author: BEATTY, Justice. TORBERT, Chief Justice

text:
    CITIES SERVICE OIL COMPANY, a corporation v. Thomas F. GRIFFIN.
    SC 2505.
    Supreme Court of Alabama.
    April 7, 1978.

      John H. Morrow, Birmingham, Barry N. McCrary, Talladega, for appellant.
    Robert S. Vance and James N. Brown, III, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal by Cities Service Oil Company (Citgo) from a judgment entered against it based upon a jury verdict awarding the plaintiff, Griffin, $70,000.00 damages. We affirm.

The plaintiff filed this action obviously intending to charge Citgo with legal fraud as it is defined under Tit. 7, § 108, Alabama Code (Recomp.1958) (now Code of 1975, § 6-5-101):

Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.

His complaint included the following allegations:

3. That prior to, to-wit, June 1, 1972, plaintiff learned that defendant Cities Service was terminating some of its smaller distributors in other states.
4. That on or about June 1, 1972, and from time to time thereafter until to-wit, October 1, 1972, plaintiff inquired of defendant Cities Service whether his distributorship would be terminated.
5. That at the time of plaintiff’s said inquiries, defendant Cities Service, by and through its agents or employees, made representations to plaintiff to the effect that plaintiff had no reason to worry regarding being cut-off or terminated by Cities Service, but would retain his said distributorship.
6. That the representations in the above paragraph made by defendant Cities Service were false and that defendant Cities Service knew that they were false.
7. That at the time of plaintiff’s aforesaid inquiries to defendant, plaintiff’s distribution business was a profitable, valuable and readily saleable business and that plaintiff then had the capacity or opportunity to make arrangements for the distribution of competing petroleum products; but that shortly after October 1, 1972, plaintiff’s said opportunity to make other supply arrangements was no longer available, the business was no longer saleable and plaintiff was then unable to make arrangements for the distribution of competing petroleum products.
8. That plaintiff believed the aforesaid representations of defendant, Cities Service, and relied upon said representations and in reliance thereon continued doing business with Cities Service, continued selling said defendant’s products as a branded distributor, did not sell his said business and did not make arrangements for the distribution of competing petroleum products.
9. That on or about the 10th day of October, 1972, defendant Cities Service informed plaintiff that Cities Service was exercising its option to terminate plaintiffs contract with defendant Cities Service in accordance with the terms of the March 9, 1972 contract, and that on or about October 24, 1972, plaintiff received a registered letter dated October 18,1972, formally terminating his contract as of, to-wit, March 1, 1972; that thereafter one Bob Moore, Cities Service’s agent and its Marketing Vice President represented to plaintiff that Cities Service would not let anyone else in plaintiff’s sales area before plaintiff was able to effect a sale of his business.
10. That subsequent to the conversation between Bob Moofe and plaintiff, but before Plaintiff had been able to sell his business, defendant Cities Service and defendants Boone Oil Company and D. C. Boone entered into an arrangement or agreement under which defendants Boone Oil Company and D. C. Boone moved into plaintiff’s sales area, set up Cities Service branded dealers and otherwise interfered with the contract and business relationship between Cities Service and plaintiff, and between plaintiff and retail dealers who had theretofore purchased petroleum products from plaintiff.
11. That the aforesaid representations made by the said Bob Moore, acting as an agent for defendant Cities Service, were false and were known by said defendant to be false or were made by said defendant without knowledge of the true facts, recklessly for the purpose of deceiving plaintiff.
12. Plaintiff believed the representations made by Cities Service’s agent, Bob Moore, and in reliance upon said facts, did not sell his business prior to the time defendants Boone Oil Company and D. C. Boone moved into plaintiff’s sales area.

The record discloses that Griffin became the distributor of Cities Service products in Talladega and St. Clair Counties in 1947 under a series of standard year-to-year contracts. These contracts did not renew if either party gave the other written notice of non-renewal at least 120 days before expiration. On the contract in question the renewal date was March 1, 1973.

Citgo had formulated a new marketing policy in 1971 which, when implemented, would reduce the number of their distributorships, including that of Griffin. In the summer of 1972 the company experienced supply shortages and began to implement the new program. Having become aware of some distributorship cancellations in other areas, about March of that year Griffin made inquiries to Citgo representatives on the possibility of his contract being terminated. In response he was given assurances of contract renewal. However, on or about October 10,1972 he was told by Ira Hughes, a Citgo employee, that his contract would not be renewed, and this was followed “a few days” after October 19,1972 by a written notice to Griffin from Citgo of its election not to renew their distributorship contract. When he received this notice Griffin immediately contacted Bob Moore, the marketing vice-president of Citgo, concerning that decision. Griffin expressed to Moore his concern over the possibility of other people coming into his territory in competition with him before he had an opportunity to sell his business. A couple of weeks later (approximately November 4) he was assured by Moore that such a situation would not occur. Nevertheless, about two weeks later (approximately November 18) Citgo signs were being displayed in his territory by other dealers who were selling gasoline for less than Griffin’s dealers were selling it. Thereafter his attempts to obtain another source of supply were unsuccessful due to the gasoline shortage, and the value of his business was harmed. Ultimately he sold his business for the aggregate amount of $32,000.00, although during the previous summer and up to October it had been worth $100,000.00, calculated by an industry-recognized method of valuation which allowed $1.50 per monthly gallon.

The trial court denied Citgo’s motion for a directed verdict and its motion for judgment N.O.V., in both of which Citgo maintained that the fraud claim was barred by the statute of limitations of one year. We quote from the defendant’s motion for a directed verdict:'

7. Any effort to recover on any claimed misrepresentation made by this defendant fails because the evidence establishes without dispute that plaintiff knew of the falsity of such claimed misrepresentation more than one year prior to the commencement of this action.
8. Any effort on the plaintiff’s part to recover on the basis that the defendant represented that plaintiff’s contract would be renewed is defeated by the statute of limitations of one year because the complaint and the evidence show without dispute that plaintiff learned the defendant was not going to renew its contract more than one year prior to the commencement of this action.

And the following grounds were asserted in the defendant’s motion for judgment N.O.V.:

7. Any effort to recover on any claimed misrepresentation made by this defendant fails because the evidence establishes without dispute that plaintiff knew of the falsity of such claimed misrepresentation more than one year prior to the commencement of this action.
8. Any effort on the plaintiff’s part to recover on the basis that the defendant represented that plaintiff’s contract would be renewed is defeated by the statute of limitations of one year because the complaint and the evidence show without dispute that plaintiff learned the defendant was not going to renew its contract more than one year prior to the commencement of this action.
17. The evidence established without dispute that plaintiff knew of the falsity of the representation on which plaintiff based his suit more than one year prior to the commencement of plaintiff’s suit.

It is Citgo’s position that Griffin’s action for misrepresentation fails because of the application of Tit. 7, § 42, Alabama Code (Recomp.1958) (now Code of 1975, § 6-2-3):

In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.

As the defendant insists, it is well settled that an action based upon fraudulent misrepresentation must be brought within one year of the discovery thereof or within one year of the time when it should have been discovered. Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636 (1973); State Security Life Insurance Co. v. Henson, 288 Ala. 497, 262 So.2d 745 (1972).

When did the plaintiff discover that the defendant’s representations to him were fraudulent? The defendant contends that the plaintiff knew of the misrepresentations with regard to the termination of his distributorship no later than October 10, 1972. Because the action was not brought until October 18, 1973, defendant maintains that it is barred by § 42. If there was no evidence supporting an inference that plaintiff’s discovery of the fraud occurred after October 18, 1973, a jury question would not have been established and the defendant would have been entitled to a directed verdict. That is, if the evidence showed without conflict that more than one year before October 18, 1973 Griffin had knowledge of facts sufficient to put a prudent man on inquiry, which in the exercise of proper prudence and diligence would have enabled him to learn of the fraud, a directed verdict would have been proper. State Security Life Insurance Co. v. Henson, supra. On that issue we quote from the record:

