author: ADAMS, Justice.

text:
    David J. BISCHOFF v. Albert F. THOMASSON. Albert F. THOMASSON v. David J. BISCHOFF.
    79-538, 79-580.
    Supreme Court of Alabama.
    April 15, 1981.
    Rehearing Denied June 12, 1981.

      Carleton P. Ketcham, Jr., of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant cross-appellee.
    J. Michael Rediker, of Ritchie, Rediker & Warren, Birmingham, for appellee cross-appellant.
   ADAMS, Justice.

This detinue action involves the ownership of a diamond ring valued at about $35,000.00 Finding both parties innocent of any wrongdoing, the trial court ordered the ring to be sold and the proceeds divided between the two parties. Both parties appealed the judgment. The sale of the ring has been suspended pending disposition of these appeals. We reverse and remand with directions.

The plaintiff, David J. Bischoff, filed an action in detinue against the defendant, Albert F. Thomasson, to recover in specie a large platinum ring with diamonds belonging to Bischoff, or, in the alternative, to recover the fair market value of the ring at the time of the alleged conversion by Thom-asson. Thomasson counterclaimed, seeking a judgment that he is the owner of the ring, or in the alternative, awarding damages of $27,000.00, resulting from Bischoff’s negligence in his handling of the ring. In a nutshell, Bischoff had placed the ring with Candido Martinez, a diamond broker, to find a buyer. In the meantime, Martinez obtained a $35,000.00 business loan, guaranteed by Thomasson in return for a $5,000.00 fee and a pledge of the ring and other jewels. When Martinez defaulted on the loan, Thomasson paid off the loan and then took possession of the ring in satisfaction of Martinez’s obligation to pay the loan balance of $18,139.46, and Thomasson’s $5,000.00 fee.

Thomasson explicitly raised several affirmative defenses in his pleadings, primarily that his title to the ring is protected by either one of the following theories grounded in the Uniform Commercial Code:

1. His status of a bona fide purchaser for value. Code 1975, § 7-2-403(1).
2. His status of a buyer in the ordinary course of business. Code 1975, § 7-2-403(2).
3. His status of a secured creditor retaining collateral in satisfaction of an obligation. Code 1975, § 7-9-505(2).

Thomasson has since dropped his theory of buyer in the ordinary course of business on this appeal, and now claims he is protected as a creditor of a consignee pursuant to Code 1975, § 7-2-326(2). Admitting he did not explicitly plead this defense, Thomasson argues that his pleadings and the evidence in this case raise the consignment issue under our current liberal rules of pleading, specifically Rule 15(b), ARCP, allowing automatic amendment of pleadings to conform to the evidence.

Discovery consisted solely of the taking of depositions of the two principal parties. Documents pertaining to transactions involving the ring were obtained at the same time. The transcripts of the depositions were filed three weeks later. On the following day, the parties filed with the trial court their stipulation of facts which basically extrapolated and condensed the pertinent facts discovered via the depositions. The documents discovered were also made a part of the stipulation. We find the facts contained in the stipulation to be determinative of the issues at hand and find no need to refer to the depositions included in the record on appeal. Thus, for the purposes of our review, we will rely on the following relevant facts set out in part in the stipulation:

4. In their dealings with Candido Martinez, until early April 1979 when they learned of each other’s respective claimed interest in the diamond, both parties felt Martinez was an honest businessman and did not suspect any untruth in the representations which they say, respectively, Martinez made to them.
5. Candido Martinez throughout the relevant time period was a diamond salesman or diamond broker and worked for the firm of DeBeers Diamond Investment, Ltd., Scottsdale, Arizona, during 1976, 1977 and until early 1978 when Martinez and one Ray Evans organized a diamond merchant or diamond trading company known as Intergem, Inc., of Scottsdale, Arizona (sometimes also represented as “International Gems, Incorporated”).
6. The diamond was acquired by David J. Bischoff from another diamond dealer, Amiton Company, of New York City on about February 19, 1977. Within thirty days of its acquisition from Ami-ton, Bischoff mailed the diamond to Martinez, who was then with DeBeers Diamond Investment, Ltd. in Arizona, with instructions for Martinez to broker or sell the same for Bischoff (with Martinez to receive a 10% commission on the sale). On or about April 11, 1977 DeBeers Diamond Investment, Ltd. returned the diamond to Bischoff accompanied by a letter (Exhibit B). In May or June of 1977, Bischoff mailed the diamond back to De-Beers, who held it until early 1978, under an arrangement whereby it was to be offered for sale for Bischoff’s account by Martinez subject to Bischoff’s approval of terms. In early 1978 when Bischoff was advised that Martinez had left the employ of DeBeers Diamond Investment, Ltd. and had organized Intergem, Inc., Bischoff caused DeBeers Diamond Investment, Ltd. to return the diamond to him. Two or three months later, in or about April 1978, Bischoff mailed the diamond to Martinez at Intergem, Inc., in Arizona under the same arrangement as mentioned above. Martinez subsequently brought the diamond with him on a trip to Birmingham, Alabama when he met with Albert F. Thomasson, in June 1978, and then took the diamond back to Arizona with him when he left from the Birmingham meeting. On or about July 5, 1978 Martinez mailed the diamond by Federal Express and other precious stones from Arizona to Albert F. Thomas-son, who picked up the package at the Birmingham Airport, and the diamond thereafter remained in the possession of Albert F. Thomasson between July 6, 1978 and the date this suit was filed as collateral for Thomasson’s guarantee of Intergem’s loan from BTNB and foreclosure thereof.
The arrangement between Intergem and Martinez (“Borrowers”) on the one hand, and Thomasson (“guarantor”), on the other hand, was as follows:
(a) Birmingham Trust National Bank (“BTNB”) would loan $35,000.00 to the Borrowers and the note would be signed by Intergem as a corporation and by Martinez individually,
(b) In consideration of a pledge of collateral described below and a $5,000 fee, Thomasson would endorse the $35,-000 BTNB note as guarantor.
(c) The agreed collateral consisted of (i) 50 carats of sapphires, in one and two carat stones, and (ii) the diamond ring in question. The Borrowers, upon payment of one-half of the loan, could redeem either the sapphires or the ring, but not both.
Upon payment of $18,000 on principal of the note on July 18, 1978, Borrowers requested, and Thomasson delivered, a release to Borrowers of physical possession of the sapphires, thereafter leaving a $17,000 principal balance due on the note and solely the diamond in Thomasson’s possession as collateral. Martinez represented to Thomasson that the diamond was his (Martinez) personal possession orally and in the writing attached as Exhibit I. Bischoff had no knowledge of and had given no permission for the above pledge transaction and Thomasson had no knowledge of Bischoff’s title.
9. During the rest of 1978 following Bischoff’s delivery of the diamond to Martinez and Intergem on about April, 1978, Martinez from time to time told Bischoff on several occasions that Martinez was attempting to sell the diamond. Martinez verbally and in writing (see Exhibit G) in June, 1978 requested that Bis-choff permit Martinez to pledge the diamond in order that Intergem obtain working capital through borrowings, in exchange for a fee in the neighborhood of ten percent. Bischoff stated that he would consider such an arrangement if (i) the diamond were stored in a bank vault in Arizona and not removed therefrom without his permission and (ii) the loan arrangement details were cleared with Bischoff in advance. No specific loan or pledge details were furnished to Bischoff and Bischoff states he did not know of, or consent to, removal of the diamond from Arizona. Bischoff did not ask Intergem, Martinez or any banker for, or obtain, any safe deposit or other receipt from any bank in 1978 or 1979 showing custody or location of the diamond. Bischoff did not become concerned about the location of the diamond until he had difficulty reaching Martinez at the end of 1978 and first part of 1979. After he made specific inquiries of Ray Evans, then president of Intergem, in early 1979 as to the whereabouts of the diamond, he learned for the first time that the diamond had been sent to Birmingham, Alabama as a pledge in connection with a $35,000 loan to Inter-gem from BTNB. He then called BTNB who informed him of Thomasson’s guarantee and possession under pledge of the diamond. When Bischoff thereafter reached Martinez and confronted him by telephone with the above facts which Bis-choff had just learned, Martinez claimed he was authorized in 1978 by Bischoff to make this pledge. Bischoff responded that he had never given such authority and Martinez then replied that they must have “misunderstood” each other. Bis-choff has now filed suit in Wisconsin against Martinez, Evans and Intergem for damages with .respect to conversion or unauthorized use or taking of the diamond but to date has effected no recovery in such suit (the proceedings in which are at an early stage).

On this appeal, the parties have thoroughly briefed and argued the several defenses raised by Thomasson to this detinue action. We find it unnecessary to address all of them since, as will be shown, Thomas-son is the rightful owner of the ring due to his status as a secured creditor of a consignee (Martinez), Code 1975, § 7-2-326(2), who has properly complied with Code 1975, § 7-9-505(2) to retain the ring in satisfaction of Martinez’s obligation to him.

I. Reviewability of Consignment Defense

Before discussing whether the arrangement between Bischoff and Martinez constituted a “sale or return” or consignment sale controlled by Code 1975, § 7-2-326, we must address the preliminary issue of whether the theory of consignment sale was properly raised below. Bischoff argues it is not before us, since Thomasson did not amend his pleadings to specifically raise the defense. We disagree. As provided in Rule 15(b), ARCP:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. [Emphasis added.]

This Court has found implied consent where an opposing party fails to object to the introduction of evidence raising the disputed issue. See McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975). As noted in the Committee Comments to Rule 15, ARCP, “Under the rule where evidence is introduced or an issue raised with the express consent of the other party, or without objection from him, the pleadings ‘shall’ be deemed amended to conform to such evidence [emphasis added].”

