author: PER CURIAM.

text:
    Rebecca M. HATTON and W. J. Hatton v. CHEM-HAULERS, INC. et al. APACHE EXPRESS, INC., a corporation, and Jerry L. O’Neal v. Rebecca M. HATTON and W. J. Hatton.
    78-593, 78-594.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Rehearing Denied Jan. 30, 1981.

      Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellants Rebecca M. Hatton & W. J. Hatton.
    Harvey Elrod of Hutson & Elrod, Decatur, for appellants Apache Express, Inc., etc., et al.
    William M. Bouldin of Guin, Bouldin, Porch, Maddox & Alexander, Russellville, for appellees Chem-Haulers, Inc., et al.

      . Listened to tapes of oral arguments.

   PER CURIAM.

Apache Express, the corporate owner/lessor of a tractor/trailer, and Jerry O’Neal, the driver of the tractor/trailer, appeal from a jury verdict and judgment of $50,-000 rendered against them and in favor of Rebecca Hatton and her husband, W. J. Hatton, for injuries sustained by Mrs. Hat-ton when the car in which she was driving collided with the rear end of the parked tractor/trailer. The Hattons also appeal, contending the court erred in several respects including the failure of the court to charge the jury that O’Neal was an agent of Chem-Haulers as a matter of law.

On November 10, 1977, around midnight, Mrs. Hatton, while driving her 1977 Vega station wagon, collided with the left rear wheels of a tractor/trailer truck parked partly on the shoulder and on the pavement of Franklin County Road 48.

The tractor/trailer was parked in a well-lit area which contained overhead vapor lights. It also had all marker lights and four-way flashers on. Testimony by a police officer who investigated the accident was to the effect that the road was well lit and a person driving in the direction in which Mrs. Hatton was driving would have had good visibility.

Mrs. Hatton remembers nothing of the impact of her Vega with the tractor/trailer, and has no memory of anything about the accident.

The tractor/trailer involved in the accident was being driven by Jerry O’Neal pursuant to a trip lease between the owner of the tractor/trailer, Apache, and the lessee, Chem-Haulers. O’Neal was to haul a load of silicone for Chem-Haulers from Selma to Russellville.

Upon arrival in Russellville, O’Neal found the plant where he was to unload closed. He parked the tractor/trailer partly on the shoulder of the road and partly on the roadway itself. This road was asphalt surfaced with two lanes. O’Neal left to tell the guard at the plant that he was going to get something to eat and would be back. At this time the collision occurred which injured Mrs. Hatton.

The Hattons sued Apache, O’Neal and Lee Meacham along with certain fictitious defendants. The complaint charged these defendants with negligence and wantonness in the parking of the traetor/trailer on a public road. Meacham was dismissed as a party.

Apache contended that Mrs. Hatton was contributorily negligent and that Chem-Haulers had sole control over O’Neal at the time and place of the collision. In its answer, Chem-Haulers denied that O’Neal was its agent, servant or employee, and that Chem-Haulers had no control over O’Neal’s actions.

At trial the Hattons attempted to prove that O’Neal was the agent of both Apache and Chem-Haulers. Evidence was presented with respect to negligence, contributory negligence, agency and damages. At the conclusion of the Hattons’ evidence, Apache and Chem-Haulers filed written motions for directed verdicts. The trial court granted these motions but only as to the wanton misconduct claim.

Written requests for jury instructions were filed. Certain of Apache’s requested instructions were refused by the court. Apache objected to this refusal. Chem-Haulers also objected to the court’s refusal to give its requested jury charges.

The jury returned a verdict against O’Neal and Apáche. Both Apache and the Hattons filed alternative motions for judgment notwithstanding the verdict or new trial. O’Neal also filed a motion for new trial.

The trial court denied all motions. O’Neal and Apache appeal from the verdict against them and the Hattons appeal the judgment in favor of Chem-Haulers and the order denying them a motion for new trial.

The Hattons’ first contention of error is that the trial court erred in overruling their motion that their requests for admissions be admitted due to Chem-Haulers’ failure to respond within the time frame stipulated by the trial court. This assertion is based upon Rule 36(a), ARCP, which states:

* * * The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. * * *

And Rule 36(b), ARCP, states:

* * * Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. * * *

Whether the failure to respond admits the matter contained in the request for admissions is discretionary with the trial court. This Court has stated in Evans v. Insurance Co. of North America, 349 So.2d 1099 (Ala.1977):

* * * That such discretion exists under Rule 36(b) is established not only by the language of that rule
* * * the court may permit withdrawal or amendment when the presentation of the merits of the action will be sub-served thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits . ..
but by the federal precedents calling for the exercise of that discretion even in the absence of a motion, withdrawal or amendment. French [v. U. S., 416 F.2d 1149 (C.A. 9th)], [United States v.] Cannon, [363 F.Supp. 1045] and Pleasant Hill [Bank v. United States, 60 F.R.D. 1 (D.C. Mo)], supra. This position does not run counter to our recent decision in Billingsley v. Gordon, 340 So.2d 743 (Ala.1976), because the majority opinion dealt with the failure of the trial judge to comply with Rule 56(c), ARCP.
No hard and fast rule can be adopted in these instances. A ten-day failure may, indeed, cause a delay which works to the prejudice of the requesting party. On the other hand, a ten-month failure may result in no prejudice at all. The question, then, is not whether the party requested has proved extenuating circumstances as an excuse for his delay; it is whether the requesting party has been prejudiced by any delay caused by the failure to respond. This is the issue addressed to the trial court, and the issue addressed to this Court is whether, in the exercise of his discretion, the trial court has abused that discretion.

349 So.2d at 1103.

We find that the trial court has not abused its discretion. An examination of the record reveals that the attorney for the Hattons moved that the requests for admissions be admitted because of Chem-Haulers’ failure to respond within the time required. Chem-Hauler’s reply, to this motion, was that the matters contained in the request for admissions had already been denied at pre-trial conference. The trial court then overruled the Hattons’ motion. In light of the above, we find there has been no showing that the Hattons have been sufficiently prejudiced for us to find that the trial court abused its discretion.

The Hattons also contend that the trial court erred in submitting the question of whether or not O’Neal was the agent of Chem-Haulers to the jury when this issue was properly one of law for the court to determine.

An agency relationship depends upon the right of control by the principal over his agent. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Furthermore, whether one is the agent of another is normally a question of fact for the jury. Cashion v. Ahmad, 345 So.2d 268 (Ala.1977). The trial court, in submitting this issue to the jury, obviously decided, contrary to the Hattons’ assertions, that the evidence was in conflict and the matter was one for jury determination.

It is true, as the Hattons contend, that O’Neal stated he was under Chem-Haulers’ control at the time of the accident. However, an examination of the trip lease reveals that Apache was responsible for taxes, maintenance, fuel and workmen’s compensation of the driver. It also provided that Apache would indemnify Chem-Haulers for any claim arising from bodily injury to the driver or damage to the cargo. The trip lease further required Apache to pay O’Neal’s salary.-' It is thus apparent that a conflict of evidence exists concerning whose control O’Neal was under. We find that the trial court properly submitted the issue of O’Neal’s agency to the jury.

Apache also contends that it was entitled to a jury instruction in accordance with its theory that the making and the performance of the trip lease placed Chem-Haulers and not Apache in control of the tractor/trailer at the time of the collision.

In support of this contention, Apache asserts that there was evidence which showed that: (1) O’Neal had placed both himself and the tractor/trailer under Chem-Haulers’ control without any right of control reserved in Apache; (2) Chem-Haulers had exercised this control; and (3) the trip lease incorporated federal regulatory provisions which provide that the lessee has exclusive possession, control and use of the equipment.

The following is the pertinent part of the jury instruction given by the trial court:

Now, in this case, you have something which we call agency. Now, I will charge you that, of course, in this case you have three defendants and the driver of the vehicle, which you have heard and is one of the defendants and for either of the other defendants to be found guilty of negligence, you would have to find that the driver of the vehicle was guilty of negligence and that he was the agent or employee of one of the other defendants and the law is that if a person has an agent and that the agent within the line and scope of his employment does a negligent act, then the principal is held liable in that regard.
Now, agency is a condition existing between two persons in that one is the principal and the other is the agent. There may be an expressed agreement between the parties creating this condition or you are entitled to look at all the facts and evidence concerning agency to determine if there was agency and if so, who, of course, was the principal of the agent and, of course, who the agent was.
Now the criteria to be looked at or for is who has the supreme choice, control, and discretion of the agent. Who has the direction of the agent and whose will the servant or agent represents, not merely the ultimate result but in all of its detail. For a person to be an agent, the other party or principal must retain or have the right to direct the manner in which the business undertaken shall be done as well as the result to be accomplished and, of course, in the consideration of agency, you can consider all the evidence, which has been introduced concerning that question and I will charge you that it is possible, of course, for there to be multiple agents or there can be multiple principals in control of one agent. [Emphasis added.]

The trial court instructed the jury to consider all the facts and evidence in its determination of the agency issue. This charge necessarily encompasses the evidence concerning the trip lease and I.C.C. regulations as they pertain to the agency issue. The trial court’s failure to give Apache’s requested charges was, therefore, not reversible error.

Apache contends that Mrs. Hatton was contributorily negligent as a matter of law and that the trial court was in error in submitting this issue to the jury. The factors cited by Apache in support of this contention are that Mrs. Hatton had sufficient room in which to pass the parked tractor/trailer and that her vision was unobstructed.

Contributory negligence requires a finding that the party charged has (1) knowledge of the condition; (2) an appreciation of the danger under the surrounding circumstances, and (3) a failure to exercise reasonable care by placing oneself in the way of danger. State Farm Mutual Auto Ins. Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964); Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1978).

