author: FAULKNER, Justice.

text:
    Wayne NELMS et al. v. ALLIED MILLS CO. et al.
    79-167.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      R. B. Jones of Jones & Monroe, Birmingham, for appellants.
    William Michael Warren, Jr. and Scott M. Phelps of Bradley, Arant, Rose & White, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from a judgment for the Allied Mills Company in a personal injury action. We affirm.

Wayne Nelms raised broiler chickens from chicks to seven to eight weeks of age under contract with Allied Mills. When the chickens were seven to. eight weeks old, Allied Mills would send a crew to Nelms’ farm to catch the chickens and place them in coops. These coops were then stacked on a pallet and placed in the hauling truck by a forklift. The forklift was brought to the farm on a loader truck and unloaded using two loader ramps.

On the night of July 21, 1976, a crew came to load the chickens. Cotton Cheek, an employee of the Wayne Poultry Division of Allied Mills, was driving the forklift at a rapid rate within the chicken house. Another employee and Nelms were sitting on the ramps of the loader truck close to the area where the forklift was being used. Nelms apparently was not paying attention to the forklift and when it came very close to him, possibly hitting the ramp, he fell off the ramp and injured himself.

Nelms sued Allied Mills for personal injuries he alleged resulted from the negligence of its employees. Nelms’ wife joined as a party plaintiff. The case was tried to a jury and Nelms objected to portions of the oral charge to the jury. The jury returned a verdict for Allied Mills. Nelms’ motion for new trial was denied and he appeals.

We are asked on appeal to hold certain parts of the trial judge’s oral charge to the jury erroneous. Nelms contends that the following portion of the charge was misleading because it presumed the existence of a dangerous condition which was a question of fact for the jury, placed too great a burden of vigilance on Nelms, and confused the concepts of contributory negligence and assumption of the risk:

If the Defendant has reasonably satisfied you, the Jury, by the evidence in this case that the Plaintiff, Wayne Nelms, had knowledge of the existence of the dangerous condition out there, that the Plaintiff appreciated and recognized such danger, and that the Plaintiff failed to exercise reasonable care for his own safety and put himself in the way of such known danger, then the Plaintiff, Wayne Nelms, would have been guilty of contributory negligence, and this would end your deliberation, and your verdict would be for the Defendants.

Out of the presence of the jury, but before it retired to consider its verdict, Nelms’ attorney objected to the above portion of the oral charge as follows:

We respectfully except to the Court’s Oral Charge, and we except to that portion of the Oral Charge where it states that the burden is on Wayne Nelms, and also on Cotton Cheek, to not injure another person or property. The burden is on the Plaintiff-under this charge, the burden-it would place an extra burden on the Plaintiff, even though the Plaintiff is where he had a right to be, and he was passive and not doing anything at the time of the alleged negligence; that Cotton Cheek was the activist, and doing the moving, and the person driving the loader at the time when he was operating the loader. We say that puts two-an extra heavy burden on the Plaintiff, and does not take into consideration the fact the Plaintiff was where he had a right to be. We respectfully except to that portion of the Court’s Charge.

Rule 51 of the Alabama Rules of Civil Procedure provides in pertinent part, that:

No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. [Emphasis added.]

The purpose for requiring statement of grounds for an objection or exception to an oral charge is said to be to allow the trial court an opportunity to correct the instructions and to avoid the waste of time and money from reversals resulting from oversight, technical omissions, or remedial mistakes. Hosey v. Seibels Group, South Carolina Insurance Company, 363 So.2d 751 (Ala.1978); Feazell v. Campbell, 358 So.2d 1017 (Ala.1978); Gardner v. Dorsey, 331 So.2d 634 (Ala.1976); Pitts v. Hulsey, 344 So.2d 175 (Ala.Civ.App.1977). The general rule to preserve error in jury instructions for appellate review is that in addition to objecting to the charge, the complaining party must have stated adequately specific grounds as a basis for the objection. Pitts v. Hulsey, supra; Great Northern Land and Cattle Inc. v. Firestone Tire & Rubber Company, 337 So.2d 1323 (Ala.Civ.App.1976). While the general rule has been adhered to in specific instances, objections have been allowed without stated grounds where the objection which was made was specific, adequately informed the trial court of its error, and afforded an opportunity for that court to correct the error. Gardner v. Dorsey, supra; Pitts v. Hulsey, supra.

Examination of Nelms’ objection to the specified portion of the charge indicates that the grounds asserted on appeal were not voiced when the objection was raised. The objection did not adequately inform the trial judge of the alleged errors of presumption of a dangerous condition and confusion of the elements of contributory negligence and assumption of the risk. Reading the objection it appears that Nelms believed the charge to be erroneous because it placed two great a burden on him in that Cotton Creek was the active party and did not consider that he was where he had a right to be when he was injured. This is considerably different from the argument presented on appeal that the trial court presumed the existence of a condition which was actually a disputed fact and that it charged on assumption of risk elements while discussing contributory negligence. The objection did not afford the trial judge an opportunity to correct any possible error he made in charging the jury. These potential errors thus were not preserved for a review.

Nelms also contends the charge was misleading because it placed, too great a burden of vigilance on him. It is not apparent from the language used in phrasing his objection and the explanation therefor, exactly what Nelms intended to inform the court the error was. Possibly his attorney was trying to assert that the elements of assumption of the risk should not have been charged in view of the facts presented; however, neither the trial judge nor this Court should have to “second guess” the attorney. The trial judge was not sufficiently informed of any possible error to give him an opportunity to correct it.

The second issue presented by Nelms concerns whether assumption of the risk should have been charged on the facts proven in this case. Nelms argues that the facts did not support a charge which included elements of assumption of risk even though the trial judge described such charge as one on contributory negligence. In addition to the above objection to the oral charge, Nelms’ attorney also objected:

Now, on the-we also except to the contributory negligence part of the Court’s Charge-the contributory negligence part of the charge where the Court states that if Nelms appreciated the danger, and so forth, without-and the Court did not state to the Jury that Nelms had a right to be at the place where he was at the time of the injury and at the time of the accident.

It is not certain that this objection would have preserved the error now asserted; however, when we do examine charges asserted to be erroneous, we look to the entirety of the trial court’s charge to see if there was reversible error. Underwriters National Assurance Company v. Posey, 333 So.2d 815 (Ala.1976); Taylor v. Owen, 294 Ala. 543, 319 So.2d 672 (1975); Alabama Power Company v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975). The charge taken as a whole correctly instructed the jury on contributory negligence as was proper in view of the testimony taken at trial. In addition to the portion of the charge attempted to be objected to, the trial judge also charged:

Negligence means the failure to use or exercise reasonable or ordinary care. That is such care as a reasonably prudent person would have exercised under the same or similar circumstances.
Therefore, negligence is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something which a reasonably prudent person would not have done under the same or similar circumstances.
Negligence is also said to be the failure to discharge or perform a duty owed to another party. In this regard, the law provides that the duty owed by Cotton Cheek, as he operated the loader in question, was to exercise reasonable care not to injure or damage the Plaintiff. That is, he had a duty to exercise such care as a reasonably prudent operator of a loader would have exercised under the same or similar circumstances.
In fact, our law places a duty on every person, including both Cotton Cheek and the Plaintiff, Wayne Nelms, to use reasonable care to avoid causing injury or damages to a person, or property of others, or to themselves, taking into consideration all the facts and circumstances known to such person, or which should have been known and appreciated by reasonable care and diligence. As you can see, the test is one of reasonable care.

The three elements in the charge on contributory negligence objected to by Nelms-existence of a known dangerous condition; appreciation of the danger; and failure to exercise reasonable care for his own safety, but with the knowledge and appreciation of the danger placing himself in its way-are a part of the definition of “contributory negligence” that is included in jury charges. E. g., Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978); State Farm Mutual Automobile Insurance Company v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964); Foster & Creighton Company v. St. Paul Mercury Indemnity Company, 264 Ala. 581, 88 So.2d 825 (1956).

Finally, Nelms requests that this Court abolish assumption of the risk as a defense to an action based on simple negligence. It is questionable if this question is properly presented; however, we reaffirm our longstanding recognition of assumption of the risk and contributory negligence as defenses to negligence actions. See, e. g., Day v. Downey, 256 Ala. 587, 56 So.2d 656 (1952); Mackintosh Company v. Wells, 218 Ala. 260, 118 So. 276 (1928); Bethea v. Taylor, 3 Stew. 482 (1831).

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    John A. RUSSELL, III v. Lucile Oakley MAXWELL et al.
    79-222.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Perry Hubbard and J. Poy Guin, III of Hubbard, Waldrop, Tanner & deGraffen-ried, Tuscaloosa, for appellant.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma and Michael E. Gurley, Centreville, for appellees.
   FAULKNER, Justice.

This is an appeal from a summary judgment issued by the Bibb County Circuit Court denying probate of a will for failure to file the will for probate within the five-year limitation period of § 43-1-37, Code 1975. We affirm.

On October 26, 1956, James Oakley, Sr., as executor of the will of Lillie Oakley, took her will to the probate judge’s office and the probate judge ordered his employees to file it. The will was recorded in the Will Book, but the original will was not retained by the probate office nor was anything further done toward probating the will.

On July 12, 1977, a petition for probate was filed with the probate court to admit to probate the will of Lillie Oakley and to grant letters of administration to John Russell. A petition to contest probate of this will was filed by Lucile Oakley Maxwell, alleging probate was barred by § 43-1-37, Code 1975, as the testatrix had died on March 10, 1954, more than five years before. Mrs. Maxwell’s petition was granted.