We find that evidence of a consignment sale, as defined by Code 1975, § 7-2-326(3), was introduced in the stipulation of facts without objection from Bischoff, thereby automatically amending the pleadings to raise this defense. That statutory definition is as follows:

Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return.

Code 1975, § 7-2-326(3).

Evidence of all the elements of this definition is contained in the stipulation of facts. It is stipulated that the ring was delivered by Bischoff to Martinez by mail to be offered for sale. Paragraph 6, Stipulation of Facts. It is further stipulated to the effect that Martinez maintained a place of business at Scottsdale, Arizona, where he dealt in diamonds under a name other than Bischoff, i. e., Intergem, Inc. Paragraph 5, Stipulation of Facts. This fact is. also evidenced by the stipulated exhibits, such as the letterhead of Intergem, Inc., and its financial statement listing gems as its inventory. Bischoff’s argument that the diamond transactions or the pledge in this case must take place at the place of business, /. e., over the counter, is a strained construction of the statutory definition, unsupported by the case law and blind to business realities. See Vonins, Inc. v. Raff, 101 N.J. Super. 172, 243 A.2d 836 (1968).

Bischoff further argues that he made a sufficient objection to the injection of the consignment issue in his trial brief. We cannot agree. On the day the stipulation of facts was submitted to the trial court, the court heard oral arguments from the parties, but rendered no final judgment at that time. As noted above, evidence of a consignment sale had already been introduced without objection. Trial briefs were then submitted by the parties. Thomas-son’s brief argued for the first time the law as it applies to consignment sales. In a reply brief, Bischoff objected to these arguments as being outside the scope of the pleadings, but went on to address their merits anyway. Thus, the trial court was submitted full argument on this issue. It was not until some five months later that the trial court entered its final decree on motion by both the parties. The trial court had delayed the decree to await the outcome of Bischoff’s Wisconsin suit against Martinez. At no time during these five months did Bischoff seek a ruling from the trial court on the raising of the consignment issue in Thomasson’s brief. Prior to requesting the trial court to render a final decision, Bischoff did not ask for the record to be reopened to put in additional evidence on this issue, nor did he request further arguments. Bischoff could have refused to join in any request for submission on the record or he could have filed a post-ruling motion to set aside the decree and reopen the record. But he took none of these steps. See McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975). Having joined in the request for submission on the record as it then stood and having failed to object to the stipulated evidence of a consignment sale, Bischoff is bound by the record and state of the proceedings at that time. He cannot now on this appeal, and for the first time, seek to exclude this defense from the case.

II. Applicability of Code 1975, § 7-2-326, Consignment Sales

Finding that the consignment issue was properly before the trial court, and thus merits our review, we now address the applicability of Code 1975, § 7-2-326, to the facts of this case. As already noted, facts were stipulated which met the essential elements of the statutory definition of a consignment sale. Because of the confusion surrounding the nature of consignment sales under the UCC, we think it beneficial to explore the major arguments made by Bischoff against the applicability of § 7-2-326.

Initially, Bischoff claims his arrangement with Martinez was merely one of agency. He also argues that Martinez was nothing more than a broker. We note that, unlike consignees, brokers are generally not given possession of the item intended to be sold. 12 C.J.S. Brokers § 4 (1980). In any event, the elements of all these relationships are wrapped up in the notion of consignment sale. As a much quoted commentator on consignment sales has stated:

The hallmark of the consignment ... is the absence of an absolute obligation on the part of the consignee to pay for the goods. He is not obligated to pay for the goods because he is not a buyer, but only an agent. The title does not move to him or through him. The title moves from the principal-consignor to the purchaser. “A consignment of goods for sale does not pass the title at any time, nor does it contemplate that it should be passed. The very term implies an agency, and the title is in the consignor, the consignee being his agent.” Starting at this doctrinal baseline, it has been relatively easy for courts to find no consignment where the dealer is permitted to act like something more than a mere agent. Thus, if the dealer is given the right to sell the goods at any price or under such terms as he sees fit, keeping as his profit all he receives over the invoice price, the courts are apt to find no consignment, even though a formal consignment agreement has been executed.

Hawkland, Consignment Selling Under the Uniform Commercial Code, 67 Commercial L.J. 146, 147 (1962) (footnotes omitted).

As Hawkland notes, agency is a crucial element of the consignment relationship. In effect, a consignment is a special kind of agency involving the delivery of goods to one, who may be a broker as in this case, for the purpose of finding a buyer. Ultimately, the labeling of an arrangement as a consignment sale for purposes of the UCC will be determined by the statutory definition contained in Code 1975, § 7 — 2-326(3). In this case, that definition has been met.

Bischoff’s argument that there must be a contract of sale, or a contemplated one, in the traditional sense of commercial law, see Code 1975, § 7-2-106(1), ignores the special agency nature of the consignment relationship. As Hawkland observed, “The title does not move to him [the consignee] or through him. The title moves from the principal [the consignor] to the purchaser.” Hawkland, Consignment Selling Under the Uniform Commercial Code, 67 Commercial L.J. 146, 147 (1962). This is not the traditional concept of a sales contract. A similar argument that there must be a contract for sale was rejected by the Supreme Judicial Court of Massachusetts, one of the first states to adopt the UCC, in General Electric Co. v. Pettingell Supply Co., 347 Mass. 631, 199 N.E.2d 326, 328 (1964), viz.:

The plaintiff contends that § 2-326 is applicable only to cases where the relationship between manufacturer and dealer is that of seller and buyer and that inasmuch as the contract in suit establishes only a principal-agent relationship between the plaintiff and Pettingell no part of § 2-326 is applicable.
We disagree with the contention that § 2-326(3) is inapplicable. That subsection is by its terms concerned with certain transactions which, although they may not be sales under the definition of G.L. c. 106, § 2-106(1), are nonetheless “deemed to be on sale or return” “with respect to claims of creditors of the person conducting the business * * *.”
The plaintiff relies on the wording of the second sentence of § 2-326(3) which states that the subsection applies even though there is a reservation of title “to the person making delivery until payment or resale ” (emphasis supplied). From this the plaintiff argues that the subsection applies only where the manufacturer has sold the goods to the dealer because otherwise there could be no “resale.” The second sentence gives examples of transactions to which the subsection applies and does not limit the plain meaning of the first sentence. The subsection is concerned with transactions “deemed” to be of “sale or return” and the first sentence is carefully drafted to apply to transactions which might not ordinarily be characterized as sales. [Emphasis added.]

See Harold Klein & Co., Inc. v. Lopardo, 113 N.H. 400, 308 A.2d 538 (1973); Baumgold Brothers, Inc. v. Allan M. Fox Company, East, 375 F.Supp. 807 (N.D.Ohio 1973).

Bischoff further argues that the only Alabama cases applying Code 1975, § 7-2-326(3), found that there was a contract for sale in the traditional sense, citing Modular Housing, Inc. v. G. A. C. Trans-World Acceptance Corp., 288 Ala. 77, 257 So.2d 326 (1972); Blowers v. First National Bank of Huntsville, 45 Ala.App. 485, 232 So.2d 666 (1970). This is a misreading of those cases. In Blowers, the Court of Civil Appeals specifically held:

The evidence as contained in the record before this court was amply sufficient to warrant the trial judge in finding that an oral contract existed between Doyle Brady Auto Sales, Inc. [consignee] and National Car Rentals [consignor] for the possession and disposition of the four vehicles in question, and that the vehicles were on Brady’s auto lot for sale, and in line for sale.

45 Ala.App. at 492, 232 So.2d 666 (emphasis added).

There is nothing in this language to indicate a finding of a contract for sale. Quite the contrary, the court upheld a finding of an oral contract for the possession and disposition of the consigned goods. The court reached its conclusion after weighing conflicting evidence on the nature of the agreement and examining in detail the history of dealings between the parties. Two kinds of arrangements were employed by the parties in the past — an outright sale and a consignment arrangement outlined in the following testimony summarized by the court:

Mr. Tatum [manager for N. C. R.] on the other hand testified that Brady had sold some twenty-five to fifty motor vehicles for National Car Rentals in the capacity of a commission agent.
.... Mr. Tatum testified that when the automobiles were on consignment to Brady, that National Car Rentals still had title and right to possession of them, and if Doyle Brady obtained a purchaser for them, he would pay National Car Rentals for the motor vehicles after they were sold.
Mr. Tatum also stated that in a few instances, title to the motor vehicles would be given directly to the ultimate purchaser by National Car Rentals. In some instances National Car Rentals would turn over the motor vehicle and the keys thereto to Mr. Brady. There were also times when the bill of sale would be made out to the ultimate purchaser, but given to Mr. Brady to be handed to the purchaser. Furthermore, the tag receipts to the motor vehicles were usually transferred directly to the purchaser, although in a few instances they were given to Mr. Brady.

45 Ala.App. at 487-88, 232 So.2d 666.

It is clear that the court did not rely on the evidence of an outright sale; such is not the basis of a finding of a “sale or return” within the definition of Code 1975, § 7 — 2-326. Rather, the court’s affirmance of a consignment sale finding can only be based on the testimony of Mr. Tatum regarding an agency relationship without a contract for sale, similar in many respects to the instant case. Similarly, there is nothing in the brief opinion of Modular Housing, Inc., to indicate that the court based its finding of a Code 1975, § 7-2-326(3), consignment on the existence of a contract for sale. In fact, the nature of the agreement between the consignor and consignee was not even explored by this Court in that case.