Q. Now at anytime prior to this October 3, 1972, day had they told you anything about any problem you were going to have with your distributorship?
A. No, sir. Not a thing.
Q. Was this note that he gave you on October 3rd after he told you that there was no way you had anything to worry about — that you had been with the company too long?
A. Yes, sir.
Q. I’ll show you, Mr. Griffin, what’s been marked as Plaintiff’s Exhibit No. 17 which is a letter from Mr. Kumpe to Mr. Oltman telling about the test that they used in figuring out that they were going to fire you or cut off your contract?
A. Yes.
Q. Did you know anything about any of these tests? Have you ever been advised by Cities Service anything about this what they call a criteria?
A. No, sir.
Q. Did you know at the time that any such letter as this — ■
A. No, sir. I didn’t even know there • was a letter like that.
Q. Did you know that any consideration was being given to cutting you off? A. No, sir.
Q. Had anybody connected with Cities Service said anything to you about suggesting that that was even being considered?
A. No, sir.
Q. And you had asked how many times in all?
A. Three to five, several.
Q. And you did finally get some communication from them I believe — I believe the first communication was not written was it?
A. That’s right.
Q. And who told you what was going to happen?
A. Ira Hughes.
Q. That was about when?
A. About October 10 or something like that.
Q. How did that come about?
A. He called me the day before and said that — could I meet him at Holiday Inn in Riverside in the morning. I said yes what time. He said about seven or seven-thirty. I met him up there. He told me that they weren’t going to renew the contract.
Q. Didn’t tell you anything about why?
A. No, he didn’t say why? He just said they weren’t going to renew the contract, and he said they weren’t going to renew the contract, and he did mention supply, but that was it. That’s all he said.
Q. Alright, now on — you got a certified letter on — you remember what date you got it on? It's dated the 19th.
A. No, sir. I don’t.
Q. You know about how long after the 19 th it was?
A. It was probably — coming from Atlanta probably two days, three.
Q. Alright, sir. This is the letter where you were actually cut off.
A. Yes, sir.
Q. In October the shortage with Cities had already begun hadn’t it?
A. Yes, sir.
Q. And this letter that has been introduced, Plaintiff’s Exhibit No. 17, Mr. Griffin, the last thing that Mr. Kumpe said was that it is hopeful by using this approach we will be able to allocate sufficient products to our ‘Class A’ account to afford them normal growth during the product shortage. Now had anyone eve[r] told you what a ‘Class A’ account was?
A. No, sir.
Q. Class B account or a Class C account?
A. No, sir.
Q. You didn’t know you were a ‘C’ grade business man?
A. No.

We believe this exchange furnishes a scintilla of evidence that Griffin was not put on inquiry until “a few days” after October 19, when he received the certified letter which actually “cut him off.” Prior to that time he had been given both oral assurances of continuance and written encouragement to increase his sales. In fact, he had been placed on a supply allocation under his existing printed sales contract which he signed in early March, 1972. In view of the nature of these prior dealings, it is a fair inference that any “notice” of the misrepresentations upon which a prudent person would have relied would have come to him through written, as opposed to oral, notice. This made the case one for the jury. Mitchell Homes, Inc. v. Tew, 294 Ala. 515, 319 So.2d 258 (1975).

In addition, we should point out that under the plaintiff’s allegations he was also relying upon another misrepresentation. Again we refer to the evidence:

Q. What did you do when you got this letter terminating your contract?
A. Well, I immediately went to the— went over and called Bob Moore.
Q. And he’s the man you said you knew in Tulsa?
A. Yes, sir.
Q. And what conversation did you have with him?
A. I called Bob and I asked him — I said, ‘What’s going on?’ He said that he didn’t know, said that he would call me back in a couple of weeks. I think he was going to be out of the state or out of the country or something, and he’d call me back in a couple of weeks and let me know and find out about it. So, in a couple of weeks he did call me back.
Q. What did he say to you at that time?
A. He said that he didn’t — well he said that he was sorry about it, but said he was paying those people in Atlanta to run the business and he was going to let them run it and I said well what about a supply until then — until I can do something — he said that well you’ll get a supply. I said, ‘Well, one of the things I’m primarily worried about is people coming into my territory, displaying a sign with a cheap price before I can make another connection or sell the business.’ He said, ‘Well, our association has been too long and too cordial for that to happen.’ Said, ‘That won’t happen.’
Q. Alright, now let me get straight here just a minute. You have explained to us about branded and unbranded dealers?
A. Yes.
Q. All of your dealers were what?
A. Branded.
Q. You didn’t have any cut-rate dealers or unbranded dealers?
A. No.
Q. So, everyone of them had Citgo signs out in front of their places.
A. Right.
Q. Nobody else in your two county area had Citgo signs at all except the dealers that you had developed? Is that right?
A. Yes, sir.
Q. And these dealers honored Citgo credit cards. Did they not?
A. Yes, sir.
A. Yes, sir.
Q. Alright, was anything else to the conversation with Mr. Moore at that time?
A. No, that was about it.
Q. Now you had 120 days left on the contract when the notice was given — or from the first of the next month — -so you had that period of time left to operate anyway did you not?
A. Yes, sir.
Q. What if anything happened with respect to other people coming in your territory?
A. Well, shortly thereafter there was a Citgo sign displayed down on Battle Street and Coosa Street or 17th Street with a real low price.
Q. Now is that a dealer that you had?
A. No, sir.
Q. Who was supplying that dealer if you know?
A. I think Mr. Boone was supplying that dealer.
Q. And at what price was gasoline offered — do you know whether Mr. Boone had been buying gas before up at Triangle?
A. I don’t know.
Q. You’ve already testified that Citgo was selling to the unbranded dealers?
A. Yes, sir.
Q. Just as they were selling to you?
A. Yes, sir.
Q. [a]lright, at what price was that station selling gasoline compared to the price that your other branded stations were selling gasoline?
MR. CLEVELAND: Judge, I object to that. The price that a filling station operator would be selling gas would not be material to anything Mr. Boone would be doing. He was not operating that filling station.
THE COURT: I overrule the objection.
A. Relative to my service station prices?
Q. Yes.
A. They were selling gasoline for about as I remember it about a cent and a half or two cents about two cents more than my dealers were paying for it.
Q. Alright, now how does that compare with what your dealers were getting for it?
A. Well, it would be about four cents cheaper.
Q. Alright.
A. The gasoline on Battle Street would be selling from four to five cents a gallon cheaper than my dealers were selling it.
Q. How long was this after your conversation with Mr. Moore?
A. I believe that was about two weeks.
Q. So within two weeks you saw Citgo signs go up at stations underselling your stations by four to five cents?
A. Right.
Q. Was that the only one that went up like that?
A. I think there was another one out on the Ashland Highway. That was the one that hurt me the worse.
Q. Mr. Griffin, does this type of thing have an effect on the value of your business?
A. Sure. Certainly.
Q. Were you able to continue to selling dealers the same price with them being undersold four or five cents?
A. I couldn’t have very long. Only way I could at all was to tell them we were going to do something in a week or two.
Q. Did you take any steps to try to either get rid of your business or do anything else to take care of the situation?
A. Yes, sir.
Q. What did you do?
A. I heard that Mobil Oil had been wanting to come into Alabama so I called Mobil. And they sent a man out and looked at my stations and looked at the whole setup, a man named Hurt, Glenn Hurt.
Q. Alright, now let me ask you this. Were you able to make a deal for any alternative source of supply for branded gasoline?
A. No, sir.
Q. Now at that time after the shortage had begun and with other folks underselling what if anything did that have to do to the value of your business as a going business?
MR. MORROW: We object to that question. It assumes certain facts in that question.
THE COURT: Overrule.
A. Now let’s get the question.
Q. Would you read it back please?
COURT REPORTER: Now at that time after the shortage had begun and with other folks underselling what if anything did that have to do with the value of your business as a going business?
A. Well, it hurt it. I knew I couldn’t sell the business except to somebody then — I couldn’t get a supply for it. I couldn’t get any other supplier to take it on. And I knew that the only alternative I had would be to sell to a competitor.

As we have previously indicated and as this testimony discloses, Griffin did not know of and was not put upon inquiry concerning this particular misrepresentation until about November 18,1972, or eleven months before the date upon which this action was filed. And because the quoted testimony would have allowed the jury to believe that Griffin’s loss was due to this misrepresentation of Moore, a directed verdict would have been improper.

Citgo also contends that the trial court erred when it instructed the jury that Citgo had to satisfy the jury that the plaintiff’s claim was barred by the statute of limitations.

Under our decisions, when the statute of limitations is a defense the plaintiff has the burden of proving that the cause of action accrued within the period of the bar. Hatch v. Black Diamond Coal Mining Co., 253 Ala. 495, 45 So.2d 291 (1950). The record does disclose that, initially, the trial court charged on the burden improperly:

And of course since the Defendant Cities Services entered that plea in answer to the charges by the Plaintiff then the burden as far as that point is concerned and that is the statute of limitations to this action the burden to prove that to reasonably you [sic] by the evidence of the truthfulness of that — that burden is upon the Defendant Cities Services.

Immediately following this portion of the oral charge, however, the trial court continued:

Now as to the defense of the Statute of Limitations the Defendants by their plea of that statute of limitations the Defendant Cities Services contends that the Plaintiff is not entitled to recover in this case because the Plaintiff’s claim is barred by the statute of limitations of one year. The burden is upon the Plaintiff to reasonably satisfy you by the evidence that this action was commenced within one year from the accruel [sic] of the Plaintiffs right of action and this action was commenced in this case by the filing of the complaint here on the 23rd [later corrected to the 18th of October] day of October, 1973.

It is of course obvious that the first portion of this aspect of the oral charge contained an erroneous reference to the burden of proof. However, it is equally obvious that the trial court’s further and more lengthy references to the same subject accurately stated the legal principle. In view of this corrective action, and having reviewed the oral instructions as a whole, we cannot conclude that the defendant was prejudiced. Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974). Had the defendant been concerned that the jury might have been misled or confused by the portion of the charge complained of, it could have requested an explanatory charge. Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963).

Citgo also contends that the trial court committed a reversible error when it permitted plaintiff’s counsel to elicit from the defendant’s witness, Moore, upon his cross-examination, evidence of Citgo’s 1975 gross sales and 1970 net profit. Plaintiff maintains that this evidence was irrelevant to the issues and prejudicial to Citgo.