Russell then appealed to the Circuit Court. Mrs. Maxwell filed a motion for summary judgment and a supporting affidavit. That motion was opposed by Russell who filed a motion in opposition and a supporting affidavit. He then amended his petition for probate to allege that the petitioners had been fraudulently induced by James Oakley, the executor, to believe that the will had been admitted to probate within the original five years and that they had learned of this fraudulent conduct just prior to filing the amendment. The trial court entered a summary judgment for Mrs. Maxwell, denying probate of the will on the five-year statute, and did not mention the alleged fraudulent conduct. Russell appeals.

We are asked to determine an issue of first impression-when is a will “filed for probate” within the context of § 43-1-37- and to resolve several contentions concerning the alleged fraud, i. e. whether the allegations of fraud in the amended petition were sufficient, whether the fraud was perpetrated on any of the petitioners, and whether the fraud was timely discovered.

Section 43-1-37, Code 1975 sets a time limit for probate. It provides in pertinent part: “Wills shall not be effective unless filed for probate within five years from the date of the death of the testator.” (Emphasis added.) Russell contends the “filed for probate” language simply means depositing the will with the appropriate clerk in the probate judge’s office, which would thus allow him to probate the will, as Oakley deposited it with the probate office within five years of testatrix’s death. Mrs. Maxwell, however, argues that the language means more than mere compliance with the definition of the word “file”; it included doing something additional evidencing an intent to probate the will.

Section 43-1-37 words its requirement “file for probate” rather than merely “file” which is defined by Black’s Law Dictionary as follows:

FILE, v. To lay away papers for presentation and reference. ... In practice, to put upon the files, or deposit in the custody or among the records of a court. To deliver an instrument or other paper to the proper officer for the purpose of being kept on file by him in the proper place. ... It carries the idea of permanent preservation as a public record.
Black’s Law Dictionary 755 (4th rev. ed. 1968) (citations omitted).

“File for probate” indicates that the filing is for the specific purpose of probate, which is “[t]he act or process of proving a will.” Black’s Law Dictionary 1365-66 (4th rev. ed. 1968). In Alabama, the procedure for. applying to probate or prove a will does not require great formality, so long ás the procedures employed are sufficient to invoke the probate court’s jurisdiction over the will sought to be proved. Price v. Marshall, 255 Ala. 149, 52 So.2d 149 (1951). While this Court has said that the better practice is to require an application or petition for probate to be in writing, verbal applications have been recognized by this Court if the probate court deemed such an application adequate to call into exercise its jurisdiction to take proof. Small v. McCalley, 51 Ala. 527 (1874).

In addition, the term “file for probate” was defined by the Texas Court of Civil Appeals in Ross’ Estate v. Abrams, 239 S.W. 705 (1922). There an application for probate was filed in 1875 on the will of a testatrix who had died in 1872. This proceeding was continued in 1876 and nothing else was done until 1921, when another application to probate the will was filed by other parties to obtain a muniment of title. A contest was filed by the Abramses asserting that the will had been filed for probate earlier but that probate had been abandoned. Under the applicable provision of the Revised Statutes of Texas no will was to be admitted to probate after the lapse of four years from the death of the testator unless proof was shown that the party applying for probate was not in default for failure to present the will for probate within four years from the testator’s death. The Court held that the four-year statute of limitations requiring presentation for probate had been complied with. The Court stated:

We are of opinion that it is more reasonable, and more in consonance with the rest of the article to construe “'present for probate” as being synonymous with “file for probate.” The offering of the proof for probating the will is not a presentation of it for probate any more than the presentation of a bill of exchange would be the acceptance or payment of it. The very language of the statute draws a distinction between “to present for probate” and the admission to probate. The presentation to probate precedes admission to probate. “Probate” is “the act or process of proving a will,” and it must be preceded by the presentation of the will to the court, which is done by filing an application that the will be admitted to probate with the clerk of the county court of the proper county.

Ross’ Estate v. Abrams, 239 S.W. at 707. (Emphasis added.) Filing for probate or presentation for probate entailed filing an application for admission to probate; more than merely handing the will to a probate clerk, but not requiring offering proof or the trial of the actual cause.

We are of the opinion that the “file for probate” language of § 43-1-37 connotes action beyond turning the will over to a clerk for recordation and involves some further action such as making application to probate the will to evidence an intent to probate the will. Our examination of the record in the present case does not reveal a scintilla of evidence that James Oakley did anything more than submit the will to be filed in the Will Book. There is no evidence to indicate that he ever intended to probate the will. Thus, as Oakley did not “file the will for probate,” Russell may not now use Oakley’s submission of the will to avoid failure to meet the five-year limitation.

Russell asserted in his amended petition that failure to comply with § 43-1-37 should be excused because of a fraud perpetrated by Oakley on the petitioners which would suspend the five-year provision for one year from the date the fraud should have been discovered. Whether the fraud was properly alleged, timely discovered, and perpetrated on the petitioners are contested issues.

Section 6-2-3, Code 1975, provides that the aggrieved party has one year from the discovery of the facts constituting the fraud within which to prosecute the action. The predecessor section of § 6-2-3 is in pari materia with the predecessor section of § 43-1-37 and must be construed as tolling the five-year provision, where the party attempting to invoke the remedy alleges and proves fraud as the basis of the right to proceed. Fuller v. Qualls, 241 Ala. 673, 4 So.2d 418 (1941).

This Court has established a requirement of precise averments for those who rely on fraud to remove the bar of the statute of limitations. How and when the facts and circumstances constituting the fraud were discovered, why they were not discovered before the statutory bar was complete, and an acquittal of all knowledge of facts which would lead to an inquiry have been required in the past by this Court, either in the bill or a replication. Johnson v. Shenondoah Life Insurance Company, 291 Ala. 389, 281 So.2d 636 (1973) (replication); Gordon’s Administrator v. Ross, 63 Ala. 363 (1879) (bill of review). Although replications are no longer filed, a party who wishes to assert the saving provision of § 6-2-3 must show that he comes within its requirements, where his complaint shows on its face that his claim is barred by a statute of limitations. General allegations will not suffice; specificity such as was formally needed in a replication is required. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979).

Having examined Russell’s amended petition for probate, we have determined that the allegations of fraud were insufficient to remove the five-year limitation. Russell alleged that James Oakley, Sr. had custody of Lillie Oakley’s will, that Oakley was an heir at law but was not a devisee or legatee under the will, that Oakley presented the will to the probate court and it was marked “filed” within the probate records, and that Oakley owed a fiduciary duty to the petitioners regarding the will which he breached. He also alleged that Oakley represented to the beneficiaries of the will that the will had been probated and the estate would be settled although the will was never probated, that the beneficiaries believed these representations and relied on them to their detriment, and that they did not discover that the will had not been probated until shortly before the petition for probate was filed.

Having found the allegations of fraud in the amended petition inadequate, we do not discuss whether the fraud was perpetrated on these petitioners and was timely alleged.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    James C. LEWIS et al. v. Avery Lee DANIEL et al.
    79-229.
    Supreme Court of Alabama.
    Aug. 15, 1980.
    Harold F. Herring and Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellants.
    Robert Sellers Smith of Smith, Huckaby & Graves, Huntsville, for appellees.
   EMBRY, Justice.

This is an appeal from a summary judgment entered in behalf of defendants Avery Lee Daniel and others. We affirm.

Plaintiffs James Lewis and his wife were officers in a family corporation, Tangle-wood Homes, Inc., which owned certain real property in Madison County. In 1962, the corporation divided the property into numerous lots. A majority of the lots measured 70 feet by 125 feet. Lot 12, the one in controversy here, measured 530 feet by 298 feet. All lots in the subdivision were subject to a restrictive covenant restricting their use to permit only single family dwellings to be located thereon. The covenant is contained in a plat filed in the Madison County Probate Office.

In 1963, Tanglewood built three apartment buildings on one-half of Lot 12. The other half of that lot has remained vacant. The Lewises acquired title to Lot 12 when Tanglewood Homes, Inc., was dissolved in 1972. In 1977, the Lewises announced an intention to build three additional apartment buildings on the other half of Lot 12 and thereupon filed an action for declarato-ryJudgment seeking a declaration that the restrictive covenant did not apply to Lot 12.

The Lewises contend in the complaint for declaratory judgment that Lot 12 was erroneously designated a “lot” and was erroneously included in the plat filed in the probate office; that it was never intended that Lot 12 be subject to the restrictive covenant; that the adjoining landowners were estopped from asserting the validity of the restrictive covenant because they acquiesced in the initial violation of it at the time the three original apartment buildings were constructed; that the character of the neighborhood has changed to such an extent that the restrictive covenant no longer applies; that enforcement of the restrictive covenant would work economic hardship on the Lewises; and, permitting the planned construction would not detrimentally affect defendants.

Defendants, owners of residences in the subdivision neighboring the vacant portion of Lot 12, counterclaimed for damages on account of the 1963 construction of the three existing apartment buildings and answered plaintiffs’ complaint, pleading the statute of limitations and laches. Both sides moved for summary judgment. After a hearing, the trial court granted both sides’ motions for summary judgment, holding that none of the parties “should recover due to the statute of limitations and laches, * *

Three issues are presented: (1) which statute of limitations, if any, is applicable, (2) has an applicable statute of limitations run; and, (3) does the doctrine of laches bar relief? Because we hold that the doctrine of laches bars relief we pretermit discussion of the other issues.

We note at the outset that the facts of this case are unique. Ordinarily, in a case of this sort, it would be claimed that one party breached the restrictive covenant. The other party would be seeking either damages or an injunction to prohibit violation of the covenant. In the case at bar, the Lewises seek to circumvent the foregoing hypothetical by an action for declaratory judgment seeking a declaration that the restrictive covenant does not apply to them. However, this declaratory judgment action is in the nature of an action for reformation of a legal instrument on the grounds of mistake, the plaintiffs contending that Lot 12 was mistakenly included in the recorded plat. Thus the action seeks equitable relief to reform the instrument recorded in 1962. Only a court of equity can reform an instrument. Holloway v. National Mutual Insurance Co., 376 So.2d 690, 693 (Ala.1979).

