author: BEATTY, Justice. MADDOX, Justice

text:
    CITY OF HUEYTOWN, a Municipal Corporation v. H. S. BURGE et al.
    SC 1666.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    Rehearing Denied Feb. 25, 1977.

      James H. Weaver, Jr., Birmingham, for appellant.
    Ralph L. Armstrong, Bessemer, for appel-lees.
    Drayton N. Hamilton, Montgomery, for Ala. League of Municipalities, amicus curiae.
   BEATTY, Justice.

This is an appeal from a decision of the Circuit Court of Jefferson County, Bessemer Division, holding that certain municipal ordinances of the City of Hueytown were void as applied to appellees and members of their class, and enjoining the city from collecting taxes or fees under those ordinances from members of that class. We modify and affirm.

The plaintiffs filed a complaint against the City of Hueytown in Jefferson Circuit Court, Bessemer Division, alleging that they were representatives of a class of merchants whose businesses were located outside Hueytown’s city limits but within its police jurisdiction. The Court was asked to render the following relief:

1. To declare that Hueytown’s Ordinances 3-J and 209 are unconstitutional, illegal and invalid as applied to the plaintiffs and others similarly situated;
2. To suspend the operation of those ordinances against plaintiffs and others similarly situated;
3. To declare that Ordinance 209 is unenforceable and uncollectible respecting sales made outside the City of Hueytown;
4. To determine that refunds should be made to the plaintiffs, attorneys fees and other costs to be paid, and equitable relief, if any, be awarded plaintiffs.

We quote pertinent parts of Ordinances 3-J arid 209:

Ordinance No. 3-J:
Section 9. That the schedule of license for the year beginning October 1st, 1973 required to be paid to the City of Huey-town for engaging in''or carrying on businesses, occupations, or professions, without said City but within the police jurisdiction thereof, is hereby declared to be one-half the amount required for engaging in or carrying on such businesses, occupations or professions within the City of Hueytown.
Ordinance No. 209:
Levy of Tax in Police Jurisdiction. There is hereby levied, in addition to all taxes of every kind now imposed by law, a privilege or license tax against the persons on account of the business activities ... as follows:
(a) Upon every person engaged or continuing, within the police jurisdiction of the city and beyond the corporate limits thereof, in the business of selling at retail any tangible personal property whatsoever, including merchandise and commodities of every kind and character .
(b) . . . operating places of amusement or entertainment, billiard and pool rooms, bowling alleys, amusements devices, musical devices, theater?, opera houses, moving picture shows, .
(c) . . . selling at retail machines used in mining, quarrying, compounding, processing and manufacturing of tangible personal property, .
(d) . . . selling at retail any automotive vehicle, truck trailer, semitrailer or house trailer, .

Following the trial, the lower court awarded plaintiffs’ relief, holding:

1. That Ordinances 3-J and 209 were void and of illegal effect as applied to plaintiffs and all other merchants similarly situated;
2. That operation of such ordinances was suspended as applied to plaintiffs and all other merchants similarly situated;
3. That the City of Hueytown was permanently enjoined from interfering with the plaintiffs and all other merchants similarly situated in reference to collection of tax or fees imposed by such ordinances.

The City of Hueytown appeals from this order, citing Alabama Code, Tit. 37, § 733 (Recomp.1958) as authority for their position:

“Any city or town within the state of Alabama may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city or town but outside the corporate limits thereof; provided, however, that the amount of such licenses shall not be more than one-half the amount charged and collected as a license for like business, trade or profession done within the corporate limits of such city or town, fees and penalties excluded. Provided, further, that when the place at which any such business, trade or profession is done or carried on within the police jurisdiction of two or more municipalities which levy the licenses thereon authorized by this section, such licenses paid to and collected by that municipality only whose boundary measured to the nearest point thereof is closest to such business, trade or profession. Provided that this section shall not have the effect to repeal or modify the limitations in this article relating to railroad, express companies, sleeping car companies, telegraph companies, telephone companies and public utilities, and insurance companies and their agents.”

The quoted statute allows a municipality to assess a license tax against businesses located outside the corporate limits of the municipality but within the police jurisdiction in order to reasonably reimburse the city for supervision of the businesses so located, including police and fire protection. Atlantic Oil Company v. Town of Steele, 283 Ala. 56, 214 So.2d 331 (1968); City of Homewood v. Wofford Oil Company, 232 Ala. 634, 169 So. 288 (1936). When such an assessment occurs it is presumed to be a valid exercise of the police power of a municipality unless it is shown that the city has manifestly abused its power or invalidity appears from the face of the ordinance itself. Atlantic Oil Company v. Town of Steele, supra; City of Andalusia v. Fletcher, 240 Ala. 110, 198 So. 64 (1940).

Our authorities have placed the burden on the challenger to establish affirmatively by competent evidence that abuse or invalidity exists, Franks v. City of Jasper, 259 Ala. 641, 68 So.2d 306 (1953); City of Andalusia v. Fletcher, supra. Although these tax levies may not be imposed as a source of general revenue, Alabama Power Company v. City of Carbon Hill, 234 Ala. 489, 175 So. 289 (1937), the presumption that the ordinances are valid exercises of the municipality’s police power, as we have indicated, requires that the challenger go forward with competent evidence that the city has imposed an illegal tax.

By stipulation, documents relating the operating expenses for the police and fire departments, together with records of the revenues received from business licenses and sales tax licenses, were admitted into evidence. Also admitted were a listing of licenses issued in the police jurisdiction for the years 1969-73 and a recapitulation of license tax collections for the years 1969-73 and a part of 1974.

Several witnesses testified for the plaintiff expressing various complaints concerning the inadequacy of protective services outside the city limits but within the police jurisdiction. Each of these witnesses paid business license and sales taxes to the City of Hueytown.

The license and sales tax revenue figures for police jurisdiction businesses are revealing. When compared with general revenue receipts they show:

1969

1970

1971

General license revenue

$62,010.95

$73,224.95

$79,460.77

General sales tax revenue

39,576.98

64,232.92

69,093.00

Police jurisdiction licenses

1,953.10

2.215.54

5,054.05

Police jurisdiction sales taxes

3,627.05

4.566.54

2,046.05

1972 1973

$94,230.80 $103,781.28

90,050.39-102,861.00

4,342.78 4,989.72

1,865.27 2,105.47

On the other hand, general operating expenses for the fire and police departments during the same period were:

1969

$101,524.61

1970

$111,944.53

1971

$135,948.50

1972

$161,536.70

1973

$191,101.94

Obviously, the receipts from business licenses and sales tax collections from in-city sources far exceed those from police jurisdiction businesses, but this fact does not make legal the taxes imposed on the latter. Not only do the police and fire department expense records themselves fail to distinguish between in-city and police jurisdiction services, but the testimony of the mayor and the fire and police department heads establishes as a fact that in projecting their budgetary requirements no consideration has. been given to the differences between the cost of rendering services to police jurisdiction businesses and those offered to others. The fire chief testified that it cost the city $158.83 for each fire call answered; however, this figure was an average based upon all such calls, whether inside or outside the city. On the question regarding cost allocation between such calls he testified:

Q. In this 1972 budget, how much of this budget did you set aside or how much of this budget is allocated to the cost of your supervision of those visits outside of the city?
A. It’s all mixed up with the ones in the city.
Q. There’s no separate account to supervise these businesses outside of the city limits?
A. No, sir, it’s all mixed up.
Q. Now, the budget for the year 1973, it was the same way as 1972?
A. The same amount of money?
Q. No, but it was the same regarding about not allocating anything outside, but all mixed up, no billing out by the city of your department ahead of time as to what the cost is going to be or the estimate is going to be to supervise those businesses, just all lumped in together, is that correct?
A. That’s correct.

He also testified that usually at the end of the year he would prepare a report of the in (city) and out calls for the information of the mayor and council, but he did not furnish them with any other statistics, and at budget hearings did not ask the council to make allocations for inside and outside operations.

The testimony of the police chief established the number of complaint calls and investigations inside and outside the city, the size of his staff, and the nature of the supervision extended. But on the subject of cost allocation this exchange occurred:

Q. Did you take into consideration all or did the City of Hueytown take into consideration how much it would cost to supervise those business establishments outside of the city limits but within the police jurisdiction?
A. No, it was all submitted as a whole for the jurisdiction and the city limits too.

The mayor testified that revenue derived from these ordinances went into the general fund, after which he stated:

Q. Do you all have a meeting out there in the City of Hueytown with the other city officials to attempt to allocate to the budget how much it’s going to cost or supervise those businesses as far as fire and police protection outside of the police jurisdiction?
A. Which do you mean?
Q. Do you and other city employees or officials get together at a budget meeting and attempt in any way to ascertain or project how much it’s going to cost the City of Hueytown to provide police and fire protection to the merchants out there from whom you derive revenue?
A. As I stated before, this is a whole thing, it’s not broken down. We do not in that sense meet and do things like that.
Q. You don’t have any earthly idea how much it cost to police or give fire protection or supervise those businesses out there?
A. No.

He also testified:

Q. . So, it’s my understanding, Mayor Jackson, that expenditures are made from the general fund to provide sanitation and garbage service to the residents of the City of Hueytown but not to the people who live outside of the city, but who pay half license? (Emphasis supplied.)
A. That’s correct.

And later:

Q. Let me ask you this, how do you arrive at that half license, Mayor?
A. I don’t think I can give you an intelligent answer on that. This has been in effect for many[,] many years, I think.

