author: BEATTY, Justice.

text:
    W. H. WORLEY, Ind. and as Admr., etc. v. Nancy Lillian WORLEY et al. W. H. WORLEY v. Nancy Lillian WORLEY et al. W. H. WORLEY, Admr., etc. v. Lillian WORLEY.
    78-831 to 78-833.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      Jack Giles of Giles, Anderson & Smith, Huntsville, for appellant.
    J. Robert Miller of Culver & Miller, Huntsville, for appellees.
   BEATTY, Justice.

These three cases concern the intestate distribution of the estate of one Mrs. Oscar (Pinkie) Worley. They were consolidated for purposes of trial and are in the form of a petition for sale for division, a suit for accounting and a claim against Mrs. Wor-ley’s estate. In passing upon these claims, the trial judge granted the sale for division and the claim against the estate, specifically denying the request for an accounting. For the reasons hereinafter set forth, we affirm in part, reverse in part, and remand.

I

In order to understand the nature of the present suits, it is necessary to focus upon the facts leading up to their independent origins. All relate to the estate of Mrs. Oscar Worley which is largely comprised of farm lands and rental property located near New Hope in Madison County. Much of this real property had been owned by the deceased’s husband', Oscar Worley, who had purchased the property over a twenty year period. When Oscar Worley died in 1943, this real estate passed to his three children, W. H. Worley (the appellant), Leonard Worley and Lillian Worley (later Lillian Worley Stimpson), as tenants in common, subject to the dower and homestead rights of Mrs. Worley.

After Oscar Worley’s death, Leonard Worley assumed the responsibility of farming the Worley property. Leonard married appellee Lillian Smith Worley and, together with their child, appellee Nancy Lillian Worley, they lived with Mrs. Oscar Worley in the Worley residence. When Leonard died in 1965, he left his one-third interest in the Worley properties to his daughter, Nancy. Both Lillian Smith Worley and Nancy Worley continued to live in the Wor-ley residence and they took care of Mrs. Oscar Worley in her later years.

Mrs. Oscar Worley added to the Worley property holdings in 1968 through the purchase of several adjoining tracts. In that same year Mrs. Worley’s daughter, Lillian Worley Stimpson, died and bequeathed to her mother her respective share in the properties previously owned by her father. These real property holdings, plus liquid assets in excess of $70,000, would later comprise the entirety of Mrs. Worley’s estate.

In August of 1977, an inquisition was conducted in the Probate Court of Madison County wherein Mrs. Oscar Worley was adjudged to be of unsound mind. The court appointed appellee Lillian Smith Worley as guardian, subject to her filing the proper bond. Mrs. Worley died on January 1, 1978 before any bond was filed and before Lillian Smith Worley assumed her responsibilities as guardian. The appellant W. H. Worley (son) was granted Letters of Administration and immediately removed the administration of the estate to the Circuit Court of Madison County.

On January 30, 1978, the appellant W. H. Worley commenced the first of three suits presently under consideration. He filed a complaint against the appellees requesting the sale of lands, in which they (he and the two appellees) were tenants in common, and a distribution of the proceeds. As defendants to this action, the appellees denied every allegation of the complaint and alleged that the property could be fairly and equitably divided by partition.

On February 26, 1978, the appellant commenced the second action, again naming the appellees as defendants, this time filing a Bill for Accounting or a Bill for Discovery. He contended that the named defendants had occupied a fiduciary relationship to the deceased, being her agent in managing her affairs in the years immediately preceding her death. Furthermore, he contended that an accounting was absolutely necessary in order to have the defendants account for funds allegedly spent on the decedent’s behalf during the period in question. No answer was ever filed to this complaint; therefore, the appellant filed a motion for summary judgment on the claim, together with supporting documents and affidavits. No responsive pleading or any other relevant matter was filed with respect to this motion.

The last of the three actions was commenced on July 20,1978 by J. Robert Miller (the present attorney for the appellees), Nancy Worley and Lillian Smith Worley. Each individual asserted a claim against the deceased’s estate. Mr. Miller filed a claim for $1,109.83 for attorney’s fees incurred in representing Lillian Smith Worley at the inquisition hearing wherein Lillian was appointed Mrs. Worley’s guardian; appellee Nancy Worley claimed $251.06 for utilities and nursing care paid by her on behalf of the deceased; and appellee Lillian Smith Worley claimed $153,388.02 for goods and services rendered or paid for by her, for and on behalf of the deceased. The latter claim is one based entirely upon principles of implied contract for services rendered in caring for the deceased during the three years prior to her death.

The actions thus set forth were consolidated upon motion by the appellant and were set for trial on March 28, 1979. In addition, the appellant’s summary judgment motion was set for hearing concurrently with the trial on the merits. The combined cases, together with the motion for summary judgment, thus proceeded to trial ore tenus.

On June 14, 1979, the trial court entered its judgment granting the sale for division, denying the accounting, denying the claims of Nancy Worley and J. Robert Miller and allowing the claim of Lillian Smith Worley in the amount of $68,104.25. Interest was computed on the judgment in favor of Mrs. Worley so that her final award stands at $73,937.71. After various motions for new trial were denied, an appeal was perfected to this Court.

II

The preliminary issue raised by the appellant focuses upon the judgment of the trial court in denying his claim for an accounting. The appellant specifically contends that the trial court committed reversible error when it refused to grant summary judgment on the claim. The appellant argues that since the appellees failed to rebut any of the evidence offered in support of the motion, the trial court was required to consider the evidence uncontroverted. It is alleged that in the face of uncontroverted evidence there could be no genuine issue of material fact and no ground supporting the trial court’s refusal to grant summary judgment. In addition, the appellant contends that, even assuming that he was not entitled to summary judgment on his accounting claim, he was nonetheless entitled to judgment on the claim on the basis of the pleadings and evidence adduced at trial.

We immediately agree with the appellant concerning the treatment of un-controverted evidence offered in support of a motion for summary judgment. With regard to the general production of evidence supporting such motions this Court has noted on several occasions that the initial burden of proving the nonexistence of any genuine issue of material fact rests upon the moving party. Ragland v. Alabama Power Co., Ala., 366 So.2d 1097 (1978); Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). If the movant successfully bears this burden and shows, by the material on file, that there is lacking any genuine issue of material fact, it then becomes the responsibility of the party opposing the motion to produce evidence to the contrary. Morris v. Morris, Ala., 366 So.2d 676 (1978). If the opposing party fails to do so, the court is left with no other recourse but to conclude that no genuine issue of material fact exists. In this way one can observe how uncontroverted evidence may be taken by a trial court as representing a state of facts which actually does not exist. This is one reason we have held that it is perilous for a nonmoving party to neglect to file evidentiary materials or affidavits in opposition to a motion for summary judgment. Ray v. Midfield Park, supra; Baxley v. Givhan, 292 Ala. 533, 297 So.2d 357 (1974).

In reviewing the appellant’s motion for summary judgment and the evidentiary materials filed in support thereof, it is readily apparent that he fulfilled the responsibility of establishing the nonexistence of any genuine issue of material fact. As noted previously, the appellees never responded to the motion. No answer or opposing affidavit was ever filed. The trial court was, therefore, faced with a situation in which it had to conclude that no genuine issue of material fact existed; however, this conclusion, in and of itself, was insufficient to justify the entry of summary judgment. Having found that no genuine issue of fact existed, the trial court was still required to go on to determine whether the appellant was entitled to judgment on his accounting claim as a matter of law.

The appellant contends that in order to establish an entitlement to an accounting one need only show the existence of a fiduciary relationship, a compilation of accounts, or the necessity for discovery. This, however, is an incorrect statement of the law. As noted by the trial court in its final decree the several factors alluded to by the appellant represent but the minimum jurisdictional requirements which must be met before an action for an equitable accounting can be maintained. Hall v. McKellar, 155 Ala. 508, 46 So. 460 (1908); Kirksey Motors, Inc. v. General Acceptance Corp., 276 Ala. 270, 161 So.2d 475 (1964). See also 1 C.J.S. Accounting § 14 (1936); 1 Am.Jur.2d Accounts and Accounting 851 (1962). Thus, the mere recitation or finding of these factors was not sufficient to justify an order requiring the appellees to account. The appellant was requesting equitable relief based upon his alleged inability to determine or ascertain the degree or character of the appellees’ action in managing his mother’s affairs. The question is, assuming the fulfillment of jurisdictional requirements, was the appellant entitled in equity, to the relief he requested?

We agree with the trial court that the defendant was not entitled to an accounting because information contained in a previous accounting had already been made available to him. The evidence reveals that a full and complete guardianship accounting had been tendered by Lillian Smith Worley when she was appointed guardian of Mrs. Worley in August of 1977. This accounting involved a complete listing of the services and charges paid by Lillian on behalf of Mrs. Worley, including a computation of the balances of Mrs. Worley’s various bank accounts. Furthermore, the appellees were compelled by the court in pretrial discovery to produce and permit the appellant to inspect and copy all documents relating to taxes; all check books and bank statements, together with all canceled checks, and all books of account of Mrs. Worley or any other papers reflecting any accountings relative to Mrs. Worley’s business. On the basis of this wide scope of information made available to the appellant, the trial court could have found that he was not entitled to an accounting. For that reason the trial court acted properly in denying the motion for summary judgment.

We reach the same conclusion in determining whether the appellant was entitled to an accounting on the basis of the testimony and evidence presented at trial. In any action for an accounting, it is the responsibility of the trial court to determine the preliminary question of whether an individual is entitled to that relief. Ex parte Cunningham, 270 Ala. 300, 118 So.2d 757 (1960). In making that preliminary determination in the present case, the trial court reached a negative conclusion and reasoned thusly:

In the case at bar testimony at trial included a comprehensive examination and cross examination of the defendant Lillian Worley. Those inquiries covered all phases of her handling of the funds and properties of the deceased. Additionally, pursuant to her guardianship appointment Lillian Worley filed an accounting in Probate Court covering the matter made subject of this suit. An order of this court compelling an additional accounting would only result in a repetition of the testimony in writing and would therefore be a futile act which equity will not compel. Considering all the evidence the court has concluded that the defendant Lillian Smith Worley has as fully and adequately as possible accounted for all funds and properties which came to her possession or control as a result of any fiduciary relationship with the deceased.