Plaintiffs claim that the doctrine of laches could not become operative until 1977 when the Lewises manifested their intent to construct the additional apartment buildings because until that time no justiciable controversy existed. We again note that while plaintiffs’ action is designated as an action for declaratory judgment, it seeks equitable relief. Where relief is sought on the grounds of mistake the law is substantially the same as that applicable in cases of fraud. The cause of action accrues at the time the mistake is discovered or at the time when, by reasonable diligence on the part of the party asserting the mistake as a ground for relief, it should have been discovered. 54 C.J.S. Limitations of Actions § 198.

From the facts of this case it appears that Tanglewood (predecessor in title to the Lewises) was entitled to bring an action in 1962 when Lot 12 was erroneously included in the recorded subdivision plat. As president of Tanglewood Homes, Inc., James C. Lewis signed all deeds made by the corporation. By the exercise of reasonable diligence he could have reviewed the contents of those deeds and of the subdivision plat and discovered that Lot 12 had been erroneously included in the subdivision plat, thereby gaining knowledge of the alleged mistake at the time of execution of the deeds or within a reasonable time thereafter. Therefore, the cause of action accrued in 1962 or within a reasonable time thereafter. Obviously, the trial court was of the opinion that this was the case and the issue of whether the doctrine of laches will bar a particular suit is a question for the court to decide based upon the particular circumstances of each case. Bromberg v. First National Bank of Mobile, 235 Ala. 226, 178 So. 48 (1938); Hamilton v. Watson, 215 Ala. 550, 112 So. 115 (1927).

In determining whether the doctrine of laches will bar a suit to reform a legal instrument a court may consider many factors, including the following:

“ * * * The time at which the party seeking reformation discovered the error in the instrument or at which he should have learned of it; the existence or nonexistence and character of changes in circumstances since the execution, particularly of such kind as to be prejudicial to an adverse party who has acted or refrained from acting on the faith of the instrument as executed, and especially if such changed conditions [could] have been induced by the inaction of those seeking to have the instrument corrected, and changes in the value of the property if the error alleged is in a deed; the loss or impairment of evidence, as by the death of witnesses or the loss of papers; the fact that the party resisting reformation has had notice of the claim asserted by the party seeking it; the extent to which the rights of innocent third persons have intervened, by reason of the delay, which would be adversely affected by reforming the instrument, and the fact that the party seeking reformation has acquiesced in the possession or conduct of the party against whom reformation is sought consistent with the terms which it is sought to have the instrument reformed to include or exclude and inconsistent with the terms of the existing writing.” (Emphasis added.) 76 C.J.S. Reformation of Instruments § 69, at 419, 420.

James Lewis was aware of the contents of the instrument (the subdivision plat) or by reasonable diligence he should have been so aware. He signed it in behalf of the corporation which developed the land. It was executed in 1962 and in the interim numerous people purchased land relying on the restrictive covenant to protect the character of the neighborhood by permitting only single-family dwellings. The rights of these third persons would be adversely affected by reforming that instrument. Moreover, the Lewises have acquiesced in the possession of the other landowners, consistent with the terms of the restrictive covenant, for fifteen years. Fifteen years later plaintiffs seek to have the instrument reformed; the result of which would drastically change the terms of the existing writing. It is logical to deduce that the only reason given for the delay in bringing this action is that until 1979 there was never an intention to build additional apartment buildings, and, therefore, there was no reason to search the legal documents until then. The trial court held the action barred by the doctrine of laches. We cannot say this holding is erroneous. The judgment below is due to be, and is hereby, affirmed.

AFFIRMED.

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


text:
    The TOWN OF HELENA, Alabama, a Municipal Corporation v. COUNTRY MOBILE HOMES, INC., a corporation, et al.
    79-258.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Conrad M. Fowler, Jr. of Wallace, Ellis, Head & Fowler, Columbiana, for appellant. Richard W. Bell, Pelham, for appellees.
   EMBRY, Justice.

This appeal is from a judgment, adverse to plaintiff The Town of Helena and favorable to defendants Country Mobile Homes and Joseph Carrier, holding that a structure assembled or installed on a building site in Helena was not a mobile home and therefore not in violation of a zoning ordinance of the Town. We affirm.

Issue

Under the facts of the case was the subject structure a mobile home within the definition of the Helena zoning ordinance?

Facts

There was in force and effect in Helena a zoning ordinance which contained the following provisions:

“ARTICLE 111 DEFINITIONS
* * * * * *
“34. Mobile Home. A detached unit for commercial, residential, or industrial purposes designed for transportation after fabrication on streets or highways on its own wheels or on flated [sic] or other trailers and arriving at the site where it is to be occupied complete and ready for occupancy or use except for minor and incidential [sic] unpacking and assembly operations, foundations, connections to utilities, and the like. A travel trailer is not to be considered as a mobile home.”
“ARTICLE V GENERAL REGULATIONS
“Sec. 17. Mobile Homes
“1. Except as provided in Article XIX all mobile homes shall be parked in authorized mobile home parks.
, “2. Except as provided in Article XIX mobile homes shall not be permitted on individual lots and shall not be considered as single family dwellings.”

After a trial ore tenus, where the testimony was in sharp conflict and during which the trial court viewed the building site and structure, the following findings of fact were made:

“A. That the structure being constructed by the defendant, Country Mobile Homes, Inc., a corporation, and Joseph Carrier, is a modular home and not a mobile home. From the personal view by the Court of the structure it is found that the structure appears to be constructed with the same or similar materials that are used in the construction of other homes within the immediate area of the structure in question.
“B. That the construction of the foundation, electrical connections, and heating system are substantially the same as those of other homes in the area of the site of the construction of the structure in question and that more than ‘minor’ and incidental unpacking and assembly operations are necessary to be performed prior to the home being suitable for human habitation.
“C. That the structure in question is a modular home and that said modular home is placed upon the concrete block foundation (said concrete block foundation being similar to the foundation of other homes in the immediate area of this modular home) and that it is a permanent structure. Further, that in order to remove said modular home from the foundation would require a substantial number of hours of work and construction to remove the home from the foundation.
“D. It is the further finding of fact by the Court that this is a modular home as differentiated from a mobile home described in Section 34 of the Town of Helena’s zoning ordinances in that the modular home is not complete and ready for occupancy or use except for minor and incidential [sic] unpacking and assembly operations, foundations, connections to utilities and lights.
“E. That the Town of Helena by and through its employees were [sic] informed by the defendants, Country Mobile Homes, Inc., a corporation, and Joseph Carrier, that the structure to be constructed on said building site was a modular home and that construction of said modular home would be accomplished at a location other than the building site in Helena, Alabama. Further, that plans and specifications defining and exhibiting the mode of construction of said modular home were supplied to the employees of the Town of Helena, Alabama, prior to the initiation of any construction on the building site in the Town of Helena, Alabama, and prior to the issuance of any building permit for the structure to be located on the building site in the Town of Helena, Alabama. It is the further finding of the Court that the defendants, Country Mobile Homes, Inc. and Joseph Carrier, acted in reliance of action of the Town of Helena, Alabama and expended sums of money for labor and materials for the construction of the structure to be located on the building site in the Town of Helena, Alabama.”

These findings are amply supported by the evidence.

The evidence shows that the structure, subject of this litigation, was being installed or assembled on a site in a subdivision which contains no restrictive covenants applicable to homes situated in it. Therefore, if not prohibited by the provisions of the zoning ordinance set out above, there is no impediment to defendants’ structure being located in that subdivision in Helena. We point out that the exhibits which are photographs of the subject structure and other structures in the subdivision disclose that defendants’ structure resembles the other structures, which the evidence shows to be conventional “stick-build” homes, rather than what is commonly considered a mobile home. Also, we note that the structure contains approximately 1776 square feet of floor space with three bedrooms and two full baths, and costs concerning the structure expended to date of filing of this action, at which time installation or assembly was halted, including footings, foundation, 'and the dwelling Unit were approximately $37,000 to $38,000.

The controlling principles of law in this case are: (1) Where the trial court hears the evidence ore ten us every presumption will be indulged in favor of the trial court and its findings and judgment will not be disturbed unless plainly wrong when the evidence is contradictory and some of it supports those findings. (2) Findings of fact shall not be set aside unless clearly erroneous. (3) Where the trial court has made a visual inspection of the subject matter of a finding of fact there is an even greater presumption indulged in favor of that finding than is the case when the same finding is made from other evidence. (4) A statute or ordinance is to be interpreted by determining the intention of the enactment from the words expressed therein when applied to the facts upon which it is to operate. Principles numbered one and two need no citation of authority; they are unchallenged. Principle number three is virtually on the same footing as numbers one and two as is partially illustrated by Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971). Number four is illustrated by Alabama Industrial Bank v. State, ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970).

Contentions of the Parties

The Town of Helena contends that defendants’ structure is a mobile home as defined in its zoning ordinance under the evidence in the case and that it does not qualify as factory-built housing as defined in § 24-4-2(2), Code 1975:

“(2) FACTORY-BUILT HOUSING. Any structure, or component thereof, designed primarily for residential occupancy which is wholly, or in substantial part, made, fabricated, formed or assembled in manufacturing facilities for installation, or assembly and installation, on the building site. Mobile Homes, as defined by southern standard building codes, are specifically excluded from the provisions of this chapter.”,

primarily for the reason that the structure more closely fits the definition of mobile home as described in § 24-5-2(1), Code 1975:

“(1) Mobile Home. A movable or portable dwelling over 32 feet in length and/or eight feet or more in width, constructed to be towed on its chassis, connected to utilities and designed without a permanent foundation for year-round living. It can consist of one or more units that can be telescoped when towed and expanded later for additional capacity or of two or more units, separately towable but designed to be jointed into one integral unit.”