The burden of proving contributory negligence and that it proximately caused the injury is on the defendant, and a determination of the existence of contributory negligence is for the jury where there is a scintilla of evidence to the contrary. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978).

The question of whether the plaintiff is guilty of contributory negligence is a matter of law, and therefore one for the court to decide, only when the facts are such that all reasonable people must draw the same conclusion, and the question is for the jury when, under all the facts and circumstances, reasonable minds may fairly differ upon the question of negligence vel non. Elba Wood Products, Inc. v. Brackin, supra; Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1973).

Under all the evidence in this case we find that whether Mrs. Hatton had knowledge and an appreciation of the danger under the surrounding conditions and circumstances and whether she exercised reasonable care were questions properly submitted to the jury. It must be remembered that:

It is fundamental in Alabama law that on appeal the Court does not weigh the evidence regarding its reasonably satisfying effect on the issue tendered, but rather indulges all favorable presumptions to sustain the trial court’s conclusion ... unless it is plainly erroneous or manifestly unjust.

Elba Wood Products, Inc. v. Brackin, 356 So.2d 119, 123 (Ala.1978).

The judgment of the trial court is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES, ALMON and EMBRY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CALVERT AND MARSH COAL CO., INC., a corporation v. James Arnold PASS and Betty Pass.
    78-778.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Rehearing Denied Jan. 30, 1981.

      John J. Dobson of Nash & Walker, Oneonta, for appellant.
    Charles W. Gorham of Gorham & King, Birmingham, for appellees.
   PER CURIAM.

The appellees originally brought this action to settle a dispute concerning trespass to real property. They alleged that defendants Calvert and Marsh Coal Company and John David Calvert, president of the company, strip mined a portion of plaintiffs’ property. The complaint contained two counts — the first for “negligent trespass” and the second for “knowing, wanton and malicious trespass.”

Plaintiffs filed a motion for summary judgment “on the issue of liability.” The trial court ordered that the “motion for summary judgment insofar as same goes to liability of the defendant is hereby granted on simple negligence.” The order was based on admissions of the defendant in its answer and answers to interrogatories. The trial court further provided that a jury trial be had on the issue of damages.

Immediately prior to trial, the plaintiffs made it known they intended to offer evidence, not just on the issue of damages, but also on the wantonness of the trespass as set forth in count two of their complaint. Over defendant’s objection, the issue of liability under count two was tried before the jury. We note that the word “wanton” when used in an action for trespass is not governed by the same rules as when used in a negligence action. Here, it means simply an invasion of the plaintiffs’ premises with knowledge of the violation of plaintiffs’ rights.

The jury found for the plaintiffs and assessed damages of $25,000. The defendant Calvert and Marsh Coal Company appeals the denial of its motion for new trial. We affirm.

Defendant raises three issues on appeal. The first to be addressed is the propriety of the trial court’s allowing the introduction of evidence of wanton trespass. This hinges on the effect to be given the summary judgment granted the plaintiffs below.

Summary judgment is granted where it is shown that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), ARCP. The rule further provides a procedure for partial summary judgment where only some of the issues meet the summary judgment prerequisites. Rule 56(d), ARCP. This was employed in the instant case. Unfortunately, the summary judgment order does not set out clearly the issues which should be resolved as a matter of law.

The order speaks in terms of the simple negligence count for trespass, and does not address the second count. This leaves the impression that the second count should go to the jury. However, the order continues to say that only the issue of damages should go to the jury. It is not until the parties argue the meaning of this order in a bench conference just before trial that the trial court clarifies its intent to allow evidence on the second count.

The defendant claims the court erred in allowing evidence of wanton trespass, reasoning that the summary judgment order clearly reserved only the issue of damages to be tried. We find it unnecessary to interpret this confusing order, for defendant is precluded from asserting surprise as a ground for reversal as it failed to take certain action at trial. In particular, when evidence is introduced which surprises a party, the party must object on the ground of surprise and take steps to have the case continued or postponed. Mutual Building & Loan Ass’n. v. Watson, 226 Ala. 526, 147 So. 817 (1933); Louisville & Nashville Railroad Co. v. Abernathy, 192 Ala. 629, 69 So. 57 (1915). Nowhere in the record is it indicated that defendant cited surprise as grounds for its objection. Furthermore, the record does not indicate any attempt on the part of defendant to have the case continued. Nor does the record indicate any protest on defendant’s part that it was unprepared to try the case on wanton trespass, that the necessary witnesses were not present or that it would otherwise be prejudiced by trial on this count. Moreover, from a review of the evidence, the trial of the issues and the verdict rendered, we find no prejudice to defendant in the admission of evidence of wanton trespass.

Defendant further argues that a finding of simple trespass through summary judgment terminates the possibility of finding wanton trespass, i. e„ they are mutually exclusive. Two cases are cited in support of this proposition: Tombrello v. McGhee, 282 Ala. 408, 211 So.2d 900 (1968) and Thompson v. White, 274 Ala. 413, 149 So.2d 797 (1963). These two automobile collision cases are inapplicable here. They both held that wantonness and negligence cannot exist in the same act or omission. And, as we noted above, wantonness in a negligence action differs from that in a trespass action.

This case involves numerous, separate acts of trespass on plaintiffs’ land. While the initial entries may have been negligent, subsequent entries could well have been wanton. The testimony bears this out. When plaintiffs first learned of the trespass, it could well have been a negligent action. After plaintiffs had notified defendant the next day that it was trespassing, subsequent entries on the following days could be construed as wanton. Wantonness in a trespass action is established by the mere knowledge on the part of the defendant of his invasion of the plaintiff’s rights. Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67 (1913).

A second issue raised on appeal is whether the trial court erred in refusing to allow the defendant the right to cross-examine a witness. A close examination of the actions of the parties below will clarify the problem.

Plaintiffs called as their second witness Virgil Willett. After a series of preliminary questions, plaintiffs attempted to use the witness to introduce a photograph of the disputed property. Objections from defendant halted this line of inquiry. Plaintiffs then sought to elicit testimony as to the price of reclaiming the land after the strip mining. Once again, objections from the defendant were sustained and the intended testimony thwarted. At this point, plaintiffs requested permission to recall the witness Virgil Willett. This was granted by the trial court with no remarks, objections, or requests from the defendant indicated on the record. Plaintiffs did not recall this witness during their case, and at the close of plaintiffs’ evidence defendant made no objections in regard to its right to cross-examination. It was not until defendant had placed all of its eight witnesses on the stand that it requested to cross-examine Virgil Willett. The trial court refused cross-examination, and required defendant to take Virgil Willett as its own witness over defendant’s objections. Plaintiffs were then allowed to cross-examine this witness.

The right to cross-examination in a civil proceeding is guaranteed by Rule 43(b) of the Alabama Rules of Civil Procedure. However, even defendant itself recognizes an exception when a party has had an opportunity for cross-examination, but failed to exercise the right. The failure of defendant to timely object or request cross-examination of Virgil Willett amounted to an implied waiver of the right. The defendant made no objection or request for cross-examination at the time Virgil Willett was excused from the stand. Nor did it make any objection or request for cross-examination of the witness at the close of the plaintiffs’ case, when it was evident that the plaintiffs were not going to recall the witness. It was not until the close of defendant’s case that it decided to assert the right.

Under these circumstances, the trial court did not abuse its discretion in disallowing defendant’s recall of Virgil Willett for cross-examination so late in the trial. Such a recall of a witness is within the sound discretion of the trial court. Cf., Baxter v. State, 360 So.2d 64 (Ala.Cr.App.1978) (trial court did not abuse its discretion in disallowing defendant’s further cross-examination of prosecutrix at the end of trial after defendant had reserved the right to recall the witness).

In any event, assuming there was error, it was harmless and thus not reversible error. Rule 45 ARAP, Rule 61 ARCP. There was no actual prejudice to the defendant in refusing his belated cross-examination of Virgil Willett since the witness was not able to testify to any matters of significance against the defendant in the first place.

A third issue is whether the trial court erred in its handling of allegedly prejudicial remarks made by plaintiffs’ counsel on closing arguments. We find no error here.

On closing arguments plaintiffs’ counsel referred to John Calvert, president of Calvert and Marsh Coal Company, as a “great coal baron.” Defendant objected and the trial court instructed plaintiffs’ counsel to restrict his argument to the evidence. No other requests or objections were made by defendant at this point. Defendant’s objection is set out below:

“MR. NASH: If it please the Court, I’m going to object to this type of argument. This is not arguing the evidence. It’s being done only for the prejudicial inference.
“THE COURT: Mr. Gorham, stick to the arguments with the evidence and the reasonable interpretation thereof.
“MR. GORHAM: Yes, sir, Your Honor. I apologize, Your Honor.”

As a general rule, where a party’s objection to improper argument is sustained, it is necessary for the party to request a corrective instruction from the trial court as a predicate for an appeal based on the prejudicial statement. Employers Insurance Co. of Alabama v. Cross, 284 Ala. 505, 226 So.2d 161 (1969); Alabama Great Southern Railway Co. v. McFarlin, 174 Ala. 637, 56 So. 989 (1911). Since the defendant did not move the court to exclude the argument, no error was committed by the trial court in failing to do so.

An exception to the requirement of requesting a corrective instruction has been recognized where the argument is so grossly improper and highly prejudicial that it could not have been cured by the trial court. Lawrence v. Alabama Power Co., 385 So.2d 986 (Ala.1980); McLemore v. International Union, 264 Ala. 538, 88 So.2d 170 (1956). Defendant claims that the remark in this case was incurable, thus obviating any attempt at a corrective instruction from the trial court. We do not agree.

