author: EMBRY, Justice.

text:
    DAVIS CONSTRUCTION COMPANY, INC., a Corporation v. The MEDICAL CLINIC BOARD OF the CITY OF FALKVILLE, Alabama, a Corporation, et al.
    No. 80-158.
    Supreme Court of Alabama.
    Oct. 30, 1981.
    Rehearing Denied Nov. 25, 1981.
    James M. Holmes, Birmingham, for appellant.
    Merrill W. Doss, of Doss & Sparkman, Hartselle, for appellees.
   EMBRY, Justice.

This is an appeal from a final judgment entered after a nonjury hearing of this case which involves a dispute between Davis Construction Company, Inc., a corporation, and The Medical Clinic Board of the City of Falkville, Alabama, a corporation, and the Falkville Nursing Home, Inc., a corporation. There were other parties to the action as defendant, third-party plaintiff, fourth-party plaintiff and as cross-claimant. The latter parties were only incidentally involved and the vortex of the action is the dispute between the construction company and the Clinic Board and Nursing Home or Rest Home.

The final judgment in this case denied relief on the claims of the plaintiff construction company and the counterclaims of the Clinic Board and Nursing Home. In essence, it left the parties as they were before trial of the action. We affirm.

This was a very complex case factually. There was voluminous oral testimony and documentary evidence, all hotly disputed with the exception of that which was the subject of a stipulation entered into in an effort to aid the trial court by eliminating the necessity of its hearing evidence about matters not in dispute. The learned and experienced trial judge obviously gave full consideration to all the evidence and careful attention to an analysis of it. This resulted in the following findings and judgment entered 24 July 1980:

“This action is submitted in open court for final judgment after oral hearing of the evidence supplemented by a stipulation of the parties which is of record. Prior to the commencement of the trial of the case the Court in pre-trial conference with the attorneys determined that the plaintiff, Davis Construction Company, a corporation, filed its complaint against the defendants, The Medical Clinic Board of The City of Falk-ville, Alabama, a corporation, Falkville Nursing Home, Inc., a corporation, and Central Bank of Alabama, N. A., A National Banking Association. The complaint, after amendment, claims $45,399.87 with interest from January 10, 1975 for work and labor done and buildings and improvements constructed for the operation of a rest home in Falkville, Alabama. It is claimed that the work and services were furnished at the request of The Medical Clinic Board of The City of Falkville, Alabama under a written contract and change orders under this contract. The Medical Clinic Board of the City of Falkville, Alabama owns certain real estate which is the subject of this suit in Falkville, Alabama on which a rest home is located. The rest home is leased to the defendant, Falkville Nursing Home, Inc. In June 1973, or prior thereto, it was determined by The Medical Clinic Board and the Nursing Home that the building which they occupied should be renovated, and a new building should be constructed. The Medical Clinic Board decided to finance this operation by a bond issue, which was accomplished. A contract for construction and renovation was entered into by the plaintiff, Davis Construction Company, and the Medical Clinic Board of The City of Falk-ville, and this contract was approved by the Falkville Nursing Home. This contract is Exhibit A to the stipulation. The parties disagree as to whether or not this contract covers both the renovation of the old building and the construction of the new building, and this is one of the issues of the case. The new building was completed sufficiently for the patients to occupy, but there are disagreements with reference to the entire completion; there are also disagreements as to completion of the work on the renovation of the old building.
“In addition to the money claimed by the plaintiff, there is a claim for a statutory lien against the real estate to secure the payment of any balance due. The defendants deny the right of recovery of the plaintiff of any amount, and the defendants, Medical Clinic Board and Falkville Rest Home, file a cross claim against the plaintiff alleging overpayment in the amount of $8,000.00. They, also, file a third-party suit against American Fire and Casualty Company alleging that they provided the performance bond for the plaintiff, and they claim that they are liable for any balance due to be refunded to the defendants under the terms of the performance bond. This third-party defendant filed a fourth-party complaint against the original plaintiffs alleging that under the terms of an indemnity agreement between them and the plaintiff contractor and certain individuals, (apparently family members of the owners of the stock in the plaintiff construction company), the performance bond surety is entitled to a judgment against the fourth-party defendants for any amount which is adjudged against the performance bond surety. Some of the fourth-party defendants answered, and others suffered a default. There is no issue between the parties relative to the fourth-party complaint it appears. All defendants, except the ones specified with reference to the fourth-party claim, deny the claims of the ones making complaint against them to recover.
“The Court determines the issue to be: 1. What was the contract between the parties? 2. Did the building contractor, the plaintiff, and The Medical Clinic Board of Falkville, Alabama, and The Falkville Rest Home substantially perform their respective obligations under the contract? 3. In what respect did either of the parties named in Item No. 2 fail to perform the contract, if any? 4. What materials and services were furnished by the plaintiff and accepted by the Board and Home, and what is the reasonable value of the same? 5. What credits are due, and what charges should be made against each of the original parties to the contract? 6. Did the plaintiff comply with the statutory requirements for the establishment of lien against the real estate? 7. Priority of the claims between Central Bank of Alabama and the plaintiffs, if any amount is found to be due to the plaintiffs.
“The court finds that American Fire and Casualty Insurance Company, who is a third-party defendant, and who was the surety on the performance bond of the plaintiff, was never notified of any default on the part of the plaintiffs until the answer of the defendants was filed in this case. The Court further finds that the construction contract, the performance of which this surety guaranteed was substantially modified so as to increase the risk of this surety without the consent of the surety. THEREFORE, IT IS ORDERED that judgment is hereby entered in favor of American Fire and Casualty Insurance Company, the third-party defendant in this case, and said defendant is hereby stricken as a party. This eliminates also the fourth-party claim by this third-party defendant except for the claim for attorneys’ fees. This issue is hereby reserved by the Court leaving only the issue between the original parties, and the question of the priority of the lien, if any, between the plaintiff and the Bank for decision at this time.
“There is a stipulation of record in this case consisting of ten pages. Among other things, it identifies and agrees to admissibility of the plans and specifications, the performance bond and other documents connected with the construction contract. It also stipulates that the surety on the performance bond was never notified of any default of the plaintiff building contractor or of any amendment of the contract between the plaintiff and the Medical Clinic Board and the Nursing Home. It further stipulates that no claim was ever made against the surety on the performance bond until after this case was filed; it also stipulates that the premium paid for the surety bond was not sufficient to cover the new contract between the owners of the land and the building contractor. It sets out certain payments were made to the plaintiff on the contract at various times totaling $370,208.36. It should be noted that this amount does not include other credits on the contract; there appears to be under the stipulations ‘deductive change orders for materials paid on the contract by or on behalf of the * * * (Medical Clinic Board and Rest Home).’ These payments amount to $258,226.97; there are three other contested deductive change orders not contained within this total. They amount to several thousand dollars. The stipulation also provides that $628,435.33 was paid by the Rest Home or The Medical Clinic Board to the plaintiff building contractor or (and) for the materials used on the contract.
“The original written contract was executed by the parties on the 29th day of June, 1973. The plaintiff claims that this contract was never intended to cover any work on the old building, but that it was confined to the construction of the new building. The defendants contend that the work on the old building and the construction of the new building was one contract, and that it was all included in this contract and oral amendments thereto. One of the more complicating features of this case is the fact that it is undenied that the written contract was executed prior to the plans and specifications for the construction of the new building. There were only preliminary plans with reference to the renovation of the old building at the time of the execution of the contract. The architect, in his testimony, states that a representative of the plaintiff, its President, was competent to estimate the cost of these jobs without specific plans within reason. Under this state of the record, it is necessary to determine the provisions of the agreement between the parties (if possible) from oral agreements which were made from time to time during the progress of the work, few of which were made at the same time, and many of which involved disputes between the parties. The general condition of the contract (Exhibit B to stipulation) provides for written change orders by owners and architects directed to the contractor, (Article 12); plaintiff’s Exhibit 14 and 15 are change orders signed only by the contractor. The two are in excess of $12,000.00. The parties made oral agreements between themselves without advising the architect, and often with no record being made of the changes. There are change orders in the record which increase the contract price, but the Court finds no change order recorded which gives credit on the contract price, yet it is undisputed that there were many such changes. One of the changes involved at least $30,000.00; this eliminated a swimming pool and a building to be used in connection with the swimming pool. The amount of credit due by reason of this change is disputed. There were other changes in the plans apparently cutting down the amount of work which was required in the renovation of the old building. The evidence is not specific with reference to these items. The plaintiff contends that the preliminary plans for the renovation of the old building were drastically different from the final plans in that there was included in the final plans more work to be done, and that the plaintiff could not perform the work without additional money. The plaintiff stated that it would require in excess of $111,000.00 to do the extra work on the old building, but the evidence is lacking as to whether or not there was an agreement concerning this amount, and if there was no agreement, the evidence is lacking as to the reasonable value of any extra work performed. There was only one written contract; this is the one mentioned above herein. If the work on the old building is not a subject of this contract as contended by the plaintiff, the entire contract of the renovation of the old building is oral, or is an oral contract modified by written change orders. The architect is unable to clarify the terms of the agreements between the parties to the construction contract, because he was not kept informed as to all of these terms.
“The defendants contend that there was an agreement for remodeling the reception area of the old building, a provision for re-covering the floors of the old building with new tile, remodeling the front entrance of the old building and dining room and medicine room, none of which was performed by the plaintiff. They also claim that they paid for labor on this job which was used on another job which was in progress under the supervision of the plaintiff at the same time. They also claim that materials were taken from this job to another job, and that a large quantity of doors were taken from this job to a warehouse in possession of the plaintiff, and that they did not receive credit for these items; they also claim that an office building was constructed by the plaintiff on the job from material paid for by the Medical Clinic Board and The Rest Home, and that this building was removed from the premises when the plaintiff left the job; it is also contended that certain building blocks which were paid for by the Board and Home were removed from the job without credit being given for them. The plaintiff denies some of these claims, and admits some of them, and offers a credit against their claim for certain specified items, but the defendants do not accept the offers of credit, and the Court is left to determine which if either of the credits should be given, and the value of the same. The evidence is not sufficient on which to base judgment as to some of the items.
“Liability for an amount due under a contract or quantum meruit cannot be established on less than reasonably convincing evidence as to liability and the amount involved. Though the amount involved does not affect the application of this rule, one becomes more conscious of the rule where very large amounts of money are involved and where there are no records of specific transactions in an operation in which it is expected that there would be complete records of every transaction. Reliability of evidence which must be based on memory involving hundreds if not thousands of transactions, and on which the parties disagree is materially affected. The Court is of the opinion that the plaintiff has failed to meet the burden of proof which is required to introduce evidence which reasonably satisfies the trier of the facts of liability and the amount due under their contentions. The same applies to the counter-claim of the counter-claimants.
“THEREFORE, the Court concludes that the claims of the plaintiff and the counterclaims of the counter-claimants should be denied and the same [are] hereby ORDERED.
“What has been said above makes the issues between the plaintiff and the defendant, Central Bank of Alabama, moot. As between the parties to this suit, the lien of the Bank is not impaired. IT IS THEREFORE ORDERED that the plaintiff pay one-half of the cost of this proceeding, and the defendants, Medical Clinic Board and Falkville Nursing Home together pay one-half of the cost of this proceeding.
“In accordance with Rule 54(b), ARCP, IT IS HEREBY ORDERED that there is no just reason for delay, and judgment is hereby entered as ORDERED herein. All such judgments are hereby declared to be final as between the parties.”

