text:
    VULCAN FREIGHT LINES, INC. v. Ann BUCKELEW.
    No. 78-859.
    Supreme Court of Alabama.
    Aug. 1, 1980.
    James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.
    J. Richard Carr, Gadsden, for appellee.
   BEATTY, Justice.

The defendant Vulcan Freight Lines, Inc. (Vulcan) appeals from the denial of its motion for judgment N.O.V. or, in the alternative, for a new trial following a verdict for the plaintiff, Ann Buckelew. We affirm.

The lawsuit arose out of an occurrence in which a truck-tractor owned by Kenneth Ingram ran into Buckelew’s house. At that time Ingram and Vulcan were parties to an owner/contractor-motor freight carrier lease agreement, involving a tractor-trailer, with Ingram being the owner-lessor-contractor and Vulcan being the carrier-lessee. The pertinent clauses of this lease agreement were clauses 2, 3, 5 and 16.

In Clause 2 Ingram as contractor warranted the tractor-trailer to be in safe mechanical and operating condition “in complete compliance with the Department of Transportation rules and regulations relating to safety; and that such vehicle [would] be so maintained by ‘Contractor’ during the term of this contract.” Also, Ingram as “Contractor” agreed “to pay the entire cost of operating said vehicle, . . . including . . . parts, repairs. . . .”

Under Clause 3 Ingram was obligated to provide “all labor and service herein provided for, or employ all necessary drivers, . mechanics or other persons competent and qualified to perform the work required hereunder . . . .”

Clause 5 provided: “ ‘Carrier’ [Vulcan] will not secure nor assume liability for Public Liability or Property Damage insurance covering operation of motor carrier equipment (either tractors or trailers) when such is not being operated at ‘Carrier’s’ direction or performing transportation under terms of this contract. ... In the event that ‘Carrier’ is sued by third parties in regard to liability arising from operation of motor carrier equipment while not under the direction of ‘Carrier’ or under the provisions of this contract, ‘Contractor’ agrees to assume any and all liability arising from such actions, including legal and court expense and reimburse ‘Carrier’ any sums that ‘Carrier’ may be required to expend.

And Clause 15 provided: “Subject to the provisions of this contract, the ‘Carrier’, during the term of this contract, shall have the exclusive possession, control and use of said equipment, and shall assume full and complete responsibility to the public . . .”

Ingram, the owner-lessor-contractor of the tractor-trailer, operated a motor freight business and á repair shop for tractors and trailers, about five miles from Attalla on U.S. 11 South. On June 22,1977, one of his drivers, Junior Knight, drove the leased tractor-trailer for Vulcan to Birmingham with a load of steel. He did not have a load of freight to pick up in Birmingham, so he returned to Attalla with an empty trailer. On his return trip to Attalla he observed that the engine was “running hot,” so when he arrived at Ingram’s repair shop near Attalla around 5:00 o’clock p. m., he and Ingram commenced repairs which consisted of replacing the thermostat. The repairs were finished around 9:00 p. m., and Ingram and Knight went into the shop to clean themselves. While inside, Knight obtained a pickup order for the next load for Vulcan, a shipment of steel from Republic Steel. This load could not be picked up until 7:00 a. m. the next morning. After remaining in the shop for a few minutes, Ingram and Knight started out to check the tractor whose engine had been left idling to disclose any leaks in the cooling system. They saw that the driverless tractor and its empty trailer had rolled out of Ingram’s driveway, traveled across the highway, and had struck the plaintiff’s house.

The plaintiff Buckelew filed a complaint against Kenneth Ingram to recover damages for his negligence or wantonness in “controlling” the truck. By amendment Vulcan was added as a party defendant. Vulcan then filed a cross complaint against Ingram based on Clause 5 of the lease agreement, alleging that at the time of the accident Ingram’s actions were outside the line and scope of any alleged employment with Vulcan Freight Lines. A jury trial ensued, and after evidence was taken Vulcan moved for a directed verdict, primarily on the ground that the evidence did not establish that Ingram was acting in the line and scope of his employment as an agent, servant or employee of Vulcan at the time of the occurrence. The trial court granted the motion as to the wantonness claim, but denied it as to the negligence claim. The jury returned a verdict in favor of the plaintiff, hence this appeal by Vulcan. (Ingram did not appeal).

The relationship between parties similarly situated, and the ensuing problem of vicarious liability, has been before this Court on prior occasions.

In Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So.2d 464 (1951), a lease agreement substantially like that involved here was interpreted to establish a master-servant relationship between the parties. The question of the tort liability of the carrier-lessee, therefore, rested upon the doctrine of respondeat superior; that is, whether on the occasion in question the act done was within the line and scope of the duties of the owner-contractor, and was committed in their accomplishment. In that case the owner-lessor was held not to have been engaged in performing the duties of the owner-contractor because at the time in question his mission was purely personal (returning home from the lessee’s terminal). This Court held that “no possible benefit” could have been derived by the carrier-lessee because no freight was being hauled and none could be hauled — the trailer not being attached at the time of the accident.

A case dealing with an agreement similar to the one in Stevens, supra, is Deaton Truck Line v. Acker, 261 Ala. 468, 74 So.2d 717 (1954). Although the claim was for Workmen’s Compensation benefits, nevertheless, following Stevens, the entitlement depended upon the relationship in being between the carrier-lessee and the owner-lessor, i. e., whether the truck operator, at the time of the accident, was “in or about the business or duties assigned to him by his employer.” Acker, supra at 261 Ala. 472, 74 So.2d at 720. In that case the owner-lessee arrived at the lessor’s terminal in Birmingham from New Orleans and then proceeded to his home in Bessemer where several days later, outside of the carrier’s supervision or control, he was engaged in repairing the truck’s gasoline tank when it exploded, resulting in his death.

In holding that the carrier-lessee was not liable for that death (because the accident did not arise out of the course of his employment by the carrier) this Court referred to that part of the lease agreement which dealt with the owner-lessor’s obligation to keep the motor vehicle in good mechanical condition and to repair and furnish parts at his own expense (as in Clause 2 here). The Court continued:

Our interpretation of the written agreement here involved is that while the motor vehicle was out of service and being repaired, it was under the sole jurisdiction and control of Acker, whose duty it was to have it repaired at his own expense. He was privileged to select the place where, and the person by whom the repairs should be made.
At the time Acker was killed, the motor vehicle was out of service and out of commission so far as the work of transportation was concerned and incapable of earning compensation for him under his contract of employment. Acker selected the place where the repairs were to be made, at his home, a place where Deaton had no connection and where the business of Deaton did not require the presence of Acker. He elected to make the repairs himself.

In Thomas v. Hubbert, 280 Ala. 302, 193 So.2d 746 (1966), there was a lease agreement between a carrier-lessee and an owner-lessor which included terms substantially like those in Clause 2 of the instant contract. At the time of the accident in question the truck driver was driving his tractor en route to the carrier’s freight yard, returning from his brother’s home where he had gone to assist in starting his brother’s truck. His brother was also an owner-lessor of the carrier-lessee. The driver, thus, was not hauling freight, but had been at the freight yard to have a safety inspection made. In concluding that the question of the liability of the carrier-lessee was governed by Stevens, supra, this Court held that the brother’s arrangement with the carrier required him to keep his truck in running condition, and that neither was hauling freight or on any business for the carrier at the time of the accident. We added:

Malone [the carrier-lessee] could not have had any interest in whether brother William’s truck would start on this occasion or not. The company would be concerned only that he was available to haul a load when scheduled, which under the evidence was not until some time later. We can see no benefit which Malone gained from Hubbert’s trip to help his brother.

The case of Cox v. Howard Hall Company, 289 Ala. 35, 265 So.2d 580 (1972), contains a review of the cases cited above, and reiterated the position on which those decisions was based. That is, the liability of the carrier was dependent upon whether the driver of the truck-tractor was at the time of the accident acting within the line and scope of the duties to be performed under the lease agreement for the carrier-lessee. In Cox, the truck driver had observed difficulty with the alternator, and, having no immediate duties with the carrier, drove the leased truck without a trailer on his way to a battery shop when the accident occurred. This Court concluded that under the evidence the driver was not acting for the carrier. Because the Court quoted extensively from Thomas, supra, it is apparent that the Court viewed the facts as establishing that the driver was engaged in a mission solely personal to himself.

The most recent decision under an agreement of this kind is Harbour v. Colonial Fast Freight Lines, Inc., Ala., 336 So.2d 1100 (1976). A summary judgment case, the question on appeal was whether under the facts before the trial court on that motion there existed a genuine issue of fact that the owner-lessor was acting within the line and scope of his employment with the carrier-lessee at the time of the accident. The parties were operating under a lease agreement similar to the one presently before us: the lessor was to maintain the leased vehicle in proper operating condition; he was to assume repairs and maintenance costs. The lessor, one Matthews, while operating the tractor picked up a loaded trailer at the lessee’s Birmingham terminal containing freight bound for South Carolina. That same day the trailer was unhitched and parked near Matthews’s home in Eto-wah County, between Birmingham and the destination. Two days later a mechanic repaired the tractor and was paid by Matthews. While Matthews was road testing the tractor he was involved in an accident. The trial court granted summary judgment to the carrier. This Court reversed that order, holding that there was a question of fact as to whether Matthews was acting within the scope of his duties under his employee relationship with the carrier. On appeal the carrier argued that it could not be held liable for Matthews’s operation of the tractor unless Matthews had been hauling freight for it; that he was fulfilling an obligation under the lease at the time and not furthering the business of the carrier. This Court, however, determined that to be a question on which reasonable minds might differ. The Thomas and Acker cases were distinguished in that their evidence showed the operator to have been engaged in activity solely for personal benefit.