Moore’s testimony on both is direct and cross-examination was extensive, aggregating fifty-one pages of the record. His evidence on direct examination established “very bad gasoline price markets (in 1971 and 1972) so the economics generally in business were very poor,” prompting an analysis of the company’s marketing methods and the ultimate decision to introduce a new distributor system. A part of this program included the closing of a refinery in East Chicago which diminished the company’s supply of gasoline and affected the accounts which would not be renewed as well as the competitive price of their product. One of the problems the Company was attempting to solve was the effect upon it of distributors of private brand and unbranded products who marketed to large volume service stations.

On his cross-examination he disclosed that in 1971 the company sold gasoline at two prices, a branded price and an unbranded price, because some jobbers operated with both branded and unbranded products. Although he conceded that the company was selling to a few of the people who he complained were providing competition to his company, he maintained that “the competition was broader than the ones we weren’t selling.” At that point this exchange took place:

Q. You weren’t getting your share of the market — of the unbranded market?
A. We weren’t really a big factor in that.
Q. How much was City Services sales last year?
MR. MORROW: We object to that now if it please the Court.
BY THE COURT: Overruled.
Q. You mean in terms of gallons?
A. Dollars.
A. Are you talking about petroleum products or—
Q. Yes.
A. I don’t know what the dollar number is.
Q. Do you know what the total revenue of City Services would be?
MR. MORROW: We object to that as— BY THE COURT: Overruled.
A. A total gross dollar sales on everything, chemicals, metals or petroleum products, the whole operation would probably be in excess of three billion dollars.
Q. Three billion dollars. Is that your idea of a small company?
A. I wasn’t here when the reference was made but all things are relative.
Q. I’m not used to all those zero’s. That’s three thousand million in one year.
A. Yes, and I’ve already said that included a lot of chemicals and metal sales and in terms of petroleum we have something less than two percent of the national market.

And later, Moore was asked:

Q. Awhile ago, Mr. Moore, you said— you said your profits hadn’t been satisfactory. I am reading a publication called the Oil Week. Is that recognized in the industry?
A. Yes, I recognize it. It doesn’t have very much statute in the industry, but I recognize it.
Q. It says in 1970 that y’all didn’t make but 151 million net profit.
MR. MORROW: Now we object to that, Your Honor. He’s already gone into a lot of information that has no pertinence to the case and now he is trying to go into earning segments of Cities Service.
BY THE COURT: Overruled.
Q. Is that correct?
A. I don’t remember. It could very well be correct.
Q. I’ve got another publication right here. It’s a National Observer of June 9, 1973, that quotes you, Mr. Moore. I want you to look at this and see if you made this statement, talking about whether the gasoline squeeze was a shortage or what. And it says right here—
MR. MORROW: We would have to object to that. We are getting too far afield, and I don’t want to make a whole lot of unnecessary objections but we’re talking about something foreign from the case that happened long after.
Q. He says why they were cutting people off. Why they cut the Tom Griffins—
BY THE COURT: Yea, I’ll overrule the objection. Finish your question.
Q. The major oil companies deny any desire to harm the independents. And cite shortage of the crude oil and refining compacity [sic] quote, ‘Our first obligation is to supply branded jobbers and dealers who invest in stations that fly their company’s flags and who have been loyal to us for years,’ says Robert Moore, Vice-president of City Service Company. You said that to the press, didn’t you?
A. I don’t remember the occasion but it could well have been.
Q. Now tell me, Mr. Moore, where on that number among that criteria, who you’re going to get rid of and who you’re not going to get rid of, is the number of years with the company?
A. That’s not on the criteria.
Q. Didn’t make one particle of difference whether they had been with you one year or twenty-six years like Griffin?
A. It’s an important factor but the criteria essentially had to do with the operation ability to be competitive.

Considering this testimony as a whole it is apparent that Moore’s explanation of the marketing policy which led to the cancellation of Griffin’s contract, and ultimately to this controversy, was a justification of the company’s decision based upon competitive factors. If the matters of the amount of the company’s sales and profits were irrelevant and thus improper cross-examination in this fraud action, as the defendant contends, the subjects of sales and profits likewise would have been irrelevant on direct examination as well. Griffin’s testimony on direct examination, however, dealt extensively with the company’s marketing methods and poor economic position, a subject which intimately concerned the company’s sales and profits. Assuming ar-guendo that these were irrelevant subjects for direct examination, because they were illicited at that stage of his examination Moore’s cross-examination on the same subjects was proper. Irrelevant evidence may be admitted to rebut evidence of like character. Wilkinson v. Duncan, 294 Ala. 509, 319 So.2d 253 (1975); St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683 (1961); McElroy’s Alabama Evidence § 14.01 (3rd ed.). And because Moore had painted a verbal portrait of the company’s poor business position, we fail to see how any undue prejudice resulted to it when evidence of its gross sales and net profits was elicited from the same witness. Besides, defendant’s counsel made only a general objection. We have shown that this evidence was admissible, hence the general objection was insufficient for the purposes of appeal. All American Life and Casualty Co. v. Dillard, 287 Ala. 673, 255 So.2d 17 (1971).

Citgo also contends that the trial court erroneously permitted the jury to find that Citgo had breached a contract granting the plaintiff an exclusive distributorship, or conspired to breach it, when there was no evidence of any such contract, or of any conspiracy. The defendant insists that one cannot be charged with conspiring to breach his own contract.

We fail to find anything in the trial court’s instructions to the jury authorizing such a finding. The defendant’s argument on this point springs from the court’s reading the plaintiff’s complaint to the jury:

The Plaintiff claims that on or about the 9th day of March 1972 the Plaintiff and Defendant City Service Oil Company, a corporation, entered into an agreement by which the Defendant, that Defendant, promised to supply the Plaintiff with gas and oil products, to make the Plaintiff a branded distributor of City Service products for one year beginning March 1,1972 and further agree that the Plaintiff would have the exclusive distributorship in a designated geographic area, the same being approximately the width the northern half of Talladega County and all of St. Clair County, Alabama.
The Plaintiff further claims that the Defendant, City Service, breached that agreement by allowing or encouraging the Defendant, D. C. Boone and Boone Oil Company, to begin selling gas and oil products and otherwise distributing City Service brand named owned stations in Plaintiff’s said exclusive sales area prior to the termination of the aforesaid contract on, to-wit, March 1, 1973.
The Plaintiff further claims that prior to June 1,1972, the Plaintiff learned that the Defendant, Cities Service, was terminating some of its smaller distributors in the area, in other states, that on or about June 1, 1972, the Plaintiff inquired of the Defendant, Cities Service, whether its distributorship would be terminated.
The Plaintiff further claims that at the time of the Plaintiff’s said injuries the Defendant, Cities Service, by and through its agents or employees made representations to the Plaintiff to the effect that the Plaintiff had no reason to worry regarding being cut off or terminated' by Cities Service, but would retain his said distributorship.
The Plaintiff further says that the representations in the above paragraph as I have just stated to you by the Defendant, City Service, were false and that the Defendant, City Service, knew that they were false.
That at the time of the Plaintiff’s aforesaid inquiries to Defendant, Plaintiff’s distribution business was profitable, valuable and readily saleable business and that the Plaintiff then had the capacity or opportunity to make arrangements for the distribution of competing petroleum products; but that shortly after October 1 of 1972 that Plaintiff’s said opportunity to make other supply arrangements was no longer available, the business was no longer saleable and Plaintiff was then unable to make arrangements for the distribution of competing petroleum products.
The Plaintiff believed he says that the aforesaid representations of the Defendant, City Service, and relied upon said representations and in reliance thereon continued doing business with Cities Service, continued selling that Defendant’s products as a branded distributor, did not sell his business and did not make arrangements for the distribution of competing petroleum products.
Plaintiff further claims that on or about the 10th day of October, 1972, the Defendant, City Service, informed him that City Service was exercising its option to terminate the Plaintiff’s contract with the Defendant, City Service, in accordance with the terms of the March 9, 1972 contract and that on or about October 24, 1972, Plaintiff received a registered letter dated October 18, 1972, formally terminating his contract as of to-wit, March 1, 1972; that thereafter one Bob Moore, Cities Service’s agent and its Marketing Vice President represented to the Plaintiff that Cities Service would not let anyone else in Plaintiff’s sales area before Plaintiff was able to effect a sale of his business.
Plaintiff further says that subsequent to or after the conversation between Bob Moore and Plaintiff, but before the Plaintiff had been able to sell his business, Defendant City Service and defendants Boone Oil Company and D. C. Boone entered into an arrangement or agreement under which Boone Oil Company and D. C. Boone moved into Plaintiff’s sales area, set up Cities Service branded dealers and otherwise interfered with the contract and business relationship between Cities Service and Plaintiff, and plaintiff and retail dealers who had theretofore purchased petroleum products from Plaintiff[.]
That the aforesaid representations made by the said Bob Moore, acting as an agent for Cities Service, were false and were known by the Defendant to be false and were made by that Defendant City Service without knowledge of the true facts, recklessly and for the purpose of deceiving Plaintiff.
Plaintiff believed the representations made by City Service’s agent, Bob Moore, and in reliance upon said facts, did not sell his business prior to the time Defendants Boone Oil Company and D. C. Boone moved into the Plaintiff’s sales area.
Plaintiff further says that Defendant, Cities Service and Boone Oil Company and D. C. Boone conspired to breach the contract between Cities Service and Plaintiff which was still in force at the time that Boone Oil Company moved into Plaintiff’s sales area.