Appellees contend the judgment should be affirmed under the principles of law as stated above in one through three and because the trial court correctly interpreted the ordinance under the evidence in this case according to principle of law number four above. They further contend their structure qualifies as factory-built housing (a modular home), although the means of transporting the three sections involved mounting each section on axles, wheels, and tongues, and towing them to the building site, because when it was delivered to the building site the axles, wheels, and tongues were removed and the sections installed on a permanent foundation and joined.

Helena countered that the sections were capable of being disjoined, removed from the foundation, reattached to the axles, wheels, and tongues, and towed to another location; therefore, it was a mobile home and not a modular one.

Decision

Very capable counsel for both appellant and appellees have filed erudite briefs and presented excellent oral arguments in support of their respective positions. Admittedly, there are no Alabama cases bearing on the issue for review. Counsel for each of the adversary parties cite Kyritsis v. Fenny, 66 Misc.2d 733, 320 N.Y.S.2d 702 (Sup.Ct.1971), which we find sheds little light on the issue because of dissimilarities between the New York ordinance and Helena’s as well as between the facts of that case and this one. This is likewise true of City of Woodstock v. Boddy, 240 Ga. 477, 241 S.E.2d 236 (1978), cited by appellees.

We do not perceive it would be helpful, or even slightly necessary, to analyze these cases in deciding this one. The findings of fact are supported by the evidence, and are not clearly erroneous; neither are the findings and judgment plainly wrong and based upon those findings and the evidence the trial court has correctly interpreted the zoning ordinance. Under the controlling principles of law we cannot say there is error to reverse the judgment below and, therefore, that judgment is due to be, and is hereby affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Barbara MATHIS v. AUTO-OWNERS INSURANCE COMPANY, a corporation.
    79-367.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Douglas M. Bates of Adams & Bates, Dothan, for appellant.
    T. E. Buntin, Jr. of Buntin & Cobb, Do-than, for appellee.
   SHORES, Justice.

On July 1, 1977, Barbara Mathis was riding as a passenger on a motorcycle driven by Russell Mathis, when they collided with an automobile operated by James Edward Fountain, an uninsured motorist. She was severely injured. At the time of the accident, she lived with her mother and stepfather, Archie W. Gilley, and owned her own car, which was not covered by uninsured motorist insurance. Her stepfather, however, was the named insured on a policy of automobile insurance issued by Auto-Owners Insurance Company, which insured five separate automobiles owned by Gilley, and provided uninsured motorist coverage. The policy defines “insured” to include:

(A) the first named insured if an individual and not a corporation, firm or partnership, and while residents of the same household, the spouse of the first named insured and, if not owning any automobile, the relatives of either. [Emphasis ours.]

The motorcycle on which Mathis was riding when injured was covered by uninsured motorist insurance, and she has collected on that policy.

In May, 1979, Mathis filed suit against Auto-Owners, alleging negligent or wanton injuries caused by an uninsured motorist, and claiming uninsured motorist coverage under the policy of insurance issued by Auto-Owners to her stepfather, Archie Gil-ley. Auto-Owners then filed a bill for declaratory judgment against Mathis, asking that her lawsuit be enjoined pending a determination of whether coverage was afforded her under the policy in question. Prosecution of that lawsuit was enjoined, and Auto-Owners’ subsequent motion for summary judgment was granted on December 21, 1979. Mathis then initiated this appeal.

Appellant makes two contentions on appeal: (1) that the declaratory judgment was improper because at the time of the filing of the bill, there was an existing suit involving the identical parties and the identical subject matter; and (2) that the limitation of coverage under the policy to resident relatives of the named insured who do not own a car violates the Alabama Uninsured Motorist Act. We agree that the trial court acted improperly in entertaining the declaratory judgment action. Jurisdiction of a declaratory judgment action will not be entertained if there is pending at the time of the declaratory judgment action another action or proceeding to which the same persons are parties, and in which are involved and may be adjudicated the same identical issues that are involved in the declaratory judgment action. Foreman v. Smith, 272 Ala. 624, 133 So.2d 497 (1961). In Auto Mutual Indemnity Co. v. Moore, 235 Ala. 426, 179 So. 368 (1938), plaintiff filed a suit at law against the owner of a truck in which plaintiff was injured and against the owner’s insurance carrier. The insurance company filed a bill for declaratory judgment seeking a declaration that the contract did not provide coverage and that the carrier was thus not liable. It was held that the insurer had a full and complete opportunity to have its contract interpreted to determine coverage in the action at law, and that because the circuit court at law had first acquired jurisdiction and had ample power to decide all questions material to the insurer’s rights, its jurisdiction should not be disturbed. The facts in that case are not materially different from those of the instant case. The issue to be litigated in both the action filed by Mathis and the declaratory judgment action is the same-coverage-and the parties are identical. An action for declaratory judgment may not supersede the determination of an issue already pending in another action filed prior to the declaratory judgment. George Moulton, Inc. v. Langan, 285 Ala. 427, 233 So.2d 74 (1970).

Smith v. North River Ins. Co., 360 So.2d 313 (Ala.1978), is not to the contrary. That case held that an insurer could bring a declaratory judgment action during the pendency of a suit against its insured to determine whether the carrier was required to defend its insured in the action at law. The issue to be resolved in the declaratory judgment action-duty to defend-was different from that involved in the action against the insured-his liability for the plaintiff’s injuries. To require the insurer to litigate the issue of duty to defend in the action against the insured would possibly subject it unnecessarily to suit.

We agree, however, with the trial court’s determination that Mathis was not covered under the policy of insurance issued by Auto-Owners, and that the definition of “insured” does not violate the Alabama Uninsured Motorist Act, Code 1975, § 32-7-1, et seq. Code 1975, § 32-7-23, provides that:

No automobile liability . . . policy . . shall be delivered or issued . in this state . . . unless coverage is provided therein for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury . . . including death. . . . [Emphasis ours.]

Mathis is clearly not defined as an insured under her stepfather’s policy. She contends, however, the phrase, “if not owning any automobile,” inserted by the company in defining persons insured under the policy, violates the Uninsured Motorist Act. She asserts that cases such as Ala. Farm Bur. Mut. Cas. Ins. Co. v. Mitchell, 373 So.2d 1129 (Ala.1979), wherein it was said:

[T]he Legislature could have authorized exclusions in the uninsured motorist statute but not having done so, no such exclusions are permitted. The inclusion of such provisions in the uninsured motorist section of an automobile liability insurance policy tends to limit or restrict the uninsured motorist coverage and thereby conflicts with the Act.

invalidate that provision of the insurance policy. That case, however, and related cases to which we are referred, such as Safeco Insurance Co. of America v. Jones, 286 Ala. 606,243 So.2d 736 (1970), and State Farm Fire and Casualty Co. v. Lambert, 291 Ala. 645, 285 So.2d 917 (1973), invalidated policy provisions which limited benefits available to persons injured by uninsured motorists, or excluded certain vehicles from coverage. Such is not the case here. We are cited to no case which holds that the Uninsured Motorist Act limits the ability of insurers to define who is insured. To the contrary, in Lammers v. State Farm Mutual Automobile Ins. Co., 48 Ala.App. 36, 261 So.2d 757 (1972), the issue was discussed in the following terms:

The Supreme Court of this state has consistently upheld the “household exclusion” clause of liability policies, thereby establishing a judicial policy in this state that insurance companies may by appropriate exclusions and exclusionary definitions protect themselves from friendly family lawsuits. What availeth it to an insurance company to escape liability under the “household exclusion” clause and then finds [sic] itself caught in the net of the “uninsured motorist” clause? If the legislature, knowing the judicial policy of the courts of this state with reference to “household exclusion” clauses, had seen fit to make “uninsured motorist” coverage nullify, in practical effect, such “household exclusion” clauses, it surely would have done so when it adopted the “Uninsured Motorist Coverage” statute, supra.

We hold that the trial court erred in not granting the appellant’s motion to dismiss the declaratory judgment action. However, it ruled correctly on the issue of coverage, although this determination should have been made in the suit begun by the appellant against Auto — Owners. Given the posture of the case before us, we think it appropriate to reverse the judgment with directions that a judgment consistent herewith be entered in the case filed by Mathis against Auto-Owners. Although the Court below should not have reached the coverage question (because it should not have entertained the declaratory judgment action), nevertheless, having done so, it would be redundant to retry that issue. This comports with the spirit of the rules expressed in Rule 1, ARAP.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: PER CURIAM.

text:
    Arthur Brennan MALLOY v. Thomas C. SULLIVAN.
    79-511.
    Supreme Court of Alabama.
    Aug. 15, 1980.
    Arthur Brennan Malloy, pro se.
    John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   PER CURIAM.

This is an appeal from an order dismissing plaintiff Arthur Brennan Malloy’s action for damages against Thomas C. Sullivan for the alleged negligence of the latter in defending Malloy against charges of criminal offenses for which Malloy was prosecuted and convicted in the United States District Court for the Middle District of Alabama. We reverse.

On January 10, 1980, Malloy, a federal prisoner incarcerated at Tallahassee, Florida, mailed to the clerk of the Circuit Court of Montgomery County a request to proceed in forma pauperis and for appointed counsel together with an attached complaint seeking compensatory and punitive damages for the alleged legal malpractice and negligence of Sullivan. On January 14, 1980, before any service of process was made, the trial court dismissed the action by an order which in pertinent part reads as follows:

“The complaint attached to the Request shows that the Plaintiff, a federal prisoner in Tallahassee, Florida, seeks damages from Thomas C. Sullivan arising out of the representation provided by Mr. Sullivan to the Plaintiff in a federal criminal case.
“It is apparent that this court is not the proper forum for this action. Accordingly the case will be dismissed. * * * ”

The events giving rise to this action began in August 1977 when Malloy was in-dieted by a federal grand jury. Subsequently, Sullivan was appointed to represent Malloy in the case which was tried in the District Court without a jury. Malloy was convicted and, on November 10, 1977, sentenced to nine years in prison. On June 14, 1978, the United States Circuit Court of Appeals for the Fifth Circuit affirmed without opinion and the Supreme Court subsequently denied certiorari.

