text:
    SEA SCAPING CONSTRUCTION CO., INC., a Corporation, v. John Norville McATEE.
    80-233.
    Supreme Court of Alabama.
    July 24, 1981.
    T. Dwight Reid of Perloff, Reid & Gibbons, Mobile, for appellant.
    G. B. McAtee of Stokes & McAtee, Mobile, for appellee.
   BEATTY, Justice.

Apjjeal from the grant of summary judgment in favor of the defendant. We affirm.

The basic question concerns the right of a foreign corporation to recover damages in an Alabama court upon a cause of action based on contract when the foreign corporation had not qualified to do business in Alabama at the time the contract was made.

Plaintiff is a Florida corporation with its principal place of business in Destin. Between November 1, 1979 and May 1980, pursuant to an oral agreement with the defendant, the plaintiff built a home for the defendant in Baldwin County. The alleged contract price was $61,936.55. The defendant paid $39,100.00, leaving a balance of $22,836.55. When the defendant did not pay the balance the plaintiff filed this action. The defendant moved to dismiss on two grounds: (1) that plaintiff had failed to qualify to do business in Alabama, and (2) that the action was barred by res judicata based upon a prior dismissal. Because of our decision favoring the first ground we need not consider the second.

The defendant’s motion to dismiss was accompanied by a letter purportedly from the Secretary of State of Alabama which recited that his office files disclosed “no record of a corporation by the above name.” Subsequently a hearing was held on this motion and the trial court heard argument of counsel upon it. Following the hearing the trial court granted the motion. Under these circumstances it is apparent that the trial court treated the motion as a Rule 12(b)(6) motion for summary judgment and in so doing had before it the letter referred to.

The plaintiff raises before us a patent defect in that letter affecting its utilization as appropriate evidence under Rule 56. Plaintiff refers us to Rule 44(b) on proof of a lack of record. The rule requires any such statement to be “authenticated as provided in subdivision (a)(1) ... in the case of a domestic record.... ” The commentary to this rule states that Rule 44(b) is identical to the federal rule. The complementary federal rule requires that

[T]he statement of lack of record must be authenticated in the same fashion as an official record itself. Thus if the search is of a domestic record the statement must be by the custodian of the record and must be accompanied by a certificate under seal from a judge or public officer that the person who made the statement is the person having custody. [9 Wright and Miller, Fed. Prac. and Proc., § 2436 at 395.]

It is clear that the letter in question, though bearing a signature purporting to be that of the Secretary of State, was not accompanied by any certificate verifying that signature and that person as the custodian. Accordingly, the letter was not self proving and was improper evidence for the purpose of summary judgment. Under the circumstances of this case, however, that error does not require a reversal of this case because in both brief and oral argument plaintiff has conceded that it was not qualified to do business' in Alabama at the time the contract in question was executed. Plaintiff points out, however, that it did qualify to do business in Alabama before this action was filed and, accordingly, urges us to adopt a legal principle which would allow it (and all others similarly situated) to proceed in our courts under such a contract. Thus the question before us (and before the trial court) was one of law and not of disputed fact.

Adopting such a principle as plaintiff advocates would effect a substantial change in our law by amending Section 232 of our Constitution of 1901 and overruling a number of decisions of this Court rendered thereunder. Section 232 provides that:

No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association....

The legislature has enacted a statute similar in nature, Code of 1975, § 10-2A-247:

(a) All contracts or agreements made or entered into in this state by foreign corporations which have not obtained a certificate of authority to transact business in this state shall be held void at the action of such foreign corporation or any person claiming through or under such foreign corporation by virtue of said void contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity; provided, that the failure of a foreign corporation to obtain a certificate of authority shall not impair the validity of any contract or agreement heretofore or hereafter entered into and consisting of a mortgage upon real property or an interest in real property in this state, and the note secured thereby, where the mortgage is insured by the Federal Housing Administration or guaranteed by the Veterans Administration, if said foreign corporation shall have thereafter obtained a certificate of authority. In all actions against such foreign corporation, or against any person claiming under such foreign corporation by virtue of such void contract, the foreign corporation or such person claiming under it shall be held to be estopped from setting up the fact that the contract or agreement was so made in violation of law. In all actions against foreign corporations which have not obtained a certificate of authority, the summons or other process may be served upon the officer, agent or employee of the foreign corporation who acted for or represented such foreign corporation in making the contract or agreement sued upon.