These were the only references to the contract and to conspiracy, and it is clear from the remainder of the charge that the issues submitted to the jury for their resolution concerned fraud, not breach of contract or conspiracy:

First I’ll talk to you about fraud. Ladies and Gentlemen of the jury the Plaintiff in this case is claiming damages from the Defendants for an alleged legal fraud practiced upon him by the Defendants. And the fraud is charged in the Plaintiff’s complaint which I have read to you just a few minutes ago. Of course, I have also explained to you the answer of the Defendants in this case. Now the complaint charges so far as fraud is concerned charges the Defendants with wilful misrepresentation. I charge you that if you are reasonably satisfied from the evidence that the Defendant wilfully misrepresented a material fact to the Plaintiff with the intent to induce the Plaintiff to act thereon and if the Plaintiff did without knowledge of its falsity act upon said wilful misrepresentation to his injury then the Defendants would be guilty of legal fraud. Now if you find that there was a misrepresentation and if that misrepresentation was a wilful one as I have explained the law to you — if you find that as your verdict — it would be your responsibility to go a step further and to place damages against the Defendants for that fraud. Now if it is a wilful misrepresentation then the Plaintiff would be entitled to what is known in our law as punitive damages. The purpose of awarding punitive or exemplary damages is to allow money recovery to the Plaintiff by way of punishment to the Defendants and for the added purpose of protecting the public by deterring the Defendant and others from doing such wrong in the future. The imposition of punitive damages is entirely discretionary with the jury. That means you may make your own choice about it. Should you award punitive damages then in fixing the amount you must take into consideration the character and degree of the wrong as shown by the evidence in this case and the necessity of preventing similar wrongs. Now if that should be your verdict then you should assign damages in that respect you would be restricted in your verdict to an amount not to exceed $250,000.00, that being the amount that the Plaintiff claimed in his complaint.
Now the Court will charge you on reckless misrepresentation and this is another character or cata gory of fraud. I charge you that if you are reasonably satisfied from the evidence that the Defendant misrepresented a material fact recklessly without knowledge of the truth or falsity thereof and with the intent to induce Plaintiff to act and that Plaintiff acted upon said reckless misrepresentation to his injury then the Defendant is guilty of legal fraud. And your measure of damages in the event that you find in that respect for the Plaintiff would be one of compensatory damages. The compensatory damages that we recognize in this state by law are as follows and I so charge you:
The purpose of awarding compensatory damages is to fairly and reasonably compensate the injured party for the loss or injury sustained. Compensatory damages are intended as money compensation to the party wronged to compensate him for his injury and other damages which have been inflicted upon him as a proximate result of the wrong complained of. Of course complained of by the Plaintiff. One further element of the fraud so far as the law is concerned has to do with mistaken representation. I charge you if you are reasonably satisfied from the evidence that the Defendants innocently— and wherever I might have used Defendant in my charge to you as to the definition of fraud if I’ve said Defendant I mean Defendants, — satisfied from the evidence that the Defendants innocently or by mistake misrepresented a material fact to the Plaintiff thereby inducing action by the Plaintiff to his injury then the Defendants would be guilty of legal fraud and here again if that is your judgment and verdict after your consideration of all the evidence and you awarded damages to the Plaintiff under that it would be compensatory. Of course compensatory is the awarding of damages to compensate the injured party for the loss or injury that he has sustained based upon all of the evidence in that case.

Nowhere in the oral charge did the trial court refer to the law of either contracts or conspiracy. To the contrary, it is clear from that charge that the case was submitted to the jury on the issues of willful or reckless misrepresentation. The references to breach of contract and conspiracy were part of the court’s references to the contentions of the parties, a practice condoned in this jurisdiction. Miller v. Bryant, 25 Ala. App. 564, 151 So. 362 (1933). Not only is it clear that the issues submitted to the jury did not involve breach of contract or conspiracy, but also we fail to discern any prejudice to the defendant when the trial court did not charge the jury on the law of the plaintiff’s allegations, since the plaintiff would have been entitled to an instruction had he been relying upon them and had they been supported by evidence. Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969). Indeed, there having been no evidence of either a breach of the contract or of a conspiracy, it would have been error for the trial court to have made either an issue for the jury. Cf. May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967), and Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1953).

There being no reversible error, the judgment must be, and is, affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and EM-BRY, JJ., concur.

TORBERT, C. J., dissents.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent. I believe that Griffin’s cause of action based upon fraudulent misrepresentation was barred by the statute of limitations and that the trial court erred to reversal by failing to grant either Citgo’s motion for a directed verdict or its motion for judgment notwithstanding the verdict.

Pursuant to the provisions of Title 7, section 42, Code of Alabama 1940 (§ 6-2-3, Code 1975), the statute of limitations for fraud is one year from the date that such fraud is discovered or should have been discovered. State Security Life Insurance Co. v. Henson, 288 Ala. 497, 262 So.2d 745 (1972). Further, facts which provoke inquiry in the mind of a person of reasonable prudence and which, if followed up, would have led to discovery of the fraud, constitute sufficient evidence of discovery. Johnson v. Shenandoah Life Insurance Company, 291 Ala. 389, 281 So.2d 636 (1973).

In the case at bar, Griffin discovered the alleged fraud more than one year prior to the commencement of his suit. Griffin’s own testimony, which is quoted at length by the majority, shows that Citgo made allegedly fraudulent representations to Griffin during the summer of 1972 with respect to the renewal of his contract, that Griffin relied upon these representations by failing to obtain another source of gasoline and by failing to sell his business to a competitor during that summer when the business was still profitable and readily saleable, and, finally, that because of market fluctuations due to the gasoline shortages between the summer of 1972 and the first of October, 1972, Griffin suffered a $70,000.00 loss on the eventual sale of his business. Most importantly, however, this same testimony reveals without conflict that Griffin had knowledge of, and therefore discovered, the falsity of Citgo’s representations no later than October 10, 1972, the date on which he received oral notification that his contract with Citgo would not be renewed.

Thus, from a review of the foregoing evidence, I cannot agree with the majority that the discovery of the alleged fraud did not occur until Griffin received written notification that his contract was to be terminated. Griffin was put on notice of the fraudulent nature of Citgo’s representations by the oral statement of Ira Hughes just as effectively as by the written letter sent to him on October 18, 1972. The substance of both communications was the same, i. e., Griffin’s distributorship agreement would not be renewed when his current contract expired.

In summary, I believe that Griffin’s cause of action accrued, without dispute, no later than October 10, 1972, the date of the discovery of the alleged fraud. Thus, as the complaint was filed on October 18, 1973, Griffin’s suit was clearly barred by the statute of limitation. I would hold, therefore, that a directed verdict would be proper in this case and would reverse. See State Security Life Insurance Co. v. Henson, supra.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Mildred L. McGUGIN v. John M. McGUGIN.
    Civ. 1291.
    Court of Civil Appeals of Alabama.
    April 5, 1978.

      Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

Appellant-wife was granted a divorce from her husband (appellee) by a decree of the Circuit Court of Mobile County on January 30, 1970. The decree of the circuit court ordered the husband to pay alimony and child support in the amount of $40 a week. The lot and the home in which the couple had resided remained in the joint ownership of the parties. However, the judgment of divorce specifically provided that the wife and the couple’s only child, a daughter, were to retain possession of the home. The husband was directed to pay the monthly mortgage installments on this property. The decree continued by stating that “in the event the Complainant [wife] shall remarry, then the home place shall be sold, and after the costs incident to the sale and the mortgage balance thereon have been paid, the net balance shall be divided equally between the parties.”

After the parties were divorced the husband frequently failed to provide either the-support obligations or the mortgage payments which he had been directed to pay. As a result of this situation, the wife instituted several actions seeking to have the husband pay the amount in arrears. Each time the wife’s action was successful and the husband was ordered to provide her with the sum of money necessary to cover the arrearage. However, in August of 1973 the wife filed a petition for rule nisi. In this petition the wife alleged that the husband was in arrears in regard to support payments and that his whereabouts was unknown. Service on the husband was obtained by publication and thereafter a hearing was held. At the termination of this hearing the trial court found the husband to be in arrears and awarded separate judgments to the wife; the first, which was for the sum of $294, represented arrearage on the monthly mortgage payments; the second judgment was for $854 and consisted of unpaid alimony and child support. Execution was subsequently issued on these judgments and the Mobile County sheriff was requested to levy on and sell the husband’s interest in his former residence. Thereafter a sheriff’s sale was held and the wife purchased her ex-husband’s interest in the home for the amount of court costs.