The situation here is quite unusual. Generally, when a person convicted of a crime complains, as Malloy does, that ineffective assistance of counsel resulted in a denial of due process, he or she seeks relief by petitioning the appropriate court for a writ of habeas corpus. In this case, however, Mal-loy chose to seek damages in the state court under state law for malpractice, rather than release from prison.

The sole dispositive issue in this case is whether or not the circuit court has jurisdiction of the subject matter of this action.

Sullivan contends the action was properly dismissed under the comity doctrine and to permit the state court to determine the merits of Malloy’s claim for relief would, in effect, amount to an appellate review of, or collateral attack on, a federal criminal conviction. It is his position that the comity doctrine dictates that matters related to the prosecution of Malloy in the federal court are more properly within the jurisdiction of that court than the state court. To support this argument he relies primarily on Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967); Manning v. Jones, 385 F.Supp. 312 (E.D.N.C.1974); and, Tyler v. Croom, 288 F.Supp. 870 (E.D.N.C.1968). Each of these cases, however, deals with the relationship between the state and federal court systems in situations involving petitions for writs of habeas corpus filed in federal courts seeking release from custody resulting from conviction in state courts or review of the validity of such convictions. These cases are inappropriate and not controlling; therefore, the comity doctrine argument is without merit.

Sullivan also argues that the judgment of dismissal in this case will not support an appeal because there had been no service of process upon him at the time the judgment was entered. This contention overlooks the fact that when the trial court dismissed Malloy’s action on its own initiative there could be only one justification for so doing: lack of subject-matter jurisdiction. This was not the case. Under our present system of notice pleadings, like it or not, Malloy’s complaint would withstand a motion to dismiss and can be read to state a bare-bones claim for legal malpractice.

The elements of an action against an attorney in his professional capacity for negligence are essentially no different from those of any other negligence suit. For an excellent and thorough discussion of this area of the law see Herston v. Whitesell, 348 So.2d 1054 (Ala.1977) (appeal after trial on remand, 374 So.2d 267 (Ala.1979)). Clearly the circuit court has jurisdiction of this action and Malloy is entitled to proceed with it. About whether this action can withstand summary judgment or directed verdict, in appropriate circumstances under applicable law regarding defenses to the claim, we will not speculate.

For the reasons assigned, the judgment of dismissal is due to be reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Silas MORGAN and Mable Morgan v. Herbert ROBERTS, Alma Roberts et al.
    79-762.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Wallace H. Lindsey, III, of Lindsey & McPhearson, Butler, for appellant.
    Wyman 0. Gilmore, Grove Hill, for appel-lees.
   PER CURIAM.

This is an appeal from a decree denying reformation of a deed.

On December 21, 1964, Silas Morgan and his wife, Mable, conveyed forty acres of land in Choctaw County to Herbert Roberts and his wife, Alma. Following the description of the land, there are these words, “It is expressly understood that 14 oil, gas and other mineral interest is reserved from this conveyance.” Fourteen years later, these words became the subject of a lawsuit.

In March, 1978, the Morgans filed suit to reform the deed; they alleged that they had conveyed an undivided xh interest in the minerals in 1944; that they had actual knowledge that the Robertses were claiming an undivided xk interest in the minerals themselves; that it was the intention of all of the parties that the Morgans reserve an undivided XA interest, and if they failed to do so, it was because of a mutual mistake. They asked the Court to reform the deed to express the intention of the parties. After a hearing ore tenus, the Court denied reformation.

At the outset, it may be said that this suit for reformation appears to be unorthodox because the deed had been prepared before the grantors and the grantees ever had any discussion of the interest conveyed. The evidence shows that the Morgans had forty acres of land for sale. They offered it to Ennis Roberts. He was not interested, but his brother, Herbert Roberts, was buying land and he said he would advise Herbert of the land for sale.

The evidence is unclear as to how the Morgans and Robertses negotiated the sale. But, the Morgans and Mr. Roberts met at the Choctaw County Courthouse-the Morgans with the deed, Mr. Roberts with a check signed by his wife. When shown the deed (prepared by the probate judge), Roberts read the language concerning the reserved XA mineral interest, hesitated, questioned whether his wife would accept it, but finally, he took the deed and left.

What transpired between the Morgans, the probate judge, and the judge’s secretary when the deed was prepared is the crux of this appeal. The Morgans contend that they should be permitted to show by parol evidence how the deed was prepared, the conversation between them and the probate judge and the scrivener that led to its preparation.

When the Morgans went to see the probate judge, they told him that they had already sold xh the mineral interest, and wanted to reserve an undivided XA interest in the minerals in the deed to the Robertses. What the probate judge said to them about the fact that it was not necessary to mention the sale of an undivided V2 interest in the Roberts deed was excluded. But, evidence of the sale came in later, when the trial judge permitted, over objection, Mrs. Morgan to testify that she told Mr. Roberts that they had sold an undivided interest in the minerals. So, it appears, as far as we can determine from the transcript, that the Court admitted evidence of all of the events leading to the preparation of the deed. But, what the evidence does not show is that there was neither a mutual mistake, nor a mistake of one party which the other party at the time knew or suspected. See § 35-4-153, Code 1975. For an instrument to be reformed, there must have been a meeting of the minds, and a mutual mistake in executing it that does not express the common intent, or a mistake on the part of one, and conduct on the part of the other so that it would be inequitable to deny a mutual mistake. McCoy v. Jenkins, 244 Ala. 650, 15 So.2d 409 (1943).

We hold the trial judge was correct by denying reformation of the deed. A review of all the evidence shows that his order of denial is not manifestly unjust.

AFFIRMED.

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


text:
    Arnold PRICE et al., v. Jacob JACOBS.
    78-791.
    Supreme Court of Alabama.
    Aug. 22, 1980.

      John Earle Chason of Chason & Chason, Bay Minette, for appellants.
    James R. Owen of Owen & Ball, Bay Minette, Geary A. Gaston and Patricia K. Olney for Reams, Tappan, Wood, Vollmer, Philips & Killion, Mobile, for appellee.
   EMBRY, Justice.

This appeal by Arnold Price and wife Mary Lucille Price and State Farm Mutual Automobile Insurance Company is from a judgment entered on a jury verdict in favor of Jacob Jacobs for $15,000 damages sustained in an automobile accident.

This negligence action was initially filed by Jacob Jacobs against Arnold Price for damages sustained in an automobile accident at the intersection of Highway 90 and the Malbis Parkway in Baldwin County. Price and his wife, Mary Lucille Price, counterclaimed for their damages. The Prices’ insurer, State Farm Mutual Automobile Insurance Company, which had paid the Prices $5,114.08 and had a subrogation interest in their counterclaim to that extent, joined their action as a party plaintiff.

The case was tried before a jury, which returned a verdict in favor of Jacobs for $15,000, and judgment was entered thereon. A motion for new trial filed by the Prices and State Farm was denied and this appeal ensued.

Appellants raise two issues: Whether the trial court erred by allowing Jacobs to place in evidence a notation in the records of Tim Smith, M. D., Arnold Price’s attending physician, together with testimony of the doctor explaining the terminology used in the notation; and whether the trial court erred in its oral charge to the jury.

The facts pertinent to the issues for review on this appeal have nothing to do with the details of how the automobile collision occurred or those concerning the injuries and damages suffered by Arnold Price or Jacob Jacobs.

Regarding the issue of alleged error in connection with the testimony and records of Price’s attending physician, Dr. Smith, the following appears in the record:

“MR. GASTON: [attorney defending the Prices’ counterclaim and referring to the deposition of Dr. Smith]
“We will skip on down to page thirty-two, line thirteen;
“ ‘Question: All right, sir. And did you also make a notation, Doctor, that what Mr. Price was probably going to have to have was what you referred to as a greenback poultice put on him?’
“MR. CHASON: [attorney representing Jacobs]
“We object to that question, if it please the Court, on the grounds that it is not a medical judgment or diagnosis. It exceeds the bounds of what the Doctor may give an opinion as to, as a medical expert. It invades the province of the Jury and it’s entirely speculative and incompetent, irrelevant and immaterial.
“THE COURT:
“Counsel’s objection is overruled and he has his exception.
“MR. CHASON:
“May it please the Court, if I may I would like to have the same objection to the series of questions involving this so that I don’t have to interrupt.
“THE COURT:
“All right. Counsel is entitled to that objection to the question involving the same term.
“(Reading)
“ ‘Answer: Yes, I did.’
“Question: And when you mention greenback poultice, Doctor, are you referring to money?
“Answer: Yes.
“Question: All right, sir. And that was your notation in your office records from the occasion that you had a visit from Mr. Price back in May 23, 1977?
“Answer: That is correct.”

Also admitted into evidence over objection were medical records of Dr. Smith concerning Mr. Price containing the following notation:

“5-23-77 B/P 130/86 Still complaining of his low back hurting him a good bit, he exaggerates the pain and motions when he bends and moves, I do not know what we will do with this guy, he is probably going to have to have a greenback poultice put on him.”

Appellants contend the foregoing evidence invaded the province of the jury because it called for a speculative conclusion on the part of Dr. Smith about matters outside his training and experience.

