Jessie Silver, Jr. used the automobile with the implied permission of Lucille Conner or her husband, the case was remanded for that factual determination.

On remand, the trial court found, after a hearing, that:

“That on February 8, 1975, Jessie Silver, Jr., deceased, was driving a 1970 model Plymouth automobile, Motor Number 23NOG 192 H20, owned by Lucille Conner, and was involved in an accident in Jefferson County, Alabama, with an automobile being driven by one Henry Lee Moore, an uninsured motorist, and that said Jessie Silver, Jr. was driving said Plymouth automobile with the implied permission of Lucille Conner or her husband.”

State Farm appealed and argues that the trial court’s order should be reversed. We disagree and affirm.

In Pettis v. State Farm Mutual Automobile Ins. Co., 286 Ala. 344, 347, 239 So.2d 772, 775 (1970), we held:

“. . .in order to support an inference that one had implied permission to use the automobile of another for his own pleasure and purposes, there must be a course of conduct engaged in by the parties over a period of time prior to the use in question, or, if in the first instance, there must be particular circumstances, to justify an inference of implied permission. Alabama Farm Bureau Mutual Casualty Ins. Co. v. Robinson, 269 Ala. 346, 113 So.2d 140 [1959].”

In the instant case, the evidence shows that the automobile was supplied to young Conner by his parents for his use while attending college away from home. At the time of the accident, Conner and Silver were returning to the campus from Bessemer where they had gone to visit Conner’s girl friend. Conner asked Silver to drive because he was unfamiliar with the road and had, in fact, gotten lost on a previous trip to Bessemer.

While there was no evidence that the senior Conners had expressly granted permission for Silver to drive the automobile, there was evidence which would support a reasonable inference that he had their implied permission to do so on the occasion of the accident. They did not limit the use of the automobile by their son in anyway except to caution him to drive carefully. The father testified that the question of someone else driving the automobile never came up. Surely the trial court was justified in concluding that implied permission of the parents of Conner for his friend to drive the car could be inferred where there was evidence that he requested him to do so because he was unfamiliar with the road and did not like to drive on it at night.

Because there is evidence to support the conclusion reached by the trial court, its judgment is affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    ALABAMA PUBLIC SERVICE COMMISSION et al. v. REDWING CARRIERS, INC., and Fleet Transport Company, Inc.
    77-533.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Boyd Whigham, Clayton, for appellant, The Stacy Williams Co., Inc.

      Stanley W. Foy, Alabama Public Service Commission, and Frederick S. Middleton, III, and Ann Downing, Asst. Attys. Gen., Montgomery, for appellant Alabama Public Service Commission, Juanita W. McDaniel, Jim Zeigler and C. C. Whatley.
    J. Douglas Harris, Montgomery, for ap-pellees.
   JONES, Justice.

The scope of appellate review (both by the Circuit Court of Montgomery County and by the Supreme Court of Alabama) of Alabama Public Service Commission orders is statutorily prescribed: Section 37-1-124, Ala.Code 1975, provides in pertinent parts:

“The commission’s order shall be taken as prima facie just and reasonable. No new or, additional evidence may be introduced in the circuit court . . . but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that:
“(1) The commission erred to the prejudice of appellant’s substantial rights in its application of the law; or
“(2) The order, decision or award . was based upon a finding of facts contrary to the substantial weight of the evidence.”

Where the evidence is heard ore ten-us by a Hearing Examiner, the presumption of correctness normally accorded the Alabama Public Service Commission’s order will be accorded to the Examiner’s findings of fact; and, if it adopts the Hearing Examiner’s findings of fact, the APSC’s order is entitled to the same presumption. Southern Haulers, Inc. v. APSC, 331 So.2d 660 (Ala.1976).

This appeal, by The Stacy Williams Co., Inc., and the APSC, challenges an order of the Circuit Court of Montgomery County reversing the previous order of the Public Service Commission, which prior order granted a petition on behalf of The Stacy Williams Co. for a Certificate of Public Convenience and Necessity.

By application filed with the APSC, The Stacy Williams Co., Inc., a corporation, sought authority to institute a new operation as a common carrier by motor vehicle, in intrastate commerce over irregular routes, in the transportation of: Products of corn, cane, and beets, and blends of said commodities, in bulk, in tank vehicles, from the L&N Railroad siding on Morris Avenue, Birmingham, Alabama, to all points in Alabama.

Fleet Transportation Co., Inc., and Red-wing Carriers, Inc., filed protests. After an ore tenus hearing, an Examiner’s Report and Recommended Order was reviewed on the record by the Commission; whereupon, the Commission issued its order granting the application. Appellants aptly state the issue presented for review thusly:

“The Issue presented for review by this appeal is whether the APSC order dated December 12, 1977, granting Stacy’s application, is supported by competent, substantial evidence.”

The circuit court’s order recites, in pertinent part:

“1. . . . the Alabama Public Service Commission erred to the prejudice of Red Wing’s and Fleet’s substantial rights in its application of the law and [its order] was based upon a finding of facts contrary to the substantial weight of evidence.
“2. . . . the APSC erred in its failure to find from the evidence of record that Stacy did not meet the statutory criteria for the granting of a certificate of public convenience and necessity.”

Our task, then, is clear: According no presumption of correctness to the reversal order of the circuit court, we must review the record and ascertain whether, in our independent judgment, the APSC order is supported by competent, substantial evidence.

Initially, we observe that our review is not a standardless one. Section 37-3-11, Ala.Code 1975, furnishes the following yardstick:

a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing and able to properly perform the service proposed and to conform with the provisions of this chapter and requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the certificate is or will be required by the present or future public convenience and necessity; otherwise, such application shall be denied .
“(b) Before granting a certificate to a common carrier by motor vehicle, the commission shall, among other things, consider the following:
“(1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs;
“(2) The financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year around; and
“(3) The advantages to the public of the proposed service.”

After careful review of the record, applying the statutory standard, we are convinced that the order of the APSC is amply supported by credible, competent and substantial evidence; accordingly, we reverse the order of the circuit court and affirm the order of the APSC.