Defendant claims that this is a classic appeal to a jury to consider the wealth of a defendant in setting the verdict. We disagree. There is only one isolated reference to Mr. Calvert as a “great coal baron,” and the thrust of this argument points to the wantonness of the trespass. The relevant portion of the closing argument is set out below:

“MR. GORHAM: I’m losing my cool, Ladies and Gentlemen, because it’s a willful act. It’s not even a negligent act. I can’t even classify it as negligence. It’s a willful act for these reasons because Mr. Calvert knew, Mr. Brown knew before they ever put that equipment on there. Mr. Brown denied ever being out there on the 19th. He knew on the 19th when he got there that they had no right to be there. Reckon what happened? Reckon Mr. Calvert, the great coal baron, told him, ‘You go get it, boy’?” [Emphasis added.]

Both parties have cited numerous cases in support of their view of the prejudicial effect of the remark. However, as noted by defendant, each case would have to be decided on its own merits and much would depend upon the issues, parties and the general atmosphere of a particular case. Lawrence v. Alabama Power Co., 385 So.2d 986 (Ala.1980). Viewed in the context argued, this one isolated remark does not fall within that category of remarks sufficiently prejudicial to place it within the exception to the general rule.

We have recognized that, since the trial court is present at the time when the argument is made, the trial court has great latitude in ruling on the propriety of counsel’s arguments. Prescott v. Martin, 331 So.2d 240 (Ala.1976). In particular, in passing on the question of ineradicable bias much should be left to the enlightened judgment of the trial court, with the usual presumptions in favor of the ruling made to that end. Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So.2d 402 (1949); Pacific Mutual Life Insurance Co. v. Green, 232 Ala. 50, 166 So. 696 (1936). Thus, we find no error in the trial court’s failing to issue a corrective instruction ex mero motu.

Having examined the record and having found the issues raised on appeal without merit, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Robert T. CALE and Ruth Cale v. The CITY OF BESSEMER et al.
    79-352.
    Supreme Court of Alabama.
    Dec. 2, 1980.
    Rehearing Denied Jan. 23, 1981.

      Douglas Corretti and Samuel Maples of Corretti, Newsom & Rogers, Birmingham, for appellants.
    J. Howard McEniry, Jr. and J. H. McEni-ry, III, of McEniry, McEniry & McEniry, Bessemer, for appellees.
   BEATTY, Justice.

Plaintiffs, Robert T. Cale and Ruth C. Cale, appeal from a finding by the trial court that a Bessemer municipal zoning ordinance which zoned their property for residential use was not arbitrary and capricious as applied to their property. We affirm.

The plaintiffs are owners of a 1lk acre tract of vacant land which is located in the City of Bessemer. The property is triangularly shaped and runs along the southeast side of U. S. Highway 11. It is bordered on the eastern side by residences and on the southern side by a church and undeveloped acreage. For covenience, a map of the area is reproduced: and made a part hereof. The property is presently zoned R-2, which is for residential use. In 1977 the plaintiffs petitioned the City of Bessemer to change the zoning of the property from R-2 to C-4 (commercial) for the purpose of constructing a community shopping center on it. The Bessemer Planning and Zoning Commission unanimously recommended to the Bessemer City Commission the approval of the plaintiffs’ application; however, the City Commission, after holding a public hearing, denied the plaintiffs’ petition.

The plaintiffs then sought a declaratory judgment and injunctive relief, requesting the trial court to declare the R-2 zoning ordinance invalid as applied to the plaintiffs’ property because the R-2 zoning was arbitrary and capricious, bore no substantial relationship to the health, safety, morals or general welfare of the City of Bessemer and was unconstitutional and confiscatory. The complaint also prayed for injunctive relief which would allow the plaintiffs to use their property for a community shopping center. The plaintiffs later amended their complaint by adding a claim which sought to declare the existing zoning ordinance unconstitutional as it deprived the plaintiffs of any reasonable use of their property. At the hearing, conflicting evidence was presented on the value of the land if developed as residential property, the best possible use of the property, and the application of Bessemer’s overall zoning plan, especially as it applied to the southeastern side of Highway 11. After hearing the evidence ore tenus, the trial judge found in favor of the defendants and declared the R-2 zoning ordinance to be valid. The plaintiffs appealed.

In Come v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972), this Court, quoting Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970), stated “ ‘* * * if the question of zoning or rezoning is fairly debatable, a court will not substitute its judgment for that of the municipal government body acting in [a] legislative capacity. * * ” (Emphasis added.) The “fairly debatable” rule was recently restated in City of Birmingham v. Norris, Ala., 374 So.2d 854 (1979) (quoting from Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968)):

[I]f the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary, a court being unwilling under such circumstances to substitute its judgment for that of the municipal governing body acting in a legislative capacity....

Thus, the primary issue is whether the rezoning of this property was “fairly debatable.” The evidence showed that the property in question was surrounded by some of the best residential property in the city. Witnesses for the plaintiffs gave their opinions that the property was unsuited for residential use and estimated that the value of the property as presently zoned was between $25,000.00 and $50,000.00, while if it were zoned commercial, its value would be approximately $201,000.00. Witnesses for the city, however, testified that the property had a real use for residential purposes. The City Engineer opined that this land could be subdivided into residential lots and have a value of $215,000.00.

The plaintiffs’ witnesses testified that the proposed zoning of this property would be consistent with the trend to commercialize along the highway, and further that it would not violate the master zoning plan of the City of Bessemer. The City’s Planning Consultant, however, stated that the comprehensive plan of the City of Bessemer is to have all of the land on the southeast side of Highway 11 remain residential while the other side is to be more heavily commercial. All of the property on the southeast side of the highway for about a mile around the Cales’ property is zoned residential.

In City of Birmingham v. Norris, Ala., 374 So.2d 854 (1979), quoting Cudd v. City of Homewood, 284 Ala. 268, 224 So.2d 625 (1969), this Court defined the word “debatable” to mean: “ ‘Liable to be debated; disputable; subject to controversy or contention; open to question or dispute.’ Webster’s New International Dictionary, 2d Ed. (Unabridged).”

In the instant case, the evidence was clearly disputed as to whether the property in question was properly zoned residential; therefore, a debatable question existed. In light of all of the evidence presented, we find that it was a “fairly debatable” question upon which the court properly based its denial of rezoning.

Moreover, when the trial judge hears the evidence ore tenus, his findings are favored with a presumption of correctness and will not be disturbed unless palpably wrong, without supporting evidence, or manifestly unjust. Gertz v. Allen, Ala., 376 So.2d 695 (1979). Here there was no showing that the finding was either wrong or unjust, and there was ample evidence to support the trial court’s finding that the property was correctly zoned for residential use.

Let the judgment be affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Jessie J. LIMBAUGH v. Henry P. JOHNSTON et al.
    79-369.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    J. William Thomason, Bessemer, for appellant.
    James R. Clifton of Stone, Patton & Kierce, Bessemer, for appellees Henry P. Johnston, James B. Johnson and Hiram Y. McKinney, as Members of the Personnel Board of Jefferson County, Alabama.
    Edwin A. Strickland, County Atty., and Gregory T. Bittner, Asst. County Atty., Birmingham, for appellees Tom Gloor, Ben Erdreich, and Chriss Doss, as Members of the Jefferson County Commission.
    J. Fred Wood, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellees.
   EMBRY, Justice.

This appeal by Jessie J. Limbaugh is from a final judgment which denied him relief by way of declaratory judgment and the writ of mandamus to order back pay and reinstatement to his position as a Deputy Sheriff of Jefferson County.

His action seeking that relief is against Melvin Bailey, as Sheriff of Jefferson County; Henry P. Johnston, James B. Johnson and Hiram Y. McKinney, as members of the Personnel Board of Jefferson County; and Tom Gloor, Ben Erdreich and Chriss Doss as members of the Jefferson County Commission.

Limbaugh, a classified employee of Jefferson County, subject to and governed by the civil service laws relating to Jefferson County employees and the rules and regulations of the Jefferson County Personnel Board, was dismissed by Sheriff Melvin Bailey on 6 May 1975 without a pretermination hearing. Limbaugh appealed to the Personnel Board which, on 17 October 1975, upheld the dismissal after a full evidentiary hearing. During the pendency of that appeal he filed an action in the United States District Court seeking damages and injunc-tive relief under the authority of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

On 13 September 1976, the federal district court voided Limbaugh’s dismissal. That court noted that under Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), it had no jurisdiction to award back pay. It held that where full evidentiary hearings are postponed until after termination as in this case, pretermination requirements of due process include at a minimum: (1) written notice of the reasons for termination and (2) an effective opportunity to rebut those reasons. The district court found the latter lacking.

Based on the district court order, the Jefferson County Circuit Court, to which Limbaugh had meanwhile appealed the 17 October 1975 Personnel Board action upholding the 6 May 1975 dismissal, remanded the case to the Personnel Board.

On 13 September 1976, prior to consideration by the Personnel Board on remand, Sheriff Bailey, on his own initiative, reinstated Limbaugh pursuant to the order of the district court. Accordingly, the Personnel Board treated the matter as moot on remand and took no further action on it.

On 24 September 1976, Limbaugh was again dismissed. On 3 December 1976, after a hearing, the Personnel Board sustained this second dismissal. On 6 January 1978, the circuit court reversed the Personnel Board for admitting and considering testimony taken at the 17 October 1975 hearing in connection with the first dismissal. On remand, the Personnel Board, on 2 March 1978, again upheld the second dismissal. An appeal of the Personnel Board’s 2 March 1978 decision was pending in circuit court on 27 December 1979 when the judgment was entered which is the subject of this appeal. This action, which was resolved by that judgment, was commenced on 17 July 1978.

