author: LEE, Justice,

text:
    D & W JONES, INC. v. Hampton COLLIER et al. D & W JONES, INC. v. Wilbur COGGIN et al.
    Nos. 51046, 51047.
    Supreme Court of Mississippi.
    June 6, 1979.
    Rehearing Denied July 18, 1979.
    Robertshaw & Merideth, H. L. Merideth, Jr., Greenville, for appellant.
    Mansour & Thomas, Stephen L. Thomas, Greenville, Robert L. Crook, Ruleville, Sat-terfield, Allred & Colbert, Michael S. Allred, Jackson, Campbell & DeLong, Roy D. Campbell, Jr., Lake, Tindall, Hunger & Thackston, Frank W. Hunger, Greenville, Shell, Buford, Bufkin, Callicutt & Perry, Charles L. Howorth, Jr., Jackson, Taylor Webb, Leland, for appellees.
    Before ROBERTSON, LEE and COFER, JJ.
   LEE, Justice,

for the Court:

D & W Jones, Inc., a farming corporation, operated approximately five hundred (500) acres of commercial catfish producing lands at two (2) locations in Washington County. It filed two suits in the Circuit Court of that county against several defendants for damages resulting from killing or contaminating fish in said ponds through the use of poisonous agricultural chemicals applied by farmers and their crop duster agents. The defendants filed affirmative defenses of misjoinder of parties and misjoinder of causes of action and the trial court sustained those defenses. Jones amended its declarations, the same pleas were filed and were sustained in each case, Jones declined to plead further and final orders were entered dismissing the suits. The cases were consolidated for appeal to this Court, the same question being applicable to each of them. They are referred to as (1) Murphy Road Farm and (2) Highway 12 Farm.

The sole assignment, and question, is that the trial court erred in sustaining the motions of appellees to dismiss appellant’s suits due to misjoinder of parties and causes of action.

Murphy Road Farm (No. 51,046)

The Murphy Road Farm consists of approximately four hundred (400) acres divided into nine (9) separate catfish ponds [two hundred forty (240) acres of water].' In 1974, the appellee, Jimmy Hollingsworth, was engaged in the agricultural production of cotton and soybeans on lands adjacent to and north and west of appellant’s lands. The appellee, Hampton Collier, in 1974, produced cotton on lands adjacent to and east and south of appellant’s lands. Each of those appellees applied agricultural poisons during the crop year 1974, by equipment that operated on the ground and was called a “ground rig,” and by airplane referred to as “aerial application.”

The appellee, Valley Flying Service, was a corporation engaged in the aerial application of agricultural poisons and, on at least one occasion, applied such poisons to the lands of appellee, Jimmy Hollingsworth. The appellee, H. W. Lowery, was an individual aerial applicator and, on at least one occasion, he applied by aerial application agricultural poisons to the lands of the ap-pellee, Hampton Collier.

The catfish in appellant’s ponds either were killed or contaminated to the extent that they could not be harvested, they had to be removed from the ponds, and the ponds could not be used for the year 1975.

Highway 12 Farm (No. 51,047)

The Highway 12 Farm consists of approximately one hundred (100) acres of water. The appellees, Wilbur and Vernon Coggin, in 1974, conducted a joint farming operation for the production of cotton and soybeans on lands located on the north side of Highway 12 and north and east of the appellant’s catfish ponds. The appellees, Edward Nerren and Owen Nerren, farmed jointly as Nerren Brothers and produced cotton, soybeans and catfish on lands north of Highway 12 and generally northeasterly of appellant’s lands and on the east side of Sunflower River in Humphreys County. The appellees, Melvin Pearson and Linda Pearson, in 1974, farmed lands both north and south of Highway 12 and northeast and east of appellant’s catfish ponds, their lands being located on the east side of Sunflower River and in Humphreys County.

The appellee, Edmond Franklin Duke, was an aerial applicator, d/b/a Duke’s Flying Service, and he made an aerial application of agricultural poisons to the lands of the abovementioned appellees. Also, each of said farmer appellees applied agricultural poisons to their lands on a number of occasions with ground rigs. The catfish in appellant’s ponds either were killed or contaminated to the extent that they could not be harvested, they were removed from the ponds and the ponds could not be operated for the year 1975.

Were the appellees in each case jointly and severally liable for the appellant’s damages?

The declarations charged, or proof on the defenses is undisputed, as follows:

(1) The farmer appellees in each case in the application of agricultural poisons in 1974 acted independent of each other in that they conducted and carried on separate farming operations over which the particular appellee exercised management control without regard to any other appellee (except the appellees farming together and conducting the same farming operation).

(2) Each of the appellees knew, or should have known, that the appellant was engaged in the commercial production of catfish in the ponds on its lands in 1974.

(3) Each of the appellees in each case made applications of the agricultural poison described as Toxaphene within an area of one-half (V2) mile to one (1) mile of the appellant’s catfish ponds.

(4) That Toxaphene is highly toxic and deadly to aquatic life and particularly fish.

(5) That Toxaphene either from primary drift or secondary drift would escape out of the target area up to a distance of one-half (½) mile to one (1) mile, depending on the wind velocity and the distance above the crop that the poison was released.

(6) That the direction of the prevailing winds and the velocity of the prevailing winds either from primary or secondary drift either did or probably did move quantities of agricultural poison applied by the various appellees over and into the appellant’s catfish ponds.

(7) That each of the appellees knew that Toxaphene was highly toxic and deadly to aquatic life and fish.

(8) That the appellant used no Toxa-phene on its crops in 1974.

(9) Each of the appellees, from past experience as agricultural producers either knew, or should have known, that the other appellees were likewise applying agricultural poisons toxic to fish on their respective crops for all practical purposes adjacent to the appellant’s catfish ponds (Hollingsworth and Collier) and, in any event, within a distance not exceeding a mile (Coggin, Ner-ren, Pearson).

(10) Each of the appellees knew, or should have known, of the primary and secondary drift characteristics of the agricultural poison being applied; and that their acts in so doing would join with like acts of the other appellees and produce a combined, collective, cumulative and continuing threat to the health and quality of the appellant’s fish; that the appellees impliedly acted in concert for a common purpose and a common goal, in applying the economic poisons to their agricultural crops adjacent to or in close proximity to, appellant’s catfish ponds.

(11) That the appellant sustained a loss on both farms in 1974 and loss of production in 1975 in the approximate amount of three hundred thousand dollars ($300,000), as a direct result of the combined Toxaphene applications by appellees.

Appellant contends that joint and several liability rested on each appellee in each case for an indivisible injury. Appellees claim that the injury to appellant is separable and subject to apportionment.

In Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292 (1933), Burnham brought suit against Masonite for injuries resulting from pollution of Tallahala Creek by Masonite, which created a nuisance. It was shown without contradiction that both the City of Laurel and Masonite polluted the waters of the creek and that the City of Laurel had been doing so for a number of years prior to the acts of Masonite. The Court held that Masonite was responsible only for the portion of pollution caused by its plant, that Masonite and the City of Laurel were not joint tort-feasors, and cited cases from other jurisdictions as follows:

“Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265, 267, 9 A.L.R. 933, is to the same effect. In deciding this case, the Supreme Court of West Virginia overruled one of its former decisions (Day v. Louisville Coal & Coke Co., 60 W.Va. 27, 53 S.E. 776, 10 L.R.A.(N.S.) 167), and in overruling it said that there had been a failure on the part of the court to observe and apply a well-defined and firmly grounded exception to the rule of liability of joint tort-feasors; that this exception or limitation was that there is no joint liability, nor liability for the entire damages when the tort-feasors ‘act independently, without concert, collusion, or common design, and the injury to the plaintiff is consequential only, or remotely resulting, as contradistinguished from direct and immediate.’ The court said further that the overwhelming weight of authority stood against the decision in Day v. Louisville Coal & Coke Co.
In Symmes v. Prairie Pebble Phosphate Co,, 66 Fla. 27, 63 So. 1, 3, in discussing this question, the court said: ‘A joint tort is essential to the maintenance of a joint action for damages therefor against several parties. For separate and distinct wrongs in no wise connected by the ligament of a common purpose, actual or implied by law, the wrongdoers are liable only in separate actions and not jointly in the same action. * * * Torts that are several, separate, and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences where no concert of tortious action or consequence is intended by the parties or implied by law. An implied concert of action between tort-feasors may grow out of the status or relation of the parties and the conditions under which the tortious acts proximately cause an actionable injury.” 164 Miss, at 854-855, 146 So.2d at 295.

Previous to Burnham, this Court decided the case of Westerfield v. Shell Petroleum Corporation, 161 Miss. 833, 138 So. 561 (1932). In Westerfield, the plaintiff was riding as a passenger in an automobile which was involved in a collision with a truck owned and operated by Shell Petroleum Corporation. The Court held that a cause of action existed against both drivers for plaintiff’s injuries and stated:

“Such a state of facts would simply mean that appellee and the driver of the Shell car were joint tort-feasors, and each would be jointly and severally liable for the tort. In other words, if appellant’s injury was caused by the conjoint negligence of appellee and the driver of the Shell ear, neither would be relieved from liability, and the liability would be joint and several. Joint tort-feasors are both jointly and severally liable, and may be proceeded against singly, jointly, or individually, or all combined. Bailey v. Delta Elec. Light Co., 86 Miss. 634, 38 So. 354; Sawmill Construction Co. v. Bright, 116 Miss. 491, 77 So. 316; Waterman-Fouke Lumber Co. v. Miles, 135 Miss. 146, 99 So. 759; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 5 A.L.R. 357. And this is true, although there was no common duty, common design, or concert of action between the joint tort-feasors. Nelson v. I. C. R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A.(N.S.) 689.
Under the law it is not necessary that the negligence of the operator of an automobile shall be the sole cause of the injury, in order to make him liable therefor. It is sufficient that his negligence, concurring with some other sufficient cause or causes, proximately caused the injury. 42 C.J., sec. 589, page 887.” (Emphasis added) 161 Miss, at 838, 138 So. at 562.

