text:
    The MERCHANTS NATIONAL BANK OF MOBILE, etc. v. Kenneth J. STEINER. Robert I. GULLEDGE v. Kenneth J. STEINER.
    79-455, 79-467.
    Supreme Court of Alabama.
    Sept. 4, 1981.

      J. Connor Owens, Jr. of Owens & Simpson, Bay Minette and James A. Philips of Holberg, Tully, Holberg & Danley, Mobile, for appellant The Merchants National Bank of Mobile.
    Lloyd E. Taylor of Taylor, Benton, Irby & Gibson, Fairhope, for appellant Robert I. Gulledge.
    James R. Owen of Owen & Ball, Bay Minette, for appellee.
   PER CURIAM.

This appeal arises from a suit for specific performance to convey real property filed by Kenneth J. Steiner against The Merchants National Bank. A motion to intervene and a counterclaim were filed by Robert I. Gulledge. Steiner amended the complaint once to seek damages for breach of contract and again, after the close of evidence, to seek damages for fraud. The trial court, sitting without a jury, rendered a verdict and final judgment for Steiner against the Bank in the amount of $200,000 and against Gulledge denying his counterclaim. The Bank and Gulledge appeal. We affirm in part and reverse in part.

Kenneth J. Steiner (Steiner) leased 320 acres of land in Baldwin County, beginning in 1974, from The Merchants National Bank of Mobile (Merchants), which held the land in trust. The land, described as the west half of Section 13, Township 8 South, Range 4 East, Baldwin County, Alabama, was part of a large tract which the bank administered under the will of John D. Clarke, and some of which Merchants had previously sold, including 160 acres, bordering the land in question, to Steiner. When Steiner leased this land in 1974, he moved into a house on it and began to farm it. The lease was in writing and required him to repair and maintain buildings and fences on the land.

In the fall of 1976 Steiner learned that Merchants intended to sell the 320 acres, and he began negotiating with Don Harper (Harper), a Vice President and Trust Officer of Merchants, about buying the property. On September 29, 1976, Harper sent Steiner a letter extending Steiner’s lease, due to expire at the end of the year, until May 31, 1977. This extension was to allow Steiner to harvest his winter crop, but was conditional upon Merchants’ not having received an acceptable offer for the land as of January 1, 1977.

On November 19, 1976, Steiner sent Harper a letter offering to buy the property for $560.00 per acre, subject to approval of a loan from the Federal Land Bank. Harper replied by letter on December 7 that “this acreage should sell for not less than $750.00 per acre, as is... . If you wish to submit an offer in line with our thinking please prepare a written offer so we can take it up with our Director’s Trust Committee.” Steiner wrote back on December 15 and increased his bid to $625.00, enclosing a $1,000.00 check “for deposit.” The copy of this letter introduced into evidence shows a handwritten note, dated 12-22-76 and initialed DH, to the effect that Steiner “authorized increase of offer to $675.00” per acre, on condition that the roadway easement across the land would be temporary.

Harper wrote back on December 29, stating in part:

I indicated to you on the phone that we cannot at this time recommend an offer of less than $700.00 per acre net to the Trust with the understanding that an 80 foot wide right-of-way would be reserved. . . .
We are holding your earnest money deposit check of $1,000.00, however, if you do not feel that you have an interest in the property along these lines, please let us know and we will promptly return your check.

Harper returned the check on January 5, 1977.

On Tuesday, January 11, Harper went out to the property and had a conversation with Steiner. There is some dispute as to precisely what was said: Steiner testified that he offered Harper $700.00 per acre subject to the easement and that Harper told him that the offer would be accepted and that he could go ahead with improvements on the farm. Harper testified that he merely told Steiner to submit the offer in writing so it could go before the Trust Committee on Thursday morning. After the conversation at his farm, Steiner went to the bank and had a secretary type onto a form Steiner’s offer of $224,000, to be paid “in full upon approval of loan through Federal Land Bank.” Steiner signed this offer and gave it to Harper, along with a cheek for $500.00.

On Wednesday afternoon, January 12, Harper received a telephone call from Robert Gulledge (Gulledge). Gulledge asked Harper if there was any of the Clarke property for sale. Gulledge testified at trial that he had recently sold property and was looking for additional investment property. He testified that Harper

told me that there were properties for sale, various parcels, that had been advertised and had been on the market for some time. I discussed with him my familiarity with the West half of Section 13 and he told me that there were offers that would be submitted to the trust department or trust committee on the following morning and I had asked him if it would be possible for me to make an offer.

Gulledge made out an offer for $235,200 on a standard form and deposited it in the bank’s night depository that evening. When the trust committee met on Thursday morning, January 13, it had before it Gul-ledge’s offer, Steiner’s, and one from Gordon Brent for $230,000. The committee voted to accept Gulledge’s offer. Harper so informed Steiner by telephone on the following Monday.

Some time later — the testimony was conflicting as to just when — Gulledge came out to the farm and he and Steiner talked. Steiner testified that

[H]e [Gulledge] said the bank had contacted him and told him about the property and it was for sale and he made an offer. And the second time I met him at his place of employment, the bank in Robertsdale and, excuse me, we sat there and discussed it. We met several different times and we discussed it and he said that — we were just talking and anyway he volunteered the information to me. He said that the — that someone at the bank, I do not remember the name, had called him, it wasn’t Don Harper, on the morning, Wednesday morning, before the trust department was to meet and said that they had such and such a property for sale and was he interested.... [H]e called them back that afternoon and he said, “What is the price?”, and he said they told him that they had accepted an offer of seven hundred dollars....

This testimony came out on cross-examination by defendant, with no objection or motion to exclude the evidence made; when questioned on re-direct Steiner reiterated that

He told me that the bank had told him that they had accepted an offer of seven hundred dollars and he went five percent above that.

Steiner amended his complaint at the close of evidence to add a count in fraud, relying essentially on this evidence. Gulledge, after buying the property for $235,200, sold it for $480,000; this deal would have closed in July of 1978 but for the lis pendens notice. Steiner continued to lease the land from Gulledge; the testimony is conflicting, some saying that he held over after his lease through the entire year of 1978, and Steiner saying that he lived on the property from about 1974 to 1977.

Steiner filed a complaint for specific performance in the Circuit Court of Baldwin County on June 27, 1978, attaching a copy of the offer he submitted to Merchants on January 11, 1977. The next day he filed a lis pendens notice on the property in the Probate Office. Gulledge learned of the lis pendens when the Federal Land Bank refused to go through with a loan for the sale Gulledge was negotiating; he filed a motion to intervene as a party defendant and an answer and counterclaim on September 29. The counterclaim sought damages for slander of title, loss of income, and the hire and use of the property; it also sought recovery of possession of the property from Steiner and to have the lis pendens notice declared null and void.

Gulledge filed a motion for partial summary judgment on December 11; the court granted this motion on December 21, ordering that the lis pendens notice be declared null and void.

Steiner, on December 29, filed an amended complaint seeking damages, alleging an agreement between Steiner and Merchants and Merchants’ refusal to convey the property under the agreement. Merchants answered on January 19, 1979, denying the allegations, and the case went to trial on September 5. After the close of evidence, but before judgment, Steiner amended his complaint on November 15 to add a count in fraud. Merchants filed an objection to this amendment and a motion to dismiss or strike on November 19, and then an answer to the amended complaint on December 31.

The trial court issued its decree on February 28, 1980. The findings of fact were to the effect that Merchants “informed a second bidder of a different and larger bid which would be acceptable” and that it “had undertaken a duty to the Plaintiff to inform Plaintiff of the size of bid which would be acceptable to purchase the lands.” The damage to Steiner was that he “was not the successful bidder for the property,” and the court therefore found in favor of Steiner and against Merchants in the amount of $200,000.

As to Gulledge’s counterclaim, the court found that he was “not damaged in that the Lis Pendens filed by Plaintiff Steiner did not affect the title of Plaintiff/Intervenor Robert R. Gulledge to the lands nor prevent the sale of the land . . . . ” The court therefore found against Gulledge in favor of Steiner.

Gulledge and Merchants appeal this judgment and ask that the case be reversed and remanded to another judge in Baldwin County.

Steiner alleges that a contract to convey the land, or at least promissory estoppel, arose by virtue of his dealings with Harper. His further allegation of fraud raises problems of procedure and of the statute of limitations, but, due to the uncertain basis of the trial court’s holding, we will bypass these problems and address the merits of Steiner’s fraud allegations.

Gulledge’s counterclaim and the trial court’s denial thereof raise another set of issues. These are: Did the trial court err in denying Gulledge damages either for slander of title, or for interest expense and loss of income during the period that his sale was delayed by the lis pendens notice, or for Steiner’s alleged holding over after the expiration of his leave?

A. Steiner’s judgment against Merchants.
1. The contract claim.

From the facts set out above, it is clear that Steiner and Merchants had no written contract for the conveyance of this land. Steiner argues that under the circumstances the document he signed on January 11,1977, was an acceptance of an offer by Harper to sell the land for $700 per acre. We hold otherwise, not only because Harper explicitly was soliciting offers which could be accepted only by the Trust Committee of the Board of Directors, but also because the document Steiner executed was a conditional offer rather than an acceptance.