Does this case contain facts which distinguish it from those cases? Admittedly, the owner-lessor was not hauling freight at the time of the accident, but does the evidence indisputedly establish that he was not engaged in his duties for the carrier? If there was any reasonable inference arising from the evidence which furnished a scintilla in support of the theory that Ingram was engaged in duties under his contract with Vulcan, then it was proper to give the question of Vulcan’s respondeat superior liability to the jury. Pettway v. Pepsi Cola Bottling Co., Ala., 337 So.2d 757 (1976).

Here the evidence establishes that, having delivered a load of freight to Birmingham, Ingram’s driver was en route to pick up another load for Vulcan at the Republic Steel plant in Gadsden. The faulty thermostat was the reason that mission was unfulfilled. Under the arrangement between them, Ingram could dispatch trucks to the Republic Steel plant without a dispatch from Vulcan. He would get calls from the Steel plant and dispatch a truck there. And according to Vulcan’s dispatcher, the lease agreement would commence at the time a truck was dispatched to pick up the load. And it was uncontradicted that the driver, Knight, had gone into the shop, and while there, he was handed the pick-up order for the next load which he could have proceeded to obtain but for the lateness of the hour. Thus, under the evidence one might reasonably conclude that the truck was being operated for the carrier’s benefit on the return from Birmingham to pick up another load when the repairs became necessary. Or, the “lease agreement commenced,” and benefit to Vulcan occurred, when the driver received his dispatch order while in the shop after those repairs had been effected. Under either of those alternatives a jury could have reasonably found that Ingram was engaged in Vulcan’s business at the time of the accident as well as his own under the lease. The factual distinction between this case, where the shipment had not been received by the owner-lessor, and Harbour, where it had been received but its continued carriage interrupted to effect repairs, is not controlling since, as we have noted, the driver here was en route to pick up a shipment and would have done so had not the repairs become necessary before he could continue.

The motions urged upon the trial court by the defendant Vulcan were properly denied. It follows that the judgment must be, and is, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    UNITED HANDICAPPED INDUSTRIES OF AMERICA, etc. v. NATIONAL BANK OF COMMERCE, etc.
    Civ. 2176, Civ. 2177.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    Rehearing Denied April 2, 1980.

      Lloyd W. Gathings of Emond & Vines, Birmingham, for appellants.
    J. Reese Murray and Donald M. James of Bradley, Arant, Rose & White, Birmingham, for appellees Federal Deposit Ins. Corp. as receiver of Southern Nat. Bank, Birmingham Trust Nat. Bank and First Nat. Bank of Anniston.
    Alan W. Heldman of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee Nat. Bank of Commerce.
    R. E. Steiner, III, and Wanda D. Dever-eaux of Steiner, Crum & Baker, Montgomery, for appellee Alabama Bankers Association.
    Crawford S. McGivaren, Jr., and Larry B. Childs of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee First Nat. Bank of Birmingham.
   HOLMES, Judge.

This is the appeal of a class action. The Circuit Court of Jefferson County, pursuant to Rule 12, ARCP, dismissed the complaint and the plaintiffs appeal. Additionally, the trial court refused to allow an amendment to plaintiffs’ complaints and plaintiffs urge error in this regard.

The dispositive issues are (1) whether appeal to this court was perfected in a timely manner, (2) whether the Alabama Worthless Check Act, §§ 13-4-110, et seq., Code of Ala. 1975, applies to a person who unknowingly draws a check at a time when there are insufficient funds on deposit to cover that check, and (3) whether the learned trial judge abused his discretion in not allowing plaintiffs to amend their complaints.

The record reveals the following: The plaintiffs purport to represent as a class all those persons, partnerships, and corporations who, from October 1, 1972, to May 17, 1978, maintained a checking account with defendant banks pursuant to a contractual relationship and were charged a service charge in excess of $2.00 as a result of unknowingly drawing checks upon insufficient funds. The defendant class is designated as all banking institutions which, in the relevant time period, made such a service charge.

The plaintiffs’ complaints alleged, in essence, that § 13-4-120, Code of Ala. 1975, prohibits a service charge in excess of $2.00 when a drawer’s check is unknowingly drawn upon insufficient funds. There were also counts alleging conversion and the formation by defendants of an illegal combine and monopoly.

The defendants responded with motions to dismiss for failure to state a claim upon which relief could be granted. Plaintiffs engaged in no discovery, and, after briefs were filed and oral argument, the learned trial judge granted the motions to dismiss. Defendants had filed affidavits which the trial judge did not consider as he did not treat the motions as moving for summary judgment. See, Rule 12(b), ARCP.

The primary rationale behind the trial court’s ruling was the decision that the Alabama Worthless Check Act is criminal in nature and therefore has no application to those who unknowingly draw checks upon insufficient funds. Alternatively, it was held that plaintiffs lacked standing under § 13-4-120 and that to construe the statute as regulating banks would possibly render it violative of the Constitution of Alabama, art. IV, § 45. This section of our state constitution requires that “[e]ach law shall contain but one subject which shall be clearly expressed in its title . . . .”

Thirty days after the rendition of this judgment, plaintiffs filed a motion to reconsider and a motion to amend their complaint.

The motion to amend first alleged that plaintiffs and defendants entered into a contractual arrangement upon the opening of a checking account which allowed defendant banks to impose a reasonable service charge for processing checks drawn upon insufficient funds. The plaintiffs’ primary contention was that the charge actually extracted by the banks breached this contract as being excessive and disproportionate to the costs incurred by the banks in processing the checks.

There was a further count seeking rescission of the contracts on the grounds of unconscionability.

The Rule 59, ARCP, motion to reconsider basically asked the court to consider the grounds set forth in the amended complaints.

The motion to reconsider was denied. Although the motion to amend was not specifically ruled upon, we interpret the trial court’s action as having the effect of denying it. The parties to this appeal also give the trial court’s action this interpretation.

Within forty-two days of the denial of the motion to reconsider, but more than forty-two days after the motion to dismiss was granted, plaintiffs perfected these appeals.

I

Defendants ask this court to dismiss these appeals as being untimely. While it is clear that a proper Rule 59, ARCP, motion to reconsider does suspend the running of the forty-two day time limit for bringing appeals until the motion is ruled upon, see, Rule 4(a)(3), ARAP, defendants contend that an improperly brought motion of this kind does not.

As authority for this proposition, defendants refer us to the case of Morris v. Merchants National Bank of Mobile, Ala., 359 So.2d 371 (1978). There, the supreme court held that a motion for reconsideration, filed after summary judgment is granted, is not proper where, in manner and form, the motion is not designed to have the trial court reconsider the evidence upon which the summary judgment is based, but is simply intended to allow the plaintiff to file an amended complaint. The court concluded that under such facts, the motion did not suspend the running of the forty-two day limit and dismissed the appeal.

We conclude that the beneficial purposes of our Rules of Civil Procedure would be ill-served if this court extended the rationale of Morris to cover the factual situation at bar. When a trial court considers a motion to dismiss, as opposed to one seeking summary judgment, all that is before it are the pleadings and the motion. If the motion is granted, our supreme court has said the plaintiff has a right to amend under Rule 15, ARCP. This right does not exist if a motion for summary judgment is granted. Papastefan v. B & L Construction Co., Inc. of Mobile, Ala., 356 So.2d 158 (1978). Rule 78, ARCP, makes this right to amend after dismissal absolute if the motion to amend is filed within ten days of the order of dismissal.

Therefore, the proper function of a motion to reconsider after dismissal has been granted is to attempt to show the trial court that under a legally cognizable theory of law there exists a set of facts which may warrant recovery. This is exactly what plaintiffs presumably attempted to do in the case at bar. It follows that the motion was properly brought and that it suspended the time for bringing appeal.

We would further note that in the instant appeal, contrary to Morris, supra, the plaintiff’s motion to reconsider does indicate that the plaintiff requests the trial court to reconsider the original complaint.

II

We find no error in granting defendants’ motions to dismiss. Section 13-4-120 provides:

Any depository dishonoring a check for reasons outlined in sections 13-4-113 through 13-4-117 and the “person,” as defined in section 13-4-111, to whose account the check was deposited and to whom it is returned may assess the person who drew the check a service charge of $2.00.

Suffice it to say that §§ 13 — 4-113 through 13-4-117, to which § 13-4-120 refers, make unlawful certain practices wherein a person either draws or makes use of a check, with both intent to defraud and knowledge that the check is worthless. Thus, these sections refer to the fraudulent passing of worthless checks, making such activity criminal in nature. Put another way, they proscribe only activity accompanied by intent to defraud. See, Smith v. Southeastern Financial Corp., Ala., 337 So.2d 330 (1976).

Therefore, giving the unambiguous words of § 13-4-120 their plain meaning, Quick v. Utotem of Alabama, Inc., Ala.Civ. App., 365 So.2d 1245 (1979), this section authorizes the imposition of a service charge only when the person so charged has engaged in the criminal act of passing a worthless check with .the necessarily concomitant intent to defraud. Plaintiffs, in their complaint, specify they unknowingly issued checks drawn upon insufficient funds. Thus, taking their allegations as true, they have not committed any crime as specified in the Worthless Check Act, and § 13 — 4-120 has no application to them.

Additionally, we would note that the trial court was apparently justified in indicating that § 13-4-120 cannot be constitutionally construed as a bank regulatory statute. It is an integral part of the Worthless Check Act and its stated intent is to provide a remedy for the activities made criminal therein. § 13-4-112, Code of Ala. 1975.

The Constitution of Alabama, art. IV, § 45, requires that “[e]ach law shall contain but one subject, which shall be clearly expressed in its title . . ..” The title of the Worthless Check Act, in pertinent part is as follows: “An act to prohibit the giving of worthless checks, drafts, or other written order for money; . . . [and] to provide a penalty for violation.”