In Burnham, the Court referred to West-erfield and attempted to distinguish it thusty:

“In Westerfield v. Shell Petroleum Corp., et al., 161 Miss. 883, 138 So. 561, 562, the court used this language: ‘Joint tort-feasors are both jointly and severally liable, and may be proceeded against singly, jointly, or individually, or all combined. * * * And this is true, although there was no common duty, common design, or concert of action between the joint tort-feasors.’ That was an action for a personal tort; the defendants were Mrs. Harrison and the Shell Petroleum Corporation; the plaintiff was Mrs. Westerfield. There was a nonsuit taken against the Shell Petroleum Corporation. The evidence tended to show that both the Shell Petroleum Corporation and Mrs. Harrison contributed to the tort. The court held that they were both joint tort-feasors and jointly and severally liable. The evidence tended to show in that case, however, that there was concert of action between the joint tort-feasors, not by agreement, it is true; each joint tort-fea-sor was fully aware of the negligence of the other, and proceeded then and there to contribute to the injury; they acted jointly although without agreement.” (Emphasis added). 164 Miss, at 857, 146 So. at 295-296.

The difference, according to Burnham, was the fact that Westerfield was an action for personal tort and that there was an implied concert of action. We see no real difference between damages for a tort involving injury to the person and a tort involving injury to property.

It is argued that there can be no joint tort-feasors unless there is concert of action on the part of the tort-feasors. If this be strictly true, the term “joint tort-feasors” has been loosely used through the years. In Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216 (1941), cited by appellees, the Court discussed the difference between liability of joint tort-feasors and liability of master and servant under the doctrine of respondeat superior, and with reference to joint tort-feasors stated:

“The term ‘joint tort feasors’ means that two or more persons are the joint participants or joint actors, either by omission or commission, in the wrongful production of an injury to a third person. There the act or omission of each is his own act or omission, but the acts or omissions are concurrent in, or contribute to, the production of the wrongful injury, so that each actor is, on his own account, liable for the resulting damages.” 190 Miss. at 581, 1 So.2d at 218.

The Court made the following statement in defining joint and several liability in its relation to the wrong committed and the resulting injury, as well as to the parties, in Hutto v. Kremer, 222 Miss. 374, 76 So.2d 204 (1954):

“The legal principle applicable to the facts of this case is stated at Section 85 of Cooley on Torts (4th Ed.) as follows: ‘All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor.’ ” 222 Miss, at 383, 76 So.2d at 208.

The decisions of various jurisdictions conflict on the common law requirement of concerted action in cases of joint tort-fea-sors. In 74 Am.Jur.2d Torts § 62, at 671-672 (1974), the more modern rule relaxing the common law requirement is stated as follows:

“Modern authority is generally in favor of the principle that joint, or more precisely, joint and several, liability may exist notwithstanding the absence of concerted action on the part of wrongdoers. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is said to be responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tortfeasor, and the injured person may at his option or election institute suit for the resulting damages against any one or more of such tort-feasors separately, or against any number or all of them jointly.
The general rule has frequently been stated thus: Where the independent tor-tious acts of two or more persons supplement one another and concur in contributing to and producing a single indivisible injury, such persons are in legal contemplation regarded as joint tortfeasors, notwithstanding the absence of concerted action. This rule has been regarded as applicable where the acts are concurrent as to place and time and unite in setting in operation a single destructive and dangerous force which produces the injury, and even where the acts are separate and distinct as to place and time, but culminate in producing a public nuisance which injures the person or property of another. The rule is especially applicable where the injury would not have occurred, except for the concurrence of the several wrongful acts, but the fact that the wrong of each person independently of that of the others would have caused some damage has in some cases been regarded as insufficient to preclude the imposition of joint and several liability.”

Those jurisdictions which hold that concerted action is unnecessary for joint and several liability have taken the position that where a single indivisible injury occurs through the negligent actions of two or more tort-feasors, each is considered the proximate or contributing proximate cause of the entire result and is therefore liable.

86 C.J.S. Torts § 35, at 951-952 (1954) states the rule as follows:

“As applicable to the entire range of tort actions, the proposition may be stated that, where wrongdoers have not acted in concert, and separate and distinct injuries are caused by the act or neglect of each, the liability is several only, and each is liable only for the damage caused by his own tort. The fact that it is difficult to separate the injury done by each from that done by the others furnishes no reason for holding that one tort-feasor should be liable for the acts of others with whom he is not acting in concert. The fact that several independent tort-feasors obey a decree entered against them in a prior injunction suit does not render them joint tort-feasors in a subsequent action for damages.
Single, indivisible injury. While there is language in some decisions to the effect that concert of action is necessary, at least in the case of willful torts, as a general rule where the separate and independent acts of several tort-feasors, especially where such acts are negligent, combine to produce directly a single injury, each is responsible for the entire result, even though his act alone, without the concurrence of the other tort, would not have caused the injury; and it is not necessary that they be acting together or in concert if their concurring torts occasion the injury. Where the independent tortious acts of two persons combine to produce an injury, each tort-feasor is liable for the entire damage, not on the ground that he is liable for the other tort-feasor’s act, but because his own act is regarded as the proximate cause of the entire injury. The rule does not apply, however, where the independent act of one party does not contribute to the injury.”

In Northup v. Eakes, 72 Okl. 66, 178 P. 266 (1919), a single action was filed against multiple defendants alleging joint and several liability in connection with the discharging of flammable substances into a stream. They ignited and destroyed improvements on the plaintiff’s property. The Oklahoma Court stated the controlling principle of law as follows:

“ ‘Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it. It has been said that “to make tort-fea-sors liable jointly there must be some sort of community in the wrongdoing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together and in concert if their concurring negligence occasions the injury.” ’
[I]t is clear that while the lessees holding separate leases acted independent of each other, yet their several acts in permitting the oil to flow into the stream combined to produce but a single injury. In these circumstances, each is responsible for the entire result, even though his act or neglect alone might not have caused it.” 178 P. at 268.

Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952), involved joint and several liability of defendants acting independently of each other (agricultural poisons were not used). The trial court sustained a motion for misjoin-der of parties and causes of action, and, on appeal, the Texas Court, in facing the problem of requiring “concert of action” before applying joint and several liability, said:

“[0]ur Courts seem to have embraced the philosophy, inherent in this class of decisions, that it is better that the injured party lose all of his damages than any of several wrongdoers should pay more of the damages than he individually and separately caused. If such has been the law, from the standpoint of justice, it should not have been; if it is the law now, it will not be hereafter.” 248 S.W.2d at 734.

In Burnham, the action was for damages resulting from a nuisance created by the pollution of Tallahala Creek. The Court distinguished that case from Westerfield by stating that the latter action was for a personal tort and that there was implied concert of action on the part of the defendant drivers, even though they were approaching from different directions and had no previous contact. In the present case, the damage and injury to appellant’s property was a gradual process over a period of several weeks. Five (5.0) parts per million Toxaphene would contaminate the fish and render them unusable. Probably (trial on the merits may indicate) the application of the poison by any one appellee would not have been sufficient to contaminate the fish, but the combined applications of two, three, or more appellees were sufficient to cause the resulting damage. The appellees knew, or by the exercise of reasonable care should have known, of appellant’s catfish operations, the toxic effect of the application of agricultural poison on the fish and that all the appellees were, or had been, making the applications of poison. Following the rule announced in Burnham and Westerfield, those facts constitute an implied concert of action which resulted in pollution of the ponds, contamination of the catfish and damage to appellant.

Turning to the modern trend where joint and several liability may exist, notwithstanding lack of concerted action on the part of the tort-feasors, and enlarging upon the principle stated in Westerfield v. Shell Petroleum Corporation, supra, we hold that the separate, concurrent and successive negligent acts of the appellees which combined to proximately produce the single, indivisible injury to appellant’s property (pollution of its ponds and contamination of its catfish) rendered appellees jointly and severally liable.

We are of the opinion that the trial court erroneously sustained the pleas of misjoin-der of parties and causes of action and that the cases should be reversed and remanded for trials upon the merits.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Thomas E. PORTER v. STATE of Mississippi.
    No. 51262.
    Supreme Court of Mississippi.
    June 6, 1979.
    Rehearing Denied July 11, 1979.
    Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Fred Wicker, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.


text:
    James L. PUDERER on behalf of himself and All Creditors of Members of North Jackson Moose Lodge No. 2196, Loyal Order of the Moose v. Paul RHINEWALT and Wallace Berry.
    No. 51219.
    Supreme Court of Mississippi.
    June 6, 1979.
    Rehearing Denied July 11, 1979.
    Michael J. Malouf, John M. Stevens, Jackson, for appellant.
    Davis Hall Smith, R. L. Houston, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: ROBERTSON, Presiding Justice,

text:
    Joseph Charles NEWMAN v. CITY OF BILOXI and Biloxi Civil Service Commission.
    No. 51311.
    Supreme Court of Mississippi.
    June 27, 1979.
    Rehearing Denied July 18, 1979.
    Sekul, Hornsby, Wallace & Teel, Walter W. Teel, Biloxi, for appellant.
    Cono A. Caranna, II, Matt G. Lyons, Biloxi, for appellees.
    Before ROBERTSON, P. J., and COFER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court.

Joseph Charles Newman, a 4x/2-year veteran with the Biloxi Police Department, was discharged by the Chief of Police of the Biloxi Police Department on March 17, 1978. Chief Ryan had referred the matter to a police disciplinary board for an investigation and recommendation. After a hearing on March 10, 1978, the Board recommended Newman’s discharge for violating rules and regulations of the Police Department. Chief Ryan notified Newman in writing of the findings of the Board, his concurrence therein, and his discharge effective March 17, 1978.