Steiner argues that even if no written contract existed, this case comes under the part performance exception to the Statute of Frauds. See Code 1975, § 8-9-2(5) and annotations thereto. To come within this exception, the putative purchaser must be put in possession by the seller and must pay the purchase price or a portion thereof. Caron v. Teagle, 345 So.2d 1331 (Ala.1977). “A possession taken as a lessee, and continued without visible change, does not tend to prove that such occupant was put in possession by the owner, and is not an act tending to give notice of a change of holding.” Reynolds v. Bryant, 281 Ala. 372, 202 So.2d 734 (1967). The possession must refer exclusively to the contract sought to be enforced; part performance or payment may be inferred from the construction of improvements, but only if performed under the contract of sale. Quinlivan v. Quinlivan, 269 Ala. 642, 114 So.2d 838 (1959).

Steiner testified that Harper told him on the morning of January 11 to “Go ahead and start your improvements and whatever you want to do. It will have to go before the bank committee.” Steiner also testified that Harper “said it would be approved at the meeting on Thursday with the trust department and I needed to go over and fill out the form at the bank.” Steiner alleges that these representations, together with his $500.00 deposit and the fact that he performed work on the farm thereafter constitute an oral contract taken out of the Statute of Frauds by part performance.

We disagree. An oral agreement to convey an interest in land must be “clearly proved.” Pike v. Pettus, 71 Ala. 98 (1881). Even in Steiner’s words, all of Harper’s assertions were equivocal or outright assertions that a contract could only be made by the Trust Committee. As to part performance, the repairs Steiner made — to fences on the property and to plumbing in the farmhouse — were required under the terms of his lease; therefore, even if he was in fact relying on an understanding that he had secured the contract, these acts are not so indisputably related to the contract sought to be enforced as to take it out of the Statute of Frauds. Finally, the $500.00 check was attached to Steiner’s conditional offer under the provision that

Cashier’s or certified check in amount of $500.00 hereto attached as earnest money deposit to be applied on purchase price or returned to me if this offer is not accepted.

Such a deposit does not indicate an oral agreement such as the partial payment exception was meant to protect.

Steiner asks on appeal that if we find no contract, we should affirm the judgment on promissory estoppel grounds. This Court applied the following definition of promissory estoppel from Restatement (First) of the Law of Contracts, § 90, in Bush v. Bush, 278 Ala. 244, 177 So.2d 568 (1964), and Mazer v. Jackson Insurance Agency, 340 So.2d 770 (Ala.1976):

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Id. at 772-73. We do not find that any actions which Steiner has taken are such that “injustice can be avoided only by enforcement of the promise” which Steiner testified that Harper made.

Nor can Steiner use estoppel as an affirmative device to create a contract where none otherwise exists. As stated in McCarty v. Gant, 248 Ala. 668, 29 So.2d 136 (1947):

Another principle well settled in the law is that, “estoppels . . . are protective only, and are to be invoked as shields and not as offensive weapons, and that their operation should be limited to saving harmless, or making whole, the person in whose favor they arise, and they should never be the instruments of gain or profit.”

Id. at 670-71, 29 So.2d 136 (citations omitted).

2. The fraud count.

The trial court’s decree appears to sound in fraud; the court below found “That by its actions the Defendant had undertaken a duty to the Plaintiff to inform Plaintiff of the size of bid which would be acceptable to purchase the lands.” Based on Merchants’ failure to so inform Steiner, the court issued a decree in Steiner’s favor in the sum of $200,000. We have serious questions whether the amendment to the complaint after the close of evidence to include the fraud count was proper under Rule 15(b), A.R.C.P.: Steiner’s only allegation that fraud was tried by consent was that Merchants and Gulledge failed to object to Steiner’s testimony concerning his conversations with Gulledge. This is a meager development of an unpleaded issue, especially in light of the requirement that fraud be pleaded with particularity. See Caron v. Teagle, 345 So.2d 1331 (Ala.1977). Moreover, the amendment raises questions of the statute of limitations, Code 1975, § 6-2-3, even if it is deemed to relate back to the original complaint. Steiner learned of the alleged fraud early in 1977 but did not file suit until June 27, 1978. The code section cited provides that an action based on fraud may be filed within a year of discovery of the fraud, but Steiner failed to file within this period.

However, because the record does not indicate why the trial court ruled against Merchants on these defenses, we rule not on these issues but on the merits of the alleged fraud itself. We find no evi-dentiary basis for the legal duty imposed upon Merchants by the trial court. Steiner alleges that a confidential relationship arose between him and Merchants. He first asserts that this confidentiality arose because of their landlord-tenant relationship, but this is clearly spurious; any duties between the two as landlord and tenant would not carry over to create extraordinary duties concerning their negotiations as prospective vendor and purchaser.

Steiner asserts further that a duty arose because of the ongoing negotiations between him and Harper. It is true that “Suppression of a material fact which the party is under an obligation to communicate constitutes fraud,” and that “The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” Code 1975, § 6-5-102. We hesitate to affirm a holding, however, that because a seller has dealt with one prospective buyer it cannot solicit higher bids without informing the negotiating party. As Merchants correctly points out, part of its duty in this case was to the beneficiaries of the trust under which it was administering the property. Even if it did make the phone call to Gulledge and inform him of the bid from Steiner, such action—while perhaps questionable—is to some extent consistent with its duty to receive as high a price for the trust as possible.

B. Steiner’s decree against Gulledge.

1. Damages for holding over.

Gulledge claimed damages from Steiner for holding over under Code 1975, §§ 6-6-310 and -314 (unlawful detainer) and § 6-5-212 (bare right of possession). The trial court denied him relief and he appeals.

The evidence is conflicting and confusing as to what sort of arrangement Steiner made with Gulledge to remain on the property (apparently they had an oral lease) and also as to just when Steiner moved off of the property. The critical factor in our consideration is that Gulledge failed to prove that he gave Steiner notice that his lease had expired and that he was to move. Gulledge testified that he mailed such a notice to Steiner, but he did not have a copy of it. When asked whether he sent it by regular or by certified mail, he answered:

A. I do not know.
Q. You just wrote him a plain letter?
A. I believe it was registered.
Q. You don’t have a copy of that registration?
A. No.

Such notice is crucial under the unlawful detainer statute. Zion Star Baptist Church v. Hart, 228 Ala. 24, 152 So. 44 (1934). Although § 6-5-212 provides “damages for the withholding of” the right of possession, we do not consider such right to be withheld until it has been demanded. Because there was conflicting evidence on whether Steiner received notice, we hold that the trial court is due to be affirmed on this count under the ore tenus rule.

2. Loss of income and interest expense.

Gulledge asserts that the delay in closing his sale to Otto Schoen cost him interest on the mortgage he had on the property and lost him income from interest on the $245,-000 profit he made on the sale. This delay was from July 5, 1978 (when the Federal Land Bank approved Mr. Schoen’s loan but refused the loan for the property with the lis pendens notice on record) to January 1979 (when the sale actually closed). Gul-ledge testified that his mortgage was at 8V2 % and that a reasonable return on the profit also would have been 8%%, coming to around $19,000 for both sums for the period.

Relative to Gulledge’s claim, the trial court’s only finding of fact was “That the Third Party Plaintiff/Intervenor Robert R. Gulledge was not damaged in that the Lis Pendens filed by Plaintiff Steiner did not affect the title of Plaintiff/Intervenor Robert R. Gulledge to the lands nor prevent the sale of the land by Third Party Plaintiff/Intervenor.” Although this finding is not supported by the evidence, we affirm the denial of relief because we hold that Gulledge failed to prove a claim for slander of title as a matter of law. If the filing of the lis pendens was proper, the delay caused thereby was not wrongful.

8. Slander of title.

The maintainability of this claim depends upon the basis of the lis pendens notice. The elements of a slander of title action are:

(1) Ownership of the property by plaintiff; (2) falsity of the words published; (3) malice of defendant in publishing the false statements; (4) publication to some person other than the owner; (5) the publication must be in disparagement of plaintiff’s property or the title thereof; and (6) that special damages were the proximate result of such publication (setting them out in detail).

Womack v. McDonald, 219 Ala. 75 at 76-77, 121 So. 57 (1929). Even if we concede some type of falsity in Steiner’s complaint for specific performance, we are unable to find any malice in Steiner’s actions. If a bona fide suit is filed on a colorable claim- to property, no malice can be inferred from failure of the action. “Even though false, if the defendant had probable cause for believing the statement, there can in law be no malice; and, though the fact that there was a want of probable cause for believing the statement is evidence of malice, it is not conclusive of its existence, nor its legal equivalent.” Coffman v. Henderson, 9 Ala.App. 553, 63 So. 808 (1913). See also Harrison v. Mitchell, 391 So.2d 1038 (Ala.Civ.App.1980), and Proctor v. Gissendaner, 579 F.2d 876, supplemented 587 F.2d 182 (5th Cir.1978). The record is devoid of any evidence of malice on Steiner’s part.