Regarding the first dismissal of 6 May 1975, the trial court held that back pay was not allowable because: (1) mandamus is not an appropriate remedy for asserting a claim to recover damages for the tort of wrongful dismissal; and (2) the statute of limitations barred the claim.

With respect to Limbaugh’s claims arising out of the second dismissal of 24 September 1976 and the Personnel Board’s action on 2 March 1978 upholding that dismissal, the trial court found this was not a proper subject for mandamus since a means of appeal to the circuit court was provided by § 666, Vol. 14B, Appendix, Code of Alabama 1940 (Recompiled 1958). He had such an appeal pending at the time judgment in this case was entered.

The case below was tried without a jury and on appeal Limbaugh only designated:

Designation of Register’s Record
Appellant requests the Register to include in the Register’s Record all pleadings and orders in this cause, except those items contained in Rule 10(a) ARAP.

Although Limbaugh did not designate any exhibits or a transcript of the testimony, it is clear from the judgment that this case was submitted upon written stipulation of facts, testimony, and documentary evidence presented in open court.

The issues before us may be stated as follows:

(1) Whether the sheriff’s reinstatement of Limbaugh made the case on remand to the Personnel Board moot regarding the first dismissal?

(2) Whether this action is barred by the statute of limitations?

(3) Whether mandamus is an appropriate remedy in this case?

We first consider whether Sheriff Bailey’s reinstatement of Limbaugh rendered the case regarding the first dismissal on remand to the Personnel Board moot.

The United States District Court had no jurisdiction to award back pay in this case. Thurston v. Dekle, 531 F.2d 1264 (5th Cir.1976). It only had the power to make a determination of whether Limbaugh was terminated in a manner that satisfies the requirements of due process of law under the Fourteenth Amendment. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The federal district court found the manner of his dismissal violated due process of law requirements and voided that dismissal.

When Sheriff Bailey reinstated Limbaugh on 13 September 1976, there was no area of operation left for the Personnel Board after the case regarding the first dismissal was remanded to it by the circuit court. The Personnel Board is authorized to order reinstatement of an employee under such conditions as the Board may determine. Vol. 14B, Code of Ala.1940, Appendix, § 666 (Recompiled 1958). Limbaugh’s claim for back pay is a tort action for damages on account of the injury caused by the failure to dismiss him in accord with due process of law requirements. Jefferson County v. Reach, 368 So.2d 250 (Ala.1978). The Jefferson County Personnel Board is not authorized to consider tort claims for damages because of wrongful dismissal. Therefore we conclude that, upon reinstatement of Limbaugh after his dismissal, the matter on remand to the Personnel Board was moot.

We will now consider whether an appropriate statute of limitations barred any of the claims asserted by Limbaugh in this action.

A plaintiff is allowed one year from the date of an alleged wrongful dismissal to commence proceedings. Code 1975, § 6-2-39; Jefferson County v. Reach, 368 So.2d 250 (1979). The first dismissal occurred on 6 May 1975, and even if the statute of limitations with regard to the first dismissal was tolled until Limbaugh’s reinstatement on 13 September 1976, more than one year from that date expired before the filing of this action on 17 July 1978. We have previously determined Limbaugh’s reinstatement made the remanded case involving that first dismissal moot when it got back before the Personnel Board. As of 13 September 1976, no administrative proceeding requiring action or decision was before the Board regarding the first dismissal. Furthermore, in the present state of the record it appears that the constitutionality of the dismissal was never raised in state court nor was any action ever commenced against Jefferson County for damages for wrongful dismissal. The federal district court’s memorandum opinion noted that plaintiff elected not to raise his constitutional claims in state court proceedings and thus reserved the right to litigate them in federal court. Cf. Jennings v. Caddo Parish School Board, 531 F.2d 1331 (5th Cir. 1976). We conclude that claims for damages for wrongful dismissal arising out of the first dismissal are barred by the statute of limitations.

Regarding the second dismissal, we must consider whether mandamus is the proper remedy.

Mandamus will lie against an official where there is a clear specific ministerial act that remains to be done and not where the official’s duty to perform rests within his discretion or upon the ascertainment of facts or conditions which he must determine according to his discretion. McDowell-Purcell, Inc. v. Bass, 370 So.2d 942 (Ala.1979). Under the facts of this case, we cannot conclude that only the ministerial act of reinstatement with back pay remained to be done respecting the second dismissal. Because an appeal was pending to determine the correctness of the Personnel Board’s denial of such relief when the judgment below was entered, mandamus is clearly an inappropriate remedy in this case. Echols v. Housing Authority of Auburn, 377 So.2d 952 (1979). Moreover, because it affirmatively appears there was evidence before the trial court which is not in the record on this appeal, we must conclude that the evidence was sufficient to sustain the judgment. Lockhart v. Robbins, 386 So.2d 424 (Ala.1980); Valley Mining Corporation, Inc. v. Metro Bank, 383 So.2d 158 (1980). The judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    METROPOLITAN LIFE INSURANCE COMPANY, a corporation, v. Margaret NICHOLS, as Executrix of the Last Will and Testament of Viola Stinchcomb.
    79-431.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellant.
    Richard W. Whittaker of Pittman, Whit-taker & Hooks, Enterprise, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment on a jury verdict in the Circuit Court of Coffee County for plaintiff on an insurance claim. We affirm.

On January 13, 1976, Viola Stinchcomb, the sister of plaintiff Margaret Nichols, fell while at work and broke her hip. The following day she underwent surgery for the injury and was later released from the hospital on January 28. On February 13, she was readmitted to the hospital after having awakened her sister and niece during the night of February 11, screaming for help, complaining of severe headaches, and vomiting. On February 17, she was transferred to Jackson Hospital in Montgomery and admitted with a diagnosis of subarach-noid hemorrhage of a Berry aneurysm (stroke or cerebral hemorrhage). On March 15, she suffered a second hemorrhage, after which her condition steadily deteriorated until her death on April 2. Mrs. Nichols testified to a noticeable decline in her sister’s mental and physical condition from the time of her fall until her death.

On April 18,1977, Mrs. Nichols, as executrix of her sister’s estate, filed a complaint which was later amended at the pretrial conference. Appellant, Metropolitan Life Insurance Company, filed its answer on May 26, after its motion to dismiss was overruled. By agreement of the parties medical depositions were taken on September 18 and 28. On January 10, 1980, a judgment on a jury verdict was entered for appellee in the amount of $14,700.00. On January 16, defendant moved for a new trial, or in the alternative, judgment notwithstanding the verdict. Both motions were denied on February 7. Appellant appeals from both the judgment on the jury verdict and the order denying appellant’s motion for new trial or judgment notwithstanding the verdict.

The first issue to be decided is whether appellee Nichols’s jury charges relating the law governing the application of general and additional clauses in accidental death policies were properly given. We hold that they were.

The insurance policy at issue contained two relatively standard clauses: (1) a general clause providing recovery for injuries caused directly and exclusively by external, violent, and accidental means; and (2) an additional clause excluding benefits for loss resulting directly or indirectly, wholly or partly, by disease or bodily or mental infirmity. The issue of the interrelationship and applicability of these type clauses found within a single insurance policy was addressed by this Court in Wilson v. Liberty National Life Insurance Co., 331 So.2d 617 (Ala.1976), wherein we stated:

In Alabama, policy language similar to that contained in the “general clause” has been construed to mean that “if the accident aggravated a disease and hastened the death of the insured, the accident is yet considered the proximate cause of the insured’s death, notwithstanding the gravity of the disease or that the accidental injury would not have been fatal but for the infirmity.” [Emphasis supplied.] Liberty Nat’l Life Ins. Co. v. Reid, 276 Ala. 25, 33, 158 So.2d 667, 674 (1963).
However, our cases also hold that where the policy contains the “additional clause” then no recovery can be had where death results from the combined effects of an accident and a pre-existing disease which was accelerated and aggravated by the accident. First Nat’l Bank v. Equitable Life Assurance Soc. of the United States, 225 Ala. 586, 590-91, 144 So. 451, 455 (1932); Liberty Nat’l Life Ins. Co. v. Reid, supra.
With respect to the “additional clause,” our cases also hold, as stated by Bouldin, J., in Equitable, supra:
“But this does not mean that mere feebleness, nor predisposition to recurrence of former disease, nor every infirmity which may aggravate the effects of an accidental injury, is to be regarded as the cause of death.
“The general rules of construing insurance policies favorably to the insured apply to these clauses touching bodily infirmity, etc.”
Thus, it is that Harwood, J., in Reid, supra, concluded:
“If an injury starts a chain reaction resulting in death, recovery may be had even if one of the links in the chain is old age, frailty and some links are dormant diseases or physical conditions without which the chain would be broken. Each case must be particularized.”

We find that the contested jury charges were predicated upon the aforementioned “chain reaction” theory and, as such, aptly stated and related Alabama law to the facts at hand.

Furthermore, our cases hold that “where the evidence is conflicting as to whether an accident was the cause of an insured’s death, or whether the accident and a disease cooperating therewith combined to cause death, then ordinarily a question of fact within the resolution of the trier of fact is presented.” Wilson v. Liberty National Life Insurance Co., 331 So.2d 617 (1976); Liberty National Life Insurance Co. v. Reid, 276 Ala. 25, 158 So.2d 667 (1963). Without quoting extensively from the trial record, we find ample evidence to support a question of fact presentable to the jury based upon the “chain reaction” theory. There was expert testimony to the effect that the initial fall, injuries, pain, and other emotional distress could have placed additional demands upon the deceased’s circulatory system in such a way as to play a precipitating role in the rupture of the dormant Berry aneurysm. Although none of the medical experts could conclusively causally relate the fall to the rupture of the aneurysm, none could conclusively rule it out either. Testimony also established that a Berry aneurysm is congenital in nature and that an aneurysm of this type, without a history of prior leakage, would be termed dormant.