Clearly, the title in no manner indicates that the act is to regulate banks. Just as clearly, its subject matter is the issuance of worthless paper. To construe it as plaintiffs desire would give the act two subjects, one of which would not be expressed at all in its title. Thus, it appears to doubly violate § 45 of the constitution. See, Bagby Elevator & Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974). See also, Alabama Education Association v. Grayson, 382 So.2d 501 (Ala.1980). Even if the act was susceptible to plaintiffs’ desired construction, we would construe it as we have to preserve its constitutionality. J. Blach & Sons v. Hawkins, 238 Ala. 172, 189 So. 726 (1939).

III

As indicated, thirty days after suffering dismissal, plaintiffs filed a motion to amend along with a motion to reconsider.

Plaintiffs argue that although the trial judge did not specifically deny the motion to amend, this in effect occurred when the accompanying motion was not granted. Defendants at first argue the motion to amend was a nullity, contending that Rule 78, ARCP, which grants an automatic right to amend within ten days of suffering dismissal, impliedly bars amendments if not sought within ten days.

We cannot agree with defendants’ contentions. It is well established that Rule 15, ARCP, dealing with amendments, is to be liberally construed. Therefore, amendments are to be freely allowed and their refusal must be based on some valid ground. National Distillers & Chemical Corp. v. American Laubscher Corp., Ala., 338 So.2d 1269 (1976).

We perceive Rule 78 as being expressive of this policy. To hold that it creates an absolute bar to amendment after the expiration of ten days would not only be contrary to our practice concerning amendments, but also would run afoul of the more basic and pervasive rationale of our Rules of Civil Procedure; namely, that cases are to be decided on the merits. See, Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975). Indeed, in Papastefan v. B & L Construction Co., Inc. of Mobile, supra, our supreme court said a right to amend after suffering dismissal also exists under Rule 15. There is no ten day limitation anywhere in this rule.

Therefore, the question ultimately must be: Did the trial judge abuse his discretion in denying the motion to amend?

We answer affirmatively. There must be some valid ground for denying leave to amend. Although sufficient grounds exist if granting the motion will unduly delay trial on the issues or unduly prejudice opposing parties, neither delay in and of itself, unless motivated by bad faith, nor the fact that the proposed amendment may well be the result of the afterthought of counsel as to the best theory on which to proceed, suffice as reasons for denying leave to amend. National Distillers, supra.

The Fifth Circuit Court of Appeals, in construing Federal Rule 15(a), which, like our rule, requires that “leave [to amend the complaint] shall be freely given when justice so requires,” has held that granting such leave is especially appropriate when the trial court has dismissed the complaint for failure to state a claim. Griggs v. Hinds Junior College, 563 F.2d 179 (5th Cir. 1977). There, too, plaintiffs filed motions to reconsider and to amend. The Fifth Circuit re.versed the denial of the motion to amend as an abuse of discretion inconsistent with the spirit of the Federal Rules as there was no showing that the granting of the motion would unduly prejudice the defendants.

Suffice it to say defendants in the case at bar have failed to show either undue prejudice or delay. As they themselves point out, no discovery has yet been instituted. This case, to this point, has progressed no further than the preliminary pleadings and the motions thereon which have resulted in this appeal.

Defendant, First National Bank of Birmingham, in a supplemental letter brief filed with this court, argues that the recent case of Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097 (5th Cir. 1979), supports its further contention there was no abuse of discretion in denying the motion to amend. Plaintiffs have responded by referring us to the also recent Alabama case of Ex parte Holt, 382 So.2d 498 (Ala.1980). Plaintiffs characterize this case as standing for the proposition that Rule 78 does not automatically bar amendments filed after the expiration of ten days.

Agreeing with plaintiffs, we find the Layfield case to be distinguishable in several key aspects. There, the defendants had filed motions for summary judgment and the plaintiff, in moving to amend, failed to comply with the local rules of the federal district court hearing the case. These rules required the filing of briefs and affidavits in support of such a motion. Citing this lack of compliance with the local rule and the Fifth Circuit’s position that an attorney has the duty to prepare a case properly before filing pleadings, that court upheld the denial of leave to amend.

As indicated, the case at bar is before us in the context of an appeal from the denial of leave to amend after a motion to dismiss was granted. We do not read the Layfield case as calling for a departure from the rationale set forth in Griggs, supra, where the Fifth Circuit held granting leave to amend is appropriate after a party has suffered dismissal of its claim. As we have pointed out, the Supreme Court of Alabama has said a right to amend exists in such a case under Rule 15 ARCP; Papastefan, supra. It has also said the mere fact that the proposed amendment is the result of the afterthought of counsel does not suffice, in and of itself, as a ground for denying leave to amend. National Distillers, supra. In Ex parte Holt, supra, the supreme court ordered the trial court to consider amendments filed after the expiration of ten days from the order of dismissal.

To this court, even more pertinent, and dispositive of this issue, is the case of Bracy v. Sippial Electric Co., Inc., 379 So.2d 582 (Ala.1980). There, in affirming the trial court’s decision to allow an amendment on the day of trial, the supreme court said:

Where an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party. . (Emphasis supplied.)

Suffice it to say that if no undue prejudice or delay was shown under the facts in Bracy, certainly none existed in the case at bar.

Following these decisions, we conclude the spirit of the Alabama rules requires reversal so that plaintiffs may proceed on their amended complaint. In so ordering, we of course do not intimate any views of the merits of plaintiffs’ claims.

Due to our resolution of these matters, further issues presented by the parties need not be discussed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

WRIGHT, P. J., and BRADLEY, J., concur.


author: SHORES, Justice.

text:
    Ex parte UNITED HANDICAPPED INDUSTRIES OF AMERICA, etc. (Re: UNITED HANDICAPPED INDUSTRIES OF AMERICA v. NATIONAL BANK OF COMMERCE, etc.).
    79-532.
    Supreme Court of Alabama.
    June 27, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: PER CURIAM.

text:
    Ex parte FIRST NATIONAL BANK OF BIRMINGHAM. (In re UNITED HANDICAPPED INDUSTRIES OF AMERICA, etc. v. NATIONAL BANK OF COMMERCE, etc.)
    79-531.
    Supreme Court of Alabama.
    Aug. 1, 1980.
   PER CURIAM.

Writ quashed on motion of petitioner, with consent of all parties.

WRIT QUASHED.

MADDOX, FAULKNER, ALMON, EM-BRY and BEATTY, JJ., concur.


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    M. C. WEST, INC. v. Paul D. BATTAGLIA.
    Civ. 2054.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 23, 1980.

      James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellant.
    Arthur Green, Jr. and Jake V. Bivona of Paden, Green & Paden, Bessemer, for ap-pellee.
   BRADLEY, Judge.

This is an appeal from a jury verdict against the defendant, M. C. West, Inc., for damages caused by flooding.

The plaintiff, owner of a restaurant, filed suit against the defendant alleging that the defendant constructed one or more dams across a creek near his business which caused water to back up and flood the plaintiff’s property. The plaintiff claimed damages to his carpet, furniture, walls, kitchen equipment, and other personal property located on his business premises. He also claimed a loss of business and injury to his real estate as damages. The plaintiff testified that he suffered $9,240 in actual damages, and he sought total damages of $25,000. The jury returned a verdict in favor of plaintiff and against the defendant for $2,000.

The plaintiff’s restaurant is located approximately eighty-five to one hundred feet from the banks of Valley Creek. Prior to September 6, 1977 the defendant had installed a haul bridge some two miles downstream from the plaintiff’s business. The haul bridge was built of railroad cars with the ends cut out. Each car was placed in the creek longitudinally and about a foot and a half of dirt was placed on top of the cars so that the defendant could drive its equipment across the creek. The railroad cars were used in this manner to allow water to pass through each car, thus serving as a culvert.

Valley Creek has about a foot and a half to two feet of water flowing in it under normal conditions. On September 6 and 7, 1977 a heavy rainfall of almost five inches occurred and plaintiff’s restaurant became flooded with thirty-two inches of water.

The defendant’s haul bridge is not the only obstruction in Valley Creek near the plaintiff’s business. There are two bridges, two railroad trestles, and an old bridge dam which span Valley Creek at points closer to the plaintiff’s business than the defendant’s haul bridge.

The first contention asserted by defendant is that the trial court erred in failing to grant either defendant’s motion for a directed verdict or his motion for judgment notwithstanding the verdict.

The directed verdict should be refused where the evidence is in conflict as to any material issue or where from the evidence reasonable inferences may be drawn to substantiate the claimed culpability of the defendant. Wells v. Central Bank, Ala. Civ.App., 347 So.2d 114 (1977). Similarly, a motion for judgment notwithstanding the verdict shall not be granted if there is any conflict in the evidence for the jury to resolve. Ford Motor Credit Co. v. Jackson, Ala.Civ.App., 347 So.2d 992 (1977).

Five expert witnesses testified at trial, four of them for the defendant. All of the defendant’s experts testified to the effect that the haul bridge had not contributed to the flooding of the plaintiff’s property. However, the plaintiff’s expert testified that in his opinion the construction of the haul bridge would significantly contribute to the flooding. The plaintiff’s expert did state that the other bridges and trestles across Valley Creek had an effect on the flooding and, in fact, some contributed to the flooding to a greater degree than did defendant’s haul bridge. We think the above testimony alone is a sufficient conflict in the evidence for the trial court to deny a motion for a directed verdict and judgment notwithstanding the verdict by the defendant. Therefore it was proper for the jury to resolve this issue.

The defendant’s second contention is that the jury’s award of damages to the plaintiff was based upon conjecture and speculation.

The general rule in Alabama regarding the assessment of damages was stated in United Bonding Insurance Co. v. W. S. Newell, Inc., 285 Ala. 371, 232 So.2d 616 (1969), wherein the court cited with approval 22 Am.Jur.2d 44, Damages, § 25, which is as follows:

“ * * * it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and that where it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances, all that can be required is that the evidence — with such certainty as the nature of the particular case may permit — lay a foundation which will enable the trier of the facts to make a fair and reasonable estimate of the amount of damage. The plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss.”