Newman appealed to the Biloxi Civil Service Commission under these provisions of Mississippi Code Annotated section 21-31-23 (1972):

“Any person so removed, suspended, demoted or discharged may within ten days from the time of his removal, suspension, demotion or discharge, file with the commission a written demand for an investigation, whereupon the Commission shall conduct such investigation. The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons and was or was not made in good faith for cause. After such investigation the commission may, if in its estimation the evidence is conclusive, affirm the removal, . ”

After a full hearing before the Commission on April 10, 1978, the Commission, on April 12th, issued its Order sustaining the discharge of Newman by the Biloxi City Council. The pertinent part of the order states:

“[T]he Commission having thoroughly considered all of the evidence before it, finds by a majority vote of the Commission members that Mr. Newman withheld evidence from the custodial officer of the Biloxi Police Department for an undue length of tinie in violation of the regulations of said Department, and that he subsequently surrendered same only after being given a direct order to do so; therefore, the actions taken by the City Council in suspending Mr. Newman, and subsequently, in terminating Mr. Newman should be and are hereby sustained. The Commission unanimously found that the actions taken by the Council were taken in good faith and not for political or religious reasons.”

Newman then appealed to the Circuit Court of the Second Judicial District of Harrison County, and the Court, on July 14, 1978, entered this order:

“In accordance with section 21-31-23, Mississippi Code 1972, the Court has considered this appeal from an order of the Biloxi Civil Service Commission dated April 12,1978 sustaining the action of the City of Biloxi, Mississippi discharging the appellant as an officer of the Biloxi Police Department.
“No reversible error appears in the appeal record. The order of the Commission was made in good faith for cause. Therefore, the same is hereby affirmed.”

Newman has assigned these four errors which he contends were committed by the circuit court in affirming the action of the Civil Service Commission:

1. The discharge constituted a violation of due process;
2. Newman “was never provided with adequate notice of the charges levied against him;”
3. The dismissal of Newman was arbitrary and capricious and against the overwhelming weight of the evidence; and
4.The City wholly failed to meet the burden of proof that the Appellant did anything wrong or violated any regulations, and thus dismissal was not for cause within the statute.

The cause of dismissal was the withholding of specific items of evidence on three different occasions from the Biloxi Police Department. These items of evidence were: A pocket knife, a pair of nun-chucks, a .380 Llama pistol, and a .22-caliber pistol.

Newman admitted that he knew the rules and regulations requiring a prompt turning in of items of evidence taken from suspects to the police department. His testimony was:

“Q -Do you understand it is important to have exhibits in proper custody in the police department?
“A Yes, I do.”

With reference to his failure to turn in the .22-caliber pistol, Newman testified:

“A Then it was a little while later that I again happened to see Arnie, or during the course of the different schedules, we got together. He mentioned to me, again, and I had, by that time realized where the gun was, which was still locked in this brief case, which I hadn’t even opened since I left the detective section. It was still locked. I had had no reason to go into it. It was still locked up in my car.
I told him I would get it to him as soon as possible. My car, at that time, was broken down.”

In spite of his promise, Newman did not turn in this pistol until Major Short gave him a direct order to do so by 5 o’clock that afternoon.

Although Newman as a police officer of 4½ years experience fully realized the importance of promptly turning in physical evidence so offenders could be promptly prosecuted, he neglected to do so in three separate instances, until given a direct order by his superior. He thus caused considerable embarrassment and extra work to the Biloxi Police Department.

The record reflects that Newman was given a full, fair and impartial hearing before the Biloxi Civil Service Commission and a careful appellate review by the circuit court, all in strict accord with the provisions of section 21-31-23. The finding by the circuit court that “the order of the Commission was made in good faith for cause,” is supported by the record.

The order of the circuit court affirming the final order of the Biloxi Civil Service Commission is, therefore, affirmed.

AFFIRMED.

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


text:
    MISSISSIPPI STATE HOSPITAL v. Francis Henry CRAWFORD.
    No. 51328.
    Supreme Court of Mississippi.
    June 27, 1979.
    James P. Brantley, Whitfield, for appellant.
    Jerry L. Bustin, Forest, for appellee.
    Before ROBERTSON, P. J., and BROOM and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Francis Henry Crawford was employed by the Mississippi State Hospital (MSH) at Whitfield as a forensic psychiatric aide in November, 1974. He was dismissed by MSH on September 23, 1977, for assaulting a registered nurse who was the only registered nurse working in the maximum security unit at that time. The nurse directed the unit in the absence of the psychiatrist, who was the overall director of the maximum security unit.

Crawford filed a separate suit in the Circuit Court of Scott County, his original pleading being styled “Petition for Certio-rari to Review and issue a Mandamus.” His prayer was that:

“[A] writ of certiorari be issued to the Mississippi Merit Counsel, commanding them to prepare a transcript of the record and evidence, and to forthwith transmit same to the Circuit Court herein; and upon a hearing hereon that a writ of mandamus shall issue to the Mississippi State Hospital at Whitfield, Mississippi, ordering them to reinstate petitioner with pay and all costs of this cause.”

Crawford charged that he was entitled to reinstatement because of rules and regulations adopted by the Mississippi Classification Commission pursuant to Mississippi Code Annotated section 25-9-41 (1978 Supp.). Crawford alleged that the Mississippi Merit Council had found that he “was dismissed without sufficient cause” and that the Council on April 13, 1978, had issued its directive that under Rule 14.7-d the Hospital was required to reinstate him and to pay him for all time lost because of his dismissal. Crawford further charged that MSH refused to reinstate him, the Hospital contending that the Merit Council “lacked authority to enter such order and such was merely a recommendation.”

Crawford’s petition was filed on June 8, 1978. On June 10th, the Circuit Court of Scott County ordered the issuance of a Writ of Certiorari to be served on the Mississippi Merit Council.

MSH moved for a change of venue to the Circuit Court of Rankin County, citing Mississippi Code Annotated section 11-41-3 (1972), which provides:

“The petition for mandamus shall be filed in the circuit court of the county in which the tribunal, corporation, board, officer, or person made defendant, or some one or more of them, shall reside or be found; ...”

MSH alleged that it was domiciled in Rankin County and its director was a resident of Rankin County. The trial court overruled this motion.

MSH then filed a general demurrer and an Answer. Its First Defense in its Answer was:

“This Court does not have jurisdiction of the parties nor of the subject matter of this action.”

In its Fourth Defense, MSH asserted that Crawford was fired for cause and not for a non-merit reason, as stated in Rule 14.7-d. Rule 14.7-d was then set forth as follows:

“If the Council finds that the action complained of was taken by the appointing authority for any political, religious, or ethnic reason, or for any non-merit reason, the employee shall be reinstated to his/her former position or a position of like status and pay, without loss of pay for the period of his/her dismissal, demotion, or suspension and without penalization.”
Rule 14.7-e was then quoted, as follows: “In all other cases, the findings and recommendations of the Council shall be submitted to the Appointing Authority for his/her consideration, who may, not later than thirty (30) days after receipt of such findings and recommendations, reinstate the employee with or without pay for the period of the dismissal, demotion or suspension, modify his/her original decisions of discharge, demotion, or suspension, or continue his/her original decision or penalization." [Emphasis added],

MSH then asserted that Rule 14.7-e applies and that the Merit Council’s recommendation was advisory only and not mandatory.

MSH supported its General Demurrer with the affidavit of Herbert S. Hoff, Supervisor of the Mississippi Merit Council, which stated:

“These findings and recommendations were submitted to the Mississippi State Hospital for its consideration in accordance with Section 14.7(e) of the Rules and Regulations of the Mississippi Merit Council .
“The Merit Council findings in Mr. Crawford’s case are distinguished from findings under Section 14.7(d) which involves nonmerit dismissal including ethnic, religious, or political reasons. In such cases the Council’s findings would be binding on the Appointing Authority.”

In spite of the fact that the Mississippi Merit Council, through its Supervisor Hoff, stated under oath that its recommendation was merely advisory and not mandatory, that Rule 14.7-e applied and not Rule 14.7-d, the trial court found that the recommendation of the Merit Council was mandatory, rather than advisory. The court then proceeded to find that Crawford was discharged without cause, that the findings and recommendations of the Merit Council were mandatory and binding on MSH, the appointing authority, and the court then ordered the issuance of a writ of mandamus. The writ was issued to James C. Stubbs, Director of MSH, directing him to immediately reinstate Crawford and to pay him $5,643 back pay.

MSH then appealed to this Court. MSH assigns as error that the lower court:

I. Erroneously overruled the Appellant’s Motion for a Change of Venue wherein the proper venue in an action seeking a Writ of Mandamus is the County of the residence of the defendant as directed by Section 11-41-3, Mississippi Code Annotated, 1972.
II. Erroneously ordered a Writ of Mandamus to be issued to the director of the Mississippi State Hospital. Where an act is discretionary in nature, mandamus may issue only to compel the exercise of discretion, but cannot dictate the specific act to be done.

When the Mississippi Classification Commission was set up in 1970, pursuant to the authority granted in Chapter 394, General Laws of 1970 [Mississippi Code Annotated sections 25-9-1 through 25-9-39 (1972)], its principal and primary duties had to do with the establishment of a uniform method of examination for applicants for appointment to positions with the state government and its agencies. Section 25-9-5 provides in part:

“The provisions of this chapter shall apply to all personnel of state agencies, and no appointments shall be made in the classified service except in conformity with this chapter and such regulations as the commission may adopt.” [Emphasis added].

A later section (25-9-19) then provides in part:

“[A] certification shall be made to the appointing authority that the applicant is eligible for appointment to the position for which he is applying. The appointing authority shall be the sole judge as to which individuals so certified are employed.” [Emphasis added],

A still later section (25-9-37) provides:

“It shall be unlawful to employ anyone in the classified service except in accordance with the provisions of this chapter. The authority to dismiss individuals in the classified service shall remain in the same authority as heretofore provided by law.” [Emphasis added].