On the record we are convinced that the trial court was imminently correct in its order enjoining enforcement of these ordinances against these plaintiffs since it clearly appears that the city’s decision to tax them was an arbitrary one, affirmatively shown to be based upon no effort to relate the fees to the reasonable cost of supervision. No such effort having been shown, it follows that the imposition of the taxes on police jurisdiction businesses was for general revenue purposes, an impermissible course of municipal action. Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659 (1947); Tit. 37, § 733, Ala.Code.

Although this complaint originally was filed as a class action, which the defendant city denied in its answer, apparently no evidence was offered on the question nor did the trial court make an order determining whether the action should be so maintained as it is required to do under Rule 23, ARCP. This is necessary for reasons of notice to possible class members and ultimately to allow conformity with the requirements of the judgment under Rule 23(e)(3). There having been no such determination and order, the only parties-plaintiff before the Court were the individuals so named, and the judgment could extend only to them. It appears that none of the parties was prejudiced by the failure to make the class action determination, and none is claimed. Even so, that portion of the decree applicable to “all other merchants whose businesses are located within the police jurisdiction of the City of Hueytown, Alabama, but outside the corporate boundaries of the said City” is due to be stricken, and it is so ordered.

AFFIRMED AS MODIFIED.

FAULKNER, JONES, ALMON and EMBRY, JJ., and FRANK B. EMBRY, Supernumerary Circuit Judge, sitting by designation of the Chief Justice, concur.

BLOODWORTH, MADDOX and SHORES, JJ., dissent.

MADDOX, Justice

(dissenting).

The majority opinion concedes that an assessment such as here involved is presumed to be valid and that the burden is on the challenger to show that the City has manifestly abused its power or that the ordinance is void on its face. Nevertheless, the majority holds, in effect, that the challenger sustained his burden in this case by showing that the City “in projecting their budgetary requirements no consideration has been given to the differences between the cost of rendering services to police jurisdiction businesses and those offered to others.” The majority does not hold that the amount of the tax as a police measure was so much out of proportion to what was reasonable in relation to the challenger’s business, “as to show that it is a subterfuge to raise revenue.” Cf. Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 175 So. 289 (1937).

The majority holds that “the city’s decision to tax them was an arbitrary one, affirmatively shown to be based upon no effort to relate the fees to the reasonable cost of supervision.” The majority then concludes: “No such effort having been shown, it follows that the imposition of the taxes on police jurisdiction businesses was for general revenue purposes, an impermissible cause of municipal action. Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659 (1947); Tit. 37, § 733, Ala.Code.”

In Hawkins, the mayor there testified that they were collecting “from these people outside the city limits money for use of the general welfare of everybody.” 249 Ala. at 239, 30 So.2d at 663.

In fact, in Hawkins, the “revenue from licenses on filling stations paid the entire cost of the fire and police departments, for those years, when combined, with some left over for other purposes.” (Emphasis added). Here, the evidence is undisputed, and the majority has conveniently set out in its opinion, that the total receipts from licenses and sales tax in the police jurisdiction represented a small portion of the operating expenses, not to mention capital expenditures, of the police and fire departments. Furthermore, there was evidence presented which showed that the City Council had available to it the total number of police calls and fire calls both in and out of the city. It was uncontradicted that the City, during the period 1969-1973, made 593 calls within the city and 158 calls out of the city. During the period 1969-1973, the City made 953 rescue calls in the city and 93 out of the city.

The police chief testified, as follows:

“Q Chief, do you keep certain log books and records and all complaints and other types of calls that come into the city, or do others at your direction and employed in your department make entries into such logs?
“A Yes, sir, there’s a daily report made every day by each policeman pulling his duty, including the Chief of Police, and reviewed by me every day.
“Q Do you monthly make a summary report as given to the council as reflecting those calls?
“A I make a monthly report on the first day of each month to the Mayor and City Council, the number of arrests and complaint calls, the number of burglaries and every other means that come to the police department. I submit it to them and make a yearly report at the end of the year. We have to make a report to the FBI each month too.”

He also testified that he answered all calls both within and outside the city, and prepared a detailed report which showed the number of calls to businesses located within the police jurisdiction which showed a substantial number of calls to businesses, including several to “C&G Foodland,” owned by one of the challengers. The Chief also testified as follows:

“Q Now, Chief, you also prepare an annual budget for the council each year?
“A Yes, sir.
“Q In preparing that budget, do you take into account your prior year’s expenses as to the money and duties and requirements as to your department?
“A Yes, if I have an additional expense, more territory added, you have to judge what it will cost to take care of it and submit it to the council for they’re (sic) approval.
“Q You have nothing to do as to whether they approve it or not?
“A No, sir.”

It is undisputed that adequate records are kept by the City to show that the license tax imposed was not out of proportion to the supervision required.

The trial court made no findings of fact. It merely held that the ordinances “are hereby declared void and of illegal effect.” I think the trial court erred in determining that the levies were illegal. The guidelines for making the legal determination are set out in Hawkins, relied on so strongly by the majority. In Hawkins, it is said:

“[Cjities are not authorized under the Constitution to levy a license tax on business located wholly within its police jurisdiction and outside the city limits for the purpose of raising general revenue either directly or indirectly; but in levying such an assessment, the amount must be so fixed as to reflect reasonable compensation for the expense of municipal supervision over the particular business or vocation at the place where it is licensed.
“The supervision here referred to properly includes services of the police and fire departments, including standby facilities, sanitary inspectors, and such other employees as may be necessary to see that reasonable requirements are observed with respect to disorders, fires, sanitation, and safety in other respects, of each such business in its relation to all of the businesses within such territory.
“But the action of the municipality in fixing an amount which appears to be a fee for such purposes will not be disturbed by the courts unless it is manifest that it was not based upon a proper consideration of the power and duty which the city owes under such circumstances, but is intended as a subterfuge to raise revenue on a broad basis, and the courts will not scrutinize the amount of the license fee too narrowly when it can be reasonably found to be predicated upon a sincere effort on the part of the city authorities to fix the fee on a basis which is justified under the Constitution.
“It is also here important to note that ‘when the unreasonableness vel non of an ordinance or by-law is asserted or urged, the question thus made is to be decided by the court, not by the jury.’ City of Andalusia v. Fletcher, supra [240 Ala. 110, 198 So. 64; Briggs v. Birmingham Ry., Light & Power Co., 188 Ala. 262, 66 So. 95; City of Birmingham v. Louisville & N. R. Co., 216 Ala. 178, 112 So. 742.”

I believe the uncontradicted evidence shows that the City made “a sincere effort,” as Justice Foster wrote in Hawkins, to predicate its tax upon a constitutional basis. Plaintiff Burge, probably without realizing it, testified to this sincerity. He stated that when complaints were made, the Mayor said “that the City of Hueytown was not in the business to make money but to sell services.”

The record, in this case, in my opinion may show that Hueytown is losing money in furnishing services to the police jurisdiction. For instance, the police chief, as the majority concedes, testified that it cost the City $158.83 to make a fire call, and this did not include capital expenditures. The record is clear that 158 fire calls were made in the police jurisdiction between 1969-1973. Multiply 158 calls by $158.83 and the total is $25,095.14. The total amount collected by Hueytown from licenses and sales taxes between 1969-1973, was only $32,-765.57. In other words, it cost Hueytown $25,095.14 of the $32,765.57 just to provide fire protection services (not including capital expenditures) in the police jurisdiction. The 93 rescue calls and 157 police calls shown by the record to have been made during the five-year period were provided by Hueytown, and it got $7,670.43 in exchange.

The record itself shows, in my opinion, that the ordinances were reasonable.

BLOODWORTH and SHORES, JJ., concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    The FIRST NATIONAL BANK OF BIRMINGHAM, a National Banking Corporation v. William Turner CULBERSON, Jr., et ux.
    SC 1588.
    Supreme Court of Alabama.
    Jan. 21, 1977.
    Rehearing Denied Feb. 25, 1977.
    W. Gerald Stone of Stone, Patton & Kierce, Bessemer, for appellant.
    Norman K. Brown, Bessemer, for appel-lees.
   BEATTY, Justice.

Appellant, The First National Bank of Birmingham, appeals from a summary judgment granted in favor of appellees, Mr. and Mrs. Culberson. The issue on appeal concerns the priority to real property which each party claims. We reverse and remand.

George Griffin was a real estate developer in the Jefferson County area. He incorporated two companies to aid him, Residential Planners, Inc., designed to be the area developer, and Planned Homes, Inc., the builder of homes. Residential Planners’ certificate of incorporation was filed on November 25, 1970 in the Probate Judge’s Office of Jefferson County. Planned Homes’ certificate of incorporation was filed on December 14, 1970 in the Probate Judge’s Office of Jefferson County. The charter and by-laws of these corporations were practically identical, as the record shows. Appellees assert that they were so identical that they were in legal effect one corporation with two names.

The real property to be developed was a tract of land lying entirely within the Bes semer Division of Jefferson County. It was conveyed to George Griffin from Otis D. Coston and wife by warranty deed dated November 22, 1971, and recorded in the Birmingham Division on December 1, 1971 in real volume 772, page 839. On that same November 22, 1971, Residential Planners, Inc. conveyed this same property to Cobbs, Allen & Hall Mortgage Company and this mortgage was recorded in the Birmingham Division simultaneously with the deed from the Costons to Griffin.