In judging the propriety of this decree, we recognize that the trial court heard the “comprehensive examination” of Lillian and examined the evidence ore tenus. As a result, the determinations it made cannot be overturned unless clearly and palpably erroneous or manifestly unjust. Russell v. Russell, Ala., 361 So.2d 1053 (1978). Upon our independent examination of the record we find no such palpable error and, therefore, affirm the lower court decree denying the appellant’s suit for an accounting.

III

The appellant’s second argument attacks the trial court’s decision that appellee Lillian Smith Worley supported her claim for services rendered on principles of an implied contract. The appellant’s basic contention is that the trial court’s finding of an implied contract was simply not supported by a showing of clear and convincing evidence.

The trial court was dealing with a situation in which an implied contract was said to exist between members of the same family. This relationship between the parties, i. e., mother-in-law and daughter-in-law, is significant because it raises at least an initial presumption that the services performed were rendered without expectation of payment or reimbursement. It is a well-recognized principle of law that services rendered between near relatives are, in the absence of evidence to the contrary, presumed to be gratuitous. Davison v. Dennis, 176 Ala. 435, 58 So. 401 (1912); Hasty v. Hasty, 260 Ala. 90, 69 So.2d 282 (1954). However, the" presumption thus raised is not conclusive and may be rebutted upon a showing of facts disclosing a different state of affairs.

In the case of Hasty v. Hasty, supra, the court was dealing with facts strikingly similar to these under consideration. In that case, a daughter-in-law filed a claim against the estate of her mother-in-law for services rendered in caring for her mother-in-law during the years immediately preceding her death. Faced with the proposition and presumption that such services were rendered gratuitously, the court at 260 Ala. 92-93, 69 So.2d 285 (1954), held:

It is argued by the appellants that there was no proof showing an expressed or implied agreement by the decedent to pay or an expectation on the part of the claimant at the time services were rendered to receive payment for the services. It is contended that the proof at best shows that the services of the claimant were gratuitous and grew out of the family relationship and furthermore that the proof at best indicates a desire on the part of Mrs. T. J. Hasty, deceased, to provide for Minnie Hasty after her death and that there was no charge against her estate for such services. These authorities, however, together with Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421, show that any presumption against an obligation to pay for such services is a rebut-table presumption and that an implied agreement may be inferred and support an action of this kind as between near relatives where the facts and circumstances are such that a mutual intent to pay and to receive pay for such services is a reasonable and just conclusion. [Cf. Duncan v. Johnson, 239 Ala. 183, 194 So. 528 (1940).]

A careful examination of the record convinces us that there was evidence before the trial court from which it reasonably could be inferred that the parties operated under a mutual belief that Lillian would be compensated for her services. Those services were enormous, involving a constant attendance to Mrs. Worley’s physical needs. The evidence establishes that Lillian fed Mrs. Worley, bathed her, clothed her, and attended to her other household requirements. She furnished transportation to Mrs. Worley and managed her business affairs. Additionally, several witnesses testified to statements made by Mrs. Worley in which she expressed her intention to repay Lillian for the constant care she was receiving. Lillian responded to these expressions of intent with agreement, stating on one occasion that whatever Mrs. Worley wanted to do would be “agreeable or fine.” On the basis of this evidence, it was reasonable to conclude that Mrs. Wor-ley and Lillian Smith Worley operated under a mutual arrangement that Lillian would be paid. The judgment of the lower court on the implied contract aspect was amply supported by the evidence.

IV

The final argument made by the appellant concerns the portion of the trial court’s order which granted a sale for division. The appellant supports the overall correctness of this ruling but attacks the statement made by the trial court to the effect that appellee Lillian Smith Worley possessed no dower interest in the property being sold. The appellant, W. H. Worley, contends that Lillian had dower rights in some of the land previously owned by her husband’s father, and in which her husband owned a one-third undivided interest.

Dower is a life estate of the widow in a certain portion of her husband’s real estate, i. e., inter alia, all lands of which the husband was seized in fee during their marriage. Code of 1975, § 43-5-1(1). The “seisin” required under this statute is sometimes referred to as that of which the husband was “beneficially” seized, Bell v. Killian, 256 Ala. 24, 53 So.2d 604 (1951), meaning that the husband’s seisin must have been for his own use and benefit. Hamm v. Butler, 215 Ala. 572, 112 So. 141 (1927). Seisin may be “seisin in law” or “seisin in fact.” That is, there must be either a right to immediate possession or enjoyment of a freehold estate, or an actual possession of such an estate. Eisenberg v. Stein, 222 Ala. 576, 133 So. 281 (1931); 28 C.J.S. Dower § 10 at 75.

It has been held that in the case of tenancies in common, each co-tenant is seized of a separate freehold estate, and that the co-tenant’s wife is entitled to dower therein. See generally, 28 C.J.S. Dower § 18 at 83. Some of the cases which have reached this conclusion have disclosed facts showing that the co-tenants were “seized in law,” no one being in actual possession, Ratzman v. Ratzman, 333 Ill. 461, 164 N.E. 172 (1929), or were “seized in possession,” Jenkins v. Strickland, 214 N.C. 441, 199 S.E. 612 (1938).

In Chaney’s Heirs v. Chaney’s Administrator, 38 Ala. 35 (1861), one Emanuel Chaney, being one of the heirs of one Green B. Chaney, died before the sale for division of Green Chaney’s land. Emanuel left a widow but no heirs. This Court held that at the time of his death Emanuel was seized of an undivided share of Green Chaney’s real estate, his seisin having resulted by descent, and therefore his widow was entitled to dower. “It is clearly the law,” this Court stated, “that the seizin of a coparcener is such that his widow is dowable in the land held in coparcenary.” The Court went further, however. Emanuel’s widow’s right to dower in the land was subject to the power of sale for division under an order of court, and because a sale of Green’s land had occurred, she was relegated to a dower interest out of her husband’s share of the proceeds of the sale for division.

A similar case, McCloud v. McCloud, 169 Ala. 654, 53 So. 834 (1910), recognized the principle of a widow’s dower right in a co-tenant’s land, but contained distinguishing facts. In McCloud the co-tenant died after conveying his undivided interest and after the sale for division. It was held in those circumstances that the widow’s right was limited to a claim against her husband (his estate) alone, since he was not entitled to any of the proceeds of the sale. In Powell, Real Property, § 209[1] at 142 it is stated: “Seisin is not present in the rever-sioner or remainderman who holds subject to an outstanding estate for life. Consequently, dower never attached when the husband’s only interest during coverture was such a future interest.” The author’s footnote explains this statement and its effect:

This rule had importance when H died survived by W, who thereupon received dower[,] and ownership subject thereto vested in son A who had a wife B. On A’s death (in the lifetime of W) B became entitled to dower in only two-thirds of the lands descended from H. As to the other third, W’s outstanding dower prevented A from being seized thereof during coverture. [Emphasis added.]

Carr v. Hart, 232 Ky. 37, 22 S.W.2d 432 (1929) is an illustrative case. One Carr died intestate, leaving a widow and three children. The heirs (and the spouses of the two heirs who were married) conveyed to the widow for her life all of the property which her husband had owned at his death. Several years later, one of the Carr heirs, a son, died leaving a widow and posthumous child who died at eight years of age, and later on Carr’s widow died. The other heirs sued to partition the Carr real estate. The widow of the heir claimed a dower interest in an undivided one-third interest in the real estate owned by his father. What that court stated at 22 S.W.2d 434 in connection with her claim is pertinent here:

During the period between the death of [Carr and the conveyance by his heirs to his widow of a life interest in his real estate,] the heir, as one of the three heirs of [Carr] was beneficially seized of a one-third undivided interest in the real estate left by his father, and had the right to the possession of all that one-third, except the one-third of it that would be included in the dower to which his mother was entitled after assignment to her. He was therefore seized and entitled to the possession of two-thirds of the one-third that he inherited from his father, the other one-third portion of his inheritance being encumbered by the then consum.mate dower right of his mother, which would become perfected when her dower was assigned, and which would relate back to the time of the death of her husband. To the extent, therefore, of a one-third interest in the one-third that [the heir] inherited from his father, he never had the right of possession ... so as to .. . entitle his widow to inchoate dower therein.

We conclude therefore that the trial court erred when it held that Leonard Worley was never seized in possession of any of Oscar Worley’s property. As a tenant in common of that property he was seized (in law) of an undivided share by descent, and his widow was dowable in his land held in co-tenancy. Leonard had the right to the possession of all of one-third of that land, except the one-third (Code of 1975, §§ 43-5-2(3)) of it that was included in Mrs. Pinkie Worley’s dower. Therefore he was seized and entitled to the possession of two-thirds of the one-third that he inherited from his father, the other one-third portion of his inheritance being encumbered by the consummate dower right of his mother. He never had the right of possession of the one-third interest of his mother in the one-third that he inherited from his father as to entitle his widow Lillian, to dower therein. That one-third which his mother, Pinkie, was entitled to as dower was the “remainder” to which dower would not attach in favor of Leonard’s widow, Lillian. Accordingly, those portions of the trial court’s order granting the sale for division, the claim against the estate, and denying the request for an accounting, are affirmed. That portion of the trial court’s order finding that Mrs. Lillian Worley, widow of Leonard Worley, had no dower interest in the property sold, is reversed, and the cause is remanded for an order not inconsistent with this opinion. It is so ordered.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      . Apparently the appellant, W. H. Worley, is concerned about the dower problem on the ground that any outstanding dower right of Lillian Worley might be a cloud on the title to land sold in the partition suit. Unfortunately the importance of this substantive issue was reflected neither in the briefs of the parties nor during oral argument. The appellant states in brief only that the trial court was wrong “when obviously, she had no [sic] dower rights in the interest that Leonard Worley died possessed of.” That conclusion was followed by neither analysis nor citation of authority. The appel-lee, on the other hand, dismisses the issue as an ore tenus problem for the trial court. As the ensuing observations will disclose, the issue is more complex than either expression.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    W. P. ADAMS v. E. Robert LEATHERBURY, as Chairman of the State Pilotage Commission; Joe Ollinger, Jr., and J. E. Rehm, as members of the State Pilotage Commission.
    79-227.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      Mylan R. Engel and Edgar P. Walsh of Engel & Smith, Mobile, for appellant.
    Kirk C. Shaw of Armbrecht, Jackson, De-mouy, Crowe, Holmes & Reeves, Mobile, for appellees.
   MADDOX, Justice.