It is crystal clear from the language used in these sections of the law setting up the Mississippi Classification Commission that the appointing authority is the sole judge of who it will employ and who it will dismiss. The Mississippi Merit System Council was not established until 1976 when Section 1, Chapter 377, General Laws of 1976, was enacted [Mississippi Code Annotated section 25-9-41 (1978 Supp.)]. Section 25-9-41 contains this closing paragraph:

“The Mississippi Classification Commission shall delegate to the council such authority as required to implement federal statutory and regulatory provisions.”

The Mississippi Merit System Council is a subordinate division of the Mississippi Classification Commission. (Chapter 377, General Laws of 1976).

This general law does not repeal Section 25-9-37, either expressly or by implication. Section 25-9-37, which provides:

“The authority to dismiss individuals in the classified service shall remain in the same authority as heretofore provided by law,”

is still in full force and effect.

Surely if the Mississippi Classification Commission, the parent of the Mississippi Merit System Council, does not have authority to. dismiss individuals, then its progeny, the Mississippi Merit System Council, does not have that authority.

The Circuit Court of Scott County did not have jurisdiction of the parties nor the subject matter, nor did it have venue jurisdiction of the parties. The circuit court was first in error when it overruled the motion of MSH for change of venue to Rankin County (Section 11-41-3). The trial court was next in error when-it granted Crawford’s Petition for Writ of Certiorari and for Writ of Mandamus. The Mississippi Merit System Council’s findings and recommendations being advisory only, the trial court should have dismissed the petition for writ of certiorari and also the petition for writ of mandamus because it had neither jurisdiction nor venue.

The judgment of the lower court is, therefore, reversed and judgment rendered here for the. appellant, Mississippi State Hospital, dismissing Appellee’s Petition for Writ of Certiorari and for Writ of Mandamus.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.


text:
    Edwin J. ALLGOOD, Administrator of Estate of Wallace W. Allgood v. Aletha H. ALLGOOD et al.
    No. 51295.
    Supreme Court of Mississippi.
    June 27, 1979.
    Jack Amos, Bay Springs, for appellant.
    Oates & Houston, Marvin Oates, Bay Springs, for appellees.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, C. J., and WALKER and COFER, JJ.

AFFIRMED.


text:
    Eugene A. ROSS v. CRANE COMPANY, a corporation and Crane Supply Company, a corporation.
    No. 51323.
    Supreme Court of Mississippi.
    June 27, 1979.
    J. B. Van Slyke, Jr., Hattiesburg, for appellant.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

Wise Carter Child Steen & Caraway, George Q. Evans, J. Leray McNamara, Jackson, for appellee.

Before PATTERSON, C. J., and WALKER and COFER, JJ.

AFFIRMED.


text:
    Noel NUTT v. Joseph V. LAVECCHIA, Jr. and Mary Jo Lavecchia Warwick, et al.
    No. 50896.
    Supreme Court of Mississippi.
    June 27, 1979.
    Teller & Teller, Landman Teller, Vicksburg, for appellant.
    Ramsey, Bodron, Thames & Robinson, H. Dean Andrews, Jr., Paul Kelly Loyacono, Brunini, Everett, Beanland & Wheeless, Frank E. Everett, Jr., Vicksburg, for appel-lee.
   Appeal from Circuit Court, Warren County; Pat H. Scanlon, Special Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

ON DIRECT APPEAL REVERSED AND JUDGMENT HERE FOR NOEL NUTT.

ON CROSS APPEAL AFFIRMED AS TO FIRST NATIONAL BANK.

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

LEE, J., took no part.


text:
    James Earl DAVIS and First Federal Savings & Loan of Brookhaven v. Velma Earnestine DeLaughter DAVIS.
    No. 51122.
    Supreme Court of Mississippi.
    June 27, 1979.
    Robert G. Turnage, Monticello, for appellant.
    Allen & Allen, Emmette P. Allen, Brook-haven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.

PATTERSON, C. J., took no part.


text:
    In the Interest of James Allen BROWN, Lisa Brown and John Henry Brown.
    No. 51130.
    Supreme Court of Mississippi.
    June 27, 1979.
    Bobby Owens, Jackson, for appellant.
    C. John Hedglin, Robert W. Sneed, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Carl E. Guernsey, Youth Court Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED AND REMANDED.

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


text:
    Rosa WEEKS v. MOELLER MANUFACTURING COMPANY and the Aetna Life and Casualty Company.
    No. 51383.
    Supreme Court of Mississippi.
    June 27, 1979.
    Claude H. Powell, Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, Frank W. Hunger, Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes Judge.

Before PATTERSON, C. J., and WALKER and COFER, JJ.

AFFIRMED.


author: EMBRY, Justice.

text:
    Daniel R. HAWK, Sr. v. Joseph A. BIGGIO, Jr. and Institutional Grocers, Inc.
    77-522.
    Supreme Court of Alabama.
    June 22, 1979.
    George H. B. Mathews, Montgomery, for appellant.
    Harry H. Perdue, Jr., Montgomery, for appellees.
   EMBRY, Justice.

This appeal is from a judgment upholding the validity of a settlement agreement between appellant, Daniel R. Hawk, Sr., and appellees, Joseph A. Biggio, Jr. and Institutional Grocers, Inc. (Institutional). The issue is whether Hawk’s attorney was authorized to negotiate the agreement. We hold he was and affirm.

The settlement agreement between the parties concerned two actions filed by Hawk against Biggio and Institutional and a cross claim by Hawk against Biggio and Institutional in an action by another party against him, Biggio and Institutional. Hawk and his attorney negotiated with the attorneys for Biggio and Institutional in an effort to settle the cases for less than the full amount claimed. Although these negotiations proved unsuccessful, Hawk’s attorney later made an offer in writing to “dismiss all suits against Mr. Biggio now pending” in exchange for Mr. Biggio’s payment of half the amount sought by the plaintiff in the third lawsuit. Biggio accepted the offer and paid half the claim, but Hawk then refused to dismiss the suits. Biggio and Institutional brought this action to enforce the agreement. The trial court after hearing the evidence ore tenus found as a matter of fact that a dismissal with prejudice was intended by the parties and entered judgment in favor of Biggio and Institutional dismissing with prejudice both actions and Hawk’s cross claim against Big-gio and Institutional in the third action. Hawk’s motion for new trial was denied and this appeal ensued.

Hawk contends his motion for a new trial should have been granted because the evidence failed to show his attorney had the authority to make the settlement. The trial court held, as a matter of law, that Hawk’s attorney had authority to make the settlement, apparently relying on Code 1975, § 34-3-21. That section provides:

“An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.”

This provision, however, is not dispositive of the issue. This court in Senn v. Joseph, 106 Ala. 454, 17 So. 543 (1895), held:

“ * * * The statute does not enlarge the duties of an attorney, nor give him authority to compromise the claim of his client, whether liquidated or unliquidated, admitted or controverted. * * * ”

The question is thus one of fact to be determined by the fact finder, in this case the trial judge.

Hawk maintains that because there is no evidence that his attorney had the authority to make the settlement and because the trial court made no finding of fact that the attorney had such authority, the judgment must be reversed. Of particular importance to this contention is the fact that Hawk’s attorney testified that he did not have the authority to make the settlement.

Nevertheless, there was evidence that Hawk had been participating in the negotiations and was kept informed as to the progress of the negotiations. There was also evidence indicating that Hawk’s attorney was authorized to make a settlement for him. Although the trial court did not make a specific finding that the attorney was authorized to make the settlement which was actually made, such a finding is implicit in the trial court’s judgment. The rule is that, where the trial judge does not make an express finding of a particular fact, this court will assume that he found that fact if the finding of it was necessary to support his judgment, unless the finding would be clearly erroneous and against the great weight and preponderance of the evidence. See Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975).

In this case the trial court heard the evidence ore tenus. Its judgment is amply supported by credible evidence and under the well settled rule of review we must, therefore, affirm.

AFFIRMED.

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

      . Hawk’s attorney on this appeal is not the attorney who represented him in the negotiations to which this opinion refers.


author: ALMON, Justice.

text:
    Jenry Lindon MICHAEL and Linda Gail Michael v. Patsy Marie Lovell DAVIS et al.
    77-597.
    Supreme Court of Alabama.
    June 22, 1979.

      Neil Taylor, Jr. of Taylor & Taylor, Rus-sellville, for appellants.
    No appearance for appellees.
   ALMON, Justice.

This appeal is from a judgment rendered in an action for the sale of land and division of the proceeds.

Andrew J. Lovell died intestate in 1955 owning two lots in the Belew Highland Subdivision in Lauderdale County. Title to this property passed to Lovell’s four children, subject to the dower interest of his widow, Etha Mae Lovell. Code 1975, § 43-3-1.

The appellees are three of Andrew J. Lovell’s children, Patsy Marie Lovell Davis, Wanda Inez Lovell Beadle and Marty Lo-vell. The appellants, Jerry and Linda Gail Michael, acquired the interest of the fourth child, Roger Andrew Lovell, and the widow, Etha Mae Lovell, by a sheriff’s deed executed on November 2, 1977. Neither Roger Andrew Lovell nor Etha Mae Lovell are parties to this action.

The appellees filed this action for sale of the property alleging that they each owned a Vi undivided interest and that the appellants owned an undivided ¼ interest.

The appellants filed an answer and counterclaim asserting that they owned all of the interest in the property. Alternatively they allege that if mistaken, and if the court determines that they are tenants in common with the appellees, then appellants should be reimbursed for monies spent on improving the lots.

The circuit court entered judgment finding that the appellees each owned an undivided ¼ interest and that the appellants owned a ¼ undivided interest. Inexplicably, there was a finding that the widow, Etha Mae Lovell has an “inchoate dower” interest in the entire two lots of land. The court ordered a sale of the property subject to the dower interest. The appellants purchased the property at the sale for $1,000.00.