In essence, Davis Construction contends the written contract between the parties only governed construction of the new building. It argues that the price agreed upon in the contract did not include renovation work on the old building. Thus, Davis Construction seeks the value of the work completed in renovating the old building. The company’s basic contention is that the only way the trial judge could deny it relief is to offset the amount due it under the counterclaim of the Nursing Home. Davis Construction further contends the Nursing Home’s counterclaims are not supported by reasonably convincing evidence, according to Davis Construction the trial court’s findings and judgment are based on speculation and must be reversed.

At trial, the Nursing Home contended it owed no debt to the construction company. Furthermore, the Nursing Home asserted a counterclaim for various projects not constructed by appellant which the Nursing Home claimed appellant agreed to construct. Although the trial court refused to permit recovery on its counterclaims the Nursing Home asserts the judgment of the trial court should be affirmed and has not cross-appealed from that part of the judgment denying it relief.

The single issue dispositive of this appeal is whether the trial court’s conclusions of fact are palpably wrong or against the great weight of the evidence. The longstanding rule in Alabama is well-stated by Justice Lawson in Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 111 So.2d 906, 911 (1959):

For emphasis, we refer to the favorable presumption of correctness attending the trial court’s conclusion on issues of fact where the evidence is taken in the presence of the court. Under such circumstances we will not disturb the trial court’s conclusion on issues of fact unless palpably erroneous and against the great weight of the evidence; and it is not necessarily what view the appellate court might have of the evidence, but if under any reasonable aspect the decree below is fairly supported by credible evidence, it is our duty to affirm....

See Rule 52, ARCP, Committee Comments ¶ 3; Dicon, Inc. v. Great Atlantic & Pacific Tea Co., 381 So.2d 18 (Ala.1980); Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Tanner v. Winfield, 365 So.2d 651 (Ala.1978).

In the trial below, the evidence was taken ore tenus. The trial court saw and heard the witnesses and weighed their credibility. The parties introduced conflicting evidence of what the agreement between the parties was and how it was modified. There was a wide variance of testimony concerning the value of completed work, as well as the value of deleted items of work. In light of this conflicting evidence, we cannot say the trial court’s judgment is not based upon credible evidence. The judgment is therefore due to be and is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mary Katherine WALDEN, etc. v. MINERAL EQUIPMENT COMPANY, et al.
    No. 80-348.
    Supreme Court of Alabama.
    Oct. 30, 1981.

      John T. Roach, Jr., Birmingham, for appellant.
    William T. Mills, II, of Porterfield, Scholl, Clark & Harper, Birmingham, for appellee Minerals Equipment Co.
    Eugene D. Martenson and Robert M. Gir-ardeau, of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee Argo & Co.
   PER CURIAM.

This is an appeal by Mary Katherine Walden from a summary judgment granted in favor of Mineral Equipment Company, John L. Jordan, and Argo and Company in a wrongful death action.

On April 8, 1974, Harold William Walden was killed by a falling container of coal weighing several tons as he was working at the bottom of a mine elevator shaft under construction.

On February 28, 1975, the widow, Mary Katherine Walden, filed her summons and complaint, as administratrix, against United States Steel Corporation, United States Fidelity and Guaranty Company, John J. Cowin, R. A. Gallentine, Edward Stamper, James Thrasher, William Lovejoy, and a number of fictitious parties defendant. Those fictitious parties defendant, insofar as material to this appeal, were “E” the person and “G” the corporation “responsible for the operation, inspection or maintenance of the hoist which injured the plaintiff’s intestate at the time and place referred to in plaintiff’s complaint,” and “J” the “corporation responsible for the wrongful or negligent conduct or the injuries to the plaintiff’s intestate at the time and place referred to in plaintiff’s complaint; whose true and correct names and legal descriptions are otherwise unknown to the plaintiff, but will be substituted by amendment by the plaintiff when ascertained by the plaintiff.”

The complaint as originally filed contained the following:

COUNT ONE
1. Plaintiff avers that on or about to wit, April 8, 1974, the Plaintiff’s intestate, Harold William Walden, was working at the bottom of the Oak Grove Mine elevator shaft at Oak Grove, Jefferson County, Alabama while employed by Cowin and Company, Incorporated, when he was crushed and killed by a falling bucket of coal while in the performance of said duties.
2. Said Oak Grove Mine was owned by the Defendant United States Steel Corporation, or Defendants “A” or “D”, and the work at said mine was being performed by, at the direction of, or for the benefit of said Defendant.
3. The Defendant United States Fidelity & Guaranty Company, or Defendant “B”, provided the Workmen’s Compensation Insurance for the benefit of Plaintiff’s intestate, Harold William Walden, and in connection therewith performed, or should have performed, safety inspections of the equipment or apparatus being used in the performance of the work at said Oak Grove Mine when the Plaintiff’s said intestate was crushed and killed.
4. The Defendants John J. Cowin, R. A. Gallentine, Edward Stamper, James Thrasher, William Lovejoy, or Defendants “C”, “E”, “F”, “G”, “H”, “I”, and “J” were employed or were performing work in said Oak Grove Mine at the time the Plaintiff’s said intestate was injured, as aforesaid, and their duties in connection therewith included the operation, inspection or maintenance of the equipment or apparatus being used in the performance of the work at said mine when the Plaintiff’s said intestate was crushed and killed.
5. The Plaintiff further avers that the Defendants negligently or wantonly supervised or directed the work being performed at said mine; or negligently or wantonly failed to provide adequate or proper equipment or safety apparatus for the performance of the work in said mine; or negligently or wantonly failed to adequately and properly inspect the equipment or mechanical apparatus being used in the performance of the work at said mine; or negligently or wantonly operated the equipment or apparatus used in the performance of the work at said mine; or negligently or wantonly failed to adequately and properly maintain the equipment or mechanical apparatus being used in the performance of the work at said mine; and as a proximate consequence of said negligence or wantonness the Plaintiff’s intestate received serious and permanent injuries from which he died on to wit, April 8, 1974.

The initial complaint also contained a count two alleging the combined and concurrent negligence of the defendants. The complaint was amended on January 24, 1977, to add count three, which also alleged negligent or wanton conduct of the defendants and was again amended on July 29, 1977, by adding the following:

AMENDMENT TO COMPLAINT
Comes the Plaintiff in the above styled cause and amends her Complaint as heretofore filed by substituting for Defendant “J”, Minerals Equipment Company, a corporation, and by adding Count Four as follows:
COUNT FOUR
ALABAMA EXTENDED MANUFACTURER’S LIABILITY DOCTRINE
1. Plaintiff adopts the averments of Paragraphs One (1) and Two (2), of Count One and re-avers and realleges them the same as if fully set forth herein.
2. Plaintiff avers that the Defendant Minerals Equipment Company, prior to April 8, 1974 and at all times material to this Complaint, was in the business of designing, manufacturing, assembling, distributing or selling mining machinery throughout the United States, including the State of Alabama; and that said Defendant, during said time and on or about to-wit: October 31, 1972, for a valuable consideration, designed, manufactured, assembled, distributed or sold the Nord-berg Mine Hoist, serial number 29673, that was in use performing the work described in Paragraph One (1) above in lifting the bucket of coal which fell and killed the Plaintiff’s husband, Harold William Walden, at said time and place. Said Nordberg Mine Hoist was sold by said Defendant to Cowin & Company in Birmingham, Alabama, the employer of Plaintiff’s said husband, and was being used for its intended purpose when said injury and death occurred.
3. Plaintiff avers that the said Defendant, Minerals Equipment Company, expected said hoist to reach the user or consumer without substantial change in the condition in which it was sold and said hoist did reach the user or consumer without substantial change in said condition.
4. Plaintiff further avers that said hoist, when put to its intended use, was not reasonably safe and was in fact unreasonably dangerous to the Plaintiff’s said husband, who was killed at said time and place as a proximate consequence of the defective or unreasonably dangerous condition of said hoist.

