author: BEATTY, Justice.

text:
    James H. EARNEST v. PRITCHETT-MOORE, INC., et al.
    80-196.
    Supreme Court of Alabama.
    July 10, 1981.

      Albert G. Lewis, III of Turner, Turner & Turner, Tuscaloosa, for appellant.
    James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellees.
   BEATTY, Justice.

Appeal from the grant of summary judgment in favor of all defendants. We affirm.

The complaint alleged fraudulent misrepresentations against all defendants arising out of an attempt to effect an insurance adjustment following collision damage to the plaintiff’s vehicle. In Count One plaintiff alleged:

4. That on or about the 12th day of May, 1980, Gragg Robinson, an agent of Pritchett-Moore, Inc., while acting within the line and scope of his authority, authorized the Plaintiff to have his automobile repaired and averred that All Risk Insurance Company, the insurance carrier for the automobile driven by Dwayne Richardson, [who allegedly drove the vehicle which negligently struck the plaintiff’s vehicle] would remit a check . ..
5. The representations made by the Defendant, Pritchett-Moore, Inc., by their agent, Gragg Robinson and by the Defendant, All Risk Insurance Company, through their agent, Pritchett-Moore, Inc., were false and the Defendant, without knowledge of the true facts, recklessly misrepresented them, or in the alternative, were made by mistake, with the intention that the Plaintiff should rely upon them.
6. That the Plaintiff believed the representations and in reliance thereupon, had his automobile repaired and expended the sum of Four Hundred Thirty-Six and No/100 ($436.00) Dollars for this repair.

Count Two adopted paragraphs 1 through 6 of Count One and added:

2. Subsequent to the repair of the Plaintiff’s automobile, the Defendant, Crawford & Company, while acting in concert with the Defendants, Pritchett-Moore, Inc., and All Risk Insurance Company, Inc., undertook to appraise the damages sustained by the Plaintiff’s automobile.
3. That at the time of the said appraisal, the Defendant Crawford & Company knew or had reason to know that the Plaintiff had expended the sum of Four Hundred Thirty-Six and No/100 ($436.00) Dollars for the repair of the damages sustained by the Plaintiff’s automobile.
4. That at the time of said appraisal, the Defendant, Crawford & Company knew or had reason to know that the Plaintiff had at the request of the Defendant, Pritchett-Moore Inc., obtained various estimates for the repair of the damages sustained in the accident ranging from Four Hundred Thirty-Six and No/100 ($436.00) Dollars to Seven Hundred Fifty-One and No/100 ($751.00) Dollars and knew or had reason to know that these estimates represented fair and reasonable charges for the repair of the damages sustained by the automobile.
5. That subsequent to the aforesaid appraisal, the Defendant, Crawford & Company appraised the damages to the Plaintiff’s car at One Hundred and No/100 ($100.00) Dollars, knowing or having reason to know that the damages sustained by the aforesaid automobile were much more expensive.
6. That the aforesaid appraisal was made solely for the purpose of defrauding the Plaintiff.

The plaintiff claimed $436.00 actual damages and $10,000.00 punitive damages from both Pritchett-Moore and All Risk Insurance Company jointly, and the same amounts from Crawford and Company individually. By amendment the punitive damages claim was increased to $100,000.00. All defendants filed answers. Thereafter the defendants moved for summary judgment: Pritchett-Moore’s motion being based upon the pleadings, the plaintiff’s deposition, the plaintiff’s answers to interrogatories of All Risk and Crawford and Company, and documents produced by the defendants in response to plaintiff’s requests for production; All Risk and Crawford and Company relied upon the pleadings, the plaintiff’s deposition and the plaintiff’s answers to interrogatories. Following a hearing on these motions the trial court granted the motions, and the plaintiff appealed.

Whether summary judgment was proper as to each defendant is the question before us.

It is important to test the evidence before the trial court with the principles of law upon which the plaintiff was relying. Under the allegations of the complaint it is apparent that plaintiff was relying upon Code of 1975, § 6-5-101:

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

Under this principle there must be (1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff (4) who must be damaged as a proximate result. International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977) and cases cited.

The evidence establishes that the plaintiff’s pick-up truck was damaged by another automobile driven by one Dwayne Richardson. The plaintiff ascertained at the scene that Richardson’s insurance agency was Pritchett-Moore, Inc., and that Richardson’s agent was one Gragg Robinson. The next morning he went to see Robinson:

I told him what had happened and he got the secretary to pull the man’s record. And we talked about it a few minutes. Then he told me to go out and get some estimates, which I did.
The agent had told plaintiff to obtain two estimates; however, he actually obtained three, one each from Campbell’s Body Shop, the “Buick place,” and Horton’s Garage. He delivered two of these to the agent, the Campbell’s and Buick estimates. The plaintiff deposed further:
Q And you turned them in to him?
A Yes, sir.
Q And what did you all say or agree you’d do? What was your understanding about what was going to happen next?
A Well, I believe that I asked him about, you know, about how long it would take to settle and he said he didn’t think it would take long.
Q Did he tell you someone would be in touch with you?
A He said that the insurance company should get with me in about a week.
Q In other words, you understood that he was going to send these estimates to the insurance company?
A Right.
Q And he said that someone representing the insurance would be in touch with you in about a week?
A Right.
Q Did he say who he thought that might be?
A No, sir, he didn’t say.
Q Did he indicate it would be someone other than himself, though?
A He didn’t say, sir. I assumed he meant someone else, I didn’t know.
Q Did you ever have any further conversations or dealing with Mr. Robinson?
A I did ask him about going ahead and getting my truck fixed. He said go ahead and have it fixed.
Q When was this that you all had that conversation?
A The same day, sir.
Q You asked him if you could go ahead and have it fixed?
A I asked — He said it would take about a week. I said, “Well, would it be all right if I go ahead and put my truck in the shop?” He said, “I see no problem there.”
Q Well, let’s focus in on that conversation, then, to try to pinpoint exactly what was said. Was this before or after he’s told you that someone from the insurance company would be in touch with you in about a week?
A Best I can remember, it was after.
Q Okay. And you, then, brought up the idea: Could you go ahead and put your truck in the shop?
A Right. Because I had a specific reason why.
Q And what was that?
A I had to be in Mississippi the following weekend for Guard drill. They have some regulations on entering a military post about damaged vehicles.
Q And did you tell that to Mr. Robinson?
A Yes, sir.
Q All right. And — Strike that.
And he simply said — Well, tell me. You said, “Can I go ahead and put it in the shop?”
A Yes, sir.
Q And what did he say in response to that?
A He said, “I don’t see any problems if you need the truck.”
Q He said, “I don’t see any problem if you need the truck?”
A Right.
Q Now, I think I asked a minute ago, but to make sure before I move on to something else: Did you have any further dealings with Mr. Robinson that you can recall?
A At this time?
Q Well, I guess at any time along.
A I’m trying to think whether I got the letter from All Risk before I called him back or not. I’m going to say no but I’m not sure. I don’t believe we did.
Q Okay. What’s the next thing that happened then? Did you take your truck and put it in the shop?
A Yes, I took the truck and put it in the shop.
Q Where did you put it?
A Put it in Allen’s Body Shop.
Q And why did you put it in Allen’s Body Shop?
A Because I asked him about getting — He works with Horton’s Body Shop. And I asked him, I said, “Campbell looks like they’re pretty snowed under up there. I need my truck this week.” So I asked him, I says, “Will you fix the truck here at Horton’s for what Campbell’s would? “Yeah,” said, “we’ll fix it for a dollar less.” And he gave me an estimate. I said, “Well, will that be permissible with the insurance company?” He said, “I don’t see why not. You turned in the cheapest estimate.” I said all right.
Q Now, I assume that when you had the conversation you’ve already testified to about — with Mr. Robinson; that is, you wanted to know if you could put it in the shop, you didn’t tell him which shop you were planning on putting it in?
A No. I didn’t have any idea at that time which shop I was going to put it in.
Q So he had no idea that you might be taking it to Horton’s or what Horton might fix it for or what Mr. Allen might fix it for?
A What he told me was — I asked him, I said, “Well, I need to get my truck fixed.” He said, “Well, the insurance company will pay the amount of the lowest estimate.” That was my understanding.
Q All right. Well, did he make a definite absolute binding commitment to you: Don’t worry, they’re going to pay the lowest estimate no matter what? Or was it as you said earlier, he said the insurance company would be in touch with you in about a week?
A He said the insurance company will take care of it. I told him; turned in the cheapest estimate. He said that sounded fair.
Q As I understand it, you had to have this truck fixed by that time.
A Well, it was the only way I could get to Mississippi.
Right. In other words, you had no choice in the matter. o*
Right. <¡
One way or the other, whether the insurance company was going to pay for it or not, you had to get your truck fixed. o*
Right. ■<
And if Mr. Robinson had told you “Don’t have it fixed,” or “the insurance company ain’t going to pay for it,” or “Mr. Richardson’s insurance is void”— No matter what he told you, you were still going to have to get that truck fixed. <y
I was going to pay to have the truck fixed myself. I paid to have the truck fixed myself.
All right, sir. So his telling you that as far as he was concerned, you could go ahead and put it in the shop, really didn’t influence you one way or the other in that? «©
No. Because I assume that when a man has insurance, I assume his insurance will pay off if he’s liable.
Well, I understand that. But I’m just saying that from what you’ve told me, it seems to be that regardless of what Mr. Robinson might have ever said to you, you were going to have to have the truck fixed anyway by that Friday? MR. LEWIS: We object to the form of the question and object to leading. MR. JENKINS: You can answer, Mr. Earnest. <©
Do you understand my question? o*
Yeah, I understand your question. I needed my truck. <1
And you were going to have to have it fixed by that Guard drill? <©
I needed to go to Mississippi. I had tried to make arrangements to get out of going, yes.
And if you went, the truck, you’re saying, was the only way of going. O’
It was the only way I could go Saturday morning.
Q All right. And you had—
A Sunday morning. I’m sorry. I made a mistake.
Q And you had to go Sunday morning.
A Yes, sir. We have to fire — We have to qualify with the rifles once a year; mandatory, Alabama National Guard.
Q And you say you had the money yourself to pay for it and you did in fact pay for it?
A I did pay for it. That’s correct.
Q Well, what if Mr. Robinson had told you they probably won’t pay for it. This man has such a bad driving record, there probably won’t be any insurance. Would you still have had to have the truck fixed by that Sunday?
A I would have had my truck fixed and hired me a lawyer and sued Dwayne Richardson.
Q All right, sir. Fine. By the — at the time you got your truck back Friday morning, had you had any contact or communication with Mr. Robinson other than those two conversations you have already told me about?
A Not that I remember. He added:
Q At no time did Mr. Robinson ever know that you were planning on having Mr. Allen fix your truck, did he?
A He never did ask me.
Q Well, do you know of any other way he would have known it?
A (Shakes head.) I didn’t see any reason—
Q Well, let me rephrase it this way — and I’m not trying to trick you, I’m just asking factually.
As far as you know, did Mr. Robinson ever have any knowledge of the fact that you were going to have your truck fixed by Mr. Allen or how much Mr. Allen was going to fix it for?
A No.
MR. HARWOOD: That’s all.
(Examination by Mr. Harwood continuing:)
A The question was that I asked him about it and he said get the truck fixed.
You asked Mr. Robinson about it? Q
Yes, sir. He said he didn’t think we’d have any problem other than he did say he wanted to call Mr. Richardson up first on one of the first conversations to see if he wanted to take care of it his-self. A
Q All right. But insofar as him saying he didn’t see that there’d be any problem about it, you then asked him during the conversation — or explained to him— that you had to have your truck by Friday.
A Told him I needed my truck by — by the weekend.
Q You asked him could you go ahead and put it in the shop?
A Right.
Q And he said he didn’t see any reason why not?
A Right.
Q Did he tell you that he was sure the insurance company would pay that estimate?
A No, sir.
Q Did he just tell you they usually pay the lower estimate?
A He said the insurance company usually pays the lowest estimate.
Q But that somebody from the insurance company would be in touch with you about it?
A He said, “You should hear from the insurance company in about a week.”