Later, a corrective warranty deed of the same property from the Costons to George Griffin, undated but acknowledged on January 31, 1972, was recorded on February 3, 1972 in the Bessemer Division of Jefferson County to “CORRECT THAT CERTAIN DEED RECORDED IN REAL VOLUME 772, PAGE 839, IN THE OFFICE OF THE JUDGE OF PROBATE OF JEFFERSON COUNTY, ALABAMA” (Emphasis supplied). A second corrective deed of the same property, acknowledged the same day, from George Griffin and wife to Residential Planners, Inc., was recorded in the Bessemer Division on February 3, 1972 simultaneously with the corrective deed from the Costons to Griffin (the mortgage from Residential Planners, Inc. was recorded in the Bessemer Division at this time). The second corrective deed recited that it was “TO CORRECT THAT CERTAIN DEED RECORDED IN REAL VOLUME 772, PAGE 839, (the original Costons to Griffin deed) IN WHICH THE NAME OF THE GRANTEE WAS MISTAKENLY ENTERED AS GEORGE GRIFFIN IN LIEU OF RESIDENTIAL PLANNERS, INC.”

To recapitulate, the title transactions were in this sequence:

Nov. 25, 1970: Incorporation of Residential Planners, Inc.

Dec. 14, 1970: Incorporation of Planned Homes, Inc.

Nov. 22, 1971: Deed from Costons to Griffin.

Nov. 22, 1971: Mortgage from Residential Planners, Inc. to Cobbs, Allen & Hall. Dec. 1, 1971: Mortgage from Residential Planners, Inc. recorded in Birmingham Division.

Dec. 1, 1971: Mortgage from Residential Planners, Inc. to Cobbs, Allen & Hall recorded in Birmingham Division.

Jan. 31,1972: Deed from Costons to Griffin to correct deed of Nov. 22, 1971.

Jan. 31,1972: Deed from Griffins to Residential Planners, Inc. to correct deed of Nov. 22, 1971.

Feb. 3, 1972: Recordation in Bessemer Division of two correction deeds and mortgage from Residential Planners, Inc. to Cobbs, Allen & Hall.

July 20, 1972: Building Construction Agreement “between” Culbersons and Planned, signed by Culbersons and Residential (by Griffin as President of Residential, for building to be constructed on Lot 5, Sterling Manor West (unrecorded).

Sept. 27, 1972: Deed of Lot 4 from Residential Planners, Inc. to Planned Homes, Inc.

Release by Cobbs, Allen & Hall of Lot 4 from mortgage of November 22, 1971.

Future Advance Mortgage on Lot 4 from Planned Homes, Inc. to First National Bank.

Oct. 3, 1972: Instruments of Sept. 27, 1972 recorded in Bessemer Division.

April 26, 1973: Deed of Lot 4 from Planned Homes, Inc. to Culbersons.

May 25, 1973: Recordation of Culberson deed in Bessemer Division.

One of the many couples who chose to invest in Griffin’s development are the ap-pellees, who arranged with Griffin to have a house constructed for them. Following their negotiations, the Culbersons delivered to Planned Homes, Inc. a $5,000.00 check drawn on The First National Bank of Birmingham representing the purchase price of a lot in Sterling Manor West, the subdivision being developed by Residential Planners, Inc. The Culbersons signed a building construction agreement on July 20, 1972 with Planned Homes, Inc., which was designated as builder of a house to be constructed on Lot 5, Sterling Manor West. Among the clauses contained in this construction agreement is one stating that “the property shall be conveyed by a general warranty deed to the purchaser by the builder after the final payment has been made to the builder,” and another stating that:

Physical possession of improvements to said real estate shall be deemed to have been surrendered by the Buyer to the Builder as of the time work is commenced hereunder and to continue in said Builder until said work is completed, and the Buyer shall [not] be entitled to occupancy of said premises or any part thereof unless and until the aforesaid contract sum, adjusted as to additions and deductions, if any, have been determined and paid in full.

The designation of Lot 5 was later changed to Lot 4 by Griffin who endorsed a copy of the plans and specifications of the Culberson home with the following:

Lot 5 on the contract dated 7/20/72 has been changed to read Lot 4 instead of Lot 5. George Griffin.

Griffin explained that this change was made necessary due to an inadvertence in the numbering of the lots in the subdivision, and that on the finally approved plan which was recorded, Lot 5 as referred to in the contract actually was Lot 4 as shown on the plat. This, he stated, was the lot he and the Culbersons agreed upon. He did not remember when he made this change. In fact, when he later applied to the Bank for a construction loan he still thought the Cul-bersons were on Lot 5, and, in fact, all the money he drew from the bank on that loan went to another lot, not to the Culberson lot.

Plans and specifications for the Culberson house were furnished to the Bank with Griffin’s loan application on behalf of Planned Homes, Inc. The outside of these bore the symbols “SM-5” in red ink which had been written over with “SM-4” in green. The site plan and specifications furnished the Bank, however, bore “Lot 5.”

At the time the parties entered into the construction agreement Griffin signed as President of Residential Planners, Inc. Griffin explained this signature as an inadvertence since Planned Homes, Inc. did the construction work, while Residential Planners, Inc. bought the land to be built upon and sold it to Planned Homes, Inc., all for tax purposes. At this juncture we note that the Bank’s answer denied the Culber-sons’ legal title and denied that the contract was with Residential, contending that the contract was between the Culbersons and Planned Homes, Inc. This agreement was not recorded. Within a week after the Culbersons submitted the check to Griffin for the purchase price of the lot, Griffin nailed a visible “sold” sign on a pine tree in the front of what he thought was Lot 5. Two weeks later another visible sign was placed upon the same tree below the first sign, this one reading “Custom Built for Mr. & Mrs. Bill Culberson.”

The Culbersons delivered to Griffin three additional checks aggregating over $27,-000.00 made payable to Planned Homes, Inc., drawn on The First National Bank to cover installments on the construction of their house, and these checks were paid to Griffin by the Bank. Approximately three weeks after the Culbersons paid their fourth installment, the outside doors to their home were hung. Because the interi- or was being finished, Mrs. Culberson unlocked the house each morning for the workmen (apparently the building superintendent also had keys to the house), and then locked the house each night, meanwhile placing some of their personal possessions in the house. The record reveals that while the work was going on and until completion Mrs. Culberson was physically present on the premises during the day before September 25, 1972, although Mrs. Culberson stated that:

. for some time after September 25, 1972, my husband and I continued to maintain our home in Fairfield. We spent nights in our home in Fairfield, and continued to maintain it as a home until April 29, 1973, at which time we moved the remainder of our household furnishings not previously moved into the new house.

On September 25, 1972, Griffin made application to The First National Bank of Birmingham for a construction loan on Lot 4. Using a form provided by the Bank, he signed in his capacity as President of Planned Homes, Inc. The form called for the name and address of the purchaser of the house and a copy of the sales contract should the house on which the loan was negotiated have been pre-sold. In the space provided for this information, Griffin inserted a dash ( — ), which, he stated, he meant that it wasn’t sold. He added:

At that point in time this property was not the Culbersons’ property, as far as I was concerned. ... At the time I made it they had Lot 5. In my own mind they had Lot 5. And I was placing a loan on Lot 4, which later didn’t jive.

The Bank approved the loan application and took a mortgage, September 25, 1972, on Lot 4 from Planned Homes, Inc. This mortgage was recorded October 3, 1973 in the Probate Judge’s Office, Jefferson County, Bessemer Division. A deed from Residential Planners, Inc. to Planned Homes, Inc., executed September 20, 1972, was recorded with this mortgage. During this time the Culbersons continued to make payments under their construction agreement with Planned Homes, by checks drawn on the defendant Bank, and Planned Homes gave them a deed to Lot 4 on April 26,1973. Also during this period, an agent of the defendant Bank inspected the lot in question at least three times after the signs had been posted and after the Culbersons had placed possessions in the house.

On October 5, 1973, the Bank proceeded to foreclose on the mortgage given it by Planned Homes, Inc. The Culbersons filed their complaint on November 2, 1973, posted bond and received a temporary injunction against the Bank restraining this foreclosure. On August 8, 1975, the Culbersons filed a motion for summary judgment based upon pleadings, affidavits, depositions and exhibits. The Bank did likewise on October 13, 1975. On November 6, 1975, the trial court granted the Culbersons’ motion for summary judgment, denied the Bank’s similar motion, set aside the Bank’s mortgage, and permanently enjoined the Bank from foreclosing the mortgage.

The basic issue raised by the Bank on this appeal is whether the trial court erred in finding that the Bank was not a bona fide purchaser for value, i. e., that the Bank was a purchaser with knowledge of facts sufficient to put it on inquiry regarding the Culbersons’ prior equity at the time the Bank took its mortgage from Planned Homes, Inc. on Lot 4. If we could determine from the record that the status of the Bank’s mortgage in relation to the Culber-sons’ equity remains in issue, this would require a reversal of the trial court’s decision.

Elements of a bona fide purchase, enumerated in Murphree v. Henson, 289 Ala. 340, 267 So.2d 414 (1972), include (1) a purchase of legal title, (2) in good faith, (3) for adequate consideration, (4) without notice of any claim of interest in the property by any other party. The law of this state charges a purchaser with notice of the contents of instruments by which he takes title and of all facts which would be disclosed by reasonably diligent search. Jefferson County v. Mosley, 284 Ala. 593, 226 So.2d 652 (1969).