On May 17, 1979, the complaint was further amended to add:

AMENDMENT TO COMPLAINT
Comes the Plaintiff in the above styled cause and amends her Complaint by substituting J. L. Jordan for fictitious party “E”, and Argo and Company, Inc., for fictitious party “G”, Plaintiff further amends her Complaint by adding Count Six as follows:
COUNT SIX
Plaintiff adopts the first three (3) paragraphs of Count One and realleges and re-avers them the same as if fully set forth herein.
4. The Defendant, J. L. Jordan, was employed by the Defendant, United States Fidelity and Guaranty Company as a safety representative and performed safety inspections on the equipment or apparatus being used in the performance of the work at said Oak Grove Mine when the Plaintiff’s said husband was crushed and killed, including the defective and inherently dangerous hoist which allowed, permitted, or caused the death of Plaintiff’s husband.
5. The Defendant, Argo and Company, Inc., for a valuable consideration performed maintenance and repairs on the said defective hoist at the said Oak Grove Mine, prior to the said fatal injury to Plaintiff’s husband.
6. The Defendants J. L. Jordan and Argo and Company, Inc., knew or should have known of the defective or inherently dangerous condition of the said hoist and said Defendants negligently or wantonly failed to adequately and properly inspect the equipment or mechanical apparatus being used in the performance of the work at said mine including the said defective or inherently dangerous hoist; or negligently or wantonly failed to adequately and properly perform maintenance on said defective or inherently dangerous hoist; or negligently or wantonly failed to warn of the defective or inherently dangerous condition of said hoist and as a proximate consequence of said negligence or wantonness the Plaintiff’s husband received serious and permanent injuries from which he died on to-wit, April 8, 1974.

The defendants, J. L. Jordan and Mineral Equipment Company, filed motions to dismiss, raising the statute of limitations as a bar, which were treated as motions for summary judgment by the trial court. The defendant, Argo and Company, filed a motion for summary judgment, which also raised the statute of limitations as a bar. All three motions were granted on September 24, 1980. Plaintiff Walden appeals, following the overruling of her motion to vacate judgment. Three recent cases compel affirmance: Minton v. Whisenant, 402 So.2d 971 (Ala.1981); Fowlkes v. Liberty Mutual Ins. Co., 392 So.2d 803 (Ala.1980), and Shirley v. Getty Oil Company, 367 So.2d 1388 (Ala.1979).

More than thirty-nine months after the death of Harold Walden, the complaint was amended to substitute Mineral Equipment Company for fictitious party “J” and allege liability because it “designed, manufactured, assembled, distributed, or sold the Nordberg mine hoist . . . that was in use in performing the work.”

“J” was described in the caption of the complaints as “the corporation responsible for the wrongful or negligent conduct or the injuries to the Plaintiff’s intestate at the time and place referred to in Plaintiff’s Complaint. . . . ” Neither this nor any other allegation referred to the “designer, manufacturer, assembler, distributor, or seller” of the hoist. There were no allegations in the body of the complaint charging that the “designer, manufacturer, assembler, distributor, or seller” of the hoist was negligent. Fowlkes v. Liberty Mutual Ins. Co., supra. Minton v. Whisenant, supra, is controlling on this point. The trial court was therefore, correct in dismissing the complaint against Mineral Equipment Company. The amendment adding it as a party does not relate back to the original complaint and, therefore, the statute of limitations is a bar to this claim.

Although Walden did not substitute Jordan and Argo and Company for fictitious parties “E” and “G” as those “responsible for the operation, inspection and maintenance of the hoist” until May 17,1979, the record shows, via the depositions of James Copeland, J. D. Allen, and James J. Rodriquez, that Walden was aware of the true name and identities of these two defendants as early as July and August, 1976.

In Shirley v. Getty Oil Co., supra, this Court was faced with a situation where the plaintiffs, several months after filing a wrongful death action naming fictitious parties, took the deposition of an individual which revealed facts from which the plaintiffs might have decided to bring an action against him. However, the plaintiffs did not attempt to substitute the individual for one of the fictitious parties until more than seventeen months after the taking of his deposition. In that case, the Court said:

Because Shirley knew Mr. Smith’s identity and had sufficient factual basis to give rise to the action against him, she may not now claim to have been “ignorant of the name of [the] opposing party” within the meaning of Rule 9(h). Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978); Hinton v. Hobbs, 349 So.2d 28 (Ala.1977).

367 So.2d at 1390-1391.

The depositions taken in July and August of 1976 show that the plaintiff cannot claim that she was ignorant of the names and identities of Jordan and Argo and Company, within the meaning of Rule 9(h), until May of 1979, the time of the filing of the amendment. These claims, too, are time barred.

The judgment appealed from is affirmed. AFFIRMED.

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

      Throughout the complaint, the defendant is referred to as Minerals Equipment Company. However, the case was brought to this Court under the name Mineral Equipment Company.


author: BEATTY, Justice.

text:
    Hugh L. FOSTER v. ST. JOHN’S BAPTIST CHURCH, INC., etc., et al.
    80-419.
    Supreme Court of Alabama.
    Oct. 30, 1981.

      Bob E. Allen, Montgomery, for appellant.
    John Ben Jones, III, Lanett, for appel-lees.
   BEATTY, Justice.

Appeal from an order enjoining a pastor from occupying the pulpit of a church. We affirm.

The case concerns a dispute between pro- and anti-pastor members of a Baptist Church congregation. . The defendant, Hugh L. Foster, became pastor of the St. John’s Baptist Church in 1975, and shortly thereafter hostility to his pastorate led to factionalism and ultimately to a lawsuit filed in 1977. That controversy was resolved by a judicially supervised vote of the congregation which sustained Reverend Foster as pastor. The factionalism continued, however, and a new and different action was filed on March 13, 1980. The complaint named as plaintiffs St. John’s Baptist Church, Inc., and James A. Hardy, et al., these individuals being identified as duly elected members of the Board of Deacons acting on behalf of the church. The complaint alleged that at a regular annual meeting held in October 1979 the membership voted to remove Reverend Foster as pastor but that he had refused to vacate the pulpit and to surrender church property. Injunctive relief was prayed for. The defendant moved to dismiss and also counterclaimed. The plaintiffs amended their complaint on June 11, 1980, by adding allegations to the effect that the church, a nonprofit corporation, was governed by by-laws duly adopted by the corporation and which adopted the procedures found in Hiscox’s New Church Directory for Baptist churches. The by-laws were attached to the complaint. The amended complaint further alleged that the plaintiffs were duly elected as deacons in 1979, that the defendant had refused to recognize them as such, had not allowed them to participate as deacons, and had deprived them of property rights in the church by conducting a church meeting (on June 8,1980) at which they were unlawfully removed as members. The plaintiffs further alleged that the defendant, Foster, had breached his contract with the church to render full-time services by maintaining two separate employments. The plaintiffs prayed for rescission of Foster’s contract, and for an order that their removal from membership be declared ineffective, that their election as deacons be sustained, and that Foster be enjoined from interfering with their performance of their duties.

The defendant moved to dismiss the complaint on the ground that the plaintiffs lacked standing.

Following discovery and additional pleadings on matters not essential to the issue before us, the plaintiffs, on October 16, 1981, filed their petition for a temporary restraining order and a mandatory injunction, alleging that at the annual meeting of the church held under the by-laws on October 12, 1980, the defendant Foster was removed as pastor by the affirmative vote of the majority of the members present and that the plaintiffs were duly elected as deacons. It was further alleged that Foster had refused to relinquish the pastorate, was promoting disturbances, and threatened to occupy the pulpit thereafter, with an accompanying possibility of violence should he do so. The temporary restraining order was issued and, following a hearing, a temporary injunction was issued directing the plaintiff-deacons and the defendant-pastor to refrain from entering the premises pending further order. The final hearing on the petition for a mandatory injunction was set for November 24, 1980.

Following that hearing the trial court, having found that Foster had been removed from the pastorate in accord with church rules, enjoined him from attempting to occupy the pulpit and ordered him to vacate the church office and parsonage within four weeks. A proper Rule 54(b) order was entered and this appeal ensued.

Although the defendant raises several issues on this appeal, these center upon the one controlling question: whether his removal was an ecclesiastical matter. If it was, then it follows that he had no property right in his position as pastor.

Alabama follows the general rule expressed in Odoms v. Woodall, 246 Ala. 427, 429, 20 So.2d 849 (1945):

The civil courts will not take jurisdiction of a controversy arising out of the removal of a minister if the right to the position is merely spiritual or ecclesiastical... .

To the same effect is Putman v. Vath, Ala., 340 So.2d 26 (1976).

In his brief the defendant maintains that a contract existed between himself and the church by which defendant was to be given ninety days notice upon dismissal. At the hearing below he introduced into evidence a document executed by himself and Freeman Carter, Jr., Clerk (of the church) and containing a list of “recommendations” which, he testified, were adopted at a meeting of the membership when he assumed the pastorate.

We pretermit discussion of this aspect of the case because the narrow issue before us is whether or not the defendant was removed as pastor according to the law of the church. As was stated in Barton v. Fitzpatrick, 187 Ala. 273, 65 So. 390 at 392-3 (1914):

The pastor of a church in his pastoral office performs a spiritual function. Spiritualities are beyond the reach of the temporal courts. It follows that a church which has employed a pastor, though the employment be for a fixed term and at a fixed salary, may at any time, so far as the civil courts are concerned, depose him from his spiritual office, subject only to inquiry by the courts as to whether the church, or its appointed tribunal, has proceeded according to the law of the church; nor can the payment of his salary, though in arrear, be made a condition precedent to his deposition. And in the case of a church organized on the congregational plan the inquiry is limited to the determination whether in fact the church has acted as a congregation. .. . [Emphasis added.]