Under the evidence of the plaintiff himself it is difficult to establish a misrepresentation of a material fact which induced the plaintiff to act. The agent made no representation that the plaintiff would be paid in any event, only that the insurance company usually paid the lowest estimate. Additionally, the evidence establishes that the moving inducement for the plaintiff’s having his truck repaired was not any statement made by the agent but because, at all events, he needed the use of the truck the next weekend. Whether the insurance company was to satisfy his claim or not, he incurred the repair bill with another and different garage on his own terms. The alleged misrepresentation, therefore, did not materially contribute to his damage and was not “of such character that the purchaser would not have consummated the contract [of repairs] had he known the falsity of the statement.” Southern Loan & Trust Co. v. Gissendaner, 4 Ala.App. 523, 58 So. 737 (1912), quoting Jordan & Sons v. Pickett, 78 Ala. 331 (1884).

We conclude that summary judgment was appropriately entered for Pritchett-Moore.

The same considerations apply to All Risk. The agent Robinson, from aught that appears, was acting as a conduit for estimates of repair to be transmitted to the appropriate liability carrier. All Risk came into the situation after plaintiff had had his truck repaired. He received a letter from A1 Hollingshead, a representative of All Risk, together with a form which plaintiff completed and returned by mail. Plaintiff also telephoned Hollingshead and discussed the accident and the contents of the form. Hollingshead stated to plaintiff in that conversation: “Well, James, if we have any problem, I’ll be sure and call you.” After that conversation and before any further contact with Hollingshead, plaintiff paid Allen’s garage the amount of his repair bill. Later he telephoned Hollingshead again and was told that more paperwork was required. Still later he telephoned Hollings-head and was told that Crawford and Company would handle the adjustment. These communications only revealed that All Risk required additional information, and that Crawford and Company would adjust the claim. All Risk itself made no false representation to the plaintiff and plaintiff acted on none to his damage. Indeed, plaintiff did not act upon any statement made to him by Hollingshead or anyone in the latter’s office. And if plaintiff’s theory is that Robinson, the agent, was acting for All Risk, we have shown by the evidence adduced that plaintiff acted for reasons personal to himself in having his car repaired, not from anything Robinson represented to him.

Insofar as plaintiff’s transaction with Crawford and Company is concerned, plaintiff’s evidence is:

A All right. The second time I called him, he said, “We have turned it over to Crawford and Company. They will make the adjustment.” All I know is Crawford and Company is insurance adjuster. I didn’t know what they do. I mean for that point.
Q Well, do you recall anything else that was said between you—
A That’s what I’m getting to now.
Q Okay.
A He said — Now, I can’t remember exactly the man’s name who’s in charge of Crawford and Company. Is it Mr. Poole? He’s the manager — whatever.
Q All right.
A The manager: He was the one that I was to contact. He called me and he said Buddy Latham was to—
Q Mr. Poole called you?
A Yes, sir.
Q Now, when was this—
A No, I called Mr. Poole. He told me to call Mr. Poole.
Q And when was this that you called Mr. Poole?
A I believe I called him the same day.
Q Okay. The same day that you had this second call to Mr. Hollingshead?
A And he said Buddy Latham would get back with me on it. All right. Buddy called me, we talked a little bit—
Q All right. And what conversation took place between you and Mr. Latham?
A All right. He called me on the telephone and told me who he was. Said he was representing Crawford and Company. And he asked me where I lived and I told him.
And he said, “Well,” said “What day can I get with you and talk about getting your truck fixed?” I said I’d already had my truck fixed. “Oh,” he said, “that brings up another problem, then. I’ll have to get back in touch with Hollingshead.”
So he said he was going to get back in touch with Birmingham again. Said, “We’ll get back with you.”
So, finally a week or so, I guess, passed — somewhere around in there. It was a Friday morning. They called and wanted me to bring the truck down there. I told them I’d be working day shift. He said, “Well, let your wife bring it down. Let us look at it.” I said, “Well, I don’t see any problem.” So we agreed to meet about 9 o’clock.
So I went on and went down there. Well, this Mr. Poole — whoever it is — he came in that morning and we talked for a few minutes and he had me sitting back there in the office. Well, he didn’t ask me any more questions other than he said the adjuster was out.

Plaintiff then testified that while he was waiting in the office of Crawford and Company he saw someone outside looking at his truck and when he went outside he discovered that it was an employee of Campbell Body Shop. He telephoned Hollingshead and the latter offered him a settlement of $100.00 which he refused.

None of that evidence produces any inference of a misrepresentation made to plaintiff by any of the Crawford and Company representatives, Poole, Latham or anyone acting for them. Nor did plaintiff himself relate any such misrepresentation. Doubtless plaintiff felt imposed upon by what he obviously considered needless delays; nevertheless he has not furnished evidence of either a misrepresentation by Crawford and Company or his own reliance upon any such misrepresentation. In fact his evidence affirmatively discloses that his alleged injury occurred before he had any contact with Crawford and Company.

The party moving for summary judgment has the burden of showing that the other party could not recover under any discernible circumstances. Jakob v. First Alabama Bank of Montgomery, Ala., 361 So.2d 1017 (1978); Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975). Our careful review of the evidence has convinced us that the defendants have met their burden. There was not a scintilla of evidence before the trial court on the elements of misrepresentation by any of these defendants or reliance thereupon by the plaintiff. It follows that the trial court’s grant of summary judgment in their favor was proper. That judgment, therefore, must be and is affirmed.

AFFIRMED.

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

MADDOX, J., concurs in the result.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    R. Y. WILLIAMSON v. UNITED FARM AGENCY OF ALABAMA, INC.
    79-298.
    Supreme Court of Alabama.
    July 17, 1981.

      George G. Lynn of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham and Allen Edward Cook of Cook & Cook, Andalusia, for appellant.
    Earl V. Johnson and Abner Powell, III of Powell & Powell, Andalusia, for appellee.
   ALMON, Justice.

This is an appeal from a judgment which awarded a real estate sales commission to United Farm Agency of Alabama, Inc. Motions for judgment notwithstanding the verdict and, in the alternative, new trial, were denied:

R. Y. Williamson was the owner of a motel located in Andalusia, Alabama. In 1975, he entered into an exclusive listing agreement with United to sell the motel. Under the terms of the listing agreement Williamson was obligated to pay United a ten percent commission if the motel was sold by United or anyone else during the ensuing year at the stated price and terms, or at any other price or terms acceptable to Williamson.

Several weeks before the listing agreement expired on July 18, 1976, Joe Sanders began working at the motel so that he could familiarize himself with the business. Two days prior to the expiration of the listing agreement Sanders paid Williamson $10,-000.00 and executed the following instrument:

TO WHOM IT MAY CONCERN
As of July 16, 1976, Joe R. Sanders assumes full management of the Town Line Motel, 29 By Pass West, Andalusia, Alabama 36420. In this, the above assumes total expense necessary for upkeep and operation of said business; this includes maintenance of all properties, labor, utilities, taxes, and insurance. In addition to this, Joe R. Sanders agrees to pay R. Y. Williamson or Faustine V. Williamson $3,262.12 on the 16th of each month for twelve consecutive months following the above date.
In the event that both R. Y. Williamson and Faustine V. Williamson should die, each monthly payment for the balance of this contract and for 228 additional consecutive payments is to be divided equally between Richard Dwayne Williamson and Brenda Juline Williamson.
In the event that Joe R. Sanders should die before the expiration of this contract, his wife, Doris Sanders, may elect to continue this contract or to receive $10,000.00 plus accumulated money in excess of 8% interest on a selling price if a sale had been made.
/s/ Joe R. Sanders
Joe R. Sanders
/s/ R. Y. Williamson
R. Y. Williamson
/s/ Notary

Williamson never delivered, and Sanders never demanded, a deed to the motel or surrounding property. United neither procured Sanders as a prospective purchaser nor participated in the execution of the Sanders-Williamson agreement.