The fact that the alleged slander took the form of a lis pendens notice further undercuts Gulledge’s claim. Code 1975, § 35-4-131(a):

When any civil action or proceeding shall be brought in any court to enforce any lien upon, right to or interest in, or to recover any land . . ., the person . . . commencing such action or proceeding .. . shall file with the judge of probate of each county where the land or any part thereof is situated [a lis pendens notice].

(Emphasis added). The mandatory nature of this section requires that any wrong committed by Steiner would have to be in filing his suit, not in filing the lis pendens notice. Both the lack of malice discussed above and the fact that the trial court held in Steiner’s favor eliminate the possibility that Gulledge could recover.

The judgment of the trial court is reversed as to the claim against Merchants and affirmed as to Gulledge’s counterclaim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


source: Caselaw Access Project

author: ADAMS, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    ALABAMA POWER COMPANY, A Corporation v. Barbara A. ROBINSON, who sues as Administratrix of the Estate of Thomas Gene Robinson, Deceased.

      79-795.

    Supreme Court of Alabama.
    Sept. 4, 1981.
    William 0. Walton, Jr., Lafayette, and Harold A. Bowron, Jr., of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    John W. Johnson, Jr., Lanett, and R. C. Wallace, Jr., LaFayette, for appellee.
   ADAMS, Justice.

This appeal comes to us from, the Circuit Court for Chambers County. Barbara A. Robinson, as administratrix of the estate of Thomas Gene Robinson, brought a wrongful death action against Alabama Power Company, Cora Smith, and the estate of Robert L. Smith, because of the electrocution of Thomas Gene Robinson. The case was tried before a jury, which returned a verdict for all defendants. Plaintiff moved for a new trial on numerous grounds, including the ground that -the trial court erred in charging the jury on the duty owed by Alabama Power Company. On that ground the trial court granted plaintiff a new trial as to Alabama Power Company. Appellant asks our review of the propriety of the trial court’s action in granting plaintiff a new trial. Additionally, Alabama Power Company contends that the trial court erred by not granting its motion for a directed verdict.

The resolution of two issues is dispositive of this appeal. The first is did the trial court err in granting plaintiff a new trial in holding that it erroneously charged the jury on the duty owed by Alabama Power Company (defendant) in maintaining its power lines? The second issue is, did the trial court err in denying defendant’s motion for a directed verdict? We answer the questions posed by both issues in the negative and thereby affirm the judgment of the trial court.

Thomas Gene Robinson (Robinson) was electrocuted along with Robert L. Smith (Smith) on April 10, 1975, at the Smiths’ residence. The accident occurred while Robinson was helping take down a 36-foot antenna that was to be repaired. Testimony indicated that both he and Smith discussed and recognized the danger of electrocution if, during its removal, the antenna came into contact with a series of defendant’s power lines that ran parallel, along Smith Street to the Smith house. One of those lines carried 7200 volts. Another series of defendant’s lines supplied electricity to the Smith home. This series consisted of a 110 — volt three wire service drop. There was testimony that the service drop lines were covered with a weatherproofing which gave the appearance, but not the full protection, of insulation. From the record it does not appear that Robinson was aware of the uninsulated nature of the 110-volt lines.

Roger Noles also was present at the scene of the accident and assisted in taking down the antenna. Smith, Noles, and Robinson decided to “walk down” the antenna, rather than dismantle it. Noles climbed to the roof of the Smith house and loosened a clasp securing the antenna, but retained a hold on it. Smith remained on the ground to hold the antenna. When Noles loosened the clasp, Smith called for assistance. Robinson came to his aid and helped hold the antenna. Noles then released his hold, leaving Smith and Robinson holding the antenna. Next, the antenna came into contact with one or more of defendant’s power lines, resulting in the electrocution of Robinson and Smith.

Defendant argues that the trial court erred by granting plaintiff’s motion for a new trial. Defendant contends that the trial court’s charge was not prejudicial to the plaintiff, but if the charge was given in error, it erred in favor of the plaintiff. The trial court’s charge to the jury explaining the duty owed by Alabama Power Company was as follows:

What are the duties owed in this case by these Defendants? What is the duty owed by Alabama Power Company in this case? The Alabama Power Company is under a duty to conduct and operate its electric utility business in a reasonably safe and prudent manner so as to avoid unreasonable risks and dangers to its customers and to the public. The Power Company in this case was under a duty to use and follow the various operating and engineering practices which were at the time of this accident generally recognized and accepted as safe and prudent under the same or similar circumstances by electric utility companies throughout the country. So at the time of the accident in question that was the duty owed by the Power Company. [Emphasis added.]

We are of the opinion that the trial court’s charge had the effect of establishing industry standards as the duty owed by Alabama Power Company. That was error. The case of Alabama Power Co. v. Bryant, 226 Ala. 251, 146 So. 602 (1933), involved a situation where plaintiff’s intestate was killed when lightning or atmospheric electricity was conducted over Alabama Power’s service line into plaintiff’s home. There, Alabama Power contended that because it used devices and safeguards generally used by other well regulated enterprises, it had established its due care as a matter of law. Justice Foster, on rehearing, speaking for the court rejected that argument.

[I]f the conduct pursued or the methods adopted in the particular case do not measure up to the ordinary care which would be exercised by a prudent person under the circumstances, negligence may be found to exist notwithstanding such conduct or methods were in accordance with those customarily pursued or adopted. The reason is that the usual mode of doing a particular thing may involve a lack of proper care, and usage cannot avail to establish as safe in law that which is dangerous in fact, nor may a lack of due care be excused because of the fact that carelessness is customary at the place at which, or in connection with the occupation or undertaking in which, the injury occurred. So also, the circumstances of a particular situation may be such as to call for more vigilance and caution than might ordinarily be regarded as sufficient.
What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.

Alabama Power Co. v. Bryant, at 256, 146 So. 602.

The defendant argues that if there was error in the trial court’s charge, it was error in favor of the plaintiff because Alabama Power was held to a higher standard of care or duty than was required. Alabama power contends that the trial court held it to the duty of an insurer when the jury was charged that Alabama Power was required to use and follow the operating ahd engineering practices that were recognized as “safe and prudent.” The defendant is correct in its assertion that a party who receives a more favorable charge than he is due cannot make the giving of that charge the ground for a new trial. Pound v. Gaulding, 237 Ala. 387, 187 So. 468 (1939). However, we disagree with defendant’s interpretation of the charge. Read in its entirety, the above-quoted charge clearly establishes the industry standards as the duty owed by Alabama Power. This was prejudicial error.

Normally, when a charge is misleading, abstract, or incomplete, the entire instruction to the jury is viewed as a whole to determine if error was committed. Price v. Jacobs, 387 So.2d 172 (Ala.1980); Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384 (Ala.1979); Underwriters National Assurance Company, 333 So.2d 815 (Ala.1976); Alabama Power Company v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975). The instant case, however, does not fall within the above rule. We are of the opinion that by equating the industry standards with defendant’s duty, the trial court’s charge was prejudicially erroneous such that it could not be cured by other proper charges within the instruction. We, therefore, look only to the charge, rather than the instruction as a whole, in determining and holding that plaintiff is entitled to a new trial as to Alabama Power Company. Taylor v. Owen, 294 Ala. 543, 319 So.2d 672 (1975); Harris v. Schmaeling, 270 Ala. 547, 120 So.2d 731 (1960). The action of the trial court granting the new trial was, therefore, proper.

We next examine defendant’s argument that the trial court erred in not granting its motion for a directed verdict. Our standard of review of a ruling on a request for a directed verdict is clearly defined:

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party“ requesting the directed verdict, the directed verdict is properly refused.

Alford v. City of Gadsden, 349 So.2d 1132, at 1135 (Ala.1979); Alabama Power Company v. Taylor, supra. With the above quoted principles in mind, we consider defendant’s position.

The defendant contends the evidence showed that Robinson was electrocuted when the antenna struck the 7200-volt power line. Various theories are asserted by the defendant as to why the court should have granted its motion. Defendant theorizes that the danger posed by the 7200-volt line was open and obvious and, therefore, it owed no duty to Robinson. Defendant maintains also that Robinson was eontribu-torily negligent, thereby barring recovery against the defendant. These issues we need not consider because we find defendant’s main premise to be unfounded. Our review of the record leads us to conclude that the evidence also would support a reasonable inference that the antenna first came into contact with defendant’s 110-volt lines, thereby electrocuting Robinson before contact was made with the 7200-volt line. A motion for a directed verdict is granted properly only where

[T]he facts are such that all reasonable men must draw the same conclusion from them.... Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. . . .

Turner v. Peoples Bank of Pell City, 378 So.2d 706, at 709 (Ala.1979); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978). The trial court, therefore, properly denied defendant’s motion for a directed verdict. We find no error in the trial court’s granting plaintiff’s motion for new trial and denying defendant’s motion for directed verdict. This case is, therefore, affirmed.