The appellants contend the trial court erred in its finding of dower interest in the widow and in failing to allow them reimbursement for the value of the improvements.

The general rule is that heirs cannot have partition pending the paramount right of the widow to quarantine, dower or homestead. Hamby v. Hamby, 165 Ala. 171, 51 So. 732 (1910); Aniton v. Robinson, 273 Ala. 76, 134 So.2d 764 (1961). There is no tenancy in common and thus no sale for division where one is a tenant for life, while the others are reversioners or remainder-men of the whole. Street v. Watts, 202 Ala. 622, 81 So. 564 (1919). This Court has approved sales for division where the widow joins with an heir or remainderman in seeking to have land sold to divide the proceeds among the owners of the fee after payment to the widow of her homestead and dower interest. Bedsole v. Bedsole, 272 Ala. 589, 133 So.2d 237 (1961). Such is not the case here because the widow is not a party to this action.

There was no contention at trial by any of the parties, so far as the record discloses, that Etha Mae Lovell had any interest in the property whatsoever. Apparently the parties conceded that the sheriff’s deed, which is complete and regular on its face, operated to divest the widow of her interests. Code 1975, § 6-9-140, provides that a sale regularly made by virtue of judicial process, issuing from a court of competent jurisdiction, shall convey the title as effectively as if the sale was made by the person against whom the process issues. If the judgment against Etha Mae Lovell and the resulting sale were in any way defective, it is not made to appear in the record before us. Code 1975, § 6-9-147, provides a way to set aside execution or judicial sales if there is irregularity. The record indicates no such effort. Thus, we must conclude that the evidence is insufficient to support a finding of dower and the judgment must be reversed to that extent. What we have said here in no way affects any interest the widow might have in the property, as she is not a party to this suit.

The second issue raised by the appellants is that the trial court erred in refusing to allow them reimbursement for the amount they spent improving this property. Appellants contend that they cleared the property under the mistaken belief that they were the owners in fee simple and that under the “good faith” test enunciated in Ferris v. Montgomery Land & Improvement Co., 94 Ala. 557, 10 So. 607 (1891), they are entitled to be reimbursed for their expenditures.

The “good faith” element is an essential element for an improving cotenant who seeks to recover the value of improvements from other cotenants, but the most recent statement of law in this regard is set out in Smith v. Persons, 285 Ala. 48, 228 So.2d 806 (1969).

“[Cjompensation for improvements erected on land will be allowed the improving cotenant only when he was without knowledge of any outstanding interest and, bona fide, believed himself to be the owner of the property.” 285 Ala. at 56, 228 So.2d at 812-13.

The evidence was undisputed that Jerry Lindon Michael was apprised of adverse ownership interests prior to the clearing operations on this property. Although the Michaels believed that they owned the property and the clearing operations were undertaken in good faith, they had actual notice that at least one of the appellees claimed an interest in this property. Therefore, they are not entitled to reimbursement for the costs of these improvements.

For the reasons noted above, the judgment is affirmed in part, reversed in part and remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ„ concur.


text:
    James C. BARGER v. JEFFERSON COUNTY BOARD OF EDUCATION et al.
    77-562.
    Supreme Court of Alabama.
    June 22, 1979.
    William M. Dawson, Jr., Birmingham, for appellant.
    Maurice F. Bishop, Birmingham, for ap-pellees.
   ALMON, Justice.

James C. Barger appeals from a judgment of the Jefferson County Circuit Court, denying his claim for an additional amount of back salary and his claim for reinstatement to a teaching position. We affirm in part and reverse in part.

The appellant was hired by the Jefferson County Board of Education on July 18, 1969, as a Trade and Industrial Co-ordinator and continued to be employed by the Jefferson County School System until he received notice that effective June 30, 1975, his employment would be cancelled. For the purpose of our consideration of the issues presented on this appeal, it is sufficient to note that the State Tenure Commission ultimately determined that the Jefferson County Board of Education did not comply with the teacher tenure laws in cancelling the appellant’s employment. The Tenure Commission therefore reversed the action of the Jefferson County Board of Education.

In this case, the appellant sought both reinstatement to a teaching position and back salary. The trial court denied the appellant’s prayer for reinstatement but found that he was entitled to recover $17,-748.41, the amount of his salary from the date of his wrongful discharge until the date his teaching certificate expired ($27,-662.68), less the amount earned in other employment ($9,914.27).

The appellant first contends that the trial court erred in denying his claim for reinstatement. The appellant maintains that pursuant to the State Tenure Commission’s order, he was entitled to immediate reinstatement to his former position. During the period between the last order of the Tenure Commission and the judgment of the circuit court, the appellant’s teaching certificate expired. The trial court determined that because the teacher’s certificate had expired, it would be improper to compel the school board to reinstate the teacher.

The appellant asserts that he relied upon the Jefferson County Board of Education to apply for the renewal of his teaching certificate. Whether under some set of circumstances a teacher might reasonably rely upon a school board to renew the certificates of the teachers in its employ, we need not decide. In the instant case, the teacher had been discharged, albeit wrongfully, by the Board of Education prior to the time for application for renewal of his certificate. Despite the fact that his reinstatement had been ordered by the State Tenure Commission, he had not been reinstated at the time of his certificate’s expiration.

Although the appellant presented evidence indicating that the Jefferson County Board of Education had unilaterally requested that his certificate be renewed in 1973 when it was due to expire, he has not established that the Board, as a matter of common practice, automatically requested that the State Board of Education renew certificates of its teachers, instructors, and other educators. We are not persuaded that the appellant was entitled to rely on the Board of Education to renew his certificate in this instance, especially in light of the difficulties which had developed between the appellant and the Board with respect to his employment.

Moreover, the record reflects that the State Board of Education has raised questions relative to additional requirements before the appellant’s certificate could be renewed. Under these circumstances, it was the appellant’s responsibility to assure his continued certification.

In light of the clear statutory mandate that certification is a condition precedent to employment as an instructor, principal or supervisor, Code 1975, §§ 16-23-1, 16-24-1, the trial court did not err in refusing to reinstate the appellant.

The teacher next contends that the trial court erred in denying his claim for the full measure of back pay.

The appellee Board of Education asserts, and the trial court held, that the appellant’s back pay award should be reduced by amounts actually earned from other employment of whatever kind. In support of its contention, the Board places heavy reliance on Benziger v. Miller, 50 Ala. 206 (1874). While the Court in Benziger held that it was permissible to prove in mitigation of damages that the teacher received compensation for other employment and more recent cases have cited Benziger with apparent approval, e. g., Tipton v. Board of Education of Blount County, 276 Ala. 571, 165 So.2d 120 (1964), it is important to note that Benziger, an action for breach of a teacher’s employment contract, was decided prior to the enactment of the teacher tenure statutes in 1939.

In Alabama, a public school “teacher has a statutory right to “continuing service status” or tenure after serving under contract as a teacher in the same school system for three consecutive years and being reemployed in that school system the succeeding school year. Code 1975, § 16-24-2. After a teacher attains tenure, he or she has an expectancy of future employment similar to that of a public employee under a system of civil service, see e. g., City of Mobile v. Mitchell, 294 Ala. 474, 318 So.2d 708 (1975), and may be discharged only for just cause as specified under Code 1975, § 16-24-8, pursuant to the procedures established in § 16-24-9 and § 16-24-10.

Although teachers in Alabama are given contracts on an annual basis, the tenure laws must of necessity be construed as part and parcel of the total obligation owed by the school board as a public employer to the individual tenured teacher. Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So.2d 233 (1972); Clark v. Beverly, 257 Ala. 484, 59 So.2d 810 (1952); Board of School Commissioners v. Hahn, 246 Ala. 662, 22 So.2d 91 (1945). Moreover, this Court has observed that the teacher tenure statutes should be liberally construed in favor of the teachers who constitute the class designated as the primary beneficiaries of these statutes. State Tenure Com’n v. Madison County Board of Ed., 282 Ala. 658, 213 So.2d 823 (1968); Board of Educ. v. Baugh, 240 Ala. 391, 199 So. 822 (1941).

The Court addressing this issue in Madison County Board of Education v. Wigley, supra, held that where a teacher is improperly discharged, he is entitled to back salary from the date of his last salary payment, stating:

The doctrine of mitigation of damages in ordinary contracts is contrary to the Teacher Tenure statutes. The purpose of the law was to “insure to the teachers some measure of security,” Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822; “to secure permanency in the teaching force,” Pickens County Board of Education v. Keasler, 263 Ala. 231, 82 So.2d 197, and the Teacher Tenure statutes “are to be read into all contracts entered into by the school boards, and teachers,” Board of School Com’rs v. Hahn, 246 Ala. 662, 22 So.2d 91.
In State ex rel. Broyles v. Tangipahoa Parish School Board (La.), 6 So.2d 696, the Court of Appeals, First Cir., held that a permanent teacher under the tenure law who had been improperly discharged, was only entitled to be reinstated as a permanent teacher in an approved high school of the parish at the salary of ($101.00) in accordance with his grade, certificate and status. But even though he chose not to remain idle and secured another teaching position in another parish at a slightly smaller salary ($92.50), and the trial court granted him only the difference ($8.50) in his prior salary and the salary he drew in the new parish, the appellate court granted him the full salary ($101.00) he would have received had he not been improperly discharged.

Therefore, we find that the teacher is entitled to recover an additional $9,914.27, such amount being the sum withheld from his back pay award by the Board of Education. This case is affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with the views expressed herein.

AFFIRMED IN PART: REVERSED IN PART AND REMANDED.

BLOODWORTH, FAULKNER, JONES and EMBRY, JJ., concur.


text:
    Levon PUCKETT v. SUMTER COUNTY BOARD OF EDUCATION et al.
    77-648.
    Supreme Court of Alabama.
    June 22, 1979.
    W. Troy Massey, Montgomery, for appellant.
    Perry Hubbard of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellees.
   ALMON, Justice.