Sanders took possession of the property on July 16, 1976, and continued to operate the motel until October of 1978, when Mr. and Mrs. Patel entered into negotiations with Williamson to purchase the motel. As the negotiations progressed, Sanders filed a suit against Williamson in which he alleged that Williamson was threatening to breach his contract to sell the property to Sanders by negotiating with the Patels. Through a series of agreements, Sanders acquiesced in the sale to the Patels in exchange for $55,-000.00 of the $80,000.00 down payment from the Patels to Williamson and a $75,000.00 mortgage from the Patels payable to Sanders. Williamson, not Sanders, then executed a deed to the Patels.

After the sale to the Patels had been completed, United sued Williamson to recover its ten percent commission due on the alleged sale to Sanders. Upon trial, the jury returned a verdict in favor of United in the amount of $48,000.00 (10% commission plus interest). Williamson then appealed to this Court.

The pertinent provisions of the United-Williamson exclusive listing agreement state:

(C) I agree to pay you forthwith as commission 10% of the selling price when a purchaser is procured through you, or your representative, at the stated price and terms, or at any other price and terms acceptable to me.
(D) By this agreement I give you the sole and exclusive right to sell the property described herein. If said property is sold during the term of this agreement at a price and upon terms acceptable to me to a purchaser procured by me or through agencies other than yours or by any other party whomsoever, I agree to pay you forthwith the amount of commission provided in clause (C).

The general rule applicable to broker contracts of this nature is that, “[a]s between a landowner and a real estate broker, an agreement of the latter to sell the former’s property usually means to negotiate for sale by finding a purchaser ready, willing and able to consummate the transaction.” De Briere v. Yeend Bros. Realty Co., 204 Ala. 647, 648, 86 So. 528 (1920) (citations omitted). Ordinarily the sale is deemed to be “constructively consummated insofar as the broker’s right to a commission is concerned” when the broker procures a ready, willing and able purchaser, Foote v. Moore, 342 So.2d 906 (Ala.1977), even though the sale is never consummated. Brown v. Robinson, 354 So.2d 272 (Ala.1978); Alabama Fuel Sales Co., Inc. v. Vulcan Energy Resources Corp., 339 So.2d 1007 (Ala.1976); Guillote v. Pope & Quint, Inc., 349 So.2d 62 (Ala.Civ.App.1977). Although these general rules govern the rights and duties of the parties under clause (C) of the Uni ted-Williamson contract, they do not control this case because United did not procure Sanders as a purchaser of the property.

The operation of clause (D) is at issue in the present case. That clause provides that United would be entitled to its commission in the event the property was “sold” by Williamson or any other party during the term of the contract. This implies that something more than mere negotiations with a ready, willing and able purchaser must transpire before United would have earned its commission. By this clause, the parties conditioned United’s right to recover its commission upon the completion of a contract of sale. Therefore, United cannot recover its commission in this action under clause (D) unless Williamson actually agreed to sell the property to Sanders. See Shook v. Davis-Day Timber Co., Inc., 331 So.2d 667 (Ala.1976); Eldorado Coal Co. v. Rust & Shelburne, 202 Ala. 625, 81 So. 567 (1919).

Williamson contends the trial judge erred by denying his motions for directed verdict, motion for judgment notwithstanding the verdict and, in the alternative, new trial. In support of this position he argues that the Sanders-Williamson agreement is, on its face, not a contract of sale and, further that it fails to constitute such an agreement because it does not contain the requisites of a valid contract for the sale or alienation of real property. He therefore contends that the jury could not have, as a matter of law, concluded that he sold the motel to Sanders. We disagree.

We note at the outset that this is not a case where a party to an oral contract to convey real property seeks specific performance of that agreement. Nor is this a case where reliance is placed upon one document as singular and conclusive proof of a contract of sale. We also note that the Statute of Frauds, Code 1975, § 8-9-2, was not raised as a defense to this alleged contract. Thus, the requirement of a writing imposed by the Statute of Frauds is waived. Jim Walter Corp. v. Knodel, 281 Ala. 173, 200 So.2d 473 (1967). It is therefore of no consequence in this case that the alleged contract of sale is partially based upon oral agreements.

Williamson contends the written agreement upon which United relies constitutes a “net lease.” United, on the other hand, argues that this document, coupled with the testimony of several witnesses that Sanders purchased the motel from Williamson, is evidence that the motel property was in fact sold to Sanders. It is Williamson’s position that the trial judge erred by admitting, over objection, Sanders’s testimony of oral agreements which varied to some extent the terms of their written agreement. We disagree.

Even from a cursory review of the Sanders-Williamson written agreement it is unclear whether it constitutes a lease, option to purchase or contract of sale. The last sentence of the first paragraph indicates that the agreement binds the parties for only twelve months. The second paragraph, however, indicates that upon the occurrence of certain events the contract was to remain in effect for an additional nineteen years. This conflict is further compounded by the provisions of the third and final paragraph. It is unclear whether the phrase “if a sale had been made” indicates that the property was still subject to sale as of July 16, 1976, or whether the parties contemplated the finalization of a sale to Sanders at a later date. Furthermore, the amount and duration of the monthly payments due under the contract in the event that the specified events occurred approximate those that would be due on an 8% twenty-year mortgage of an amount equal to that of the motel’s advertised selling price.

The contract is unquestionably ambiguous. It is susceptible of the interpretation given by United as well as that given by Williamson. A fact question as to the parties’ intent existed. Under these circumstances the trial judge properly admitted parol evidence relating to the parties’ prior and subsequent negotiations in addition to their intent in executing the written contract. Parker v. McGaha, 294 Ala. 702, 321 So.2d 182 (1975); Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975). See also Engineers of the South, Inc. v. Goodwin, 366 So.2d 673 (Ala.1979); Pirtle v. Harris, 338 So.2d 1018 (Ala.Civ.App.1976).

Williamson maintains that the written agreement does not constitute a valid contract for the alienation of real property because it fails to contain words of conveyance, an adequate description of the property or a recitation of the consideration for the alleged sale. We agree that words of conveyance are necessary to a valid contract of sale of real property. Ashurst v. Rosser, 275 Ala. 163, 153 So.2d 240 (1963). We think that in this case, however, because it is not a suit for specific performance and because the Statute of Frauds has not been asserted, the words of conveyance may be supplied by parol evidence. The general description of the property, i. e., “Town Line Motel, 29 By Pass West, Andalusia, Alabama 36420,” may also be made specific and certain by parol evidence. Goodwyn v. Jones, 288 Ala. 71, 257 So.2d 320 (1971); Clipper v. Gordon, 253 Ala. 428, 44 So.2d 576 (1950). Furthermore, we think that the consideration for the alleged conveyance was sufficiently recited: Sanders was obligated to pay Williamson $3,262.12 per month for at least twelve months, and was conditionally obligated to pay the same monthly amount for an additional nineteen years.

Sanders testified that he purchased the motel from Williamson. This claim was supported by the testimony of the Andalusia Mayor Pro Tern that Williamson told him in 1976 that Sanders owned the Town Line Motel. Considering this testimony in conjunction with the Sanders-Williamson written agreement and the parol testimony properly admitted at trial, we are of the opinion that there was sufficient evidence in support of United’s claim to send to the jury the question of whether or not Williamson did in fact sell the motel to Sanders. Therefore, the trial judge did not err by denying Williamson’s motions for directed verdict.

“[A] post-trial motion for J.N.O.V. is really just a renewal of a party’s motion for directed verdict, and the J.N.O.V. motion cannot be granted unless the motion for directed verdict should have been granted.” Great Atl. & Pac. Tea Co., Inc. v. Sealy, 374 So.2d 877, 881 (Ala.1979); Housing Authority of the City of Prichard v. Malloy, 341 So.2d 708 (Ala.1977). Given that Williamson’s motion for directed verdict was properly denied, it follows that the trial judge also properly denied Williamson’s motion for judgment notwithstanding the verdict.

A trial judge is vested with wide discretion when determining whether to grant or deny a party’s motion for new trial. In the present case, the trial judge’s ultimate decision to deny Williamson’s motion does not appear to be plainly and palpably erroneous. Accordingly, it is due to be affirmed. Hill v. Cherry, 379 So.2d 590 (Ala.1980); Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979).

Finally, Williamson contends that this Court should reverse the trial judge’s denial of his motion for new trial because the jury’s verdict is contrary to the great weight of the evidence.

Upon appellate review of a jury verdict, this Court indulges in all favorable presumptions as to the correctness of the jury’s determination of a question of fact and will not disturb their determination unless it is plainly erroneous or manifestly unjust. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). This presumption of correctness is strengthened when a motion for new trial is denied by the trial judge. Walker v. Cardwell, 348 So.2d 1049 (Ala.1977). In the present case the jury was presented with a question of fact of whether Williamson sold the motel property to Sanders. They determined that he did. The trial judge denied Williamson’s motion for new trial. A review of the evidence adduced at trial, as well as the reasonable inferences therefrom, lead us to conclude that the jury’s determination of this fact issue is not plainly erroneous or manifestly unjust.

For the foregoing reasons the judgment below is due to be affirmed.