We note that this language was also used in this section’s predecessor statutes, Code of 1975, § 10-2-254 and Tit. 10, § 21(89), Ala. Code of 1940 (Recomp. 1973 Cum. Supp.). Also, under the Revenue and Taxation Code, Code of 1975, § 40-14-4, the legislature has provided:

All contracts made in this state by any foreign corporation which has not first complied with the provisions of sections 40-14-1 through 40-14-3 [payment of qualification fees or taxes and statement pertaining to incorporation] shall, at the option of the other party to the contract, be wholly void at the action of such foreign corporation or any person claiming through or under such foreign corporation by virtue of such contract ...

The numerous decisions of this Court upholding the principle which denies the foreign corporation relief at its instance upon such contracts have recognized the severity of its imposition. Nevertheless, they have not deviated from its application, being aware that

the public policy clearly written into our law in order that foreign corporations may be subject to the process of our courts, thus affording mutuality of remedy, cannot be stricken down by judicial decision. [Bouldin, J., in Gray-Knox Marble Co. v. Times Bldg. Co., 225 Ala. 554, 144 So. 29 (1932).]

The bar created by the Constitution and statutes has been upheld when the pleadings and evidence showed that the foreign corporation had failed to comply with this state’s laws of qualification “before and at the date of the contract.... ” Cable Piano Co. v. Estes, 206 Ala. 95, 89 So. 372 (1921). This position has been affirmed repeatedly. See, e. g., Calvert Iron Works, Inc. v. Algernon Blair, Inc., 284 Ala. 655, 227 So.2d 424 (1969); Computaflor Company, Inc. v. N. L. Blaum Const. Co., 289 Ala. 65, 265 So.2d 850 (1972); Birmingham Terminal Associates, lnc. v. United Produce and Products Equipment Co., Inc., 289 Ala. 80, 265 So.2d 863 (1972); C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1973) (such a contract does not give rise to any implied legal duty). See also Foxco Ind., Ltd. v. Fabric World, Inc., 595 F.2d 976 (5th Cir. 1979).

The plaintiff has cited us to a number of jurisdictions which have held that compliance with qualification requirements after the instigation of suit satisfies the requirements. We have not been cited to the specific language of the constitutional or statutory provisions of those jurisdictions pertinent to our inquiry. We point out, however, that a number of sister jurisdictions follow the Alabama view that compliance must occur when the contract was made. Hutterian Brethren v. Haas, 116 F.Supp. 37 (D.Mont.1953); Dawn Construction Co. v. Paris Home Builders, Inc., 360 Mich. 281, 103 N.W.2d 410 (1960); Irvine & Meirer v. Wienner, 212 Mich. 199, 180 N.W. 492 (1920). Such a compliance, moreover, has been held not to “relate back.” In re Conecuh Pine Lumber & Mfg. Co., 180 F. 249 (M.D.Ala.1910); accord, Woods & Co. v. Armstrong, 54 Ala. 150 (1875).

This Court, like its predecessors, recognizes with compassion the stern sanction imposed by this principle established by our Constitution and statutes. It is our duty, however, to uphold it. The judgment, therefore, must be, and is, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Sammy Ray BRYSON, James Gregory Tucker, Horace Lamar Brannum, Jr., Roy Don Bevis, and John E. Roberts v. CENTRAL ELECTRIC CO., INC. and Jessie R. Camp, d/b/a Central Electric Co.
    80-255.
    Supreme Court of Alabama.
    July 24, 1981.
    Edward L. Ramsey, Birmingham, for appellants.
    T. Thomas Cottingham and Sandra L. Randleman of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellees.
   BEATTY, Justice.

This is an appeal from the grant of a motion to dismiss in favor of the defendants. We reverse and remand.

In their original complaint the plaintiffs alleged that they were electrical workers who were employees of the defendants and who were performing services as such on construction jobs on state properties or on which private contractors were working with state financing. They further alleged that the defendants, as “successful bidders,” were required by the terms of Code of 1975, § 39-4-1 et seq., (the Prevailing Wage Act), to pay the prevailing wage in the work area to their employees. Section 39-4-1 reads:

It is hereby declared to be the public policy of this state that the state of Alabama or any state agency, department or board thereof which is the contracting authority for construction, alteration and/or repairs, to be performed on state-owned properties or to be state financed, in whole or in part, to be performed by private contractors, shall require the successful bidder to pay the prevailing wage in the work area to their employees.