In granting the plaintiffs’ motion for summary judgment it is apparent that the trial court found that there was no genuine issue of material fact on the question whether the defendant Bank was a bona fide purchaser for value when it took its mortgage from Planned Homes, Inc. on October 3, 1972. And in that connection, we quote from the trial court’s order:

The undisputed facts as appear in the Affidavit of Plaintiff, Dillie Ray Culber-son, show that Defendant George Griffin turned over to Plaintiffs the keys to Plaintiffs’ home on September 22, 1972, prior to Defendant Bank’s mortgage, and that the Plaintiffs locked the home each night, and returned each morning to unlock the doors so that Defendant Griffin’s workmen could complete the inside work;
None of the above facts were disputed by counter affidavits or otherwise. These facts showing acts of actual possession were clearly open, visible, and obvious. These facts are undenied except in Defendant Bank’s Answer which states in Paragraph 2 thereof “. . . plaintiffs did not have legal title to the lot nor were plaintiffs in possession of it when the Bank’s mortgage was recorded”, and again in Paragraph 11 thereof “. Bank again denies that plaintiffs had any legal title to the lot and had actual or constructive possession of said lot at such time . . . ”. The denial of Plaintiffs’ possession in Defendant Bank’s Answer is insufficient on Motion for Summary Judgment, in that Rule 56(e) ARCP clearly provides that: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of the pleadings. In fact, it can be perilous for the opposing party neither to proffer any countering evidentiary materials nor to file an affidavit. Ray vs. Midfield Park, Inc., 308 So.2d 686; 293 Ala. 609.

In this we have concluded that the trial court erred, since there is at least a scintilla of evidence furnished by the deposition of the witness Jones, the Bank’s real estate inspector, contesting the possession of Lot 4. In that deposition offered by the Bank in support of its own summary judgment motion filed after that of the plaintiffs, Jones states that he first inspected Lot 4 when the foundation was laid and found some lumber there also. This inspection was made in connection with Griffin’s application for a loan, and he inspected the premises about once or twice a month thereafter, and “watched it go up from the foundation on.” He did not know when the Culbersons actually moved in, and did not recall having seen Mrs. Culberson before the deposition was taken. Not only did this evidence make an issue of the Culbersons’ possession, but both Mrs. Culberson’s deposition and the trial court’s order show that workmen were present much of the time when Mrs. Culberson was at the site. While the trial court may have been correct in characterizing the Culbersons’ acts of possession as “open, visible, and obvious,” it is questionable whether these acts were also unambiguous and exclusive, as our cases require. Lightsey v. Stone, 255 Ala. 541, 52 So.2d 376 (1951). Notwithstanding the fact that the Culbersons had keys to the house before they actually began to live there, Mrs. Culberson’s own statement poses the question whether their possession was exclusive, or joint with Griffin because his workmen were still present on the premises, apparently in accord with the construction agreement. A joint possession with the vendor is not unambiguous, but equivocal. O’Neal et al. v. Prestwood, 153 Ala. 443, 45 So. 251 (1907).

Therefore, in connection with plaintiffs’ motion for summary judgment, there was more before the court than defendant’s denial in its answer. The rule of Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975) does not apply.

In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate, Rule 56(e) ARCP; 6 Moore’s Fed. Prac., par. 56.15 (2nd ed. 1971). Put in another way, “[Wjhere the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing eviden-tiary matter is presented.” Lyons, Alabama Practice, p. 352.

For the error in granting the plaintiffs’ motion for summary judgment when there was a genuine issue of material fact, the nature of plaintiffs’ possession, the case must be reversed and remanded. This action renders it unnecessary to comment upon the other issues presented by the parties.

REVERSED AND REMANDED.

MADDOX, FAULKNER and EMBRY, JJ., and FRANK B. EMBRY, Supernumerary Circuit Judge, sitting by designation of the Chief Justice, concur.


author: SHORES, Justice.

text:
    Wallace LOGAN and James M. Holmes v. Emil BUETTNER, an Individual, et al., etc.
    SC 1966.
    Supreme Court of Alabama.
    Jan. 21, 1977.
    Rehearing Denied Feb. 25, 1977.
    William W. Smith for Knight, Knight & Griffith and Hogan, Smith & Alspaugh, Birmingham, for appellants.

      Ralph Bland and Finis St. John, Cullman, Clarence L. McDorman, Jr., Birmingham, for appellees.
   SHORES, Justice.

Wallace Logan and James M. Holmes were injured in a fire which occurred in an apartment which they rented from Buett-ner. Terry Chambers, a visitor in the apartment at the time of the fire, died as a result of the fire. Chambers’ widow brought an action for wrongful death against Buettner and the Utility Board of the City of Cullman. At the conclusion of the Chambers case, the trial court granted the defendants’ motion for directed verdict. Mrs. Chambers appealed and this court affirmed the trial court in Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975).

Logan and Holmes filed separate suits against the same defendants and made the same allegations of negligence as were made in the Chambers case. The defendants filed motion for summary judgment and, in support thereof, filed the transcript of the evidence in the Chambers case. The plaintiffs’ counsel filed an affidavit in opposition to the motion which stated, in essence, that the evidence in the Logan and' Holmes cases may or may not be the same as was presented in the Chambers case. The trial court then granted the motion for summary judgment and, in its order, noted that:

“It is the opinion of the Court that the facts before this Court are identical with the facts in Case No. 13683 [Chambers] and the Court has before it no evidence to indicate that there is or will be any genuine issue as to any material fact that will differ from Case No. 13683.”

Logan and Holmes appealed from this judgment. We reverse and remand.

In affirming the directed verdict in favor of the Utility Board in Chambers, this court held that there was no evidence that the Board had actual knowledge of any defect or insufficiency in the electrical system in the Buettner building, and liability was held to be predicated upon actual knowledge of a defect. As to Buettner, we held:

“The general rule of law with respect to guests of tenants is well settled. The landlord, in the absence of a covenant to repair, is liable only for latent defects, known to him at the time of the leasing, and which are concealed from the tenant.
. There was no proof in this case either that Buettner had agreed to make any needed repairs to the premises, a part of which were rented to Chambers’ hosts on the fateful occasion, or that Buettner knew of and concealed any latent defect in the premises relating to the electrical system.” (321 So.2d at 653)

Chambers also contended that she was entitled to have her case submitted to the jury on the theory that Buettner retained control of the conduit which caused the fire, because it was not sufficiently grounded. In affirming the trial court’s directing of the verdict on this theory, we said:

“The two principal reasons the theory advanced by Chambers, last referred to, will not operate under the rule set out in the Restatement to permit a jury to pass on the liability of Buettner to Chambers are: (A) There was no evidence that Bu-ettner retained control over that portion of the premises where the conduit was located that may have been insufficiently grounded. (B) There was no evidence that Buettner could have discovered the condition and the risk involved. As to B some evidence would be necessary which showed at least a rudimentary knowledge on the part of Buettner of proper methods of electrical wiring systems, grounding etc. so that any discoverable condition that existed would have alerted him to a risk of physical harm to anyone lawfully on the premises.” (321 So.2d at 654)

It is clear that the affirmance of Chambers was grounded on the failure of proof as to actual knowledge on the part of the Utility Board and the absence of any evidence that Buettner had knowledge of any defect in the premises, or that he retained control over the portion of the premises upon which the conduit was located, and no evidence that he could have discovered the condition of the conduit and the risks involved.

However, the failure of proof in Chambers does not require the conclusion that Logan and Holmes will also be unable to supply such evidence.

On a motion for summary judgment, the moving party has the burden of establishing the nonexistence of any genuine issue of material facts, therefore entitling him to judgment as a matter of law. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Until that burden is discharged, the non-moving party is under no obligation to come forward with anything. To discharge the burden which the law places on him, which is admittedly quite strict, the moving party must affirmatively show that the evidence on which the plaintiffs rely in this case is the same as the evidence offered by the plaintiff in the Chambers case. Stated differently, the defendants, on motion for summary judgment, must demonstrate that, if the case goes to trial, there will be no competent evidence to support a judgment in favor of the plaintiffs, and that a trial is, therefore, useless. Wright & Miller, Federal Practice and Procedure: Civil § 2727. The movants here have not carried this burden.

The trial court correctly granted the defendants’ motion for directed verdict in Chambers, because the plaintiff failed to establish by some evidence certain essential elements of the theories of recovery relied on. There is nothing in the record before us to indicate that these plaintiffs will also be unable to prove these elements, and they are not required to show that they will be able to do so to defeat a motion for summary judgment. To the contrary, the movant for summary judgment must carry the burden of showing that he is entitled to judgment as a matter of law, and he does this by showing that there is no genuine issue of a material fact left in the case. True, the theories of the plaintiffs’ cases here are the same as in Chambers, but that does not mean that the proof offered in support of those theories will be identical to the proof offered by Chambers. When the motion for summary judgment was filed, the plaintiffs had alleged negligence on the part of the Utility Board and their landlord, resulting in injury to them. The defendants cannot establish the absence of a genuine issue of fact by relying on the evidence offered in another case, without also affirmatively showing that the evidence which will be offered in this case is necessarily identical.

It is true, as the Utility Board and Buettner contend, that one of the tests for determining whether the moving party has satisfied his burden on summary judgment motion, is to determine whether a motion for directed verdict would be properly granted on the same evidence. Moore, Federal Practice, ¶ 56.15[3]. But this rule, too, contemplates that the exact evidence is being considered. Obviously, if the plaintiffs in this case offer the same evidence as Chambers offered, the defendants will be entitled to a directed verdict. However, we cannot assume that they will offer only that evidence which was offered by Chambers. The proof which Chambers failed to put forward may be difficult to supply, but these plaintiffs are entitled to try to supply it, and they are not required to produce it to defeat a motion for summary judgment.

Nor are they bound by the evidence offered by Chambers in an entirely separate lawsuit. Even in retrials of the same lawsuit, a party is not bound by the testimony of his own witnesses offered at a former trial, and if contradictory or inconsistent testimony is offered on a second trial, he need not explain the testimony of his witnesses at the former trial. Louisville & Nashville Railroad Co. v. Johns, 267 Ala. 261, 101 So.2d 265 (1958).