AFFIRMED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.


author: JONES, Justice. ALMON, Justice MADDOX, Justice

text:
    CENTURY 21 PREFERRED PROPERTIES, INC., a Corporation, et al., v. The ALABAMA REAL ESTATE COMMISSION, et al. The ALABAMA REAL ESTATE COMMISSION, et al. v. CENTURY 21 PREFERRED PROPERTIES, INC., a Corporation, et al.
    79-803, 79-885.
    Supreme Court of Alabama.
    July 17, 1981.

      Sydney R. Prince, III, Carroll H. Sullivan and Edward C. Greene of Inge, Twitty, Duffy & Prince, Mobile, and Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants.
    T. W. Thagard, Jr., and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, and George K. Williams of Williams, Spurrier & Rice, Huntsville, for appellees.
   JONES, Justice.

This cause was initiated by Century 21 Preferred Properties, Inc., Century 21 Ambassador Realty, Inc., Century 21 Lofton Real Estate, Inc., and Lynn Clowers Real Estate Company, Inc., against the Alabama Real Estate Commission, et al., seeking in-junctive relief against the enforcement of a regulation relating to franchisee advertising.

Suit was filed in the Circuit Court of Morgan County, Alabama, on November, 1, 1979, and, subsequently, the suit was transferred to Montgomery County pursuant to Code 1975, § 6-3-20. Plaintiffs allege:

1) The regulation exceeds the scope of the Commission’s rule-making authority.

2) The legislation is unconstitutional as being tantamount to “special legislation.”

3) The regulation was illegal and void because its enforcement has the effect of restraining trade.

4) The regulation unlawfully impairs the obligation of contracts.

5) The regulations were passed without prior “notice” or opportunity to be heard by any of the affected parties, such action being violative of procedural due process.

The Commission’s, and its member Defendants’, answer sets up various grounds of general denial plus the defense of res judicata, pleading a former federal court adjudication of identical issues.

Immediately prior to the preliminary injunction hearing, counsel for the parties stipulated (obviating the need for the injunction) that enforcement of the regulation would be suspended pending a determination of the merits of the case. On July 8, 1980, the trial court entered an order denying Plaintiffs-Appellants’ requested relief, but, thereafter, granted Appellants’ motion for an injunction pending appeal.

By this appeal, Century 21 franchisees and a Realty World franchisee ask that this Court: 1) reverse the trial court and render a judgment in their favor; or, in the alternative, 2) prohibit enforcement of said regulation until Appellants are afforded the rights of procedural due process; or 3) grant Appellants a new trial in the circuit court of Morgan County inasmuch as the trial judge allegedly erred in transferring the case from Morgan County to Montgomery County.

The Commission filed timely notice of its cross-appeal from that part of the trial judge’s order holding that Appellees’ affirmative defenses of res judicata, collateral estoppel, and lack of clean hands were inapplicable to the case. These cross-appeal contentions are based upon certain prior litigations in federal court involving other Century 21 franchisee parties plaintiff.

The trial court’s order, relative to the res judicata issue, reads:

“If successful, the defendants’ res judi-cata defense would constitute a bar to the prosecution of this action. Accordingly, it will be considered first.
“The defendants strenuously contend that the claims in the instant case have or should (under the doctrine of ‘pendent jurisdiction’) have been litigated in the Mobile litigation, and that although the plaintiffs are not technically the same here as in the Mobile case, they are substantially identical. They contend that the Mobile judgment should bind the current plaintiffs because their interests were represented adequately by the parties in the earlier suit. See, e. g., Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 94-5 (5th Cir. 1977), and Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir. 1975).
“In support of their contention, defendants point out that the interests of the plaintiffs in both suits, i. e., the use of the existing Century 21 tradename and trademark, are identical; that Mr. Prince, Regional Counsel for Century 21, represented the plaintiffs in each case; and that the plaintiffs in the federal litigation have the ability, through Mr. Prince and their franchise agreement, to control the prosecution of this litigation. Substantial evidence supporting their contentions has been presented to and considered by the Court.
“Plaintiffs argue that the doctrine of res judicata has no application, since the federal court litigation involved only federal, and not state, law claims, and since the parties in the two cases are not identical, and were not in privity. The Court notes, however, that on the first day of the trial of this case, the plaintiffs sought and were granted permission to amend their complaint. The amendment added federal due process claims which were litigated in the Mobile federal suit.
“Although the Court considers the defendants’ argument to have considerable appeal under the instant facts, it nevertheless concludes that, in the absence of some controlling precedent in Alabama law, the facts are insufficient to bar the instant case under the doctrine of res judicata.
“For substantially similar reasons, the Court concludes that the defenses of collateral estoppel and clean hands lack sufficient merit to warrant dismissal of this action.”

Because of our holding favorable to the Appellees with respect to the res judicata issue, we address only one issue presented by the appeal: the propriety vel non of the trial court’s order transferring the case to Montgomery County.

On the Appeal

VENUE

Acknowledging the general law that a suit against a State agency with statewide jurisdiction can be brought only in the county of its principal place of business, Appellants nevertheless urge that “the statutory scheme under which [the Commission] operates” affords Appellants an election to sue either in Morgan County or Montgomery County. The thrust of this argument (citing Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974)), seeks to juxtapose portions of §§ 34-27-36 (authorizing the Commission to revoke or suspend real estate licenses) and 34-27-38 (providing the mechanism for judicial review of such administrative orders by the circuit court of the licensee’s residence) with the general rule limiting venue to Montgomery County.

From this perceived premise, Appellants conclude:

“It is quite clear that the [appeals procedure of Section 34-27-38] contemplates and in fact authorizes the review of decisions made by the Commission pursuant to the authority vested in the Commission under Section 34-27-36. Inasmuch as it was upon this statutory provision, Section 34-27-36, that the Commission relied in promulgating the ‘50-50 Rule’, it follows that the appellants were certainly entitled to avail themselves of the statutorily prescribed procedure by which a judicial review of the Commission’s decision to promulgate this regulation could be achieved.”

This argument and its effort to analogize this case with Boswell lack persuasion for two reasons: 1) the Boswell Court was aided by a specific statutory provision (The Uniform Disposition of Unclaimed Property Act, §§ 35-12-20, et seq.), allowing suits thereunder either in Montgomery County or the county of the aggrieved party’s residence; and 2) § 34-27-38 — the statute here under consideration — deals specifically with suspension or revocation proceedings. The fact that the outcome of this declaratory judgment case may ultimately result in a proceeding in which a real estate licensee is charged with violating the challenged regulation does not abrogate the operative effect of the general rule that the venue for a suit of this nature lies exclusively in Montgomery County, the principal place of business of the Alabama Real Estate Commission. Alabama Youth Services Board v. Ellis, 350 So.2d 405 (Ala.1977).

On the Cross-Appeal

RES JUDICATA

Posture of the Case

On August 10, 1978, Century 21 Real Estate Corp., the franchisor and owner of the trademarks and tradenames in question; Century 21 of the South, a franchisee of Century 21; and numerous Century 21 sub-franchisees from throughout Alabama filed suit in the United States District Court in Mobile, alleging numerous constitutional and statutory deficiencies in the Commission’s “50:50” Rule. Subsequently, the Commission agreed to refrain from enforcing such promulgation pending a determination of its validity in federal court by a trial on the merits. Prior to trial, Century 21 filed a motion to stay the Mobile federal action pending the forthcoming decision from the United States Supreme Court concerning the validity of a similar “50:50” regulation from the State of Nevada.

On December 22, 1978, District Judge Virgil Pittman granted Century 21’s motion to stay, explaining:

“The attorneys for the plaintiffs and defendants agreed that the issues before the United States Supreme Court in the case of Century 21 Real Estate Corporation, et al. v. Nevada Real Estate Advisory Commission, et al. [440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630], Supreme Court Docket Number 78-683 will be dis-positive of all the issues in the case before this court without the necessity of taking testimony.”

On March 5, 1979, the Supreme Court summarily affirmed the Nevada three-judge District Court panel decision, upholding the validity of the “50:50” Rule. Century 21 Real Estate Corp. v. Nevada Real Estate Advisory Commission, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 680 (1979). Thereafter, the Commission moved for summary judgment on the basis of the parties’ agreement to be bound by the Supreme Court determination. On August 20, 1979, Judge Pittman granted the Commission’s motion for summary judgment with the following explanation:

“This court was unwilling to issue a stay unless the parties agreed that the Nevada Real Estate Advisory Commission case pending before the Supreme Court would be dispositive without argument as to what was decided and what was not decided.
“It was the court’s understanding that the disposition by the Supreme Court would be binding on the parties without qualification.
All of the issues were presented to the United States Supreme Court. It is, therefore, ORDERED, ADJUDGED, and DECREED that the plaintiffs’ complaint should be, and is hereby, DISMISSED with prejudice.”

In his order, granting a 120-day stay, Judge Pittman declared:

“At a hearing ... on the Motion for Summary Judgment, plaintiffs’ counsel requested that, in the event the court should grant the motion, defendant’s enforcement of the ‘50:50 ratio rule’ be stayed for 120 days to enable the plaintiffs to comply with said rule in an ordinary and economical manner. In this connection, counsel pointed out that various signs, letterheads, stationery, and the like would have to be altered to comply with said rule. The court has considered the equities of this request, and concludes that a stay of the enforcement of the regulation is appropriate under the circumstances.”

Two months later, on October 27,1979, in a Century 21 Regional Bulletin, Appellants’ counsel wrote all Century 21 Alabama franchisees the following:

“It’s time to move on to protect ourselves from this unfair rule. We expect the immediate filing of one, perhaps two, lawsuits in state courts challenging the Commission’s authority under state law to pass the 50/50 ratio rule....

As previously noted, this state action was commenced in circuit court on November 1, 1979.