A detailed recital of the evidentiary basis for the APSC order would serve no useful purpose. Suffice it to say that, in addition to its own oral testimony, The Stacy Williams Company’s application was supported by six witnesses, representing shippers, freight recipients, and dissatisfied receivers of current service in the specifically related industry. The applicant was first approached by a shipper about obtaining an additional qualified hauler because of problems with its current truck transportation— presently furnished by one of the instant protestants.

The record is replete with evidence of applicant’s qualifications. The Stacy Williams Co. is currently operating as a private motor carrier; has had extensive experience in the hauling of commodities involved' in this application (blends of sweetening substance from corn, cane, and beets); presently owns two highway tractors and proposes to purchase two or three appropriate 4,000 gallon stainless steel trailers; and has total assets of about $3,000,000 with retained earnings of $1,700,000. Indeed, so abundant is the evidence of record of applicant’s fitness, willingness, and ability to properly perform and comply with applicable regulations of the commission; of the lack of existing transportation service to meet reasonable public needs; and the public advantages of the proposed service, that a denial of the applicant’s certificate would have been against the great weight of the evidence.

The judgment of the circuit court is reversed and the cause is remanded to the circuit court with directions to enter a judgment affirming the order of the Alabama Public Service Commission.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The statute is equally applicable to review by the Supreme Court of Alabama. See Illinois Central R. Co. v. Thomas Alabama Kaolin Co., 275 Ala. 236, 153 So.2d 794 (1963).


author: BEATTY, Justice.

text:
    ETERNAL REST CEMETERY CORPORATION v. Sherman PUGH, Sr., et ux.
    77-532.
    Supreme Court of Alabama.
    Jan. 26, 1979.

      Von G. Memory, Montgomery, for appellant.
    Anne M. Weiss, Montgomery, for appel-lees.
   BEATTY, Justice.

The defendant, Eternal Rest Cemetery Corporation, appeals from a judgment in favor of the plaintiffs based upon a jury verdict awarding compensatory and punitive damages and from the denial of its motion for a new trial. We reverse and remand.

Following the death of their son the plaintiffs purchased a cemetery lot from the defendant. Interment occurred several days later. A stone marker was ordered for the site. When it arrived approximately one year later the defendant’s manager learned that a mistake had been made in the interment, the result being that the decedent had been buried in the wrong location. The manager had the remains relocated to the correct plot. Subsequently the plaintiffs learned of the relocation and brought this action. The complaint alleged a wanton trespass proximately resulting in loss of sleep, loss of weight, physical and nervous distress, and great mental anguish. Compensatory and punitive damages were demanded. Thereafter the plaintiffs sought, and the trial court granted, a disinterment of the body. Thereafter the complaint. was amended to add the following allegation:

6. As a further proximate result of said trespass, the top of the vault containing the body of the deceased was cracked, allowing water to enter the vault. Further, the marker ordered by the plaintiffs for the grave of their deceased son was placed on the grave in such a manner that the head of the marker was at the foot of the body.

At the conclusion of the trial the case was submitted to the jury which awarded the plaintiffs $15,000.00 compensatory and $5,000.00 punitive damages. The defendant’s motion for a new trial was denied.

The defendant has presented several issues for our review, the first of which deals with lost earnings as an element of the damages. The issue is highlighted by the trial court’s oral instruction to the jury, viz:

Now, the law says also — there is some evidence as to loss of earnings in this case. The law says this as to determining the amount of damages for loss of earnings, you should consider any evidence of the plaintiff’s earning capacity, his earning, the manner in which he ordinarily occupied his time before the injury, his inability to pursue his occupation, and determine what he was reasonably certain to have earned during the time so lost had he not been disabled, (emphasis added)

The defendant objected to this charge on the ground that there was no proof of lost earnings.

The defendant’s argument on this issue is threefold. First, it maintains that although required to be specially pleaded, lost earnings were not alleged in either the original complaint or its amendment. Second, it asserts that there was insufficient evidence of lost earnings of Mr. Pugh, the father of the decedent. Third, it contends that there was no evidence of lost earnings on the part of the co-plaintiff, Mrs. Pugh, mother of the decedent.

Of course, the general rule is that special damages must be pleaded specially, Crommelin v. Montgomery Independent Telecasters, Inc., 280 Ala. 391, 194 So.2d 548 (1967), the reason being that because of their nature they do not necessarily result from the wrongful act (trespass here), and the defendant would not otherwise have notice of their occurrence and an opportunity to defend against them. Waters v. Weintraub, 255 Ala. 530, 52 So.2d 510 (1951). This general rule has been continued in the Alabama Rules of Civil Procedure, Rule 9(g). The only pleading question before us, then, is whether the plaintiffs’ allegations met that requirement.

We note that in Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403 (1927), a complaint which alleged that the plaintiff was “ ‘permanently injured and * * * his nervous system was greatly shocked and impaired * * * and [he] was made permanently sick and ill.’ . .” was sufficient on which to imply an impairment of earning capacity. That Court quoted 17 C.J. 1015, § 313 with approval:

Where the injury alleged will necessarily render a person less capable of performing his usual business duties in the future, proof of the impairment of his general earning capacity may ordinarily be given under the general allegation of the injury, and damages resulting therefrom, such as the inability to attend to his ordinary business, without a special averment that plaintiff will be unable to earn as much in the future as in the past,

A similar statement may be found in 22 Am.Jur.2d, § 282 at 379. And cf. Nashville, C. & St. L. Ry. Co. v. Miller, 120 Ga. 453, 47 S.E. 959 (1904) in which the court held that a distinct claim for damages on account of lost time was unnecessary when the complaint alleged it in a general way.