The by-laws of the church invest in each active member the entitlement to vote at all church conferences. The annual church conference is to be held on the Thursday before the second Sunday in October of each year. The defendant does not contest the fact that under the church rules the pastor might be removed at the annual conference by a majority of the members present. The record discloses that the pastor himself announced from the pulpit his inability to attend the conference meeting on that date and changed the date to October 12, 1980.

During the course of that meeting at which the defendant presided, certain questions were posed from members of the congregation concerning the incompleteness of the minutes of a prior meeting sought to be adopted. Apparently the number of objections, which the defendant as presiding officer would not recognize, created a degree of turmoil, during which the defendant attempted to dismiss the meeting and, failing in that effort, left the meeting. One of the congregation requested the chairman of the Board of Deacons to preside over the meeting, but he refused. The clerk of the church was then requested to do so, but he also refused, whereupon the congregation elected one of its members as moderator, and by the unanimous vote of the membership present the pastor was removed.

Did these events affect the legality of the annual conference meeting or its decisions? We think not. It was Reverend Foster himself who announced from the pulpit at two Sunday services prior to the October 12 meeting that the annual church conference would be held on October 12, with the acquiescence of the congregation, and he himself announced at the conclusion of the morning service on October 12 that the church would go into the annual meeting. Reverend Foster, having had the benefit of the postponement, now cannot be heard himself to complain about that aspect.

His primary contention in that connection, however, is that the turmoil which existed at that meeting necessitated that he adjourn the meeting, which he did before he departed. Under the testimony contained in the record, however, the trial court could have found, as it did find, that the disruption was in major part induced by the pastor who could have maintained order had he remained.

In that situation, one not expressly covered in the by-laws, we do not doubt that the congregation had the right to select one of its membership to serve as moderator in order to continue its annual conference. To hold otherwise would vest a power of management in church affairs in the pastor’s hands which he clearly does not possess. As Mr. Justice Sayre expressed it in Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947 (1909):

The Baptist church is congregational in its policy. It is democratic in its organization. It is the right of each congregation to rule itself in accordance with the law of the church. The will of the majority having been expressed, it becomes the minority to submit....

See also Abyssinia Missionary Baptist Church v. Nixon, Ala., 340 So.2d 746 (1977). And in Barton v. Fitzpatrick, 187 Ala. 273, 65 So. 390, 392 (1914) this Court stated:

This church [an organization under the faith and practice of the Missionary Baptist Church] is a pure democracy, and, . . . each church is a law unto itself in the management of its own affairs. Its organization is congregational, and each church must of necessity be governed by laws which inhere in that form of government.

Under these principles it was proper for the congregation to proceed with its annual conference meeting under the guidance of a moderator of its own choosing.

The record supports the trial court in its finding that approximately fifty of the congregation left the meeting while about fifty-nine remained. The by-laws of the church provide that a quorum at any annual church conference consists of twenty active members. As was observed in Barton, supra, at 65 So. 392:

[E]very meeting, duly assembled, constitutes a quorum of the church [here when at least twenty active members were present] for the transaction of the business for which it is assembled, and a majority of the quorum has the right to speak for the entire congregation, and its expressed will stands as the law of the church until it is changed or repealed by a subsequent meeting with similar authority. . . .

By the unanimous vote of those of the congregation who remained, the pastor was not retained. That action discloses adherence to the quoted principle. Thus the trial court was not ip error for enjoining Reverend Foster from occupying the pulpit and ordering him to vacate the property.

We reiterate that the sole question before us pertains to the church’s ecclesiastical right to remove the pastor. We have not decided any issues pertaining to any purported civil or property rights possessed by the defendant.

The decree must be, and is, affirmed.

AFFIRMED.

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

      . The proceedings on the defendant’s counterclaim were severed and are not before us on this appeal.


author: MADDOX, Justice.

text:
    Gus V. COSTELLOS v. Gus N. JEBELES.
    80-514.
    Supreme Court of Alabama.
    Oct. 30, 1981.
    J. Gusty Yearout of Lorant, Harris & Yearout, Birmingham, for appellant.
    Samuel Maples of Corretti & Newsom, Birmingham for appellee.
   MADDOX, Justice.

This is the second appeal in this action. On the first appeal, this Court remanded the case with instructions to the trial court to fashion a remedy as required by law. Jebeles v. Costellos, 391 So.2d 1024 (Ala. 1980). We are now asked to state whether our judgment remanding the case upon the first appeal constituted an annulment of the trial court’s findings of fact as well as a reversal of its application of law, or whether that judgment reversed the trial court’s application of law, leaving intact the trial judge’s findings of fact. Stated more precisely, the issue is whether this case, upon remand, should be tried again or should the trial judge use the findings of fact he made during the original trial and fashion only a new remedy according to those facts.

On the first appeal, Jebeles v. Costellos, 391 So.2d 1024 (Ala.1980), this Court held that the trial court had exceeded its discretion by fashioning a remedy which was inconsistent with the law of this state, as codified in Alabama Code 1975, § 10-8-1 et seq.; this Court reversed and remanded the case to the trial court with instructions to follow the procedure for dissolution as set out in § 10-8-97.

After remand, Costellos filed an amended counterclaim setting out claims which were not asserted in the original action. Jebeles filed a motion to strike those claims and the trial court struck the additional claims and refused to hear additional evidence on the matter. Also, the trial court issued a “Decree in Remandment from the Supreme Court” which dissolved the partnership, directed an accounting, and ordered a mar-shalling and sale of the assets. This decree was based solely on the findings of fact from the original hearing.

Costellos asserts that the trial court committed error by not letting him amend his counterclaim or submit evidence in support of those claims. We disagree with him and hereby affirm the trial court’s decree. There was a full and complete trial on the merits when this case was originally tried, and this Court relied on the findings of fact from that trial in its decision to reverse and remand the ease to the trial court. Had this Court determined in the first appeal that the trial court’s findings of fact were contrary to the evidence offered at trial or that the findings of fact were insufficient to support a proper remedy, then a trial de novo would now be necessary. This, however, is not the case. Furthermore, no new parties were brought into this action; no new issues were presented in this case by our remand, which included instructions to the trial court to fashion a remedy as mandated by Code 1975, § 10-8-97. As stated in that opinion, § 10-8-97 “was applicable to this situation in view of the court’s findings.” Jebeles v. Costellos, supra, at p. 1026. It is not now necessary for the trial court to re-try the facts but only to apply § 10-8-97 to its previous findings.

AFFIRMED.

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


text:
    Joseph Allen BRYANT, etc., et al. v. Jo Ann B. MORLEY.
    80-547.
    Supreme Court of Alabama.
    Oct. 30, 1981.

      Joseph J. Boswell, Mobile, for appellants.
    Bert S. Nettles and R. Joel Potter, Mobile, for appellee.
   BEATTY, Justice.

Plaintiff Clifton Bryant, Jr., on behalf of himself and his fourteen-year-old son, Joseph Allen Bryant (Joey), appeals from the grant of summary judgment in favor of defendant, Jo Ann Morley. Bryant’s action consists of two counts based on negligence. We affirm.

On July 10, 1980 Joey sustained serious injuries when he dived into the shallow end of defendant’s swimming pool. The complaint alleges that defendant “negligently supervised or negligently failed to supervise the conduct of “Joseph” while he was upon the defendant’s premises by negligently failing to instruct or warn him not to dive into the swimming pool at points where the water was shallow. The trial court granted defendant’s motion for summary judgment based upon the pleadings, the depositions of Joey, his mother Martha Bryant, and defendant Jo Ann Morley, in addition to the affidavits of Joey and Clifton Bryant, Jr.

Under Rule 56, ARCP, summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Whatley v. Cardinal Pest Control, Ala., 388 So.2d 529 (1980). All reasonable inferences from the facts are viewed most favorably to the non-moving party and the moving party is required to establish that the other party could not recover under “any discernible circumstances.” Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976).

The question on this appeal is whether the evidence, when considered in a light most favorable to plaintiffs, would support their contention that defendant had a duty to supervise Joey, and thus defeat summary judgment. Plaintiffs concede that Joey was a social guest at the time of his injury. In Alabama an invited social guest is a licensee of the landowner. Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650 (1963). The duty owed a licensee is not to willfully or wantonly injure him, or not to negligently injure the licensee after discovering his peril. Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).

The facts in the present case are similar to those in McMullan v. Butler, Ala., 346 So.2d 950 (1977). In McMullan, a fourteen-year-old minor was injured while driving into the backyard pool of another landowner. The minor was on the premises through the invitation of the landowner’s two sons. We affirmed the grant of summary judgment by the trial court and stated that “a homeowner should not be obliged to hover over his guests with warnings of possible danger.” Id. at 952.

The record discloses that Joey was on defendant’s premises at the invitation of her son. Defendant herself possessed no actual knowledge that Joey was shallow diving in her pool on the date of his injury or actual knowledge that Joey had ever on any previous occasion engaged in shallow diving while swimming in her pool. There is no evidence of intentional injury, nor of knowledge on the part of defendant of Joey’s peril. Based upon these facts alone, summary judgment was proper.

However, plaintiffs claim that this case falls under an exception to the standard of care for licensees approved in Autrey v. Roebuck Park Baptist Church, supra. The exception is found in Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973), wherein a babysitter, without monetary compensation, undertook the supervision of a minor child who injured himself when he pulled a skillet of hot grease off a counter. In Standi-fer we held that a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child. 291 Ala. at 438, 282 So.2d at 264. That general rule is inapplicable to the case at bar, however, because there is no evidence that defendant voluntarily undertook the responsibility of supervising the swimming activities of Joey on the occasion in question. The duty of defendant to Joey, then, was that owed to any licensee upon her land, i.e., a duty not to willfully or wantonly injure.