While, ordinarily, it is not this Court’s function to inquire into a party’s motives in his pursuit of legal remedies, we are constrained to observe that the journey of these combined federal and state litigations run afoul of the nonrelitigation spirit of the res judicata and equitable estoppel doctrines. Simply stated, Appellants, though identical parties in interest, having exhausted their remedy in one forum, now seek “another bite at the apple” in a second forum.

Substantial Identity of Issues.

Under both Alabama law (Educators’ Investment Corp. of Ala., Inc. v. Autrey, 383 So.2d 536 (Ala.1980), and Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978)) and federal law (Wasoff v. American Automobile Insurance Co., 451 F.2d 767, 769 (5th Cir. 1971)), the doctrine of res judicata prohibits the reliti-gation of all matter which was or could have been litigated in the prior action.

This doctrine is based on the notion that “[a] party ... is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.” Baltimore Steamship Company v. Vernon Phillips, 274 U.S. 316 [47 S.Ct. 600, 71 L.Ed.2d 1069] (1926).

This doctrine also “bam state litigation on a part of the claim that could have been, but was not, heard in a federal action and it bars suit in a state court on a state law claim that, under the doctrine of pendent jurisdiction, could have been joined with a claim under federal law in the federal action.” 17 Wright & Miller, Federal Practice and Procedure, § 4226, at 343 — 4 (1978). See, also, Educators’ Investment Corp. of Ala., Inc. v. Autrey, supra.

Inherent in such substantive principles of jurisprudence is a determination, in this case by this Court, of whether or not the moving party was precluded from asserting both state and federal theories of recovery in the initial federal court proceedings. Such a determination, be it pro or con, must necessarily coincide with an analysis of pendent jurisdiction.

Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority . . .,” U.S.Const., art. Ill, § 2; and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional “case.” The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062 (1933).

The state and federal claims must derive from a common nucleus of operative fact. See Starker v. U. S., 602 F.2d 1341 (9th Cir. 1979). But if a plaintiff’s claims, regardless of their federal or state character, are such that he would be expected to try them all in one judicial proceeding, then, assuming sub-stantiality of the federal issues, there is power in federal courts to hear the whole. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); cf., Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 325, 59 S.Ct. 191, 196, 83 L.Ed. 195 (1938). Note, Problems of Parallel State and Federal Remedies, 71 Harv.L. Rev. 513, 514 (1958).

State law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law.

“ ‘[T]he whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time.’ ” [ United Mine Workers of America v. Gibbs, supra, citing Baltimore Steamship Company v. Vernon Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927).]

Pendent jurisdiction need not be exercised in every case in which it is found to exist. It is a doctrine of discretion, not of plaintiff’s right. United Mine Workers of America v. Gibbs, supra; Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950). Moynahan v. Pari-Mutuel Employees Guild of California, Local 280, 317 F.2d 209, 211-212 (9th Cir. 1962). Its justification lies in considerations of judicial economy, convenience and fairness to litigants. Generally, absent these considerations, federal courts hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); United Mine Workers of America v. Gibbs, supra.

Ordinarily, the question of power to hear the whole will be resolved on the pleadings. But whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. United Mine Workers of America v. Gibbs, supra.

Appellants’ argument in federal court, as well as before this Court, is bottomed upon the alleged “unfairness” of the “50:50” Rule. Whether it be a challenge to the Commission’s authority to promulgate such a mandate or allegations concerning an absence of minimum procedural due process guarantees prior to its enactment, Appellants’ center of gravity—about which all else turns—remains the reasonableness of the “50:50” Rule.

While we are quick to note the nebulosity of the term “common nucleus of operative fact,” any holding negating its presence in the instant case would read the concept right out of existence. Assuming substantial identity of parties, we hold, therefore, that Appellants’ state and federal claims are simply alternative grounds of recovery for the same cause of action.

Substantial Identity of Parties

Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Res judicata applies where the parties to both suits are “substantially identical.” Wheeler v. First Alabama Bank of Birmingham, supra; Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir. 1968).

Judgments can bind persons not party (or privy) to the litigation in question where the nonparties’ interests were represented adequately by a party in the original suit. Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 94-95 (5th Cir. 1977). A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir. 1975). Moreover, if a party has “a sufficient ‘laboring oar’ in the conduct” of the litigation, then the principle of res judicata can be actuated. Montana v. U. S., 440 U.S. 147, 155, 99 S.Ct. 970, 974, 59 L.Ed.2d 210 (1979).

Appellants contend, and we agree, that the parties to the federal action and in the cause now before us were not identical. Applying the legal precedent to the facts heretofore set out, however, we find they were “substantially identical,” that Plaintiffs’ rights in this action were adequately represented in the federal litigation, and that identical parties in interest retained central control of the litigation in both forums. See Restatement (Second) of Judgments §§ 78, 78.1 and 88 (Tent. Draft Nos. 3 and 4, 1976, 1977).

In summary, our holding is that 1) both the federal and state claims arose from a common nucleus of operative fact; and 2) the parties to both causes were substantially identical. Therefore, Appellants' action in the circuit court is barred by the doctrine of res judicata. Thus, the trial court’s judgment denying the relief sought by the Plaintiffs is affirmed.

We further express the opinion that the trial court’s findings on the merits of the case are compelled by Century 21 Real Estate Corp. v. Nevada Real Estate Advisory Commission, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1979).

AFFIRMED.

SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON, J., concur specially.

MADDOX, FAULKNER and EMBRY, JJ., dissent.

ALMON, Justice

(concurring specially).

I concur in the affirmance of the judgment because I believe the regulation to be reasonable and not violative of either the state or federal constitutions.

TORBERT, C. J., concurs.

MADDOX, Justice

(dissenting).

The Court agrees with the argument of the cross-appellants, the Alabama Real Estate Commission, its executive director and the individual members thereof, that the trial court erred in holding that plaintiffs’ suit as against these defendants was not barred by an application of the doctrine of res judicata.

Even a cursory examination of this rule of law as applied to the facts of this case reveals that it has no application to the instant proceeding.

In this dissent, I will make a brief statement of the facts and will then state what principles of law I think are applicable.

In the Mobile federal court litigation, federal questions concerning the validity of the Commission’s “50:50” Ratio Rule were raised by a number of parties plaintiff, none of whom participated in the instant action. The plaintiffs in the federal suit were Century 21 Real Estate Corporation; Century 21 Real Estate of the South, Inc.; Century 21 Cliff Homes, Inc.; Martin S. Sternberg, d/b/a CENTURY 21 ALA “1”; Century 21 Wildman Realty, Inc.; and Century 21 Jordan Cooper Realty, Inc. Century 21 Real Estate Corporation is, of course, the originating franchisor organization of the Century 21 system. Century 21 Real Estate of the South, Inc., is the regional franchising entity and is the entity by which Century 21 franchises are actually marketed and serviced. The remaining plaintiffs in the federal court litigation were individual Century 21 franchisees, licensed as such by the Commission to broker real estate within the State of Alabama. None of the parties plaintiff presently before this Court was a party to the federal litigation, nor did any of these parties plaintiff participate in any manner in the federal court litigation.

On August 18, 1979, United States District Judge Virgil Pittman entered an order dismissing the complaint filed by the federal court plaintiffs. This order of dismissal was entered pursuant to an agreement reached between all parties to that suit which provided, in substance, that the action would be stayed pending disposition by the United States Supreme Court of a case on appeal to that Court from a Nevada district court. The Nevada litigation involved issues similar to those raised in the Mobile federal court suit, all of which pertained to questions of federal law. The parties also agreed that the disposition of the Nevada appeal by the United States Supreme Court would govern the action pending in Mobile. Hence, when the Nevada decision in favor of the validity of a similar regulation was summarily affirmed, Judge Pittman entered his order of dismissal. However, as previously stated, none of the plaintiffs in the present case was a party to the federal court litigation nor in privity with any of the parties in that suit within the purview of the doctrine of res judicata. Moreover, none of these parties plaintiff consented to a resolution of any action that they might have had against the Commission as a consequence of its promulgation of the “50:50” Ratio Rule on the basis of the disposition by the United States Supreme Court of the appeal emanating from a Nevada district court.

The elements of the doctrine of res judi-cata have been precisely defined by this Court. In Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978), this Court said:

The elements of res judicata are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits.

Id. at 1199. See also Dominey v. Mathison, 292 Ala. 293, 293 So.2d 472 (1974).

As the foregoing summary of the factual predicate for the Court’s opinion indicates, it is quite apparent that there are at least two independent reasons why the doctrine of res judicata has no application to the instant case. First, there is a total absence of the requisite identity of parties or privity as between these plaintiffs and the parties by whom the federal court litigation was maintained. Second, the bar of res judicata only applies to issues which were or could have been litigated in the prior case.

As a general rule, the preclusive effect of the doctrine of res judicata is applicable only to the parties to prior litigation and their privies. See, e. g., Dominey v. Mathison, supra; Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Privity, as used in this context, is said to denote a “mutual or successive relationship to the same right of property.” Towns Truck Lines v. Cotton State Express, 266 Ala. 131, 94 So.2d 402 (1957). See also Brown v. Terry, 375 So.2d 457 (Ala.1979); Suggs v. Alabama Power Company, 271 Ala. 168, 123 So.2d 4 (1960). Clearly, the plaintiffs in the instant proceeding were not parties plaintiff in the federal court litigation, and under the facts of this case, I would reject the arguments that there was a substantial identity of parties, virtual representation of these plaintiffs by the plaintiffs in the federal litigation, and control of the state court litigation by the federal court plaintiffs.