We are not convinced it was error to admit this testimony. Dr. Smith treated Price following the accident; he was qualified as a medical expert, and testified about medical notes made at the time of, and based upon, his treatment of Price.

The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court. Expert opinion evidence should not be admitted unless it is clear that the jurors themselves are not capable from want of experience or knowledge of the subject matter to draw the correct conclusion from facts proved. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). However, expert opinion evidence may be helpful regarding the validity of a patient’s complaints of pain because jurors’ lack of experience or knowledge of the subject might prevent their drawing correct conclusions from facts proved. Yates v. Christian Benevolent Funeral Homes, Inc., 356 So.2d 35 (Ala.1978).

We will not disturb the trial court’s ruling on the admissibility of expert testimony because, from the record, it is apparent there was no clear abuse of discretion in that regard. Southern Railway Co. v. Roberts, 380 So.2d 774 (Ala.1980).

Rule ARCP, 44(h), provides:

“ * * * Any writing or record, whether in the form of an entry in a book or otherwise, made as memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if it was made in the regular course of any business, profession, occupation, or calling of any kind, and it was the regular course of the business, profession, occupation or calling to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. * * *”

The Code is to the same effect. § 12-21-43, Code 1975. Evidence of a doctor’s diagnosis contained in such records has been recognized by this court as admissible as an “act, transaction, occurrence or event.” Bailey v. Tennessee Coal, Iron and Railroad, Co., 261 Ala. 526, 75 So.2d 117 (1954).

Clearly the doctor was otherwise qualified to give expert opinion testimony regarding whether or not his patient was malingering or feigning injury. We cannot say that admitting the medical records and portions of the deposition explaining the notation in the records was an abuse of discretion upon the part of the trial court. The notation amounts to no more than a shorthand rendition to the effect that in the doctor’s opinion Price was malingering or feigning pain. If the notation is also construed to contain his opinion of his patient’s motives we see no prejudice, under the circumstances, in the language used. See Peo ple v. Gorgol, 122 Cal.App.2d 281, 265 P.2d 69 (1953). Therefore, even if it might be considered error, it is harmless error. Rule 45, ARAP.

The second issue is whether the trial court erred in its supplemental oral instructions to the jury.

After some deliberation the jury informed the trial court that it had a question. The following occurred.

“THE COURT:
“Let the record show that the bailiff informed the Court that the Jury had a question. The Court is not [sic] convened all parties and counsel present. Yes, what is your question?
“JURY FOREMAN:
“Well, just-we have had all of us are agreed upon with the evidence produced that we just can’t figure out who is right and who is wrong. We think they are both responsible but we think they should be compensated. I don’t think either of them intended to have the accident. We have not come to an agreement but a suggestion that we-anyway, could we pay both of these parties?
“THE COURT:
“Mr. Foreman, your position is restricted that the jury must find a verdict or not find one. That is you must find a verdict within the realm of for the Plaintiff or for the Defendant or Cross-Plaintiff or Cross-Defendant or if the Jury is unable to render a verdict then we have another procedure that we use and while the Jury is ultimately the trier of the facts and only the Jury can try the facts its prerogative is within that perimeter. That is to say its duty is confined to those limits.
“THE JURY FOREMAN:
“But there has to be a right or wrong?
“THE COURT:
“No, sir, the Jury-you may decide if you will sit down I will reinstruct the Jury as to the form of verdict.
“If you find for the Plaintiff, Mr Jacobs, the form of verdict would be; We the Jury find for the Plaintiff and his name and fix his damage at so many dollars as I have instructed you. There are two lawsuits; One of them is a suit by Mr. Jacobs against the. Defendant Price. The other is a counter suit by Mr. Price and by Mrs. Price against Mr. Jacobs. If in the suit by Mr. Jacobs against Mr. and Mrs. Price you find for Mr. Jacobs the form of your verdict would be as I have instructed you. If you find that Mr. Jacobs is not entitled to recover on that suit against Mr. or Mrs. Price then the form of your verdict would be; We the Jury find for the Defendant or the Defendants and name their names, Mr. Price or Mrs. Price or both of them. Then there is a second case which is a counter suit in which Mr. Price and Mrs. Price have sued Mr. Jacobs. In the event that you find in favor of Mr. or Mrs. Price the form of your verdict would be; We the Jury find in favor of Mr. Price, his name, or Mrs. Price or both their names and against Mr. Jacobs or you can call him the Defendant or you may call him the Counter-Defendant and fix their damages or his or her damages at so many dollars. If you find in favor on the counter claim against Mr. Price and Mrs. Price on the counter suit and in favor of Mr. Jacobs then the form of your verdict would be; We the Jury find in favor of the Defendant Jacob Jacobs.
“Now, to each of these verdicts, that is to say each of these two lawsuits, has been raised the defense of contributory negligence. If there is contributory negligence that contributed to the cause of the party who you are then considering you may not find for that complaining party. And the form of your verdict would have to be; We the Jury find in favor of the Defendant Jacob Jacobs or we the Jury find in favor of the Defendant or Defendants Price. But you may not find in favor of two of them at once. I am also narrowly confined as to the nature of the instructions.”

In behalf of the Prices Mr. Chason made the following objection:

“MR. CHASON:
“I object on the grounds that the Court improperly instructed the Jury as to the verdict for the Plaintiff and improperly instructed the Jury as to a verdict for the Counter-Plaintiff. But it’s my impression of the overall charge that it left the Jury in the position of leaving-that they cannot find against both the Plaintiff and the Counter-Plaintiff. In fact, returning a verdict in favor of the-well, returning a verdict against the Plaintiff and against the Counter-Plaintiff. I think the Court’s instructions tells the Jury that you must find for the Plaintiff or for the Counter — Plaintiff or you must say that we cannot agree on any of it.”

Appellants complain that the trial court’s charge “[b]ut you may not find in favor of two of them at once” left the jury with the impression that it must find in favor of one of the parties or the other. Read in its entirety and looking to the probable total effect of the entire oral charge we cannot say the jury was misled or that appellants were prejudiced by it or the supplemental instructions. We must look to the total effect of the entire charge to determine if there is reversible, error. Taylor v. Owen, 294 Ala. 543, 319 So.2d 679 (1975). We fail to find reversible error after looking to that total effect, after examination of the entire cause, particularly in light of Rule 45, ARAP.

The judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. MADDOX, Justice

text:
    William G. MARSHALL and Rhonda Carolyn Marshall v. Rodney K. CROCKER, as Guardian of Ray G. Crocker, a person of unsound mind.
    79-40.
    Supreme Court of Alabama.
    Aug. 22, 1980.

      Norborne C. Stone, Jr. of Stone, Partin & Granade, Bay Minette, for appellants.
    Francis A. Poggi, Jr., Fairhope, for appel-lee.
   FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of Baldwin County holding that there was no fraud in the sale of a house that had been damaged by fire. We affirm.

In 1977, through a real estate broker, the Marshalls bought a 15-year-old house from Rodney K. Crocker, as Guardian of Ray G. Crocker, a person of unsound mind. (There was neither contact nor negotiation between the Marshalls and Crocker.) The purchase price of the house was paid by a cash payment, a first mortgage and a second mortgage to Crocker payable in eight months.

About two weeks after the Marshalls moved into the house, Mr. Marshall discovered that there had been a fire in the attic. He called the broker, and asked him, “Did you know there was a fire over here?” The broker replied, “No, I didn’t.” Subsequently, the broker went to the house, inspected the attic, and, indeed, found that there had been a fire there. (The evidence shows that the fire occurred in 1971.) Nothing more was said or done by either Marshall or the broker until the broker sought to help Crocker by calling Marshall about paying the second mortgage. At that time, a year had passed by, and the mortgage was in default. Marshall let it be known that he was not going to pay because he felt like some fraud had been involved. The broker offered to purchase the house from Marshall. No agreement between them was ever consummated. Eventually, Crocker began foreclosure proceedings.

After foreclosure was begun, Marshall brought suit to enjoin, alleging misrepresentation and deceit in the sale of the house to him.

Rodney Crocker testified that Ray Crock-er lived there until he went to a nursing home; that while the roof sagged there had been no damage from leakage; that the sagging was normal for that age house, and could result from the way the roof was constructed. An expert witness testified that repair done after the fire was structurally sound, but 40 to 50 percent of the area where work needed to be done is not structurally sound. He opined that the roof structure was not structurally sound and the cause of this was the fire.

On the question of misrepresentation of the soundness and the fire, the evidence shows that neither the broker nor the owner said anything. Moreover, the evidence shows that Marshall did not inquire about the fire when the house was shown to him on two occasions; he made no effort to inspect the attic before the sale-his inspection was two weeks after he moved in, and at that time he found evidence of the fire.

The issue presented on appeal is whether the trial court erred by finding that there was no actionable fraud committed by the seller when he did not reveal the fire damage. We hold that it did not.