The defendants were alleged to have “willfully, wantonly, maliciously, and intentionally” failed to pay the plaintiffs the requisite prevailing wage and “therefore, the plaintiffs bring this action pursuant to Code of Alabama § 39-5-15 .. . . ”

The complaint was amended by adding Count Two which alleged that the defendants had entered into written agreements agreeing to pay plaintiffs according to Alabama laws, specifying four separate contracts entered into during 1976 and 1977. Alleging that the plaintiffs are third-party beneficiaries of those contracts, the plaintiffs alleged their breach by the failure to pay the prevailing wage required by § 39-4-1.

The defendants’ motion to dismiss was based upon Act No. 79-122 of the 1979 Regular Session of the Alabama Legislature:

Unless the legislature in its 1980 Regular Session takes action to continue the provisions of Section 39-4-1 through 39-4-18 of the Code of Alabama 1975, the provisions shall be automatically repealed effective sine die of the 1980 Regular Session of the Legislature.

The defendants’ motion to dismiss alleged that no Act was passed by that legislature to continue the provisions of §§ 39-4-1 through 39-4-18, nor was any saving clause enacted, and thus the effectiveness of the repealed Act was destroyed and plaintiffs’ right to proceed under the statute was thus divested.

The trial court agreed with that position and dismissed the complaint. A subsequent motion for reconsideration was denied.

It is axiomatic that a motion to dismiss should only be granted when it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to recovery. Jeannie’s Grocery v. Baldwin County Elec. Membership Corp., Ala., 331 So.2d 665 (1976). In considering that motion, the allegations of the complaint are construed in a light most favorable to the complainant. Pruitt v. Pruitt, Ala., 343 So.2d 495 (1977).

Applying these principles in this case, the plaintiffs have alleged that they were employed by employers who performed construction contracts covered by § 39-4-1 et seq., the Prevailing Wage Act. They allege that they were third-party beneficiaries of those contracts and were not paid money they had earned as employee-beneficiaries under those contracts. Thus the ultimate and controlling issue is whether, because of that Act’s repeal, the plaintiffs were thus divested of their causes of action for wages earned.

The defendants’ position is that the repeal of the statute without a saving clause had the effect of terminating all proceedings under the statute. We are cited to a statement contained in 1A J. Sutherland, Statutes and Statutory Construction, § 23.-33 (Sands ed. 1972) for that proposition:

The effect of the repeal of a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.

The plaintiffs filed their complaint on March 3, 1978 and' amended it on June 9, 1980. Meanwhile the 1980 Regular Session of the Legislature closed on May 19, 1980 without continuing the Act or enacting a saving clause. According to the defendants, that event terminated the plaintiffs’ claims.

Our perusal of Mr. Sutherland’s treatise expands the dimension of the problem, for in the next succeeding section he comments upon the exception to such inaction for vested rights:

Under common law principles of construction and interpretation the repeal of a statute or the abrogation of a common law principle operates to divest all the rights accruing under the repealed statute or the abrogated common law, and to halt all proceedings not concluded prior to the repeal. However, a right which has become vested is not dependent upon the common law or the statute under which it was acquired for its assertion, but has an independent existence. Consequently, the repeal of the statute or the abrogation of the common law from which it originated does not erase a vested right, but it remains enforceable without regard to the repeal.
In order to become vested, the right must be a contract right, a property right, or a right arising from a transaction in the nature of a contract which has become perfected to the degree that the continued existence of the statute cannot further enhance its acquisition. [Sutherland, supra, § 23.34 at 283.]

Among the citations in support of this exception is McCann v. City of New York, 52 App.Div. 358, 65 N.Y.S. 308 (1900). In that case the plaintiff’s intestate had performed labor and services for the department of public works of the City of New York at a time when an existing statute had required all laborers and workingmen in the employ of a municipality to receive not less than the prevailing wage in their localities. The intestate having received less, his administrator sued for the difference and alleged those facts. The demurrer to this complaint (apparently a “speaking” demurrer) alleged that the statute in question was later amended by deleting the language which had made the original Act apply to laborers and workingmen, to the effect that the plaintiff had no cause of action because his action was instituted after the change was made. This contention ’ was rejected for two distinct reasons, one of these being pertinent here:

It is not to be controverted that the right arose out of a statute, nor is it to be doubted that, if the right were merely an inchoate one, it could be taken away before enforcement, by a subsequent statute repealing that which conferred the right. Retrospective state laws which do not impair the obligation of contracts are not invalid simply because they may disturb vested rights, “but a law subsequent to the contract, directly annulling it, or changing its terms by adding or releasing material conditions, provisions, or stipulations, presents a clear case of the direct impairment of the obligation.” [Citation omitted.] In this case there was nothing inchoate or incomplete. Contract rights were established between the city of New York and the plaintiff’s intestate by virtue of the provisions of the act of 1894. Under that provision the municipality was not only authorized, but was required, to pay on its contracts of labor the prevailing rate of wages. That provision became one of the terms of the contract of employment, just as any other positive provision of law respecting contracts is incorporated in and becomes part of them. Here the service was rendered, the work performed, the wages earned, and the right to payment had become absolute under the terms of the contract as made by the statute. A cause of action resting in contract accrued, and that cause of action is a property right, a vested right, — vested if for no other reason than of the complete performance of the contract of employment by the plaintiff’s intestate. Where a statute authorizes a state or a municipality [a fortiori a private contractor] to enter into a contract for compensation with an employee, as distinguished from an officer, of the state or municipality, and a contract at a fixed compensation is made in pursuance of that authority, and the service performed, the right of the employee to that compensation is a vested right, notwithstanding the statute under which the contract was made may have been repealed before the expiration of the period of employment. [Citation omitted]. Here there was full and complete performance before the enactment of any statute which can be regarded as a repeal. The application of the rule is not affected by the simple circumstance that the wages are earned from day to day. They were fixed day’s wages. The laborer gave his work as a consideration for the wages to which hq was entitled by the statute, and his right to those wages became consummate on his performance of the contract of employment.... [65 N.Y.S. at 310.]

Accord, Bibb v. Hall, 101 Ala. 79, 14 So. 98 (1893).

The case of Saad v. Cline, 51 Ala.App. 668, 288 So.2d 731 (1974), cited by the defendants, is inapposite. That case did not concern any vested right, but dealt only with whether or not a statutory writ of cer-tiorari might issue by a Mobile County circuit judge from a civil judgment of that county’s court of general sessions. The statutory authority for the issuance of such a writ, a procedure for review, was later repealed, and it was held in Cline, supra, that the circuit judge no longer had such authority in view of the repeal. It should be noted also that the repeal occurred in 1971 and the petition for statutory writ was filed in 1973. Clearly, therefore, the right to proceed under the earlier statute had been divested and there were no “past and closed proceedings” which could have made an exception.

Wilkinson v. State, Ala., (1981) 396 So.2d 86 (1981), is not controlling because it dealt with an injunction which, because of its continuing nature purported to exist after the repeal of the statute which had originally authorized it. Blake v. State, 178 Ala. 407, 59 So. 623 (1912), also cited by the defendants, in fact recognizes the exception for vested rights. Ex parte State of Alabama, 52 Ala. 231 (1875), involved a suit against the state itself, not a vested right but a matter of grace only.

We concur in the reasoning expressed in McCann, supra. See also Arnold & Murdock Co. v. Industrial Commission, 314 Ill. 251, 145 N.E. 342 (1924), and Leach v. Commercial Sav. Bank, 205 Iowa 1154, 213 N.W. 517 (1925) (on vesting).

It follows that the repeal of the provisions of § 39-4-1 et seq., did not operate to eradicate any vested rights of these plaintiffs to wages which might have accrued to them by virtue of contracts falling within the purview of those provisions, and for the recovery of which they had a cause of action. Accordingly, the judgment of dismissal is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


text:
    UNITED STATES FIDELITY & GUARANTY CO., a Corporation v. NATIONAL TANK & MACHINE WORKS, INC.
    80-303.
    Supreme Court of Alabama.
    July 24, 1981.

      A. Stewart O’Bannon, Jr., Florence, for appellant.
    N. Michael Suttle of Potts, Young & Bla-singame, Florence, for appellee.
   BEATTY, Justice.

Appeal by the defendant, United States Fidelity & Guaranty Co. (USF&G), from an order holding that it is obligated to defend the plaintiff in a collateral action. We affirm.

The defendant issued a Comprehensive General Liability policy of insurance to the plaintiff, National Tank & Machine Works, Inc. (National Tank) for a policy period running from October 4, 1976 to October 4, 1977. Among the policy provisions included were the following:

I COVERAGE A — BODILY INJURY LIABILITY
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, ...