Levon Puckett appeals from a judgment of the Sumter County Circuit Court, denying his claim for an additional amount of back salary which he alleged that the Sumter County Board of Education wrongfully refused to pay him. We reverse.

Briefly stated, the facts in this case are that Levon Puckett, a tenured teacher in Sumter County, had his contract cancelled. It was subsequently determined that the contradi cancellation was arbitrary and unwarranted and Mr. Puckett was reinstated to his former position. For a more extensive recitation of these facts, see Sumter Cty. Bd. of Ed. v. Alabama State Tenure Comm’n, 352 So.2d 1133 (Ala.Civ.App.1977), aff’d as modified, Sumter Cty. Bd. of Ed. v. Alabama State Tenure Comm’n, 352 So.2d 1137 (Ala.1977). Following Mr. Puckett’s reinstatement, he filed an action for a declaratory judgment seeking an additional $10,310.01 in back pay. It was stipulated that Puckett earned $10,310.01 from other employment (construction work) during the time that he was not teaching and that the Sumter County Board of Education subtracted these outside earnings in the computation of the back salary due to Puckett. The trial court determined that Puckett was not entitled to further recovery of money from the school board because the wages earned by Puckett in other employment were correctly applied to mitigate his damages. We cannot agree.

In Barger v. Jefferson Cty. Bd. of Ed., [MS. June 22, 1979], 372 So.2d 307 (Ala.1979), a similar case, this Court held that where a tenured teacher is wrongfully discharged he is entitled to the full amount of his back salary with no deduction for other compensation earned.

The judgment of the trial court is reversed and remanded.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES and EMBRY, JJ., concur.


text:
    Godfrey STROZIER v. Michael M. MARCHICH, Charles Harkins, J. C. Cooley, Roy Wingo, and Guy Crump.
    78-95.
    Supreme Court of Alabama.
    June 22, 1979.
    Robert B. Roden of Jones, Arnold & Ro-den, Birmingham, for appellant.
    John H. Morrow and Braxton Schell, Jr., Birmingham, for appellees.
   ALMON, Justice.

In this case the Plaintiff sued nine individuals in a personal injury action. Six of the nine defendants were served with process and the trial court dismissed the complaint as to five of the defendants.

The record does not reflect any disposition of this case with respect to the sixth defendant. The trial court did not make a Rule 54(b) ARCP order in this case and for aught appearing, this action is still pending against the sixth defendant.

Accordingly, this appeal is due to be and hereby is dismissed.

APPEAL DISMISSED.

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


author: FAULKNER, Justice.

text:
    Billy Joe MIMS v. CITIZENS BANK OF PRATTVILLE, a corporation.
    78-112.
    Supreme Court of Alabama.
    June 22, 1979.

      Harold Howell, Prattville, for appellant.
    Theron 0. McDowell, Jr., Prattville, for appellee.
   FAULKNER, Justice.

Mims appeals from a directed verdict in favor of the defendant, Citizens Bank of Prattville. We reverse.

The current suit, which is before this Court for the second time, was precipitated when the bank seized a truck which allegedly belonged to Mims. The facts are set out in our prior opinion, Mims v. Citizens Bank of Prattville, 355 So.2d 345 (Ala.1975), in which we reversed a grant of summary judgment in favor of the bank. On remand Mims amended his complaint to eliminate a detinue action, since the bank had already sold the truck and retained the proceeds. The amended complaint contained two counts which both read as follows:

“1. The Defendant, Citizens Bank of Prattville, on or about July 21, 1975, refinanced an existing indebtedness to Wanda Wright, who signed a note and security agreement dated July 21, 1975.
“2. As security for said note said Wanda Wright pledged (1) one 1971 Chevrolet 2-ton truck Serial Number CE630P114531.
“3. This aforesaid chattel was not the property of said Wanda Wright and she did not have the authority or permission to pledge this vehicle which was the property of Plaintiff, Billy Joe Mims.
“4. Wanda Wright failed to make payments when due on the note and the Defendant filed a Detinue Suit on November 17, 1975, and secured a default judgment on February 12, 1976, against Wanda Wright.
“5. The Defendant obtained a Writ of Seizure, and seized the Plaintiff’s truck, a 1970 [sic] 2-ton Chevrolet truck Serial Number CE630P114531, which was loaded with pulpwood at the time of the seizure on May 6, 1976.
“6. That at the time Defendant seized said truck it was in the possession of Plaintiff, Billy Joe Mims. The Defendant knew that Billy Joe Mims owned said vehicle and had been informed by Plaintiff that Wanda Wright never owned an interest in said vehicle.
“7. That the Defendant, Citizens Bank, obtained the Writ of Seizure based on a default judgment in its Detinue Suit by Fraud, Deceit, and Trickery. That although the Defendant Citizens Bank, knew that Plaintiff, Billy Joe Mims, had possession and claimed title to said truck, the Defendant concealed same fact from the court in order to obtain possession of Billy Joe Mims’ truck.
“8. That since said seizure, the Defendant has sold the truck and load of pulpwood and retained the proceeds. That the Defendant’s, Citizens Bank, action interfered with the Plaintiff’s logging operations in that he had a crew of five men who were idled by the seizure of the truck. That his contracts with others in the pulpwood industry have been interfered with and caused a loss of income to him.
“9. That the truck was equipped with a pulpwood loader. The truck had a load of pulpwood, property of one Freddie Headley, on it at the time of the wrongful seizure. That Plaintiff has had to pay for this load of pulpwood and the pulpwood loader.”

Count 1 claimed $5,000 compensatory damages and Count 2 sought $25,000 punitive damages. A pre-trial order stated, “Nature of the case. Two counts of the Complaint. Each alleges a cause of action based upon fraud and deceit.”

At the close of Mims’ case the bank moved for a directed verdict on the theory that Mims had not proved all the necessary elements of fraud and deceit, i. e., he had not shown that there was a false representation by the bank to Mims on which he acted. The trial court agreed with the bank’s contention and granted the motion. Mims then moved for a new trial alleging as grounds that the complaint and evidence adduced at trial showed that the default judgment which led to the seizure was obtained by fraud upon the court and denied him due process of law. The motion also contended that the evidence presented showed that the bank’s actions interfered with Mims’ logging business and supported a claim for. unlawful interference with contractual relations. Finally Mims asserted that he had presented sufficient evidence to recover under § 6-5-260, Code 1975, which states, “The owner of personalty is entitled to possession thereof. Any unlawful deprivation of or interference with such possession is a tort for which an action lies.” The bank countered by asserting the pre-trial order which purported to limit the cause of action to fraud and deceit. Following denial of his motion for new trial Mims brought this appeal.

From a review of the testimony presented at the second trial it is apparent that Mims presented sufficient evidence to go to the jury on his claims of unlawful interference with his business operations and unlawful deprivation of personalty, § 6-5-260, Code 1975. The bank, however, attempts to use the pre-trial order to limit the cause to fraud and deceit. Here, however, the issues were tried by implied consent of the parties, and there is no doubt that Mims could have amended his pleadings to conform to the evidence under Rule 15(b), ARCP. Under this rule where evidence is introduced or an issue raised with the express consent of the other party or without objection from him, the pleadings shall be deemed amended to conform to the evidence. While a motion to amend the pre-trial order would have been preferred, we believe that the issue was sufficiently raised in the presentation of the evidence. To hold that Mims was absolutely bound by a pre-trial order which omitted causes of action clearly raised in the pleadings (and, in fact, litigated by the parties in the first trial and appeal) would work a manifest injustice in complete contravention of the avowed purpose of our rules of procedure. The directed verdict here was improper.

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON and EM-BRY, JJ., concur.

BLOODWORTH, J., concurs in the result.


text:
    Ex parte Gary L. MARCRUM, Sr. In re NELSON WEAVER REALTY COMPANY, INC., a corporation, d/b/a The Mayer Company v. Gary L. MARCRUM, Sr. and the Crest Company.
    78-237.
    Supreme Court of Alabama.
    June 22, 1979.

      James L. Shores, Jr., Birmingham, for petitioner.
    S. R. Starnes and L. Graves Stiff, III, Birmingham, for respondents.
   ALMON, Justice.

This is an original petition for a writ of mandamus which raises the question of the timeliness of a jury demand.

The petitioner, Marcrum, is one of the defendants in a suit filed in the Circuit Court of Jefferson County. In that suit, the plaintiff, Nelson Weaver Realty Company, Inc., alleged that petitioner has solicited customers or prospective customers of the plaintiff in violation of an employment agreement entered into by the parties on March 18, 1974.

The complaint was filed on June 22,1978, and sought damages and injunctive relief. It did not contain a jury demand.

The petitioner and other defendants filed an answer to the suit on July 10, 1978. A jury demand was not included in this answer.

On August 14, 1978, petitioner filed a counterclaim against Nelson Weaver Realty Company, alleging the breach of a separate agreement dated September 1, 1976, regarding commissions to be paid to petitioner. This counterclaim, filed thirty-five days after the answer, contained a jury demand of all the issues in the case.

On the 12th day of January, 1979, after denying the injunctive relief, the trial court ordered that:

“The ‘main case’ in this cause shall proceed to trial without a jury. The Counter-Claim as filed by Defendant, Marcrum, is hereby disjoined from this cause and is transferred to the law-side of this Court to be tried to a jury.”

The petitioner contends that the trial court erred in transferring the counterclaim and seeks, through this mandamus proceeding, to have the entire case, including the claims presented in the original complaint, tried to a jury. It is the respondent’s position that the petitioner waived the right to a jury trial on the issues presented by the original complaint by failing to make a timely demand therefor. The respondent further contends that the counterclaim filed by the petitioner does not operate to revive the right to a jury trial on the issues raised by the complaint and therefore, the transfer order of the trial court was proper.