AFFIRMED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

This appeal concerns the propriety of the trial court’s granting a new trial as a result of an error in charging the jury. The granting or denying of a motion for a new trial rests largely in the discretion of the trial judge and his decision is presumed to be correct on appeal. Hubbard Bros. Construction Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975); Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); American Service Mutual Insurance Co. v. Grizzard, 356 So.2d 191 (Ala.Civ. App.1978). The law in Alabama states that an incorrect charge or even a misleading charge to the jury may be the basis for the granting of a new trial. If a motion for a new trial is granted, it will not be overturned on appeal. Montgomery City Lines, Inc. v. Scott, 248 Ala. 27, 26 So.2d 200 (1946); Proctor v. Coffey, 227 Ala. 318, 149 So. 838 (1933).

In my opinion, the issue of whether this charge to the jury was misleading and prejudicial to the plaintiff is an extremely close question. When viewed from the standpoint of a lay person serving as a juror, I would find it somewhat difficult to clearly understand the distinction between the charge as given and this Court’s statement of the applicable law in Alabama Power Co. v. Bryant, 226 Ala. 251, 146 So. 602 (1933). However, it is the trial judge who is in the best position to determine whether the erroneous charge misled the jury. If this trial judge had overruled the motion for new trial, I would have affirmed that decision. I concur to affirm here only because of my deference to the wisdom and judgment of the trial judge.


author:
BEATTY, Justice.
      TORBERT, Chief Justice JONES, Justice

text:
    MOBILE DODGE, INC., a Corporation v. Patricia WATERS.
    79-890.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Mylan R. Engel and Cynthia A. Cargile of Engel & Smith, Mobile, for appellant.
    E. Graham Gibbons of Perloff, Reid & Gibbons, Mobile, for appellee.
   BEATTY, Justice.

The defendant, Mobile Dodge, Inc., appeals from a judgment on a jury verdict finding it liable for intentional fraud and from the denial of its motion for new trial. We affirm conditionally.

The plaintiff, Patricia Waters, filed suit against Mobile Dodge in the Circuit Court of Mobile County claiming that she was intentionally defrauded by Mobile Dodge when it sold her a 1977 Dodge Van and misrepresented it as a 1978 model.

The 1977 van arrived at Mobile Dodge from the Chrysler plant on February 2, 1978, along with three 1978 vans. The stockboy in charge of logging in the vans mistakenly listed the van as a 1978 model on the sticker. He testified that there is little or no difference in the appearance of 1977 and 1978 vans and he admitted making the mistake. He testified that he placed the erroneous sticker on the van. himself. The salesman who sold Mrs. Waters the van testified that he relied on the sticker in selling the van and admitted that he told Mrs. Waters that it was a 1978 van since he believed that it was a 1978. The salesman filled out the buyer’s order form and odometer form, both of which show the van to be a 1978 model. Based upon those forms, the insurance binder also shows the van to be a 1978 model. The written warranties and the emission control information, however, reveal the van to be a 1977. Also, the manufacturer’s certificate of origin shows the van to be a 1977. The finance manager in the office of Mobile Dodge uses the manufacturer’s certificate of origin when filling in the bill of sale, the application for title (which was signed by Mrs. Waters) and other papers. These papers, then, correctly show the van to be a 1977. In addition, the motor vehicle registration and tax receipt from the License Commissioner of Mobile County reflect that the van was a 1977 model, since that office uses the information from the application for title.

Mrs. Waters did not discover the problem until a month and a half after she purchased the van when she received the certificate of title in the mail. It correctly showed the van to be a 1977. She contacted Mobile Dodge and an agent for the corporation offered to swap her 1977 van for a 1978 van of the same specifications. Mrs. Waters filed suit later that month. She sought compensatory and punitive damages. The jury returned a verdict for Mrs. Waters for $17,700.00. After its motions for judgment notwithstanding the verdict or, in the alternative, a new trial were denied, Mobile Dodge appealed.

Mobile Dodge contends that the evidence is not supportive of any verdict and judgment against it or, in the alternative, that the evidence presented to the jury cannot support an award of punitive damages. We agree with the contention as it relates to punitive damages.

Initially, we note that a jury’s verdict is presumed to be correct, and will not. be set aside as excessive, unless the amount is so great as to plainly indicate that it was the result of passion, bias, prejudice or improper motive. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, Ala., 394 So.2d 912, 915 (1981). This presumption, as to the correctness of jury verdicts, is strengthened when the trial judge refuses to grant a motion for new trial. S. S. Kresge Co. v. Ruby, Ala., 348 So.2d 484, 488 (1977). An appellate court will, however, revise a jury’s verdict or judge’s findings if it is “convinced by a preponderance of the evidence that the verdict is wrong and unjust.” Palmer v. Palmer, Ala., 390 So.2d 1050, 1052 (1980).

To reverse a trial court, then, an appellate court must be convinced that the verdict and judgment are contrary to the preponderance of credible evidence and are, therefore, palpably wrong and manifestly unjust.

I. INTENTIONAL FRAUD

The jury, by finding Mobile Dodge liable for intentional fraud, must have found that there was a misrepresentation of a material fact made willfully to deceive and that Mrs. Waters relied upon that fact to her detriment. Code of 1975, § 6-5-101. The record clearly reflects that whether the van in question was a 1977 or 1978 model was a material fact and that Mrs. Waters purchased the van believing it to be a 1978 model. The jury resolved the factual dispute of whether the misrepresentation was intentional in favor of Mrs. Waters and we will not disturb that finding. As a result, Mrs. Waters is entitled to recover the difference in value between a 1977 and a 1978 van.

II. PUNITIVE DAMAGES

The jury awarded $17,700.00 to Mrs. Waters. According to the evidence the difference in the average retail price between a 1977 van and a 1978 van is approximately $1,000.00. Thus, a substantial portion of the award encompasses punitive damages.

Three essential elements must be found in order to support an award of punitive damages. The first two elements are the same as those comprising intentional fraud; namely, a material misrepresentation made knowingly and falsely and reliance thereon by the injured party. The third element, which is the crucial and dis-positive one regarding this appeal, is that the fraud must be gross, malicious, oppressive and committed with the intent to injure. Huntsville Dodge, Inc. v. Furnas, Ala.Civ.App., 361 So.2d 585, 589 (1978); Proctor Agency, Inc. v. Anderson, Ala., 358 So.2d 164, 165 (1978).

Although there may be enough evidence in any given case to find fraud, as legally defined, that finding is not sufficient, in and of itself, to support an assessment of punitive damages against the offending party. To uphold the verdict against a motion for new trial the evidence, and the inferences which may be drawn therefrom, must show that the fraud was gross, oppressive or aggravated. Randell v. Banzhoff, Ala., 375 So.2d 445, 448 (1979). This rule has been followed by our courts in numerous cases involving misrepresentations in the sale of motor vehicles. See, e. g., Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970); Harrelson v. Gowin, Ala.Civ.App., 348 So.2d 789 (1979); Shafer Chevrolet v. Hires, Ala.Civ.App., 347 So.2d 1358 (1975). In each of these cases the plaintiff was allowed to recover only actual damages for the misrepresentation made in the sale of the automobile. Punitive damages were not allowed, for there was no showing that the misrepresentation was gross, malicious, oppressive and made with the intent to deceive.

The determination of whether the misrepresentation is malicious so as to authorize the award of punitive damages is dependent upon the facts of the particular case. A comparison of the facts in this case with those in Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, Ala., 394 So.2d 912 (1981), helps to illustrate the degree of fraud necessary to warrant punitive damages. In Crews, the jury awarded $30,-000.00 in compensatory and punitive damages to a plaintiff who was sold a six cylinder automobile which she believed to be an eight cylinder. The verdict in that case was held not to be excessive. The evidence supporting a finding of intentional fraud and an authorization for awarding punitive damages, however, was stronger in Crews than the evidence presented in the instant case. The plaintiff in Crews had repeatedly requested an eight cylinder car. After telling the plaintiff that the car in question was an eight cylinder, the dealer himself typed the number “8” in the space on the application for title for the number of cylinders. That active misrepresentation by the dealer at the time of the sale clearly indicated gross and malicious fraud with an intent to deceive. In the case at bar, however, it was the stockboy, not the dealer who made the initial incorrect listing of the van. And although the jury could have inferred fraud from the acts which followed, there is not evidence of any malice involved at the time of the sale. Thus, without such malice or oppressiveness, an award of punitive damages was not warranted.

The evidence in this case supports an award of compensatory damages only. We, therefore, require a remittitur of $16,700.00 of the damages as a condition to an affirmance of the order denying defendant’s motion for a new trial. In the event the appellee declines to file the required remit-titur with the clerk of this Court within twenty-one days from the date of this opinion, the judgment will be reversed and the cause remanded for a new trial. Otherwise the judgment as corrected on remittitur will be affirmed.

AFFIRMED CONDITIONALLY.

MADDOX and SHORES, JJ., concur.