Under the DEFINITIONS “occurrence”

means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected or intended from the standpoint of the Insured.

Following the coverage portion above certain exclusions were expressed:

This insurance does not apply:
(a) to liability assumed by the Insured under any contract or agreement except an incidental contract; . . .

By endorsement another exclusion was added:

It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage and, if a Contractual Liability Insurance .. . Coverage Part forms a part of the policy, such insurance as is afforded by such Coverage Part for Contractual Bodily Injury Liability and Contractual Property Damage Liability, does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard.

The insured, National Tank, does business under the trade name of National Pool Equipment Company, selling swimming pool equipment and supplies. In January 1977 it entered into a contract with Continental Contractors, Inc., a swimming pool contractor, to provide six lifehooks for a pool which Continental was constructing for the City of Hartselle. Continental’s contract with Hartselle required Continental to provide six lifehooks, each “[to be] supplied with a one piece 16' long, in [sic] diameter aluminum handle and shall be 7570 or equal.” National Tank’s subcontract with Continental required it to supply Continental with “6 No. Lifehook[s] w/16' handle.”

In performance of their contract National Tank furnished the lifehooks with two-piece telescoping handles capable of being extended from eight to sixteen feet in length, and Continental in turn equipped the Hart-selle pool with these lifehooks.

On July 22, 1977 Marshall Lampkin, an employee of the City of Hartselle, was drowned while in the pool. His administra-trix subsequently filed an action against National Tank, et al. alleging, inter alia, that while Lampkin’s supervisor attempted to retrieve him from danger by using one of these lifehooks, the telescopic handle came apart and thus the supervisor was unable to rescue Lampkin.

The original complaint filed by Lampkin’s administratrix was admittedly grounded upon product liability under the Alabama Manufacturers’ Extended Liability Doctrine. When USF&G received notice of this action it denied any responsibility for defense for the reason that National Tank did not have products liability coverage. National Tank then brought this action for a declaratory judgment to determine whether it was covered under the policy. Following a hearing, the trial court entered an order holding that USF&G was under no obligation to defend the Lampkin lawsuit, but added that “[t]his however, does not release the United States Fidelity and Guaranty Company from any judgment which might be rendered in the event of an appropriate amendment to the complaint filed....” Thereafter Lampkin’s administratrix amended her complaint by adding Counts 7-X and 8-Y. The pertinent provisions of Count 7-X are:

[T]he defendant CONTINENTAL CONTRACTORS, a Corporation, constructed said swimming facility under a written contract according to specific plans and specifications as to equipment and products to be furnished by said defendant at said facility, which said specifications and plans specified that said defendant should furnish safety hooks or life hooks in the execution of its contract to be used by said facilities at said swimming pool of aluminum construction, sixteen feet in length with a solid one-unit aluminum handle, and that contrary to said specifications and plans, said defendant, and all other defendants in this cause, negligently or wantonly substituted in place and in lieu of said specified one-unit, sixteen foot aluminum handle or safety or life hook, a telescopic aluminum handle in two separate units with a locking cam on the bottom end thereof.
The plaintiff further alleges that the defendant, PHILIP AABERG, negligently or wantonly approved the substitution of said safety hook handle, or he negligently or wantonly omitted to disapprove of said substitute safety hook handle, and that as a proximate consequence of said combined and concurring negligence or wantonness of each of said defendants, plaintiff’s intestate was drowned.

Count 8-Y contained substantially the same allegations of negligence or wanton conduct proximately resulting in the intestate’s drowning.

In due course the trial court found that under the amended complaint USF&G was obligated to defend National Tank in the action brought by Lampkin’s administra-trix. The narrow issue before us, therefore, is whether those allegations fall within the terms of the risks insured against and, specifically, whether they are within either of the exclusions noted.

Plaintiff concedes that no products liability coverage exists under the policy and therefore the first order of the trial court was correct. Plaintiff maintains, however, that the complaint as amended proceeds not upon the delivery of a defective product but from the negligent or wanton delivery of the wrong product. Those allegations are sufficient to require a defense for an “occurrence” under Coverage A, as “occurrence” is defined in the policy, unless one of the exclusions applies.