The defendants having failed to carry the burden of establishing that no genuine issue of material fact exists, it follows that the trial court erred in granting their motion for summary judgment. The judgment is, accordingly, reversed and remanded.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Charles W. HAWK v. BAVARIAN MOTOR WORKS et al.
    SC 1878.
    Supreme Court of Alabama.
    Feb. 4, 1977.

      John T. Roach, Jr., Birmingham, for appellant.
    L. Murray Alley and W. Stancil Starnes, Birmingham, for appellees.
   EMBRY, Justice.

The issue in this case is whether, in all circumstances, the failure to file a written denial of a pleading to which a response is required, under Rule 8(d), ARCP, admits the allegations of that pleading where the issues tried are embraced in prior pleadings that were responded to in writing.

Under the facts in this case we find defendants’ failure to file written denial of plaintiff’s added count to his complaint, where the issues presented by such were embraced in other counts which had previously been responded to in writing, did not entitle plaintiff to a directed verdict on the added count.

This is a products liability case filed by Charles Hawk against Bavarian Motor Works and Butler & Smith, Inc., manufacturer and distributor, respectively, of motorcycles. Hawk claims he was injured as a result of defects in the BMW motorcycle he was riding. The original complaint contained six counts. The theories upon which Hawk asserted liability of defendants to him for his injuries in certain of those counts were:

Count One

Negligent design, manufacture, inspection, testing or sale of the motorcycle when it was not reasonably safe for use.

Count Two

That defendants knew or should have known the motorcycle was not fit and safe for use and negligently failed to warn Hawk that a defect in it would make it wobble, wiggle or vibrate (in the manner Hawk alleged it occurred) resulting in the accident causing his injuries.

Count Five

Breach of warranty for the motorcycle containing inherent defects causing it to wobble, wiggle or vibrate resulting in the accident causing his injuries.

Defendant BMW filed answer to the complaint, specifically denying the motorcycle was the subject of defective materials or workmanship; was negligently designed, manufactured, inspected or tested; was unfit or unsafe to transport members of the public, or there was any negligent failure to properly and adequately warn and caution members of the public.

Defendant Butler & Smith, Inc., filed answer denying any negligence or wantonness and specifically denying it negligently designed, manufactured, inspected or tested the motorcycle.

Later, plaintiff amended his complaint by adding count seven alleging defendants received notice the motorcycle was defectively designed or manufactured so as to allow it to wobble, vibrate or lose stability making it uncontrollable and unsuitable for the purpose for which it was designed or manufactured and defendants wantonly failed to notify plaintiff of that defect.

After defendants failed to file written answer to count seven, the case went to trial. Both at the close of his case, and that of defendants, Bavarian Motor Works and Butler & Smith, Hawk moved the grant of his written motion for directed verdict on count seven, urging Rule 8(d) required it. However, his motion was denied and defendants’ motions for directed verdicts as to that count were granted. Appropriate judgment was entered from which this appeal is taken.

The basis upon which Hawk says reversible error occurred is that failure to file an amended written answer admits the allegations of count seven, thus fixes defendants’ liability and entitles him to directed verdict on that count under Rule 8(d). We disagree.

Rule 8(d), ARCP, is identical to Rule 8(d) of the Federal Rules of Civil Procedure. It reads:

“(d) Effect of Failure to Deny. Aver-ments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”

In this case this court has its first occasion to construe Rule 8(d). There is no doubt the amendment adding count seven is “ * * * a pleading to which a responsive pleading is required, * * * Numerous decisions of the federal courts hold that failure to file a timely answer is an admission of those allegations in a complaint which are not denied, e. g., Weitnauer Trading Co., Ltd. v. Annis, 516 F.2d 878 (2d Cir. 1975); Amalgamated Meat Cutters and Butcher Workmen v. Knouse Foods Cooperative, Inc., 259 F.Supp. 592 (M.D.Pa.1966). Defendants say that Rule 8(d) is not to be strictly applied in this case; that Rule 15(b) operates to relieve the necessity of so applying it. Rule 15:

“(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. * * * >>

True, in count seven defendants were charged with wanton failure to notify plaintiff of defects in the motorcycle, while count two of the original complaint charged defendants with negligent failure to warn. By written answer to the original complaint, Butler & Smith denied any negligence or wantonness; BMW denied negligent failure to properly and adequately warn the public. In substance, the other allegations of count seven were the same as those of the original complaint.

The aim of Rule 15(b) is to ensure that if it is apparent the parties litigant have adequate notice of the issues to be tried and those issues are defined by them; exemplified by their conduct of the trial, demonstrating an understanding of those issues, mere failure to file an additional answer to a recast theory of one issue already stated in a previously filed pleading could not reasonably and fairly require strict application of Rule 8(d) to thwart the just determination of this action.

Count seven states nothing so materially different from what is stated in the original complaint so that an answer to the original would not sufficiently answer the amendment. The issue of failure to warn was embraced in the original complaint; defendants’ denials in their previously filed answers met the substance of count seven. Failure to specifically respond directly to the amended complaint did not result in an admission under Rule 8(d).

Assuming arguendo without deciding, that defendants’ answer did not sufficiently meet the substance of count 7, raising the possibility of an 8(d) admission, there is yet another factor which militates against plaintiff. Under Rule 15(b), issues tried by express or implied consent of the parties are treated in all respects as if they had been raised in the pleadings. In such a case, the pleadings may be amended to conform to the evidence, but if not, the result of the trial of those issues is not affected. Most caSes involving this aspect of Rule 15(b) have involved failure of plaintiffs to specifically state certain of the issues in their complaints. The rule is equally applicable here where plaintiff contends defendants’ failure to answer count seven resulted in the failure of that count to frame an issue.

Implied consent to the trial of an issue may be found when a party fails to object to evidence offered concerning it, when the party himself offers such evidence. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975). Plaintiff had adequate notice the matters in count seven were in issue since defendants had substantially answered the allegations of that count. Further, plaintiff introduced the issues in count seven in his opening statement; both plaintiff and defendants offered evidence directed to those issues. Not until after that evidence was gone into did plaintiff object and contend the issues were not properly triable because defendants did not file an amended answer. On the contrary he actively engaged in presenting evidence embraced within issues raised by count seven and defendants’ original answer. There was no doubt upon the part of the parties as to what issues were being tried. The issues presented in count seven were properly presented and tried and allowed for a proper decision on the merits.

Rule 15(b) is not permissive: it provides that issues tried by express or implied consent shall be treated as if raised in the pleadings. 3A Moore’s Federal Practice 996.

If one party raises an issue material to the other party’s case, or if evidence is introduced without objection, implied consent is ordinarily found. 3A Moore’s Federal Practice 994; Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289 (5th Cir. 1973).

If a party objects to the introduction of evidence at the trial on the ground that it is not within the issues framed by the pleadings, he must show that he would be actually prejudiced in maintaining his action or defense on the merits by the admission of the evidence. 3A Moore’s Federal Practice 1011.

No prejudice to plaintiff resulted from failure of defendants to file an amended answer. A ruling in accord with plaintiff’s contention would be contrary to the purpose of the Rules to further the resolution of litigation on its merits, not on technicalities. For a decision with similar facts and in accord with this decision see La Gorga v. Kroger Co., 407 F.2d 671 (3d Cir. 1969).

AFFIRMED.

BLOODWORTH, JONES, ALMON and BEATTY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Thomas E. RAIDT v. Conway O. CRANE and Mollie B. Crane.
    SC 1916.
    Supreme Court of Alabama.
    Feb. 4, 1977.
    Rehearing Denied March 4, 1977.

      J. Ronald Storey, Dothan, for appellant.
    G. M. Harrison for Merrill & Harrison, Dothan, for appellees.
   BLOODWORTH, Justice.

Plaintiff Raidt appeals from a judgment dismissing his complaint for breach of an agistment agreement and awarding defendants Crane damages in the amount of $3,000 on their counterclaim. We affirm the dismissal of plaintiff’s complaint, but reverse the judgment on defendants’ counterclaim and remand this cause to the trial court for a new trial on the counterclaim.

In October 1972, Raidt and the Cranes entered into a written agistment contract, whereby the Cranes agreed to receive, for pasture on lands owned by them, cattle to be purchased by Raidt. The Cranes agreed to pasture Raidt’s cattle on adequate pasture, to care for, protect, feed, water, and salt Raidt’s cattle in a first-class manner and in accordance with the rules of good animal husbandry, and to furnish grazing ample to keep the cattle in first-class condition at all times. They also agreed that Raidt was to have exclusive use of the pasture. The agreement was to continue for five years.

During the Winter of 1974-75, a dispute arose between Raidt and the Cranes. Thereafter, Raidt filed suit against the Cranes, alleging that they had failed to perform their obligations under the contract and that, as a result, his cattle were in extremely poor condition, had decreased greatly in market value, and had suffered calf loss much greater than if they had been properly nourished and cared for. Raidt demanded damages in the amount of $20,-000.

In their answer, the Cranes admitted the execution of the agistment agreement, but averred that the written agreement which they signed failed to include a provision by which they and Raidt were to share equally the costs of all supplemental feed and minerals. They alleged that such a provision had appeared in a writing which had been used as a model for their agreement with Raidt and that they and Raidt had agreed that the provision would be included in the written agreement. They further averred that they did not discover the absence of the provision until a dispute arose in the Winter of 1974 — 75. The Cranes’ answer also denied that Raidt had performed all of the conditions which he agreed to perform. They further denied Raidt’s allegations that they had failed to perform their part of the agreement and that as a result of their breach his cattle were in extremely poor condition.