Plaintiffs contend that, even if defendant did not undertake the supervision of Joey on the date of his injury, she at least reserved the right to supervise him and, therefore, had a duty to take reasonable precautions to prevent Joey and other minors from injuring themselves. That argument is based upon the premise that because of defendant’s previous supervision of children she retained the right to supervise them in the future and failure to exercise that right could lead to liability for resulting injuries.

Regardless of whether defendant had a “reserved right to supervise” Joey based upon his licensee status, we are not impressed with plaintiffs’ argument that defendant had a duty to attempt to prevent Joey from injuring himself. In Langan Construction Co., Inc. v. Dauphin Island Marina, Inc., 294 Ala. 325, 316 So.2d 681 (1975), a similar theory was advanced by a boatowner alleging that defendants were negligent in failing to protect its vessel which was docked through a rental arrangement at defendants’ marina. Plaintiff contended that defendants knew the vessel was taking on water and that on a previous occasion they voluntarily saved another of plaintiff’s vessels from sinking. Because of the previous undertaking, plaintiff claimed that defendants owed it a continuing duty to take affirmative action to protect and safeguard its vessels. In refusing to extend the rule in Standifer v. Pate, supra, we recognized

“that a volunteer is under a duty, once he has acted or assumed the duty, to execute the tasks undertaken with reasonable care,” Standifer, supra; but this rule falls short of holding that, because one has voluntarily undertaken a task in the past, he is therefore under a duty to repeat such tasks x in similar situations in the future. . . . [Emphasis added.] [Id. at 328; 316 So.2d at 684.]

In the case at bar, the duty owed by defendant to Joey was not dependent upon her previous supervision of him or other children, but upon the landowner-licensee relationship which existed between them at the time of the accident.

Because of the nature of negligence actions, with their questions of reasonableness and proximate causation, summary judgment will not ordinarily be granted in such cases. Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976). There can be no actionable negligence, however, without breach of a legal duty. Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 180 So.2d 269 (1965). In the instant case, the trial judge found that defendant owed no duty to Joey other than that owed , to a licensee. The pleadings, depositions and affidavits fail to establish evidence of a breach of that duty. As a matter of law, defendant was entitled to the requested relief; thus, the trial court did not err in granting summary judgment.

AFFIRMED.

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


author: FA.ULKNER, Justice.

text:
    Thomas A. HURSEY and Eleanor Hursey v. The CITY OF MOBILE, Alabama, a municipal corporation.
    80-626.
    Supreme Court of Alabama.
    Oct. 30, 1981.
    Joseph J. Boswell, Mobile, for appellants.
    Davis Carr and Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   FA.ULKNER, Justice.

Thomas A. Hursey and Eleanor Hursey sued the City of Mobile for damages for injury to their property. From a summary judgment for the City, the Hurseys appeal.

The rear of the Hurseys’ lot adjoins a lot owned by Dr. Louis Ñaman. Dr. Ñaman began building a parking lot on his property in 1972; his lot was higher than the Hur-seys’, and fill dirt and other debris washed into the drainage ditch between the lots and onto the Hurseys’ property. This drainage ditch is the subject of the controversy here; the Hurseys sued the City on August 15, 1980, claiming damages in three causes of action:

(1) the City constructed and thereafter negligently maintained the drainage ditch;
(2) by refusing to compel Dr. Ñaman to cease and desist from the unlawful use of his property, the City conspired with Dr. Ñaman in his continuing unlawful use of his property to the damage of the Hurseys;
(3) the Hurseys were deprived of a property right and therefore are entitled to damages under 42 U.S.C. § 1983.

The trial court granted summary judgment on the basis of a deposition taken from Mr. and Mrs. Hursey and under the authority of Hendrix v. Creel, 292 Ala. 541, 297 So.2d 364 (1974). In Hendrix, this Court affirmed a demurrer sustained against a plaintiff’s bill in a similar faet situation. The Hurseys seek to distinguish the case at bar, primarily on the contention that the City constructed the drainage ditch here and therefore had a duty to maintain it. However, Mr. Hursey’s deposition testimony indicates that the ditch followed the natural fall of the land and that the developer of the property had dug the ditch. The Hurseys testified that the City had cleared the ditch two times in the 1970’s and that the City had a drainage easement on the property. The construction of a ditch by the City pursuant to its easement and maintenance of the existing ditch were discretionary functions; merely because the City exercised its discretion and cleared the ditch two times over a ten-year or longer span of time is not sufficient to impose a duty upon the City to carefully maintain the ditch. We agree with the trial court that Hendrix is controlling and that the City owed no duty to maintain the ditch.

The second cause of action, the conspiracy claim, fails to allege any combination between the City and Dr. Ñaman (see Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1953)); rather, it merely alleges unlawful use of property by an adjoining landowner. Any cause of action which the Hur-seys may have under the stated set of facts would be against Dr. Ñaman.

The third claim based on 42 U.S.C. § 1983 is similarly without merit. The Fifth Circuit Court of Appeals recently held that a city’s negligent maintenance of its sewers and drains does not give rise to a cause of action under § 1983. York v. City of Cedartown, 648 F.2d 231 (5th Cir. 1981). With the City having no duty to maintain the ditch in this case, we find the lack of a cause of action under § 1983 even more apparent here than it was in York.

For the foregoing reasons, the trial court is due to be affirmed.

AFFIRMED.

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


text:
    Ex parte MADISON COUNTY, ALABAMA, The Madison County Commission and Joe Patterson, in his capacity as Sheriff of Madison County, Alabama. In re MADISON COUNTY, Alabama, et al. v. Fob JAMES, etc., et al.
    80-732.
    Supreme Court of Alabama.
    Oct. 30, 1981.

      Julian D. Butler and George W. Royer, Jr., of Butler & Potter, Huntsville, for petitioners.
    J. R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for respondent City of Huntsville Hospital Board, d/b/a Huntsville Hospital, now the Hospital Authority of the City of Huntsville.
    M. R. Nachman, Jr., Sp. Counsel to the Governor of the State of Ala., William J. Samford, Jr., Legal Advisor to the Governor, Glenn F. Manning, Sp. Counsel to the Governor, and Thomas McAlpine, Gen. Counsel for the Dept, of Corrections, Montgomery, for respondents Governor James and Com’r of the Dept, of Corrections of the State of Ala.
   BEATTY, Justice.

Petition for a writ of mandamus to The Honorable Daniel B. Banks, Jr., Circuit Judge of Madison County, to direct Judge Banks to vacate his order transferring the case of Madison County, Alabama, et al. v. Fob James, etc., et al. to the Montgomery County Circuit Court. The writ is denied.

The sole issue presented by the petition is whether or not venue in the litigation between the parties is properly laid in Madison County.

The plaintiffs in the action initially filed in Madison County were Madison County, Alabama, the Madison County Commission, and Joe Patterson as Sheriff of Madison County. The named defendants were Fob James, in his capacity as Governor of the State of Alabama and in his capacity as Temporary Receiver of the Prison System of Alabama, Robert Britton, in his capacity as Commissioner of the Department of Corrections of the State of Alabama, and the City of Huntsville Hospital Board, d/b/a Huntsville Hospital, for itself and as representative of a class of persons who have provided or who will provide services or goods to state prisoners confined in the Madison County jail pending their removal to the state penitentiary. That action sought both declaratory and extraordinary relief: (1) that state prisoners not be confined in the Madison County jail pending such removal for more than twenty-one days; (2) that prisoners who have been confined for more than twenty-one days be removed; (3) that Governor James and Commissioner Britton be held responsible for reimbursing the plaintiffs for sums of money expended by them in providing medical care, food and housing to such prisoners, and (4) that plaintiffs not be held responsible for such payments; (5) that food, housing and medical care for such prisoners be provided by the Governor and Commissioner Britton; (6) that they be ordered to reimburse the plaintiffs for sums they have expended in providing those services; and (7) that the Governor and Commissioner Britton be ordered to pay Huntsville Hospital and the members of its class the sums of money due for medical treatment to such prisoners.

In due course Governor James and Commissioner Britton moved separately for a change of venue to the Circuit Court of Montgomery County. Commissioner Brit-ton alleged in his motion that the provisions of Code of 1975, § 6-3-9, mandated such a change. Governor James’s motion alleged that ground also, and in addition alleged that because of (1) his position as Governor and “Temporary Receiver” of the Alabama Prison System the venue of the action against him would lie only in Montgomery County, and (2) by virtue of Act 79-426 of the 1979 Regular Session of the Alabama Legislature he had been vested by the legislature with the responsibilities which previously had been possessed by the Board of Corrections.

After considering these motions, together with memoranda and arguments of the parties, the trial court granted the motions to change venue to Montgomery County.

Our legislative enactments are the primary guideposts for the venue of actions. Ex parte Lamb, Ala., 400 So.2d 386 (1981). Statutes governing the venue of actions are found in Code of 1975, Title 6, Article 3. Section 6-3-9 recites:

All actions where the prison system or the state on account of the prison system is interested must be commenced in Montgomery county in any court having jurisdiction of the amount involved, except actions to condemn property under section 18-1-2, which must be commenced in the county where the property sought to be condemned is located. And if, on the trial of any case in any county, it is suggested by the board of corrections or is otherwise shown that the state is interested on account of the prison system, such case must be transferred to the proper court of Montgomery county. All actions commenced under this section must be commenced in the name of the state.

The plain language of this statute mandates the venue as Montgomery County when the State Prison System “is interested.” That phrase, in fact, is repeated within the body of the statute. The phrase “[a]ll actions” is clear and unambiguous, and means what the phrase describes, “[a]ll actions,” whether those initiated by the state or those in which the state’s “system” is a party. The concluding sentence of the statute refers to only one category of “[a]ll actions,” i.e., those commenced by the state — those must be commenced in the state’s name (rather than in the names of those holding positions of authority). Cf. Moore v. Stephens, 264 Ala. 86, 84 So.2d 752 (1956) (Syl. 4).