Finally, Bischoff relies on two cases, which he claims are directly on point, to take the instant fact situation out of the scope of Code 1975, § 7-2-326. Allgeier v. Campisi, 117 Ga.App. 105, 159 S.E.2d 458 (1968); Founders Investment Corp. v. Fegett (not officially reported), 23 UCC Rep. 903 (Ky.Ct.App.1978). In Allgeier, the Georgia court held:

Where, as in the present case, an individual owner of an automobile delivers it to an automobile dealer for the purpose of having said dealer secure offers for the purchase thereof, and to sell the same upon approval of an offer by the individual owner, the automobile dealer to receive a commission of a set sum regardless of the sale price, such transaction is not a “sale or return” transaction between a buyer and a seller within the meaning of the Georgia Uniform Commercial Code § 109A-2-326, so as to make said automobile subject to levy and sale upon executions obtained against the automobile dealer by creditors of the dealer.

117 Ga.App. at 105, 159 S.E.2d 458.

Finding a fact situation similar to that of Allgeier, the Kentucky court denied the applicability of U.C.C. § 2-326, stating, “At most, we glean that Griffee intended to create a limited bailment or sales agency in Fegett. Fegett has no power to sell the trailer in question. All he could do was receive and transmit offers to Griffee.” 23 UCC Rep. at 905. Adopting the rule of Allgeier, the Kentucky court reasoned:

We believe it would be an unjust and unwise policy to impose upon an individual owner, as distinguished from a commercial one, the deemed sale or return provision of KRS 355.2-326(3) unless the underlying facts indicate that a sale or return was intended or did, in fact, occur. Our decision does no disservice to the utilization of the Uniform Commercial Code between commercial dealers. It does reserve protection to the private individual owner vis-a-vis the commercial financier when such owner merely attempts, as in this case, to utilize the marketing or sales services of a commercial dealer with no intention of transferring any ownership interest to such dealer. Because transactions of the type in question are relatively few we do not think that commercial dealers or financiers will suffer unduly, but we do believe that the individual owner, to whom the loss in a given situation would be relatively more severe, will be afforded fair and reasonable protection.

23 UCC Rep. at 906.

We cannot agree with the reasoning of these two maverick cases. Code 1975, § 7-2-326, makes no distinction between commercial and individual owners who consign their goods. As stated in Code 1975, § 7-2-102, “Unless the context otherwise requires, this article [Article 2] applies to transactions in goods . . . . ” The instant case involves such a transaction in goods and meets all the other requirements of Code 1975, § 7-2-326. If the drafters of the consignment provision had intended to limit its scope to commercial consignors, they could have inserted a limiting phrase such as “between merchants.” This has been utilized throughout Article 2 of the UCC. See, e. g., Code 1975, §§ 7-2-201(2), -205, -207(2), and -209(2). Yet, it is noticeably absent in the consignment provision.

No doubt the Georgia and Kentucky courts operated on sympathy for the individual consumer who lost his car or mobile home. While we do not feel that the comprehensive statutory scheme of the UCC should be eroded by an ad hoc balancing of the equities, we note the instant case does not invoke the same sympathy given sway in Allgeier and Fegett. Bischoff is no inexperienced consumer seeking to sell his personal car or mobile home. Rather, he has bought a diamond strictly for investment purposes, hoping to sell at a profit. An individual playing the diamond market deserves no special consideration from the courts.

The Fegett case also relies on a finding that the parties only “intended to create a limited bailment or sales agency. . . . ” 23 UCC Rep. at 905. The intention of the parties is not the determinative factor for the applicability of Code 1975, § 7-2-326. Cf. Bukfor, Inc. v. Star Jewelry Co., Inc., 552 S.W.2d 522 (Tex.Civ.App.1977). (Finding a consignment sale under U.C.C. § 2-326(3), the Texas court noted, “The intention of the parties is no longer determinative of the question of whether a transaction is a sale or consignment.”) The test is simply one of looking at the outwardly visible aspects of the transaction outlined in Code 1975, § 7-2-326(3), viz.: (1) delivery of possession to the consignee, (2) engaging in the business of selling such types of items by the consignee, and (3) failure of the consignor to give public notice of his retained interest in the goods. This objective test was followed by this Court in Modular Housing, Inc., which held: “In view of Section 2-326(3) of the Uniform Commercial Code and the Blowers case, and the fact that appellant is merely relying on an undisclosed oral agreement between it and Lefever, we are constrained to affirm the action of the trial court.” 288 Ala. at 80, 257 So.2d 326 (emphasis added).

As stated by the Wisconsin Supreme Court in Columbia International Corp. v. Kempler, 46 Wis.2d 550, 175 N.W.2d 465, 469 (1970), the purpose of U.C.C. § 2-326 is to permit people “to deal with a debtor upon the assumption that all property in his possession is unencumbered, unless the contrary is indicated by their own knowledge or by public records.” The policy of the UCC would be undermined if an owner such as Bischoff could show by proof of undisclosed mental operations that the transaction was something other than a consignment. We simply cannot accept the rationale of Fegett. We agree with the sound criticism of Fegett voiced by the editors Willier & Hart in 6(c) Bender's Uniform Commercial Code Reporter — Digest, Case, A — 41, p. 281 (Supp. June 1980), viz.:

It is a narrow reading of Section 2— 326(3) to say that the owner did not deliver the mobile home to the dealer “for sale”, but the court emphasized the owner’s discretion regarding the offers to conclude that the owner intended at most only a limited bailment or sales agency. Section 2-326(3) is not based on intent but rather objective circumstances to characterize a delivery as on sale or return with respect to the dealer's credi tors. The court also emphasized the owner’s retention of title which is irrelevant under Section 2-326(3). Apparently the court here was more concerned with the harshness of allowing consignors to be subjected to a provision which it feels should be restricted to transactions between commercial parties. [Emphasis added],

Bischoff makes numerous additional arguments that Code 1975, § 7-2-326, is not applicable to the instant case. We find it unnecessary to address these as we find no merit or substantial support for these arguments.

Finding that the transaction between Bischoff and Martinez constituted a “sale or return” within the objective test provided in Code 1975, § 7-2-326(3), thereby subjecting the ring to the claims of Martinez’s creditors, we now consider whether Bischoff is protected by any of the three exceptions to the rule contained within the provision, viz.:

However, this subsection is not applicable if the person making delivery:
(a) Complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
(b) Establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
(c) Complies with the filing provisions of the article on secured transactions (article 9).

Code 1975, § 7-2-326(3).

There is no “sign law” in this state available to Bischoff to protect himself. The only other affirmative action he could have taken to protect his interest was to file a financing statement. It is undisputed that he did not avail himself of this simple procedure. Nevertheless, Bischoff claims he has proved that Martinez is generally known by his creditors to be substantially engaged in selling the goods of others. We disagree. Bischoff argues that the stipulation that Martinez was a broker, one who by definition deals in goods of others, was sufficient proof. This is a flimsy inference indeed. What two individuals, Bischoff and Thomasson, consider Martinez to be is no indication of how Martinez is generally viewed by his creditors. See Sussen Rubber Co. v. Hertz, 19 Ohio App.2d 1, 249 N.E.2d 65 (1969). The most that can be drawn from the stipulation is that Martinez substantially engaged in selling the goods of others. This alone does not support the conclusion that Martinez is “generally known by his creditors” to be doing so. See American National Bank v. Tina Marie Homes, Inc., 28 Colo.App. 477, 476 P.2d 573 (1970).

III. Remedies Under Code 1975, 7 — 9— 505(2)

It is undisputed that Thomasson properly complied with the provisions of Code 1975, § 7-9-505(2), viz.:

In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debt- or and except in the case of consumer goods to any other secured party who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or is known by the secured party in possession to have a security interest in it. If the debtor or other person entitled to receive notification objects in writing within 30 days from the receipt of the notification or if any other secured party objects in writing within 30 days after the secured party obtains possession the secured party must dispose of the collateral under section 7-9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor’s obligation. [Emphasis added.]

It is further undisputed that Bischoff did not object in writing within 30 days of his receipt of the notification from Thomasson. Cf. Waldrep v. Jochum, 337 So.2d 334 (Ala.1976) (proper written objection given). We note that, under the circumstances of this case, Bischoff was a proper object of a written notice “to the debtor” to effect the remedy of retaining the collateral. See Code 1975, §§ 7-9-105(l)(d) and -112(b). Thus, Thomasson claims he is entitled to possession of the ring on the strength of this provision alone. We agree with Bis-choff that this is merely bootstrapping. As pointed out by Bischoff, this remedy is only available to a secured party who attains that status via the requirements of Code 1975, § 7-9-204(1), viz.: “A security interest cannot attach until there is agreement (subsection (3) of section 7 — 1—201) that it attach and value is given and the debtor has rights in the collateral. [Emphasis added.]” Thomasson has tried to bootstrap himself around the prerequisite that the debtor (Martinez) have “rights in the collateral” (the ring). Nevertheless, we have established that Martinez did indeed have “rights in the collateral” by virtue of his status as a Code 1975, § 7-2-326, consignee whose goods are subject to the claims of his creditors. This use of U.C.C. § 2-326 to supply the necessary “rights in collateral” has been adopted by other jurisdictions. See General Electric Credit Corp. v. Town & Country Mobile Homes, 117 Ariz. 562, 574 P.2d 50 (1977); Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976); James Talcott, Inc. v. Franklin National Bank of Minneapolis, 292 Minn. 277, 194 N.W.2d 775 (1972); Sussen Rubber Co. v. Hertz, 19 Ohio App.2d 1, 249 N.E.2d 65 (1969). In both Modular Housing, Inc., and Blowers, a perfected secured creditor was given priority over the consignor of goods, implicitly recognizing that the consignee had rights in the collateral for the secured party’s interest to attach. As noted in J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 23 — 4, at 795 (1972):

If the debtor acquires goods from a third party merely on consignment, he may, under appropriate circumstances, pass a security interest in the goods to his creditor that will cut off the interest of the consignor. That is, a debtor may acquire “rights in the collateral” where the collateral consists merely of consigned goods. [Footnote omitted.]