The Cranes filed a counterclaim against Raidt, alleging that Raidt by sharing the cost of supplemental feed during 1972 through part of 1974 had ratified the agreement as entered into prior to the execution of the written agreement. They further alleged that since the Winter of 1974-75 Raidt had refused to pay his share for supplemental feed and minerals.

Raidt denied all the averments of the Cranes’ counterclaim.

After hearing the evidence ore tenus, the trial court dismissed Raidt’s complaint and rendered judgment of $3,000 for the Cranes on their counterclaim. Raidt appeals.

Raidt’s basic contention on appeal is that the trial court’s judgment is not supported by the evidence.

The Cranes’ contention is that the trial court’s judgment is fairly supported by credible and competent evidence and should not be set aside by this Court. They abandon the theory that the written agreement did not accurately state the terms actually agreed upon and argue on appeal that the evidence shows that the written contract was modified by an oral agreement of the parties to share equally the cost of supplemental feed. Certain evidentiary rulings by the trial court would seem to indicate that the trial court rejected the Cranes’ original theory.

It is axiomatic that where the evidence has been taken ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence. Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 176, 111 So.2d 906 (1959).

Relying upon the ore tenus rule, we affirm the trial court’s dismissal of Raidt’s complaint. Raidt presented considerable evidence that his cattle were underfed and in poor condition. This evidence was not, however, undisputed. John L. Gunter, an experienced cattleman who was familiar with Raidt’s herd, testified that the cattle had been given plenty of feed and that in his opinion the cattle had been pastured and fed in a first-class manner and in accordance with the rules of good animal husbandry. In view of this testimony, we cannot say that the trial court’s dismissal of Raidt’s complaint was clearly erroneous or unsupported by credible evidence.

We reverse the trial court’s judgment awarding the Cranes $3,000 on their counterclaim and remand this cause to the trial court for a new trial thereon. There is no evidence which we can find in the record to support the Cranes’ contention that the agistment agreement was orally modified to provide that Raidt would share with them the cost of all supplemental feed. There was testimony by Conway Crane that Raidt agreed to pay half the cost of planting millet in the Spring of 1974 and that Raidt agreed to handle the planting of rye in the Winter of 1974-75 in the same way. That testimony was evidence only of an agreement to share the expenses of those two items. There were also in evidence a number of checks written from 1972 to 1974 from Raidt to Crane, some of which indicated that they were in payment for feed. There was no evidence that those checks were made pursuant to an agreement to share the cost of supplemental feed. The evidence showed that Raidt had not paid his alleged share of the cost of planting the rye in the Winter of 1974-75, but it did not show that his share was as much as $3,000. Raidt’s evidence was to the effect that the checks were “loans.”

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

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


text:
    OPINION OF THE JUSTICES NO. 229.
    Supreme Court of Alabama.
    Feb. 15, 1977.
   State of Alabama House of Representatives State Capitol Montgomery, Alabama

Lady and Gentlemen:

On February 8, 1977, we received from you copies of House Resolution No. 22, as follows:

H.R. 22 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H.B. 262.
“BE IT RESOLVED BY THE HOSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H.B. 262, a copy of which is attached to this resolution and made a part hereof by reference:
“1. Does Section 1 of H.B. 262 conflict with Article 6, Section 150(2) of the Constitution of Alabama 1901 as amended by Amendment No. 828 adopted in 1973?
“RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send five true copies of the pending bill, H.B. 262, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.
“A BILL TO BE ENTITLED AN ACT”
“Relating to Dale County, providing for a one-to-one method of striking jurors in criminal cases.
BE ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. In every criminal case prosecuted in Dale County the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in any court in Dale County of any person indicted for a misdemeanor or felony or in case of appeals from lower courts, the court shall require two lists of all the regular jurors empaneled for the week, who are competent to try the defendant, to be made and the solicitor shall be required to first strike from the list the name of one juror and the defendant shall strike one juror and they shall continue to strike off names alternatively until only twelve jurors remain on the list, and these twelve thus selected shall be the jury charged to try the case.
“Section 2. All laws or parts of laws which conflict with this act are hereby repealed.
“Section 3. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

The answer to the question posed in House Resolution 22 is in the affirmative.

Amendment 328, Section 6.11, proclaimed ratified on December 27, 1973, and carried in Michie’s 1973 Cumulative Supplement to the 1958 Recompiled Code as Article 6, Section 150, provides:

“Power to make rules. The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”

The method of selecting juries in criminal cases, the subject matter of House Bill 262, is within the rulemaking power of the Supreme Court of Alabama as granted by the Constitutional provision quoted. Even though the Supreme Court of Alabama has not, as of this date, promulgated a rule governing the practice and procedure for selecting juries in criminal cases, we are of the opinion that the provisions of Title 30, Chapter 5, Sections 60-71, Code of Alabama, 1940, as amended, apply until changed by a rule adopted by the Supreme Court, because of the provisions of Amendment 328, Section 6.21(h), which is carried in Michie’s 1973 Supplement as Article 6, Section 160(h), and which provides:

“(h) Except to the extent inconsistent with the provisions of this article, all provisions of law and rules of court in force on the effective date of this article shall continue in effect until superseded in the manner authorized by the Constitution.”

The provisions of law relative to the selection of juries in criminal cases has not been superseded “in the manner authorized by the Constitution” — that is, by a rule promulgated by the Supreme Court. We express no opinion on whether “a general act of statewide application” could change the method for selection of juries in criminal cases, but we do note that House Bill 262 is not a general act of statewide application. Therefore, we are of the opinion that House Bill 262 does violate Amendment 328, Section 6.11.

As a matter of information, we would point out that the Alabama Law Institute, which is funded by the Alabama Legislature, will present to the Supreme Court of Alabama in the near future a comprehensive set of proposed Rules of Criminal Procedure, and that jury selection procedures will be included in these proposed rules.

Respectfully submitted,

C. C. Torbert, Jr.

Chief Justice

James N. Bloodworth

Hugh Maddox

Reneau P. Almon

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Associate Justices


author: HOLMES, Judge.

text:
    ALLIED PAPER INCORPORATED, a subsidiary of SCM Corporation v. Charlie L. DAVIS.
    Civ. 919.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1976.
    Rehearing Denied Jan. 20, 1977.
    James J. Duffy, Jr. and E. L. McCafferty, III, Mobile, for appellant.
    Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case. From a judgment in favor of the employee the employer appeals.

The dispositive issue in this case is whether the trial judge erred in finding the employee suffered a “75% permanent disability to the body as a whole, resulting in a corresponding loss in his earning capacity of 75%.”

We find the trial court did not err and affirm.

The pertinent facts necessary to a determination of the case are as follows:

The employee is a high school graduate with no particular special training. Prior to his injury, the employee had held three jobs including the job with the appellant-employer. It is unnecessary to describe each job held by the employee; suffice it to say that he performed manual labor, requiring lifting and other necessary activities associated with manual labor.

While loading a truck in the course of his employment, the employee fell and injured his back. He was taken to the hospital. Thereafter, he was treated by a local doctor. This physician referred the employee to a Dr. Semon, who hospitalized the employee. The employee was thereafter treated by Dr. Semon for some months. Employee next was seen by a Dr. Cope, who also hospitalized the employee. Thereafter, he returned to the care of Dr. Semon who, after several weeks, under one view of the evidence, recommended that the employee see Dr. Neely. Dr. Neely was treating the employee at the time of trial.

The record shows that with the exception of a short period of time the employee has not worked since late 1973, the time of the accident, until the case was tried in early 1976.

Specifically, the employee testified that his back hurts whenever he does lifting or stooping. The following colloquy between counsel for the employer and the employee best summarizes the employee’s testimony regarding his back condition:

“Q. You have stated that you can drive an automobile. What other things are you able to do?
“A. Well, not nothing too much. To be honest and tell the truth about it. I mean, I am just having problems with my back, and I ain’t never had this kind of problem before.”

The employee’s wife testified that the husband-employee was a good worker and since the injury he can do very little. Additionally, she testified he complains of pain in his back.

There is medical testimony of four doctors contained in the record.

The pertinent testimony of Dr. Cope concerning the result of the myelogram performed on the employee was, “The impression is negative lumbar myelogram.” Dr. Cope further testified that his impression on admission of the employee was lumbar strain or contusion and that there was no evidence of ruptured or herniated disc. He found no neurosurgical abnormality.

Dr. Semon’s pertinent testimony also found no evidence of a ruptured disc from a myelographic study. This physician further testified he was unable to substantiate the employee’s protracted complaints of pain and that the employee should return to normal activity. Additionally, Dr. Semon testified regarding the employee as follows:

“Q. Doctor, what you term ‘anxiety neurosis’, what you felt about the patient on May 20th of 1974, what is that, please?
“A. I felt that the patient had become overly concerned about himself and that he had developed anxiety over the situation, and that it was manifesting itself in terms of physical complaints, and I felt that was probably the underlying basis of his complaints, physical complaints.
“Q. Well, doctor, when you say the patient had anxiety neurosis, or what you classify as anxiety neurosis, isn’t the resulting disability the same as if it were a physical impairment that was causing the disability?
“A. It can be disabling. Anxiety neurosis can be a disabling thing. I thought that it would have been a good idea for us to have had him evaluated and had him treated, which I never did get to the point of doing.
“Q. You didn’t answer my — . Was this anxiety neurosis he was suffering from a disabling illness, or condition at the time you last saw him?
“A. Well, his ability to function was certainly impaired, and it was not on an organic basis, or based on organic injury. It was an emotional response to the injury being the ultimate problem preventing rehabilitation.”

Dr. Harris, a third physician, testified in much the same vein as Dr. Semon.