The petitioners’ scholarly argument in brief dealing with the historical development of and changes in this statute to the effect that its present language signifies a legislative intent to govern only those actions filed by the state, is unpersuasive. Our cases uniformly hold that plain language in a statute should be considered to mean what it says. Fletcher v. Tuscaloosa Fed. Sav. and Loan Assn., 294 Ala. 173, 314 So.2d 51 (1975); State v. Robinson Land & Lumber Co. of Ala., 262 Ala. 146, 77 So.2d 641 (1955); Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720 (1936). Accordingly, we hold that § 6-3-9 controls the venue of this action. The Governor of Alabama, as “Temporary Receiver” of the prison system, and the Prison System Commissioner are made parties defendant. The state “on account of the prison system” is interested in the action because those officials in their official capacities are sought to be made liable for past and future expenditures made by the plaintiffs on behalf of state prisoners housed in the Madison County jail.

Because we find § 6-3-9 controlling on the issue of venue, we do not address other issues raised by the petitioners. Moreover, we have limited this opinion solely to the venue question.

The writ is due to be denied.

WRIT DENIED.

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


author: ADAMS, Justice.

text:
    Peter MEREDITH v. C. E. WALTHER, INC., et al.
    No. 80-418.
    Supreme Court of Alabama.
    Nov. 25, 1981.
    Joe R. Whatley, Jr. and John C. Falken-berry of Stewart, Falkenberry & Whatley, Birmingham, for appellant.
    Michael L. Edwards and Thomas J. Gallo of Berkowitz, Lefkovits & Patrick, Birmingham, for appellees.
   ADAMS, Justice.

Plaintiff, Peter Meredith, Esq., on this appeal asks that we recognize a new cause of action in Alabama for the wrongful discharge of an at will employee. The Circuit Court for Jefferson County entered summary judgment in favor of some defendants against whom plaintiff brought suit. We are unable to reach the merits of plaintiff’s ease because the grants of summary judgment from which he appeals are not final orders and consequently this appeal must be dismissed.

The present case involves multiple claims and multiple parties. The circuit court adjudicated “fewer than all the claims or the rights and liabilities of fewer than all the parties. . . . ” Rule 54(b), Alabama Rules of Civil Procedure. Because it did, it was necessary, in order to have a final judgment, that the circuit court make an “express determination that there is no just reason for delay,” and make “an express direction for the entry of judgment.” Rule 54(b), A.R.C.P. Because that was not done in this case, there is no final judgment to support an appeal. McKiever v. King & Hatch, Inc., 366 So.2d 264 (Ala.1979); Chambers v. Chambers, 356 So.2d 634, (Ala.1978); Simpson v. First Alabama Bank of Montgomery, 345 So.2d 292 (Ala.1977); Nelson-American Developers, Ltd. v. Eneo Engineering Corporation, 295 Ala. 185, 326 So.2d 103 (1976). We, therefore, on our own motion, dismiss plaintiff’s appeal. Nelson-American Developers, Ltd. v. Enco Engineering Corporation, supra; Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974).

As we have stated in similar cases:

This holding is not to be construed as depriving appellant of a review of the order granting summary judgment by appeal from the final judgment ultimately entered in the cause nor as precluding the trial court from vacating its prior order and entering one in conformity with Rule 54(b) ....

Simpson v. First Alabama Bank of Montgomery, at 293; Nelson-American Developers, Ltd. v. Enco Engineering Corporation, supra; Powell v. Republic National Life Insurance Co., supra.

APPEAL DISMISSED.

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


author: HOLMES, Judge.

text:
    EDDIE WALLACE’S GARAGE v. Regina ARREAGA.
    Civ. 2566.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Rehearing Denied July 1, 1981.
    Alton R. Brown, Jr. and E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Reggie Stephens and Michael Scheuer-mann, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Mobile County awarded benefits to the widow of the deceased employee. The employer appeals and we affirm.

At trial, the parties stipulated that the only issue in dispute was whether the accident which resulted in the death of the employee arose out of and in the course of his employment. The trial court found the issue in favor of the deceased employee’s spouse.

The sole issue presented to this court for review is whether the trial court erred in finding that the accident which resulted in the employee’s death arose out of and in the course of his employment.

At the outset, we note that in workmen’s compensation cases, if there is any legal evidence to support the trial court’s findings, those findings will not be disturbed on appeal. Barfield v. General Steel Tank Co., Ala.Civ.App., 370 So.2d 1005, writ denied, 370 So.2d 1008 (1979); Republic Steel Corp. v. Kimbrell, Ala.Civ.App., 370 So.2d 294, writ denied, 370 So.2d 297 (1979). We find that there is ample evidence to support the finding of the trial court.

The record reveals the following:

The employer is the owner of an automobile repair shop. The employee worked in that shop as an automobile mechanic. The employee was paid on a “commission” basis. One of the employee’s duties was to accompany the employer to the homes of customers to pick up their automobiles and drive the automobiles back to the shop for repair. On April 25, 1975, the employer and the employee left the shop and drove to the home of a customer to pick up an automobile and bring it back to the shop. When the employer and employee left the customer’s home the employee was driving the customer’s automobile and the employer remained in his own automobile. After driving some distance the customer’s automobile overheated, requiring the employee and employer to stop and add water to its radiator. After filling the radiator the employee realized that it was near five o’clock and time for him to pick up his wife from work and take her home. The employer granted the employee permission to pick up his wife before returning to the shop with the customer’s automobile.

The employee, while on his way to pick up his wife, was involved in an automobile accident. The employee sustained injuries from which he later died.

The record also shows that the employee’s working hours were from 8 o’clock in the morning to 6:30 o’clock in the evening and that the employee occasionally worked until 8 o’clock in the evening. There is also evidence that the employee left work each day at approximately 5 o’clock in the evening to pick up his wife. The employee always returned to work after taking his wife home. The employer testified that the employee took this time in lieu of a regular lunch break at noon.

From the above, we find that there was ample evidence from which the trial court could conclude that the employee’s journey was a dual purpose one, a journey which served the purposes of both the employer and the employee. Accidents occurring during such journeys arise out of and in the course of employment if the trip involves performance of a service for the employer which would have necessitated a trip by someone if the employee had been unable to perform that service in connection with his personal journey. Patterson v. Whitten, 57 Ala.App. 297, 328 So.2d 301 (1976); Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1920); Larson, The Law of Workmen’s Compensation, §§ 18:00, 18:12.

In the instant case, the employee left the employer’s shop for the purpose of picking up a customer’s automobile and delivering the automobile to the employer’s shop for repair. Driving the customer’s automobile to the shop was part of the employee’s job as a mechanic. It is clear that someone would have had to pick up the customer’s automobile and drive it to the shop if the employee was unable to do so. The employee’s personal purposes did not initially prompt the journey and the idea that the trip could serve his personal purposes, as well as those of his employer, did not occur to the employee until after the journey had begun. Further, the employee undertook his personal errand with the express permission of the employer. See, Patterson v. Whitten, supra. Finally, at all times during the journey, even while the employee was traveling to his wife’s work place, the employee was performing the service which initially prompted the journey; that is, driving the customer’s automobile from the customer’s home to the shop.

The employer, through able counsel, argues in brief that the rules applicable to cases where the accident occurred while the employee was traveling to or from work govern the instant case. See, e.g., Wiregrass Comprehensive Mental Health Clinic v. Price, Ala.Civ.App., 366 So.2d 725 (1978); writ denied, 366 So.2d 728 (1979); Union Camp Corp. v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972). The employer in making this argument apparently relies on the evidence indicating that the employee was on his “lunch hour” at the time of the accident. However, we find that this evidence does not, in and of itself, require the application of the above mentioned rules. Larson, § 18.21. As stated above, there is ample evidence from which the trial court could conclude that the employee’s journey was a dual purpose one. Specifically, there is evidence that the employee was, at all pertinent times, actively performing a service for the employer, namely driving the customer’s automobile to the employer’s shop for repair. Patterson v. Whitten, supra.

“When an employee, in the course of his normal journey off the premises to and from work, performs some concurrent service for his employer, the question whether the trip becomes an exception to the usual rule excluding off-premises going and coming journeys is determined by the same principles that apply to dual purpose journeys.”

For the above reasons, we find that the trial court did not err in finding that the accident arose out of and in the course of employment.

The case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    George M. SANDS v. Henry P. JOHNSTON, et al.
    Civ. 2475.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Rehearing Denied Sept. 23, 1981.
    John E. Amari, Birmingham, for appellant.
    David P. Whiteside, Jr., of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

George Sands filed an application for “leave with pay” with the Jefferson County Personnel Board. Application was denied by the Board. Sands then instituted this action against the Board and the individual members thereof, again seeking “leave with pay for injury received in the line of duty” as a policeman for the City of Birmingham. The Circuit Court of Jefferson County denied the relief sought and Sands appeals.

The record reveals that patrolman Sands, while answering a call to investigate a felony reportedly in progress on June 22, 1979, discharged his firearm, killing a woman not actively involved in the crime. Public controversy over the shooting ensued. Sands was placed on one month administrative leave and on July 23, 1979, was assigned to the position of impounding vehicles. He remained at this position for a few days and left, complaining that the job was demeaning, that he was depressed and that the “news people was hounding me.” Sands applied for leave with pay shortly thereafter.

The relief sought by Sands is provided for under Rule 7.24 of the Rules and Regulations promulgated by the Jefferson County Personnel Board governing classified employees. The rule sets forth the pertinent following:

INJURY WITH PAY LEAVE. An employee who sustains a disabling injury without fault or negligence on his part while performing the duties of his position may be granted leave with pay by the Personnel Board. (Emphasis added.)