After obtaining her former husband’s interest in the home, the wife did not receive any further alimony or support payments from her husband. However, sometime in 1977 she learned that her ex-husband was living in Pensacola, Florida. Upon ascertaining his new place of residence, the wife filed a motion for a judgment of ar-rearage alleging that the husband owed her $8,000 in unpaid alimony and child support.

A hearing was subsequently held on the wife’s motion and the husband appeared to present his defenses. At the hearing the wife testified that she had not received any child support or alimony payments from her husband since October 31, 1973. Moreover, she stated that her former husband had not provided any mortgage payments since the same date.

The husband admitted that he had not paid his wife alimony or child support since October of 1973. In addition, he stated that he had failed to make some payments before October of 1973. However, he also testified that he had purchased his daughter an $800 automobile and bought her some clothes valued at approximately $136. Finally, he said that he had given his daughter $500 so that she could travel to Germany.

During the hearing the husband apparently contended that he should receive credit for the money which he had given his daughter and that the amount demanded by his wife should be reduced accordingly. Moreover, he asserted that his daughter finished high school in 1974 and that shortly thereafter she had gotten married. Accordingly, the husband maintained that his daughter was no longer dependent upon his support as of the date of her marriage and that his wife was not entitled to any child support for the period after the marriage of their daughter.

On the basis of this and other testimony the circuit court specified that the $40 a week awarded to the wife as child support and alimony in the original divorce decree was to be allocated as follows: $20 per week as child support, and $20 per week as alimony. The court then found that as of November 1, 1974 the husband was not required to furnish his wife with money for the support of their daughter. Thus the circuit court concluded that the $40 a week originally awarded to the wife as alimony and child support should be reduced to $20 a week constituting alimony only and that the effective date of this reduction was November 1, 1974.

Furthermore, based on the evidence presented to the court, the trial judge found that in February of 1974 the sheriff had levied on the husband’s interest in the parties’ jointly owned property and that as a consequence of this action the wife had purchased the interest of her former husband in that property. The court then held that the husband’s interest in the property ceased on February 19, 1974 and that as of that date the lot and home thereon belong wholly to the wife. Consequently, the circuit court ruled that the husband was not responsible for any mortgage payments due on the property after his interest was terminated by the judicial sale.

The court concluded its order by determining that the amount of arrearage for which the husband was liable was $2,024. From the findings and conclusions of the circuit court the wife appeals. (The husband did not file a brief in response to her appeal.)

In her brief to this court the wife contends that the judgment of the circuit court was in error for the following reasons: (1) the court’s action in establishing future alimony payments violated her constitutional right to due process; (2) the court erroneously modified a property settlement; and (3) the court miscalculated the amount of arrearage to which the wife was entitled.

The first issue for our consideration concerns the wife’s claim that her constitutional right to due process was violated because the circuit court determined the amount of alimony which she will receive in the future. Specifically, the wife submits that the failure of the circuit court to advise her that the issue of future alimony would be litigated deprived her of notice and denied her the opportunity to show facts which would have entitled her to a larger sum of alimony.

However, in view of the circumstances of this case we do not believe that the wife was unfairly denied an opportunity to present evidence which would have justified an increase in her future alimony income.

Our recent decision in Nabors v. Nabors, Ala.Civ.App., 354 So.2d 277 (1978) concerned the establishment of arrearages in regard to alimony and child support. In that case we were confronted with the question of whether a trial court could allocate a portion of a lump-sum alimony and child support award solely for child support. We said that the critical issue was not whether the trial court had modified past due installments of alimony and child support, but rather, whether the court, in ascertaining arrearages, had the authority to give the husband credits for the period after which the child became self-supporting, and on that basis reduce the amount in arrears with respect to the lump-sum alimony and child support award. As Nabors v. Nabors indicates, the father may receive a credit for child support made after the child has become self-supporting and his ability to receive this credit would be meaningless in a lump-sum alimony and child support award situation unless the trial court could allocate proportionate amounts as alimony and child support. Likewise, in the case at bar we conclude that the trial court was not, in actuality, modifying the alimony and child support award but was merely giving credit where credit was properly obtainable; that is, the court allocated a portion of the original “lump-sum” award as child support and then reduced the amount in arrears on that award by permitting the father to receive credit for the sum designated as child support for the period during which the child was no longer dependent on him for support.

Furthermore, we are not convinced that the wife was unaware that such a decision would be made by the trial court. Her petition specifically stated that the daughter was a minor but she also knew that this child had married and was no longer in need of support from the father. Accordingly, we are not convinced that the wife was prejudiced by the method used by the trial court in establishing the arrearages which she requested to be ascertained.

The court’s action in this case did not modify or reduce the amount the wife had a right to receive as alimony. The divorce judgment originally provided her with $40 a week for alimony and child support. Since her child subsequently became self-supporting the wife is now entitled to only that portion of the original judgment which the court deemed to be for alimony. Nonetheless, we would note that awards of periodic alimony are never final and are amenable to change at any time depending on changed conditions.

In addition, there is nothing in the record to indicate that the attorney who represented the wife objected to the modification of the original decree or complained to the circuit court that his client had been deprived of her constitutional right to due process by the court’s failure to notify her that it planned to revamp its original decree. And it is well settled that the trial court will not be reversed on the basis of a matter not presented to that court or upon which that court had no opportunity to rule. Rule 4, ARAP and committee comments thereto.

The next issue presented for our review involves the wife’s claim that the circuit court erroneously modified the property settlement which it had made in its earlier decree. Specifically, the wife contends that the circuit court in its original judgment gave the wife and child possession of the parties’ former residence and ordered the husband to make the monthly mortgage payments on the home until the wife’s remarriage, at which time the home would be sold and the proceeds divided between the parties. The wife submits that this provision constituted a property settlement (or an award of alimony in gross) and that it cannot be modified under the law of this state. We disagree.

The original decree of divorce provided that the wife and her child were entitled to possession of the family residence and that the husband was obligated to pay the monthly mortgage notes thereon; the decree continued by stating, “but in the event the Complainant [wife] shall remarry, then the home place shall be sold, and after the costs incident to the sale and the mortgage balance thereon have been paid, the net balance shall be divided equally between the parties.”

We believe that the original divorce decree ordering the husband to pay the mortgage installments on the couple’s former residence did not constitute a property settlement. The divorce decree indicates that the parties were to sell the property and divide the proceeds between them. The wife and child were given the right to remain in possession of the home until the wife remarried and the husband was ordered to pay the monthly mortgage installments on the house until the balance of the mortgage no longer existed. But if the wife did subsequently remarry, both husband and wife would contribute to the satisfaction of the mortgage indebtedness. As a consequence of the contingency of the wife’s remarriage it is impossible to ascertain if the husband would ultimately pay the entire mortgage indebtedness or only a portion thereof. Had the court in its original judgment of divorce intended that the mortgage payments be used as a device to complete an equitable distribution of the property between the parties, it is difficult to imagine why that obligation would have been dependent upon a contingency that might or might not occur in the future thus subjecting the value or total of the husband’s obligation to uncertainty in terms of dollars and cents. Alexander v. Alexander, 526 P.2d 934 (Okl.1974).

We held in McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977), that an award is alimony in gross or a property settlement when the amount of payment is fixed. The circuit court’s original divorce decree did not meet this requirement.

Although an outstanding mortgage indebtedness is a fixed amount since the indebtedness of a mortgage may be calculated with certainty, the husband in the present case was not directed to satisfy the entire mortgage debt. He was only obligated to pay off the balance of the mortgage if his wife did not remarry before the debt had been liquidated. However, if she did remarry before the balance of the mortgage was paid, she would provide one-half of the cost of satisfying the mortgage indebtedness. Consequently, no one could predict the extent of the husband’s obligation in regard to the mortgage on his former home. Therefore, we conclude that the payment of the monthly mortgage installment on the parties’ property was not a part of a division of property or an award of alimony in gross. The monthly payments which the husband was ordered to make by the judgment of divorce were a supplement to the periodic alimony payments described in the decree, and as such were modifiable upon a showing of changed circumstances. See Alexander v. Alexander, supra.

Moreover, in discussing the distinctions between alimony in gross and periodic alimony, the supreme court in Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) said that: “ ‘periodic alimony’ is an allowance for the future support of the wife payable from the current earnings of the husband” and “[w]hen the type of the award or awards intended is not particularly specified, the source of payment and the purpose are of prime importance.”

In the instant case the original award was not specified as being either alimony in gross or periodic alimony, hence the source and purpose of payment is an important criteria in establishing what type of award was intended by the trial court.

Based on the record before us, it would not have been unreasonable for the trial court to conclude that payment of the monthly alimony and child support obligation and the payment of the mortgage installment each month would come from the husband’s current earnings. Nor would it be unreasonable for the trial court to have concluded that the payment of the mortgage installments was necessary for the current support and maintenance of the wife and child while the wife remained unmarried. Indeed, such a construction of the divorce judgment may well have been warranted in view of the fact that both wife and child were to retain possession of the family residence. Thus, the judgment would be subject to modification or change for the purpose of implementing the welfare or support of the child. Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973). Consequently, we hold that the requirement that the husband pay the mortgage payments was a part of the periodic alimony and child support award. This being so, that portion of the decree dealing with the payment of mortgage installments could be modified; however, the court could not modify the payments which had matured prior to the wife’s petition to establish ar-rearages solely on the basis that the husband lost his interest in the property once held jointly by the parties. On the facts before us any change in regard to the mortgage payments was entitled to prospective effect only. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964); Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); and Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963).