This appeal involves a claim of age discrimination by a Mobile bar pilot, who was requested by the State Pilotage Commission to surrender his bar pilot’s license on his sixty-eighth birthday, as required by Code 1975, § 33-4-53.

The bar pilot filed this action against the members of the State Pilotage Commission, and asked the Court to declare the state’s compulsory retirement of bar pilots law unconstitutional, because it conflicted with the provisions of the Federal Age Discrimination in Employment Act (FADEA). 29 U.S. C.A. § 623 and § 631.

The sole issue presented is whether Alabama’s compulsory retirement law is preempted by the FADEA. We hold that it is not, and affirm the judgment of the trial court.

State and Federal Law

Code 1975, § 33-4-53 states:

Every bar pilot licensed and branched by the state pilotage commission upon reaching the age of 68 years shall be required to retire and surrender his license or branch to the state pilotage commission. (Acts 1961, Ex. Sess., No. 103, p. 2023.)

Sections 623 and 631 of title 29 U.S.C.A. state in pertinent part:

§ 623. Prohibition of age discrimination
Employer practices
(a) It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; ...
§ 631. Age limits
Individuals at least 40 but less than 70 years of age
(a) The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age but less than 70 years of age.

Is the State Pilotage Commission an “employer”?

In order for us to decide whether the FADEA applies, we must first determine whether the party alleged to have engaged in discrimination is an “employer” within the meaning of the federal statute. Section 630 of title 29 U.S.C.A. defines “employer” as follows:

(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. [Emphasis supplied.]

Did the State Pilotage Commission have twenty employees? There was conflicting testimony on this issue; the bar pilot contended that it did. The Pilotage Commission contended it had no employees, and in support of its position, cites Mobile Bar Pilots Ass’n v. Commissioner of Internal Revenue, 97 F.2d 695 (5th Cir. 1938), wherein it was stated:

A pilot is the servant of the owner of the vessel who is responsible to third persons for his negligence or want of skill. Sherlock v. Ailing, 93 U.S. 99, 23 L.Ed. 819.

We hold that the State Pilotage Commission does not employ the pilots; therefore, it is not an “employer” under that provision of the FADEA, because it has less than the prescribed number of employees, but, 29 U.S.C.A. § 630, also defines “employer” as a state agency. Is the State Pilotage Commission a state agency? We hold that it is. It is created by statute, Code 1975, § 33-4-1, and its members are appointed by the governor, Code 1975, § 33-4-3; therefore, it is clear that the State Pilotage Commission is an “employer” within the meaning of the FADEA.

Does the FADEA preempt the State’s Compulsory Retirement Law?

The FADEA obviously conflicts with the state’s compulsory retirement law, because the state law requires compulsory retirement of bar pilots at age 68; the FADEA sets the mandatory retirement at age 70; therefore, the dispositive question is whether the federal law preempts state law. We now address that dispositive issue.

The United States Supreme Court in Ray of Atlantic Richfield Co,, 435 U.S. 151, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1977), stated:

Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found “where compliance with both federal and state regulations is a physical impossibility .. . ,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217,10 L.Ed.2d 248] (1963), or where the state “law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (Citations omitted.)

The United States Supreme Court has also stated:

In determining whether state regulation has been preempted by federal action, “the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State.” Savage v. Jones, 225 U.S. 501, 533 [32 S.Ct. 715, 725, 56 L.Ed. 1182], See also Reid v. Colorado, 187 U.S. 137 [23 S.Ct. 92, 47 L.Ed. 108], Asbell v. Kansas, 209 U.S. 251 [28 S.Ct. 485, 52 L.Ed. 778], Welch v. New Hampshire, 306 U.S. 79 [59 S.Ct. 438, 83 L.Ed. 500], Maurer v. Hamilton, 309 U.S. 598 [60 S.Ct. 726, 84 L.Ed. 969].

Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). Further, the United States Supreme Court has said:

This Court has repeatedly refused to void state statutory programs, absent congressional intent to pre-empt them.

If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed. Schwartz v. Texas, 344 U.S. 199, 202-203 [73 S.Ct. 232, 234-235, 97 L.Ed. 231] (1952).

New York Department of Social Services v. Dublino, 413 U.S. 405, 413, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688 (1972). And in a more recent opinion that Court has stated:

As we stated in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963):

[F]ederal regulation ... should not be deemed preemptive of state regulatory power in the absence of persuasive reasons-either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.

DeCana v. Bica, 424 U.S. 351, 356, 96 S.Ct. 933, 937, 47 L.Ed.2d 43 (1976).

The Federal District Court for Alaska in Simpson v. Alaska Commission for Human Rights, 423 F.Supp. 552 (D.C.Alaska 1976), stated:

... Preemption occurs when compliance with both federal and state regulations is physically impossible, the nature of the subject matter requires federal supremacy and uniformity, or Congress intended to displace state legislation. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-48, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

Applying the foregoing principles of preemption, we find no express intent by Congress to supersede and preempt this area of state regulation of bar pilots. The Pilotage Commission points out that in Senate Report No. 493, 95th Cong., 1st Sess. 5 reprinted in (1978), 3 U.S. Code Cong. & Admin. News, pp. 504, 508, it was stated, that “[a]s this language makes clear, the ADEA does not preempt State laws”; but that statement is not concerned with the entire Act, only with § 14(a), now 29 U.S.C.A. § 633(a), which deals with the federal-state interaction in enforcement of age discrimination laws.

As stated in Dorgan v. State, 29 Ala.App. 362, 196 So. 160 (1940):

“State pilotage laws, though regulations of commerce, are within power of state until such power is abrogated by Congress. Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina S.A. (Sup.1931) [154 Misc. 788] 279 N.Y.S. 257, aff. (1932) 257 N.Y.S. 908, 235 App.Div. 841, aff. (1933) 185 N.E. 698, 261 N.Y. 455; Moran Towing & Transp. Co. v. Robins Dry Dock [& Repair] Co. (1933) 290 U.S. 656, 54 S.Ct. 72, 78 L.Ed. [568], 569, rearg. den. Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S.A. (1933) 262 N.Y. 521, 188 N.E. 47.” 46 U.S.C.A. (1939-40 Sup.) § 215, p. 80.

29 Ala.App. at 364, 196 So. at 162. In an early case, the United States Supreme Court in Cooley v. The Board of Wardens of the Port of Philadelphia, 12 How. 299, 13 L.Ed. 996 (1851), citing 1 Stat. at Large 53, stated:

It may be said that Congress has consented, by the Act of 7th August, 1789, section 4:

“That all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the State, respectively, wherein such pilots may be, or with such laws as the states may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.” The Act of Congress 2d March, 1837, 5 Stat. at Large, 153, is a repeal of the part of the Act of 1803, now in question.

We hold that the regulation of bar pilots is a matter to be decided by the states, absent congressional intent to preempt that state regulation. For example, in Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1977), the Supreme Court of the United States decided that federal law had preempted the regulation of pilots of enrolled vessels. The Court opined:

... [A]s it is clear that States may not regulate the pilots of enrolled vessels, it is equally clear that they are free to impose pilotage requirements on registered vessels entering and leaving their ports. Not only does 46 U.S.C. § 215 so provide, as was noted above, but so also does § 101(5) of the PWSA, 33 U.S.C. § 1221(5) (1970 ed., Supp. V), which authorizes the Secretary of Transportation to “require pilots on self-propelled vessels engaged in the foreign trades in areas and under circumstances where a pilot is not otherwise required by State law to be on board until the State having jurisdiction of an area involved establishes a requirement for a pilot in that area or under the circumstances involved. .. .

While a state regulation of bar pilots of “enrolled” vessels which conflicted with a federal regulation would be preempted, we do not believe that Congress, by virtue of the FADEA has preempted the field even as to pilots working on “enrolled” vessels. Assuming, however, that the FADEA did preempt the field as to bar pilots, regardless of the type vessels on which they were working, that does not end the inquiry.

The FADEA provides for “bona fide occupational qualifications”, 29 U.S. C.A. § 623(f)(1). “Bona fide occupational qualifications” are defined in 29 C.F.R. § 860.102(d), as:

(d) Federal statutory and regulatory requirements which provide compulsory age limitations for hiring or compulsory retirement, without reference to the individual’s actual physical condition at the terminal age, when such conditions are clearly imposed for the safety and convenience of the public.

After defining “bona fide occupational qualifications”, § 860.102(d) continues by giving an example:

“This exception would apply, for example, to airline pilots within the jurisdiction of the Federal Aviation Agency. Federal Aviation Agency regulations do not permit airline pilots to engage in carrier operations, as pilots, after they reach age 60.”