We think the evidence in the present case furnished a reasonable basis for the jury to ascertain the amount of damages suffered by the plaintiff. The plaintiff testified that he had opened his restaurant in its present location along Valley Creek in 1955. He stated that the bridges and trestles located between his restaurant and the defendant’s haul bridge were present in 1955. He testified that he was aware of no change in the Valley Creek area surrounding his restaurant except for the addition of the defendant’s haul bridge.

The evidence also established that the plaintiff had suffered flooding on prior occasions. There was testimony as to the number of inches of flood water that entered the plaintiff’s business during these prior floods. The plaintiff also introduced evidence showing the amount of flood water and the damage to plaintiff’s business occurring following the flood made the basis of this lawsuit. Therefore the evidence showed the amount of damage attributable to the bridges and trestles in Valley Creek during a flood as well as the damage caused by the addition of the defendant’s haul bridge. We think an award of damages based upon such evidence was not speculative.

The defendant argues that we should apply the principle approved by the court in Kershaw Mining Co. v. Lankford, 213 Ala. 630, 105 So. 896 (1925), wherein it was stated:

“ . . . Where there is evidence as to damage from various causes, as to a portion of which defendant cannot be held responsible, and no evidence as to the portion of the damages resulting from the separate causes, the proof is too uncertain to permit the jury arbitrarily to apportion a part or all of the proved damages to the act for which defendant is responsible.” 17 Corpus Juris, 758.

We think this rule applies only where there is no evidence as to what part of a plaintiff’s damage is attributable to various causes. However, where the plaintiff does present evidence of attribution to various causes, he may recover under the reasonable certainty standard. E. C. Ernst, Inc. v. Manhattan Construction Co., 551 F.2d 1026 (5th Cir. 1977), cert. den. 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978). See Tanner v. Case, 277 Ala. 641, 173 So.2d 803 (1965). As previously noted, the plaintiff has presented evidence as to proof of the amount of damage suffered. Therefore we think the nonapportionment rule formulated in Kershaw is not applicable to the case at bar.

The defendant’s third contention is that the trial court erred in denying his motion for a new trial.

It is the rule that where the verdict is contrary to the great preponderance of the evidence, defendant, on due motion, is entitled to a new trial, though the court was not in error in declining the affirmative charge. Walker v. Cardwell, Ala., 348 So.2d 1049 (1977). However, no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. Walker v. Cardwell, supra.

A jurys verdict is presumed to be correct and will not be reversed on appeal unless the preponderance of the evidence is against the verdict and is so decided as to clearly convince the court that it is wrong and unjust. Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975).

The question of whether the defendant’s haul bridge caused the- plaintiff’s property damage was a jury question. On the basis of the evidence previously noted and that in the record, we hold that sufficient evidence existed to support the jury verdict in favor of plaintiff.

The fourth contention argued by the defendant is that the trial court erred in overruling his objection to the following hypothetical question posed to the plaintiff’s expert:

Q Doctor, based on your experience and educational background, your past work experience, the field information that you gathered on the ground through your inspection, measurements you took of the bridges and whatever, the statistical information that you gathered, and in addition to that assuming that a haul bridge was constructed by the defendant, M. C. West, at the lowest point that you marked on here, just this one, which was from four to six feet in height, and assuming further that it had installed in the bridge three railroad cars which had openings in them approximately three and a half feet in height and eight feet in width, and that on top of those railroad cars was from one and a half to two feet of dirt.
Assuming further that it rained on the 6th and 7th in a twenty-four hour period of approximately five inches of rainfall.
Assuming further that from eleven to two a. m. from September the 6th at eleven until two a. m. on September the 7th that there was approximately 3.63 inches of rain.
With all those facts in mind, do you have an opinion as to whether or not the haul bridge constructed by the defendant was a contributing factor in the flooding of Paul’s Restaurant?

The defendant contends that the plaintiff’s hypothetical question did not present sufficient facts on which to base a reasonable conclusion.

The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the sound discretion of the trial court. Osborn v. Brown, Ala., 361 So.2d 82 (1978). And, an objection to his testimony on the ground of inadequacy of facts goes to the weight of the evidence rather than its admissibility. Dyer v. Traeger, Ala., 357 So.2d 328 (1978).

We think the plaintiff’s expert had sufficient facts upon which to base a conclusion. The plaintiff’s expert testified at length to his inspection of Valley Creek and the area between the plaintiff's restaurant and the defendant’s haul bridge. He stated that he made measurements of the lengths of the various bridges and trestles spanning Valley Creek near the plaintiff’s restaurant. He also measured the vertical height available for water to pass through each of the bridges. In addition, he testified that he utilized a great deal of statistical data, and photographs and maps of the flooded area.

The defendant also argues that the plaintiff’s hypothetical question assumed facts not in evidence. Specifically, the defendant contends that the plaintiff’s expert based his opinion on measurements and statistical data which were not admitted into evidence.

The rule is that hypothetical questions should not contain elements of fact not shown by the evidence. Donaldson v. Buck, Ala., 333 So.2d 786 (1976). However, the fact that the hypothetical does not include every factor or bit of evidence which could conceivably affect the answer or opinion requested does not affect its admissibility, but only the weight the jury might give to the opinion. Louisville & Nashville Railroad v. Self, 45 Ala.App. 530, 233 So.2d 90 (1970). Facts not included in the hypothetical are available for cross-examination and attacking the credibility or reliability of the opinion stated. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974). In light of the foregoing, we cannot say that the trial court abused its discretion in allowing the plaintiff’s expert to answer the hypothetical question.

The defendant next contends that the trial court erred when it allowed the plaintiff to testify to prior floods. The defendant argues that the plaintiff failed to prove that substantially similar conditions were present during the prior floods and the flood made the basis of this suit. We disagree.

To allow proof of an occurrence similar to that claimed to have caused an injury, substantially similar conditions must be shown, but it is not necessary that there be direct proof of the similarity. Southern Railroad v. Lefan, 195 Ala. 295, 70 So. 249 (1915). The nearness of the occasions may afford a presumption that they were similar, or they may be shown similar by other circumstances. Southern Railroad v. Lefan, supra.

The specific testimony objected to by the defendant was that of two prior floods which damaged the plaintiff’s restaurant. The first occurred on March 19, 1970 and the second in April of 1977. During the first flood, the plaintiff’s restaurant was flooded with six to eight inches of water after 6.91 inches of rain fell during a twenty-four hour period. The second flood in April of 1977 resulted in three inches of water damage to plaintiff’s business.

The plaintiff testified that he had been operating his restaurant in its present location since 1954. He stated that he knew of no substantial changes in the area along Valley Creek between his restaurant and the point at which defendant erected the haul bridge.

The defendant cites the plaintiff’s lack of knowledge of the entire Valley Creek basin to support his claim of a lack of substantially the same conditions. We do not think the plaintiff can be required to know every change that has occurred along Valley Creek. The plaintiff’s testimony that substantially the same conditions existed during the prior floods was direct proof of that fact. In addition, one of the defendant’s experts testified that the conditions in Valley Creek from the plaintiff’s restaurant to the location of the haul bridge remained substantially the same between 1963 and 1977. Therefore we think the trial court acted properly in allowing proof of prior floods.

The defendant’s final contention is that the trial court erred in refusing a number of his requested written charges. Defendant’s first set of requested charges instructed the jury that it could not award the plaintiff any damages. As previously noted, there was evidence from which the jury could have determined what part of the plaintiff’s damages were caused by the defendant. Therefore we think the trial court correctly refused these charges.

The defendant also objects to the trial court’s refusal of a number of charges dealing with certainty of damages. We agree with defendant that these jury charges are a proper statement of the law. However, we have examined the record and have concluded that the trial court covered these charges in its oral charge.

The refusal of a charge, where it is fairly and substantially covered by the. court’s oral charge, is not error to reversal. Barnes v. Burke, 47 Ala.App. 253, 253 So.2d 46, aff’d 287 Ala. 725, 253 So.2d 56 (1970); Rule 51, ARCP.

For the foregoing reasons, we affirm the decision of the trial court.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I must respectfully dissent from the decision of the majority upon the issue of damages. There was evidence that plaintiff’s restaurant was opened in 1955; that he had suffered flooding on other occasions prior to the installation of defendant’s bridge with resultant damages; that water had entered his premises to certain depths; that after installation of defendant’s bridge and upon the occasion complained of, his premises were again flooded but to a greater depth than ever before; that he had again suffered an amount of damage; that the defendant’s bridge together with other bridges and obstructions existing theretofore, and the heavy rain caused the premises to flood; the presence of defendant’s bridge in the stream substantially contributed to the flooding in some undetermined degree.

There was no evidence from which it could be determined how much flooding there would have been without the presence of defendant’s bridge. Thus the evidence requires two speculations: (a) how much deeper was the water in plaintiff’s restaurant because of the “substantial” but unknown contribution of defendant’s bridge, than it would have been without its contribution; and (b) how much, if any, did the added depth of water increase plaintiff’s damage over what it would otherwise have been?

I submit the principle of Kershaw Mining Co. v. Lankford quoted by the majority is the only principle available in this case. The majority says the rule of Kershaw is different from the “reasonable certainty” rule of Ernst and Tanner. It clearly is not different. The court in Ernst specifically denied any difference (p. 1036) between what it said and the rule of Kershaw and the case of Mobile & O. R. Co. v. Red Feather Coal Co., 218 Ala. 582, 119 So. 606 (1929). The principle of Kershaw was again stated in Law v. Gulf States Steel Co., 229 Ala. 305, 156 So. 835 (1934). It is for the failure to prove to any degree the extent of the contribution of defendant to plaintiff’s damages that plaintiff should not recover. Certain it is that there was insufficient proof to sustain a “reasonable certainty” standard. We are not concerned with the difficulty of plaintiff’s burden. This is not a case of total damages contributed to by defendant as a joint tort feasor or with concurring negligence. The burden was upon plaintiff to produce evidence from which there could be determined with reasonable certainty the amount of his damage attributable to the tortious act of defendant. He failed to meet the burden in this case both as to cause and effect.