On the basis of the preceding testimony, we find that there was sufficient evidence to support the jury verdict.

Next, we are asked to determine whether the trial court committed reversible error in allowing Mrs. Nichols’s attorney, on cross-examination, to read certain portions of Gray’s Attorney’s Textbook of Medicine to Metropolitan Life’s expert witnesses and to ask these witnesses whether they agreed or disagreed with the treatise. The law is well established in this jurisdiction that excerpts from a medical treatise admitted or proven to be a standard in the medical profession may be admitted into evidence. E. g., Stoudenmeier v. Williamson, 29 Ala. 558 (1857). In the instant case, however, the expert witnesses testified that they were not familiar with either the treatise or its author.

In Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953), this Court stated:

But relevant extracts from medical treatises are not in themselves self-proving, but are admissible only when recognized and approved by the medical profession as standard. The work in question was not shown to be a standard work or recognized authority by the medical profession on the subject at issue, and the rulings of the court in regard thereto were without error.

However, in this case, plaintiff’s counsel did not offer the statements referred to in the textbook as evidence. He merely used them for the purpose of inquiring of the expert witnesses as to whether the witnesses agreed with the statements. We find no reversible error.

Accordingly, we find the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    Norma L. HANCOCK v. ALABAMA HOME MORTGAGE CO., INC.
    79-581.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    John F. Kizer, Jr., of James N. Brown, III, P. A., Birmingham, for appellant.
    Grover S. McLeod, Birmingham, for ap-pellee.
   FAULKNER, Justice.

This is an appeal from a directed verdict in the Circuit Court of Jefferson County for defendant, Alabama Home Mortgage Company, Inc., on a personal injury claim. We affirm.

In June, 1975, plaintiff, Norma Hancock, visited her nephew, David Hancock, at his apartment in the Boraig Apartments owned by defendant Alabama Home Mortgage Company. Between 11:00 and 11:30 P.M. David decided to go swimming and asked his aunt to walk to the pool with him. They left the apartment together but David returned to get a towel; his aunt proceeded on toward the pool. She followed an unconventional route along a railing which led her behind the dumpster, over a ladder, between the railing and a concrete dumpster platform, up and down over uneven terrain, and ultimately to the end of the railing where, without looking down, she stepped off a curb. She testified that although she didn’t recall ever looking down, she thought a driveway, instead of the two foot drop-off, was at the end of the rail. The path that she took was rough and uneven—not a walkway. She and David both testified that the area was not well lit. After her fall, David helped her back to the apartment, gave her a tranquilizer, assisted her in dressing, and then took her to the hospital five blocks away. The hospital records showed 1:20 A.M. as the time of her arrival. The admitting doctor reported that she was intoxicated upon admission, but both she and David testified that they had not consumed any alcohol that evening. Mrs. Hancock sustained a broken arm which resulted in complications necessitating two operations and extensive physical therapy treatments.

On June 9, 1976, Mrs. Hancock filed suit against Grover McLeod and the Boraig Apartments. She then amended her complaint to include Alabama Home Mortgage Company as a defendant. On October 23, 1978, the trial judge granted summary judgment, which was later reversed and remanded by this Court. On March 7,1980, the trial judge granted Alabama Home’s motion for directed verdict. Mrs. Hancock appeals.

The issue before us involves the propriety of the directed verdict.

Hancock contends that her injury was incurred in a common area within the control of Alabama Home and that her injuries “proximately resulted from the negligence of the defendants in negligently permitting, negligently causing, or negligently allowing the said premises located at the Boraig Apartments to be maintained in an unsafe condition to walk therein, and as a proximate consequence of said negligence, [she] was caused to fall” and suffer injury. The law concerning a landlord’s liability for injuries incurred on the premises is twofold. While a landlord is liable only for injury incurred in the actual leased premises resulting from latent defects which are known to him at the time of the letting but áre concealed from the tenant, he has the duty to maintain the common areas in a reasonably safe condition in order to avoid liability for injury to tenants or their guests. Allen v. Genry, 39 Ala.App. 281, 97 So.2d 928 (1957).

In Prudential Insurance Company of America v. Zeidler, 233 Ala. 328, 171 So. 634 (1937), we held:

The fact that premises are leased to different tenants and families and the walkways are reserved expressly or impliedly for their use in common with other or different tenants make[s] such tenants and families using such common walkways invitees of the owner of the premises, if the relation of landlord and tenant exists....
. .. [T]he general authorities ... in this jurisdiction are to the effect that, “to the rule that a tenant takes the leased premises subject to defects not amounting to a trap, there is an exception to the effect that the owner of a building who leases it to different tenants, and expressly or impliedly reserves portions thereof, such as halls, stairways, porches, walks, etc., for the use in common of different tenants, is liable for any personal injury to a tenant, or a person in privity with a tenant, due to defects in the portion of the leased premises of which the landlord so retains control, provided the defect is ascribable to the negligence of the landlord, and the tenant or person injured is not guilty of contributory negligence.” [Citations omitted, emphasis supplied in Zeidler.]

This duty is imposed so that “tenants and their invitees may have egress and ingress without unnecessary danger in the due exercise of the privilege or necessity of going to and from such apartment house or office building.” Preston v. LaSalle Apartments, 241 Ala. 540, 3 So.2d 411 (1941).

The determination of common areas as such is a question of fact. Allen v. Genry, supra. In Hancock v. Alabama Home Mortgage Co., Inc., 372 So.2d 858 (Ala.1979), the first appeal of the instant case, Justice Jones formulated the following issues for the fact finder relative to common areas:

1) whether the area wherein the guest was injured was an area over which control was retained by the lessor;
2) whether the area was one that the lessee (or his guest) was entitled to use as appurtenant to the part leased;
3) whether the guest was lawfully in the area with the consent of the lessee; and
4) did a dangerous condition posing an unreasonable risk exist in the area, one which could have been discovered and made safe in the exercise of reasonable care by the landlord?

Based upon the preceding issues, there could be no conceivable way to find that Mrs. Hancock was injured while using a common area (guardrail and dumpster) in the manner and for the purpose for which it was maintained. Furthermore, there is no evidence in this case to indicate any “dangerous condition posing an unreasonable risk.” The route that Mrs. Hancock followed was not a walkway, and the curb was not a dangerous condition. All the evidence points to the fact Mrs. Hancock, by virtue of her intoxicated condition, contributed to her injuries.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Pattie Pemberton PEEVY, as Administratrix of the Estate of Dossie Calvin Peevy, Jr. v. ALABAMA POWER COMPANY, a corporation.
    79-508.
    Supreme Court of Alabama.
    Jan. 29, 1981.

      D. Coleman Yarbrough and Karl B. Benk-with, Jr., of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    Warren H. Goodwyn of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Montgomery, for appellee.
   EMBRY, Justice.

Plaintiff below, Pattie Peevy, appeals from a summary judgment in favor of defendant, Alabama Power Company, that dismissed her action for damages for the wrongful death of her intestate decedent on account of trespass, negligence, and wantonness upon the part of an agent, or upon the part of Alabama Power.

Plaintiff’s husband, Dossie Peevy, died of a heart attack after arguing with one of defendant’s meter readers over whether the meter reader sprayed Dossie Peevy’s dog with a chemical irritant or repellent.

Issue

Whether the trial court erred by holding defendant Alabama Power entitled to judgment as a matter of law because there was no genuine issue of material fact and no actionable conduct upon the part of defendant’s agent or upon the part of defendant.

Plaintiff, Pattie Peevy, and plaintiff’s husband, Dossie Peevy, were at their residence in Montgomery, Alabama, with their daughter and her boyfriend on the afternoon of 15 August 1978. The Peevys kept two dogs in their fenced backyard. A large one was chained and a small one was loose. The dogs began barking at J. W. Puckett, one of Alabama Power Company’s meter readers, as he entered the Peevys’ fenced backyard to read the meter there. Puckett carried a dog repellent of the trade name Halt with him as he memorized the meter and exited from the fenced portion of the yard without stopping to write down the reading.

Puckett was just outside the fenced area, writing down his readings, when Peevy, who had suffered a heart attack six weeks previously and was was still under a physician’s care, came out of his house to investigate the cause of the dogs’ barking.

Peevy told Puckett “ * * * don’t worry about the dogs. They won’t bite. I will put them up. * * * don’t spray the dog with the mace.” Meanwhile, Puckett continued writing down the reading without responding. Peevy became angry, approached Puckett, tapped him on the shoulder and told him to get out of the yard. Peevy told Mrs. Peevy that Puckett sprayed the dogs; Puckett denied spraying the dogs. Puckett left the premises as soon as he completed recording the meter reading.

After Puckett left, Peevy went to his backyard garden to pick some vegetables. At this time his daughter noticed the small dog rolling over and scrubbing its nose in the grass.

Peevy went back into his house and telephoned Alabama Power Company. He repeated into the telephone receiver several times, “I want to speak to someone in charge of meter reading,” then he collapsed and died.

Mrs. Peevy, had, prior to this occasion, asked a previous meter reader to knock on the door so she could put the dogs up while he read the meter. This procedure was followed for several months by the former meter reader but was not followed by Puckett on this, his first time on the route.