Rule 38(a), ARCP, preserves inviolate the right to a trial by jury and 38(b) provides the means by which a litigant invokes that right. Moreover, 38(d) provides in clear and unambiguous terms that “[t]he failure of a party to serve a demand as required by this rule . . . constitutes a waiver by him of trial by jury.”

We agree with the statement in the respondent’s brief:

“Inasmuch as petitioner Marcrum did not file his jury demand as to the issues of the complaint until after 30 days from the date of the answer (the last pleading directed to the issues of the complaint), it is clear that the right to jury trial as to those issues has been waived.”

There is no indication in the petition for mandamus that the petitioner has attempted to avail himself of the saving provision embodied in Rule 39(b), ARCP. That rule provides that where a party fails to invoke the right to a trial by jury, the court, in its discretion upon motion may order a trial by jury of any or all issues.

We do not believe that the trial court abused its discretion in ordering that the counterclaim be tried separately. None of the views expressed herein should be construed as establishing an immutable principle that the conjunction of non-jury issues and issues triable to a jury compels a separate trial. Both Mobley v. Moore, 350 So.2d 414 (Ala.1977), and the Committee Comments to Rule 42, ARCP, expressly reject that conclusion.

The fact that a jury trial is demanded for one or more claims, by the very terms of Rule 42, ARCP, is a factor that the trial judge must consider in determining whether to order separate trials. Moreover, the Committee Comments indicate that the trial court is vested with a “virtually unlimited freedom” to order separate trials. The merger of law and equity, Rule 2, ARCP, and the consequent possibility of the intermingling of issues to be tried by the jury with issues to be tried by the court are cited as the reasons for Rule' 42, ARCP. Therefore, absent an abuse of discretion, the trial court will be allowed to “shape the order of trial” through the provisions of Rule 42, ARCP.

It is not necessary for our decision to characterize the counterclaim in this case as either permissive or compulsory, Rule 13, ARCP, but we do note that the issue presented by the counterclaim appears to concern the parties’ obligations under a contract separate and independent from the employment contract made the basis of the original complaint. We are not persuaded that the order transferring the counterclaim constituted an abuse of discretion.

Accordingly, the petition for a writ of mandamus is denied.

PETITION DENIED.

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

      . It is not clear from the record whether the trial court severed the counterclaim, Rule 21, ARCP, or ordered separate trials, Rule 42, ARCP. See Key v. Robert M. Duke Ins. Agency, 340 So.2d 781 (Ala.1976). For the purpose of deciding this case, the legal effect of the trial court’s transfer order is immaterial.


author: BLOODWORTH, Justice.

text:
    J. B. HUBBARD v. Jimmy MONTGOMERY and Johnny Montgomery.
    78-353.
    Supreme Court of Alabama.
    June 22, 1979.

      J. B. Hubbard, pro se.
    A. Colin Barrett, of Lee, Barrett & Mullins, Tuscaloosa, for appellees.
   BLOODWORTH, Justice.

Plaintiff James B. Hubbard appeals from dismissal with prejudice for want of prosecution of his suit to recover property. We affirm.

At the time this action was filed, Mr. Hubbard was a prisoner on death row in Holman Prison. He had been convicted and sentenced to die for the killing of Lillian Montgomery, mother of the defendants in this action. January 27,1978, plaintiff filed suit pro se to recover certain items of personal property alleged to be his, which were left on the premises he shared with Lillian Montgomery before her death. He also sought a determination that Lillian had given him a car and a house prior to her death. Defendants’ motion to dismiss was overruled and defendants filed an answer.

On December 22, 1978, the trial judge signed an order setting trial before the court for February 5,1979. (This order was filed in the circuit clerk’s office January 10, 1979.) Notice of the trial date was sent to the plaintiff and he replied in a letter dated January 30, 1979. Plaintiff had written to the clerk December 11, 1978, that an attorney in Selma, Booker T. Forte, Jr., would be handling his case.

On February 5, 1979, on motion of the defendants, the suit was dismissed with prejudice for failure of the plaintiff to appear in person or by counsel. There is no indication in the record as to whether or not plaintiff at any time had the assistance of counsel, other than the letter of December 11, 1978, which he sent to the clerk.

The plaintiff appeals pro se, protesting his innocence of the crime for which he was convicted, stating that he has witnesses to prove he has property on the premises in question, and contending that “he was denied his rights by federal and state laws” by not being brought to the trial court to testify in his own behalf.

The issues before us are (1) whether an incarcerated criminal plaintiff is entitled to appear in his civil action, unrelated to his confinement, in order to testify in his own behalf, and (2) whether the trial court abused its discretion by dismissing the claim.

This Court addressed the right of a prisoner to appear and testify in his own civil suit unrelated to his confinement in the recent case of Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977). We held that a prisoner has no such right. His proper course is to take his own oral or written deposition under Rule 30 or 31, ARCP, to be used at trial as specifically provided in Rule 32(a)(3)(C), ARCP. (Although appellant had indicated he had an attorney, no appearance had been filed by the attorney.)

We further find that in this case the trial judge did not abuse his discretion by dismissing the claim for want of prosecution in accordance with Rule 41(b), ARCP.

Plaintiff’s position results from his own actions and not from those of the defendants or the court. Incarceration alone is no excuse to avoid a dismissal for want of prosecution. Whitehead v. Baranco Color Labs, Inc., 355 So.2d 376 (Ala.Civ.App.1978).

Plaintiff claimed to be indigent, and the court records reflect that he is indigent, so that he was unable to hire counsel to prosecute his claim. He was not due to have counsel appointed, since this is a civil proceeding. Boulware v. Battaglia, 344 F.Supp. 889 (D.Del.1972), aff’d, 478 F.2d 1398 (3d Cir. 1973).

As we have already noted, he had no right to appear in person. Consequently, plaintiff was in a position which inevitably led to dismissal of his claim, a situation from which we are not in any position to extricate him.

A federal district court in Wisconsin, confronted with a civil complaint filed in forma pauperis by an imprisoned criminal to enforce rights unrelated to his conviction or confinement, noted that incarceration necessarily entails the loss or limitation of many rights and privileges. Seybold v. Milwaukee County Sheriff, 276 F.Supp. 484 (E.D.Wis.1967). The court discussed the burden placed on the penal system by such suits, a view with which we concur:

“. . . We can conceive of no greater interference with prison officials or prison discipline than requiring that prisoner-plaintiffs who wish to appear in civil actions unrelated to their imprisonment be transported from prison to this court by prison guards, housed in this area and released from their normal duties at the institutions during proceedings in their cases. Regardless of the merit of the causes of action stated in their complaints, it must be remembered that the prisoner-plaintiffs have, by their own acts resulting in conviction, placed themselves in a position such that effective prosecution by themselves is not possible without interference by the court with their detention, and it is our opinion that absent unusual circumstances that interference is not warranted. In other words, their unavailability for hearings and trials is due to their convictions, and . we know of no authority compelling us under ordinary circumstances to deliver them from their self-caused restrictions and proceed with their cases as though they could appear at will.”

Id. at 488. See also Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843 (1956).

The plaintiff may not avoid the effect of Rule 41(b) by relying on his unfamiliarity with legal procedure or court rules. The Alabama Rules of Civil Procedure are to be applied impartially, and are binding on both members of the bar and parties proceeding pro se. See Mazique v. Mazique, 123 U.S.App.D.C. 48, 356 F.2d 801 (1966).

For the foregoing reasons, this cause must be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Ruth S. CAPRA v. Lindsey S. SMITH, Linda G. Smith, and Thomas Franklin Lowery.
    Civ. 1389.
    Court of Civil Appeals of Alabama.
    Aug. 23, 1978.
    Rehearing Denied Sept. 27, 1978.

      John F. DeBuys, Jr., of Odom, May & DeBuys, Birmingham, for appellant.
    Douglas P. Corretti and David F. Ovson, Birmingham, for appellees, Lindsey S. Smith and Linda G. Smith.
    R. 0. Hughes, Birmingham, for appellee, Thomas Franklin Lowery.
   WRIGHT, Presiding Judge.

This case involves the issue of implied warranty in the sale of real estate.

In 1972 Ms. Capra was a licensed real estate salesperson. Deciding to begin her own real estate brokerage business, she purchased a residential lot for the purpose of building a house and selling it to a member of the public. She knew Lowery, who had been buying lots and building houses thereon for sale. Capra had sold several of his houses and had aided him in securing construction financing. She entered into an agreement with Lowery to supervise the building of her house for a fee. The exact nature of the agreement was disputed. However, Lowery did secure the materials, workmen and subcontractors on his credit and did work and spend time at the site during the construction. Capra secured the financing, the lot and the plans and specifications. She directed a change in the elevation of the house and paid all the bills for labor and material.

After construction began, plaintiffs Smith contracted to purchase the house from Capra. The Smiths said that both Capra and Lowery stated to them that the house was being well constructed with good materials and workmanship and that it would be a good house. The Smiths closed the purchase on March 7,1973. On January 25, 1975, the basement wall of the house collapsed requiring extensive repairs. There was testimony that the wall was improperly constructed and without proper drainage.

Plaintiffs brought suit against both Capra and Lowery upon theories of misrepresentation and fraud, implied warranty and negligence. Capra cross-claimed against Lowery for negligent performance of his agreement with her. The trial court directed a verdict in favor of. plaintiffs arid against Capra on the claim of implied warranty. Presumably, there was no consideration thereafter of the other theories of recovery presented by the complaint of plaintiffs. The claims and cross-claim against Lowery were submitted to the jury with verdicts in favor of Lowery. Damages of $11,431.49 were assessed against Capra. Remittitur on motion for new trial was required and judgment was reduced to $9,358. Capra appealed.

The primary issue presented is whether the court erred in giving the affirmative charge against Capra on the claim of implied warranty.