Thus, airline pilots may be required to retire at age 60 by their “employers.” There is a close analogy between bar pilots and airline pilots, although we realize that the two are not the same. We cannot ignore the fact that the State’s interest in promoting the public safety in its harbors and on its waterways is sufficiently broad to permit the State to require the retirement of bar pilots at age 68; in short, the state law which sets a mandatory retirement age for bar pilots would be a “bona fide occupational qualification,” and the FADEA, even if preemptive, would not apply, because of the “bona fide occupational qualification” exemption, but in .this ease, we give force to the legislative determination that bar pilots should retire at age 68 and hold that this legislative determination meets the requirements of the act which place the burden on the employer to show a factual basis for believing that all or substantially all persons within the class (in this case, persons over 68 years of age) would be unable to perform safely and efficiently the duties of a bar pilot.

AFFIRMED.

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

      . Enrolled vessels are those “engaged in domestic or coastwide trade or used for fishing,” whereas registered vessels are those engaged in trade with foreign countries. Douglas v. Sea

        coast Products, Inc., 431 U.S. 265, 272-273, 97 S.Ct. 1740, 1745, 52 L.Ed.2d 304 (1977).

      . We recognize “.. . that the burden is on the employer to show (1) that the bfoq which it invokes is reasonably necessary to the essence of its business ..., and (2) that the employer has reasonable cause, i. e., a factual basis for believing that all or substantially all persons within the class . .. would be able to perform safely and efficiently the duties of the job involved, or that it is impossible or impractical to deal with persons over the age limit on an individualized basis.” Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977).


author: EMBRY, Justice.

text:
    ATHENS CITY BOARD OF EDUCATION et al. v. Paul REEVES.
    78-858.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Bruce Sherrill of Sherrill & Batts, Athens, and Vaughan H. Robison of Robison & Belser, Montgomery, for appellants.
    P. Michael Cole and David U. Patton of Patton, Latham & .Legge, Athens, for ap-pellee.
   EMBRY, Justice.

This is an appeal by the Athens City Board of Education and its members: Paul V. Ridgeway, Jimmy E. Alexander, J. Charles Durham, Nelson E. Howell, T. Sidney Johnston, Larry W. McCoy and Shelby Wilson. The judgment appealed from issued the writ of mandamus to the Board, and to each of its members, ordering delivery of an executed contract of employment to Paul Reeves for execution by him. The contract was for employment of Reeves as an R.O.T.C. instructor for the 1979-80 school year.

There are two questions to be answered by this court: (1) Did the trial court err in holding that Reeves was a regularly certified teacher as defined by the Alabama Teacher Tenure Act (§ 16-24-1, Code 1975)? and, (2) Did the trial court err in holding that notice in writing that he would not be reemployed was not given to Reeves on or before the last day of the school term as required by § 16-24-12, Code 1975, and therefore he was deemed reemployed for the succeeding school year under the terms of that code section?

For the convenience of the reader the pertinent code sections are here set out:

“The term ‘teacher,’ as employed in this chapter, is deemed to mean and include all persons regularly certified by the teacher certificating authority of the state of Alabama who may be employed as instructors, principals or supervisors in the public elementary and high schools of the state of Alabama and persons employed as instructors, principals or supervisors in the Alabama institute for deaf and blind, Alabama industrial school for boys, Alabama industrial school for girls and Alabama industrial school at Mt. Meigs.” § 16-24-1, Code 1975.

and

“Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether in continuing service status or not except by a vote of a majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action.” § 16-24-12, Code 1975.

The essential facts in this case may be briefly stated. Paul Reeves is a retired U. S. Army Lieutenant Colonel who was first employed by the Athens City Board of Education for the 1977-78 school year as a senior Army instructor to teach R.O.T.C. at Athens High School. The evidence shows that the employment of Colonel Reeves, as with all R.O.T.C. instructors, was by obtaining a recommendation from the Army in the form of a license upon the basis of which the State Department of Education issued an R.O.T.C. instructor’s certificate to Reeves. Such a certificate is not a professional certificate.

Prior to a scheduled meeting of the Board, Reeves had learned he would not be recommended for reemployment. Upon learning this he contacted Mr. Marvin Clem, Principal of Athens High School, got together with him and signed a written memo which Clem also signed that reads:

“I have officially been notified that Mr. Clem is recommending that I not be rehired in the school year 1979-80.”

The Board held that meeting on 26 April 1979, at which Reeves was present. On the agenda for consideration were the recommendations of the Athens Superintendent of Education, Dale Weizenecker, on employment of personnel for the 1979-80 school year. The names of Reeves and others were listed in a document given the board by Weizenecker and his recommendation was that none listed be reemployed.

A vote was taken by the Board, in the presence of Reeves, to accept and approve the recommendations of the Superintendent. As is readily apparent, there can be no question in this case but that Reeves had actual knowledge he would not be reemployed. After the Board meeting, Weizen-ecker prepared a written notice to Reeves, dated 4 May 1979, advising him of the Board’s action. That notice was addressed to Reeves at 613 Norton Drive, Athens, Alabama 35611, the address he gave to the Board at the time of his initial employment by it and at which he lived for five years to and including the filing of this action. The notice was not sent by certified mail but was stamped and mailed in a Board envelope by ordinary mail with the name and return address of the Board on it.

The 1978-79 nine-month school term for the Athens City School System ended 26 May 1979. On 30 May 1979, Reeves informed Principal Clem that he had not received any written notice he would not be reemployed for the school year 1979-80. Clem notified Weizenecker of Reeves’ statement. Whereupon, on 30 May, Weizenecker hand delivered to Reeves, in Clem’s office and presence, a copy of the 4 May notice of nonrenewal of Reeves’ contract.

“FINAL DECREE
“This cause coming on to be heard upon the Petition of Paul Reeves for Writ of Mandamus ordering that the Defendants contract to employ him for the school year 1979-1980. Upon a hearing in open Court, the Court proceeded to impanel an advisory jury in accordance with Rule 39 of the Alabama Rules of Civil Procedure, by the parties alternately striking from the jury venire. Whereupon, the Court proceeded to try before the advisory jury and the Court the issue of whether the Defendants had given notice to the Petitioner that he would not be employed for the succeeding school year in accordance with Section 16-24-12, Code of Alabama 1975. The Court first finds from the facts that the school term ended on May 26, 1979. Whereupon, at the close of all the evidence and the argument of the parties the Court submitted the following interrogatory to the advisory jury: Did the Athens City Board of Education give notice in writing to Paul Reeves on or before the 26th day of May, 1979, that he would not be offered re-employment for the succeeding school year? Whereupon, a jury of eleven lawful men and women and Danny E. Hill, foreman, returned an answer to the interrogatory of ‘No.’ Whereupoh, the Court proceeded to try without a jury the mixed question of law and fact of whether the Petitioner, Paul Reeves, was a teacher entitled to the benefits given by Section 16-24-12, Code of Alabama 1975 as defined in Section 16-24-1, Code of Alabama 1975.
“As defined in the statute a teacher is deemed to mean and include all persons regularly certified by the [teacher] certifying authority of the State of Alabama, who may be employed as instructors, principals or supervisors in the public elementary and high schools of the State of Alabama. It is urged by the Defendants that the Petitioner is not a teacher within the meaning of the statute, because the Petitioner’s certificate, from the certifying authority of the State of Alabama, the State Board of Education, authorized the Petitioner to teach only the subject of ROTC. The Athens City Board of Education strongly urges that the certification is not a professional certificate which requires certain specific educational background and strongly contrasts Petitioner’s ROTC certificate with a professional certificate which requires certain minimal educational standards, whereas the ROTC certificate does not require any minimal educational standard, but is based upon the person being certified being acceptable to the U. S. Army. The Court finds from the evidence that the Petitioner during the term of his employment as [an] ROTC instructor had duties that included classroom instruction, which courses were offered for credit by Athens High School, and which courses counted towards graduation.
“The statute in question requires that a person in order to be a teacher be regularly certified by the teaching authority of the State and employed as an instructor. There can be no question that Reeves was employed as an instructor. Nor is there any doubt that he was certified by the teaching authority of the State of Alabama. The question turns on the construction of the phrase ‘regularly certified.’ The word regularly is used in the statute to modify the verb certified and, thus, is descriptive of the process of certifying a teacher. The statute does not ‘require a regular certificate.’ Regularly, does not, therefore, describe the type of certificate to be issued, but is descriptive of the process of certification. Therefore, the Court concludes that the statute does not require any particular type of certificate but is requiring only that the process of certification be regular or in proper form and not be defective. To hold that the statute required a professional certificate would be to [read in] requirements in the statute that are not there. The Defendants point out that the ROTC program is made possible
only by the support of the U. S. Army and that the U. S. Army has the right to withdraw its support from the program at any time and by requiring the Defendants to continue their employment of the Petitioner he could acquire tenure and, therefore, force his employment by the Defendants after the ROTC program no longer existed. However, Section 16-24-8, Code of Alabama 1975 provides that a tenured teacher does not have to be reemployed where there is a justifiable decrease in the number of teaching positions or other good and just cause. Obviously, if the ROTC program ceased to exist there would no longer be a teaching position available and the law would not require the retention of the teacher in such set of circumstances.
“The Court adopts the finding of fact made by the advisory jury and finds that the Petitioner was not notified in writing on or before the final day of the school term for which he had been employed, that he would not be re-employed for the succeeding year. The Court further finds that the Petitioner is a teacher' within the meaning of the law and must be re-employed for the succeeding year at the same salary, not having been notified on or before the last day of the term that he would not be offered re-employment, and that the Writ of Mandamus prayed for should issue.”

Based upon careful scrutiny of the record and examination of applicable Alabama statutes and cases, it is difficult to perceive how that decree could be improved upon. We will not undertake to do so but rather will adopt it as part of this opinion. The two questions to be answered by this court in this case are answered in the negative.