Supplemental instruction cards are used to notify meter readers of particular instructions, requests by a homeowner, or of dangerous conditions such as vicious dogs. The meter readers are responsible for preparing supplemental instruction cards when given specific instructions by a homeowner. The preorder clerk of the meter reading department is responsible for placing supplemental instruction cards in route binders for the meter readers. Puckett did not have such a supplemental instruction in his route binder with the meter card for the Peevy house.

Regardless of whether the claims for trespass to the property of Dossie Peevy are construed as claims for trespass to personalty (the dog) or trespass to real property, there must be some evidence that the wrongful act or acts complained of caused Dossie Peevy’s death.

Generally the question of proximate cause is for the jury, but when facts are such that reasonable men must draw the same conclusion, the question of proximate cause is one of law for the courts. Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959). In order to present a jury question under either the trespass or the negligence count there must be at least a slight bit of evidence that the wrong complained of proximately caused Peevy’s death.

“ ‘ * * * Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can, with equal probability, be attributed to some other cause. Such a condition is equivalent to an absence of evidence to the true cause, and, when seen clearly to exist, imposes on the court the duty of determining, as a matter of law, against any right of recovery dependent upon the establishment of the causal connection between the injury and the alleged cause. * * Maddox v. Ennis, 274 Ala. 229, 230, 231, 147 So.2d 788, 789 (1962), quoting from Southworth v. Shee, 131 Ala. 419, 30 So. 774 (1901). (Emphasis added.)

The proximate cause of a negligent injury is established where an injury is the natural and probable consequence of the negligent act or omission (or a direct wrongful act) which an ordinary prudent person ought reasonably to foresee would result in injury. Vines v. Plantation Motor Lodge, 336 So.2d 1338 (1976).

We find the element of proximate cause lacking in this case and refuse to extend the present limits on legal liability proximately resulting from wrongful conduct.

The count for wanton misconduct is similarly precluded as a matter of law under the facts of this case. Wantonness has been defined as a conscious act or omission with knowledge of existing conditions and while conscious that injury will likely or probably result from such act or omission. Roberts v. Brown, 384 So.2d 1047 (1980).

There is not the slightest bit of evidence of any knowledge of conditions which would make the acts of defendant’s agent wanton, nor is there evidence that the injury complained of was proximately caused by defendant’s acts or omissions or those of its agent. The judgment below is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and ADAMS, JJ., concur.


text:
    John A. NABER v. McCRORY & SUMWALT CONSTRUCTION COMPANY.
    79-630.
    Supreme Court of Alabama.
    Jan. 29, 1981.

      Bruce M. Bieneman and Robert J. Riley of Cholette, Perkins & Buchanan, Grand Rapids, Mich., for appellant.
    W. Boyd Reeves and Kirk C. Shaw of Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves, Mobile, for appellee.
   EMBRY, Justice.

This action arose out of a fight between plaintiff John A. Naber and one of the defendants, Glen Manion, on a construction project in Mobile, Alabama, in May 1976. At the time of the fight Naber was employed as a field superintendent by the company supplying light fixtures for the project. Manion was employed as a carpenter by the general contractor on the job, McCrory & Sumwalt Construction Company. Following the fight, Naber sued Man-ion and McCrory & Sumwalt for his injuries sustained in the fight. Naber obtained a default judgment against Manion which is not at issue in this appeal.

Initially, Naber sued McCrory & Sumwalt on the theory it was liable under the doctrine of respondeat superior for the assault and battery committed by Manion. McCro-ry & Sumwalt moved for summary judgment. Before that motion was argued to the court, however, Naber amended his complaint to allege a second theory of recovery against McCrory & Sumwalt the basis of which was that McCrory & Sumwalt was actively negligent in its hiring, training and supervision of Manion. McCrory & Sumwalt’s motion for summary judgment was thereafter treated as a motion for partial summary judgment upon Naber’s theory of vicarious liability. The trial court granted partial summary judgment for McCrory & Sumwalt on that issue.

Then, Naber moved to dismiss his claim against McCrory & Sumwalt for its alleged active negligence in hiring, training and supervising Manion. That motion was granted. Thus, the only theory of recovery against McCrory & Sumwalt remaining in plaintiff’s amended complaint was that of vicarious liability as to which the trial court had granted summary judgment in favor of McCrory & Sumwalt. This appeal is from a final judgment of 4 April 1980 which recited that the cumulative effect of the default judgment against Manion, and entry of partial summary judgment against Naber regarding McCrory & Sumwalt, was a final resolution of all claims as to all parties in this action.

We reverse and remand.

The sole issue for review in this case is whether the trial court erred in granting the partial summary judgment in favor of McCrory & Sumwalt on the theory there was no vicarious liability on its part growing out of the assault and battery committed on the person of plaintiff. Naber’s theory was that the assault and battery was done while Manion was acting in the line and scope of his assigned duties of employment, thus giving rise to vicarious liability upon the part of McCrory & Sumwalt under the doctrine of respondeat superior.

On 15 May 1976, several McCrory & Sum-walt employees, including Manion, were assigned to move light fixtures under Naber’s supervision from a warehouse to the job site. Naber and Manion had a verbal dispute that morning about the manner of moving fixtures in spite of which they continued moving fixtures without exchanging blows. A short while later both Naber and Manion left the warehouse; however, both returned. Manion went to McCrory & Sumwalt’s office trailer, told the project supervisor he was quitting because he could not work with Naber, picked up his tool box, and returned to the warehouse.

At the warehouse Manion told his coworkers that he had quit and began shaking hands with them. Manion then shook hands with Naber and with his free hand struck Naber. A fight ensued and Naber was injured.

Manion was observed working on the construction project for McCrory & Sumwalt, after the fight, until about 18 June 1976.

We must decide whether there was a genuine issue of material fact as to whether Manion was acting within the course of his employment, and in the line of his assigned duties, with McCrory & Sumwalt at the time Naber was injured.

In order to recover against a defendant on the theory of respondeat superi- or, it is necessary for the plaintiff to establish the status of master and servant and that the act was within the line and scope of the servant’s duties of employment. Wells v. Henderson Land & Lumber Co., 200 Ala. 262, 76 So. 28 (1917). If there is evidence that the wrongful act was within the scope of the servant’s employment, it matters not that the wrong complained of is an intentional wrong, or that it is accompanied by personal ill will of the servant toward the plaintiff. Mercury Freight Lines, Inc. v. Pharo, 264 Ala. 322, 87 So.2d 642 (1956).

A party moving for summary judgment must affirmatively demonstrate, by facts, an absence of a genuine issue of material fact. If there are discernible circumstances under which the plaintiff might recover, under a cognizable theory of law, summary judgment is inappropriate. If there is evidence in support of the theory of the complaint the trial court is bound to allow factual questions to go to the jury. Ex parte Bagby Elevator & Electric Co., Inc., 383 So.2d 179 (Ala.1980).

The question of whether Manion was the servant of McCrory & Sumwalt at the time of the assault and battery is a disputed material fact. Although there is evidence that Manion stated he was quitting, and that he had quit, there is also evidence that he remained in the employ of McCrory & Sumwalt. There is sufficient evidence to submit to the jury the factual issue of whether Manion was the servant of McCrory & Sumwalt, acting in the line of his assigned duties, at the time he struck Naber.

On that question the law is clear and is expressed:

... To authorize the submission of the question to the jury, the evidence must have a tendency either directly or by reasonable inference to show that the wrong was committed by the agent while he was executing his agency, that is, undertaking to execute the duties assigned to him and not from a motive or purpose of his own having no relation to the business of the master. If the evidence tends to establish that the act was an incident to carrying out the duties assigned to him by his master, the master may be held liable though he did not authorize the agent to resort to such means in rendering the services for which he was employed and also though the agent may have sought to accomplish the master’s business by improper or unlawful means or in a way unknown to his master or even contrary to his express directions.

United States Steel Co. v. Butler, 260 Ala. 190, 193, 69 So.2d 685, 687-688 (1954).

There is evidence that Manion’s assigned task was to move fixtures under Naber’s supervision and that the dispute leading up to the affray was over the means of moving those fixtures. In light of this evidence, we conclude a jury question was presented regarding whether Manion was acting within the course of his employment and in the line of his assigned duties. It is for the jury to decide whether Manion was motivated to assault Naber by wholly personal motives. Goodrich Tire Co. v. Lyster, 328 F.2d 411 (5th Cir. 1964). For the assigned reasons, the judgment below is due to be reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON and ADAMS, JJ., concur.


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    Danny MARDIS v. Bailey M. NICHOLS.
    79-664.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    J. G. Speake of Speake, Speake & Reich, Moulton, for appellant.
    Don R. White, Moulton, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Lawrence County determining a boundary line between two coterminous landowners in favor of plaintiff, Bailey Nichols. We reverse.

This case involves a boundary dispute between plaintiff, Bailey Nichols, and defendant, Danny Mardis, over Nichols’s south boundary and Mardis’s north boundary. The facts are undisputed by the parties. The disputed strip is approximately thirty-five feet wide and runs the length of the boundary between the two tracts. In 1974 or 1975, Nichols purchased twenty acres from his father, who had purchased the same from William R. Mardis, Danny’s brother, in 1969. Danny Mardis owned the land on both sides of Nichols’s property. He acquired the twenty acres adjacent to Nichols’s south side from his father, Jack Mardis, who had inherited the property from his father in 1928. Danny received his record title in 1974, pursuant to a 1966 deed designed to take effect upon the death of his last surviving parent. There was testimony, however, indicating that Danny had been put in possession of the property as early as 1956, that he had worked the property since that time, and that he had paid taxes on the property prior to 1966.