These statements accord with the permitted liberality of allegations under the rules. Under Rule 9(g), ARCP less particularity is required in pleading a prima facie case than when special damages are an essential element. Committee Comments; 2A Moore's Fed.Prac. § 9.08. Thus in this case the complaint alleged “loss of sleep, loss of weight, physical and nervous distress and great mental anguish.” It should be noted that the allegations in Cleveland, supra, i. e., “permanently injured” and “nervous system was greatly shocked,” etc. were held sufficient to allow proof of impaired earning capacity. Under that precedent it is not unreasonable to hold that “loss of sleep” and “physical and nervous distress and great mental anguish” would authorize proof of loss of earnings. Indeed, if the “permanent impairment of the power to earn money is an incident to a permanent injury . . ." Cleveland, supra 216 Ala. at 459, 113 So. 406, then the temporary impairment of that power is an incident to a temporary injury. Thus those allegations are the equivalent of an allegation of an inability to attend to one’s ordinary business, including lost earnings in that business. Therefore the defendant’s contention questioning the failure of the complaint to allege the lost earnings as special damages is not well taken.

However, the defendant’s argument regarding the insufficiency of the evidence of lost earnings has merit.

The long-established principle on proof of lost earnings is that such an allegation must be supported by some specific proof which will allow a reasonably accurate finding. To be sure, there have been some variations in expressions of the rule, but the requirement nevertheless is the same. In L. & N. R. Co. v. Elliott, 166 Ala. 419, 52 So. 28 (1909) an employee sued his employer on the theory of negligence, and after a judgment for the plaintiff, the defendant appealed on the ground that the following jury charge was erroneous:

‘The court charges the jury that, if they find for the plaintiff, they should give him such damages as will compensate him for all the earnings which the evidence shows he lost by his injuries, . . .’

In holding this instruction proper, this Court stated:

The amount of earnings actually lost by the plaintiff was capable of exact proof, and the charges were not defective by the omission of the word ‘reasonably’ before ‘compensate.’ .

To the same effect is the decision in Gray v. Cooper, 216 Ala. 684, 114 So. 139 (1927) in which a pedestrian allegedly struck by the defendant’s automobile claimed lost time from his work, i. e., lost earnings. This Court’s references to a refused jury charge requested by the defendant are especially pertinent in view of similarities in the evidence in that case with those in this case:

Refused charge B, as follows: ‘If you believe the evidence, you cannot award the plaintiff more than nominal damages for loss of time from his business or occupation due to his injury’ — should have been given. The fact that plaintiff testified that he conducted the business as a furniture dealer; was the ‘only employee in the concern’; his duties required him to handle furniture; that he had not been able to go back to work; and indicated the time or duration of his absence, was not a compliance with the requirement for specific data on which to rest damages causing him to ‘lose time from his work,’ . . . . (emphasis added)

The defendant has also cited us to the case of Walker County v. Davis, 221 Ala. 195, 128 So. 144 (1930) for another application of that principle. The plaintiffs, however, contend that the Davis decision is inapposite because, there having been no evidence which would have justified the conclusion “that any substantial amount for lost time may have been included in the verdict,” we must conclude that the jury’s verdict here included only nominal damages on the issue of lost earnings. That interpretation of the decision, we respectfully suggest, is incorrect. The court in Davis was discussing the implications which followed from a refusal to instruct the jury on loss of wages (“The refused charges 13 and 14 would exclude a recovery of nominal damages for such lost time.” Ibid. 221 Ala. at 199, 128 So. at 148) (emphasis added). The plaintiff in that case, a farmer, testified that he had tried to work since his injury but “could not do any work much since then.” A physician established the plaintiff’s permanent injury. It was at that point that this Court commented that there was no evidence “to show whether or to what extent” the plaintiff’s lost time justified his recovery of substantial damages. “To justify the recovery of a substantial sum for lost time,” the Court stated, “there must be evidence from which an amount may be ascertained upon some reasonable basis.” Ibid. Then the Court contrasted the Davis case with Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1928) which dealt with a refused charge similar to that refused in the Davis case. The difference in the two cases, as the Court noted, was that in Mackintosh the plaintiff did show what his salary was, and established his lost time, “but did not show that his wages were not paid” (and therefore were lost). This would have entitled the plaintiff to nominal damages, the Court concluded, but the defendant was entitled to a remittitur because under the evidence the jury could have included the unpaid salary in their verdict for lost time, and therefore the defendant sustained a substantial injury when the trial court refused the requested charge prohibiting a recovery for lost wages. The Court carefully noted a distinction between cases involving impaired earning capacity on the one hand, and those concerning lost time on the other, a distinction we need not address here. The effect of its holding is clear, however. Nominal damages were held to be the limit of recovery for lost time “when the evidence does not furnish data by which to measure accurately the amount of the loss . . Therefore, the Davis court concluded that it was not prejudicial error to refuse a charge prohibiting the recovery of nominal damages when they may be recovered under the pleading and evidence.

The distinction between this case and Davis begins and ends with the fact that in the instant ease the trial court charged the jury “. . . there is some evidence as to loss of earnings in this case .” and added, as we have quoted earlier, the authority to find “what he was reasonably certain to have earned during the time so lost had he not been disabled.” Thus the trial court authorized the jury to find more than nominal damages based upon evidence which was not introduced. There was no evidence introduced either to show that the co-plaintiff, Mrs. Pugh, worked at gainful employment or lost earnings following this incident. On the part of the co-plaintiff, Mr. Pugh, there was evidence that he was in business for himself operating a small garage as an auto mechanic, that he always tried to make his business grow and that it was not growing but was backing up. That is the evidence upon which the jury was authorized to find lost earnings claimed by both plaintiffs. This evidence failed to establish any reasonably specific data upon which to rest an award of damages on account of lost earnings. Cf. Fitzpatrick v. Dean, 278 Ala. 284, 177 So.2d 909 (1965).

Having reached that conclusion on this issue, we need not address ourselves to other issues raised by the defendant.

REVERSED AND REMANDED.

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


text:
    Zela Mae SLEDGE and George D. Sledge v. Jean CARMICHAEL and Archie H. Carmichael, III.
    77-662.
    Supreme Court of Alabama.
    Jan. 26, 1979.

      Emmett N. Roden and J. Douglas Evans, Florence, for appellants.
    Ralph H. Ford and John 0. Cates, Huntsville, for appellees.
   JONES, Justice.