In the present case the husband lost his interest in the couple’s jointly owned property as a result of his refusal to pay his former wife the amounts mandated in the original divorce decree. However, the circuit court amended the original decree in the order it entered on the wife’s motion for a judgment of arrearage. The court held that since the husband did not own any interest in the property in question he was no longer responsible for the monthly mortgage payments; the court further concluded that the husband’s obligation to provide such payments terminated on the date that the wife purchased his interest in the property. This latter action erroneously modified the court’s earlier judgment awarding the wife a monthly housing supplement to her periodic alimony and child support payments. The trial court had no authority to retroactively apply its subsequent modification of the mortgage payments provided for in its original decree to the date that the husband lost his interest in the jointly owned property. Payments arising after that date constituted outstanding judgments as they became due. Accordingly, the trial court could not eliminate the wife’s right to collect these judgments by retroactively modifying the monthly housing supplement to the periodic alimony and child support payments.

The final issue for our review involves the wife’s assertion that the circuit court incorrectly computed the amount of arrear-age. In view of the trial court’s failure to consider the past due mortgage payments in its judgment on the wife’s action to determine the amount of the arrearage owed to her by her former husband, it is apparent that the court incorrectly computed the amount of payments which were in arrears.

For the error committed, the judgment of the trial court is reversed and the cause remanded.

Appellant has requested that we award her a reasonable sum of money so that she might compensate her attorney for his services on this appeal. Due to the apparent financial circumstances of the parties in this proceeding and the fact that no attorney’s fee was awarded below, we decline to award such a fee. Furthermore, we feel that we are also precluded from awarding an attorney’s fee in the present case due to the provisions of Title 30, chapter 2, section 54, Code of Alabama 1975. See Carnes v. Shores, 55 Ala.App. 608, 318 So.2d 305 (1975).

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    J. B. JONES TIMBER CO., INC. v. Harry L. WILLIAMS.
    Civ. 1308.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
    Charles C. Partin, III, Bay Minette, for appellant.
    Samuel G. McKerall, Gulf Shores, for ap-pellee.
   WRIGHT, Presiding Judge.

Plaintiff originally brought an action in trespass for the cutting of trees. The defendants were J. B. Jones Timber Co., Inc. and C & L Timber Co. Jones was granted summary judgment. Verdict and judgment were had against C & L for $5,000 in January 1975. Finding the judgment against C & L uncollectible, plaintiff brought'an independent action against Jones in November 1975. At the same time plaintiff included claims against Jones for trespass, conversion, detinue, common count and breach of contract. The basis of all the claims was that of the original suit, the cutting of plaintiff’s timber.

The court set aside the summary judgment in the judgment on the bill of review and proceeded to trial with verdict and judgment for plaintiff in the amount of $5,000. Defendant appeals. The first issue presented is whether the court erred in granting relief under Rule 60(b).

The basis of the bill of review is the charge that the granting of the original summary judgment in favor of Jones was erroneous because at the time of the entry there were answers to interrogatories in the file which if considered would have presented a genuine issue as to a material fact and thus precluded entry of such judgment as a matter of law. The issue was whether C & L committed the trespass upon plaintiff’s land at the direction of Jones.

The facts upon which plaintiff relies are: Jones, a timber broker, purchased timber which it subsequently sold to C & L. C & L in cutting the timber crossed the line of plaintiff and cut some of his timber. At the time of the entry of summary judgment in favor of Jones, there were in the court file interrogatories propounded by Jones to C & L and the answers of C & L. One of the questions asked whether Jones’ forester had pointed out the boundary fence between the timber sold and that of plaintiff. C & L answered that the forester of Jones had' “pointed out to an agent of C & L certain fence lines and informed the agent for C & L that the fence line pointed out was not an effective boundary.”

Plaintiff contended that at the time of judgment he did not know of this answer of C & L, as he was not served with the interrogatories and answers between Jones and C & L. Plaintiff’s theory is that the answer of C & L presents a scintilla of evidence that Jones directed or participated in the trespass of C & L. Had the answer been considered by the court, summary judgment would have been contrary to law.

The trial court agreed with the contention of plaintiff and set aside the summary judgment.

We will not get involved in discussing whether a bill of review was a proper proceeding in this case. The appeal must be decided adversely to plaintiff on his own theory for relief. That is, that the answer of C & L to the interrogatory presents an issue of fact.

Answers to interrogatories may not be considered on motion for summary judgment unless they are admissible in evidence and otherwise conform to the requirements of Rule 56(e). S & S Logging Co. v. Barker, 366 F.2d 617 (9th Cir. 1966); 10 Wright & Miller, Fed.Prac. & Proc., § 2722. See Oliver v. Brock, 342 So.2d 1 (Ala.1976). The answer depended upon by plaintiff was clearly hearsay and not stated as personal knowledge. Indeed, if the answer were admissible, we do not consider it legally sufficient to furnish a scintilla that Jones directed, or participated in, the trespass committed by C & L. There is not alleged or shown any relationship of master-servant or principal and agent between Jones and C & L. To the contrary, there was no such relationship through which Jones had any right of direction or control over C & L. Therefore, Jones could not be charged with any act of C & L. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So.2d 757 (1939). The statement allegedly made by the agent of Jones to an agent of C & L was at most an opinion or the giving of information.

We declare the setting aside of the summary judgment on the ground that the answer to the interrogatory was sufficient to present a material issue of fact was erroneous.

It is unnecessary to discuss the further issues, that the answer was inadmissible at trial, and that defendant Jones’ motions for directed verdict and judgment notwithstanding the verdict were due to be granted. Certain it is that if the answer were inadmissible to prevent summary judgment, it was inadmissible at trial. At that time it was not only inadmissible as hearsay, but also for absence of opportunity for cross-examination. Rule 26(b), ARCP; 4A Moore’s Fed.Prac. ¶ 33.29. It is further certain that even if admissible, standing alone, as it did, it was insufficient to furnish even a scintilla for the jury.

It is the judgment of this court that the court erred in granting relief from the summary judgment and in holding trial on the merits. We further find the trial court erred in failing to sustain objection of defendant to the admission into evidence of the answer of C & L Timber Co. to the interrogatory of Jones filed in the original case. We further find that the trial court erred in failing to direct a verdict upon motion of defendant Jones. Other issues presented are pretermitted.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . Such independent proceeding as a bill of review remains available under Rule 60(b), ARCP under the same conditions as before adoption of the rule. See Committee Comments, Rule 60(b), ARCP.


text:
    Billy G. STILWELL v. Opal STILWELL.
    Civ. 1310.
    Court of Civil Appeals of Alabama.
    April 5, 1978.

      James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, P. C., Huntsville, for appellant.
    Glenn F. Manning, of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Plaintiff, Opal Stilwell, filed suit for divorce from her husband, Billy G. Stilwell, in August 1976 in the Circuit Court of Madison County. The grounds for divorce were cruelty, incompatibility, and irretrievable breakdown of the marriage. The defendant husband answered by denying the allegations of the complaint and sought a divorce on the ground that his wife was an habitual user of alcohol.

After a hearing ore tenus, the trial court granted a divorce to the plaintiff on the grounds set out in her complaint; awarded the custody of two minor girls to the plaintiff; ordered defendant to pay to plaintiff $125 per month for the support of each child and $50 per month as periodic alimony; allowed defendant certain prescribed visitation privileges with his children; ordered defendant to convey his interest in the household furnishings to plaintiff (except certain enumerated items of personal property which were to be retained by defendant); directed the parties to convey their respective interests in two automobiles to each other; required defendant to convey his interest in the marital home to plaintiff; required defendant to maintain in force and effect certain listed insurance policies for the benefit of plaintiff and the children; ordered defendant to satisfy a second mortgage on the home; and ordered defendant to pay to plaintiff $2,400 for her attorneys’ compensation. From this judgment defendant appeals.

The issues on appeal are: (1) did the trial court err in awarding the custody of the two nine year old girls to plaintiff; (2) were the visitation privileges accorded defendant inequitable; (3) did the court err in awarding a divorce to the wife on the ground of cruelty; and (4) was the award of alimony, child support and division of property excessive in view of defendant’s income.

The evidence shows that the parties were married in 1962, separated in 1976 and divorced in 1977. During the marriage the husband worked at Redstone Arsenal. He is a security guard and now has a base salary of $10,532 per year. However, he supplements his income by working overtime and has engaged in this practice for the past several years. In 1973 defendant received $10,410.63; in 1974 $11,191.27; and in 1975 $12,531.71.

The plaintiff wife works parttime as a typist for a court reporter, earning about $250 to $300 per month.

The bulk of the evidence presented at trial was directed toward the fitness of the parties to be custodians of the two young girls; moreover, this evidence centered on the part alcohol played in the lives of both parties to this proceeding.