Mardis maintained that the boundary in dispute was, and always had been, a fence built in 1929 or 1931. Mr. Lee Oliver, a seventy-two year old native of Lawrence County, testified that he helped build the fence, which, at that time, was intended to be the line between two twenty-acre tracts that “Grandpa” Mardis had given to his children, Melvina and Jack (Danny’s father). Mr. Oscar Owens, an eighty-two year old resident, testified that many years ago, while picking blackberries on the property with Danny’s father, he had inquired about the boundary. In response, the older Mardis had pointed out the fence and stated that it was the line. Other witnesses who had been aware of the fence for at least twenty-five years or more testified that the fence was recognized by surrounding landowners and the community as a boundary line fence.

Nichols, however, based his boundaries on a 1978 survey and erected an electric fence along the survey lines. Mardis then notified Nichols that he would have to move that portion of the fence along Mardis’s north boundary because it was on his land. Mardis did not contest the fence along Nichols' northern boundary. Nichols responded that he wanted his twenty acres and that Mardis would have to move his line since he owned the land on both sides of Nichols. When Nichols continuously refused to remove his fence and to recognize the old line fence as the true boundary, Mardis tore down the new fence and retook possession up to the old fence.

On February 28, 1979, Nichols filed a complaint alleging a boundary dispute. Mardis counterclaimed, alleging that the boundary was marked by an existing line fence. A non-jury trial resulted in a judgment for Nichols. Mardis appeals.

The sole issue that we must determine is whether the judgment of the trial court, establishing the survey line as the true boundary, was contrary to the weight of the evidence and the law. The following principles, recognized and followed by this Court in determining boundary line cases, are instructive in the present dispute.

In Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), Justice Jones summarized the applicability of our adverse possession statute, Code 1975, § 6-5-200, to boundary disputes, as follows:

The three alternative prerequisites 1) deed or other color of title, 2) annual listing of land for taxation, or 3) title by descent case or devise from a predecessor, therefore, are not necessary to sustain a claim to title by a coterminous owner. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Sylvest v. Stowers, 276 Ala. 695, 166 So.2d 423 (1964). That is to say, although the claimant is relieved of these three alternative conditions prescribed by [§ 6-5-200], he may still acquire title by the exercise of adverse possession for a period of ten years. Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180 (1971); Lay v. Phillips, supra; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954). However, the requirements that possession be open, notorious, hostile, continuous and exclusive are still applicable. Thompson v. Odom, 279 Ala. 211, 184 So.2d 120 (1966).

In an earlier decision, Sylvest v. Stowers, 276 Ala. 695, 166 So.2d 423 (1964), this Court reversed the decree of the trial court establishing the survey line as the true boundary. In reversing, the Court reemphasized, as set out below, the intent of the landowner as a controlling factor in boundary determinations.

In Salter v. Cobb, 264 Ala. 609, 88 So.2d 845 (1956), we said:

As between coterminous landowners where a question of boundary line is presented, when parties agree upon the location of a line fence or one of them proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. The controlling fact is one of intention and if there is an inference arising from the evidence that there was an intention on the part of the complainant to hold and enjoy the property up to the line claimed by the complainant as the true dividing line between the property, with the assent or apparent recognition of it as such on the part of respondent and his predecessors in title for the stated period, this is sufficient to discharge the complainant’s burden of proof. And if the possessor considered and claimed the land up to the established line as her own, the possession is hostile even though she is claiming more than she owns and claims by mistake of fact. Though the established division line might have been erroneous in fact, if it may be inferred that the fence was believed to be the true line and the claim of ownership was to the fence, the possession is adverse and “ ‘does not originate in an admitted possibility of a mistake.’ ” [Emphasis added.]

This court has made it abundantly plain that one does not have to be a willful landgrabber or dishonest in order to acquire title by adverse possession. We quote from Brantley v. Helton, 224 Ala. 93, 139 So. 283 (1932):

Adverse possession as between adjoining landowners, where a question of boundary line is presented, has been many times declared by this court. When the parties agree upon the location of a line fence, or one of them proceeds to inclose his property, and erects a fence intended as a line fence, holds actual and exclusive possession to it as such, his possession is adverse, and, if continued for ten years, ripens into title.
The controlling fact is one of intention. The mere fact that a mistake was made in locating the boundary, and there was never an intention to claim the property of another, does not negative adverse possession. Such a rule would make adverse possession to depend upon bad faith.
Was there an intention to fix a dividing line, each to have the enjoyment of his own property, and was possession taken and held accordingly, each claiming the property held as his own, because he considered it his own? If so, the possession is adverse. Of course, adverse possession may arise from boldly and knowingly taking the property of another, or taking it regardless of whether he believes it is his, thus ousting the true owner, and holding in hostility to him.
But in law a hostile possession is not limited to any such case. It is hostile when held as his own, claimed as his own, whether by mistake or willfully. [Emphasis added.]

Furthermore, this Court has repeatedly recognized that a fence is an outstanding symbol of possession. Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974); Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967). In Hinds v. Slack, 293 Ala. 25, 299 So.2d 717 (1974), we stated: “Where one coterminous owner erects a line fence and holds actual and adverse possession to it for a continuous period of ten years, he obtains title to the property enclosed by his fence.” See also, W. T. Smith Lumber Co. v. Cobb, 266 Ala. 146, 94 So.2d 763 (1957).

Appellant, Mardis, contends that the fence, erected by 1931 as a line fence, became the true and exclusive line ten years later in 1941. This contention is supported by precedent as expressed in Sylvest v. Stowers, supra:

If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160, and cases there cited; see Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55.

Appellee, Nichols, however, contends that because Mardis’s deed does not contain a description of the disputed property, Mardis cannot rely upon the adverse possession of his predecessor in title in order to gain entitlement to the disputed strip. Nichols further contends that because Mardis did not acquire record title until 1974 and, therefore, has not satisfied the ten-year statutory adverse possession period under claim of right, the judgment of the trial court is due to be affirmed. We disagree. This Court’s holding in Watson v. Price, 356 So.2d 625 (1978), as set out in pertinent part, is dispositive of this issue:

For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title.

The rule established in Watson is based upon the rationale that “[t]he transfer of the possession alone is sufficient to create the privity for this purpose [tacking of adverse possession periods], and written evidence of the transfer is not necessary when the property is held by the transferee under the claim of the first entryman.” Holt v. Adams, 121 Ala. 664, 25 So. 716 (1898).

In the instant case, the evidence clearly established that the old fence had been in existence at least twenty-five years — at most fifty years; that the fence was generally recognized by surrounding landowners and the community as a line fence; that Danny Mardis’s predecessor in title had expressed his belief and/or intent that the fence marked the true boundary line; that this intent had been evident from the origin of the fence; and that both generations of Mardises consistently worked the property — cultivated and pastured it — up to the fence.

The record further indicates that Jack Mardis — even prior to the conveyance — had put Danny into actual possession of the property all the way up to the fence. Basing our opinion on the undisputed facts of this case, therefore, we hold, consistent with Graham v. Hawkins, supra, that because Danny Mardis “entered into possession of the whole area up to and including the fence, ... the deed, taken into consideration with such transference of possession, was sufficient to raise the privity essential to the tacking” of Danny’s father’s claim of title by adverse possession to Danny’s own claim of title to the disputed area.

Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


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    Annie Laurie GUNTER, etc., et al. v. Honorable Devon KIKER, etc., et al.
    79-671.
    Supreme Court of Alabama.
    Jan. 29, 1981.

      Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for appellants.
    James T. Upchurch, III, of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
   EMBRY, Justice.

This appeal by Annie Laurie Gunter as Treasurer of the State of Alabama and Colonel Jerry Shoemaker, as Director of the Alabama Department of Public Safety, is from a declaratory judgment interpreting Code 1975, § 12-19-22(b): “(b) In all cases filed prior to January 16,1977, in the circuit court or courts abolished by Acts 1975, No. 1205, all fines, costs and fees shall be assessed and distributed according to law in existence on date of filings, including monies collected on or after January 16,1977,” to be applicable to circuit clerks and registers of this state. The judgment further held that clerks and registers are entitled to receive distribution of commissions on monies collected on or after January 16, 1977, on cases filed prior to January 16, 1977, in accord with the law in existence prior to January 16, 1977. We affirm.

The 1975 Code section interpreted by the trial court is a part of what is known as the Judicial Article Implementation Act. The plaintiffs in this action are clerks and registers or clerk-registers of various judicial circuits of this state. Each of the plaintiffs had, prior to the effective date of the Implementation Act, collected commissions of five percent on sums collected by them for the State of Alabama. The law in existence just prior to January 16,1977, relating to circuit clerks’ and registers’ commissions was Tit. 11, § 22, Code of Alabama, 1940, as amended:

§ 22. Fees of clerk and register for collection of money. — The clerks and registers of the several circuit courts of the state of Alabama shall receive five percent of any sum or sums collected by such clerk or register for the state of Alabama, as compensation for the collection and remittance of the same, the said percentage to be deducted by such clerk or register making the collection from such sum or sums collected.

Act 1205 substantially changed the manner in which circuit clerks and registers in the State of Alabama were compensated. It made significant changes in the types of costs and fees collected in cases which were to be filed after the effective date of that Act.

All the appellees, clerks and registers, have collected commissions on fines, costs and fees payable to the offices of the appellants, treasurer, and director of the Alabama Department of Public Safety, in connection with cases filed prior to the effective date of the Judicial Article Implementation Act. It is the contention of appellees that because Tit. 11, § 22, Code 1940, as amended, was in existence on the date of filing of these cases, and because the clerks’-registers’ five percent commission was part of the distribution of such fines, costs and fees, they are entitled to collect and retain such commissions under the clear and unequivocal language of § 12-19-22(b). They further contend that because § 12-19-22(b) provides that all such fines, costs and fees are to be assessed and distributed according to law in existence on the date of filing, this would include monies collected on or after January 16, 1977, if, in fact, the filing was prior to that date.