Zela Mae Sledge and her husband, George D. Sledge, the Plaintiffs/Appellants in this case, appeal from a directed verdict and judgment thereon in favor of Dr. and Mrs. Carmichael, the Defendants/Appellees. This case arose when Zela Mae Sledge fell from the back porch of the Carmichael home.

On Christmas Eve of 1976, Mrs. Sledge went to the Carmichaels’ home to work as a domestic employee at a party being given by the Carmichaels. Mrs. Sledge arrived between 6 and 7 p. m. It was dark and she entered the Carmichael’s home through the back door. To get to the door, Mrs. Sledge had to walk up four steps and across a back porch leading to the door. Mrs. Sledge testified that the back porch light was on at this time, but dim. The back porch and the steps leading up to the porch are made of brick.

After working for approximately four hours, Mrs. Sledge started to leave the Car-michaels’ home through the back door through which she entered. The light was still on, according to Mrs. Sledge’s testimony, but, after crossing the porch, she missed the steps entirely, causing her to fall approximately two feet and resulting in injury to her leg.

There is no evidence that the steps or back porch are defective in any way. Plaintiffs’ Exhibit 1, a photograph of the back porch and steps leading up to the porch, shows a well-constructed brick porch with four brick steps leading to the porch. The light fixture is typical of those used for lighting of porches and steps leading to a porch. Mrs. Sledge admits that the light was on when she left the home and that the lighting conditions were essentially the same on her departure as when she had arrived earlier in the evening.

In the recent case of Tice v. Tice, 361 So.2d 1051 (Ala.1978), this Court reiterated the standard of care owed to an invitee. In Tice, summary judgment was granted in favor of the defendant in a lawsuit brought by the defendant’s mother, who was employed by the defendant as a babysitter. The only evidence in that case was that the plaintiff had fallen in the defendant’s yard and that toys had been left in the yard on various occasions. Although the plaintiff thought she must have tripped over a toy, she could not say for certain that this was the cause of her fall. On the facts in Tice, we affirmed the granting of summary judgment.

In the present case, the Plaintiffs present no more evidence of negligence on the part of the Carmichaels than that presented by the plaintiff in Tice. On the authority of Tice, this case is due to be and is affirmed.

AFFIRMED.

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


text:
    Walter Harold TUBBS et al. v. Mary C. BRANDON et al.
    77-668.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Robert L. Hodges of Campbell & Hodges, Scottsboro, for appellants.
    James S. McGinty, Scottsboro, for appel-lees.
   BEATTY, Justice.

This is an appeal from a judgment enjoining the owners of a building lot from violating a restrictive covenant applicable to that lot. The appeal is dismissed ex mero motu.

The original action was initiated by twenty-seven plaintiffs owning real estate in a Scottsboro residential subdivision, the lots in which were subject to restrictive covenants of record in the office of the probate judge of Jackson County. While these were in force the defendants, Walter and Sara Tubbs, purchased one of the lots by a deed which was specifically subject to those covenants. One of the covenants prohibited buildings or structures from being located within 40 feet of any street right-of-way line. The plaintiffs brought this action alleging that the defendants had knowingly commenced the construction of a house on their lot in violation of this minimum building line.

In their answer the defendants admitted their violation but denied therein the “extent,” and also defended, inter alia, on the grounds of abandonment, acquiescence and laches. Then by way of counterclaim the defendants alleged that this same building line restriction had been violated by eight of the plaintiffs and prayed for injunctive relief against those parties.

Without attempting to describe the evidence, in view of the decision we are compelled to reach, it will suffice to state that the trial court enjoined the location of the defendants’ structure within the minimum building line. However, the trial court did not adjudicate the alleged violations of this restriction by other owners, although it did consider them in relation to the violation of the defendants for any effect their violation might have had upon the character of the neighborhood. Thus we have before us a multiple party action and multiple claims for relief (by way of counterclaim). Under Rule 54(b), ARCP, in such a case any decision adjudicating

fewer than all of the claims or . liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

This means that the order is not a final order which will support an appeal. The rule does provide an exception:

[T]he court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . . (emphasis added)

Unfortunately, and as the defendants concede in brief that exception was not complied with in this case. When it is determined that an order appealed from is not a final judgment it is our duty to dismiss the appeal ex mero motu. Chambers v. Chambers, 356 So.2d 634 (Ala.1978); Simpson v. First Alabama Bank of Montgomery, 345 So.2d 292 (Ala.1977); Powell v. Republic Nat. Life Ins. Co., 293 Ala. 101, 300 So.2d 359 (1974).

APPEAL DISMISSED.

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


text:
    Marvin K. SPEIGNER v. George C. WALLACE, as Governor of Alabama and Commander in Chief, Alabama National Guard, and Henry B. Gray, III, as Adjutant General of the State of Alabama.
    78-153.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Calvin M. Whitesell, Montgomery, for appellant.
    Maury D. Smith, Charles M. Crook, David R. Boyd, Montgomery, for appellees.
   JONES, Justice.

Appellant, Marvin K. Speigner, filed his complaint, which included a request for a temporary restraining order, enjoining the Defendants, pending final hearing, from removing him from his position with the Alabama National Guard. The trial Court issued such temporary restraining order ex parte. A hearing was set to determine whether the temporary restraining order should be dissolved or whether Speigner was entitled to the protection of a preliminary injunction. At the conclusion of the hearing, the trial Court entered its order on July 14, 1978, denying Speigner a preliminary injunction and dissolving the temporary restraining order. From this interlocutory order, Speigner filed notice of appeal 28 days later, on August 11, 1978.

Rule 4(a)(1), ARAP, reads:

“ . . .In appeals from the following orders or judgments, such notice of appeal shall be filed within 14 days (2 weeks) of the date of the entry of the order or judgment appealed from: (A) any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an injunction . . .

For the failure of Appellant to comply with the 14-day period prescribed by the above Rule, this appeal is dismissed ex mero motu.