Several witnesses, including the children and the defendant, testified that the wife drank alcohol (mainly beer) quite frequently and on occasion would become intoxicated. The frequency of the instances in which the wife drank to excess was in dispute. On one hand, the husband stated that the wife’s drinking had reached the point where it interfered with her household chores and rendered her incapable of looking after the children. Defendant even stated that plaintiff was a hazard to the welfare of the children in that when she was drinking she would smoke and would either pass out or go to sleep with a lighted cigarette in her hand thus creating the possibility of a serious fire. On the other hand, plaintiff’s employer stated that she had been in the plaintiff’s house at all hours of the day and night as well as having talked to the latter on the telephone during all hours and that she (the employer) had never seen or heard plaintiff when the latter was under the influence of alcohol. Plaintiff’s employer further stated that plaintiff was a good housekeeper and was good to the children. Furthermore, she testified that it appeared to her that plaintiff loved the children and wanted to be a good mother. The children, however, stated that they wished to live with their father. The mother explained that the reason the children wanted to live with their father was because he had poisoned them against her. Plaintiff also testified that the father had tried to replace her in the children’s affections and that he had told the children that they were not required to obey their mother.

In regard to‘his contention that the trial court incorrectly awarded custody of the children to his ex-wife, defendant argues that the court erred by placing the burden on him to prove that the wife was unfit.

At the beginning of the hearing the trial court said:

“THE COURT: Tommy Baxter, [attorney for defendant] the only way you are going to get custody is to prove the mother to be unfit. If you can do that the Court will give consideration to it, and without substantial testimony in that regard you lose. Now, do you have such testimony?
“THE COURT: ... She is going to get the kids, I know that and both of you know that, unless he can prove that she is unfit. That is his burden. Why not let him seek to prove that at this time.”

From this discourse it is quite obvious that the trial court considered the mother’s unfitness to be decisive of the custody question.

To begin, the primary consideration in a child custody case is the best interests and welfare of the child. Rogers v. Rogers, Ala.Civ.App., 345 So.2d 1368 (1977). And, in deciding what is in the best interests of a child, a court is bound to consider the following principle of law:

“Ordinarily where a child is of such tender age as to require the care and attention that the mother is specially fitted to bestow, the mother rather than the father is the proper custodian unless for some reason she is unfit for the trust.” Burleson v. Burleson, 269 Ala. 637, 114 So.2d 887 (1959).

In the case at bar the two young girls were nine years old. The supreme court has held that nine year old children fall within the “tender years” doctrine. McBride v. McBride, 268 Ala. 619, 109 So.2d 718 (1959).

However, defendant asserts that the above stated principle is inapplicable to this case since the children expressed a desire to live with him rather than with their mother. But we should add that the custody preferences of children are not controlling on the court, Patterson v. Patterson, Ala.Civ.App., 345 So.2d 1364 (1977), although such preferences are entitled to much weight. Rogers v. Rogers, supra.

The evidence of the relative fitness of the plaintiff and defendant to have custody of their two nine year old daughters is in sharp conflict and no good purpose would be served by rehashing their behavior, whether virtuous or blameworthy. Suffice it to say that unless we are convinced— and we are not so convinced — that the trial court’s award of the children’s custody to the plaintiff is plainly and palpably erroneous, we are bound to affirm. Accordingly, we affirm the court’s award of the custody of the two minor children to the plaintiff wife.

Defendant’s next contention is that his visitation privileges are inequitable.

In settling visitation privileges, the trial court is accorded wide latitude and each case will be decided on its own peculiar facts. Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437 (1973).

In the present case defendant was given visitation two weekends out of each month; fourteen consecutive days in June, July and August of each year; and he and plaintiff are to alternate Thanksgiving and Christmas of each year. It is further provided in the decree that if visitation is not undertaken within the approximate time listed, such visitation period is forfeited.

Defendant complains that he works a swing shift and that he might not be able to pick the children up or return them as scheduled. The record does not convince us, as it obviously did not convince the trial court, that defendant could not make arrangements to have someone else pick up or return the children at the appointed times in the event that he was unable to do so. We find no error in that part of the court’s decree which dealt with visitation.

Defendant’s next objection to the trial court’s decree concerns the award of a divorce on the ground of cruelty. He argues that there is no evidence in the record to support such a finding.

The trial court’s decree divorcing the parties is based on three grounds, i. e. cruelty, incompatibility, and irretrievable breakdown of the marriage. And, there is ample evidence in the record to support the finding of incompatibility and irretrievable breakdown. Nonetheless, defendant argues that the decree should be reversed because one of the grounds, i. e. cruelty, on which the divorce was granted was unsupported by the evidence. Without deciding initially the validity of defendant’s argument, we consider the alleged error to be within the ambit of the “harmless error” rule found in Rule 61 of the Alabama Rules of Civil Procedure. As pointed out, the evidence amply supports the granting of the divorce on the grounds of incompatibility or irretrievable breakdown of the marriage and, as a result, the parties are divorced regardless of whether there is evidence of cruelty. Hence, we can perceive of no substantial injury to defendant.

Nevertheless, we think the cruelty ground is supported by the evidence.

The plaintiff testified as follows:

“Q. Mrs. Stilwell, throughout the marriage and in particular beginning in 1972, and up until the time of the filing of your petition for divorce, until the time you were actually separated, were there—was your marriage characterized by frequent arguments, frequent—
“A. Screaming battles.
“Q. —discussions?
“A. Yes.
“Q. Screaming battles, you would describe them as?
“A. Yes.
“Q. Will you tell the Court whether Mr. Stilwell was prone to use profanity to you, call you abusive names and so forth?
“MR. BAXTER: We object to being repetitious, previously testified to.
“THE COURT: Overruled.
“Q. Go ahead.
“A. Yes. He calls me every name in the book.
“Q. Such as?
“A. A whore; a slut; a bitch; a mother-fucker; a stupid, dumb-assed woman. Stupid idiot, Sherlock Holmes, and that’s been on numerous occasions, any time he got mad, really.
“Q. Is it your testimony that in the course of arguments between you and him that if he would lose his temper that generally speaking it would result in such abusive type language, is that what you are talking about?
“A. Right. Not for just a few minutes, sometimes for weeks it went on.
“Q. Was it frequently in the presence of the little girls?
“A. Right.
“Q. Mrs. Stilwell, this suit, I believe was filed August 18th, 1976, and there was a restraining order and certain Pen-dente Lite relief granted to you at the time of the filing of the petition by Judge John Green. Are you familiar with the Pendente Lite order issued August 18, 1976?
“A. Right.
“Q. In that order Mr.Stilwell was directed to remove himself from the premises at 4012 Shelby Avenue. And to remain away from those premises without your permission until further order of the Court, is that correct, is it not?
“A. Correct.
“Q. And do you know approximately when the — Mr. Stilwell was served with a copy of the order? Was made aware of the order?
“A. 21st, I believe.
“Q. Was he served there at the home?
“A. Well, let me state this: I told him — I took the children and took them to my sister’s, because I didn’t want them there when they served him with the thing.
“Q. In other words, between the time the suit was filed and the time of service of the papers, you went to your sister’s?
“A. Right.
“Q. And then when you learned that the papers had been served, did you return there to Shelby?
“A. No. Let me tell what really happened. I carried them down there when I knew they were fixing to serve him, because I didn’t want the children there. And I came back, when I came back into town I called Bill on the phone to tell him that the children were all right and all this. And he had called the police, he said he had an APB out on me, he called the police, the sheriff, the FBI, anyway, he said that I was being looked for all over the place. I met him then out at where Shirley works. And I tried to talk to him, I really tried to talk to him. And I don’t know, I was scared, quite frankly. I was afraid of him at the time. And then he was served, I believe the next— well, it was within two days, I think, from the time this happened.”

In Ross v. Ross, 279 Ala. 50, 181 So.2d 491 (1965) the supreme court, when faced with a similar factual situation, said:

“The evidence shows that for a long number of years there had been almost continuous quarreling between Mr. and Mrs. Ross, accompanied by threats on the part of Mr. Ross. True he had never committed actual violence on her. However, Mrs. Ross testified that Mr. Ross had a violent temper and she was afraid of him and that he was highly jealous and frequently accused her of unfaithfulness. On at least one occasion, if not two, Mr. Ross went in search of his wife with a gun. The weight of his explanation as to why he carried the gun on at least one search was primarily for the trier of fact.
“Also primarily for the trier of fact was whether Mrs. Ross’ departure from the family abode was because of a reasonable apprehension on her part of danger to her life or health. Assuredly, if a reasonable apprehension was harbored by Mrs. Ross, no rule of law would require her to await actual violence. As stated in Evans v. Evans, 1 Hag.Rep. 35:
“ ‘In a state of personal danger no duties can be discharged; for the duty of self preservation must take place before the duties of marriage, which are secondary both in commencement and obligation.’
“In the present case we think the evidence sufficient to have warranted the chancellor’s conclusions that because of the respondent’s conduct the complainant was in reasonable apprehension of danger to her life or health, and further that legal cruelty was sufficiently established to warrant the decree in the premises. Particularly is this true in view of the presumption of correctness to be accorded the findings of the court below before whom the evidence was taken ore tenus.”