TORBERT, C.J., and JONES, J., concur specially.

TORBERT, Chief Justice

.(concurring specially).

I concur with the statement in the main opinion as to the applicable rule of law respecting the three essential elements necessary to sustain an award for punitive damages. A finding that fraud was-“knowingly” or “intentionally” committed, without more, is not sufficient to sustain an award of punitive damages. In addition to a finding of intentional fraud, the rule is that punitive damages may not be recovered unless the fraud be gross, malicious, oppressive, and committed with intent to injure. Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); Proctor Agency, Inc. v. Anderson, 358 So.2d 164 (Ala.1978); United States Fidelity and Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978).

However, some of our cases have not been entirely clear on this point. In Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970), we find the following statement of the Court by way of dictum:

If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly.

Hall Motor Co. v. Furman, 285 Ala. at 504, 234 So.2d 37.

This statement has been recently cited with authority in Randell v. Banzhoff, 375 So.2d 445 (Ala.1979), and in Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1981), the former by direct quote from Hall Motor Co., and the latter case as follows:

Once an intent to deceive has been established it is difficult to see but that a fraud was committed grossly.

Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d at 814.

The main opinion in this case, with which I concur, should settle the law now. A person can commit a fraud “knowingly,” but lacking the intention to injure and defraud. Also, one can commit a fraud “knowingly,” but without grossness, maliciousness, or oppressiveness. Each case, reviewed on appeal by this Court, is depend- • ent upon an analysis of the- pertinent facts, i. e., the evidence admitted and the reasonable inferences drawn therefrom.

Having agreed as to the law, I disagree with the conclusion that the jury could have properly found that the alleged fraud was “intentional.” Under the undisputed evidence in this case, and as summarized in the main opinion, the only actionable fact which could have constituted fraud was the error of the stockboy in placing a sticker on the van indicating it to be a 1978 model rather than a 1977 model. There was no contact between the stockboy and the plaintiff. The salesman relied on the sticker in his negotiations with plaintiff, and filled out a buyer’s order form and the odometer form relying on the sticker. However, other employees of the defendant, using the manufacturer’s certificate of origin and other sale documents, prepared the bill of sale and the application for certificate of title (and other documents), which correctly described the van as a 1977 model.

There is simply no evidence of an “intentional” fraud. I would hold as a matter of law that this misrepresentation was made by mistake and innocently, but, being acted on by the opposite party, constituted legal fraud. See, Code 1975, § 6-5-101. Legal and not “intentional” fraud having been committed, plaintiff was entitled to compensatory damages only.

JONES, Justice

(concurring specially).

I concur specially in order to emphasize, and hopefully to clarify, the burden of proof with respect to punitive damages pursuant to Code 1975, § 6-5-103.

Bad faith, the gravamen of this action, means fraudulent intent; and punitive damages will lie where one is in fact injured by the tort of willful deceit of another who intends by his conduct to injure. The language of the cases to the effect that punitive damages may not be awarded unless the conduct is “gross,” “oppressive,” and “committed with the intent to deceive,” is not to be interpreted as requiring two separate elements — intent to deceive coupled with malice and oppressiveness. These descriptive terms assist the fact finder in its determination of whether the alleged culpable conduct measures up to the statutory requisite element of “intent to deceive.” When the trier of fact has sufficient evidence from which to reasonably infer gross, oppressive and malicious commission of the fraud, it likewise has sufficient evidence to support a finding of willful misrepresentation of a material fact made with the intent to induce another to act to his injury. As the Court of Civil Appeals, per Judge Holmes, said in Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App. 1980):

“In an action for fraud an award of punitive damages may be based upon a showing of entitlement to nominal damages. Old Southern Life Insurance Co. v. Woodall, Ala., 348 So.2d 1377 (1977); Shaffer v. Timmons [51 Ala.App. 157, 283 So.2d 609] supra; Maring-Crawford Motor Co. v. Smith [285 Ala. 477, 233 So.2d 484] supra. Punitive damages, in the jury’s discretion, may be awarded if there is evidence from which the jury can conclude that the fraud was malicious, oppressive or gross and the representations .were made intentionally and with the knowledge of their falsity. Spartan Pools v. Royal, Ala., 386 So.2d 421 (1980); Royal Chevrolet Co. v. Kirkwood, Ala.Civ. App., 373 So.2d 858 (1979). The primary constituent of gross, malicious, and oppressive fraud is the intention to injure and deceive. Universal Brokers, Inc. v. Higdon, Ala.Civ.App. [56 Ala.App. 184] 320 So.2d 690 (1975). Put another way, if the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly. Spartan Pools v. Royal, supra; Randell v. Banzhoff, Ala., 375 So.2d 445 (1979); Hall Motor Co. v. Furman, 285 Ala. 499, 235 So.2d 37 (1970).”

Indeed a party may be exceedingly nice (even a perfect gentleman) in his conduct toward the party defrauded and possess all of the malice and oppressiveness contemplated under our willful deceit statute. Conduct which rises to the level of affording a cause of action under § 6-5-103 necessarily rises to the level of conduct authorizing punitive damages. The gravity and enormity of that conduct (that is, the extent and degree of its grossness, maliciousness and oppressiveness) is the test by which the factfinder exercises its prerogative to award punitive damages and the yardstick for its measurement of the amount of the award.

The instant case falls short of one authorizing punitive damages, not because the intent to deceive is unaccompanied by gross and oppressive conduct, but because of the absence of another essential statutory element — “a knowledge of the falsehood.” Although a fact is misrepresented, it will not support an action for willful deceit unless made with knowledge of its falsity; and such knowledge, as statutorily defined, must be coupled with an intent to deceive.

I concur with the majority that the Plaintiff in the instant case is not entitled to punitive damages. I understand fully why she felt that she had been tricked and made a victim of a willful scheme. The totality of the evidence, however, overwhelmingly supports the contrary conclusion. Once the stockboy made the initial error by tagging the van as a 1978 model, the next series of acts by the Defendant in the sale of the van to the Plaintiff fell naturally into the same erroneous pattern. When the in-office records were used by the company personnel in drafting the sales papers and the certificate of title application, the correct model number was used consistently. On the Plaintiff’s initial contact with the Defendant following the sale, the Defendant immediately offered to substitute a 1978 model van for the 1977 model. While it may be said that none of these facts conclusively proves the absence of fraudulent intent, their weight and preponderance overwhelmingly bespeak of inadvertence, mistake and innocent error. Given the element of willful misrepresentation with knowledge of its falsity (i. e., fraudulent intent), the remaining requisite .elements warranting punitive damages flow naturally from the facts of this case.

A simple hypothesis, only slightly different from the instant facts, will illustrate the point: Suppose a car salesman had affirmatively represented a 1977 model vehicle as a 1978 model, sold it to a plaintiff as a 1978 model, and then sought to defend on the basis that a previous owner, who traded it in on another vehicle, had represented to the retailer that it was a 1978 model. In other words, the seller defends a willful deceit claim on the grounds of lack of knowledge of the falsity of its representation. Under the facts as hypothesized, such a defense overlooks the last sentence of § 6-5-103:

“A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended tó deceive, is equivalent to a knowledge of the falsehood.”

The retailer’s superior knowledge and easy access to the facts cannot excuse its ignorance of the truth, and the' factfinder would be justified in concluding from the hypothesized evidence that all of the elements of willful deceit, as statutorily defined, existed and that punitive damages were warranted. While the factual difference between the instant case and the one here hypothesized is slight, it is a material difference to the point of authorizing punitive damages in the one and not in the other.

The element of the knowledge of the falsity includes not only misrepresentations made with actual knowledge but also those misrepresentations made recklessly without knowledge. Shiloh Const. Co., Inc. v. Mercury Const. Corp., 392 So.2d 809 (Ala.1980). In the instant case the evidence will not support a finding of knowledge of either species. In the hypothesized case, however, the evidence would clearly support a finding of a misrepresentation so recklessly made as to be tantamount to a material misrepresentation made with the intent to deceive the other party, and, if the other party relies thereon to his detriment, punitive damages may be awarded.

      . Such a defense, if valid, would defeat a claim for punitive damages under § 6-5-103, but would not preclude recovery of actual or compensatory damages under § 6-5-100.


author: TORBERT, Chief Justice.

text:
    Ralph P. HOLLIYAN v. H. Jean GAYLE, et al.
    80-184.
    Supreme Court of Alabama.
    Sept. 4, 1981.

      J. William Thomason of Thomason & Russell, Bessemer, and Curtis Gordan, Birmingham, for appellant.
    William H. Mills of Redden, Mills & Clark, Birmingham, for appellees Gayle, Hudson, Hughes, Jett, Sharritt and Swindle.
    James R. Clifton of Stone, Patton & Kierce, Bessemer, for appellees Henry P. Johnston, James B. Johnson and Hiram Y. McKinney, as Members of the Personnel Board of Jefferson County, Alabama.
   TORBERT, Chief Justice.