APPEAL DISMISSED.

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


author: BRADLEY, Judge.

text:
    BOARD OF ZONING ADJUSTMENT OF HUEYTOWN, Alabama v. Robert WARREN, Beulah Warren, Jessie L. Wyatt, Estelle Wyatt, and Raymond Walker.
    Civ. 1370.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1978.
    Rehearing Denied March 30, 1978.

      S. Allen Baker, Jr., of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    H. Powell Lipscomb, III, Bessemer, for appellees.
   BRADLEY, Judge.

This appeal is from a judgment of the Circuit Court of Jefferson County, Bessemer Division, denying a use variance request by Alabama Power Company to remodel and expand its electrical substation in Hueytown, Alabama.

These proceedings commenced when Alabama Power Company applied to the Huey-town Board of Zoning Adjustment for a variance to its zoning ordinance so that Alabama Power might enlarge an electrical substation that it had maintained on a parcel of property since 1948. After several hearings the Zoning Board granted the application for a variance to the zoning ordinance for the enlargement of the electrical substation. Several landowners who lived adjacent to or near the substation appealed the decision to the circuit court. The landowners’ (Robert and Beulah Warren, Jessie and Estelle Wyatt, and Raymond Walker) appeal was tried de novo before the court and a jury. After the presentation of evidence by both sides, the jury returned a verdict denying the request for a variance. Prom that verdict and judgment thereon and the denial of the motion for new trial, the Zoning Board appeals.

The evidence shows that Alabama Power owns and operates an electrical substation on a parcel of property in an area of Huey-town zoned for residential purposes. This substation was in operation prior to the enactment of the present zoning ordinance. Moreover, the zoning ordinance permits a “public utility structure(s), such as electrical substation(s)” in R-2 residential zones. Nevertheless, Alabama Power specifically sought a variance so that it might remodel and enlarge the substation in order to furnish expanded service to its customers even though permitted uses were authorized in the R-2 residential zone.

The landowners offered evidence showing that an enlargement or expansion of the substation would have a detrimental effect on the value of their property. Further, the landowners were concerned about the noise that would be emitted by the transformers in the substation. Moreover, the landowners expressed concern for the safety of the people occupying the property surrounding the substation. They testified to instances of transformers exploding and wires falling and arcing between the substation and Booklane Drive. There was also testimony that there were other lots available in Hueytown which would be more suitable to Alabama Power’s needs and less harmful to the surrounding property owners. The Power Company disputed the availability of other suitable lots for the expanded substation.

The first issue we will consider is the Zoning Board’s contention that the trial court committed reversible error in refusing to allow the introduction into evidence of the transcript of proceedings made before the Board at the original hearing.

Title 37, section 783, Code of Alabama 1940 (Recomp.1958) (currently found in Title 11, chapter 52, section 81, Code of Alabama 1975) provides that:

“Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo.”

The de novo hearing provided for in section 783 envisions an entirely new hearing before the circuit court in matters involving a use variance application. The circuit court sits as the Board of Zoning Adjustment and proceeds as if no hearing has ever been held. And, as a consequence, the applicant for a use variance has the burden of proving again its need for the variance.

In view of the type proceedings to be had in the circuit court, we are unable to perceive the efficacy of certifying the transcript of the Hueytown Board of Zoning Adjustment proceedings to the circuit court other than to permit a better understanding of the issues before the circuit court. Former Chief Justice Heflin commented in Fulmer v. Board of Zoning Adjustment, 286 Ala. 667, 244 So.2d 797 (1971) that:

“. . . [0]ne of the reasons for the requirement that a transcript of the proceedings before said board be certified to the court is to inform the court of the issues involved.”

In our view, this is the only real function of the statutory requirement that the transcript be certified to the circuit court, j. e. to delineate the issues before the circuit court. Furthermore, we are convinced, that the transcript would have no evidentiary value in view of the de novo type hearing to be conducted in the circuit court. In the instant case the circuit court was adequately apprised of the nature of the proceeding before it. It also heard testimony and accepted other evidence from the plaintiffs and defendants in accordance with a de novo hearing. Consequently, the parties cannot complain that the court was not aware of the issue to be tried nor that they did not have the opportunity to present evidence to support their contentions. Accordingly, the circuit court will not be held in error for refusing to admit the transcript of the proceedings before the Board of Zoning Adjustment into evidence during the hearing before the circuit court since it has not been shown that the Power Company was prejudiced by the circuit court’s action.

The next argument advanced by the Board concerns its claim that the trial court erred by giving to the jury the following written requested charges:

“4. The Court charges the jury that to grant to Alabama Power Company a variance you must find that the design of structures and facilities on the substation site conform as closely as possible to the character of the area or neighborhood, so that the facilities or structure will not adversely affect the safe and comfortable enjoyment of nearby properties or adversely affect the value of such property.”
“6. The Court charges you that public necessity is not shown by mere proof that the location is appropriate and the need for installation is great, or that the location which has been selected would enable one to provide cheaper service or is more economically feasible, but.it must be demonstrated that the proposed need is necessary to enable one to render both safe and adequate service and that no alternative site is available which would be less disruptive of the community’s zoning plans.”
“10. The Court charges you the jury that before you can grant Alabama Power the variance that Alabama Power has applied for you must be reasonably satisfied from the evidence that the [proposed] site is necessary to enable a company to render safe and adequate service, and that no alternative sites are available which could be used with less disruption of the community’s zoning plan.”

Title 37, section 781, Code of Alabama 1940 (Recomp.1958) (currently found in Title 11, chapter 52, section 80, Code of Alabama 1975) gives to boards of zoning adjustment the power:

“. . . to authorize ... in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done. . . ”

As can be seen from section 781, the criteria used in deciding whether a variance should be granted depends on whether the denial of the variance will cause the person seeking it undue hardship. An examination of the three disputed charges demonstrates that each is related to and involves to some extent a determination of whether the Power Company would suffer undue hardship in the event that its application for a variance was denied.