Finding that Thomasson properly gave notice to Bischoff of his intent to retain the ring and Bischoff failed to object in writing pursuant to Code 1975, § 7 — 9— 505(2), we hold that Thomasson is entitled to retain possession of the ring. The judgment of the trial court, which failed to establish the priority of the interests of these parties in the ring, is due to be reversed and remanded. The trial court is to enter a judgment in favor of Thomasson on his counterclaim for title to the ring.

REVERSED AND REMANDED WITH DIRECTIONS.

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

ALMON, J., not sitting.


source: Caselaw Access Project

author: BEATTY, Justice. ALMON, Justice

license: Public Domain

text:
    Robin TAYLOR v. BAPTIST MEDICAL CENTER, INC., a Corporation, and Dr. Herman Hassell.
    79-309.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied June 12, 1981.

      John A. Taber and J. McGowin Williamson, Greenville, for appellant.
    Thomas H. Keene and Charles Stakely, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
   BEATTY, Justice.

This is an appeal from a judgment which was granted in favor of a physician and hospital. We affirm in part, reverse in part, and remand.

Mrs. Robin Taylor was under the obstetrical care of Dr. Herman Hassell when, approximately twenty-three weeks into her pregnancy, she underwent an emergency appendectomy. At that time, Mrs. Taylor’s surgeon explained to her that the surgery could have an adverse effect upon her pregnancy. Three weeks later Mrs. Taylor began to experience labor pains. When Dr. Hassell was notified of this fact at 3:00 a. m., he instructed her to go Baptist Medical Center Hospital. Although the nurses at Baptist kept him apprised of Mrs. Taylor’s progress via several telephone conversations, Dr. Hassell did not arrive at the hospital until ten minutes after Mrs. Taylor had delivered at 11:30 a. m. The child was either stillborn or died within moments of birth. Mrs. Taylor was attended by two nurses throughout her labor and delivery. No physician was present during this time.

Mrs. Taylor filed suit against Dr. Hassell and Baptist Medical Center Hospital. The claim against Dr. Hassell consisted of a count in negligence and breach of contract of care. The claim against Baptist was for negligence in failing to notify Dr. Hassell, and in failing to provide another physician or other competent medical attendants. Because of this conduct she alleges that she suffered physical pain and mental anguish. There is no claim for wrongful death of the child. The medical testimony was uncon-tradicted that because of the age and stage of the fetus, i. e., weight of one pound, eight ounces, fused eyelids, transparent skin with no subcutaneous tissue, nothing could have been done which might have saved the child’s life.

In support of their motions for summary judgment, the defendants offered the depositions of the two nurses who were on duty during Mrs. Taylor’s labor and delivery; the deposition of Dr. Dorrough, the Chief of Services for the Baptist Medical Center Obstetric Unit; and the deposition of Dr. Has-sell. Mrs. Taylor responded by offering her own deposition in addition to those offered by the defendants. All three parties submitted briefs and orally argued their respective positions. After a review of the materials submitted, the trial judge granted both defense motions. Specifically, he found no genuine issue of material fact with regard to the liability of Baptist, either as to negligence, or proximate causation. Further, he found that Mrs. Taylor failed to offer any evidence to establish that she suffered any damage, either mental, emotional or physical, because of Dr. Hassell’s failure to attend, nor did she have any compensable damages because the emotional distress she suffered was inseparable from that suffered as a result of the loss of her child.

I

Mrs. Taylor contends summary judgment was improperly granted on her claim that Baptist negligently failed to “notify her physician, or obtain a physician for her or to supply her with competent medical attendants in the delivery of her child.” We disagree.

The evidence is clear that the nurses at Baptist notified Dr. Hassell of Mrs. Taylor’s admittance and progress. She relies upon Birmingham Baptist Hospital v. Branton, 216 Ala. 326, 113 So. 79 (1927), for the proposition that the negligence of the nurses in failing to call her physician is a jury question, and not a matter for expert testimony. That proposition is thus inapplicable to this case. In Branton the nurses failed to comply with the plaintiff’s repeated requests to notify her obstetrician of the imminent birth of her child. In this case, on the other hand the evidence is uncontro-verted that the nurses notified Dr. Hassell and kept him informed of Mrs. Taylor’s progress.

The issue of whether Baptist acted negligently in failing to obtain another physician in Dr. Hassell’s absence is answered by reference to testimony that Dr. Hassell told the nurses he would be “right on over”— thus leading the nurses to reasonably conclude no other physician would be needed— as well as the following deposition testimony of Dr. Dorrough:

Q. Based upon your examination of the records, do you have an opinion as to whether the nurses .. . and the Montgomery Baptist Hospital exercised with Robin Taylor the same degree of care, skill and diligence as hospitals in this community ordinarily have and exercise in a similar case?
A. Yes.
Q. In your opinion, did they?
A. They did.
Q. Did you see any hospital malpractice in connection with this case?
A. No.

Finally, the evidence is uncontroverted that Baptist did in fact supply Mrs. Taylor with competent medical attendants in the delivery of the child. Both nurses who attended Mrs. Taylor throughout her labor and delivery were well qualified nurses with considerable experience in the area of childbirth.

Based upon the evidence and testimony of Dr. Dorrough, we conclude that summary judgment was properly entered in favor of Baptist Medical Center.

II

Mrs. Taylor’s claim that summary judgment was improperly granted on her tort claim against Dr. Hassell, i. e., that he acted negligently when he failed to attend during her labor and delivery, is well taken.

Mrs. Taylor seeks to recover for the mental anguish she suffered as a result of Dr. Hassell’s failure to attend. We note that Mrs. Taylor has described the consequences of Dr. Hassell’s conduct as “great physical pain and mental anguish.” It is clear that she has claimed no actual physical injury. Historically, the rule governing recovery of damages for such claims was: (

Where there has been a physical injury to a person, under circumstances warranting the recovery of compensatory damages therefor, mental suffering, which is a natural incident thereto, furnishes one of the elements of recoverable damages, and in such case the jury may always consider the element of mental suffering and award compensation therefor. The body and mind are so closely connected that the mind is, of necessity, affected by any injury to the body. — 8 A. & E. Ency. of Law, pp. 662, 663, 664. While there have been many instances in which the courts, in cases of simple negligence merely, because there was no physical injury, but where the circumstances showed great mental agony, have denied relief, they have universally allowed mental suffering to be considered as an element of damages in all cases where there is the slightest physical injury accompanied by circumstances showing mental distress.—Warren v. Boston R. R. Co., 163 Mass. 484, 40 N.E. 895; 8 A. & E. Ency. of Law, p. 666. [Birmingham Water Works Co. v. Martini, 2 Ala.App. 652, 657-58, 56 So. 830 (1911).]

However this Court has recently explored anew the general requirement that physical injury be present in any recovery for mental anguish in American Road Insurance Company v. Inmon, Ala., 394 So.2d 361 (1980):

Traditionally, damages for mental anguish alone have not been recoverable in this jurisdiction. Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 So. 316 (1909). However, if the mental suffering has been accompanied by some physical injury, damages for mental suffering have been allowed. East Ala. Express Co. v. Dupes, 271 Ala. 504,124 So.2d 809 (1960) (plaintiff who sustained whiplash and fracture allowed to recover for her “worry” about the future result of her injury); Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932) (pregnant tenant who was injured from fall from steps allowed to recover from landlord damages for mental anguish (fear) because she was “caused to be in danger of a miscarriage .. . ”); and see Bryson v. Phelphs, 23 Ala.App. 346, 125 So. 795; cert. den., 220 Ala. 389, 125 So. 798 (1930) (physical damage to his automobile allowed the owner to recover damages for his delay, vexation, annoyance and mental anguish).
Other decisions and authorities reveal a remedial situation hypocritical in nature. For example, the passenger of a carrier is allowed to recover for the use of insulting language causing mental suffering because the courts have found an implied promise in fact to provide protection from such abuse. Seaboard Air Line Ry. Co. v. Mobley, 194 Ala. 211, 69 So. 614 (1915) (reversed on other grounds in Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462 (1922)). Likewise it was an easy step to apply the theory of a contractual duty implied by law to make an innkeeper similarly liable. Dixon v. Hotel Tutwiler Operating Co., 214 Ala. 396, 108 So. 26 (1926). Debt collection cases allow recovery when there is a traditional tort, such as slander or a personal trespass, Maze v. Employees’ Loan Soc., 217 Ala. 44, 114 So. 574 (1927); and a trespass quare clausum fregit is also sufficient to allow damages for “nervous excitement” when no physical violence was suffered. Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906). These decisions feign to insist upon the presence of a tort of long standing when it is perfectly obvious that any injury from the traditional tort is slight and the damages sought for the mental disturbance constitute the primary (if not the sole) reason for having initiated the action. Consider Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1974) (unauthorized disclosure by physician of his patient’s condition constituted prima facie invasion of right of privacy which would authorize damages for mental suffering, shame or humiliation); Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975) (fraudulent misrepresentation made willfully authorized recovery for shame, humiliation, and mental anguish, adopting Morris v. MacNab, N.J. [25 N.J. 271] 135 A.2d 657 (1957), which stated: “[W]here the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish.”). The damages recoverable for mental or emotional harm thus have been described as “parasitic,” that is, the right to recover for them has been dependent upon recovery for another independent, or separate, tort recognized at common law. Magru-der, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard L.Rev. 1033, 1048 (1936). This distinction, however, was neither significant nor followed in Herman Saks & Sons v. Ivey, 26 Ala.App. 240,157 So. 265 (1934). In that case the defendant had sent to the plaintiff a collection letter whose terms violated a criminal statute (Code of 1923 §§ 3194, 3195; Cf. Code of 1975, § 13-6-17) imposing a sanction against sending abusive letters to another which might tend to breach the peace. The Court of Appeals, in recognizing a civil cause of action in the recipient, authorized recovery of substantial damages for the plaintiff’s mental anguish, annoyance and inconvenience (plaintiff also alleged that she had been made “sick and sore for a long period of time”). And in Hamner v. Bradley, 289 Ala. 624, 270 So.2d 81 (1972), involving allegations of abusive, insulting, provocative and threatening language by an insurance agent toward a hospitalization policyholder, a convincing dissent recognized
a marked tendency on the part of many jurisdictions to recognize that the intentional infliction of mental distress by extreme and outrageous conduct constitutes a cause of action in itself, apart from any traditional tort,
citing cases from other jurisdictions, articles on the subject, and Restatement (Second) of Torts § 46 (1948).