It is the contention of appellants that § 12-19-22(b) was included in Act No. 1205 merely to provide for the distribution of fines, costs and fees to various state and local entities during the transition period following the implementation of the Judicial Article. Further, they say, because clerks were placed on a salary basis in another section of that same act, it follows that § 12-19-22(b) was not intended to extend to the distribution of commissions to circuit clerks and registers; and that if it was so intended the act should have expressly stated that intent.

Citing Troup v. Morgan Co., 109 Ala. 162, 19 So. 502 (1895); Herrmann v. Mobile Co., 202 Ala. 274, 80 So. 112 (1918), appellants say the law of this state has long been that public officers are entitled only to such fees and costs as are expressly authorized to them, and that statutes giving costs are not to be extended beyond their letter, but are to be strictly construed. There is no question but that this is the law. However, the contention fails because the fact is that § 12-19-22(b) did expressly incorporate the law in effect prior to January 16, 1977, with respect to the distribution of fines, costs and fees collected by circuit clerks and registers on behalf of the State as was provided for in Tit. 11, § 22, Code 1940, as amended. It seems clear to us that the legislature intended by the adoption of § 12-19-22(b) to provide for the assessment and distribution of monies collected on and after January 16, 1977, including the commission in question in this case, to be distributed and paid to clerks and registers as provided in Tit. 11, § 22 so long as the filing of those cases occurred prior to the relevant date.

Appellants further contend there is a distinction between a commission and a fee, correctly stating that a commission is separate and distinct from a fee because a commission is a percentage of an amount of money paid out or received while on the other hand a fee is a set compensation paid to an officer for services rendered. In the context of the 1975 Code section under examination, and the facts of this case concerning the distribution called for by that section and the preexisting law as expressed in Tit. 11, § 22, Code 1940, as amended, the five percent commissions here involved were recipient sources to which the fines, costs and fees were to be assessed and distributed under § 12-19-22(b), by virtue of the provisions of Tit. 11, § 22, Code 1940, as amended, the law in existence on the date of those cases filed prior to January 16, 1977, including monies collected on or after January 16, 1977, out of those eases.

Prior to enactment of Act No. 1205, circuit clerks and registers were compensated either on a salary or a fee basis. Certain clerks and registers received a fixed salary from the county; others did not, receiving their compensation in the form of fees and commissions from monies generated in their courts. Those clerks and registers receiving compensation in the form of fees and commissions were commonly referred to as fee clerks and fee registers. The phrase fee clerk or fee register obtained the status of words of art, designating those clerks and registers who were compensated not by a fixed salary but by receipt of fees and commissions. It was recognized that when Act No. 1205 became effective fee clerks and registers would suffer a reduction in salary by virtue of the provisions of that act placing those individuals upon a fixed state compensation. Section 12-19-22 would cushion the transition from fee and commission compensation to salary compensation for those fee clerks and fee registers until the effective date of the establishment of the district courts which would serve as a cutoff period, that being January 16, 1977.

It appears to us that both a fair and common sense interpretation of § 12-19-22, and we so hold, is that if a clerk or register was entitled by law to collect a fee or commission before the Judicial Article was implemented on January 16, 1977, he or she can collect that fee or commission from any case which was filed before January 16, 1977, under the referenced provision of the 1975 Code. If under prior law, a clerk or register was entitled to receive these monies, he or she is entitled to receive the monies on those cases filed prior to the above mentioned date whether collected after that date or not.

Appellants express concern that should this court determine that circuit clerks and registers are entitled to commissions under § 12-19-22, extreme difficulty will be encountered in attempting to equitably distribute those commissions. Appellants then proceed to state examples of fact situations which they contend illustrate the problems that might be encountered should we hold as we do in this case. We deem the fears of appellants to be exaggerated. Should problems develop in the future concerning the equitable distribution of the subject commissions, they can be dealt with on a case by case basis without any difficulty, it appears to us.

For the stated reasons the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON and ADAMS, JJ., concur.


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    PAINT ROCK PROPERTIES, etc. v. C. Burrel SHEWMAKE et al.
    79-711.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    Charles E. Richardson, III, of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
    William T. Galloway, Jr., and John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   EMBRY, Justice.

Paint Rock Properties appeals from a final judgment permanently enjoining it from accelerating payments and foreclosing a mortgage on account of the late remittance of the 1980 annual installment payment on a 23 March 1979 note secured by that mortgage. The mortgage was on 578 acres owned by plaintiffs C. Burrel Shew-make and Charlotte S. Shewmake. It secured a $69,000 note payable to Paint Rock Properties in 30 annual installments of $6,129.09 due on the 23rd of March each year. Both the note and mortgage contained an acceleration clause providing that, at the option of the payee, the entire remaining principal and interest would be immediately due and payable in the event of default in the payment of any installment of principal or interest.

Larry W. Alley and Jerry S. Gillespie were the original partners of Paint Rock Properties, the partnership to which the note was payable. Jerry S. Gillespie died on 2 March 1980, and on 20 March 1980 his brother Michael Gillespie was appointed executor of the last will and testament of Jerry S. Gillespie, deceased.

Claims in excess of $300,000 were filed against the estate. The estate, although solvent, was illiquid because there were not enough liquid assets or cash to meet its then current obligations.

The Shewmakes failed to make their first annual installment payment due on 23 March 1980. On 18 April 1980, they received a letter advising them that the status of Jerry S. Gillespie’s financial affairs and obligations at his death required that action be taken by the partnership. The letter stated that the note was in default; the entire outstanding balance of principal and interest was immediately due and payable because the installment payment had not been received when due; and foreclosure will be effected by advertisement in the Huntsville Times. On 25 April 1980, Mr. Shewmake acknowledged failure to make the installment payment when due but stated that it was an oversight. He tendered a check representing two annual payments on the note and an additional $300 for legal and advertising expenses incurred by the mortgagees.

The partnership commenced foreclosure proceedings by publishing notice of foreclosure in the Huntsville Times. Substantial improvements had been made on the property by the Shewmakes during the year of their possession and Mr. Shewmake testified that it was now worth approximately five million dollars.

The Shewmakes petitioned the trial court to enjoin foreclosure of the mortgage on grounds that: (1) when notified of the delinquent payments they had tendered payments due on both 23 March 1980 and 23 March 1981 plus $300 as compensation for legal and advertising expenses; and (2) the foreclosure under the power of sale in the mortgage was being used against equity and good conscience for purposes other than merely to secure repayment of the debt. The trial court, on the basis of oral testimony and documentary evidence, permanently enjoined appellant partnership from instituting or continuing foreclosure proceedings in connection with the delinquent payment of the 23 March 1980 installment, and upon condition that plaintiffs Shewmakes promptly tendered one year’s payment of principal and interest on the note, and further enjoined the exercise of any option to accelerate or otherwise advance the payments due under the note and mortgage.

The issue before this court is whether the trial court erred to reversal by enjoining the foreclosure based upon the evidence before it.

The law relevant to an action to enjoin a foreclosure under a power of sale is clearly stated in Abel v. Fricks, 219 Ala. 619, 123 So. 17 (1929):

Generally the purpose for which the power of sale is given being to afford an additional and more speedy remedy for the recovery of the debt, the mortgagor is by the contract bound to exercise necessary promptness in fulfilling it and cannot complain of a legitimate exercise of the power. If in any case it is attempted to pervert the power from its legitimate purpose and to use it for the purpose of oppressing the debtor or of enabling the creditor to acquire the property himself, a court of equity will enjoin a sale or will set it aside if made. Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963, and authorities there cited. Or, as was said in the case of Castleman v. Knight, 215 Ala. 429, 110 So. 911: ‘If he uses the power to sell, which he gets for that purpose, for another purpose, from any ill motive, to effect means and purposes of his own, or to serve the purposes of other individuals, the court considers that to be what it calls a fraud in the exercise of the power, because it is using the power for a purpose foreign to the legitimate purposes for which it was intended.’

Evidence upon the basis of which the trial court issued the injunction was taken ore tenus. When evidence is adduced ore tenus, the judgment of the trial court must be affirmed if fairly supported by the evidence under any reasonable aspect of it, regardless of what the reviewing court’s view of the evidence might be. Libscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). Putting the rule differently, the trial court’s finding must not be disturbed unless it is palpably wrong and manifestly unjust. Acker v. Protective Life Ins. Co., 353 So.2d 1150 (Ala.1977).

From the evidence of record in this case it is evident the permanent injunction was based upon findings, supported by the evidence, to the effect that the foreclosure and power of sale were being used to pervert those powers from their legitimate purpose of affording an additional and more speedy remedy for the recovery of the debt. Rather, they were being employed either to oppress the debtor or to enable the creditor itself to acquire the property. We cannot say the trial court was in error in reaching this result.

Additionally, a petition for injunctive relief is directed to the sound discretion of the trial court under the facts and circumstances of the particular case. City Council of the City of Prichard v. Cooper, 358 So.2d 440 (Ala.1978). We find no abuse of that discretion under the particular facts of this case. Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, ALMON, BEATTY and ADAMS, JJ., concur.

      . It appears from the record that the estate of Jerry S. Gillespie, deceased, substituted itself for the decedent and entered into a partnership with Larry W. Alley under the same terms and conditions, with the same rights and obligations as had been the case with Gillespie and Alley when Gillespie was living.