In their brief the landowners suggest that the Board is not really complaining about the correctness of the law contained in these instructions, but is, in fact, saying that the trial court should not have instructed the jury on use variances since the Power Company’s application actually involved the law of special uses.

The Power Company’s reliance on the law of special uses was apparently premised on the fact that the Hueytown zoning ordinance allows the granting of special or permissible uses by the Zoning Board. And the standards or criteria for the issuance of special or permissible uses are generally less stringent than those applied in the case of a variance.

However, an examination of the record in this case indicates that the Power Company applied for a variance rather than a special use. In fact, we are convinced that from beginning to end the proceedings below were conducted by the parties and the trial court on the premise that a variance had been requested. Moreover, despite the fact that at the conclusion of the trial court’s oral charge, counsel for the Board objected to the court’s instructions on the law of variances and pointed out that it had requested instructions relating to the granting of special permits by the Zoning Board, we are not persuaded that the instructions of the trial court regarding standards applicable to variance law were in error. Indeed, the trial court gave a number of written instructions which the Board (or the Power Company) had submitted and which pertained to permits for special uses. And although the court took such action at the request of the Board (or the Power Company), we should note that the written charges submitted by those parties did not attempt to delineate or distinguish the legal aspects of variance law from that of special uses. Nor did their requested instructions offer sufficient information to have enabled the jury to find that the Power Company was seeking a special use rather than a variance.

In view of the theory of the case adopted and followed by the parties and trial court throughout the de novo proceedings, we cannot, at this late date, say that the trial court erred in giving to the jury the above enumerated charges on variances. To have changed the theory of the case at the stage of the proceedings when the jury was receiving its instructions would have caused actual prejudice to the opposing party (landowners) and have so confused the issue for the members of the jury that a proper verdict could not have been rendered. See Rule 15, ARCP and committee comments thereto. We find no error in the giving of the charges in question.

The Board also contends that the trial court erred in admitting into evidence certain photographs and testimony relevant to the availability of alternate sites which could be used for the purpose of building an entirely new substation. The landowners reply that such evidence was admissible to prove an essential element of the variance issue, i. e. that before it can be determined if unnecessary hardship would result to an applicant for a variance, the issuing authority must be convinced that no satisfactory alternate sites are available.

Again the question is whether the evidence presented was relevant to the issue being tried. As previously stated, the issue or theory on which this case was tried was that of a variance and the evidence regarding alternate sites pertained to the question of whether the denial of a variance would work an unnecessary hardship on the Power Company. In keeping with the theory of the case, we can perceive no error on the part of the trial court in admitting into evidence the photographs and testimony alluded to above.

The remaining issues argued by the Board in its brief appear to this court to be a request that we placed the trial judge in error for refusing to change the theory of the case from one of variance to one involving a permissible or special use.

As stated before, it is clear to this court that the case here was tried below as a variance and not as an application seeking a special or permissible use. In this posture we cannot now say that the trial court erred because it refused to substitute one theory of law for another theory of law on the ground that the case was tried according to principles applicable to the latter. Should we accede to such a request, we would be reviewing the case on a theory different from that on which it was tried. This we cannot do. See Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974); M. C. Dixon Lumber Co, v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972).

In the absence of reversible error, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    In re BOARD OF ZONING ADJUSTMENT OF HUEYTOWN, Alabama v. Robert WARREN et al. Ex parte BOARD OF ZONING ADJUSTMENT OF HUEYTOWN, Alabama.
    No. 77-453.
    Supreme Court of Alabama.
    Jan. 5, 1979.

      S. Allen Baker, Jr., of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for petitioner.
    E. L. Brobston, H. Powell Lipscomb, III, Bessemer, for respondents.
   MADDOX, Justice.

We granted certiorari to review the action of the Court of Civil Appeals in affirming a judgment of the Circuit Court of Jefferson County, Bessemer Division, which denied what the court had treated as a use variance request by Alabama Power Company to expand an electrical substation in Hueytown.

The facts are fully set out in the opinion of the Court of Civil Appeals, but we restate a few of the pertinent facts here. Alabama Power Company had owned and operated the electrical substation on the subject property since 1948, in an area of Hueytown zoned R-2. The city Zoning ordinance permitted a public utility structure and specifically an electrical substation to be located in an area zoned R-2. Nevertheless, as the Court of Civil Appeals noted, it appears that Alabama Power specifically requested from the Hueytown Board of Zoning Adjustment permission to enlarge the substation. After several hearings, and visiting the site of the substation, the Zoning Board granted its “permission to remodel and enlarge the substation.”

Several landowners owning real estate adjacent to the substation were displeased with the decision of the Zoning Board, and appealed to the circuit court.

At trial, Alabama Power’s application was treated as a request for a use variance. Evidence was taken from the aggrieved landowners and from Alabama Power’s representatives.

The jury returned a verdict in favor of the landowners and from the judgment rendered thereon the Zoning Board appealed to the Court of Civil Appeals. That court affirmed.

It appears, and the Court of Civil Appeals found, that in the circuit court the parties and the court proceeded under the theory that Alabama Power was seeking a variance to the zoning restrictions and not making application for a building permit. The distinction is in the test to be applied in determining whether either a variance or permit is granted. Under the applicable zoning ordinances, it is incumbent upon the party seeking a variance to show that its denial would cause “undue hardship,” while in applying for a building permit, the applicant need only show that the building is “reasonably necessary for the public convenience or welfare.” The burden upon the applicant is undeniably higher when seeking a variance.