While it is true that Inmon dealt with the intentional tort of outrageous conduct, nevertheless the analysis of the damages aspect was not by virtue of that fact limited solely to the tort of outrageous conduct nor should it be so limited logically. Indeed, it is likely that the instant case would not have been the first case to consider the application of this theory of damages had the appeal in Peddycoart v. City of Birmingham, Ala., 392 So.2d 536 (1980) presented that issue. As we pointed out in that case, although the plaintiff had alleged a cause of action in negligence and claimed damages solely for mental anguish, that issue was not preserved for appellate review. Thus we did not have the opportunity in that case to determine whether the plaintiff could recover damages for mental anguish alone in a negligence action.

That issue is before us in this case, accordingly, for the first time. As the quoted discussion aptly discloses, to continue to require physical injury caused by culpable tortious conduct, when mental suffering may be equally recognizable standing alone, would be an adherence to Procrustean principles which have little or no resemblance to medical realities. Thus we hold that summary judgment against Mrs. Taylor on the tort count was inappropriate.

Ill

Mrs. Taylor argues that summary judgment was also improperly granted as to her claim for mental anguish arising from Dr. Hassell’s alleged breach of his contract to “provide her with pre-natal, deliver[y], and post-natal care in connection with her pregnancy and impending child birth.” We agree.

This Court has recognized the right of a plaintiff to sue for breach of implied contracts arising from the rendition of medical services. See, e. g., Horton v. Northeast Ala. Regional Medical Center, Inc., Ala., 334 So.2d 885 (1976); Berry v, Druid City Hospital Board, Ala., 333 So.2d 796 (1976). In order to state a cause of action, “a complaint grounded in implied contract must state facts and circumstances — the acts and conduct of the parties from which the contract alleged can be inferred.” Berry v. Druid City Hospital Board, supra, at 801. The plaintiff must also establish a breach of that contract. However, the mere showing that the services contracted for were not rendered does not establish a breach: “Whether a breach of contract has occurred must be tested in light of what has been promised.” Hall v. City of Huntsville, 291 Ala. 124, 278 So.2d 708, 711 (1973). The terms of the promise in this case are the same as that which establishes the standard for negligence:

The relation of physician and patient is not necessarily contractual, but may be consensual merely, and whether one or the other, when the physician assumes and undertakes to act in this relation, he incurs the consequent duty, exacted of the relation, that in the practice of the profession he will exercise that reasonable and ordinary care, skill, and diligence exercised generally by members of his profession in the same neighborhood, and a failure to observe this degree of care and diligence is negligence. This rule is elementary, and has its foundation in most persuasive considerations of public policy. . . . [Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1928) (emphasis added.) Accord, Hall v. City of Huntsville, supra.]

Although the general rule in Alabama is that mental anguish is not a recoverable element of damages in an action for breach of contract, Sanford v. Western Life Insurance Co., Ala., 368 So.2d 260 (1979); Stead v. Blue Cross-Blue Shield of Alabama, Ala., 346 So.2d 1140 (1977), an exception to this rule, pertinent to the case at hand, has been recognized by this Court:

[W]here the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefore be taken into consideration and awarded.. . . [Stead v. Blue Cross-Blue Shield of Alabama, supra, (quoting Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932)).]

See also, Alabama Water Service Co. v. Wakefield, 231 Ala. 112, 163 So. 626 (1935); Taxicab Co. v. Grant, 3 Ala.App. 393, 57 So. 141 (1911).

We conclude that the tenor of Mrs. Taylor’s complaint against Dr. Hassell and the deposition of Dr. Dorrough raise a scintilla of evidence of both a contract and a breach thereof. Therefore, summary judgment was improperly granted on this count and is due to be reversed. Furthermore, we are of the opinion that, upon sufficient proof of an implied contract, breach and damages, Mrs. Taylor may recover for mental anguish which may have resulted from the breach of Dr. Hassell’s implied contract of care.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

JONES, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON, J., concur in part and dissent in part.

MADDOX and FAULKNER, JJ., are re-cused.

ALMON, Justice

(concurring in part and dissenting in part).

I disagree with that portion of the majority opinion which has the effect of allowing damages in all tort cases for emotional distress in the absence of any physical injury whatsoever. This is a departure from the long standing rule in this jurisdiction.

With the exception of those cases where the emotional distress was intentionally inflicted, Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906), arose from a breach of contract, Stead v. Blue Cross-Blue Shield of Alabama, 346 So.2d 1140 (Ala.1977), or resulted from the defendant’s fraudulent conduct, Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975), our courts have consistently recognized the rule that physical injury is a prerequisite to recovery for mental anguish. See e. g., East Alabama Express Co. v. Dupes, 271 Ala. 504, 124 So.2d 809 (1960); B. F. Goodrich Co. v. Hughes, 239 Ala. 373, 194 So. 842 (1940); Gregath v. Bates, 359 So.2d 404 (Ala.Civ.App.1978).

TORBERT, C. J., concurs.


author: JONES, Justice. JONES, Justice.

text:
    The CITY OF HOMEWOOD, a Municipal Corporation v. Charles E. CAFFEE.
    79-621.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied June 19, 1981.

      Irvine C. Porter and James W. Porter, II, Birmingham, for appellant.
    Donald L. Newsom, of Corretti & New-som, Birmingham, for appellee.
   JONES, Justice.

In April, 1928, the Mayfair Land Company filed in the Probate Office of Jefferson County, Alabama, a subdivision plat known as the Survey of Mayfair, and situated within the City of Homewood, Alabama. This survey contained approximately 210 lots, of which 161 residential lots are less than 65 feet in width. On April 29, 1929, Charles A. Fell purchased Lot 31, and built a residence thereon. In September of 1937, Fell bought Lot 32, and subsequently acquired Lot 30 in December of 1940. All three lots are 60 feet wide at their building line.

On December 11,1961, The City of Home-wood, Alabama, adopted a zoning ordinance which provided, inter alia, as follows: “The minimum lot size in the R-2 District shall be: Area in square feet, 7,500; width [in] feet at building line, 65.”

Charles A. Fell died in 1969 and title to Lots 30, 31, and 32 was vested in the co-trustees under his last will and testament. The co-trustees of the Charles A. Fell trust listed all three lots with Appellee, Charles E. Caffee, for sale. Caffee was unable to sell the house and all three lots to a single purchaser and, in order to effect a sale of the home on Lot 31, he purchased Lots 30 and 32 in his own name. Thereafter, Caf-fee sought to obtain building permits for separate structures on Lots 30 and 32. The request was directed to the Building Regulations Superintendent of Homewood, and sought a five-foot variance on Lots 30 and 32 from the required minimum width at the building line of 65 feet.

At the time Caffee applied for the building permits and the five-foot variance on Lots 30 and 32, the City of Homewood had no designated Board of Zoning Adjustments. Approximately five months later, such a body was instituted by the Home-wood City Council. On October 13, 1977, despite an affirmative vote by the Board of 3 to 2, the requested relief for a variance was denied. Thereafter, Caffee appealed this order of denial to the Circuit Court of Jefferson County. During the pendency of this appeal, Caffee instituted a separate and distinct cause of action in the Jefferson County Circuit Court alleging the unconstitutionality of the Homewood zoning ordinance as applied to him.

On March 20, 1980, with Caffee’s appeal from the Board of Zoning Adjustment’s decision still unresolved, the circuit court in the cause now before this Court entered a judgment which, inter alia, declared: 1) The Homewood ordinance under which Caf-fee was denied his permits was unconstitutional in its application to Caffee; 2) the action of the City of Homewood in denying Caffee’s request for a variance was discriminatory and violative of the equal protection and due process clauses of the Alabama and United States Constitutions; and, 3) the action of the Board of Zoning Adjustments was not “fairly debatable” and was arbitrary and capricious. (See, Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1981)).

The City’s motion for a new trial or application for rehearing was denied on May 5, 1980. Thus, the City appeals. We affirm.

I. JURISDICTION OF THE CIRCUIT COURT.

At the outset, the City asserts that the trial court erred by assuming jurisdiction of this cause while at the same time allegedly ignoring the existence of Caffee’s appeal to the circuit court from the adverse decision of the Homewood Board of Zoning Adjustments. Stated another way, the City contends that the circuit court was without jurisdiction to consider Caffee’s constitutionally grounded claims because Caffee had then pending another action attacking the denial of the variance by the Home-wood authority. We disagree.

Summarily stated, Appellant’s position is that a court which first assumes jurisdiction of a cause must be allowed to pursue and exercise its jurisdiction to the exclusion of all coordinate tribunals where the subject matter involved is within the competency of the court first assuming jurisdiction. Ex parte State ex rel. Ussery, 285 Ala. 279, 231 So.2d 314 (1970). While this is a correct statement of the general rule, it must, in this case, be juxtaposed with § 11-52-81, Code 1975, which reads in pertinent part:

“Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court . .. and the action in such court shall be tried de novo.” (Emphasis added.)