The State Superintendent of Education, Dr. Wayne Teague, was given leave to file an amicus curiae brief. He has done so, expressing grave concern about the consequences of allowing the decree below to stand. He eloquently argues that the decree, if not reversed, will impair the development and improvement of professional competency of the teachers in this State. The Superintendent is unduly alarmed. We cannot foresee any such effect emanating from the decision in this case.

Under both the statutes and the Alabama appellate precedents, the decree below is in all respects correct and due to be and is hereby affirmed.

AFFIRMED.

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

      1. R.O.T.C. instructors, home economics teachers and vocational teachers, although they do not receive professional certificates, are regularly certified by the State Department of Education.

      2. It must affirmatively appear that written notice has been given in strict compliance with the statute. Johnson v. Selma Board of Education, 356 So.2d 649 (Ala. 1978).


author: PER CURIAM. FAULKNER, Justice

text:
    GULF OIL CORPORATION, a corp. v. SPRIGGS ENTERPRISES, INC., a corp. DIAMONDHEAD CORPORATION et al. v. SPRIGGS ENTERPRISES, INC., an Alabama corp.
    78-863, 78-864.
    Supreme Court of Alabama.
    Sept. 19, 1980.

      Wesley Pipes of Lyons, Pipes & Cook, Mobile, Douglas Arant and Samuel H. Franklin of Bradley, Arant, Rose & White, Birmingham, and Taylor D. Wilkins of Wilkins & Bankester, Bay Minette, for appellant Gulf Oil Corp.
    Broox G. Holmes and James J. Ward, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, Norborne C. Stone, Jr. of Stone & Partin, Bay Minette, for appellants Diamondhead Corp. and Lake Forest, Inc.
    E. E. Ball of Owen & Ball, Bay Minette, for appellees.
   PER CURIAM.

On June 21,1972, Lake Forest, Inc., a real estate developer which is a wholly-owned subsidiary of Diamondhead Corporation, sold some real property along U.S. Highway 98 just off I — 10 in Baldwin County to Dixon Shell Service Station, Inc. (That corporation later became Spriggs Enterprises, Inc.) During the negotiations prior to the sale, Spriggs and Dixon, the initial partners in this enterprise, obtained a commitment in a personal letter from Ralph Prince, who was at that time national sales manager for Diamondhead, that Diamondhead would not sell any of its property north of and between the Spriggs property and I — 10 for the purpose of “an automotive service station,” making the Spriggs station the first station off 1-10. Spriggs recorded this letter in the office of the Judge of Probate in Baldwin County. In November, 1972, Spriggs opened its service station, supplied with Shell products by Mothershed Oil Co., Inc.

In November, 1976, Diamondhead began negotiations to sell the property between Spriggs’ Shell station and 1-10 to Gulf Oil. Although Diamondhead and Lake Forest contended at trial that the Prince letter had no binding effect, the deed executed by Lake Forest to Gulf in December, 1976, specifically stated that the purchaser agreed and it became a covenant running with the property that the land sold would be used solely for the construction of “one convenience store with no more than two islands for self-service gasoline pumps.” This deed was also recorded. The property was cleared but the Gulf station has not yet been built.

On January 27, 1977, Spriggs and Moth-ershed sued Gulf, Lake Forest, and Dia-mondhead, seeking declaratory and injunc-tive relief with regard to the conveyance to Gulf and compensatory and punitive damages for alleged fraud, breach of contract, tortious interference with Spriggs’ business or with his contract with Lake Forest, and a civil conspiracy to interfere with Spriggs’ business. In addition to damages, the plaintiff also asked the court to set aside the deed from Lake Forest to Gulf and to specifically enforce the Prince letter. It asked the court to permanently enjoin Lake Forest from conveying the property for the purpose of erecting a service station. Gulf answered and also requested a declaratory judgment on the respective rights of Spriggs and Gulf as to the Gulf property. Mothershed was dismissed as a party prior to the end of the trial.

At the close of the evidence, the trial court made the following statement to the jury and made it a part of the record:

The Court finds as a matter of law that the deed to Gulf Oil Corporation may not be set aside in this action.

The Court further finds as a matter of law that the Defendant, Gulf Oil Corporation had notice of the declaration contained in the Plaintiff’s Exhibit No. 4 [the Prince letter] and is bound by the agreement, if any there is between Spriggs Company and Lake Forest and Diamondhead; and under the petition of Defendant Gulf the Court construes the , deed to Defendant Gulf Oil Company to be a deed under and subject to the declaration in Plaintiff’s Exhibit No. 4 [the Prince letter]. It is therefore ORDERED, ADJUDGED and DECREED that Defendant Gulf Oil Corporation be and it hereby is allowed to construct one convenience store with not more than two self service fuel pump islands; It is further ORDERED, ADJUDGED and DECREED that Defendant Gulf Oil Corporation be and it hereby is enjoined and restrained against selling monthly POL products and TBA items in a gross dollar volume greater than the gross dollar volume sales of convenience store sales. It is further ORDERED, ADJUDGED and DECREED that Defendant Gulf Oil be and it is further enjoined and restrained from displaying signs fairly inviting attention to the sales of POL products and TBA items greater than to convenience store sales item.

This injunction is to be placed of record and will run with the land.

The jury then returned two general verdicts against Gulf, Diamondhead, and Lake Forest. Two hundred fifty thousand dollars in actual damages and $1,000,000 in punitive damages were awarded to Spriggs. Defendants Gulf, Lake Forest, and Dia-mondhead filed motions for new trial and, in the alternative, for judgment notwithstanding the verdict, which were not acted on by the trial court and were thus deemed denied pursuant to ARCP 59.1. Gulf, Lake Forest, and Diamondhead appealed. We reverse and remand.

The trial court’s conclusion of law and the order entered thereon are patently inconsistent with the jury verdicts. The order is also inconsistent in its terms. If it purports to grant specific performance of the Prince agreement, allowing Gulf to pump gas on the premises seems to conflict with it. Additionally, there is no evidence to support the injunction against selling “POL products and TBA items in a gross dollar volume greater than the gross dollar volume sales of convenience store sales.”

But more basically, one cannot have a decree for specific performance and damages for breach of the same contract. Nor may the court award damages for the tort of fraud and misrepresentation and, at the same time, grant specific performance of the agreement. The theories of recovery are inconsistent, both legally and factually, and, therefore, the court’s decree and the jury’s verdict cannot coexist. U.S. Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978).

A party defrauded in a contractual setting is afforded a number of remedies in our system, and may pursue several in the same action. However, he cannot have multiple redresses. At 37 Am.Jur.2d Fraud and Deceit § 327 (1968), this rule is stated as follows:

In pursuance of the rule that a contract or transaction induced by fraud is ordinarily merely voidable, a defrauded party is, upon discovery of the fraud, put to an election. The legal system offers him a choice of several courses of conduct and remedies to redress the effect of the fraud and false representations.- He may elect whether to proceed ex contractu or ex delicto.

And at 25 Am.Jur.2d Election of Remedies § 26 (1966):

As a general rule, the doctrine of election is fully applicable where one of the two actions involved is at law and the other is in equity.

Spriggs is not entitled to have the Prince agreement specifically enforced and, at the same time, recover damages for fraud. Although the trial court seems to have ordered specific performance in a modified- form, this too is inconsistent with the jury verdicts either based on tort or on breach of contract.

We do not mean to suggest to Spriggs which of the remedies available it must elect. We hold only that it cannot have both the relief granted by the trial court and the jury verdict as well.

On retrial, the plaintiff must make an election at the latest before the case goes to the jury as to which of its inconsistent theories it elects to proceed on.

Because the trial court’s conclusion of law and its order are inconsistent with the jury verdicts, the judgment denying the motions for new trial are reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and FAULKNER, J., concur in the result.

FAULKNER, Justice

(concurring in the result to reverse and remand).

These appeals are from a judgment for Spriggs Enterprises, Inc., in an action involving fraud, civil conspiracy, interference with business or contractual relations, and breach of contract claims.

On June 21,1972, Lake Forest, Inc., a real estate developer which is a wholly-owned subsidiary of Diamondhead Corporation, sold some real property along U.S. 98 just off I — 10 to Dixon Shell Service Station, Inc. (That corporation later became Spriggs Enterprises, Inc.) During the negotiations pri- or to the sale Spriggs and Dixon, the initial partners in this enterprise, obtained a commitment in a personal letter from Ralph Prince, who was at that time national sales manager for Diamondhead, that Diamond-head would not sell any of its property north of or between the Spriggs property and I — 10 for the purpose of “an automotive service station,” making the Spriggs station the first station off of I — 10. Spriggs recorded this letter in the office of the Judge of Probate in Baldwin County. In November, 1972, Spriggs opened its service station supplied with Shell products by Mothershed Oil Co., Inc.

In November, 1976, Diamondhead began negotiations to sell the property between Spriggs’ Shell station and I — 10 to Gulf Oil. Even though Diamondhead and Lake Forest felt that the Prince letter had no binding effect, the deed executed by Lake Forest to Gulf in December, 1976, specifically stated that the purchaser agreed and it became a covenant running with the property that the land sold would be used solely for the construction of “one convenience store with no more than two islands for self-service gasoline pumps.” This deed was also recorded. The property was cleared but the Gulf station has never been built.

On January 27, 1977, Spriggs, Inc. and Mothershed sued Gulf, Lake Forest, and Diamondhead, seeking declaratory and in-junctive relief with regard to the conveyance to Gulf and compensatory and punitive damages for alleged fraud, breach of contract, tortious interference with Spriggs’ business or with its contract with Lake Forest, and a civil conspiracy to interfere with Spriggs’ business. Gulf answered and also requested a declaratory judgment on the respective rights of Spriggs and Gulf as to the Gulf property. Mothershed was dismissed as a party prior to the end of the

trial. The ease was tried to a jury, which entered two general verdicts against Gulf, Diamondhead, and Lake Forest. Two Hundred Fifty Thousand Dollars in actual damages and One Million Dollars in punitive damages were awarded to Spriggs. Defendants Gulf, Lake Forest, and Diamond-head filed motions for new trial and, in the alternative, for judgment notwithstanding the verdict, which were not acted on by the trial court and thus were deemed denied pursuant to ARCP 59.1. Gulf, Lake Forest, and Diamondhead appeal.