On November 5, 1976, Ralph Holliyan was employed by the City of Warrior Police Department as a radio dispatcher. On February 21, 1977, the Warrior City Council hired Holliyan as a police officer on a temporary basis and on April 22, 1977, the Warrior City Council adopted a motion to enroll Holliyan in the Police Academy Rookie School, thus recognizing him as a member of the City of Warrior Police Department.

On December 2, 1977, Holliyan was suspended by the Mayor of Warrior, H. Jean Gayle. The mayor and city council discharged Holliyan for neglect of duty on December 19, 1977. Holliyan had a full hearing before the city council and was represented by counsel. The discharge resulted from two incidents concerning Holli-yan’s indiscretion in (1) using a patrol car to transport an individual from and to points outside the city of Warrior and (2) failing to document the taking into custody and subsequent release of an individual suspected of driving while intoxicated.

Holliyan sought a hearing before the Jefferson County Personnel Board in order to appeal the decision by the Mayor and City Council of Warrior. The personnel board refused a hearing on the grounds that Hol-liyan was not a permanent tenured employee. Permanent employees were those employed in a tenured position twelve months or more. Permanent tenured employees were entitled to a hearing before the personnel board prior to any termination, which must be for cause. The position of police officer was a tenured position pursuant to Code 1975, §§ 11-43-180 through —190. The position of radio dispatcher was not a tenured position under the statute. Holliyan filed suit against Mayor Gayle, the Warrior City Council and the Jefferson County Personnel Board, contending that (1) he was entitled to a hearing before the personnel board because he was employed by the City of Warrior for more than twelve months, and (2) he was fired for exercising his first amendment rights. The trial judge granted a summary judgment in the defendants’ favor.

Holliyan sets forth several bases for his claim that he was a law enforcement officer and thus a permanent tenured employee within the meaning of the rules promulgated by the personnel board. The merit system under which Holliyan seeks to be classified was created for the purpose of “governing the appointment, removal, tenure and official conduct of municipal law-enforcement officers.” [Emphasis added.] Code 1975, § 11 — 43-182. The term “law enforcement officer” is defined in Code 1975, §§ 11-43-181, as:

[A] policeman, policewoman and other official who hits authority to make arrests and who is employed by any municipality in the state as a permanent and regular employee for and subject to law enforcement duties. [Emphasis added.]

Initially, Holliyan claims that, because one of his duties as radio dispatcher was to handle prisoners in the Warrior City Jail, he was a law enforcement officer as defined in the statute. Thus, according to Holliyan, he was a tenured employee, as he was a law enforcement officer for more than twelve months. The statute, however, includes in its definition of “law enforcement officer” the requirement that the individual must have the authority to make arrests. While private persons are sometimes authorized to make arrests, see, Code 1975, § 15-10-7; Morgan v. Hope, 371 So.2d 416 (Ala.1979), a law enforcement officer is authorized by a governing body, be it the state, a county, or a municipality, to make arrests when private citizens cannot. See, Code 1975, §§ 15-10-1 through —4. Mayor Gayle testified in deposition that Holliyan, while employed as a radio dispatcher, did not have the authority of a police officer to make arrests. Since Holliyan offered no evidence to the contrary, the fact was not in dispute on summary judgment. Holliyan clearly cannot base his claim to tenured employment on his belief that he had worked in a tenured position, as a “law enforcement officer,” for more than one year.

Next, Holliyan contends that he was a tenured employee entitled to a hearing before the personnel board because the board exercised its discretion to bestow tenured status on him when it executed a personnel action form on which the box marked “permanent” was checked in the section of the form entitled “status.” This contention is without merit. Exercise of discretion cannot be premised on a mere clerical error, and it is not disputed that a clerical error occurred. When the personnel board learned of the designation of “permanent” on Holliyan’s personnel action form, it immediately corrected the form. Rights are not bestowed or withdrawn by mere inattention on the part of the personnel board. The very term “exercise of discretion” connotes a voluntary act, and there is no evidence here of such a voluntary act. Movants showed as a matter of law that the checking of the box marked “permanent” was a clerical error. Therefore, something more must be shown before we may conclude that the personnel board exercised its discretion to grant permanent status to Holliyan.

Finally, we consider Holliyan’s first amendment claim. This claim is premised on the facts that: (1) Holliyan was a friend and political supporter of James R. Hughes and Frances A. Sharritt, Warrior city councilmen and political opponents of Mayor Jean Gayle; (2) Holliyan was a friend of Butch Lawless, a deputy sheriff who had publicly criticized Gayle and who had politically supported Hughes and Sharritt; (3) Mayor Gayle had criticized Lawless for “meeting” with Hughes and Sharritt; (4) Lawless and one of the councilmen were listed as references on Holliyan’s original application for employment; (5) Holliyan was a member of Lodge Number 59 of the Fraternal Order of Police, and he had once heard a third party state that Warrior Chief of Police McMahon “didn’t have any use” for that organization.

Holliyan contends that he was fired for the above stated reasons in violation of his first amendment freedom of association. In order to successfully challenge a discharge from employment on first amendment grounds, the burden of proof is on the employee to establish that suppression of the constitutionally protected right was a “substantial factor” or was a “motivating factor” in the decision to terminate his or her employment. Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Abston v. Woodard, 398 So.2d 237 (Ala.1981). Holliyan has offered no evidence that the previously stated facts constituted a factor in the city council’s decision to fire him. To the contrary, the very individuals he associated with were members of the city council that discharged him. Furthermore, he has failed to show that the council members had any knowledge whatsoever of the facts he has set forth. On the other hand, Mayor Gayle testified that he had no bad or wrong motive in recommending that Holliyan be fired. Although the burden of proof on motion for summary judgment is on the movant to show that there is lacking any genuine issue of a material fact, once a prima facie showing of that is made, it then becomes the responsibility of the opposing party to produce evidence to the contrary. Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980); Worley v. Worley, 388 So.2d 502 (Ala.1980); Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). If the party opposing the motion for summary judgment fails to produce evidence that a genuine issue of material fact exists, the court is left with no recourse but to conclude that no genuine issue of material fact exists. Rushton v. Shugart, 369 So.2d 11 (Ala.1979); Mims v. Louisville Title Insurance Co., 358 So.2d 1028 (Ala.1978); Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (Ala.1976). The issue in the case before us is whether Holliyan’s exercise of his first amendment right of association was a substantial or motivating factor in the decision to terminate his employment. While Holliyan offered evidence that he exercised his right to free association, he offered no evidence that the exercise of the right played any part in his termination. The undisputed facts prove the contrary. At the hearing before the city council, no mention was made of his membership in the F.O.P. or of his friendship with Sharritt and Hughes. In fact, Sharritt and Hughes are members of the city council that voted to fire Holliyan. All the friction between Mayor Gayle and Hughes and Sharritt occurred before Holli-yan was hired by the City of Warrior. Finally, the only animosity toward the F.O.P. that Holliyan had even heard about was on the part of Chief McMahon, who played no part in Holliyan’s termination. Furthermore, the evidence consisted of hearsay in the manner of “somebody told me one time that . . .. ” Such evidence clearly cannot overcome a motion for summary judgment.

Holliyan was fired after a full hearing at which he was represented by counsel and was allowed to call witnesses and to cross-examine those called by the City. Surely, due process has been provided. See, Floyd v. Alabama Historical Commission, 388 So.2d 182 (Ala.1980).

Since Holliyan has failed to offer even a scintilla of evidence that he was a law enforcement officer tenured by the Jefferson County Personnel Board or that he was discharged for exercising his first amendment right of free association, he is not entitled to the relief sought, and the summary judgment in favor of the defendants was properly granted.

AFFIRMED.

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

MADDOX, J., dissents.

FAULKNER and ALMON, JJ., not sitting.


author: EMBRY, Justice.

text:
    CENTRAL BANK OF ALABAMA, N. A. v. Mac R. GILLESPIE and Pat A. Gillespie. Mac R. GILLESPIE and Pat A. Gillespie v. CENTRAL BANK OF ALABAMA, N. A.
    79-666, 79-759.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      William E. Shinn, Jr. of Harris, Harris, Shinn & Harris, Decatur, for appellants in case No. 79-666 and appellees in case No. 79-759.
    Kenneth Shelton, Decatur, for appellants in case No. 79-759 and appellees in case No. 79-759.
   EMBRY, Justice.

These appeals, in essence an appeal and cross-appeal, arise out of the judgment entered in five cases that were consolidated for trial. A preliminary sketch of the factual background of the five cases is necessary as a prerequisite to understanding these appeals.

Mac R. and Pat A. Gillespie owned a 4.1 acre tract of land which they deeded to James Moore & Sons Builders, Inc., under a contract with Moore Builders for the construction of a house on the Gillespies’ tract of land for the sum of $46,000. The deed contained a provision that the property be conveyed back to the Gillespies by warranty deed upon the completion of construction of the house and payment of the cash due at closing in accordance with a written contract between the Gillespies and Moore Builders. The provision in that deed reads as follows:

The property herein conveyed is to be conveyed back to the Grantors by warranty deed upon completion of the construction of the house on said property by the Grantee, and upon payment by the Grantors of the cash due at closing, in accordance with the terms and provisions of the “Uniform Real Estate Sales Contract” entered into by the Grantors and Grantee on January 16, 1978.
To have and to hold unto the said Grantee, its successors and assigns, subject to the aforesaid agreement.