Sands sought to establish, in effect, that he had suffered severe emotional problems as a direct result of the shooting incident and that these problems constituted an injury disabling him from performing his duties as a policeman. After ore terms hearing, the trial court denied the relief sought by Sands, finding that if any injury resulted to him, it was not disabling.

On appeal, Sands claims the trial court erred in denying his requested relief.

The only issue is whether the trial court abused its discretion in finding that any injury suffered by Sands was not disabling, such disabling injury being required for recovery under Rule 7.24 set forth above.

We have reviewed the record, including medical reports, exhibits and lengthy testimony, most carefully. The bulk of the evidence presented dealt directly with the question of whether any injury suffered by Sands as a result of the incident

was disabling. The evidence was conflicting on that point. It was the trial court’s duty to resolve the conflicts in and determine the weight to be given and inferences to be drawn from that evidence. Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980); Suggs Music Co. v. State Dept. of Revenue, 365 So.2d 977 (Ala.Civ.App.1978), cert. denied, 365 So.2d 979 (Ala.1979). We will not substitute our judgment for that of the trial court as to the effect of conflicting evidence. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980).

We have found evidence supportive of the trial court’s determination that Sands incurred no disabling injury. For that reason, we find no plain or palpable abuse of discretion in the trial court’s judgment. Anderson v. Blue Star Ready Mix, Inc., 391 So.2d 127 (Ala.Civ.App.1980).

The judgment is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The case was tried upon consolidation with another action brought by Sands versus Birmingham Mayor Richard Arrington and others, seeking return to active duty on the Birmingham Police Force. In that action the trial court found favorably for Sands, that he was not disabled, and returned him to active duty.


author: HOLMES, Judge. HOLMES, Judge.

text:
    William J. DAVIS, as Director of the State of Alabama, Department of Industrial Relations v. Milford BLACK, et al.
    Civ. 2718-X.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Rehearing Denied Oct. 7, 1981.

      George C. Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State of Alabama Dept, of Industrial Relations, Montgomery, for appellant.
    William M. Dawson, Jr., Birmingham, and Gary Atchison, Montgomery, for appel-lees.
   HOLMES, Judge.

This is an unemployment compensation case.

The claimants brought this action to appeal the Department of Industrial Relations’ denial of unemployment compensation benefits. The trial court dismissed the appeals of fifteen claimants for lack of jurisdiction, dismissed the appeals of nine claimants on the ground that they had not filed an initial claim for benefits with the department; and ordered the department to hold appropriate administrative hearings on the claims of the remaining seventy-nine claimants.

The department appeals from the trial court’s order directing it to hold hearings on the claims of the seventy-nine claimants.

The fifteen claimants whose appeals were dismissed for lack of jurisdiction cross-appeal from that dismissal.

We find no error and affirm.

At the outset we note that there are 103 individuals named as claimants in the instant case. For the sake of clarity the fifteen whose appeals were dismissed for lack of jurisdiction will be referred to as group one. The group of seventy-nine whose claims were remanded to the department for administrative hearings will be referred to as group two. The remaining nine claimants will be group three. Group three is not involved in the instant appeal.

The record reveals the following facts:

The claimants were non-tenured teachers employed by the Cullman County Board of Education. The claimants were terminated by the school board at the end of the 1976 school year. All claimants except those in group three filed claims for unemployment compensation benefits with the department. These claims were denied.

The claimants appealed the denial of benefits to a department appeals referee pursuant to § 25-4-92, Code of Ala.1975. An appeals referee heard the claims of approximately sixty-three claimants. However, before the remaining claims were heard, the two attorneys representing some of the claimants and the department agreed to appeal a test case to the Board of Appeals. The purpose of the test case was to obtain the Board’s ruling on a legal issue common to all of the claims.

At this point the remaining appeals referee hearings were cancelled and all claims, with the exception of those of the claimants in group one and one Cheryl Black, were remanded to the department’s benefits section pending the Board’s decision in the test case. Since the remand no further administrative action has been taken on these claims.

The claims of the members of group one were appealed to the Board of Appeals as was the claim of one Cheryl Black, as a representative of group two. Cheryl Black’s claim was designated as the test case. The Board ruled in favor of -the department in each case and a statutory notice of its decision was sent to each group one claimant or his attorney.

Cheryl Black then appealed to the circuit court pursuant to § 25 — 4-95, Code of Ala. 1975. The members of group one were not joined as parties plaintiff nor was class action status conferred upon the case.

The Cheryl Black case was dismissed by the circuit court upon the request of her counsel after Black decided that she no longer desired to pursue the matter. Even if Cheryl Black had wished to pursue her appeal the circuit court would have had no jurisdiction to hear the action because the appeal was untimely filed.

The members of group one did not file an appeal in the circuit court within the time allowed by § 25-4-94, Code of Ala.1975.

I

As indicated, the department appeals from the trial court’s order directing the department to hold appropriate administrative hearings of the claims of the members of group two. Stated differently, the department through counsel contends that there was a test case agreement between the claimants’ attorneys and the department; that under this agreement the final decision in the test case would be binding on all claimants similarly situated to the test claimant; and that the Board of Appeals’ decision in the test case had become final due to the untimely appeal of the test case to the circuit court. In short, the department argues that group two’s claims have been denied by the Board en masse and that, since the time for appeal has run, the board’s decision has become final.

The trial court, in ordering the department to hold administrative hearings for claimants in group two, held, in effect, that there was no test case agreement. In reaching this decision the trial court noted that “some, if not all, of these Plaintiffs [group two] indicated that they desired individual appeals, rather than be bound by the results of any test case.”

There is a paucity of legal authority concerning the requisites of a valid test case agreement. The few opinions we have discovered indicate that the outcome of a test case will not be binding upon the individual claimants unless they have agreed to be bound. See Aluminum Company of America v. United States, 30 F.Supp. 676 (Ct.Cl.1940), modified, 32 F.Supp. 767 (Ct.Cl.1940); Aluminum Company of America v. United States, 30 F.Supp. 686 (Ct.Cl.1940). The definition of test case found in Black’s Law Dictionary also indicates that the parties to a test case must agree to be bound by it. Black’s Law Dictionary at 1321 (5th ed. 1979) defines test case as:

Test action or case. An action selected out of a considerable number of suits, concurrently depending in the same court, brought by several plaintiffs against the same defendant, or by one plaintiff against different defendants, all similar in their circumstances, and embracing the same questions, and to be supported by the same evidence, the selected action to go first to trial (under an order of court equivalent to consolidation), and its decision to serve as a test of the right of recovery in the others, all parties agreeing to be bound by the result of the test action .... (Emphasis supplied.)

As indicated above, the trial court found that the claimants in group two had not agreed to abide by the result in the test case. The trial court’s decision is supported by the evidence presented to it. On July 16, 1976, the department sent letters to the claimants suggesting that a single claimant be chosen to pursue his or her claim as a test case. If the individual claimants did not wish to rely on the test case they were to notify the department. The response to the July 16 letter was not favorable to a test case. On August 5, 1976, the department again sent the claimants letters indicating the department had abandoned the idea of a test case and would set up individual appeals. Subsequent to August 5, 1976, there is no evidence that any claimant agreed to be bound by any test case.

The department relies upon the agreement between the department’s attorneys and the attorneys for the claimants that the Cheryl Black case would be a test case. The trial court, in its judgment, recognized that such an agreement was made. However, the law is well settled that an attorney cannot compromise a client’s claim or prejudice the client’s rights absent authorization from the client. Salter v. Carter, 257 Ala. 216, 58 So.2d 454 (1952). As stated earlier, there is no evidence that any of the claimants in group two ever authorized their attorneys to compromise their claims by entering into a test case agreement. Additionally, such authorization would have been difficult to obtain since the record reveals some confusion as to just which claimants were represented by the attorneys who entered into the agreement. The judgment of the trial court will not be disturbed on appeal unless plainly erroneous. Killough v. DeVaney, 374 So.2d 287 (Ala.1979). For the reasons stated above, we find no such error in the case before us. The trial court properly ordered the department to hold further hearings on the claims of the members of group two.

II

As stated above, the fifteen claimants in group one cross-appeal from the trial court’s order dismissing them from the action.

As stated above, each member of this group filed a timely appeal with the Board of Appeals. The Board in each case affirmed the decision of the appeals referee and denied benefits. Each member of group one received timely notice of the Board’s decision. However, no member of group one filed a notice of appeal in the circuit court within the time period provided by § 25 — 4-95, Code of Ala.1975.

To invoke the jurisdiction of the circuit court, a claimant must file a timely notice of appeal with that court. Crawley v. Carter, 378 So.2d 1139 (Ala.Civ.App.1979). Section 25 — 4r-95, Code of Ala.1975, stated that this notice of appeal must be filed “within 10 days after the decision of the board of appeals has become final. . .. ”

The record is clear that no member of group one filed a notice of appeal with the circuit court within the ten days provided by § 25-4-95. Therefore these claimants failed to timely invoke the jurisdiction of the circuit court and we find that the trial court did not err in dismissing their appeals.

Contrary to the contentions of counsel for the group one claimants, relief pursuant to rule 60(b), A.R.C.P., is not appropriate in this case. Section 25 — 4-95 is the exclusive method for appeal of the decisions of the Board of Appeals to the circuit court. The claimants in group one failed to invoke the jurisdiction of the circuit court as required by § 25 — 4-95. This court has previously held that rule 60(b) may not be invoked to alter the jurisdiction of the circuit court because such would constitute judicial alteration of the substantive law. State v. Ladner & Co., 346 So.2d 1160 (Ala.Civ.App.1977).

For the reasons stated above, the case is due to be affirmed.

AFFIRMED.

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

ON REHEARING

HOLMES, Judge.