Dr. Neely, the fourth Physician, whose qualifications were admitted by counsel for the employer, testified he was treating the employee at the time of the trial. Dr. Neely, as Dr. Semon, testified in great detail regarding his findings and conclusion. The following are pertinent portions that best illustrate Dr. Neely’s findings and conclusion.

“To put it shortly, that’s just about the story since then, until now. If this man over exerts, does anything that’s strenuous or any kind of heavy lifting, or a whole lot of bending and stooping, we get the pain, the numbness, deadness, right back just like it was. Long as he more or less sits around and don’t do anything, he gets along pretty well.
“Q. Doctor, have you formed any diagnosis as of this day of what condition Mr. Davis has, in your opinion?
“A. I still think he’s got a slipped disc, or a herniated disc, or however you want to put it, despite the myelogram. I wish now, in retrospect — .
“Q. All right, sir. Doctor, based on your, the history given to you by Mr. Davis, based on the examination that you have conducted and the findings you have found, do you have an opinion whether or not between May 20, 1974 and February 23, 1976, Mr. Davis was disabled from performing work that involved lifting, bending, stooping, things of that nature?
“A. Between the dates that I saw him?
“Q. Yes, sir.
“A. Yes, sir. I certainly do.
“Q. And what was that opinion?
“A. That he was not able to do it.
“Q. And would you say he is totally disabled, or he was totally disabled during that period?
“A. Yes, sir.
“Q. And do you have any opinion whether or not as of this date he is still totally disabled?
“A. From performing this kind of work? Yes.”

With the above in mind, the trial court found that the employee suffered severe injuries to his back in “that the ligaments and other internal parts of his back were sprained or strained and he sustained a disc injury.”

The trial court further found:
“The Plaintiff has only a high school education and is not trained for any type work except manual labor. The only work experience the Plaintiff has had is in employments he cannot now engage in because of his injuries as above set out. The Plaintiff cannot now engage in work requiring physical exertion and strength, nor can he engage in work which is of the type classified as ‘manual labor’. He further cannot engage in work requiring heavy lifting or standing for long periods of time. The Court finds that the said injuries the Plaintiff sustained on November 17, 1973, caused the Plaintiff to sustain a seventy-five percent permanent disability to his body as a whole, resulting in a corresponding loss in his earning capacity of seventy-five percent.”

While able and distinguished counsel has argued several interrelated issues, the dis-positive issue on appeal, as noted earlier, is whether the trial court’s finding of permanent partial disability is supported by the evidence.

The criteria for review has been often stated by the Supreme Court of Alabama and this court. This criteria for review clearly requires affirmance of the trial court’s decree. As this court stated in B. F. Goodrich v. Martin, 47 Ala.App. 244, 250, 253 So.2d 37, 43, cert. denied 287 Ala. 726, 253 So.2d 45:

“Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence. . . . ”

See also Legg v. Americodl Compressor Company, Ala.Civ.App., 336 So.2d 1121, a case decided in favor of the employer, wherein B. F. Goodrich, supra, is quoted.

To this court, there is ample evidence to support the trial court’s finding of disability. Specifically, we have the testimony of the employee, his wife, and Dr. Neely. A summary of the pertinent parts of their testimony shows the employee to be an unskilled workman, with somewhat limited education, whose only employment required physical exertion. He can not now, by his testimony, his wife’s, and a doctor’s testimony, perform that physical labor or exertion. See Edwards v. City of Huntsville, 49 Ala.App. 498, 273 So.2d 475. On review by certiorari, it is immaterial, in this instance, that three doctors’ testimony may be to the contrary. This court does not weigh the evidence. Goodrich v. Martin, supra.

This court would be remiss in not commenting that there is testimony to support an award of total disability; and therefore, the award of permanent partial disability that we have in this instance is clearly supported by the evidence. See B. F. Goodrich Company v. Butler, 56 Ala.App. 635, 324 So.2d 776.

In addition to the above, which we deem dispositive of the appeal, distinguished counsel for the employer contends that since the employee is receiving social security benefits he should not receive workmen’s compensation or should only partially receive workmen’s compensation benefits. Prom a close examination of the record, it appears that this was not an issue when the matter was tried in the circuit court.

Specifically, the trial court informed the parties prior to the taking of testimony that “the only question for the court to determine is the extent, if any, of the plaintiff’s permanent disability.” The payment of social security benefits arose during cross examination of a witness by the employer and nothing was presented to the trial court for a determination regarding such benefits. An argument now urging reversal for that reason comes too late. This court does not review a case on a theory different from that on which it was tried below. Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149. Rule 15(b) ARCP has no application to this case.

Furthermore, it is not readily apparent from the record that the employee is receiving social security benefits for the same injury for which he is claiming workmen’s compensation benefits. However, even if that be the case, we find no such prohibition in the workmen’s compensation law of Alabama and none is cited to us. We would note this court’s decision in Richardson Homes Corp. v. Shelton, Ala.Civ. App., 336 So.2d 1367, wherein we found that the receipt of unemployment compensation did not prohibit the receipt of workmen’s compensation benefits.

All issues having been properly considered, the case is due to be and is affirmed.

AFFIRMED.

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


text:
    Ex parte ALLIED PAPER, INCORPORATED.
    SC 2352.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: PER CURIAM.

text:
    In re Martha BLACKMON v. W. S. BADCOCK CORPORATION, INC. Ex parte Martha Blackmon.
    Civ. 1040.
    Court of Civil Appeals of Alabama.
    Jan. 13, 1977.
    Rehearing Denied Feb. 9, 1977.

      Jimmy S. Calton, Eufaula, for petitioner.
    William V. Neville, Jr., Eufaula, for W. S. Badcock Corp., respondent.
   PER CURIAM.

Mrs. Blackmon petitions this court for a writ of mandamus directing the Circuit Court of Barbour County to set aside its order of November 3, 1976, wherein the court vacated that portion of its March 9, 1976, judgment which awarded Mrs. Black-mon $9,561.75 in damages.

The sole issue presented to this court is whether the circuit court’s action was permissible under Rule 60(b)(6), ARCP. We hold that it was and, accordingly, deny the request for mandamus.

The dispute arose under the following circumstances:

On December 18, 1975, Mrs. Blackmon purchased a color television set from the “Badcock Home Furnishing Center” in Eu-faula, Alabama. The W. S. Badcock Corporation has its principal office in Mulberry, Florida. The Eufaula store is a Badcock “dealership,” which on December 18, 1975, was operated by Donald L. Lewis. Mrs. Blackmon negotiated the purchase of the television set with Lewis.

She had paid $80 as a down payment on the $561.75 television set, when three weeks after delivery, it seriously malfunctioned. Mrs. Blackmon called Mr. Lewis. He had the television set picked up by a television repair shop. The set was later returned to the store. Though Mrs. Blackmon requested that the set be returned to her, Mr. Lewis refused to do so. Mrs. Blackmon was not in default on the payments. Mrs. Blackmon procured counsel. After his efforts to obtain the television set proved unfruitful, suit was filed in the Circuit Court of Barbour County against the W. S. Badcock Corporation seeking punitive damages for the unlawful conversion of the color television set. A copy of the complaint was served on Lewis as agent for the corporation on either January 6 or January 7, 1976. Lewis failed to notify the home office of the impending litigation.

On February 19, 1976, Badcock having failed to answer or appear, a default judgment was entered against the corporation “with leave granted to plaintiff [Mrs. Blackmon] to try the issue of damages before a jury.” On March 9, 1976, a jury trial on damages was had. Badcock failed to appear and a verdict for Mrs. Blackmon was returned in the amount of $9,561.75.

On April 6, 1976, an amended return of service was served on a Badcock employee, Mr. Kenneth Jones, who was temporarily in the Eufaula store. He immediately sent the documents to the home office.

Thereafter, on April 18, 1976, Badcock filed a “Motion For Relief Under Rule Sixty” seeking to have the judgment set aside. Although the motion stated numerous grounds for relief, the gist of Badcock’s motion was:

“9. Defendant has a defense to said action in that it did not operate a business in Eufaula and Donnie Lewis was not its agent, and defendant was prevented from making its defense by surprise, accident, mistake, or fraud, without fault on the part of the defendant, in that the said Donnie Lewis is sole proprietor, did not advise defendant that he had been served with a suit against defendant.
“10. Defendant was prevented from making its defense by the mistake of the Sheriff of Barbour County by serving Donnie Lewis instead of defendant.
“11. Defendant was prevented from making its defense to this cause by surprise, accident, mistake, or fraud, without fault on the part of defendant, in that service was not made upon the registered agent of defendant, but was made upon some other person, namely Donnie Lewis, who was neither an employee nor an agent of defendant and who had no duty to notify defendant of said suit, and who did not in fact notify defendant of said suit.”

Subsequent to the hearing on Badcock’s motion, the Circuit Court of Barbour County, on November 3, 1976, issued an order, the pertinent parts of which are set forth below:

“Upon the hearing of defendant’s motion for relief, evidence was offered by defendant outlining its business relationship with Lewis and numerous exhibits were offered to show that there was an independent dealer status held by Lewis. The Court feels, however, from a consideration of all of the evidence that there was apparent authority on the part of Lewis to act for W. S. Badcock Corporation, Inc., at the time of the acts complained of in this cause and that said Corporation is accountable for such actions on his part. The Court in determining whether to set aside the judgment in this case has considered whether the defendant had a meritorious defense as far as the conversion is concerned and has concluded that there was a conversion of the television set involved by Donald Larry Lewis at the time he had the repair service deliver this set back to his store in Eufaula, therefore, the main consideration is whether W. S. Badcock Corporation, Inc., is liable though its relationship with Lewis, and the Court feels that it is so liable. It would then seem that the Court’s function would be fulfilled by simply overruling defendant’s motion for relief but the Court does not feel justice would be done by such action. The Court feels that the injustice involved in this case comes about by the manner in which the writ of inquiry [hearing on the damages] was executed. A default was entered upon the failure of the defendant to make any appearance or to offer any defense. . . . There was, therefore, the lack of an adversary nature to the whole proceedings which allowed the introduction of illegal and prejudicial evidence before the jury. . . . Upon being asked by the plaintiff’s [Mrs. Blackmon] husband to explain the reason for this development, Donald Larry Lewis simply told him [plaintiff’s husband] that he had possession of the television set and was going to keep it and refused to deliver it to the plaintiff or her husband. Clearly this was a conversion and one which was committed willfully, in known violation of the legal rights of the plaintiff, and, as such, would support not only a judgment for compensatory damages but also, at the discretion of the jury, punitive damages as well.