It was recorded the next day and the contract was recorded later.

Moore Builders mortgaged the property to Central Bank of Alabama, N.A., as security for a $40,000 construction loan, the entire proceeds of which it drew from the bank. When the house was substantially completed, the Gillespies moved in. Moore Builders failed to pay some $26,000 in bills for materials, fixtures or work used in construction of the house. Because the amount of these bills and the principal and interest due on the bank’s construction loan exceeded a $46,000 permanent loan commitment the Gillespies had secured, they were unable to close the permanent loan.

Moore Builders and its principal officer, Charles Phillip Smith, were later adjudicated bankrupt.

Four of the actions were filed by those seeking to establish and to enforce mechanics’ and materialmen’s liens against the Gil-lespies’ property. The bank and the Gilles-pies were named as defendants. The fifth action was the Gillespies’, seeking an adjudication of their interest in the property and damages against Charles Smith, President of Moore Builders, Moore Builders, and Central Bank of Alabama, N. A. The Gil-lespies sought damages against Smith, Moore Builders and the Bank on the bases that: (1) they had undertaken a joint venture in the construction of the house; (2) the Bank undertook to oversee that proper application of the proceeds of the loan to Moore Builders was made but negligently failed to discharge this duty, thereby damaging the Gillespies; and (3) the Gillespies were entitled to a lien for money spent by them in completing and preserving the house.

Central Bank sought to have the trial court find it had a good and valid mortgage on the property; enter judgment against Moore Builders for the debt secured by that mortgage; declare the Bank’s interest superior and prior to other claims; and to foreclose the mortgage by judicial decree.

The cases consolidated for trial, as noted earlier, were tried in two segments. A jury was empaneled to try the Gillespies’ action against the Bank, Moore Builders and Smith, and to try factual issues in the other eases. Judgment was entered on a jury verdict against the Bank for damages on the theory the Bank was a joint venturer in the project. The trial court established six materialmen’s liens; established a lien on the property in favor of the Gillespies to be on a parity with the other materialmen’s liens; entered judgment in favor of the Bank for the mortgage debt plus interest; found the Gillespies had a homestead interest in the property and ordered that it be sold and distribution of the proceeds be made according to the following priority: (1) The Gillespies’ homestead interest; (2) the Bank’s mortgage debt; (3) the Gilles-pies’ and other materialmen’s liens on a pro rata basis.

The Bank appeals on the bases that it should not be treated as a joint venturer and the Gillespies should not have a homestead interest in the property.

The Gillespies appeal on the bases that they were entitled to regain full and complete title upon payment of $46,000; the materialmen’s liens attached only to Moore Builders’ interest in the property, not the Gillespies’, and the Bank’s mortgage, as a joint venture asset, was subject to satisfaction of the other liens. We will consider these issues in the order listed above.

The Gillespies’ joint venturer theory rests on such matters as: rights to inspect the construction reserved by the Bank in its preprinted loan agreement; undercapitali-zation of Moore Builders; and the relationship between Smith and the Bank for the purpose of obtaining construction financing for Moore Builders. The Bank countered this theory tactically by motion for directed verdict, written requested instructions to the jury, and motion for judgment notwithstanding the verdict; all of which were denied. We are unable to discern anything from the record to indicate any relationship between Central Bank and Moore Builders other than lender-borrower and mortgagee-mortgagor. The right to inspection reserved in the loan agreement is one of the normal devices employed to protect a security interest in transactions similar to the one here under examination. The other aspects of the arrangement apply in construction financing arrangements quite frequently and are not unusual.

The Gillespies argue that Central Bank was to share Moore Builders’ profits. This is a sophistic manner of stating that Moore Builders had to pay interest on the mortgage debt out of its profits. As this court observed in denying joint venturer status in another case:

“The rule as stated in Corpus Juris and quoted and cited in numerous cases is that, if money which a person loans to another to be used in a business enterprise is to be repaid by the borrower, whether the venture proves a success or a failure, the contract is ordinarily construed to be one of lending and borrowing and not of joint venture, and the lender acquires no equitable interest in the property in which the money is invested, or liability to a third person for debts contracted by the borrower, even though under the agreement he is to share in the profits of the enterprise.” 48 C.J.S. Joint Adventures § 1, pages 804 and 805.
So far as this record discloses, Indian Hills was bound to pay the mortgage debt in any event, and Ripps was not entitled to share in any profits realized by Indian Hills and was not bound to share in any losses which might be sustained by Indian Hills.

J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 452, 212 So.2d 831 (1968). Substitute “Moore Builders” for “Indian Hills” and “Central Bank” for “Ripps,” and the last statement applies equally as well to this case. Under the facts of the case we are reviewing, the Bank cannot be held to be a joint venturer with any other party to these actions.

The Gillespies also proceeded on a theory that Central Bank breached a duty it undertook when it failed to see to the proper application of the proceeds of the construction loan. The trial court denied relief on this theory; however, the Gillespies do not raise this issue in their appeal, but only in response to the Bank’s; it is not in issue in the latter’s. Therefore, it is not properly before this court and cannot be made the basis of error in connection with the trial court’s treatment of it.

With regard to the homestead, award, the trial court erred. Under the arrangement whereby the Gillespies deeded their property to Moore before construction, the Gillespies relinquished all property rights in the tract, retaining only contractual rights to enforce reconveyance of the land by Moore. By conveying all ownership interests in the property, the Gillespies precluded their right to assert a homestead exemption in it.

“It is manifest that ownership, entire or partial, in fee or for a term, is one of the essentials of rightful claim of homestead exemption. If there is no ownership, there is ... no occasion or field of operation for the claim of exemption.” Beard v. Johnson, 87 Ala. 729, 6 So. 383 (1889). See also 87 A.L.R. 511; Code 1975, § 6-10-2.

The Gillespies first sought to have the court reconvey title in the property to them in their motion to alter or amend the judgment. Because this relief was not sought initially in their action, the trial court properly denied the motion. As noted in Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980): “But more basically, one cannot have a decree for specific performance and damages for breach of the same contract.” In light of the fact the Gillespies sought and recovered damages they waived any right to have the property reconveyed under the contract. Therefore, the trial court’s action in refusing to grant that relief was correct.

The Gillespies’ other contentions to the effect that the materialmen’s liens did not attach to the retained rights in the property, and that Central Bank’s mortgage was an asset of the joint venture, are answered in the negative by force of the reasoning of the issues discussed. This cause is due to be remanded to the trial court for effectuation of the relief granted by the judgments below except that which is altered by this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


text:
    Minnie CORNUTT v. E. O. BOLIN, as Administrator of the Estate of Elbert Leon Bolin, deceased.
    79-726.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellant.
    Gary F. Bums of Burns, Shumaker & Davis, Gadsden, for appellee.
   EMBRY, Justice.

This is an appeal from a judgment in a wrongful death action, entered on a jury verdict for damages awarding plaintiff, E. O. Bolin, as Administrator of the Estate of Elbert Leon Bolin, deceased, the sum of $100,000. We affirm.

The complaint in this case alleged that Elbert Leon Bolin was injured when the gun [pistol] he was cleaning, at the request of Minnie Cornutt, discharged, causing serious personal injuries resulting in death. It was further alleged that Cornutt had been negligent and wanton in failing to warn Bolin that the gun was loaded, in failing to inspect to determine whether the gun was loaded, and in failing to maintain the gun in a safe condition. Cornutt’s subsequent 12(b)(6) motion to dismiss was denied. Cor-nutt’s motion for a more definite statement was granted.

Thereupon, plaintiff filed an amended complaint making the further allegations that:

On or about the 18th of January, 1978, the defendant, Minnie Cornutt, requested the plaintiff’s intestate to come to the said defendant’s home and clean a .22 caliber pistol owned by the defendant. The said defendant had loaded the pistol or had had it loaded prior to said date but did not inform the plaintiff’s intestate that said gun was loaded, and further failed to inspect said gun prior or on said date to see that said gun was loaded. On said date and while at the residence of the defendant, Minnie Cornutt, the plaintiff’s intestate was cleaning said pistol when it accidentally discharged striking the plaintiff’s intestate and causing serious personal injuries which proximately caused his death.

Defendant responded with a general denial and the affirmative defense of contributory negligence. The jury returned the verdict on which the judgment was entered; Cornutt’s post-trial motion for JNOV or new trial was denied and this appeal ensued.

It is clear from the record that Bolin was at the home of his grandmother-in-law, Cor-nutt, on the date he was injured, in direct response to her request that he clean and load her pistol. Approximately three days before the incident, Cornutt asked Bolin to come to her home to fix some doors and to clean and load her gun. She told him the gun was not loaded. After her conversation with him, she asked him, during a visit of his in her home, that he put a bullet in the pistol. She later forgot to tell him it was loaded. Even later, when Bolin and his wife went to Cornutt’s home at her request, she was not home, but Bolin was injured on a subsequent occasion when he attempted to clean the loaded gun in her home as per her previous request and died as a result of those injuries some two and one-half months later.