On rehearing the department contends that the trial court erroneously included Albert Wendell Calloway within the group of teachers whose claims were remanded to the department for administrative hearings. In other words, using the terminology of this court’s opinion, the department contends that Calloway should be included within group one rather than group two. After reviewing the record, this court concludes that the department is correct. The record reveals that Calloway received the same administrative action as did all the members of group one. This administrative action consisted of a hearing before an appeals referee, an appeal to the Board of Appeals and an affirmance of the appeals referee by the Board of Appeals. Just as with the members of group one, Calloway failed to timely appeal the Board of Appeals’ decision to the circuit court. Thus, Calloway’s appeal should have been dismissed. Consequently, that portion of the trial court’s decision which required administrative hearings for Albert Wendell Callo-way is reversed. The remainder of the trial court’s decision is affirmed in accord with this court’s opinion.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

      . The issue of the untimely filing of the Cheryl Black appeal was raised by the department for the first time in its motion to reconsider denial of a summary judgment in the case before us.


author: BRADLEY, Judge.

text:
    Henry DENNIS v. Gary HUFF and John Van Harris.
    Civ. 2749.
    Court of Civil Appeals of Alabama.
    Oct. 7, 1981.

      Bert W. Rice of Maxwell & Rice, Atmore, for appellant.
    Johnnie B. Byrd, Jr., of Caffey & Byrd and Paul D. Owens, Brewton, for appellees.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Gary Huff located growing timber for sale as a part-time occupation. After locating timber he would contract to sell it to users. As part of his work, he would also mark the timber to be cut.

Huff contracted with John Van Harris to cut and haul the wood to the users. Harris owned and operated his own truck and had the sole right to hire and fire any worker. Harris also had complete discretion as to whether he would cut a particular tract. Huff paid Harris according to the amount of wood produced.

The evidence shows that Harris had no regular full-time employees. Harris’s employees usually worked only part time and never for a long period of time. He also rarely had more than two employees working on a regular basis.

Henry Dennis was hired by Harris to aid in cutting wood and loading the truck. Dennis was injured on December 12, 1978 hauling a load of wood on the truck. The testimony reflects that while driving the truck Dennis noticed that one of the tires was smoking. He stopped the truck and got out to examine the tire. He said that he began shoveling dirt on the tire to cool it off. He bent over to look at the tire and it blew up in his face. As a result, he is blinded in the right eye and has impaired vision in the left eye.

Dennis filed suit in the Circuit Court of Escambia County to recover workmen’s compensation for these injuries from both Gary Huff and John Van Harris. A trial was held and the judgment was in favor of the defendants. Dennis’s new trial motion was overruled and he has appealed to this court.

The only issue before us on this appeal is whether Huff was an employer of Dennis. Huff contends that Harris was an independent contractor and thus Huff would not be an employer of Dennis. We agree with this contention and affirm the judgment.

It has been stated numerous times that on appeal this court will not weigh the evidence, but will simply see if there is any evidence to support the trial court’s findings in a workmen’s compensation proceeding. Davis-Day Timber Co. v. Gentry, 54 Ala.App. 385, 309 So.2d 97 (1975); see also Boatright v. Dothan Aviation Corp., 278 Ala. 142, 176 So.2d 500 (1965).

The issue of whether a person is an independent contractor or employee has been addressed by our courts numerous times. In Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937), it was stated that the right of control rather than the exercise of control was the test of whether the relationship of the parties is that of employer-employee or independent contractor.

In examining the cases on this issue it seems that our courts have held one to be an employer when he has reserved some power of control over the one he claims to be an independent contractor. See Tuscaloosa Veneer Co., supra. In Tuscaloosa Veneer an employer-employee relationship was found because the appellant had bought the employee equipment and had provided transportation.

We find the case of Majors v. Jackson Lumber Co., 244 Ala. 418, 13 So.2d 885 (1943) to be dispositive of the case at bar. In that case our supreme court upheld the trial court’s finding that an independent contractor relationship existed. The facts of that case are closely akin to the facts of the present case in that the independent contractor had the sole right to hire and fire employees and supplied his own equipment, transportation, etc. Also in Majors the independent contractor was shown the tracts of timber to be cut.

In the present case we find that the trial court did not err in determining that an independent contractor relationship existed. Harris had the sole right to hire and fire his employees. He also supplied all his own equipment and transportation. Huff only showed Harris the tracts to be cut and paid Harris according to the amount of timber delivered.

Under these circumstances, we cannot find that the evidence was insufficient to support the trial court’s findings. As a result we hold that the trial court did not err in determining that Harris was an independent contractor; its judgment is therefore affirmed.

AFFIRMED.

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


text:
    Ronald SMITH v. EAST SIDE MOTORS, INC.
    Civ. 2836.
    Court of Civil Appeals of Alabama.
    Oct. 7, 1981.
    Danny R. Stewart, Birmingham, for appellant.
    John W. Sudderth, Birmingham, for ap-pellee.
   BRADLEY, Judge.

This is a truth-in-lending case.

Plaintiff, Ronald Smith, purchased a 1973 Buick LeSabre from East Side Motors, Inc., defendant, on April 8,1980. The sales price was $750.00. Plaintiff agreed to pay $240.00 down and the remaining balance in twenty-five installments of $20.00 and one installment of $10.00. A financing statement was completely filled out, and disclosed that there was to be no financing charge.

Plaintiff experienced some mechanical trouble, and the defendant repaired the car at no charge. On June 6, 1980 the car completely broke down, and a new motor had to be installed. The defendant charged plaintiff $331.00 for the new motor. Plaintiff did not pay for the motor so defendant kept the car.

On June 30,1980 plaintiff filed suit in the Circuit Court of Jefferson County. His complaint contained four counts. By order of this court, three of the counts were transferred to the jury docket. The plaintiff’s truth-in-lending count brought under 15 U.S.C. § 1601 et seq. (1976), however, was set to be heard before the judge on April 21, 1981. The record discloses that all the parties were notified of the trial date. Plaintiff failed to appear at the hearing and, as a result, judgment was rendered in favor of the defendant. From this judgment plaintiff appeals to this court.

In his truth-in-lending count plaintiff alleges that there was a finance charge hidden in the purchase price of the automobile. He claims that the purchase price was higher than it normally would have been since plaintiff was to pay in installments.

In its order the court noted that after a thirty minute wait the plaintiff had failed to appear. The court then stated that after hearing the defendant’s evidence orally it could find no violation of the Truth-in-Lending Act.

Also it should be noted that the defendant never filed a motion to dismiss for want of prosecution under A.R.C.P. 41(b). The trial judge did not of his own motion dismiss the action either, but instead heard oral testimony from the defendant. He then rendered judgment on the merits.

No record was made at trial of this oral testimony. It has been stated numerous times that where the trial court hears oral testimony which is not part of the record on appeal, then such evidence will be conclusively presumed to support the finding of the trial court. A.R.A.P. 10(d); Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978); Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976).

Since there is no record of the oral testimony which the trial judge stated that he considered, we must presume that it was sufficient to support the judgment. We, therefore, cannot find any error in the judgment on the merits and therefore must affirm.

The defendant’s motion to dismiss this appeal is denied.

AFFIRMED.

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


text:
    Hayden H. GARLAND, Jr. v. Geraldine L. GARLAND
    Civ. 2755.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.
    E. Ray Large, Birmingham, for appellant.
    Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This appeal originally involved both a denial of modification of alimony in gross and a judgment against appellant for arrearage in payment of that alimony. A motion to dismiss the appeal from those orders as untimely was granted by this court August 25, 1981. The sole issue left on appeal is whether the trial court erred in its denial of a Rule 60(b)(2), A.R.C.P. motion. We find no error and affirm.

The parties were divorced October 30, 1975. The decree, which incorporated an agreement by the parties, awarded the wife $500 per month periodic alimony and $50,-000 alimony in gross. The alimony in gross was to be paid $5,000 per year for a period of ten years without interest. The order set out that “The gross alimony recited in this provision of this decree shall immediately vest and shall not be subject to modification by this court at any subsequent time.”

On the same day, the parties entered into another agreement not adopted by the trial court which provided that the husband could pay the alimony in gross via a salary from his corporation, Garland Company. The out-of-court agreement was carried out until the corporation ceased to function in 1980. On July 15, 1980, the husband filed a petition for modification of the divorce decree which he subsequently amended on September 4, 1980. His amended petition asked the court to determine that he no longer owed alimony in gross payments to the wife since the corporation, through which the payments were funded, was now defunct. The trial court refused to modify the original decree and entered a judgment for $2,497.02 arrearage against appellant on December 1, 1980. No appeal was taken within the statutory period.

A motion, specifically designated a Rule 60(b)(2), A.R.C.P. motion, was filed by the husband December 24, 1980. The trial court denied that motion February 26, 1981. The husband appealed April 9, 1981, from the judgment of December 1, 1980, and from the denial of the Rule 60(b) motion. We have sustained a motion by appellee to dismiss the appeal from the December 1 judgment as untimely.

A Rule 60(b) motion does not affect the finality of a judgment and thus does not extend the time for appeal. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala.1977). Thus the filing of the 60(b)(2) motion in no way changed the finality of the December 1,1980 orders in this ease, and those orders will not be reviewed in any way by this court. The remaining issue is whether the trial court erred in denying the December 24, 1980, 60(b) motion.

The grant or denial of a 60(b) motion lies largely within the discretion of the trial court and will be overturned only for abuse of discretion. Waldron v. Fikes, 378 So.2d 1138 (Ala.Civ.App.1979). Motions to set aside judgments on the basis of newly discovered evidence are not favored. Wal-dron, supra. The record fails to sustain the averment of newly discovered evidence. We find no error in the trial court’s denial of the 60(b)(2) motion.

No attorney’s fees will be awarded on appeal since the case on the 60(b) motion is essentially separate from the divorce action and attorney’s fees are not authorized.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.