Consequently we find no error in this aspect of the trial court’s decree.

Defendant’s final complaint is that the trial court erred in its award of alimony and child support and in its disposition of property.

We said in Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973), that:

“The amount of alimony to be awarded to the wife in a divorce case is addressed to the sound discretion of the trial court, Butler v. Butler, 274 Ala. 352, 148 So.2d 638, as is the amount to be paid for the support of the children, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891, and the exercise of such discretion will not be revised on appeal unless the court is deemed to be palpably in error. Davis v. Davis, 274 Ala. 277, 147 So.2d 828.
“Cases in Alabama indicate an award of alimony to the wife alone should not exceed one-half of the husband’s net income. Brady v. Brady, 144 Ala. 414, 39 So. 237. However, where children are involved the supreme court has affirmed awards exceeding one-half of the husband’s net income. Whitfield v. Whitfield, 283 Ala. 433, 218 So.2d 146; Wells v. Wells, 230 Ala. 430, 161 So.2d 794; Rogers v. Rogers, 215 Ala. 259, 110 So. 140. However, each case must depend upon the facts and no mathematical formula can determine what is an appropriate award of alimony or child support.”

In the present case the evidence showed that defendant’s base pay before deductions was $405.72 bi-monthly or $10,548.72 per annum. However, his income tax returns for the years 1973, 1974 and 1975 showed earnings in excess of his base pay due to overtime work. In 1975 his earnings exceeded $12,000 per annum. There was also evidence that defendant had worked occasionally in businesses owned by his relatives. The amounts earned in these efforts were not revealed.

The court awarded $50 per month alimony and $250 per month child support. In addition, the court required defendant to keep in force certain medical and life insurance policies for the benefit of the plaintiff and the children. An additional expenditure of $16.80 per month was required by this aspect of the decree. Defendant was also directed to pay off a second mortgage on the house and this obligation entailed payments in the sum of $126 per month. This mortgage would be satisfied in ten to twelve months.

The total monthly expenditure required by the decree in addition to income tax payments, retirement, insurance, etc. was $442.80. Taking into consideration all of the expenditures required of the defendant, and the fact that his income could fluctuate between $12,000 and $15,000 per year depending on overtime worked at his regular job and the work performed for his relatives, defendant would have available for living expenses a monthly sum of $350 to $500.

Defendant had testified that his expenses would amount to about $500 per month. However, it should be noted that this sum includes the $126 second mortgage payment which will be paid off in about a year, plus a Master Charge account of $50 per month that will be paid in approximately seven months.

Moreover, defendant could, in order to reduce his indebtedness, sell some of his personal property such as his four-wheel drive International Travel-All or alternatively some or all of his large collection of guns.

In view of the circumstances mentioned above, we cannot say that the trial court is plainly in error in that aspect of the decree relating to alimony and child support.

As a final issue, defendant claims that the trial court erred in its disposition of the property. This argument is based on the fact that the court ordered that all household furnishings be given to the wife. The defendant retained all of his personal property. He was also ordered to convey his interest in the family home to plaintiff. There was an outstanding first mortgage on the property of about $6,000 which plaintiff was required to satisfy. One automobile was given to plaintiff and another vehicle plus the Travel-All were given to defendant.

The parties had been married fourteen years and the plaintiff was given custody of their two nine year old daughters. She was also given a divorce on the grounds of cruelty, incompatibility, and irretrievable breakdown of the marriage. Again, considering the length of the marriage, the causes of its breakup, and the responsibilities placed on the parties after the divorce, we are not prepared to hold that the trial court committed error in its disposition of the property.

No reversible error having been argued, the judgment appealed from is affirmed.

Plaintiff’s motion to strike defendant’s brief and to dismiss the appeal is denied.

AFFIRMED.

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


author: PER CURIAM.

text:
    Bruce Vernel WATSON v. Eldred C. DOTHARD, as Director of the Department of Public Safety of the State of Alabama.
    Civ. 1380.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
    Robert M. Hill, Jr. and Bruce L. Aune, Florence, for appellant.
    William J. Baxley, Atty. Gen. and Kent B. Brunson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant, through able and distinguished counsel, petitioned the Circuit Court of Montgomery County to enjoin the revocation of his driver license by the Director of the Department of Public Safety. Upon motion of the director, the circuit court granted the director’s motion for summary judgment. The appellant appeals.

The Director of the Department of Public Safety suspended the driver license and driving privilege of the appellant. The revocation by the director was a mandatory act taken pursuant to Tit. 36, § 68, Code of Alabama 1940. The reason for the' director’s action, as revealed by the record, was because the appellant had allegedly been convicted of driving while intoxicated. This offense occurred in the State of Arkansas.

The appellant thereafter petitioned the Circuit Court of Montgomery County for injunctive relief. Specifically, the appellant’s petition, in pertinent part, is as follows:

“WHEREFORE, Premises Considered plaintiff requests the following relief:
“1. That a temporary restraining order be granted against defendant as Director of the Department of Public Safety of the State of Alabama restraining and enjoining the revocation of plaintiff’s driver license and driving privileges.
“2. That upon final hearing said injunction and restraining order be made final and that any purported conviction of plaintiff on the charge of driving while intoxicated in the State of Arkansas be held invalid and illegal and not to be enforced in the State of Alabama.”

In response to the above, the Department of Public Safety filed a motion for summary judgment alleging that the “appeal does not lie” and that the circuit court lacked subject matter jurisdiction over “this appeal.” The circuit court granted the Department of Public Safety’s motion for summary judgment; hence, this appeal.

While it is the policy of this court to decide appeals on their merits wherever possible, we cannot do so in this instance.

The revocation in this instance was a mandatory act by the director under Tit. 36, § 68, of the code. Since the act of the director is nondiscretionary, there can be no appeal of or petition for hearing the revocation. Rogers v. Russell, 284 Ala. 477, 225 So.2d 879 (1969); May v. Lingo, 277 Ala. 92, 167 So.2d 267 (1964). Any action for review must be by petition for mandamus. Director of Dept. of Public Safety v. Moore, 54 Ala.App. 351, 308 So.2d 711 (1975). The review sought by the appellant in this instance and below was clearly not by mandamus. Hence, the trial court did not err in granting the motion for summary judgment.

AFFIRMED.

All Judges concur.

      . Alabama and Arkansas are members of tl Code of Ala.1940 (1973 Cum. Pocket Part). Driver License Compact. Tit. 36, § 75(26),


author: HOLMES, Judge.

text:
    Peggy Lee ARMAGOST v. Keith E. ARMAGOST.
    Civ. 1385.
    Court of Civil Appeals of Alabama.
    April 5, 1978.

      J. Knox Argo, Montgomery, for appellant.
    John L. Capell, III, Montgomery, for ap-pellee.
   HOLMES, Judge.

The Circuit Court of Montgomery County modified a previously awarded amount of child support. Specifically, the trial court reduced the amount of child support for two minor children from approximately $180 every two weeks to $136 every two weeks. The wife through able counsel appeals. We affirm.

The dispositive issue is whether the trial court abused its discretion in reducing the amount of child support. We find it did not commit such an abuse as to require a reversal of its action.

At the outset, we would note that the record before this court is hardly a paragon of clarity. In any event, viewing the record with the attendant presumption of correctness the law requires, we find the following:

At the time of the previous award of child support, the father had income of approximately $26,500. The year prior to the present modification hearing, the father had income of approximately $17,000. There was some evidence that his income would even be reduced more in the coming months. However, we deem the testimony as to future income reduction to be speculative.

The reason for the reduction from $26,500 to $17,000 appears to be that the husband is now medically retired as an air traffic controller. This retirement was for a “nervous disorder.” He is now enrolled in college and will soon receive his master’s degree.

While able counsel for the mother presents cogent reasons why the trial court should not have reduced the award of child support, the fact remains that there is testimony, if chosen by the trial court to be persuasive, that the father’s income has been considerably reduced. This, in this instance, prevents our reversing the trial court.

It is the law in Alabama that the modification of a prior provision for child support is a matter within the sound discretion of the trial court. This court will not disturb such discretion unless there is such an abuse of discretion as to make the decision plainly and palpably wrong. See Travis v. Travis, Ala.Civ.App., 345 So.2d 321 (1977); White v. White, Ala.Civ.App., 334 So.2d 908 (1976). We cannot say that the trial court is plainly and palpably wrong.

It is also the law in Alabama that we cannot substitute our judgment for that of the trial court if there is any reasonable inference presented from the evidence that the decree is correct. Edwards v. Edwards, Ala.Civ.App., 333 So.2d 597 (1976); Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

We would note, as we understand the trial court’s decree, that the alimony provision of the previous decree is not affected. Put another way, the wife’s award of alimony is not reduced.

We would also note that the wife is not prevented from seeking modification of child support and/or alimony in the future; particularly, in view of the fact that presumably the husband will seek gainful employment upon graduation. Such employment will hopefully enable him to better provide for his minor children.

In view of the above, this case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.