Although Cornutt raises several issues, the dispositive one is the propriety of the jury instructions regarding Cornutt’s duty owed, as a homeowner, to Bolin. We must determine whether the jury was properly instructed in that regard.

Cornutt strenuously argues that Bolin did not occupy the status of a business invitee; therefore, the jury was improperly instructed on the duty owed by her to Bolin. Stated differently, Cornutt contends she was held to a higher standard of care than is legally permissible under the facts of this case. We disagree.

In the recent case of Quillen v. Quillen, 388 So.2d 985 (Ala.1980), we addressed the same issue raised on this appeal; the dispos-itive one here. There, it was stated: “There is no question that in the present case the defendant, as a landowner, owed a duty of care to one coming upon his property by express invitation; however, the extent of that duty is necessarily dependent upon the plaintiff’s ‘status’ on the defendant’s property.” In Quillen, the defendant requested his brother, the plaintiff, to come upon his land to help him install a television antenna. This court determined that the plaintiff brother was an invitee for purposes of the suit. Determination that the brother was an invitee, however, was based upon the nature of his visit, rather than upon the invitation itself. Our cases hold that “[t]he nature of the visit must bestow a material or commercial benefit upon the invitor.” Quillen, supra.

We conclude here, as we did in Quil-len, that defendant derived a material benefit from Bolin’s visit. We hold, therefore, that Bolin occupied the status of an invitee.

Alabama law is well settled that a landowner owes an invitee a duty to maintain the premises in a reasonably safe condition, or in the event that the premises are not safe because of a defect or danger, to warn the invitee of any danger or defective condition. Quillen, supra ; Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937).

In Quillen, recovery was not allowed because the injury occurred as a result of an open and obvious defect which the plaintiff should have recognized in the exercise of reasonable care. However, in this case, defendant told Bolin the pistol was not loaded; she later failed to warn him that it was. In McCarty this court further included within the rule defining a landowner’s liability to an invitee “the duty to warn an invitee of danger, of which he knows or ought to know, and of which the invitee is ignorant. . . . ” The facts of this case place it squarely within the governance of the latter stated rule. For this reason, we will not disturb the verdict and judgment below.

The other issues raised in this appeal being without merit, and there being no error with regard to the jury instructions, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. JONES, Justice EMBRY, Justice

text:
    Christopher A. KITSOS v. MOBILE GAS SERVICE CORPORATION, a Corporation.
    79-783.
    Supreme Court of Alabama.
    Sept. 11, 1981.

      Donald M. Briskman, Mobile, for appellant.
    Robert G. Kendall, Mobile, for appellee.
   FAULKNER, Justice.

Plaintiff, Christopher Kitsos, appeals from a summary judgment granted in favor of defendant, Mobile Gas Service Corporation for breach of an oral “permanent” or “lifetime” employment contract with defendant. The evidence shows that Mobile Gas Service Corporation employed Christopher Kitsos in October, 1959, to work in Mobile, Alabama. Defendant terminated Kitsos in June of 1977 for allegedly playing golf on company time. Whether he was in violation of company rules by playing golf is a disputed question of fact.

In 1962, Kitsos, decided to accept a position with Atlanta Gas Light Company in Atlanta, Georgia. The position in Atlanta offered new career opportunities and would permit Kitsos to be closer to his relatives. Plaintiff claims that an officer of defendant, John A. Castle, persuaded him to remain with the company in Mobile. Kitsos relied on Castle’s oral representations that Kitsos would have excellent opportunities for advancement and promotion, and could be assured of a lifetime or permanent job with Mobile Gas Service Corporation. As a result of these representations, Kitsos claims he declined the job in Atlanta, removed his house from the market, and remained in Mobile as an employee of defendant.

The issue on appeal is whether an oral contract to employ a person permanently or for his or her lifetime is voided by the Statute of Frauds. Section 8-9-2(l) of the Alabama Code provides: “Every agreement which, by its terms, is not to be performed within one year from the making thereof” is void unless it is evidenced by some writing. In order to bring a contract within the purview of this section of the Statute of Frauds, the contract must be incapable of being performed within one year. Land v. Cooper, 250 Ala. 271, 34 So.2d 318 (1948); McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (Civ.App.1975).

This Court has never specifically addressed the question of whether permanent or lifetime employment contracts fall within the Statute of Frauds. Cf. Scroggin v. Blackwell, 36 Ala. 351 (1860) (one year oral employment contract to commence in the future); Roddy v. McGetrick, 49 Ala. 159 (1873) (“permanent” in employment contract means permanent for one year); Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939) (court affirms recovery by employee on oral employment contract without addressing Statute of Frauds issue). In construing the terms of a contract, a reasonable construction that will give effect to the contract rather than destroy it is favored. Roddy v. McGetrick, 49 Ala. 159 (1873). The majority of courts construe a “permanent” employment contract to be a contract that terminates on the death of the employee. See, e.g., Fibreboard Products v. Townsend, 202 F.2d 180 (9th Cir. 1953); Spindel v. National Homes Corp., 110 Ga.App. 12, 137 S.E.2d 724 (1964); Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1974); 2 A. Corbin, Contracts § 446 (2d ed. 1952). The contract is thus capable of being performed within a year since the employee may die before the expiration. Id.

If a condition terminating a contract may occur within one year, this Court has said the contract is performable within one year, even though performance may in fact extend beyond that period. See Brown & Sons Lumber Co. v. Rattray, 238 Ala. 408, 192 So. 851 (1939). We hold that the permanent or lifetime employment contract of Kitsos with Mobile Gas Service Corporation was capable of being performed in less than one year, and it is thus not made void by the Statute of Frauds. The trial judge erred in granting defendant’s motion for summary judgment.

The judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, BEAT-TY and ADAMS, JJ., concur.

JONES, ALMON, SHORES and EMBRY, JJ., dissent.

JONES, Justice

(dissenting).

I concur completely with Justice Embry’s dissent and add one comment: I am persuaded that the cases from other jurisdictions supportive of the majority opinion take their lead from the textwriters who disagree with the underlying policy of the Statute of Frauds. They grasp for every conceivable exception in order to narrow the Statute’s field of operation but the policy call is not the Court’s to make. This prerogative has been exercised by the legislature.

If ever the application of the Statute’s express policy is called into play, it is within the context of the instant facts. Certainty as to the terms of duration of an employment contract is a requisite to its fair enforcement; otherwise, fraud is its probable incident. Moreover, a contract should be enforced according to the mutual contemplation of the parties. To hold that these parties contemplated performance of a lifetime employment contract within one year, thus falling outside the purview of the Statute is to attribute the worst of motives to either one or both of them — suicide on the part of the one or murder on the part of the other.

EMBRY, Justice

(dissenting):

In this case, Kitsos claimed he was persuaded by John A. Castle, an officer of defendant, to remain with the company in Mobile on the basis of Castle’s oral representations that Kitsos would have excellent opportunities for advancement and promotion and a lifetime job with Mobile Gas Service. Kitsos says that as a result he changed his mind, declined the job in Atlanta, removed his house from the market where it was being offered for sale in anticipation of his moving to Atlanta, and remained in Mobile in the employ of defendant.

As is well known, every agreement which, by its terms, is not to be performed within one year from the making thereof, is void unless such agreement, or some note or memorandum thereof expressing the consideration, is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing to do so. Code 1975, § 8-9-2. Clearly no written contract or note or memorandum thereof was executed by either of the parties. In order to bring a particular oral contract within the influence of the statute, there must be a negation of the right or possibility to perform it within a year, that is, by its terms it is not to be or is incapable of being so performed. Land v. Cooper, 250 Ala. 271, 34 So.2d 313 (1948), citing W. P. Brown & Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851 (1939).

Kitsos relies upon an alleged representation that his employment with Mobile Gas Service could be permanent, or for life, as the basis of his contract claim. This representation was allegedly made in 1962, fifteen years before Kitsos was terminated. By its very terms this contract was not intended to be performed within one year. I am not persuaded to conclude that this was a contract without our statute of frauds, by the fact that Kitsos might possibly have died prior to the expiration of a year from the date of the representation. To permit an oral contract to arise from the representation allegedly made in this case and to fix its duration by events rather than by time increments merely because of the possibility, however remote, that a specified event, death of appellant, might occur within a year, would undermine one of the very purposes for which the Statute of Frauds exists. The memory of individuals and the recollection of events fade in time to the extent that there must be some point beyond which oral contracts are not enforceable.

It is clear from the perspective of the present that there is no reasonable way to determine the duration of the alleged contract. I therefore conclude that, as a matter of law, the use of the terms “permanent” or “for life” in a contract for employment is sufficient to negate the intent that the contract be performed within one year.

JONES, ALMON and SHORES, JJ., concur.