Mr. Justice Clopton stated in Jordan & Sons v. Pickett, 78 Ala. 331 (1884), that:

The fraud, which entitles a purchaser of property to a right of action for deceit, ordinarily, consists in the misrepresentation or concealment of a material fact, on which he has a right to rely, and does rely, operating an inducement to the contract, and whereby he is deceived and injured. It is not indispensable that the misrepresentation or concealment shall be the sole inducement; it is sufficient if it materially contributes, and is of such character that the purchaser would not have consummated the contract, had he known the falsity of the statement, or the fact suppressed. In case of an active representation, knowledge of its falsity is not essential. A contract, obtained by misrepresentation, may be avoided, or an action for damages sustained, though the asserting party may not know the statement is false. It is as much a fraud at law to affirm as true what is untrue, though not known to be so, as to assert what is known to be untrue. The law imposes the duty of ascertaining the truth of the statement before making it, and demands in case of omission that the representation should be made good.
While it may be more difficult to define, with clearness and precision, the distinction between suppression and falsehood as constituting actual fraud, it may be said, generally, that silence, in order to be an actionable fraud, must relate to a material matter, known to the party, and which it is his legal duty to communicate to the other contracting party, whether the duty arises from a relation of trust, from confidence, inequality of condition and knowledge, or other attendant circumstances. Though a concealment may be tantamount to a misrepresentation, and equally effective to deceive or mislead, every omission to disclose facts, though material, is not necessarily fraudulent. The rule, best adapted to the proper conduct of business transactions, lies between the two extremes-the rule of the civil law, which requires the seller to disclose every defect known to him, that affects the merits of the contract, or which the purchaser is interested in knowing; and the rule adopted in some of the cases, that it is incumbent on the purchaser, if he does not take a warranty, to ask for information, and that he can not complain of a failure to communicate facts, which he could have learned by inquiry.
In Steele v. Kinkle, 3 Ala. 352, fraudulent concealment is defined to be, “the failure to disclose a material fact, which the vendor knows himself, which he has a right to presume the person with whom he is dealing is ignorant of, and of the existence of which the other can not, by ordinary diligence, become acquainted.” Concealment implies design, or purpose. That it may furnish a sufficient cause of action, the fact suppressed must not be only material, but the materiality must either be known to the seller, or the facts must so constitute an element of the value of the contract, as to authorize the inference of knowledge of its materiality. The concealment must be for the purpose of continuing a false impression or delusion under which the purchaser has fallen, or of suppressing inquiry, and thereby effecting a sale-with the intention to conceal or suppress-and it must operate an inducement to the contract.
Though the intention is a question for the jury, where the fact and its materiality are known to the seller, and the suppression is willful or intentional, it may be regarded as done with an intention to deceive or mislead, and the purchaser not having equal access of information, may be regarded as defrauded. When the means and sources are equally accessible to both parties, the ignorance of the purchaser is regarded as self-deception, unless art or artifice is employed to prevent investigation, or stifle information. But, when the access to information is not equal, as when it rests in the personal knowledge of individuals unknown, or exclusively in the knowledge of the seller, the concealment of a known material fact, though without art or artifice, if willful or intentional, is, on the same principle as a misrepresentation not known to be false, sufficient to sustain a right of action.

The rules of law stated in Jordan were reiterated by Mr. Justice Somerville in Corry v. Sylvia Y Cia, 192 Ala. 550 (1915). They are applicable to this case.

Here Marshall could have, by ordinary diligence, easily discovered evidence of the fire. He was not prevented from inspecting the attic before he bought the house. As a matter of fact, the real estate agent testified that Marshall inspected the house inside and out, and had ample opportunity to look at anything he wanted to, including the attic.

We opine that his failure to inquire, plus his failure to inspect, negates actionable fraud under the facts of this case. It does not appear that Marshall was unlearned or in any way afflicted with any physical or mental disability. Moreover, we do not find any evidence of intent to deceive either on the part of the real estate broker or the seller.

The trial court heard the case ore tenus, and under our standard of review, its findings will not be disturbed unless plainly erroneous. Adams v. Bethany Church, 380 So.2d 788 (Ala.1980). We find no errors warranting a reversal of the court’s decree.

AFFIRMED.

TORBERT, C. J., and EMBRY and BEATTY, JJ., concur.

MADDOX, J., concurs in the result.

ALMON and SHORES, JJ., concur with MADDOX, J.

JONES, J., dissents.

MADDOX, Justice

(concurring in the re-

sult).

I concur in the result. This case was heard ore tenus and, on review, we indulge in a presumption that the findings of fact which are supported by evidence have the force and effect of a jury verdict.

ALMON and SHORES, JJ., concur.


author:
PER CURIAM.
      JONES, Justice MADDOX, Justice

text:
    NINA DEVELOPMENT CORPORATION et al. v. JEFFERSON COUNTY, Alabama. JEFFERSON COUNTY, Alabama v. NINA DEVELOPMENT CORPORATION et al.
    79-41, 79-104.
    Supreme Court of Alabama.
    Aug. 22, 1980.

      Charles Cleveland of Gordon, Cleveland & Gordon, Birmingham, for appellants in No. 79-41.
    No brief for appellants in No. 79-104. Edwin A. Strickland, Jefferson County Atty., and Gregory T. Bittner, Asst. County Atty., Birmingham, for appellee cross appellant.
   PER CURIAM.

The primary issue presented in these appeals is the constitutionality of Act No. 776, Acts of Alabama 1973, which provides that in counties having a population of 500,000 or more the compensation paid for property taken by condemnation for sewer lines shall be reduced by the value of any enhancement to the remaining property of the owner that such sewer line may cause. This Act currently co-exists with § 18-1-18, Ala.Code 1975, which reads in pertinent part:

“The amount of compensation to which the owners and other parties interested therein are entitled must not be reduced or diminished because of any incidental benefits which may accrue to them or to their remaining lands in consequence of the uses to which the lands to be taken or in which the easement is to be acquired will be appropriated.”

We find Act No. 776 to be constitutional for the reasons discussed herein.

A secondary issue presented is whether the trial Court may properly grant a partial new trial after a jury verdict. We find that under the circumstances of the instant case the trial Court’s action in so ruling was improper.

Appellants are owners of an eighteen-acre tract of vacant land in eastern Jefferson County. In order to obtain land for installation of sewer lines, Jefferson County filed an application for condemnation in the Probate Court. Some 1.09 acres of Owners’ property was subject to the condemnation (a construction easement using .35 acres for a period of two years and a permanent easement utilizing .74 acres). The application was granted by the Probate Judge; the commissioners fixed damages at $5,000; and judgment was entered for owners in that amount.

Owners appealed to the Circuit Court and requested a jury trial. Owners’ testimony showed the difference in value of their property before and after the taking of the permanent easement was between $54,400 and $100,000, and the fair rental value of the construction easement was between $5,900 and $10,000.

The expert witness for the County was permitted to testify, over Owners’ objection, that the sewer line which the County proposed to install would enhance the value of Owners’ remaining property. The trial Court refused to give the jury an instruction requested by Owners that the jury could not consider any incidental benefits to the remaining land. Owners objected to the trial Court’s instruction that the jury should consider such enhancement. The jury returned a verdict that Owners were not entitled to any damages, and the Court entered judgment of condemnation for the County with no damages awarded to the Owners.

Upon consideration of the Owners’ motion for new trial, the trial Court granted a new trial on the issue of damages for the construction easement and denied a new trial as to damages for the permanent easement. Owners appeal from the judgment and from the order denying their motion for a new trial as to the permanent easement. The County cross appeals from the or^er granting a new trial as to damages for the construction easement.

The County contends that the constitutionality of the Act is not properly before the Court. We do not agree. Owners were apprised of the County’s reliance on Act No. 776 late in the trial (just prior to closing statements, according to Owners’ arguments before this Court), although the term “enhancement” was used from opening statements forward. Owners first raised the constitutional question in their motion for new trial. This Court is satisfied that this issue was raised as soon as practicable and thus was timely raised.

We find Act No. 776, Acts of Alabama 1973, to be a general law of local application and to be constitutional under the test set forth in Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). Reynolds is the applicable standard here rather than Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), because the Act in question was passed prior to Peddycoart, which was not given retroactive effect. The Court in Reynolds described the test, saying:

“The effect of all of our decisions, in short, has been that where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, it is a general law, although at the time it may be applicable to only one political subdivision of the state; but that if the classification bears no reasonable relation to the difference in population, upon which it rests, in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law, and, in fact, is a local law, it is then in plain violation of the Constitution and cannot be upheld.” Reynolds, supra; 204 Ala. at 39-40, 85 So. at 467.

Owners argue that there should not be varying standards within the State for the taking of private property for public use, and that in water and sewer development cases this standard is governed by a general law (§ 18-1-18). Although we are impressed with the persuasiveness of this argument, we cannot say that the Act fails to meet the criteria set out in Reynolds. In the provision of sewer service, the Court finds a rational link between the services provided and the population requirement of the Act. Density of population does play a role in the determination of need for such services, and the ability of a governmental unit to provide the necessary quantity of such service would be directly affected by the costs involved. Allowing the county to offset the enhancement value in determining the compensation to the affected property owners would encourage and facilitate the provision of such services in highly populated areas. Thus, the reasonable relationship to the purpose of the Act is established. We must affirm the lower Court’s judgment allowing enhancement as a set-off in determining just compensation to the appellant property owners. We repeat for emphasis: Our holding is based upon pre-Peddycoart precedent.

We turn now to the secondary issue of the propriety of the trial Court’s granting of a new trial on the issue of damages for the construction easement and its denial of new trial on the issue of damages for the permanent easement. ARCP 59(a)(1) states that “[a] new trial may be granted to all or any of the parties and (1) on all of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Alabama.” We find this stricture fully applicable in the instant case.

The trial Court was without authority to separate the two aspects of this case and to grant a partial new trial. Having granted the owner’s motion for a new trial, it was bound under the mandate of Rule 59 to grant a new trial as to the entire cause.

Accordingly, as to both appeals, the judgment below is reversed and remanded as to the granting of a new trial.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

JONES, J., concurs specially.

MADDOX, ALMON and SHORES, JJ., dissent.

JONES, Justice

(concurring specially):

I concur specially in order to make three points:

1) I agree that pre-Peddycoart standards require our affirmance of the trial Court’s ruling upholding the constitutional validity of Act No. 776. Our policy decision to give Peddycoart quasi-prospective effect only produces this strange result; but this strange result is far better than the disastrous effects that would result from a decision to invalidate scores of legislative acts.

2) I do not agree that Rule 59, under all circumstances, proscribes the bifurcation of issues for purposes of a new trial in which there has been a trial by jury.