The following issues are presented in these appeals by the appellants, notwithstanding the majority’s opinion. It is my position to answer them.

(1) Did the trial court err in submitting Spriggs’ claim for compensatory and punitive damages on the various counts to the jury?
(2) Was there error in the charges to the jury?
(3) Did the trial court err in concluding that the Prince letter created an enforceable restriction on Lake Forest’s right to sell property to Gulf?
(4) Did the trial court err in refusing to grant the motions for new trial where the jury awards are so excessive as to have been the obvious result of passion, bias, or prejudice on the part of the jurors?

To recover for fraud, where the alleged fraud is premised on statements related to future events (here, that no other “automotive service station” would be built between Spriggs and I — 10) it must be disclosed by the evidence that the promisor, at the time of the making of the promise of future action or abstention, had no intention of carrying out the promise. Smith v. Chase Manhattan Corp., 458 F.Supp. 470 (M.D.Ala. 1978) (applying Alabama law). If this is not established by the evidence, the fraud claim should not be submitted to the jury. A mere failure to perform does not without more, constitute evidence of a present intent not to perform. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). My review of the record discloses no evidence that, at the time of the conveyance to Spriggs in 1972, Lake Forest and Diamondhead did not intend to perform the promise alleged to bind them. There were no pending negotiations for sale of the property in question for an automotive service station on or prior to June 21, 1972; no attempt to procure such a purchaser; and no statements evidencing an intent not to perform at that time.

Another element required to be proven in a fraud claim is actual damage resulting from the alleged fraudulent act. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971); Mobile Building & Loan Association v. Odom, 232 Ala. 19, 166 So. 698 (1936). An actual loss must also be shown to recover an award of damages for civil conspiracy and for breach for contract. Louisville & N.B. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003 (1914) (conspiracy), and Rickenbaugh v. Asbury, 28 Ala.App. 375, 185 So. 181, cert. denied 237 Ala. 7, 185 So. 187 (1938). Spriggs’ claim against Gulf based on tortious interference with its business or with the contract alleged to exist between Spriggs and Lake Forest/Diamondhead by way of the Prince letter required as an essential element of the claim that some actual injury or damage to Spriggs’ business to be proven to the trier of fact. See, Thompson v. Allstate Insurance Company, 476 F.2d 746 (5th Cir. 1973); Kelite Products, Inc. v. Binzel, 224 F.2d 131 (5th Cir. 1955).

An examination of the testimony taken at trial reveals that Spriggs never proved any actual injury, loss or damage either in the decline in value of the Spriggs property or in lost profits. Lamar Mothershed, President of Mothershed Oil and the Shell distributor who supplied the Spriggs station with all the gasoline it sold, testified on direct as follows:

MR. BALL:

In your opinion what was the value of Lake Forest Shell after the recording of that deed for Gulf?
A. I would say three hundred and twenty-five thousand.

However, during cross-examination, Moth-ershed explained that the decline in property value he earlier testified to was premised on the Gulf station’s actually being constructed and not merely on recordation of the deed:

Q. I think you testified that there was a hundred and twenty-five thousand dollars difference in there as a result of this deed being recorded?
A. It would be a hundred and twenty-five thousand dollars, yes, sir.
Q. If a gallon of gas is never pumped from that location then what is the difference, in your opinion?
MR. OWEN:
Which location?
MR. WILKINS:
He knows what I’m talking about.
MR. OWEN:
Well, I don’t and I’m entitled to know also Mr. Wilkins.
MR. WILKINS:
If no gas, if this Jury says gas can’t be pumped at that location, the Gulf location, then what is your opinion?
A. Well, strictly the sale of gasoline I would go back to the original figure.
Q. Then how much would it be worth?
A. Four fifty.
Q. Now, I think you testified if no gas is pumped from that location then it’s worth four hundred and fifty thousand?
A. Right.

Herman Spriggs, who purchased the property from Lake Forest and then built and owned Spriggs Shell station, testified:

MR. OWEN:
If the Court please, we have let him go on a good way that property was worth about five hundred thousand dollars before Gulf got its property.
A. That’s my opinion.
Q. It was your opinion that it was worth two hundred and fifty thousand dollars after that?
A. Yes, sir.
Q. The day after Gulf recorded its deed is when you say it was worth two hundred and fifty thousand dollars?
A. This is my opinion.
Q. It’s your opinion that the simple recording of the deed made a two hundred and fifty thousand dollar difference in value in your property, is that correct?
A. In my opinion.
Q. All right. When did you develop this opinion with respect to the value? Was this right after the deed was recorded?
A. I have been in the service station business for nine years and in my opinion another service station there would cut my business that much. That is my opinion.
Later, however, Spriggs testified:
Q. ... Now, you have testified here under oath that on the 14th day of January of 1977 that the deed from Lake Forest to Gulf was recorded and it automatically-your Shell Service Station property was reduced by two hundred and fifty thousand dollars, is that your testimony, your opinion?
A. That is my opinion, if they put in another station.
Q. If they put in another station?
A. That is my opinion.
Q. Was that your opinion if they don't put another station in?
A. No, sir.
Q. All right. Now, what, in your opinion, did the value of your property drop when the deed to Exxon was put on record?
A. I couldn’t really say because it’s across the road from me. I couldn’t say.
Q. To make it clear Mr. Spriggs, if Gulf does not put a convenience store or gasoline station of any kind on their property then the value of your property will not be diminished, is that correct?
A. As the business as it is, that is my opinion.
Q. I say that if they don’t put it in over there your property will not be reduced in value?
A. If there is not a station go there.
Q. If there is not a station there it will not reduce your value of your property?
A. I don’t think so, that is my opinion.
Q. Is your property, that is your Shell Service Station property worth more today than it was in January of 1977?
A. I’m not an expert on real estate but I would say the way things are going that it is. That is my opinion. [Emphasis added.]

With regard to lost profits, which must be capable of ascertainment with reasonable certainty to be recoverable, Malone v. Reynolds, 213 Ala. 681, 105 So. 891 (1925), we note the following testimony from Mothershed:

Q. Have you sold less gas down there at that location since January 1977, less since that date?
A. I don’t have any records on it but I wouldn’t think so.
Spriggs also testified on lost profits:
Q. Okay. Back on April 18th of 1977 or August 18th of 1977 there was a deposition in this case and your lawyer was present with you, I believe. One of my partners asked you to date. Can you tell me how you have been harmed financially by the transaction in question? Have you lost any profits yet? Can you tell me what your answer would be to that now?
A. To date, I don’t know that we have lost any profits.
Q. Can you name any way you have lost business or any costs that you have due to the sale of the property to Lake Forest to Gulf to date?
A. No, sir.
Q. Anything that cost you or your business up to right now?
A. Well, in my opinion, with the exception of what I have had to go through with this case is all. I have had no expenses as far as that.

Mike Carpenter, an employee of the real estate division of Shell Oil Company was questioned about the effect of a competing station in the location in controversy and replied as follows:

Answer: That would definitely. Any location you build there would be easily accessible and would have a tendency to dilute and have some effect. But just to tell you right off what effect is it might not be negligible and it might be severe. It would be really hard without a thorough study. The thing is, I couldn’t answer that question. [Emphasis added.]

From the portions of the record I have set out herein, it is evident that Spriggs never proved any actual damage which would in turn have allowed it to recover compensatory damages for fraud, conspiracy, and malicious interference with contractual and business relations.

I now examine the punitive damages awarded. Under Alabama law punitive damages may not be recovered for breach of contract. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973). Thus, any punitive damages must be justifiable under the fraud and conspiracy counts against Lake Forest and Diamondhead and under the malicious interference with business or contractual relations count against Gulf.

An award of punitive damages in an action for fraud will be upheld only if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the representations were made with knowledge of their falsity. [Winn-Dixie Montgomery, Inc. v. Henderson, 353 So.2d 1380, 1383 (Ala. 1977).]

It has also been stated:

The pertinent cases indicate that the primary constituent of gross, malicious, and oppressive fraud is the intention to injure and deceive. [Universal Brokers, Inc. v. Higdon, 56 Ala.App. 184, 320 So.2d 690 (Ala.Civ.App.1975).]

An examination of the evidence shows not that Lake Forest and Diamondhead intended to injure Spriggs but that the intent of both Gulf and Diamondhead was to comply with the terms of the Prince letter of June 21, 1972, even though they had doubts as to its binding effect. The negotiations were conducted with the understanding that Gulf was not being sold the property to build an automotive service station and the deed expressly stated that only a “convenience store with no more than two islands for self-service gasoline pumps” could be placed on the property.

To sustain an award of punitive damages for civil conspiracy, the following standard must be met:

Exemplary or punitive damages [under a conspiracy count] ... may be awarded, if the wrong done is aggravated by evil motive, actual malice, deliberate violence, or oppression, or otherwise essentially sounds in tort....
However, exemplary damages are never recoverable ... if there is no evidence of wantonness or malice. [§ 15A C.J.S. Conspiracy § 33, 718-19 (1967). (Footnotes omitted.)]

As discussed above, the record reflects no evidence of any malice or wantonness on the part of the appellants. Indeed, on my examination of the record it is not certain that Spriggs ever established that there was a conspiracy.