The record reflects that the only nexus between most of the plaintiffs in the instant action and the plaintiffs in the federal court litigation is their common affiliation with the Century 21 franchise system. Even this tenuous link does not exist with respect to Lynn Clowers Real Estate Company, Inc., who is a Realty World franchisee, not a Century 21 franchisee. Moreover, with regard to the Century 21 plaintiffs, the fact remains that the business of each of these plaintiffs is independently owned and operated. The essence of the agreement between these parties plaintiff and the regional franchising entity is that of a lease of the Century 21 service mark. That is, for a stated consideration, these plaintiffs are authorized to utilize the Century 21 service mark and name for a specified term. Consequently, in light of the relationship illustrated by the contractual agreement made by the parties in this case, the plaintiffs in the instant proceeding were not in res judicata — privity with the plaintiffs in the federal court litigation, and this Court’s conclusion to the contrary, I believe, is erroneous.

A second, equally compelling and independent, reason was present here for the rejection by this Court of the Commission’s res judicata argument. It is well settled that the bar of res judicata extends only as to issues which were actually litigated or which could have been litigated in the prior action. The state law issues presented in the instant proceeding could not, as a matter of law, have been resolved by District Judge Virgil Pittman.

There is no question that federal courts are courts of limited jurisdiction and that, as such, they are empowered to hear only those cases within the jurisdiction conferred upon them by the Constitution or by Congress. In contrast, the circuit courts of the State of Alabama are courts of general, not limited jurisdiction. As a general proposition, federal courts cannot decide state law issues unless complete diversity of citizenship exists as between the plaintiffs and the defendants. Clearly, in the federal court litigation, diversity of citizenship did not exist. The Commission argues that under the doctrine of pendent jurisdiction, the federal court’s jurisdiction could have been expanded, in spite of the absence of diversity, so as to comprehend the state law issues asserted by these plaintiffs in the instant proceeding. Under the facts of this case, such an application of the doctrine of pendent jurisdiction would have been without legal support.

A leading case on the subject of pendent federal jurisdiction in the context of the defense of res judicata is the decision of Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977). In that case, the plaintiff originally brought a federal suit, challenging the Metropolitan River Protection Act on federal constitutional grounds. The federal court action was dismissed and the very same plaintiff then brought suit in the state court asserting that the act was viola-tive of the Georgia Constitution. The trial court held a portion of the plaintiff’s complaint to be barred by the doctrine of res judicata. On appeal, the Supreme Court of Georgia held as follows:

The doctrine of res judicata involves prior litigation by the same parties on the same subject matter in a court of competent jurisdiction as to all issues which were raised or which could have been raised. Code Ann. § 110-501; Price v. Ga. Industrial Realty Co., 132 Ga.App. 107, 207 S.E.2d 556 (1974). Where state claims which “could have been raised” in the federal litigation would have been pendent had they been presented to the federal court, this court, in applying its res judicata statute, will use the same rules that the federal court would have used in determining whether it would exercise pendent jurisdiction. If the federal court would have retained jurisdiction of the pendent state claims had they been raised, then a subsequent suit in state court would be barred by res judica-ta; if the federal court would have refrained from exercising its pendent jurisdiction over the state claims, then the subsequent suit in the state court would not be barred by res judicata. In so doing, we conclude that the state issues in this case “substantially predominate” and would most likely have been left for state resolution had they been presented to the federal court. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.E.2d 218 (1966). Therefore, now that these important state issues are before the state courts, we will not apply our res judicata statute to bar this litigation.

Id. at 243.

There can be little doubt that the rationale of the Pope case should apply with equal, if not more, force to the facts of the instant case. The reason that a Pope result is even more compelling here is that in Pope there was a complete identity of parties to the federal and state cases. Here, as previously shown, identity of parties is undeniably lacking. Moreover, Pope stands for the proposition that state law issues were not and could not have been litigated in the prior federal court action.

Based on all of the foregoing reasons, I must respectfully dissent.

FAULKNER and EMBRY, JJ., concur.

      .The “50:50” Rule, the regulation in question, reads:
      Any company which operates under or uses a franchise name shall incorporate in the franchise name and logotype the company name; however, the company name shall not be less than 50% of the surface area of the entire combined area of both the company name and the trade name or logotype. This regulation shali be implemented immediately and effective in all advertising, except, signs, letterheads, cards, other printed supplies and materials. Such items shall be required to comply on or before November 1, 1978.

      . This state law ground is not among the issues presented on the appeal.

      . This ground — whether denominated federal law, state law, or both — is not an issue presented on the appeal, leaving the remaining three state law grounds here presented clearly within the prerogative of federal forum adjudication.

      . While, for the sake of convenience, we have retained Appellees’ designation of their res ju-dicata contention as a “cross-appeal,” in a technical sense this designation is a misnomer. The trial court, after rejecting Appellees’ res judicata plea, nevertheless ruled adversely to Appellants on the substantive issue as to the validity of the “50:50” Rule, thus denying all relief sought by Appellants (Plaintiffs below). Appellees, therefore, do not seek a reversal as to any aspect of the final judgment — a necessary ingredient of a cross-appeal.

      . This doctrine is discussed in A.L.I., Restatement (Second) of Judgments, § 61.1(e) (Tent. Draft No. 5, 1978, p. 160):
      “e. State and federal theories or grounds. A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. ... ”
      An exception to this rule, of course, is where the federal court, in the exercise of its discretion, elects not to entertain the state law ground. This did not occur in the instant case.


author: ADAMS, Justice.

text:
    Johnny OSBORN v. Billy O'BARR.
    79-863.
    Supreme Court of Alabama.
    July 17, 1981.

      John T. Robertson of Henslee & Bradley, Gadsden, for appellant.
    William D. Hudson of Wilson & Hudson, Gadsden, for appellee.
   ADAMS, Justice.

Johnny Osborn, defendant below, appeals from an order holding him ineligible, for lack of residence within the city limits, to be a candidate for councilman for the City of Attalla. We affirm.

Facts and Proceedings Below

Johnny Osborn has lived most of his life in the City of Attalla. He has lived in numerous residences, but we will discuss only the later ones which are pertinent to this case. About 1972, Osborn sold the house he was living in on Fifth Street and moved to a house on Eighth Avenue. A year and a half or so later, he built a house on Eleventh Street and moved out of the house on Eighth Avenue. All these houses are in the city limits of Attalla.

There was conflicting evidence as to where Osborn actually moved when he moved from Eighth Avenue, because he had also built a house in 1972 on Highway 431, about three miles outside of the Attalla city limits. Osborn sold the house on Eleventh Street about 1976; he claims to have moved back into the house on Eighth Avenue, but there was evidence that he and his family lived in the house on Highway 431 beginning in 1972, and continuing until the events in question. We need not deal with these conflicts because Osborn sold the house on Eighth Avenue, the last house he owned in the city limits, in 1978.

Osborn began construction of a house on a lot he owned on Fifth Street in early 1980. On May 23, 1980, Osborn filed with the city clerk a statement of candidacy for councilman, place number 4, of the City of Attalla. That statement provides in part:

I, the undersigned, being first duly sworn, depose and say that I am a citizen of the city (town) of Attalla, Ala., in said county, and reside at South 5th Street, in said city (town); that I have been or will have been on the date of the municipal election a resident of said city (or town) for a period of not less than 90 days....

The election was held on July 8, 1980; Osborn received the most votes in a four-way race for the council seat and was scheduled to be in a run-off with the second place finisher, a Mr. Sheffield, on July 29th. On July 11th, Billy O’Barr, the third place finisher in the July 8th election, filed suit against Osborn and the City of Attalla, contesting the election on the grounds that Osborn was not a resident of Attalla and that he had sworn falsely that he was.

At the trial of the case ore tenus, Osborn admitted that the house was not completed on May 23rd and that he had not moved in on July 8th; in fact, at trial on July 25th, he admitted that carpet, major appliances, and bedroom furniture had just been put in, and that he had first slept there about a week before. The trial court entered the following order:

It is the finding of the Court that Johnny Osborn was not a resident of the City of Attalla, Alabama, on July 8, 1980 and therefore at that time could not be a candidate for election to the office of City Councilman Place # 4.
It is therefore ordered that Mr. Osborn was not eligible to be a candidate on July 8, 1980 and is therefore not an eligible candidate for the run-off election scheduled to be held on July 29, 1980.

This order was entered on the 25th of July; on the 28th the Court issued, but on the same day retracted, an amended order which declared the candidate behind Osborn the victor. The run-off was held the next day, apparently with the ballot as planned, and Osborn lost.

On August 1st, O’Barr filed a motion to alter or amend the judgment and asked that the election of July 8th be declared void and that a new election be held, “with the three remaining eligible candidates participating therein.” On August 4th, the Court ordered the election of July 8th declared void, but did not order a new election. Osborn had filed this appeal on July 28th.

Issues and Analysis

The parties correctly assert that “the terms ‘legally resides,’ ‘inhabitant,’ ‘resident,’ etc., when used in connection with political rights are synonymous with domicile.” Mitchell v. Kinney, 242 Ala. 196 at 203, 5 So.2d 788 (1942). Osborn argues that he intended to retain his domicile in Attalla, but we find that when he sold his last residence within the city limits, his domicile of necessity was his residence on Highway 431. See Mitchell v. Kinney, supra.

Nor could his domicile have changed from the Highway 431 house to the Fifth Street house until he actually moved out of the former into the latter.

In order to acquire a domicile of choice there must be both an abandonment of the former domicile with no present intention of return, and the establishment of another place of residence with the intention to remain permanently, or at least for an unlimited time ....

Ex Parte Phillips, 275 Ala. 80, at 83, 152 So.2d 144 (1963). Having acquired a domicile at the Highway 431 house, Osborn would have to show much more than that he was building a house in town to prove a change of domicile.

Osborn contends that even if the trial court was correct in holding that he was not a resident of Attalla, the statute which requires a councilman to be a resident of the town in which he is elected is unconstitutional, at least as applied to him. The statute in question is Code 1975, § 11 — 43-1, Qualifications and residence of mayors, councilmen and officers :

Every mayor, councilman and officer elected by the whole electorate of the city or town shall be a resident and qualified elector of the city or town in which he shall have been elected and shall reside within the limits of the city or town during his term of office. The councilmen shall be qualified electors of said city or town, residing within the limits of the ward from which they shall have been elected and shall reside within the limits of said ward during the term of their office.