The nature and scope of this statute was discussed in Nelson v. Donaldson, 255 Ala. 76, 80, 50 So.2d 244, 248 (1951), wherein Justice Lawson stated:

“The inquiry in the circuit court is neither enlarged nor diminished by appeal. The scope of inquiry on appeal is the same as before the board of adjustment, though the circuit court is a court of general jurisdiction. In other words, under our statute the authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the board of adjustment . . . . ” (Emphasis added.)

Consequently, on an appeal pursuant to § 11-52-81, the scope of inquiry by the circuit court is limited to only those issues which could be properly presented to the Board of Zoning Adjustments. Justice Maddox, speaking for this Court in Board of Zoning Adjustment, etc. v. Warren, 366 So.2d 1125, at 1128 (Ala.1979), stated: “The circuit court is without jurisdiction to try issues not raised before the board.”

The practical effect of this statute is to require the circuit court to sit as a “glorified board of adjustment.” Nelson, 255 Ala., at 80, 50 So.2d 244. Thus, if Caffee has valid claims not cognizable before the zoning board, he will likewise be precluded from litigating these claims to the circuit court on appeal pursuant to § 11-52-81. Southern Rock Products Co., Inc. v. Board of Zoning Adjustment of City of Trussville, 282 Ala. 186, 210 So.2d 419 (1968).

Appellee’s assertions in this cause are grounded on claims of discrimination, denial of due process and equal protection as well as the alleged unconstitutionality of the Homewood ordinance as applied to Appel-lee. In Watson v. Norris, 283 Ala. 380, 217 So.2d 246 (1969), it was stated that an administrative body has no power to declare an ordinance unconstitutional. The powers of the board are specifically limited to those contained in Code 1975, § 11-52-80.

We conclude, therefore, that, because the Board of Zoning Adjustments was without authority to consider any constitutional attack on the Homewood ordinance, Caffee’s constitutional challenge to that ordinance in the circuit court was not precluded by the City’s claims of “identical issues” in both proceedings. Consequently, the circuit court did not err by assuming jurisdiction of this cause during the pendency of Caffee’s appeal from the action of the Board of Zoning Adjustments.

In Watts v. City of Wiggins, 376 So.2d 1072 (Miss.1979), it was stated, and we agree, that a property owner “may not seek a change in a classification of property under a zoning ordinance and at the same time [and in the same proceeding] attack [the constitutional] validity.” In Watts, supra, the petitioner sought to bring his request for a variance and his constitutional claims in the same proceeding. In rejecting this attempt, the Watts Court stated that if the claimant wished to attack the constitutional validity of the ordinance, he should do so in a subsequent, independent proceeding. Here, the property owner has heeded the Watts' admonition.

II. QUALIFICATION OF THE TRIAL COURT’S ORDER.

The City next contends that it was error for the trial court to order that a building permit be granted without first qualifying its order upon compliance by Caffee with the applicable regulations and specifications contained in Homewood’s Municipal Code. The City further asserts that, by virtue of the trial court’s “cryptic” order, Caffee will not be required to pay the usual permit fees; and, in addition, Appellee will be in violation of a restrictive covenant contained in his deed requiring a 40-foot setback. (Appellee’s initial plans provided for a 39-foot setback.)

At the risk of also sounding “cryptic,” we believe we can satisfy the city’s instant concern by observing that the scope of the trial court’s order is limited to the issue presented and tried by the parties, i. e., the 65-foot width requirement. Necessarily, issuance of the permit under the trial court’s order is conditioned upon Appellee’s compliance with all the applicable regulations of the Homewood Municipal Code, other than the 65-foot width requirement found to be unconstitutional and unenforceable as against Mr. Caffee.

We have carefully considered each of the remaining issues raised by the City and find them to be without merit.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, J«L, concur.

On Rehearing

JONES, Justice.

Because of our profound respect for Appellant’s counsel, and the earnestness of his contentions, we yield to his insistence that we address directly and specifically an issue presented but spoken to only inferentially in the original opinion.

Appellant’s rehearing brief states: “[T]he issue [on rehearing] is the failure, or refusal, of the Supreme Court to address, or speak to, the third issue raised by Home-wood in its original brief

“ ‘Did the trial court err in failing to apply the uncontested provisions of Section 6-6 of Homewood’s Zoning Ordinance, which defines a ‘lot’ within the meaning of said ordinance, to the tract, or parcel, of land involved in this litigation?’ ”

Section 6-6 of the zoning ordinance in question defines the term “Lot”:

“ ‘A piece, parcel or plot of land occupied or intended to be occupied by one main building, accessory buildings, uses customarily incidental to such main buildings and such open spaces as are provided in this ordinance, or as are intended to be used with such piece, parcel or plot of land.’ ”

Citing City of Prichard v. Geary, 268 Ala. 243, 105 So.2d 682 (1958) and Montgomery v. City of Florence, 226 Ala. 340, 146 So. 882 (1933), counsel insists:

“[This] Court clearly and decisively established the principle that the unitary nature of the use of an entire parcel of property is the controlling factor which must be considered in determining whether such parcel of property is a single parcel of property for zoning and other purposes, rather than the fact that the parcel involved is described as two, or more, lots reflected on a recorded map of a particular subdivision of property.
“Section 6-6, of the Homewood Zoning Ordinance, very specifically provides that a ‘lot’ within the meaning of the ordinance involved is a ‘plot of land occupied or intended to be occupied by one main building * * * ’ [emphasis in original]. The undisputed evidence in this case reveals that the entire plot of land involved in this case was occupied for more than 40 years by only one main building and that no attempt was made to alter that status until after the death of the owner who established and maintained the unitary nature of the entire plot.”

Although this argument is not without some persuasion, its flaw becomes apparent when pursued to its logical conclusion. An application of the “unitary nature of its use” principle to the property in question necessarily would encompass all three lots, keeping in mind that the third lot (the only lot occupied by a building) is not involved in this litigation. Thus, the application here urged would not only destroy the integrity of the two separate remaining lots for construction purposes but it would also prohibit the use of the combined remaining two parcels for the construction of even a single residence.

To be sure, we do not perceive Appellant’s argument to extend to a denial of the owner’s use of the remaining two lots as a single unit for the construction of one residence; but, under the circumstances of this case, either the remaining two vacant lots retain their separateness, if the owner so elects to treat them, or they partake the unitary nature of the use of the whole, including the third or “occupied” lot. To now treat the remaining two lots as a single unit under the “unitary” principle operates in defiance of the City’s original premise that the unitary nature of the use of the entire parcel is the controlling factor in determining the present use of the remaining unoccupied parcels. In other words, if we apply the “unitary” principle as here urged by the City, our holding would be tantamount to a mandate that the two remaining vacant lots forever remain vacant. This we decline to do.

The Prichard and Florence cases relied upon by Appellant each arose in factual contexts altogether different from that of the instant case, making these prior decisions totally inapposite to the issue here presented.

OPINION EXTENDED AND APPLICATION FOR REHEARING OVERRULED.

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

      . While the recorded vote of the Board members was 3-2 in favor of granting Appellee’s request for a variance, the motion was defeated under a requirement that a motion receive at least 4 votes in order to pass.


author: PER CURIAM. ADAMS, Justice

text:
    Mr. and Mrs. Henry FORD and Mr. and Mrs. Bobby Blackmon v. ALABAMA BY-PRODUCTS.
    79-930.
    Supreme Court of Alabama.
    May 1, 1981.
    Rehearing Denied June 12, 1981.
    M. Clay Alspaugh and S. Shay Samples of Hogan, Smith & Alspaugh, Smith, White & Hynds and John T. Natter, Birmingham, for appellants.
    Lyman H. Harris and William R. Myers of Lorant, Harris & Yearout, Birmingham, for appellee.
    Robert C. Walthall and Braxton Schell, Jr., of Bradley, Arant, Rose & White, Birmingham, for Nelson Brothers, Inc.
    Fournier J. Gale III and H. Thomas Wells, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for Drum-mond Coal Co.
    Macbeth Wagnon, Jr. of Bradley, Arant, Rose & White, Birmingham, for Dolcito Quarry Co.
    Charles A. Graddick, Atty. Gen., Benjamin Cohen and Edward L. Lasseter, Jr., Asst. Attys. Gen., for State of Alabama.
   PER CURIAM.

Affirmed on the authority of Vaughn v. Thomas, 372 So.2d 1309, 1311 (Ala.1979), “A party cannot try his case on one theory and then appeal on a separate theory,” and Haskew v. Bradford, 370 So.2d 259, 262 (Ala.1979), “A question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal.”

AFFIRMED.

All the Justices concur.

ON REHEARING

PER CURIAM.

APPLICATION FOR REHEARING OVERRULED.

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

ADAMS, J., dissents.

ADAMS, Justice

(dissenting):

I would grant rehearing. I agree with the majority that the theory of strict liability applicable to blasting damage adopted by this Court in Harper (the point implicitly referenced in this per curiam affirmance) was not presented to the trial court. Understandably, Appellants prefer the opportunity to retry their case under the newly adopted “Restatement” theory; but, as the majority correctly holds, this theory cannot be raised for the first time on appeal.

I believe there is another issue, however, which was properly raised and which has not been addressed: the propriety of the trial court’s rejection of Plaintiff’s motion for a directed verdict on the trespass claim. To be sure, I understand the majority’s reliance on this point, the majority being of the view that a factual issue was presented under the Borland definition. Yet, speaking only for myself, I would welcome the opportunity to pursue a further consideration of whether we should extend the Bor-land principle to explosion cases, even in the absence of substantial injury to the res caused directly by the intruding force. Thus, I would grant rehearing for further consideration of the trespass issue.