I would hold defendant due a directed verdict.


author: EMBRY, Justice.

text:
    Ex parte M. C. WEST, INC. (Re: M. C. WEST, INC. v. Paul D. BATTAGLIA).
    No. 79-566.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   EMBRY, Justice.

Writ denied. No opinion.

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


text:
    Jack HELMS et al. v. FIRST ALABAMA BANK OF GADSDEN, N. A.
    Civ. 2105.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 23, 1980.

      Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellants.
    William D. Hudson of Wilson & Hudson, Birmingham, for appellee.
   HOLMES, Judge.

The plaintiffs, Jack Helms, Michael Helms, and Virginia C. Helms sought to bring a class action against defendant, First National Bank of Gadsden, N.A. The Circuit Court of Etowah County granted defendant’s motion for summary judgment. The plaintiffs appeal and we affirm.

The dispositive issues are (1) whether federal or state law provides the penalty when a national bank has lent money at an alleged usurious rate of interest, (2) whether usury taints subsequent renewals of a loan transaction when no usurious interest has been paid and the renewal note calls for the payment of interest at a legal rate, (3) whether plaintiffs, who never paid any interest at the alleged usurious rate, possessed a sufficient nexus with a class of persons who had been illegally charged usurious rates of interest, and (4) whether it is sufficient to state in a foreclosure notice that the mortgaged property will be sold “during the legal hours of sale.”

The record reveals the following: On March 2, 1978, defendant, a national banking association, accepted a promissory note from plaintiffs in the principal sum of $79,-592.68. This note was in renewal of two previous notes and bore interest at a rate of 12% per annum. It was to be paid in a single installment which was due ninety-one days thereafter.

No payment on either principal or interest was made, and on June 1, 1978, the note was renewed. However, this renewal note called for the payment of 8% interest on the original principal.

This change in interest rates was apparently the result of an inquiry made by plaintiffs’ attorney regarding the legality of the 12% rate. In a letter to the attorney, the bank informed him it was “forgiving” the payment of this interest, but indicated the payment of 8% interest from the date of renewal, June 1, 1978, was expected. The March 2 note was marked “paid by renewal” upon execution of the June 1 note.

The bank’s security was real estate mortgages between plaintiffs and itself. After plaintiffs failed to pay the June 1 renewal note when due, defendant foreclosed on the mortgages.

Defendant ran foreclosure notices which stated, in pertinent part, that the property would be sold “during the legal hours of sale.” At the resulting auction, defendant purchased the property for $75,351.65.

As a result of the above, this suit was filed by plaintiffs. They alleged the March 2 note was usurious. By amended complaint they sought to bring their action both individually and as a class action pursuant to Rule 23, ARCP. The purported class was all those persons “similarly situated which have been illegally charged interest rates exceeding applicable state and federal statutes, . . . ’’

Plaintiffs also attacked the foreclosure sale on two grounds. They first contended that because of the alleged usury, defendant had forfeited all right to retain or receive the principal amount of the loans. Secondly, they argued the sale was invalid due to the alleged insufficiency of the notice run by defendant in advertising the sale.

The bank moved for summary judgment and filed a supporting affidavit. The bank contended that, even if the 12% rate of interest was usurious, it had suffered the only penalty to which it was subject when it forgave and forfeited the right to this interest.

As indicated, the trial court granted the motion for summary judgment.

I

At the outset, we note that under the relevant portions of the National Bank Act, a national bank may charge “interest at the rate allowed by the laws of the State . where the bank is located . . . and no more . . . .” 12 U.S.C., § 85 (1970). This section has been interpreted as incorporating by reference the relevant statutory and case law of the state in which the national bank is located for purposes of ascertaining the maximum interest chargeable by that bank. First National Bank in Mena v. Nowlin, 509 F.2d 872 (8th Cir. 1975).

It is not necessary for this court to decide whether or not the interest rate of 12% charged by the bank was in fact usurious, and we do not so decide. This is so because even if the requirement of 12% interest on a single payment loan exceeds the allowable amount under Alabama law, federal law provides the penalty when a national bank is the offending party. It is well established that 12 U.S.C., § 86, is the relevant penalty statute in such a situation, for § 86, unlike § 85, does not refer to or incorporate state law. Therefore, since Congress has provided the penalty for usury, that action preempts the field, leaving no room for varying state penalties. First National Bank in Mena v. Nowlin, supra.

The only penalty provided under § 86 for knowingly charging a rate of interest greater than allowed by state law is a forfeiture of the entire interest where the interest has not been paid and a penalty of double the amount of interest if it actually has been paid. Therefore, even if defendant bank was guilty of usury, plaintiffs’ demand for the return of the principal, or in the alternative, for a voiding of the sale held subsequent to default, must fail as a matter of law.

II

Plaintiffs further contend the bank has not purged the alleged usury from the transaction through execution of the 8% renewal note. As support for this proposition, plaintiffs refer us to the case of Valley Mortg. Co. v. Patterson, 30 Ala.App. 492, 495, 8 So.2d 213, 216 (1942), where the following was said:

[U]sury, having once tainted the contract, continues to pervade the transaction throughout. And this regardless of renewals or the change in form of the debt, so long as the original usurious obligation continues to exist, based upon a consideration in which usury inheres.

Basing its argument upon this proposition, plaintiffs argue the “forgiving” or the 12% rate was ineffective, and that the purported usurious taint pervaded the renewal note.

We cannot agree. The above rule, which is most often found in cases where the creditor engaged in oppressive and devious behavior in order to cover its tracks, is not followed without exception.

Thus, in Masterson v. Grubbs, 70 Ala. 406 (1881), where there was an original note tainted by usury, but no interest was paid thereon, and the plaintiff sued on a nonusu-rious renewal note, the court held the defense of usury was not maintainable. After acknowledging the general rule that usury taints subsequent renewals of a note, the court said:

The illegal taint can be purged, or eliminated, however, in either of two ways; first, by a renewal of the note or contract, after it has passed into the hands of a bona fide purchaser for value, without notice of the usury; secondly, by a reformation of the contract, by which the usurious interest is expunged by remitting the excess, and only lawful interest is retained or exacted. ... 70 Ala. at 408. (Citations omitted. Emphasis supplied.)

Suffice it to say that under the facts at bar, where no interest or principal was paid on the allegedly usurious 12% note, the interest on that note was forgiven, and the renewal note was clearly at a lawful rate of interest, the purported usury was purged by the bank. We are not unmindful of McCormick v. Fallier, 223 Ala. 80, 134 So. 471 (1931). However, the emphasized portion of Masterson, supra, as quoted above, is not affected by the decision in McCormick v. Fallier and we apply and follow Masterson in the instant appeal.

Ill

Having determined that the defendant was subject only to the federal penalty for any usury, which it voluntarily subjected itself to, and that the taint of usury was thereby purged, rendering the 8% renewal note valid and enforceable, we must now decide whether plaintiffs can nevertheless be proper class representatives.

We conclude they cannot. Plaintiffs are correct in asserting that the mere fact their claims have been adjudicated as being without merit does not in and of itself bar class representation. Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978). However, the plaintiffs still must be members of the class they purport to represent; that is, to be a class representative, plaintiffs cannot lack nexus with the class, and must have the same interest and have suffered the same injury as the purported class members. East Texas Motor Freight Systems, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). Put another way, the plaintiffs must have suffered a legally cognizable injury in common with the class. Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978).

In both Rodriguez and Satterwhite, the plaintiff was found to lack nexus with the class each purported to represent for the reason that neither had suffered a legally cognizable injury.

The same can be said about plaintiffs at bar. None of the alleged usurious interest was ever extracted or paid, the defendant having voluntarily forgiven the interest on the prior note. Plaintiffs merely were required to pay the principal and legal interest from the date of renewal. In effect, they received the free use of over $78,000 for a period of three months. Thus, they cannot represent those who have “illegally” been charged an usurious rate of interest and have suffered a legally cognizable injury as a result.

This case is therefore distinguishable on the facts from Roper v. Consurve, Inc., supra, upon which plaintiffs rely. There, the plaintiffs had been charged usurious interest rates and had paid the usurious interest. After they filed suit, the defendant, over plaintiffs’ objection, tendered the maximum amount each could recover individually. The Fifth Circuit Court of Appeals refused to countenance such an obvious attempt to short circuit a meritorious class action.. There, the plaintiffs had clearly suffered a legally cognizable injury, and the fact their claims had been satisfied, whether willingly or not, did not deprive them of the necessary nexus with the class they purported to represent.

IV

Finally, we must determine whether the foreclosure notice advertising the sale, and stating it would be held “between the legal hours of sale” was sufficient.

Section 35-10-8, Code of Ala.1975, requires that the notice of such a sale “give the time, place and terms of said sale . .” Section 35-10-9 renders a Sale contrary to the provisions of § 35-10-8 null and void.

Plaintiffs contend the “legal hours of sale” are undefined in Alabama, and conclude the notice in this case failed to sufficiently inform prospective bidders of the time of the sale.

Again, we must disagree. As defendant points out, § 6-8-41, Code of Ala.1975, requires that all public sales shall be made between the hours of 11:00 A.M. and 4:00 P.M., allowing a sale once commenced to continue until 5:00 P.M. Thus, as a-matter of law, public sales, such as the one held in the case at bar, must take place within a specific and narrow time frame, and, in light of this limitation we feel defendant’s notice complied with § 35-10-8.

Although both parties have referred us to cases from other jurisdictions supportive of their respective positions, neither party has cited us to an Alabama case precisely on point, and our own research has been likewise unavailing. However, in Garst v. Johnson, 251 Ala. 291, 293, 37 So.2d 183, 184, 185 (1948), where the notice of sale specified it would be held “within the legal hours of sale,” the supreme court commented:

The proof does not sustain complainant’s contention that the foreclosure sale was had without good and legal notice of the same in accordance with the powers contained in the mortgage.