Osborn asserts that this statute is an infringement on the right to be a candidate for office, that it can be justified only by a “compelling state interest,” and that all doubts must be resolved in the candidate’s favor. McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972).

We find no doubts to be resolved in Osborn’s favor. He tries to distinguish Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala. 1970), aff’d 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), 405 U.S. 1035, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972), cited by appel-lee O’Barr. In Hadnott a three-judge federal district court upheld a one-year pre-election residency requirement for Alabama circuit court judges. The requirement of § 11 — 43-1 that a councilman be a resident of his ward at the time of his election raises no constitutional problems. See Hadnott, supra, McKinney, supra. We make no ruling on the 90-day pre-election requirement imposed by the form Mr. Osborn signed because the trial judge explicitly based his holding on the fact that Osborn was not a resident of Attalla at the time of the election.

Osborn contends that even if this statute is constitutional on its face, it is unconstitutional as applied to him. We disagree with this contention, also. Because of the difference in treatment between residents within the city and those without in terms of taxation, utility service, police and fire protection, etc., we hold that the fact of Osborn’s out-of-town residence outweighs any feeling he has that Attalla is his “home” in determining his qualification for office. We note that the facts of this case make no proof that Osborn has even yet abandoned his domicile on Highway 431.

Having determined that Osborn was not a resident of the City of Attalla, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    Jacob (Jake) JACOBS v. Jack RYALS. Jack RYALS v. Jacob (Jake) JACOBS.
    79-939, 79-940.
    Supreme Court of Alabama.
    July 17, 1981.

      T. M. Brantley of Brantley & Yargo, Bay Minette, for appellant.
    Fred K. Granade of Stone, Partin & Gra-nade, Bay Minette, for appellee.
   ALMON, Justice.

This is an appeal from a judgment in an election contest ordering that another election for mayor of Loxley, Alabama, be held. We affirm.

Jack Ryals and Jacob “Jake” Jacobs were candidates in the July 8,1980, Loxley mayoral race; Ryals was the apparent winner of the election, receiving 206 votes to Jacobs’s 204 votes. Jacobs contested the election, alleging inter alia that the vote of Larry Goodman was illegally cast and counted for Ryals because Goodman is a convicted felon; that the votes of Judy, Paul, Cledis and Virgie Peterson were illegally cast and counted for Ryals because none of the Pe-tersons were domiciled in Loxley; and that William Foster, Mable Le Clair and George Smith would have voted for Jacobs but refrained from voting due to the intimidation by the Loxley Police Chief. Ryals counterclaimed that the votes of Curtis and Inez Brooks were illegally cast and counted for Jacobs because neither was domiciled in Loxley.

The trial court, hearing the evidence ore tenus, rejected the votes of Larry Goodman, Judy and Paul Peterson and Curtis and Inez Brooks. The court also added the vote of George Smith to Jacobs’s total after he specifically found that Smith would have voted for Jacobs had he not been intimidated by the Loxley Police Chief. The court made no finding regarding the alleged intimidation of Foster and Le Clair. A new election was ordered when the final tabulation resulted in a 203-203 tie vote.

On appeal, Jacobs contends that the trial judge should have counted the votes of Curtis and Inez Brooks because they were domiciled in Loxley, and that he should have rejected the votes of Cledis and Virgie Peterson because they were not domiciled in Loxley. Ryals counters by arguing, and we think correctly so, that in light of the ore tenus rule there was sufficient evidence to support the trial judge’s findings on both issues.

We note at the outset that neither- Cledis nor Virgie Peterson testified at the trial. Despite their absence, however, the testimony established that Cledis is engaged in the business of hauling fresh produce. The corporation he owns, Quality Trucking, Inc., maintains offices in both Summerdale, Alabama, near Loxley, and Antigo, Wisconsin. Due to the nature of his business, Cledis is required to follow the various growing seasons throughout the country. This takes him from Wisconsin to California, through Alabama and on to Florida. During the two weeks he typically spends each spring in Alabama, Cledis operates from his Sum-merdale office and resides at the residence he maintains in Loxley. According to Emmett Middleton, whose son is married to Cledis’s daughter, at one time Loxley was the Petersons’ year-round home. Cledis and Virgie filed a 1979 Alabama income tax return and paid taxes due thereunder. Cledis retains his Alabama driver’s license. Both Virgie and Cledis are listed as registered and qualified voters on the Town of Loxley voter list and both voted in the July election by absentee ballot. In casting their vote, they executed the absentee voter’s affidavit wherein they affirmed that they were Loxley and Baldwin County residents entitled to vote in the Loxley municipal election. This evidence establishes that, at least at one time, Virgie and Cledis were domiciled in Loxley.

Jacobs argues that the Petersons are no longer domiciled in Loxley because, as several witnesses testified, they are only in Loxley two weeks each year and during the remainder of the year they are either hauling produce in other parts of the country or are residing at their Antigo, Wisconsin, home. Jacobs supports this argument with documentary evidence such as a check in payment of the rent of Quality’s Summer-dale office drawn on an Antigo bank and showing an Andigo address for Quality, as well as a listing in the “Produce Reporter” which listed Peterson’s address as Antigo.

We do not think that Jacobs’s evidence is sufficient to prove that the Peterson’s abandoned their Loxley domicile and acquired a new domicile in Andigo. In Ex Parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945), this Court recognized the following principles concerning one’s domicile:

[A] domicile, once acquired, is presumed to exist until a new one has been gained “facto et animo.” * * * * And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. “Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus.” * * *
A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus man-endi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question. * * * *
* * * * As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact. * * * *
One who asserts a change of domicile has the burden of establishing it. * * And “where facts are conflicting, the presumption is strongly in favor of an original, or former domicile, as against an acquired one,” etc. * * * *

247 Ala. at 117,22 So.2d at 513-14 (citations omitted). Similarly, in Wilkerson v. Lee, 236 Ala. 104, 181 So. 296 (1938), it was stated:

A voter having acquired a legal residence, been duly registered as a voter of the county and precinct or ward * * * may retain such residence until he has abandoned and removed therefrom with the intent to become a resident elsewhere. Temporary absence from one’s residence for the purposes of his employment and the like, without the intent to abandon the home town and acquire a domicile elsewhere permanently, or for an indefinite time, does not forfeit his right to vote.

236 Ala. at 106-07, 181 So. at 298 (citations omitted).

Bearing these principles in mind, we are compelled to conclude that the trial judge properly included those votes cast by Virgie and Cledis in the total votes cast in the Loxley mayoral election. Because Virgie and Cledis had, at one time, acquired a Loxley domicile, the burden was cast upon Jacobs to establish that the Petersons abandoned their Loxley domicile and acquired a new domicile in Antigo. Even if the facts shown are construed in Jacobs’s favor, the facts are, at best, conflicting. Under such circumstances the presumption that the Pe-tersons continue to maintain their Loxley domicile will be applied. Ex Parte Weissinger, supra; Wilkerson v. Lee, supra. The trial judge’s determination of this issue is therefore supported by the law and evidence and is due to be affirmed.

Jacobs also argues that the trial judge erred when he rejected the votes cast by Curtís and Inez Brooks. Again we must disagree. Curtis testified that he and his wife moved from McKenzie, Alabama, to Loxley in April of 1980 with the hope of finding employment there. While in Lox-ley, the Brookses lived with Curtis’s relatives. Both Curtis and Inez voted in the Loxley municipal election by challenge ballot. When Curtis had not secured employment by the last week of July, they moved back to McKenzie where he then found a job. Upon cross examination, Curtis testified as follows:

Q. Mr. Brooks, when you came to Lox-ley, did you come to Loxley with the intent of that being your home?
A. Yes, sir, if I could have found work to have done.
Q. Well, why did you leave Loxley?
A. Because I couldn’t find no job.
Q. Couldn’t find a job?
A. No.
Q. But when you came—
A. Came with the intention of work.
Q. Making Loxley your home?
A. I was hoping then to get me a job. Inez’s testimony was substantially the same as that given by Curtis. It is clear from the foregoing that the Brookses’ intent of making Loxley their home was strictly conditioned upon Curtis’s securing employment there. This is not such an unequivocal “intention to remain permanently, or at least, for an unlimited time” as is necessary to establish a domicile. Rabren v. Mudd, 285 Ala. 531, 234 So.2d 549, 553 (1970). See also 28 C.J.S. Domicile § 11(4) (1941). Therefore, the trial court correctly determined that their votes were illegal and not to be included in the final tabulation.

In his cross-appeal, Ryals contends the trial court erred by adding George Smith’s vote to Jacobs’s total. We agree. Although there is a dearth of authority on the question of whether the vote of an elector who would have voted but failed to do so can be awarded to either candidate, it has been stated that

A voter who did not vote, though legally entitled to do so, and although he did not vote because he was unlawfully prevented, can not afterwards be permitted to testify that he would have voted for a certain person, notwithstanding that the lawful votes so excluded would, if cast as intended, have changed the result.
The election is to be decided by the number of legal votes actually cast, and not by ascertaining what might have been cast. The election may be held invalid because of the suppression of legal votes, but public policy forbids that, after it is known just how many votes are necessary to change the result, it should be permitted to change it upon the present statement of voters as to their past intentions.