      . Harper v. Regency Development Company, Inc., 399 So.2d 248 (Ala.1981).

      . Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979).


author: SHORES, Justice.

text:
    Mae S. COWLEY v. Roberta COWLEY, as Executrix of the Estate of Rebecca C. Doolittle, Deceased.
    79-918.
    Supreme Court of Alabama.
    May 22, 1981.
    Rehearing Denied June 19, 1981.
    Robert E. Paden and George W. Andrews, III, of Paden, Green & Paden, Bessemer, for appellant.
    J. W. Patton, Jr. of Stone, Patton & Kierce, Bessemer, for appellee.
   SHORES, Justice.

Roberta Cowley is a niece of Rebecca Doolittle and is executrix under the will of Rebecca Doolittle, deceased. She filed an action for declaratory judgment asking for a declaration of ownership of two certificates of deposit purchased by the decedent before her death and executed and delivered by her to Mae Cowley, Mrs. Doolittle’s sister-in-law, prior to her death.

The trial court found that the certificates were the property of the estate. Mae S. Cowley appealed. We reverse.

The single issue presented here is whether Mrs. Doolittle made an inter vivos gift of the certificates to Mae Cowley. We hold that she did.

By statute (§ 35-4-97, Code 1975) and case law, the elements necessary to a gift of personalty inter vivos have been described as follows from Collins v. Baxter, 231 Ala. 247, 164 So. 61 (1935), quoting liberally from 28 Corpus Juris:

“A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite of a gift inter vivos. And this intention must be inconsistent with any other theory.... The intention must be executed by a complete and unconditional delivery. ... In order to constitute an effectual delivery the donor must not only have parted with the possession of the property, but he must also have relinquished to the donee all present and future dominion and control over it, beyond any power on his part to recall.... But there must be a clear surrender of the right and of the dominion in contradistinction to a promise or an intention to surrender. There must be no reservation of any control over the property, and nothing must remain to complete the delivery.”

Collins v. Baxter, 231 Ala. at 250, 164 So. 61.

There are no allegations of fraud or undue influence involved in this case, and no claim that Mrs. Doolittle was mentally incompetent to make a gift.

It is undisputed that she directed Mae Cowley to bring the certificates from Mrs. Doolittle’s home to the hospital. There she called the bank and informed a bank employee that she was going to endorse the certificates and deliver them to Mae Cowley. She did endorse the certificates and deliver them to Mae Cowley in the presence of at least three persons. Two of these were also relatives of Mrs. Doolittle, who testified that she delivered them to Mae Cowley and said they were hers to do with as she wanted. She could either convert them to cash or keep them until maturity and earn the interest. The third person in the room, Mrs. Doolittle’s pastor, testified that he understood that the certificates were to be placed in a safety deposit box and used for Mrs. Doolittle’s surgery, if she needed them.

It is not disputed that the certificates were signed and delivered to Mae Cowley, who did place them in her own safety deposit box. Thereafter, on at least three occasions, Mrs. Doolittle told people that she had given the certificates to Mae Cowley and stated that she wanted Mae to have them. There is no dispute that the certificates were endorsed and physically delivered to Mae Cowley. Only Rev. Howell and the bank employee, Mrs. Bence, testified that they understood the certificates were to be used for surgery, if needed, and if not, according to Mrs. Bence, then they were to be Mae Cowley’s.

Mrs. Doolittle never had the surgery, and Mae Cowley has had possession of the executed certificates at all times since Mrs. Doolittle endorsed and delivered them to her.

The appellee states her position as follows in brief:

It is the plaintiff appellee’s contention that there was no gift because Mrs. Doolittle, when she endorsed the certificates and delivered them to the defendant, stated that they were to be used for her operation, if necessary but if it was not necessary, then they would belong to the defendant [Mae Cowley].

Thus, the only difference in the testimony of all of the witnesses is that two of them, Rev. Howell and Mrs. Bence, testified that they were to be used for the operation, if necessary, and if not, they were to be Mae’s. The others testified that the gift to Mae was outright, with no mention of using the funds for the operation, if necessary. It is undisputed, however, that the operation never took place and, thus, the condition, if any, to the gift never took place. Thus, under either version of the testimony, the gift to Mae Cowley was valid.

[T]he mere fact that a gift is accompanied by a condition or qualification not inconsistent with the vesting of title in the donee does not necessarily render it invalid.

38 Am.Jur.2d Gifts § 81 (1968).

Under the undisputed facts, the gift was completed with the delivery of the certificates. Mrs. Doolittle parted with all dominion and control at that time. Even if this completed gift were conditioned upon the donee’s agreement to use the money for the operation, if necessary, that condition never arose and does not destroy the validity of the gift.

At 38 C.J.S. Gifts § 36 (1943), the following statement of the rule appears:

The mere fact that a gift is accompanied by a condition or qualification, not inconsistent with the vesting of title in the donee, does not necessarily render it invalid. Thus, a gift is not invalid because made on condition that the donee support the donor if necessary. ...

Here the condition subsequent never occurred. Thus, the gift was valid:

Where there is an absolute present gift of certificates of deposit by means of delivery of the certificates endorsed and the surrender by the donor of possession to the donee, a reservation of interest . . . does not destroy the effect of the transaction as a present gift.

38 C.J.S. Gifts § 52 (1943).

The judgment of the trial court is reversed, and the cause remanded.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    Celisia Ann GROSS, a minor who sues by next friend and father, Fred Gross v. REPUBLIC STEEL CORPORATION.
    79-942.
    Supreme Court of Alabama.
    May 22, 1981.
    Rehearing Denied June 19, 1981.
    R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham and Robert H. King, Gadsden, for appellant.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   BEATTY, Justice.

Appeal from an order granting summary judgment in favor of the defendant, Republic Steel Corporation (Republic). We reverse and remand.

The case arose out of a one-automobile accident. The plaintiff was operating her automobile on Hickory Street, a paved public road in Gadsden about 7:30 p. m. on December 22, 1977. At or near a point on the road known as Black Creek Bridge she encountered fog which obscured her vision. At a point just beyond the bridge the road curves sharply to the left; however, the plaintiff continued in the same direction and ran into a guard rail which Republic had erected upon its property.

The plaintiff’s original complaint named Republic, the City of Gadsden and others as defendants. Other defendants were added but subsequently removed. The plaintiff’s allegations against Republic were that it

allowed the use of the area connected with said Guard Rail Barrier to be used by vehicular traffic or others and same gave the appearance at night time of being the continuation of said Hickory Street Road and same was dangerous and said Defendant Republic had no warning signs or other devices warning of said Danger and said Defendant Republic on said occasion and said time and place had the duty as a Landowner not to use or allow the use of its Land so as that it was an Attractive Nuisance and/or as a trap on said Land that could or would cause injuries to others and/or so as to endanger the members of the Public, including Plaintiff through the erection, use or control of its said Land located adjacent to said Hickory Street Public Road, ...

followed by allegations of negligent or wanton injury of the plaintiff proximately caused by the negligence or wantonness of the defendants, and a demand for $50,-000.00 in damages.

Republic’s motion to dismiss was denied, after which Republic answered by denying any negligence on its part, alleging contributory negligence by the plaintiff, and that the plaintiff was a trespasser on its property-

In due course Republic moved for summary judgment based upon the pleadings, the depositions of the plaintiff, of a passenger in her automobile, of one Elton M. Pledger, of one D. L. Haney, answers to the plaintiff’s interrogatories, an affidavit of the plaintiff, and an affidavit of counsel for Republic. In response to Republic’s motion for summary judgment the plaintiff filed the affidavit of one Cecil Ray Beaird, Cecil Dorsett and Robert Roberts. The trial court granted Republic’s motion for summary judgment and later denied the City of Gadsden’s motion for reconsideration. Following the entry of a Rule 54, ARCP order, the plaintiff appealed.

The defendant’s position is that, since the accident occurred on its property, the plaintiff was a trespasser to whom the defendant owed only the duty not to intentionally injure her or lay a trap for her. Having acquired its property for steel plant operations, Republic contends, it might use that property as it sees fit except that it must not engage in a positive act creating a hidden danger that a person could not avoid by the exercise of reasonable care and skill. According to Republic, there is no evidence tending to show the creation of any danger or trap by the erection of the guard rail.

The cases cited to us by Republic are inapplicable, we perceive, to the factual situation posed by the plaintiff. In Fades v. American Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593 (1922), the conduct of the defendant in question was in allowing an artificial pool of water to accumulate on its land into which the victim entered and drowned. Alabama Great Southern R. Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964), is to the same effect. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375 (1964), dealt with an injury to a person on a highway being constructed by the defendant building contractor who, though having possession of the premises, nevertheless allowed use of the highway by members of the public. And in Wright v. Alabama Power Co., Ala., 355 So.2d 322 (1978), the injury occurred when the victim went upon the defendant’s property and struck a partially submerged fence.