The right of recovery on an implied warranty arising from the sale of a new house by the builder-vendor to a first vendee first was declared in this state by this court in the case of Cochran v. Keeton, 47 Ala.App. 194, 252 So.2d 307 (1970). The case was affirmed upon certiorari to the supreme court. Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971). We discern no reasonable cause for repeating here what was said in the decisions in that case concerning the reasons for abolishing the doctrine of caveat emptor and applying the principle of implied warranty to the sale of realty. However, we feel it necessary to iterate the extent of the abolishment of the old and application of the new.

The abolishment of caveat emptor and the adoption of the principle of implied warranty of workmanship and fitness for habitability in Cochran v. Keeton, was limited to the sale of a newly constructed house by a builder-vendor to a first vendee. It is within this strict limitation that we view this case.

It is the contention of Capra that she was not a “builder-vendor” as that term is properly defined, or that the evidence is in conflict as to whether she was a “builder-vendor,” thus the issue should have been submitted to the jury.

We say first to Capra that she cannot escape the designation as “builder” merely because she did not personally perform the work or because she did not personally supervise the work. One may be a “builder” even though a general contractor actually does the building. Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 (1975). If one is engaged in building houses or causing them to be built for the purpose of sale to the public, he is a builder. If, in addition, he places them in the stream of commerce as a vendor, he is in the business of builder-vendor. It is because one is engaged in the business of builder and seller that the law of Cochran v. Keeton presumes a superior knowledge of the product and an advantage over the purchaser in the sale of a new house. Because of such advantage, as a part of the sale, a warranty of good workmanship and fitness of purpose is implied. In every case from other states that we have studied, with one possible exception, the principle has been limited in application to sale of a new house to a first purchaser by one engaged in the business of builder-vendor.

In Cochran v. Keeton, we relied for support of our opinion, in part, upon the Washington case of House v. Thornton, 76 Wash.2d 428, 457 P.2d 199 (1969). We turn again for support for what we have said here to the Washington case of Klos v. Gackel, 87 Wash.2d 567, 554 P.2d 1349 (1976). Therein the court said: “The essence of the implied warranty of suitability or habitability requires that the vendor-builder be a person regularly engaged in building, so that the sale is commercial rather than casual or personal in nature.” We find the following in the case of Hartley v. Ballow, 286 N.C. 51, 209 S.E.2d 776 (1974):

“We hold that in every contract for the sale of a recently completed dwelling, and in every contract for the sale of a dwelling then under construction, the vendor, if he be in the business of building such dwellings shall be held to impliedly warrant to the initial vendee that . the dwelling, together with all its fixtures, ... is constructed in a workmanlike manner . . . ."

In light of our decision in Cochran v. Keeton and its affirmance by the supreme court, we perceive the law in this state to be that expressed in the quotations from the above-cited cases.

We equated our decision in Cochran v. Keeton with the implied warranties of merchantability and fitness of purpose in the sale of consumer goods as codified in the Uniform Commercial Code. (§ 7-2-315, Code of Alabama 1975). That warranty arises from a commercial transaction, normally pnly where the seller is a merchant, having or being presumed to have the superior skill or knowledge of the product, upon which the purchaser is entitled to rely. Hall v. City of Huntsville, 291 Ala. 124, 278 So.2d 708 (1973). We are consistent in now holding that an implied warranty of realty can only arise from a similar commercial relationship.

In view of the evidence in this case, the trial court must be held to have erred in directing a verdict in favor of plaintiff. There clearly arises from the evidence a question of fact for the jury as to whether Capra was in the business of a builder-vendor.

Though it was not reserved as error and is not contended as such by Capra, the conception of the trial court of the applicable law is shown by a portion of the oral charge. The court said as follows:

“The law of this state says this, in effect, that when a person builds a house or has it built, and if the prospective buyer sees that house while it’s under construction and observes it while it’s under construction and then buys it, though law places what we call an implied warranty on the seller of that house and that would be Ms. Capra in this case, and that is that the house is reasonably fit and suitable for a dwelling house.”

Following this statement, the court directed a verdict against Capra. It is evident that in directing the verdict, the court misunderstood the law of implied warranty of real estate.

The only law of implied warranty of real estate in this state is that carved from the rule of caveat emptor by Cochran v. Keeton. Prior to that time, the law was as stated in Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884 (1961). The theory of implied warranty was presented in that case and its application unequivocably rejected by the supreme court in any real estate purchase contract. In affirming our decision in Cochran v. Keeton the supreme court rejected and overruled Druid Homes only “in the sale by a builder-vendor of a newly constructed house.” We believe this court would not be in order to expand that single exception. We challenged the prerogative of the supreme court to change its mind as to a principle of law in Cochran. We do not deem it propitious to again tempt its good will and openmindedness. If the rule of Cochran is to be expanded to apply to any person building and selling a new house or to the mere selling of a new house, the supreme court must so declare. However, we do not hesitate to state that the learned trial judge misunderstood the rule of Cochran v. Keeton and erred to reversal in directing a verdict in favor of plaintiff and against defendant Capra.

Another issue presented is that the verdict in favor of defendant Lowery in the matter of the cross-claim of Capra is contrary to the great weight of the evidence.

A jury verdict is presumed correct and that presumption is strengthened by denial of a motion for new trial. It will not be set aside on appeal unless it is so against the great preponderance of the evidence as to be clearly wrong and manifestly unjust. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975). The only question presented by the cross-claim of Capra against Lowery, as we see it, was whether Lowery breached the agreement with Capra as to the building of the house. The evidence as to the terms of that agreement and the obligations and responsibilities of Lowery thereunder were sharply in conflict. The resolution of that conflict was a matter for the jury. Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968). The jury decided in favor of Lowery. There was no error.

The last issue charges excessiveness of the verdict. That issue is pretermitted in view of the necessity of reversing and remanding for further proceedings below.

Though it was not presented for consideration on this appeal, in view of a probable retrial, we suggest both counsel and the court review the last paragraph, and particularly the last two sentences, of the court’s oral charge to the jury.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . Lane v. Trenholm Building Co., 229 S.E.2d 728 (S.C.1976).


text:
    In re Ruth S. CAPRA v. Lindsey S. SMITH et al. Ex Parte Lindsey S. Smith et al.
    78-38.
    Supreme Court of Alabama.
    May 25, 1979.

      Samuel Maples, Birmingham, for petitioners.
    Charles A. J. Beavers, Jr., Birmingham, for respondent.
   FAULKNER, Justice.

Following a directed verdict in their favor the Smiths were awarded damages from Capra for breach of implied warranty of habitability. The Court of Civil Appeals reversed, holding it was a jury question whether or not Capra was a “builder-vendor” and therefore subject to the rule of Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971). We granted certiorari. We reverse the Court of Civil Appeals and remand for further proceedings.

The facts of this case are set out in some detail in the opinion of the Court of Civil Appeals. Capra v. Smith, [MS August 23, 1978] 372 So.2d 317 (Ala.Civ.App.1978). Here it is sufficient to note that the Smiths purchased a new home from Capra, a real estate broker who built the house in question for speculation. This house was Capra’s first project and it appears that, although a contractor was involved, Capra herself took part in the supervision of the construction. Approximately two years after the Smiths purchased their home, the basement wall collapsed.

In 1971, this Court abandoned the rule of caveat emptor in the sale of a newly constructed house by a builder-vendor to the first purchaser, and held that in the future such transactions would carry an implied warranty of habitability, or fitness for the use for which purchased. Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971), aff’g 47 Ala.App. 194, 252 So.2d 307 (1970). Capra attempts to escape liability under this doctrine by asserting that it was a jury question (1) whether or not she was the “builder” of the house, and (2) whether or not she was in the business of building, and selling houses, and therefore, subject to the implied warranty.

In regard to Capra’s first contention, we refer simply to the following statement of facts, which apparently were not disputed, contained in the opinion of the Court of Civil Appeals:

“Capra secured the financing, the lot and the plans and specifications. She directed a change in the elevation of the house and paid all the bills for labor and material.”

372 So.2d 317.

This activity was sufficient to constitute Capra a “builder” as a matter of law.

Capra next contends that the implied warranty of habitability applies only to those in the business of building and selling houses, much as the implied warranties in the Uniform Commercial Code apply only to merchants. See §§ 7-2-104(1) and 7 — 2-314, Code Ala.1975. Capra asserts that the jury should have been allowed to determine whether or not she was in the business of building and selling houses. We do not, however, view Capra’s business or profession as the key to imposition of liability under Cochran v. Keeton. Instead the critical question is whether the construction and sale was commercial rather than casual or personal in nature. Cf. Klos v. Gockel, 87 Wash.2d 567, 554 P.2d 1349 (1976). Thus a builder-vendor is just as liable for his first house as his one hundredth. Similarly, a part-time builder stands on equal footing with the corporate developer of tract housing. Such a rule naturally flows from the avowed purpose of the implied warranty of habitability, to inhibit the unscrupulous, fly-by-night, or unskilled builder and “to discourage much of the sloppy work and jerry building that has become perceptible over the years.” Cochran v. Keeton, 47 Ala.App. at 198, 252 So.2d at 310, quoting Williston on Contracts, Vol. 7, § 926, 3d ed. 1963. Here, it was uncontroverted that Capra built this house for speculation, and that the transaction between her and the Smiths was purely commercial. Consequently, the trial court did not err in directing a verdict against Capra and in favor of the Smiths on the question of liability.

The Court of Civil Appeals is reversed and the cause is remanded to that Court for reconsideration in light of this opinion.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Ruth S. CAPRA v. Lindsey S. SMITH, Linda G. Smith, and Thomas Franklin Lowery.
    Civ. 1389.
    Court of Civil Appeals of Alabama.
    June 27, 1979.
   WRIGHT, Presiding Judge.

Our original decision 372 So.2d 317 in this case reversing the judgment of the trial court having been considered by the Supreme Court upon writ of certiorari, and the same having been reversed and remanded 372 So.2d 321 to this court for further consideration by judgment of May 25,1979, it is ordered that our former decision be and is set aside and the judgment of the trial court is in all things affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.