The rule was designed to prevent the separation of the liability issue from that of damages. The Committee Comments concerning this provision state:

“This departure from the Federal Rule is intended to cover the situation where plaintiff sues the defendant in an action where liability is, at best, weak, and the injuries are terrible. Plaintiff demands a jury and the jury compromises by giving the Plaintiff a small award. Plaintiff moves for a new trial and points to the pitifully small verdict in face of horrible injuries. . . . Under this rule, the trial court would not have the right to grant a new trial only on the issue of damages in a jury situation.” Committee Comments, ARCP Rule 59.

Such is not the situation in the instant case. Liability is not in issue. Neither the County’s legal right to condemn nor its duty to compensate the property owners is in question, only the measure of that compensation. Nevertheless, both parties (because of the cross appeal posture of the case) agree that the trial Court erred in the partial new trial aspect of its order; and, under all the circumstances, I concur in the opinion of the Court to reverse and remand the entire cause for a new trial on both the permanent damages and the construction easement damages aspects of the case.

3) Finally, an additional comment on the “enhancement of value” rule may be helpful. Although the substantive law of damages is not here in issue, Footnote 1 of the Court’s opinion is entirely appropriate. The mere validity of Act No. 776 in no wise alters the law of damages as it relates to charging the landowner with the increased value of his remaining parcel against the damage resulting from the taking. It is not every damage that is recoverable and it is not every enhancement that is chargeable as an offset. Only those damages which are not common to all affected landowners generally (i. e., those damages which are special or unique to the particular landowner in question) are recoverable. See, State of Alabama v. Williams, 386 So.2d 426 (Ala. 1980).

The “flip side” of the rule necessarily obtains in the case of enhancement in value. Invariably, the construction and maintenance of sewer or water lines through a community can be said to enhance generally the value of all property in the community served by the facility, while only a portion of the landowners in the community are required to give up land for its construction. To require an owner whose land is taken to offset his special damages by the value of his common enhancement to the remaining tract would cast on the few a disproportionate share of the total burden of the improvement. Thus, the enhancement offset permitted in Jefferson County pursuant to Act No. 776 does not alter, but accords with, the general law of damages which predated § 18-1-18, and which permits those elements of special enhancement in value, unique to the property in question as opposed to those elements common to all affected property in general, to be proved as an offset against severance damages.

The respective parties to this action are represented by extremely able and competent counsel. Upon remand, ample opportunity will be afforded for additional research and briefing for the purpose of assisting the trial Court in instructing the jury on this aspect of the retrial.

MADDOX, Justice

(concurring, in part; dissenting in part).

I concur in the opinion in its entirety with exception of that portion of the opinion which holds that the trial court was without authority to separate the two aspects of the case and to grant a partial new trial.

As I view the facts, neither the county’s legal right to condemn nor its duty to compensate the property owners is in question, only the measure of that compensation. Since we uphold the validity of the ordinance, and since a jury has determined the amount of compensation due to the owners, I am of the opinion that the issues involved in case #79-41, Nina Development Corporation v. Jefferson County, have already been litigated. I am of the opinion that a new trial could be held on the issue of damages for the construction easement separately because I do not believe that the issue of damages for the permanent easement is so intertwined with the question of damages for the construction easement that the two issues could not be tried separately. Consequently, I must respectfully dissent from that portion of the opinion which would grant to Nina Development Corporation a new trial on the question of damages for the permanent easement.

      . This finding of constitutionality of Act No. 776 is not to be construed as changing, or in any way affecting, the general rule in condemnation cases which permits only special as opposed to common damages. See, State of Alabama v. Williams, 386 So.2d 426 (Ala. 1980).


author: JONES, Justice.

text:
    Roderick H. RAGLAND et al. v. Ora Ragland WALKER et al.
    79-200.
    Supreme Court of Alabama.
    Aug. 22, 1980.
    Henry Sanders of Chestnut, Sanders & Sanders, Selma, for appellants.
    William H. Johnston, Jr. of Johnston, Johnston & Moore, Huntsville, for appel-lees.
   JONES, Justice.

This is a case of first impression in that heretofore this Court has not been asked to interpret § 35-6-100, et seq. (Act No. 79-334, §§ 1, 2, 3, 4, and 5, 1979 Acts of Alabama, V. I, p. 532). Act No. 79-334 became effective July 17, 1979. Section 1 (§ 35-6-100, Ala.Code 1975), provides:

“Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than ten (10) days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.”

Before we address the specific issue being presented, a basic understanding of the statute itself will be helpful. While the Act, particularly § 1, which is codified as § 35-6-100, is inartfully drafted, the purpose of its provisions is readily discernible. The prior statutory scheme, as judicially interpreted (exemplified by English v. Brantley, 361 So.2d 549 (Ala.1978)), hampered the efforts of nonconsenting interest holders, in partition proceedings under § 35-6-20, to preserve estates.

This deficiency can be dramatized by a simple, and ofttimes repeated, example: Suppose six children of intestate parents wish to preserve the family property intact, but the seventh child wants his share of the inheritance. By invoking § 35-6-20, he can enforce either a partition in kind or a sale of the whole and division of the proceeds. Except in the rarest of circumstances which permit judicial equitable partition, the usual end result of such proceedings is the passing of title to a stranger.

This amendment to the partition statute engrafts a viable option whereby, in the given example, the six nonconsenting children, upon compliance with the prescribed notice, may invoke the authority of the court to purchase the interest of the petitioner. The key words are “the court shall provide for the purchase [of the petitioner’s interest] by the other joint owners . . .”

Admittedly, § 35-6-100 is not a model of draftsmanship. Initially, it inadvertently speaks only of “the filing of any petition for a sale for division,” when, obviously, it means to address the procedure authorized by § 35-6-20, et seq., for partition or sale for division. This technical inaccuracy is of no material consequence. Likewise, the term “filing for the petition,” though an inapt phrase, is self-correcting, and should be construed to read “filing the petition for relief.” Furthermore, this first sentence of § 35-6-100 could be grammatically improved, and thus made clearer, by setting off with commas the phrase “. . .or any others named therein who agree to the sale . . . .”

From a more substantive point of view, we should also observe that the amended statutory scheme is no “cure all.” In the hypothetical situation used above, if less than all of the nonconsenting defendants agree to purchase the plaintiff’s interest, the invocation of this statute would result only in a consolidation of certain interests which, of itself, would not avoid the subsequent operative effect of the already existing statutory procedure. Indeed, the facts of the instant case (even assuming the Appellant Ragland could have raised the purchase money) is illustrative of this very point. The remaining nonconsenting owners could insist, first, upon partition in kind, or, failing that, upon sale for division for the proceeds.

The subject property in this case was owned by Sallie Ragland, consisted of several noncontiguous tracts, and was left by her to her heirs-at-law. Twenty-four heirs, with interests ranging from one-eighth (Vs) to one three-hundred-twentieth (’/32o), and three other persons with dower interests, are involved.

Looking to § 35-6-100, the trial Court granted Appellant Ragland’s request to purchase the interests of Plaintiffs and of any Defendants who wished to sell. This order provided in the alternative for the sale of the land at public auction thirty days after the date of the order in the event Ragland failed to purchase the property. The proceeds of such public sale were to be divided among the heirs according to the interest of each. Ragland failed to raise the purchase money, thus triggering the alternative provision of the order-sale.

Our review of the record shows that the evidence before the trial Court was confined to the identity of the heirs, the amount of their interests, the fair market value of the property, and the amount of attorneys’ fees. The issue before this Court thus becomes the propriety of the trial Court’s decision that the land could not be equitably partitioned and therefore must be sold. We find there was no evidence taken on the issue, and the record contains no stipulation concerning this point.

It is contended by Appellees that Roderick Ragland waived his right to object to sale and division of proceeds by invoking § 35-6-100, and offering to buy. In view of the specific denial in his answer that the land could not be equitably partitioned, we find that the offer to buy did not constitute a waiver of rights concerning the remedy of partition. Moreover, such an offer by one Defendant could not compromise the rights of the others to pursue the remedy of partition. Only the three minor Defendants, through their guardians ad litem, elected to have their interests purchased by Roderick Ragland. The remaining Defendants in no way acquiesced to a sale. In fact, Appellant Daisy Eston made specific written objection to the order of public sale.

Given this failure to consummate the sale under the provisions of § 35-6-100, we look to other available relief. In this situation, § 35-6-103 refers the trial Court “to its traditional practices.” For guidance concerning these traditional practices, we turn to § 35-6-20, which has been on the books since 1886, and to the case law developed thereunder.

This Court, in Roper v. Belk, 276 Ala. 370, 162 So.2d 465 (1964), gives a good synopsis of the law on this point, saying:

“Partition of land between joint owners or tenants in common is a matter of right, but the alternative right to have land sold for division is statutory, and is conditioned upon averment and proof that the property cannot be equitably divided or partitioned among them. When this condition appears, the right to sell for division is a matter of right, but if this condition is not proven, no sale for division should be ordered. Leonard v. Meadows, 264 Ala. 484, 88 So.2d 775; Meador v. Meador, 255 Ala. 688, 54 So.2d 546; Hall v. Hall, 250 Ala. 702, 35 So.2d 681; Tit. 47, §§ 186, 210, Code 1940.”

See, also, Wood v. Barnett, 208 Ala. 295, 94 So. 338 (1922). The trial court cannot make a finding that partition is not possible without some evidence before it concerning that issue.

The judgment below is hereby reversed and the cause is remanded for further consideration in accordance with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., . and MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

BLOODWORTH, J., not sitting.

      . It is interesting to note that the publishers of the Code had no apparent difficulty in codifying Act No. 79-334 as Art. 4A under T. 35, Chapter 6, “Partition,” and subtitling Art. 4A, “Purchase of Interest of Joint Owner Filing for Partition.”