“If the evidence had stopped at this point the Court would have no hesitancy in affirming the action of the jury and denying the defendant’s motion for relief, but, the evidence did not stop here but went forward and outlined, in minute detail, by the testimony of several witnesses, reprehensible conduct on the part of Donald Larry Lewis toward Hon. Jimmy Calton, attorney for the plaintiff. The evidence presented to the jury related how Mr. Lewis, upon being served with the Summons and Complaint in this case, called Mr. Calton by telephone and told him that he would be at Mr. Cal-ton’s office ‘about dark’ and would ‘take care’ of Mr. Calton, ‘permanently’. Mr. Calton was somewhat concerned and apprehensive because of this message from Mr. Lewis, who was shown by the testimony to be 6'2" in height and weighed ‘about 240 pounds’ and was ‘a big muscular fellow', and after thinking over the matter and worrying about it for the balance of the afternoon, told his secretary of the substance of the call, or threat, made against him by Mr. Lewis and was told by her that Mr. Lewis was at that moment, and had been for some thirty minutes or more, in front of Mr. Calton’s office leaning against his vehicle in, what appeared to be, a position to wait for Mr. Calton’s emergence from his office at closing time. Mr. Cal-ton’s father, who is a district court judge in Eufaula, came to the office and was told of this development and Judge Calton went to the Sheriff’s office to ask for his protection. The Sheriff came and engaged Mr. Lewis in conversation about another matter to allow Mr. Calton and his father an opportunity to emerge from his office in safety. All of this was related to the jury in minute detail and this phase of the testimony probably took as much time in its presentation as did the evidence concerning the conversion. Of course, this testimony and this incident of threatened violence against the attorney for the plaintiff was subsequent to the conversion and was not material to the issue of damages in the conversion case. The Court feels that the details of this incident could not have done other than inflame the jury against the defendant. The defendant’s conduct in obtaining possession of the television set in violation of the known rights of the plaintiff was sufficient for the imposition of punitive damages but this Court does not feel that it can make any fair assessment of the damages which a jury would have returned, if any, in the absence of the inflammatory testimony concerning subsequent events as related above and, therefore, does not feel that it can call for a remittitur by the plaintiff as a condition for affirming the verdict of the jury and denying defendant’s motion for relief. The Court feels that a more just disposition of this matter would be to allow the default to stand but to set aside the judgment based upon the jury’s verdict rendered upon execution of the writ of inquiry and submitting the matter of damages to another jury at which time both sides will be represented and rules of evidence will be more closely followed. It is, therefore,-

“ORDERED by the Court that the defendant’s Motion for Relief is denied as to the default entered in this case but that it is granted as the same is directed to the judgment subsequently entered thereon and such judgment assessing damages is hereby set aside to allow the cause to be submitted at the next term of Court to a jury for the execution of a writ of inquiry as to the amount of damages to be awarded plaintiff for the act of conversion committed in this cause by the defendant. The Court wishes to be understood that only the amount of damages will be left for the jury’s determination and that the jury will be instructed, along with its general instruction concerning punitive damages, that a conversion has been committed and that punitive as well as compensatory damages may be awarded at the discretion of the jury and the foreclosing of the issues of agency, notice, conversion and punitive damages vel non is a condition for the granting of the relief herein provided.”

Mrs. Blackmon filed an application for rehearing seeking to have the Circuit Court of Barbour County reinstate the jury ver-

dict, and from a denial of that application, Mrs. Blackmon filed the petition for writ of mandamus.

The order of the Circuit Court of Barbour County did not have as its basis Rule 60(b)(1), ARCP. If the validity of the order is to be affirmed, the basis therefor must be found in Rule 60(b)(6), ARCP. The dispositive issue before this court is whether the introduction of prejudicial and inflammatory evidence in a writ of inquiry proceeding may serve as the basis for relief under Rule 60(b)(6), ARCP.

The pertinent provision of that rule provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment. . . .”

The Committee Comments, Rule 1, ARCP, state that:

“It has long been settled in this state that when the legislature adopts a federal statute or the statute of another state, it adopts also the construction which the courts of such jurisdiction have placed on the statute. . . .”

Federal decisions construing Rule 60(b)(6), FRCP, are therefore relevant to the applicability of Rule 60(b)(6), ARCP.

“In simple English, the language of the ‘other reason’ clause, for all reasons except the five particularly specified [60(b)(l-5)], vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” (Klapprott v. United States, 335 U.S. 601, 614-15, 69 S.Ct. 384, 390, 93 L.Ed. 266, motion for clarification denied, 336 U.S. 949, 69 S.Ct. 877, 93 L.Ed. 1105 (1949).

The action of the trial court in considering a 60(b)(6) motion, particularly after default, is largely discretionary, Baez v. S. S. Kresge Co., 518 F.2d 349 (5th Cir. 1975), and is an exercise of its equity powers. Smith v. Jackson Tool and Die, Inc., 426 F.2d 5 (5th Cir. 1970); Bros. Incorporated v. W. E. Grace Manufacturing Company, 320 F.2d 594 (5th Cir. 1963). Though the motion as filed did not specifically invoke the principles of 60(b)(6), the filing of the motion was the vehicle which reopened the door for the further consideration by the court of its judgment. The matters stated by the court to have occurred during the presentation of inquiry of damages to the jury likely resulted in increasing the award of damages. This determination by the court was sufficient equitable grounds, when added to the disfavor of default judgments, to support the discretionary setting aside of the verdict of the jury, permitting another jury to consider the award of damages.

Under the circumstances of this case, we do not consider the “meritorious defense” principle related to the setting aside of default judgments applies. The default against W. S. Badcock Corporation has not been vacated. There remains a judgment by default with no opportunity presented by the ruling on the motion for the presentation of any defense. The only right given defendant by the judgment is to have the issue of the amount of damages reheard by another jury under specified conditions, a right recognized by the Alabama Supreme Court prior to the adoption of the Rules of Civil Procedure. Hartford Fire Ins. Co. v. Bannister, 201 Ala. 681, 79 So. 253; K. B. Koosa & Co. v. Warten, 158 Ala. 496, 48 So. 544.

Mrs. Blackmon states other grounds in support of her petition for writ of mandamus. She contends that the facts herein do not constitute the compelling circumstances warranting application of 60(b)(6); that sustaining the trial court’s ruling converts a 60(b)(6) motion into a substitute for appeal, thereby emasculating Rule 4(a), ARAP, which prescribes time limitations for appeal; that an evidentiary issue may be raised only upon appeal and not through a Rule 60(b)(6) motion. We are not unmindful of cases supportive of Mrs. Blackmon’s contentions. See 15 A.L.R.Fed. 193.

However, we have heretofore said that the trial court is vested with a substantial amount of discretion in ruling on a 60(b)(6) motion which seeks relief from a default judgment. Baez v. S. S. Kresge Co., supra, and absent an abuse of discretion, its ruling thereon will not be reversed. Bank of America Nat. Trust & Sav. Ass’n v. Manakos, 509 F.2d 1217 (9th Cir. 1975); Erick Rios Bridoux v. Eastern Air Lines, 93 U.S. App.D.C. 369, 214 F.2d 207 (1954), cert. denied 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647 (1954).

Mrs. Blackmon does not address the fairness of the trial court’s ruling. In other words, she does not question the trial court’s finding that the jury was prejudiced against Badcock by the introduction of prejudicial evidence, admitted only because of Badcock’s absence. Rather, her arguments are addressed to legal principles espousing the finality of judgments doctrine. She correctly states that application of Rule 60(b)(6) mandates a balancing between the policy which establishes the sanctity of final judgments and that which demands freedom from the effects thereof in compelling circumstances. 7 J. Moore, Federal Practice, § 60.27(1), at 340. We perceive no irreparable injury to the former doctrine in sustaining the action of the trial court in this instance. Mandamus is an extraordinary remedy employed to prevent failure of justice or irreparable injury and is to be withheld if there is any doubt as to its propriety. Ex parte Garrison, 260 Ala. 379, 71 So.2d 33. The facts of this case do not constitute the clear, distinct circumstances warranting its issuance.

We limit our holding to the specific facts herein. Where the trial court has vacated that portion of the default judgment awarding damages; where the damages awarded are approximately 120 times the compensatory damages shown by the evidence; where there is a substantial likelihood that the damages so awarded were predicated on prejudicial evidence admitted without objection of the opposing party where that party had no actual knowledge of the default judgment or writ of inquiry proceeding; where the latter party sought relief under Rule 60(b), ARCP, within 12 days after receiving actual knowledge of the judgment; and where no prejudice to either party will result in enforcing the trial court’s order, this court will not reverse an order setting aside that portion of the default judgment awarding damages.

PETITION DISMISSED.

All Judges concur.