The Court of Civil Appeals held, in part:

“The first issue we will consider is the Zoning Board's contention that the trial court committed reversible error in refusing to allow the introduction into evidence of the transcript of proceedings made before the Board at the original hearing.
“Title 37, section 783, Code of Alabama 1940 (Recomp.1958) (currently found in Title 11, chapter 52, section 81, Code of Alabama 1975) provides that:
“ ‘Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo.’
The de novo hearing provided for in section 783 envisions an entirely new hearing before the circuit court in matters involving a use variance application. The circuit court sits as the Board of Zoning Adjustment and proceeds as if no hearing has ever been held. And, as a consequence, the applicant for a use variance has the burden of proving again its need for the variance.
“In view of the type proceedings to be had in the circuit court, we are unable to perceive the efficacy of certifying the transcript of the Hueytown Board of Zoning Adjustment proceedings to the circuit court other than to permit a better understanding of the issues before the circuit court. Former Chief Justice Heflin commented in Fulmer v. Board of Zoning Adjustment, 286 Ala. 667, 244 So.2d 797 (1971) that:
“ ‘ . . . [0]ne of the reasons for the requirement that a transcript of the proceedings before said board be certified to the court is to inform the court of the issues involved.’
In our view, this is the only real function of the statutory requirement that the transcript be certified to the circuit court, i. e. to delineate the issues before the circuit court. Furthermore, we are convinced that the transcript would have no evidentiary value in view of the de novo type hearing to be conducted in the circuit court. In the instant case the circuit court was adequately apprised of the nature of the proceeding before it. It also heard testimony and accepted other evidence from the plaintiffs and defendants in accordance with a de novo hearing. Consequently, the parties cannot complain that the court was not aware of the issue to be tried nor that they did not have the opportunity to present evidence to support their contentions. Accordingly, the circuit court will not be held in error for refusing to admit the transcript of the proceedings before the Board of Zoning Adjustment into evidence during the hearing before the circuit court since it has not been shown that the Power Company was prejudiced by the circuit court’s action.”

The Court of Civil Appeals is correct in holding that the trial de novo should proceed on the same issues raised in the proceeding before the Board of Zoning Adjustment, and it is correct in holding that “ . . . one of the reasons for the requirement that a transcript of the proceedings before said board be certified to the court is to inform the court of the issues involved.”

The critical question, therefore, is: “what issues were actually presented to the Board of Zoning Adjustment?” The parties disagree vigorously about the answer to this question. The Board of Zoning Adjustment says that it treated Alabama Power’s application to expand and remodel this substation as an application for a building permit. The trial court and the Court of Civil Appeals obviously treated the application as one for a variance.

The nature of the proceeding before the board is critical because under the old Title 37, Section 783, Code of Ala.1940, (Re-comp.1958) [§ 11-52-81 Code of Ala.1975], an appeal to the circuit court contemplated a trial de novo, where the judge or jury, if one is demanded, sat as a Zoning Board and “ . . . the scope of inquiry is the same as that before the board of zoning adjustment from which the adverse decision was appealed.” [Emphasis added.] City of Mobile v. Cunningham, 46 Ala.App. 461, 243 So.2d 723 (1971); Southern Rock Products Co. v. Board of Zoning Adjustment of City of Trussville, 282 Ala. 186, 210 So.2d 419 (1968); Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). In Nelson v. Donaldson, supra, the court said, at page 80, 50 So.2d at page 248:

“The inquiry in the circuit court is neither enlarged nor diminished by appeal. The scope of inquiry on appeal is the same as before the board of adjustment, though the circuit court is a court of general jurisdiction. In other words, under our statute the authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the board of adjustment by § 781, Title 37, Code 1940.” [Cites omitted] [emphasis added].

It is undisputed that what the Power Company wanted to do was to enlarge and remodel its substation and that the Board of Zoning Adjustment granted it permission to do so. It is also undisputed that a substation was a permitted use in a R-2 zone.

The Court of Civil Appeals’ finding that “the proceedings below were conducted by the parties and the trial court on the premise that a variance had been requested” must, of necessity, refer only to the de novo proceedings. That is so, because the evidence of what was before the Board of Zoning Adjustment was excludéd from evidence.

In any event, the de novo hearing must proceed as authorized by statute. The circuit court is without jurisdiction to try issues not raised before the board. Nelson v. Donaldson, supra.

We do not make a finding relative to what issue was actually presented in the proceedings before the Board of Zoning Adjustment, but we would point out that it would appear to be unnecessary to require a zoning variance if a use did not violate a permitted use.

The Board of Zoning Adjustment strongly insists that the proceeding before it was for a special use, not a variance. The Board’s attempt to get a verified copy of the proceedings before the trial court were frustrated. The Board’s attempt to limit the jury’s consideration to the “special use” issue was fruitless.

We do not hold that the issue before the Board of Zoning Adjustment was as contended by it. We do hold that a circuit court is without power to change the issue on appeal de novo.

One of the reasons our statute requires a certified copy of the proceedings before the Board to be filed is to allow the circuit court to frame the issues on appeal de novo. This was not done in this case, and because it was not done, the parties are still in disagreement.

Under Rule 16, ARCP, the parties should be able to stipulate what issues were presented to the Board. If they cannot resolve that question, then the trial court should make a finding, based on the certified copy of the proceedings before the Board, what the real issue was.

The judgment of the Court of Civil Appeals is reversed and remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.


text:
    BOARD OF ZONING ADJUSTMENT OF HUEYTOWN, Alabama v. Robert WARREN, Beulah Warren, Jessie L. Wyatt, Estelle Wyatt, and Raymond Walker.
    Civ. 1370.
    Court of Civil Appeals of Alabama.
    Jan. 31, 1979.
   On Remand from Supreme Court

BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama [366 So.2d 1125] it is considered that this cause should be reversed and remanded to the Circuit Court of Jefferson County, Bessemer Division, for entry of a judgment not inconsistent with the opinion of the Supreme Court of Alabama rendered in this matter on January 5, 1979.

REVERSED AND REMANDED.

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


text:
    Lawrence GARRISON v. Eldred C. DOTHARD, Director, Department of Public Safety, State of Alabama.
    Civ. 1639.
    Court of Civil Appeals of Alabama.
    Jan. 31, 1979.

      David L. Thomas, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

This appeal comes from an order of the Circuit Court of Madison County upholding, in effect, the order of the Director of Public Safety suspending the driver license of Lawrence Garrison for Garrison’s refusal to submit to a chemical test to determine the extent of his intoxication.