According to the plaintiff’s evidence, pri- or to this occurrence Republic had placed a quantity of chert (or flintlike rock) material in the area between the curve in Hickory Street and the guard rail which, to west bound motorists such as the plaintiff, gave the appearance of being a continuation of the road. Additionally, Republic had previously located two powerful lights close together some two hundred yards west of the curve and a distance from the ground which, to a motorist driving on Hickory Street on a foggy evening, would appear to be the headlights of an oncoming vehicle. Furthermore, there was in existence about 350 feet north of Black Creek Bridge a settling pond created by Republic to receive waste waters from Republic’s manufacturing process. The plaintiff’s evidence, through Roberts’s and Dorsett’s affidavits, was that the combination of this warm water and cool December air would be expected to produce fog which would interfere with the vision of motorists driving west on Hickory Street toward Republic’s guard rail. Indeed, Republic’s Haney affidavit gave the average December 1977 temperature of the water in the holding pond to be 70°, and disclosed that unused water from it ultimately flowed into Black Creek about 350 feet north of Hickory Street. The curve area itself was shown to be lacking in signs and lighting. The plaintiff’s position is that it was from this combination of circumstances, negligently created by the defendant Republic, that she was caused to drive off Hickory Street at the curve and continue on the chert surface until she struck the barrier. In other words, the plaintiff’s theory differs from the cases cited by the defendant because, although the injury occurred on the defendant’s land, the conduct which caused the injury allegedly occurred on Hickory Street, a public road. See also Prosser, Law of Torts, 4th Ed. at 352-354.

Of course, on a motion for summary judgment the burden of proof is stricter than on a trial on the merits, because on the motion all reasonable inferences from facts are to be viewed most favorably to the non-moving party, Campbell v. Alabama Power Company, Ala., 378 So.2d 718 (1979), and the burden is upon the moving party to show that no triable issue of material fact exists. Amason v. First State Bank of Lineville, Ala., 369 So.2d 547 (1979). So that if there is a scintilla of evidence supporting the non-moving party, a mere gleam, glimmer, spark or trace in support of the plaintiff’s complaint, summary judgment is inappropriate. Wilson v. Liberty National Life Ins. Co., Ala., 331 So.2d 617 (1976).

Republic contends that there is no evidence that it did anything in a negligent manner. Insofar as the construction and maintenance of the holding pond is concerned, Republic insists that these are required by federal and state environmental protection laws and regulations, and serve a useful and necessary purpose in the operation of the steel making facilities. We have not been cited to any specific provisions of any such laws or regulations, nor anything else which preempts the laws of negligence from applying to Republic in operating the holding pond, but assuming arguendo that the pond is necessary in its operations as Republic contends, still, construing the facts and inferences in favor of the plaintiff, the location of the pond by Republic is a matter which could, under the law of negligence, involve a duty to others. As was stated in Southern Railway v. Arnold, 162 Ala. 570, 50 So. 293 (1909):

[Ejvery man owes his fellow man the general duty not to negligently injure him. Certainly, if one negligently places a car so near a track over which cars are being rightfully operated by another as to injure such other person, ... he should be held responsible for the injury proximately caused by his negligence....

This Court has often defined negligence as the want of such care as an ordinarily or reasonably prudent and careful man would exercise under similar circumstances, e. g., Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973), due care being always relative and depending upon the facts of the particular case. Cox v. Miller, Ala., 361 So.2d 1044 (1978). We have also recognized the rule that if a defendant has left a condition upon which other causes would likely operate, so as to be likely to produce a dangerous defect, and which did so operate and thereby produced the defect, the defendant would be culpably negligent. City of Tuscaloosa v. Fair, 232 Ala. 129, 136, 167 So. 276 (1936). Applying these principles to the facts presented on summary judgment, there is at least a scintilla of evidence that the conjunction of the holding pond, the location of the chert material, the position of the lights and the absence of signs or warnings, all at the time in question, amounted to a breach of duty to the plaintiff. Collum v. Jackson Hospital & Clinic, Inc., Ala., 374 So.2d 314 (1979), cited to us by Republic, is thus not apropos.

' In the alternative, the defendant stresses the fact that the barrier struck by the plaintiff’s car was, as the evidence established, between 49 and 81 feet from the edge of the paved street, and that the plaintiff was contributorily negligent as a matter of law because either (1) she should have stopped in the fog and did not, or (2) she continued to drive 10 to 15 miles an hour, rather than stop, and struck a barrier which was obvious and therefore could have been avoided. But the question of whether a plaintiff is guilty of contributory negligence as a matter of law arises only when the facts are such that all reasonable men must draw the same conclusion, and the question is for the jury when, under the facts and circumstances, reasonable minds may fairly differ on the question of negligence vei non. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972). Under the conditions disclosed here we cannot hold that reasonable men could not disagree on the cause of the plaintiff’s collision. Contributory negligence is ordinarily a question of fact for the jury. Patterson v. Seibenhener, 273 Ala. 204, 137 So.2d 758 (1962).

Because of what we have stated from a review of the facts adduced for the purpose of summary judgment, the trial court erred in entering summary judgment for the defendant Republic. That order, therefore, must be, and it is, reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


text:
    Ex parte Terry LAMB. (In re Michael W. Tighe, Executor of the Estate of Roy O. Darby, Sr., Deceased v. Terry Lamb, et al.).
    80-228.
    Supreme Court of Alabama.
    May 22, 1981.
    Rehearing Denied June 19, 1981.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    J. A. Hornsby, Gadsden, for respondent.
   BEATTY, Justice.

Petition for a writ of mandamus to the Honorable William P. Powers, Judge of the Twenty-Ninth Judicial Circuit (Talladega County), filed by Terry Lamb, to require Judge Powers to recognize a plea to the venue in an action filed in Talladega County-

The petition arose out of an action filed by Michael W. Tighe, Executor of the Estate of Roy 0. Darby, Sr., deceased. Darby died in Columbia, South Carolina on February 28, 1978. On July 18, 1980 Darby’s executor filed an action in Talladega County against Terry Lamb. That action contained seven counts. Count One alleged that Darby had purchased a certain tract of Talladega County land from its then-owner, Land Investors of America, for the sum of $80,000.00. Terry Lamb, it continued, wished to own a one-half interest in this land, but instead of executing a purchase money note and mortgage, Terry Lamb conspired with Jack Lamb and James H. Kidd to defraud Darby, or Jack Lamb and James H. Kidd either through mistake or with intent to defraud Darby, procured a deed conveying the said Talladega land to Darby and Terry Lamb jointly. Terry Lamb, it alleged, paid no consideration for his interest in the land and refused to execute the mortgage and note securing that interest to Darby. That count asked for relief in the form of reformation of the deed or the impressment of a lien on Terry’s one-half interest, plus interest from the date of the deed.

Counts Two through Six claimed damages for Terry Lamb’s failure to pay certain promissory notes executed by Lamb and delivered to Darby.

Count Seven claimed damages on an account stated.

On July 30,1980, Terry Lamb filed a plea to the venue of the executor’s action, alleging that he “now is and [was] at all times in which the matters alleged in the complaint are claimed to have happened a resident citizen of Marshall County ...” and moved that the cause be transferred to that county. After the defendant filed a jury demand, that plea to venue was denied by the Circuit Court of Talladega County; however that Court did grant a severance of Count One from the others. Terry Lamb then filed this petition.

The basic question presented is whether a resident of one county may be required to defend an action “involving” land located in another county and filed in that other county. Our legislative enactments are the primary guideposts for the venue of actions. Code of 1975, § 6-3-2(b)(1) provides:

(b) In proceedings of an equitable nature against individuals:
(1) All actions where real estate is the subject matter of the action, whether it is the exclusive subject matter of the action or not, must be commenced in the county where the same or a material portion thereof is situated.

There can be no doubt that Count One was a proceeding of an equitable nature, praying for relief from mistake (see Springdale Gayfer's Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967)), fraud (Cf. C. E. Development Co. v. Kitchens, 288 Ala. 660, 264 So.2d 510 (1972)), and reformation (Folmar v. Lehman-Durr Co., 147 Ala. 472, 41 So. 750 (1906)). The "subject matter" referred to means the nature of the cause of action and of the relief sought. Clark v. Sanders, 267 Ala. 674, 103 So.2d 370 (1958). The nature of the cause of action and of the relief sought in Count One were to effect a change in the title to the land in question. Therefore, the subject matter of Count One, though not the exclusive matter, was real estate and properly commenced in Talladega County where the land was located.

Does the defendant, nevertheless, have the right to a change of venue to Marshall County for the trial of Counts Two through Seven? That question has been resolved by Rule 82, ARCP, which has been cited with approval by this Court, e.g., Medical Service Administration v. Dickerson, Ala., 362 So.2d 906 (1978). Subdivision (c) of that Rule is applicable to these facts:

Where several claims . . . have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.

The Committee Comments on Subdivision (c) discussed the effect of the Rule:

These results provide for a more liberal joinder of claims and of parties than has hitherto been possible in Alabama. These joinder provisions will be greatly restricted if venue must be proper as to every claim .. . which is joined, and authorization of liberalized joinder having been contemplated by the enabling act, such restriction is not considered to have been intended by the legislature. The correct principle seems to be that once venue is properly laid, other claims ... may be joined as ancillary to the original action regardless of venue requirements. [Citations omitted.] [Emphasis added.]

The severance of Counts Two through Seven from Count One can have no effect upon the venue of those claims. Severance, permitted under Rule 42(b), ARCP, gives the trial court the discretion to order separate trials of claims on the basis of convenience, or to avoid confusion of the issues or prejudices. The mere grant of severance does not indicate a move for a change of venue since it does not change one lawsuit into many. See Committee Comments, Rule 42(b), ARCP, where it is

Separate trials are not to be granted merely because the matters involved would have been tried separately before the rules were adopted, or because some of the parties might prefer separate trials. It is the interest of efficient judicial administration which is to be considered, rather than the wishes of the parties. [Citation omitted.]

It follows that the venue of the action was properly laid in Talladega County, and thus the petitioner has shown no error in the trial court to his injury. Ex parte Slade, Ala., 382 So.2d 1127 (1980). Accordingly the writ must be, and is, denied.

WRIT DENIED.

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