We conclude that under the facts at bar the notice was sufficient. Plaintiffs have shown no prejudice due to the notice. The notice contained sufficient information to allow interested persons to contact the parties involved and acquire the exact hour of sale. Such a notice could in fact be of benefit to the debtor in that it allows a delay so that interested bidders might arrive. To require that a specific hour be named could spur litigation in those instances where for some unforeseen reason the sale was slightly delayed. See, Burr v. Borden, 61 Ill. 389 (1871).

Because of our resolution of the legal questions presented, there were no genuine issues of material fact left to be litigated. This conclusion applies to the plaintiffs’ class claims as well as to their individual claims, for there is no need for further discovery or an evidentiary hearing pursuant to Rule 23, ARCP, when the uncontro-verted facts affirmatively show that the plaintiff lacks the identity of interest required of a proper class representative. Amason v. First State Bank of Linevilie, Ala., 369 So.2d 547 (1979). Therefore, summary judgment was proper.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

BRADLEY, J., recuses himself.


text:
    Ex parte Jack HELMS et al. (Re: Jack HELMS et al. v. FIRST ALABAMA BANK OF GADSDEN, N. A.).
    No. 79-579.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   EMBRY, Justice.

Writ denied. No opinion.

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


text:
    Robert GAMBLE and Annette Gamble v. WEBB QUARTERBACK CLUB et al.
    Civ. 2069.
    Court of Civil Appeals of Alabama.
    April 2, 1980.
    Rehearing Denied April 30, 1980.

      Myron H. Thompson, Dothan, for appellants.
    James D. Farmer, of Farmer & Farmer, Dothan, for appellees.
   HOLMES, Judge.

The plaintiff sued the defendant for malicious prosecution and abuse of process. The trial court, after an ore tenus hearing, entered a judgment in favor of the plaintiff in the amount of $5,000. The judgment did not specify upon which theory judgment was entered. The defendant appeals and we affirm.

The defendant contends the evidence does not support a judgment for malicious prosecution. Additionally, the defendant urges error in the trial court’s action striking certain defenses and in refusing to allow certain evidence to be admitted.

We do not deem it necessary to set out in detail the facts as revealed by the record. Suffice it to say that the following is pertinent.

In the late summer of 1976, Ray Snell-grove, a member of the plaintiff, Webb Quarterback Club, was defeated by defendant, Annette Gamble, in a city council election. The club sponsored children’s football teams in an area league. In January, 1977, Snellgrove proposed an eligibility rule to the club which was thereafter adopted by an affirmative vote of the club members. The rule provided that only those children who attended the Webb public school would be allowed to play on the club sponsored football teams. The defendant’s child had played on one of the teams but attended a private school and was therefore ineligible to play after the rule was adopted.

In June, 1978, after consulting an attorney, the defendant filed a U.S.C., Tit. 42, § 1983, action against the club and some of its members, individually, in federal district court. In her suit, the defendant claimed the eligibility rule was adopted solely as a result of the city council election to punish her for criticizing and defeating Snellgrove. The district court dismissed the suit, finding that there was a lack of jurisdiction because no “state action” was involved. No appeal was taken from this decision. The plaintiff then instituted the instant action.

At the outset, we note that the essential elements necessary to recover in a malicious prosecution suit are (1) a judicial proceeding, (2) initiated by the defendant, (3) without probable cause, (4) malice on the part of the defendant, (5) termination of the judicial proceedings favorable to the plaintiff, and (6) damages. King v. Farrell, 55 Ala.App. 147, 314 So.2d 68 (1975). If any of these elements is lacking, the result is fatal to the action. Ford Ins. & Real Estate Co. v. Thrasher, 45 Ala.App. 592, 234 So.2d 590 (1970).

The defendant, through able counsel, first contends that she did have probable cause to bring the prior federal action against the plaintiff. Specifically, she raises the defense of advice of counsel and further alleges that probable cause existed factually. As indicated above, the federal district court dismissed the prior action for want of jurisdiction because no “state action” was involved. Thus, we find our determination is limited to whether probable cause existed as to the presence of “state action.”

We first note that for the defense of advice of counsel to prevail, there must be a full and fair disclosure to counsel of all the facts and circumstances known to the defendant. Whether such a disclosure was made is, in this instance, a question for the trier of fact to determine. Broussard v. Brown, Ala.Civ.App., 353 So.2d 804 (1978).

The defendant contends that she made a full and fair disclosure of the facts as she knew them to her attorney, who recommended filing the prior suit.

However, the record reveals that the defendant’s attorney wrote a letter to the plaintiff club, stating that the club had used “revenue sharing monies over the past several years” for uniforms, bleachers, concession stands and upkeep of the football field. This alleged use of revenue sharing funds was materially relied upon in the defendant’s prior complaint to prove “state action.” The record further indicates that no such use existed and that the defendant knowingly misled her attorney with respect to the facts about revenue sharing funds as she had complete access to the city financial records and knew revenue sharing funds were not used by the club. Thus, the trier of fact could have concluded from the evidence that a full and fair disclosure was not made by the defendant to her attorney. Therefore, as a matter of law, advice of counsel was not, in this instance, a defense.

The defendant also contends, as indicated above, that probable cause existed factually. For this defense to prevail, the malicious prosecution defendant must have reasonably entertained the opinion that, upon adjudication, the claims put forth in the prior suit would prevail. Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959). Furthermore, in determining the existence of probable cause, this court must weigh the defendant’s actions in light of the facts as they appeared at the time the claim was filed. Dodson v. Ford Motor Credit Co., 46 Ala.App. 387, 243 So.2d 43 (1971).

As we understand the defendant’s argument in this regard, she contended that the plaintiff-club had complete control and supervision of the public football field, except during school hours. Additionally, she contended that the plaintiff’s football program was the only organized football activity in the community. The defendant further cited a donation of $400 to the club by the City of Webb which was later returned to the city. Based upon the above, the defendant concludes that probable cause existed to believe that the club’s use of the football field and receipt of city financial help constituted “state action.”

However, the record indicates that the football field involved was not in fact used exclusively by the plaintiff. In fact, there is testimony that the school principal informed the defendant, before she filed the prior action, that others could use the field and that the school exercised authority over the use of the field. The principal also related the procedure to be followed to get permission to use the field. As indicated above, there is evidence in the record that the defendant had knowledge that no city funds were being used by the plaintiff.

Whether probable cause existed factually when the evidence is in dispute is also for the trier of fact. S.S. Kresge Co. v. Ruby, Ala., 348 So.2d 484 (1977). Looking to the above, we are not prepared to say the trial court’s finding was in error when there was evidence the defendant knew, before filing the suit, that the plaintiff did not have exclusive use and control of the field and did not use public funds. Put another way, it was not error to rule that the defendant, in light of the facts as they existed prior to the filing of the suit, could not have reasonably entertained the opinion that her assertions would prevail.

The defendant next contends that the presence of malice was not shown and concludes the action must fail. We do not agree.

Malice may be inferred from want of probable cause or from the defendant’s conduct. S.S. Kresge Co. v. Ruby, supra.

This inference is not one of law, but is merely a presumption of fact which may be rebutted, and is for the trier of fact to determine. Huffstutler v. Edge, 254 Ala. 102, 47 So.2d 197 (1950).

The record indicates that the defendant was told on several occasions that the eligibility rule was not aimed specifically at her child and had nothing to do with the council election. In addition, the defendant was told that other children were affected by the rule change. There is also evidence, as indicated above, that the defendant knew the club had not used either federal or city funds. Despite this knowledge, the defendant proceeded to institute her lawsuit. Since we have already concluded that a finding of want of probable cause was proper, we feel that the attendant presumption which arose therefrom and the above facts sustain a finding of malice on the part of the defendant in instituting the federal action. Huffstutler, supra.

The defendant contends the trial court erred in striking her defense of res judicata. In response to the original federal lawsuit the club filed counterclaims against the present defendant for malicious prosecution and abuse of process. These counterclaims were dismissed by the federal district court on the grounds they were permissive counterclaims without independent grounds of federal jurisdiction.

The defendant argues that because of this dismissal, her defense of res judicata should prevail in the instant action. This court does not agree.

One of the essential requirements for a res judicata defense is that there was a final judgment on the merits in the prior action. See, Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975); Peak v. State Dept. of Industrial Relations, Ala. Civ.App., 340 So.2d 796, cert. quashed, Ala., 340 So.2d 802, cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 379 (1976).

Clearly, in this instance there was no adjudication on the merits of the plaintiff’s counterclaims. Thus, the defense of res judicata was unavailable.

The defendant next contends that the plaintiff was not entitled to recover attorney’s fees in the instant action as part of its damages because attorney’s fees were available in the prior federal action by statute. Defendant also raises the defense of res judicata with regard to the attorney’s fees. Put another way, the defendant contends the plaintiff, in effect, waived any right to attorney’s fees in defending the federal suit by failing to apply for them in federal district court. We do not agree.

Damages recoverable in a malicious prosecution action include expenses in connection with defending against the original suit. Key v. Dozier, 252 Ala. 631, 42 So.2d 254 (1949). The defendant does not cite, nor are we aware, of any authority which would preclude recovery of attorney’s fees as an expense in defending the original federal suit.

We would further note that for reasons already put forth, there was no error in striking the defense of res judicata with regard to the claim for attorney’s fees since the only finding made by the district court was that there was no “state action” involved. In other words, there was no judgment on the merits concerning the club’s right to these fees.

In any event, even assuming that attorney’s fees were not recoverable, there was evidence of other recoverable damages, including humiliation and shame sufficient to sustain compensatory and punitive damages to the extent of the judgment. Key, supra.

The defendant finally contends error in the exclusion of evidence relating to the rules of other neighboring teams. The defendant argues that she was attempting to show what the accepted practice was in the area and the league.