The essence of the allegations that Gulf interfered maliciously with Spriggs’ contractual relationship with Diamondhead and Lake Forest and with Spriggs’ business would seem to require a standard such as those for punitive damages in fraud and conspiracy claims as the allegations are essentially the same. I note that at all times Gulf acted consistently with the recognition of any possible interests Spriggs might have by virtue of the Prince letter, if it was binding and enforceable. I further find from my perusal of the transcript, evidence indicating that Gulf was involved in the land transaction with Diamondhead to foster its own legitimate business interests. In addition, Gulf constructed no facilities on its property, awaiting a declaratory judgment with respect to Spriggs’ rights under the Prince letter.

I have determined from my search of the record that punitive damages were improperly awarded in these cases. As both the compensatory damages and the punitive damages were not correctly determined by the jury, the trial judge should have granted the motion for new trial because the damage award was excessive, indicating bias, passion, prejudice and the like. Mixon v. Traylor, 266 Ala. 486, 97 So.2d 791 (1957).

Two general verdicts were awarded in these cases and thus I cannot determine which of the counts the verdicts were attributable to. As Spriggs failed to prove all the essential elements of some of its claims, a verdict attributable to such claims cannot stand. Shelter Modular Corp. v. Cardinal Enterprises, Inc., 347 So.2d 334 (Ala.1977).

TORBERT, C. J., concurs.

       “Dixon’s Shell Service Station, Inc. Highway 90 Spanish Fort, Alabama
      “This letter will confirm our agreement that Diamondhead Corporation will not sell any of its properties North and between Interchange of I — 10 and Dixon’s Shell Service Station, Inc. property for the purpose of an automotive service station.
      “It is also agreed that any fill dirt that may fall either North or South of Dixon’s Shell Service Station, Inc. property that Diamond-head Corporation will hold you Dixon’s Shell Service Station, Inc. harmless.
      “Ralph M. Prince”


author: PER CURIAM.

text:
    Patricia Yost PURCELL v. F. L. SMITH et al.
    79-142.
    Supreme Court of Alabama.
    Sept. 19, 1980.

      Thomas E. Harrison, Mobile, for appellant.
    Maury Priedlander of Marr & Friedlan-der, Mobile, for appellees.
   PER CURIAM.

This appeal arises from the trial court’s decree granting appellee’s motion for summary judgment and denying the relief sought in appellant’s complaint for redemption of certain property following a foreclosure sale.

In 1975, appellant, Patricia Yost Purcell, and her husband purchased a lot and house, giving a mortgage for a portion of the purchase price. Thereafter, appellant and her husband were divorced. As a part of the divorce settlement, the parties agreed that appellant would forego possession of the property in return for her ex-husband’s assuming responsibility for the mortgage, taxes, and insurance payments. Legal title to the property was not changed and remained in both appellant’s and her ex-husband’s name.

Subsequently, the mortgage was foreclosed because the husband defaulted in the payment of the mortgage debt, and on June 15, 1978, the property was sold pursuant to a power of sale contained in the mortgage agreement. Appellee, F. L. Smith, purchased the property at the foreclosure sale.

On June 1, 1979, a Friday, at 4:30 p. m. appellant’s attorney mailed a certified letter, restricted delivery requested, to appel-lee notifying him of appellant’s desire to redeem the property and demanding a list of all lawful charges due. The notice was mailed to the address of the subject property and was returned June 28, 1979, as unclaimed.

On June 11, 1979, ten days after the demand was mailed, with no response from appellee, appellant filed a complaint for redemption of the property and alleged the failure of appellee to respond to the demand for a statement of lawful charges. Four days later, appellant’s attorney received a letter from appellee’s attorney acknowledging receipt of the complaint, but not of the demand made on June 1, and requesting appellant to. deliver a specified sum in certified funds, the amount paid at the foreclosure sale plus 10% interest per annum as allowed by law, and reserving the right to claim any additional amounts later determined to be lawfully chargeable.

Both parties filed motions for summary judgment with supporting documents. The court granted appellee’s motion, denying appellant’s, as follows:

This cause having been submitted to the Court on Motions For Summary Judgment, and the Court finding that a written demand for the statement of debt and lawful charges having been made by the Plaintiff, by mailing the said demand at 4:30 P. M., June 1, 1979, a Friday, and the Court finding that a reasonable time for said letter to have been delivered would be no sooner than June 4,1979, and the Court finding that the Bill of Complaint in this cause was filed on the 11th day of June, 1979 less than ten (10) days after said demand was made, and the Court further finding that there is no evidence of a tender being made by the Plaintiff to the Defendant in this cause, and the Plaintiff having failed to pay into Court any sums of money,
It is therefore ORDERED, ADJUDGED and DECREED by the Court that the Motion for Summary Judgment by the Plaintiff is denied.
It is further ORDERED, ADJUDGED and DECREED by the Court that the Motion for Summary Judgment by the Defendant is hereby granted, and finds and orders that the Plaintiff is entitled to no relief under her Bill of Complaint.

The sole question is at what time does the ten-day period for a response begin running when a redemptioner makes a written demand for lawful charges by mail?

Appellant contends that the ten-day period must be “triggered” by the certain event of the day on which the notice was mailed; otherwise, the commencement of the running of the period is dependent upon “happenstance” and is rendered uncertain in every case. Appellee, on the other hand, contends that the court’s finding that three days is a reasonable time for delivery by mail so that the ten-day period commences to run three days after the date of mailing is reasonable and should be upheld.

Section 6-5-230 of the Alabama Code provides, “Where real estate, or any interest therein is sold ... by virtue of any .. . power of sale in a mortgage, the same may be redeemed by the debtor . .. from the purchaser or his vendee within one year thereafter in the manner provided in this article.” The steps necessary to be taken within one year to exercise the statutory right of redemption are set forth in § 6-5-234 as follows:

Anyone desiring and entitled to redeem may make written demand of the purchaser or his vendee for a statement in writing of the debt and all lawful charges claimed by him, and such purchaser or vendee shall, within 10 days after such written demand, furnish such person making the demand with a written itemized statement of the debt and all lawful charges claimed by him; and failing so to do, he shall forfeit all claims or right to compensation for improvements, and the party so entitled to redeem may, on the expiration of the 10 days, file his complaint without a tender to enforce his rights under this article. [Emphasis added.]

Ordinarily, unless a tender is excused by failure of the purchaser to respond to the demand for lawful charges within ten days, the complaint is defective if it does not show a tender of the amount due. Bee, e. g., Foerster v. Swift, 216 Ala. 228, 113 So. 31 (1927). Thus, unless the ten-day period for the purchaser’s response began to run from the date of mailing of the demand, appellant’s complaint was premature and was due to be dismissed, there having been neither a tender as required by the statute nor a valid excuse for the failure thereof.

The statute itself offers little guidance in the resolution of this question; it merely states that the statement of charges shall be furnished “within 10 days after such written demand.”

The written demand of the purchaser for lawful charges must be made within the one-year redemptive period; it was in this case. Furthermore, the demand may be made by personal delivery to the purchaser or by mail, be it regular, certified, or registered.

Although the date of placing the demand in the mail would be the most certain and uniform date for the “triggering” of the ten-day period, the reality is that the purchaser, through no fault of either of the parties, may not receive the demand until much later after it was mailed. The statute gives the purchaser ten days in which to prepare the statement of lawful charges so that he may have time to consult with his attorney, if necessary, and to fairly and reasonably assess his proper demands. See Foerster v. Swift, 216 Ala. at 229, 113 So. at 31. But more importantly, the purchaser forfeits the right to claim improvements on the property if he does not respond within ten days. Code 1975, § 6-5-234. The forfeiture of such important rights cannot depend upon the vagaries of modern mail delivery. The ten-day period for response by the purchaser must begin to run from actual receipt by the purchaser of the demand. The burden is on the redemptioner to see that the purchaser receives the demand either by personal delivery or by mail within a sufficient time to effect redemption. If the period for redemption is fast running out and the redemptioner relies upon the mails to timely deliver his demand, then he so relies at his peril.

In Foerster v. Swift, supra, the redemp-tioner filed her complaint for redemption one day before the expiration of the redemptive period. There was no tender. She made the written demand upon the purchaser one day prior to filing the complaint. In reversing the trial court for failure to dismiss the complaint, this court said:

It thus appears complainant places some reliance upon section [6-5-234] of the Code ..., in that she avers written demand was made upon respondent for a statement in writing of the debt and lawful charges claimed, but this demand was made just one day previous to the filing of the bill, while the above-cited statute gave respondent a period of ten days within which to comply therewith. True, complainant was forced to file the bill at that time to come within the statutory period of two years [now one year], but the above-noted section was adopted primarily for the benefit of the redemption-er, and, if he delays to make the demand as therein authorized for a statement until too late for the purchaser or his vendee to have the benefit of the ten-day period allowed by the statute for a compliance, then he can claim no benefit thereunder. Any hardship resulting from a loss of the privileges therein bestowed is the result of his own lack of diligence.

216 Ala. at 229, 113 So. at 31.

In Hale v. Kinnaird, 200 Ala. 596, 76 So. 954 (1917), the purchaser prepared an itemized statement of lawful charges within the ten-day period, but mailed it after the expiration of the ten days. Obviously, the tardiness of the response excused tender in that case. However, the court, in dictum, stated the following in regard to when a demand or notice sent by mail is deemed made: “If she mailed the [statement of lawful charges] on said latter date [within the ten-day period], and it was delayed in transmission through the mails to April 24th [seven days after the expiration of the ten-day period], the burden of compliance resting on her, the delay must affect her right, rather than that of him who made the demand under the statute. The written demand was delivered to her in person. To insure a due reply, under the statute, she should have shown due diligence toward statutory compliance.” 200 Ala. at 600, 76 So. at 958. Although this statement is dictum and speaks to the converse duty of the purchaser to timely respond, the rationale is persuasive for our holding that a demand for a statement of lawful charges, sent by mail, is deemed made when received by the purchaser. The burden of compliance rests upon the re-demptioner and any delay in the making of the demand must, similarly, affect his right rather than that of the purchaser upon whom the demand is made. Since the forfeiture of important rights depends upon the timeliness of a response, the purchaser cannot be penalized by the uncertainties of the mails and the burden rests on the re-demptioner to make a written demand, by whatever mode, within the statutory time limit. Of course, the purchaser may not intentionally defeat the privilege to redeem. See Hudson v. Morton, 281 Ala. 392, 165 So. 227 (1936).