P. Mechem, Public Offices and Officers, § 237 (1890). Not only is this rule sound from a public policy standpoint, but it is also supported by those provisions which govern municipal elections in this state. See Code 1975, § 11-46-1 et seq. It is provided in Code 1975, § 11-46-70 that

If, on the trial of the contest of any municipal election, it shall appear that any person other than the one whose election is contested, received or would have received, had the ballots intended for him and illegally rejected been received, the requisite number of votes for election, judgment must be entered declaring such person duly elected * * *.
If it appears that no person has or would have had, if the ballots intended for him and illegally rejected had been received, the requisite number of votes for election, judgment must be entered declaring this fact, and such fact must be certified to the municipal governing body and the vacancy in the office, election to which had been contested, shall be filled in the manner prescribed by law for filling the vacancy in such office.
******

This provision is couched in terms of “illegally rejected” votes. Logically, in order to have a rejected vote, an elector must have either voted or attempted to vote in an election only to have his ballot refused or rejected. Such is not the case here. George Smith never cast his ballot in the Loxley municipal election. It would be a strained construction of both the term “rejected” and the provisions of Section 11-46-70 to characterize a vote which was never cast as a rejected vote. Accordingly, the trial judge’s inclusion of Smith’s intended vote was in error. This does not mean, however, that the trial judge’s decision to order a new election was also in error.

It is provided in Code 1975, § 11-46-71 that

No misconduct, fraud or corruption on the part of the election officers, the marker, the municipal governing body or any other person, nor any offers to bribe, bribery, intimidation or other misconduct which prevented a fair, free and full exercise of the elective franchise can annul or set aside any municipal election unless the person declared elected and whose election is contested shall be shown not to have received the requisite number of legal votes for election to the office for which he was a candidate thereby, nor must any election contested under the provisions of this article be annulled or set aside because of illegal votes given to the person whose election is contested unless it appears that the number of illegal votes given to such person, if taken from him, would reduce the number of votes given to him below the requisite number of votes for election. No election shall be annulled or set aside because of the rejection of legal votes unless it appears that such legal votes, if given for the person intended, would increase the number of his legal votes to or above the requisite number of votes for election. The trial judge specifically found that Smith was a registered voter and was a resident of Loxley, Alabama, on July 8, 1980; having been such more than 30 days prior to the election. That he went to the polls to vote and that he was so intimidated by the Chief of Police, Condie Langham, that he was prevented from voting and that George Smith, Jr. testified that if he had been allowed to vote he would have voted for Jacob (Jake) Jacobs.

Although Smith’s intended vote could not be added to Jacobs’s total to either declare him the winner or declare a tie vote, the fact that he was entitled to vote and would have voted but for the intimidation can be considered in determining “the requisite number of legal votes for election to the office * * Applying this principle, a total of 410 votes were actually cast in the Loxley election; 206 for Ryals and 204 for Jacobs. Five votes were ultimately rejected in the election contest, thus leaving a total of 405 voters who actually participated in the election. Smith would have voted but for the intimidation. Adding his “vote,” a total of 406 persons either participated or would have participated in the election. In order to be declared the winner of the election, a candidate must have received a majority vote of that number, i. e., 204 votes. Ryals received 203 votes to Jacobs’s 202 votes. Neither candidate received the requisite number of votes. In such circumstances the election may be set aside and a new one ordered because it is evident that the intimidation of Smith “prevented a fair, free and full exercise of the elective franchise” and, adding Smith’s “vote”, prevented Ryals from receiving the “requisite number of legal votes for election to the office for which he was a candidate.”

Because the election did not result in a tie vote, Jacobs’s argument that the Lox-ley City Council should fill the mayoral vacancy pursuant to Code 1975, § 11-46-70, is not well taken. That section provides in part:

If it appears that no person has or would have had, if the ballots intended for him and illegally rejected had been received, the requisite number of votes for election, judgment must be entered declaring this fact, and such fact must be certified to the municipal governing body and the vacancy in the office, election to which had been contested, shall be filled in the manner prescribed by law for filling the vacancy in such office.

This section has application to those situations where, in an election contest, the judge ultimately determines that a tie vote results from the total number of legal votes actually cast in an election. When intimidation which affects the outcome of an election is involved, the provisions of Code 1975, § 11-46-71, supra, apply.

We have carefully reviewed those other issues raised by Jacobs and have reached the conclusion that they are without merit.

For the foregoing reasons the decision of the trial judge ordering a new election for the mayor of Loxley is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Margaret L. HAGGARD v. BLUE CROSS-BLUE SHIELD OF ALABAMA.
    Civ. 2260.
    Court of Civil Appeals of Alabama.
    Sept. 10, 1980.
    Rehearing Denied Oct. 15, 1980.
    John Plunk and Jimmy E. Alexander of Steele, Alexander & Corder, Athens, for appellant.
    Byrd R. Latham of Patton, Latham, Legge & Cole, Athens, for appellee.
   WRIGHT, Presiding Judge.

This is an action by an insured upon a policy of hospital insurance. Defendant, insurer Blue Cross, defended the action claiming benefit of provision in the policy which excluded benefits when a hospital admission was determined by the insurer not to have been “medically necessary.” At the close of testimony before a jury, the court, upon motion of defendant, ordered a directed verdict and judgment in favor of defendant. Plaintiff appeals. We reverse.

The only issue presented is whether the court erred in directing a verdict for defendant because the evidence was conclusive that the hospitalization of plaintiff was not “medically necessary” and the exclusion in the policy barred recovery.

The issue of whether the hospitalization of plaintiff was “medically necessary” was a question of fact. Such question must be presented for determination of the jury if the evidence, or any reasonable inference arising therefrom, furnishes the slightest gleam, glimmer, spark or scintilla in support of the theory of the complaint. Alabama Power Co. v. White, 377 So.2d 930 (Ala.1979). When considering the motion for directed verdict, the tendencies of the evidence are viewed most favorably for the opposing party. McAllister v. Lankford Investigators, Inc., 380 So.2d 299 (Ala.1980).

With these principles in mind, we have carefully reviewed the evidence and find it tends to show the following:

Plaintiff, having been released from a period of hospitalization only six days before, suffered a blackout and a fall. She fell across a coffee table while alone at night. The next day she went to the emergency room of the hospital where her physician found her to have recently fractured lumbar and sacral vertebrae and her pubis ramus. She was in much pain and unable to bear her weight without crutches. Her physician knew from his past attendance that plaintiff had weak bones, “osteoporosis,” and a nervous problem causing blackouts. She had had previous falls and fractures. He knew or was told that she had no one to care for her at home. She did not request hospitalization. Plaintiff’s physician admitted her to the hospital and prescribed specific courses of medication and treatment.

Plaintiff suffered much pain for which she was given medication. She was confined to bed and given a regimen of physical therapy and exercise to relieve pain and strengthen her body. Her physician visited her twice each day, checking her condition and entering additional daily orders for her care and treatment. She remained in the hospital for more than two weeks and was released upon the order of her physician. She filed her claim for insurance benefits. The physician filed a claim for his services. A portion of plaintiff’s claim was paid. The claim of the physician was paid. Subsequently, the physician was notified by defendant to return his payment and he did. Plaintiff, after several inquiries about payment, was notified her claim was denied because of policy exclusions.

The physician testified that though he admitted plaintiff to the hospital and kept her there for two weeks, he did not consider such hospitalization “medically necessary.” He said that she could have stayed at home if she had someone to care for her, and he admitted her because he knew, or she told him, she had no one at home to care for her.

Defendant, in support of the motion for directed verdict and in argument here, contends that the opinion of the physician that the hospitalization was not “medically necessary” was without conflict and conclusive because of its expert nature.

Plaintiff contended below and contends here that the testimony of the physician is in fact contradicted by his own objective findings, diagnosis, prescribed treatment and medication and the undisputed physical condition of the plaintiff.

We agree with plaintiff. It has been held that a conflict sufficient to require submission of factual issue to the jury may be presented by the testimony of the same witness. Huff v. Vulcan Life and Accident Insurance Co., 281 Ala. 615, 206 So.2d 861 (1968); Martin v. Auto-Owners Ins., 57 Ala. App. 489, 329 So.2d 547 (1976). Indeed, in view of the uncertainty and ambiguity inherent in the phrase “medically necessary,” Van Vactor v. Blue Cross Assoc., 50 Ill. App.3d 709, 365 N.E.2d 1638 (1977), it would appear that the fact of admission under the circumstances of this case presents a scintilla that it was “medically necessary.” The argument of insurer that the opinion of the physician made subsequent to his order of admission should be conclusive on the trier of fact, presents an anomaly, when compared with the terms of the policy. Immediately following the exclusion, in large black print enclosed in a black box, the policy states the following: “The fact that a physician may prescribe, order, recommend or approve a service or supply does not, of itself, make it medically necessary . .. . ” It is further to be noted that the exclusion states that what is “not medically necessary” is a matter for the judgment of the insurer. It appears that the order or acts of the physician are not conclusive upon the factual issue of medical necessity insofar as the insurer is concerned, but his testimony of non-medical necessity as a witness for the insurer must be accepted as conclusive by the jury.

Defendant and the physician submit that plaintiff was admitted to the hospital because she had no one at home to care for her and thus there was no “medical necessity.” It appears a reasonable inference that the opposite should be true — i. e., it was “medically necessary” to admit her to the hospital because she had injuries which required medication, treatment and bedrest, and she had no means of obtaining such treatment except by hospitalization.

Black’s Law Dictionary, 5th ed., says of the word “necessary”:

This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought.

It is our opinion that the term “medically necessary” is broad, ambiguous, and susceptible to various meanings. It therefore must be construed most favorably for the insured. Employers Insurance Company of Alabama v. Jeff Gin Co., S78 So.2d 693 (Ala.1979). Its meaning cannot be said to be solely dependent upon expert medical testimony. We find that the evidence, with its reasonable inferences, when considered most favorably to plaintiff, presents at least a scintilla, contrary to the statement of the physician that plaintiff’s hospitalization was not “medically necessary.” The trial court erred in directing a verdict for defendant.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.