The record reveals the following facts:

Garrison’s driver license was suspended for forty-five days by the Director of Public Safety, State of Alabama [hereinafter Director] upon receipt of a report that Garrison had refused to submit to a test to determine his state of intoxication. Upon receipt of notice that his driver license had been suspended, Garrison requested and received a hearing before an agent of the Director. After consideration of all facts before him, the Director suspended Garrison’s driver license effective March 7, 1977. Garrison appealed to the Circuit Court of Madison County.

At the hearing before the court, the parties stipulated that Garrison was not advised of the consequences of a refusal to take the chemical test at the time he was requested by arresting officers to take such test.

The sole issue for resolution here is whether a person must suffer the suspension of his driver license as a result of his refusal to submit to a chemical test to determine the state of his intoxication where he has not been informed that such refusal will result in a suspension of his driver license for forty-five days.

Section 32-5-192, Code of Alabama 1975, provides in part as follows:

(a) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood , . . The test or tests shall be administered at the direction of a law-enforcement officer . . . . Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 45 days; ....
(c) If a person under arrest refuses upon the request of a law-enforcement officer to submit to a chemical test . none shall be given, but the director of public safety . . . shall suspend his license or permit to drive .
(d) Upon suspending the license . . to drive . . . the director of public safety . . . shall . . . notify the person in writing and upon his request shall afford him an opportunity for a hearing in the same manner and under the same conditions as is provided in section 32-6-16, for notification and hearings in the cases of suspension of license; except, that the scope of such a hearing for the purposes of this section shall cover the issues of whether a law-enforcement officer had reasonable grounds to believe the person had been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test upon request of the officer. Whether the person was informed that his privilege to drive would be suspended or denied if he refused to submit to the test shall not be an issue.
(e) If the suspension ... is sustained by the director of public safety or his authorized agent upon such hearing, the person whose license . . . has been suspended . . . shall have the right to file a petition in the appropriate court to review the final order of suspension or denial by the director or his duly authorized agent in the same manner and under the same conditions as is provided in section 32-6-16 in the cases of suspensions and denials. [Emphasis supplied.]

Section 32-6-16(1), Code of Alabama 1975, provides:

Any person . . . whose license has been . . . suspended . by the director of public safety . shall have the right to file a petition within 30 days thereafter for a hearing on the matter in the circuit court in the county wherein such person resides, and such court . . . shall take testimony and examine into the facts of the case and . . . determine whether the petitioner is entitled to a license or subject to suspension .

Garrison’s initial argument is to the effect that § 32-5-192(d) is unconstitutional, for it is there provided that the failure of the arresting officer to advise the person directed to submit to a chemical test that a refusal to take the test will result in the suspension of his driver license for a period of forty-five days is not to be an issue in the administrative hearing. He argues that the effect of this provision is to nullify the mandatory language of § 32-5-192(a), which provides: “Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 45 days . . . .”

However, Garrison failed to raise this constitutional issue in the trial court, and this court does not, unless there are exceptional circumstances, decide constitutional questions that have not been first presented to the trial court. See State v. Dillard, 196 Ala. 539, 72 So. 56 (1916); 4 C.J.S. Appeal & Error § 234 (1957). And we do not consider the circumstances of this case to be so peculiar as to require an exception to be made to our rule.

We believe that an application of the ordinary rules of statutory construction will enable us to reach a rational interpretation of the pertinent statutes.

The rule with which we are concerned provides that each section of a statute should be given effect, if possible, and that alt sections should be read together as a whole. Adams v. Mathis, Ala., 350 So.2d 381 (1977); Tillman v. Sibbles, Ala., 341 So.2d 686 (1977). Subsection (a) of § 32-5-192 specifically provides that a person shall be told that a refusal to take a test will result in a suspension of his license. We believe the drafters of this section of the statute intended for the person refusing to take one of the tests for sobriety to be informed of the consequences of that refusal, for they used the word “shall” which is ordinarily considered to be a mandatory directive as opposed to a permissive directive. And to be informed of the consequences of a refusal at the time a person is told to submit to one of the sobriety tests would certainly permit one to make an informed decision. Furthermore, Hill v. State, Ala., 366 So.2d 318 (1979) specifically provides that a person is entitled to be informed of the effect of a refusal to submit to a sobriety test.

Yet, when a person’s driver license is suspended for refusing to submit to one of the tests and he asks for a hearing before the Director to contest the suspension, § 32-5-192(d) clearly provides that no issue will be made as to the failure to be advised of the consequences of a refusal to take one of the proffered sobriety tests. This provision would at first blush seem to be at odds with that provision in subsection (a) quoted above. However, it must be remembered that the provision in subsection (d) applies only to the administrative hearing before the Director or his agent. See § 32-5-192(d). The language in subsection (d) is very specific about what issues the Director will or will not consider; whereas, should the case get to the circuit court, no such statutory restrictions surround the issues it may or may not consider. In fact, the statute provides for a de novo hearing in the circuit court on the suspension of a driver license for refusing to submit to a sobriety test. State v. Rajala, 54 Ala.App. 502, 310 So.2d 223 (1975). This means that the hearing in the circuit court will be as if no previous hearing had been held and the court is authorized to make its own, independent decision based on the evidence before it. Informing a person of the consequences of a refusal is essential to the statutory scheme of § 32-5-192, Code of Alabama 1975. Moreover, due process compels consideration of the evidence of whether a person was informed of the consequences of a refusal at the circuit court hearing.

In the case at bar the judgment reveals that the parties stipulated that Garrison had not been informed of the consequences of his refusal to submit to a sobriety test after having been directed to do so by the arresting officer, and, in the face of the clear mandate of § 32-5-192(a), the trial court erred as a matter of law in not setting aside the suspension of Garrison’s driver license, for the reason that the statute specifically mandates that the person directed to submit to one of the tests be informed of the consequences of a refusal to take the test. Therefore, the judgment is reversed and one rendered here that should have been rendered in the trial court, i. e. the suspension of Garrison’s driver license for his failure to submit to a sobriety test without being told of the consequences of that refusal is hereby set aside and held for naught.

REVERSED AND RENDERED.

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