We note that the determination of the relevancy of evidence rests largely in the discretion of the trial court and its ruling will not be reversed on appeal unless it is plain that error was committed. Harper v. Baptist Medical Center-Princeton, Ala., 341 So.2d 133 (1976).

In this instance, exclusion of evidence as to what other teams did is not plain error since there is nothing in the record to indicate that the defendant had prior knowledge of other team rules. That is, looking to the facts as they appeared to defendant at the time she filed her federal action, she did not offer to show that her knowledge of the other area teams’ rules influenced her expectations of success and thus would have given her probable cause to bring the action. Dodson v. Ford Motor Credit Co., supra; Boothby Realty Co. v. Haygood, supra.

In view of the above, there is evidence to support the trial court. As indicated, the judgment entered was a general verdict and the verdict for malicious prosecution is supported by the evidence. Therefore, other issues raised by the defendant concerning the failure of proof regarding the abuse of process count need not be discussed. See, Sparks v. Milligan, 295 Ala. 358, 330 So.2d 417 (1976); White Roofing Co. v. Wheeler, 39 Ala.App. 662, 106 So.2d 658 (1957), cert. denied, 268 Ala. 695, 106 So.2d 665 (1958).

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: FAULKNER, Justice.

text:
    Ex parte Robert GAMBLE and Annette Gamble. (Re: Robert GAMBLE et al. v. WEBB QUARTERBACK CLUB et al.).
    79-602.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    STATE of Alabama v. Douglas M. HARRISON, d/b/a Douglas M. Harrison Advertising.
    Civ. 2014.
    Court of Civil Appeals of Alabama.
    April 9, 1980.
    Rehearing Denied May 14, 1980.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Calvin M. Whitesell, Montgomery, for ap-pellee.
   BRADLEY, Judge.

Appellant, State of Alabama, Department of Revenue, brings this appeal from a judgment by the trial court setting aside a final assessment for sales tax entered by the Department of Revenue against appel-lee, Douglas M. Harrison.

On January 30, 1978, the State of Alabama entered three final assessments against the appellee. The assessments covered the period from January 1, 1973 through December 31, 1976. The amounts of the assessments were $1,568.36, $3,136.72 and $7.71.

The appellee brought an appeal from each assessment pursuant to § 40-2 — 22, Code of Alabama 1975. The three actions were consolidated for trial by agreement. After hearing the evidence ore tenus, the trial court set aside the final assessments.

The facts in this case are not in dispute. The appellee, Douglas M. Harrison, is engaged in the business of rendering public relations services through an advertising agency. The appellee advises and consults a client or customer as to his public relations and advertising needs. The various services performed by the appellee include the filming of a motion picture, taking photographs, making tapes for a television or radio show, and preparing a catalogue or brochure to be used by clients in displaying products or merchandise. When the services rendered by the appellee include a cata-logue and brochure, the appellee contacts a printer and makes arrangements with him to have the items completed and delivered to the client. The printer bills the appellee for the job, and he pays the bill from his own funds. The total amount due from the client includes payment for the printed materials as well as for the appellee’s services. The appellee bills a client for his time, consultation, advice, and expertise. The trial court found that the appellee was engaged in a business in which he sold his time, talent and advice, and set aside the final assessment holding that the transfer of property was incidental.

The sole issue presented by this appeal is whether a transfer by the appellee to a client of catalogues and brochures is a “sale” of tangible personal property within the meaning of the sales tax act.

At the outset we should note that in case of doubt a tax law should be liberally construed in favor of the taxpayer. Montgomery Aviation Corp. v. State, 275 Ala. 266, 154 So.2d 24 (1963).

The appellee cites Haden v. McCarty, 275 Ala. 76, 152 So.2d 141 (1963) in support of his position. In McCarty, the court held that a transfer of dentures and prosthesis by a dentist to a patient was not a sale of tangible personal property, but was a transfer incident to the treatment rendered by the dentist. The court further stated:

A dentist does more than prescribe and fit dentures into the mouth of a patient. The prosthesis is merely the end result of what has taken much time to develop. No one would contend that dentures could be repossessed and sold to another as they have no value except to the person for whom they are designed. The denture itself could not be separated from the treatment, examination, and other things leading up to fitting it in one’s mouth, and separately charged for.

We find this reasoning to be persuasive. The appellee does much more than merely sell a client catalogues and brochures. The appellee must create the product that he eventually presents to his client. The final product created by appellee is the result of the appellee’s talent and skill. Certainly, the catalogues and brochures produced by the appellee have no value except for those for whom the materials were designed. See State v. Acker, 45 Ala.App. 574, 233 So.2d 514 (1970).

The court further held in Hamm v. Proctor, 281 Ala. 54, 198 So.2d 782 (1967), that the making of the prosthesis by a laboratory is not a manufacturing “for sale” under the sales tax act.

In Crutcher Dental Supply Co. v. Rabren, 286 Ala. 686, 246 So.2d 415 (1971), the court explained the holdings in McCarty and Proctor as follows:

The two cases hold that the use of material by dentist and laboratory in making the prosthesis is a consumption incident to rendering professional service and not a manufacture for sale any more than the preparation and production of a deed or a will or a lengthy brief by a lawyer for a client would be a manufacture of the instrument for sale. Such a holding may not appear to be strictly logical from a purely theoretical viewpoint, but, in the light of experience, we are of opinion that the holding is reasonable. [Footnote omitted.]

Just as a lawyer depends upon his legal expertise in preparing a deed or will, the appellee must rely upon his creativity in producing a catalogue or brochure suitable for his individual client. We think the creation of a catalogue or brochure by the appellee and the subsequent transfer of these materials to a client after being printed is incidental to the professional service being rendered.

Therefore we hold that the appellee was not engaged in selling tangible personal property under the sales tax act. This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: ALMON, Justice.

text:
    Ex parte STATE of Alabama. (Re: STATE of Alabama v. Douglas M. HARRISON, etc.).
    79-634.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    PARK SUPPLY COMPANY, INC., a corporation v. Gopal Reddy SUNKI et al.
    Civ. 2015.
    Court of Civil Appeals of Alabama.
    May 14, 1980.
    Rehearing Denied June 11, 1980.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellant.
    Gary C. Huckaby of Smith, Huckaby & Graves, P.A., Huntsville, for appellees.
   HOLMES, Judge.

The plaintiff sued defendants seeking to recover money alleged to be due for materials supplied defendants in the construction of an apartment complex. The jury returned a verdict in favor of defendants. The plaintiff thereafter moved for a new trial and this motion was denied and plaintiff appeals. We reverse and remand.

The dispositive issue is whether certain written charges given at the request of one of the defendants were prejudicially erroneous.

The record discloses the following pertinent facts: During the construction of an apartment complex on land owned by defendant Sunki, and other named defendants, plaintiff, a plumbing materials supplier, was contacted by Hopkins Plumbing Company (Hopkins). Plaintiff was asked by Hopkins to sell Hopkins certain materials on credit.

Hopkins was the plumbing subcontractor on the project under Ford and Landers, Inc. (Ford), the general contractor. Hopkins was apparently experiencing financial difficulties at the time and plaintiff determined Hopkins was not a good credit risk. As a result, plaintiff agreed to supply the materials only if Hopkins could provide a letter from Ford stating that Ford would make all checks payable jointly to Hopkins and plaintiff.

Shortly thereafter, plaintiff’s credit manager had a telephone conversation with an agent of Ford, explaining this requirement. An agreement was reached and plaintiff prepared the letter. After making a change not pertinent to the issues on appeal, Ford’s agent signed the letter.

Accordingly, plaintiff supplied the materials, carrying the account in the name of Hopkins and Ford. However, payment in full was not forthcoming and there remained an unpaid balance in excess of $7,000. Ford did draw a check payable jointly to Hopkins and plaintiff sufficient to cover the amount owed, but stopped payment after the check was delivered to Hopkins.

Plaintiff thereafter brought suit. As Hopkins had been discharged in bankruptcy and dismissed as a party, plaintiff ultimately sought a money judgment against Ford and United States Fidelity and Guaranty Company (USF&G), the company which issued the payment bond to Ford. Plaintiff also sought to have a lien established against the apartment complex.

The learned trial judge instructed the jury on the issues tried by the parties. For purposes of this appeal, the pertinent instructions revolve around plaintiff’s theory of recovery of money due for goods delivered. In Alabama, this theory is also known as the “common counts.”

Plaintiff does not take issue with the trial judge’s oral instructions. In this part of the charge, the jury was instructed it was only necessary for plaintiff to prove Ford requested the material be delivered to Hopkins for the benefit of Ford, that the materials were delivered by plaintiff while relying on payment by Ford, and that the materials were used for the benefit of Ford. If the jury determined the above elements were present, it was told the law would imply a promise on the part of Ford to pay the reasonable value of the materials.

Plaintiff’s objections at trial, and on appeal, center on two written charges given at the request of Ford. These charges were identified to the jury as being requested by Ford, were read at the end of the charge, and were at first sent into the jury room with the jury as it deliberated.

In giving these charges, the judge told the jury they were correct statements of the law, to be considered in connection with, but not as conflicting with, his oral instructions. For purposes of this appeal, we set forth only one of these, defendant Ford’s requested charge number 15:

If you find that the defendant Ford and Landers, Inc. did not order the goods and merchandise furnished to Willard Hopkins or did not request that such goods and merchandise be sold to him, then you must find a verdict for the defendant, as far as the claim for goods sold to the defendant.

Plaintiff duly excepted and stated its grounds, requesting a qualifying charge.

This request was at first refused, but upon it becoming apparent the written charges had been sent to the jury room, and after the jury submitted several questions in connection with this theory of recovery, the trial judge called the jury out and rein-structed it.