Allowing three days for delivery by mail before the ten days start to run is not realistically related to actual delivery time-actual delivery could be sooner or much later-and therefore, is not any more satisfactory than using the date' of mailing as the time when a demand by mail is made. Also, both the parties cite different provisions in the Alabama Rules of Civil Procedure as to when a notice or demand by mail is effective. However, the time for effectiveness largely depends upon the context, so the ARCP do not furnish an appropriate analogy in this case. Compare ARCP 4.1(c) with ARCP 5(b) and 6(e).

Appellant further contends that she is excused from making tender because ap-pellee furnished her with only a partial or incomplete statement of charges. Without regard to the effect of an incomplete statement, the complaint in this case was filed without a tender before the ten-day period expired and before the incomplete statement was even given. Thus, the partial or incomplete statement of charges cannot possibly serve to excuse tender in this case.

Accordingly, this case is due to be affirmed.

AFFIRMED.

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


text:
    Timothy G. WHATLEY v. CARDINAL PEST CONTROL.
    79-198.
    Supreme Court of Alabama.
    Sept. 19, 1980.

      Ruben K. King, Montgomery, for appellant.
    H. E. Nix, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   PER CURIAM.

Timothy G. Whatley challenges the trial court’s grant of the defendant’s motion for summary judgment in a suit claiming personal injuries in consequence of Cardinal Pest Control’s negligent application of a pesticide chemical compound known as “Purge.”

We begin our review by reaffirming the general proposition-too well settled to require citation of authority-that rarely is summary judgment appropriate in a claim based upon negligence. Stated another way, this Court is firmly committed to a rule of extreme caution in its review of a summary judgment granted in a tort claim context. But not even the application of this rule can spare the plaintiff from the fate of summary judgment where, after opportunity for full discovery, the evidence, when viewed most favorably to the plaintiff under the scintilla rule, fails to raise a reasonable inference that the alleged negligence was the proximate cause of the injury complained of.

The evidence in the instant case, which is essentially undisputed, is summarized in appellant’s brief:

“The Appellant presented evidence that the condition or injury for which he sought recovery did not exist prior to the negligence of the Appellee; that the condition started immediately after exposure to the chemicals; that the chemicals used by Appellee was [sic] poisonous when inhaled or absorbed through the skin or eyes; that Appellant inhaled the chemicals while working; that Appellee used an excessive amount of the chemical compound ‘Purge;’ that the cause of Appellant’s condition was diagnosed as ‘unknown’ in June, 1977; that traces of the chemicals would not be present in blood after the lapse of five months; and that [3] other individuals suffered similar symptoms at the same time and place.”

Plaintiff/appellant’s persuasive argument is summarized in the following two paragraphs of his brief:

“It seems absurd that four individuals, both male and female, black and white, would suffer the same or similar symptoms and that these would continue over such a long period of time if the cause was psychogenic. It is to be noted that the doctor that made the diagnosis that the cause was psychogenic made no reference nor was he questioned as to what his opinion would be had he known of the three other individuals that suffered the same condition.”

“There is certainly a spark or glimmer in this case which would clearly be a scintilla of evidence that the proximate cause of the injury to the Appellant was excessive chemical exposure caused by the Appellee’s failure to warn and, also, excessive use of a dangerous chemical.”

Our focus on the dispositive question-whether the evidence raises a genuine issue of material fact-is sharpened by the following extracts from defendant/appellee’s brief in reply to appellant’s contentions:

“Appellant argues that he did not have the urtacaria prior to the time of his exposure to pesticides and that other individuals suffered the same or similar symptoms when exposed to the pesticides. The Appellant also notes that one doctor could not determine the cause of the ur-tacaria and uses that as an argument in support of his establishment of a scintilla of evidence. As previously noted in Cardinal’s Statement of the Facts, Dr. Kathleen Cawthon diagnosed the cause of Mr. Whatley’s problem as dietetic, not as a result of pesticide poisoning.
“The documents and letters of Dr. Kathleen Cawthon and numerous other documents, which ordinarily would not be allowable evidence in a motion for summary judgment, were not objected to by Cardinal and were considered by the Court. It was an easy matter for the Appellant to present any fact or opinion from an expert that would have created a scintilla of evidence in this matter, however, nothing was presented by Appellant which created a scintilla of evidence.
“As we see from the Record, the only expert testimony concerning the question of whether or not pesticides played a part in this urtacaria is from Dr. Irving London, and he unequivocally states that pesticides did not play a part in causing the urtacaria.
“Appellant argues that Dr. London’s diagnosis as to the cause made no reference to the fact that others suffered similar symptoms. Appellant also argues that Dr. London was not questioned as to what his opinion would be had he known of three other individuals that suffered the same condition. To this argument, Appellee can only submit that Appellant did not see fit to attend the deposition of Dr. London. Appellant does not know, and it does not appear in the record, whether or not Dr. London knew of these other cases, if they existed. He may well have known of them while making his diagnosis as to cause and while stating that the cause of the urtacaria was psychogenic in origin. At any rate, it would be unfair to ask Cardinal to anticipate and ask questions for the Appellant.
“Cardinal respectfully contends that the Appellant has not raised an issue as to causation in this matter by putting forth even a scintilla of evidence that pesticides had anything to do with urtacaria or hives suffered by Appellant.

Under Rule 56 of the Alabama Rules of Civil Procedure, summary judgment is appropriate only when the moving party has demonstrated, by the pleadings, answers to interrogatories, depositions and affidavits, that there is no genuine issue of material fact and that the movant is entitled to the requested relief as a matter of law. Campbell v. Alabama Power Co., 378 So.2d 718, 721 (Ala.1979); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92, 94 (1976). Once the movant supports his motion by affidavits or other testimony, the adverse party may not rest upon the allegations or denials contained in his pleadings; he must respond and show that a material issue of fact does exist. Campbell v. Alabama Power Co., supra; Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). Evidence offered in response to the motion, in the form of affidavits or otherwise, must be more than a mere verification of the allegations contained in the pleadings, Morris v. Morris, 366 So.2d 676, 678 (Ala.1978); and must present facts which would be admissible into evidence. Morris v. Morris, supra; Oliver v. Brock, 342 So.2d 1, 4-5 (Ala.1976); Hunter v. Austin Co., 336 So.2d 203, 206 (Ala.Civ.App.1976); Wright & Miller, Federal Practice and Procedure: Civil 2738. In the event the opposing party fails to offer any evidence to contradict that presented by the moving party, the court is left with no alternative but to consider that evidence uncontroverted. Mims v. Louisville Title Insurance Co., 358 So.2d 1028, 1029 (Ala.1978); Donald v. City National Bank, supra.

In the present case the defendant supported its motion with the deposition of Dr. London wherein he stated unequivocally that the plaintiff’s physical symptoms were in no way the result of exposure to pesticides, but were instead symptoms of the plaintiff’s mental or nervous condition. This testimony addressed and negated plaintiff’s pivotal allegation, i.e., that Cardinal “negligently conducted its business in ... spraying pesticides . . . and as a proximate result” poisoned the plaintiff. Plaintiff did not, however, respond with contradictory medical testimony or evidence on the issue of causation; the only testimony he presented was Dr. Cawthon’s opinion that the cause of plaintiff’s urtacaria was unknown. This, in and of itself, does not controvert Dr. London’s assertions which support defendant’s motion for summary judgment. Furthermore, the trial judge was not bound to consider those statements made by the plaintiff in his deposition to the effect that two physicians had diagnosed his urtacaria as resulting from exposure to pesticides because that testimony falls short of the kind of evidence required by ARCP 56, as it constitutes inadmissible hearsay. Gamble, McElroy’s Alabama Evidence, § 110.01(4) (3rd Ed.1977).

Other evidence presented by plaintiff in his response and supplemental response to defendant’s motion amounted to no more than verification of facts alleged in the complaint: that plaintiff did not suffer with urtacaria prior to the time he worked in the J & M Truck Company Building; that Cardinal sprayed pesticides inside that building; and that plaintiff developed urta-caria after working in that building. These facts, standing alone, do not contradict Dr. London’s expert opinion that pesticides did not cause plaintiff’s urtacaria.

Appellant contends that the application of the scintilla rule of the totality of circumstances, and the reasonable inferences to be drawn therefrom, raise a sufficient factual issue as to causation to defeat summary judgment (citing Matthews v. Alabama Great Southern R. Co., 200 Ala. 251, 76 So. 17 (1917)). Admittedly, this contention is not without its logical and persuasive premise. It fails, however, because the injury complained of and whether pesticides can act as a causative factor, are not matters within the common knowledge or experience of lay jurors. Liner v. Temple, 373 So.2d 638, 639 (Ala.1979).

After considering both Dr. London’s deposition and the fact that his medical opinion as to causation was not contradicted by any evidence offered by the adverse party, we conclude that plaintiff’s evidence is insufficient to raise a genuine issue of the requisite material fact of causation. See Campbell v. Alabama Power Co., supra. As we stated in Liner v. Temple, supra :

Having negated the plaintiff’s allegation of proximate cause, these defendants had placed these plaintiffs in the position warned against in Rule 56(e), ARCP:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

373 So.2d at 639.

We find that the plaintiff in the instant case has not met his burden and summary judgment was appropriately entered against him. It follows, therefore, that the trial judge did not err in granting summary judgment.

AFFIRMED.

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