Informing the jury of his mistake, the trial judge said the following:

I am not telling you to disregard those instructions that I have given you. I am simply saying that they cannot be in the Jury Room with you. I want to at this time instruct you that you should not give any of those that you have read while deliberating any undue weight because they were sent in the Jury Room with you. That was just an error on the part of the Court, for which I apologize.
I am going to at this time reinstruct you on the matter of the Plaintiff’s second theory of recovery against the Defendant, Ford and Landers, for goods sold and delivered. In this theory the Plaintiff is relying on what we call the common counts. .
Now, these requested charges, some of them, may pertain to that common count theory and I am going to go through them and I am going to give you again these requested charges that you may consider in connection with the Court’s oral charge, but not in conflict with what I have told you. . . . Ladies and Gentlemen, I had previously submitted Defendant’s Requested Charge No. 11. I am withdrawing that charge from your consideration. I charge you that if you find that the Defendant, Ford and Lan-ders, Incorporated, did not order the goods and merchandise furnished to Willard Hopkins, or did not request that such goods and merchandise be sold to him, then you must find a verdict for the Defendant, as far as the claim for goods sold to the Defendant.
JUROR: Would you repeat that last one?
THE COURT: Yes, sir. If you find that the Defendant, Ford and Landers, Incorporated, did not order the goods and merchandise furnished to Willard Hopkins, or did not request that such goods and merchandise be sold to him, then you must find a verdict for the Defendant, as far as the claim for goods sold to the Defendant.

At this time, plaintiff renewed his objection to the still remaining written charge, which had now been read to the jury three times.

As grounds, plaintiff pointed out that under this charge, the jury had no alternative but to find for the defendants if it concluded either that Ford did not place the order for the goods or directly request that they be sold to Hopkins. That is, plaintiff argued the charge required a finding of a sale at the explicit request of Ford when all that was necessary was the finding that, under all the facts and circumstances, a request was made that the materials be supplied to Hopkins for the use and benefit of Ford.

Plaintiff renews this argument on appeal and further contends that the written charge is in conflict with the oral charge as outlined above.

At the outset, we note that under Rule 51, ARCP, the entire jury instruction; i. e., the judge’s oral charge as well as the written charges requested and given, is to be considered and reviewed as the “oral charge.” Taylor v. Owen, 294 Ala. 543, 319 So.2d 672 (1975). This is so because Rule 51 prohibits the designation of which party requested particular charges and requires that the written charges not accompany the jury into the jury room. Furthermore, the spirit of the rule contemplates the incorporation of the given written instructions into the appropriate part of the charge so as to preserve the charge’s symmetry. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 351 (1975).

Therefore, upon appeal, we will review alleged error in the giving of written requested charges as if the charges were a part of the oral charge; and, where the objected to portion of the oral charge is misleading, abstract, or incomplete, we will reverse only if we conclude that prejudice resulted from the giving of such charge in light of the entire instruction. Alabama Power Co. v. Tatum, supra. We will also reverse if the objected to part of the charge is prejudicially confusing in light of the entire instruction. Gray v. Mobile Greyhound Park, Ltd., Ala., 370 So.2d 1384 (1979).

Here, although the trial judge did withdraw one of the two written charges, he nevertheless gave the other charge in reinstructing the jury. We must therefore decide if the charge as a whole was prejudi-cially misleading or confusing.

We conclude that it was, for the written charge’s effect could only be to prejudicially mislead or confuse the jury in that it contradicted the oral portion of the charge. That is to say, the written charge was not merely omissive, in failing to completely put forth the facts upon which the jury could find for Ford, but was confusing in imposing a different, contradictory burden upon plaintiff than was outlined in the oral portion of the charge. See, Alabama Power Co. v. Tatum, supra.

The application of this principle is especially appropriate in this case in light of the manner in which the charge was given. As indicated, the defective written charge was identified as being requested by defendant and accompanied the jury into the jury room. Both of these incidents clearly violate Rule 51, ARCP. Furthermore, it was read at the end of the charge, no effort being made to incorporate it into the body of the charge at the appropriate place. This violated the spirit, if not the letter of the rule. See, Alabama Power Co. v. Tatum, supra.

The cumulative effect of this procedure could only be to further direct the jury’s attention to the incorrect written charge.It is exactly such “undue emphasis” on a portion of the charge that Rule 51 seeks to abolish. See, Rule 51, ARCP, Committee Comments.

We would be remiss if we did not comment that we have reviewed the charge as a whole as contemplated by Rule 51 even though, due to the above errors, this was, in effect, a pre-Rule 51 charge. Before the advent of our Rules of Civil Procedure, when there was a discernible distinction between the oral and written parts of the charge which was apparent to the jury, a variance between these two parts of the charge was fatal due to the inevitable confusion the variance would cause. Taylor v. Owen, supra. See, Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516 (1951).

Suffice it to say such a variance existed in this case, as was made manifest by the jury’s confusion and questions concerning the common counts theory of recovery. We conclude this lack of consistency so permeated the charge that, even considering it as a whole and not looking simply for technical variances, it was prejudiciously erroneous in misleading the jury.

Defendants, through able and distinguished counsel, also argue that a reversal predicated upon the above grounds should affect the verdict in favor of Ford only.

We cannot agree. This court has power to order such a limited reversal when the decision affects one appellee to the exclusion of the other appellees. However, when the facts are otherwise, the ends of justice call for a reversal of the judgment in its entirety. Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824 (1956).

Here, even though USF&G presented other defenses, a finding of Ford’s liability was essential to a judgment against USF&G on its bond. Likewise, a lien against the owner’s property would have been improper absent the rendering of a money judgment.

Therefore, this case is to be reversed and remanded as to all appellees.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Ex parte Gopal Reddy SUNKI et al. (Re PARK SUPPLY COMPANY, INC., a corporation v. Gopal Reddy SUNKI et al.).
    79-764.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Johnny BATTLES v. The STATE of Alabama.
    Civ. 2217.
    Court of Civil Appeals of Alabama.
    May 21, 1980.
    Rehearing Denied June 18, 1980.
    George W. Nichols, Jr., Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In paternity proceedings in the domestic relations division of the circuit court (juvenile court), the defendant was adjudged, on August 23, 1979, to be the father of a certain illegitimate child; whereupon, in open court, he immediately gave oral notice of appeal. On the same date the defendant executed and filed with the clerk of such division a bond. A copy of the file in his case, including a copy of his bond, was certified and filed with the clerk of the circuit court on August 28, 1979, by the clerk of the domestic relations division.

The bond was a normal criminal appeal appearance bond in the penal amount of $300, alleging that he had been “convicted” of the “offense” of paternity. It contained the following language:

. and whereas the said Johnny Battles made known to the said Court on the 23d day of August, 1979, that he desired to appeal to the Circuit Court of Tuscaloosa County, Alabama, from the said judgment of conviction upon question of law reserved in the conduct of his trial; and whereas the execution of the said sentence was, upon the filing of said notice of appeal, suspended pending the determination of said appeal; (Emphasis supplied.)

By the terms of the bond, his obligation thereunder would be voided by his required appearances in the circuit court, and by his abiding by such judgment as would be rendered on appeal and by his payment of all costs of appeal.

No written notice of appeal was filed with the clerk of any branch of the circuit court.

The State filed a motion to dismiss the appeal on September 10, 1979, which was granted by the court on October 12, 1979. On October 29, 1979, the defendant filed a motion for rehearing. An evidentiary hearing was held on January 4, 1980, as to defendant’s motion, and his motion was denied by the circuit court on January 9,1980; hence this appeal.

Appeals from the juvenile court to the circuit court in paternity cases are governed by § 26-12-8, Code of Ala.1975, which provides, in part, as follows:

[T]he reputed father may appeal from any final judgment rendered under section 26-12-4 by the court in which the proceeding originated within 10 days after rendition thereof by filing written notice of such appeal within said prescribed period with the clerk of the circuit court to which said appeal is taken and in the court rendering the judgment.

In LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581, cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972), it was decided that appeals in paternity cases must be perfected in accordance with the above quoted statute, and that an appeal to the circuit court must be dismissed if the requirements of such code section are not followed. There, the defendant prepared two proper notices of appeal, one to be filed in the juvenile court and the other to be filed in the circuit court; however, neither of the notices were filed with the clerk of either court but were only contained in the juvenile court file which was delivered to the circuit court. A bond was approved by the juvenile court judge. The supreme court affirmed the action of the court in dismissing the defendant’s appeal for failure to comply with § 26-12-8.

The defendant argues that his bond should be construed to be adequate as a written notice of appeal. However, it is clear that the bond references to notice of appeal are obvious references to the oral notice given by defendant in open court after being adjudged to be the father of the child. The bond relies upon the oral notice which is not adequate and is not in compliance in a number of ways with the appeal requirements of the statute. This bond is not a notice of appeal, but merely refers to an unauthorized method of giving notice of appeal, the oral notice. In that regard, it is noteworthy that a bond was also filed in LeFlore, but the supreme court did not intimate that the bond took the place of the requisite notices of appeal. We find that the bond filed by the defendant was inadequate to replace or substitute for the proper notices of appeal.

Under the essentials of § 26-12-8 two notices of appeal must be filed within ten days of the rendition of the paternity adjudication. One notice must be filed with the clerk of the juvenile court and one notice of appeal must additionally be filed with the clerk of the circuit court. The defendant did not file a notice of appeal with the clerk of either court. Noncompliance with such provisions necessitates the dismissal of a paternity appeal from the juvenile court to the circuit court on account of a lack of jurisdiction. LeFlore v. State, supra; Scribner v. State, Ala.Civ. App., 372 So.2d 1311, cert. denied, 372 So.2d 1312 (1979); Moutry v. State, Ala.Civ.App., 359 So.2d 388 (1978). We, therefore, hold that defendant’s appeal from the juvenile court to the circuit court was properly dismissed by the circuit court, and we affirm the action of the circuit court.

The foregoing opinion was prepared by retired Circuit Judge Edward N. Scruggs, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code of Ala.1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the judges concur.