We agree with the defendant that our obligation, upon review, is to construe the policy rather than to make a policy for the parties. In applying that injunction, of course, we cannot by the same token ignore the allegations which call the policy terms into question. The allegations of the amended complaint pertain to an action ex delicto, arising out of a contractual relationship, to be sure, but not relying upon it. C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1973). Those allegations do not depend upon any “liability assumed by the Insured under any contract” but upon an alleged breach of duty implied by law; hence that exclusion does not apply. United States F. & G. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 274 So.2d 615 (1973). See also American Casualty Ins. Co. v. Timmons, 352 F.2d 563 (6th Cir. 1965); Lumberman’s Mutual Casualty Co. v. Town of Pound Ridge, 362 F.2d 430 (2nd Cir. 1966); and J. L. Simmons Co., Inc. v. Fidelity and Casualty Co., 511 F.2d 87 (7th Cir. 1975).

It is also clear that the “Completed Operations Hazard” and the “Products Hazard” exclusion, likewise, do not apply. Under the policy “DEFINITIONS” the completed operations hazard exclusion does not include bodily injury arising out of: “(b) the existence of tools, uninstalled equipment or abandoned or unused materials.” Taking the allegations of the plaintiff’s complaint literally, the complaint is based upon injury arising out of the failure to install the proper equipment (which was uninstalled). Moreover, it is arguable whether this exclusion is applicable when the plaintiff’s theory is that the insured did not “complete his operations” under its contract because up to the time of the injury alleged the insured had not performed his promissory obligation by delivering the lifehooks contracted for. The term “operations” does not unambiguously exclude that risk. Lumberman’s, supra at 432; accord, Tyler v. Insurance Co. of North America, Inc., Ala., 331 So.2d 641 (1976).

We have limited our review to the issue of whether or not the defendant was obliged to defend the Lampkin action. From what we have stated it follows that the order of the trial court must be, and is, affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    MONTGOMERY LINCOLN-MERCURY, INC. v. Bonnie J. GAIONI.
    80-328.
    Supreme Court of Alabama.
    July 24, 1981.

      J. Donald Reynolds, Montgomery, for appellant.
    George H. B. Mathews, Montgomery, for appellee.
   SHORES, Justice.

This is an appeal from a judgment rendered on a jury verdict in the amount of $35,000 in a case charging fraud in the sale of an automobile. We affirm.

There are facts in this record from which a jury could have concluded the following: That Montgomery Lincoln-Mercury, Inc., (MLM) sold Mrs. Gaioni a Triumph TR7 automobile, represented as being a new automobile, when in fact it had been a demonstrator used by the manager of MLM as such; that it had been entered in a race, had been wrecked, had been repaired in MLM’s body shop, had the odometer changed to show reduced mileage, and was sold to Mrs. Gaioni for $400 over the manufacturer’s list price.

Mrs. Gaioni had owned two TR7’s before she bought this one. She came to MLM’s dealership on May 6,1980, and said she was interested in a TR7. All TR7’s are basically alike, the only differences being in interior and exterior colors. She was shown by a salesman the new TR7’s. She selected a green one with a beige interior, paid $100 down, and the car was held for her until June 2, 1980, when she picked it up and signed a retail installment contract, which designated the car as “new.” Other documents pertinent to the sale designated the car as “new.” The suggested manufacturer’s retail price was $10,115. The cash price quoted to her was $10,516 and the time price $10,928.99. She testified that there was no “sticker” price on the automobile.

MLM suggests that new cars be returned within five days for trim and touch up work. On June 3, Mrs. Gaioni noticed that the paint on the hood had “bubbled up.” A check indicated that the transmission was low on oil, the battery was low on water, and the wells of the carburetor were low. MLM assured her that the paint could be satisfactorily repaired. She left the car in MLM’s shop from June 3 until June 14.

She then drove the automobile to Florida. On the trip, she noticed a rattle in the rear of the car and that the tires were worn on the sides, not the treads. She took the car to a tire repairman, who testified that the “tires were eaten up on it” and asked if she had been racing with the automobile.

A few days later, she put her bicycle in the trunk of the car, and the lining of the trunk disintegrated, appeared to have been singed or burned, and when this happened, she noticed that the car had been damaged in the right rear quarter and had been welded. Mrs. Gaioni then went back to MLM with an attorney. MLM’s manager said the car had not been damaged before the sale to her.

After the suit was filed, the following facts were discovered by deposition or otherwise. The car had been selected by the manager as his demonstrator; one of the salesmen, named Sellers, was asked by the manager to get some gas for him, which the manager paid for, and while on this trip, another car collided with the TR7, damaging the right rear portion. Sellers testified that the other salesmen ribbed him a lot because he had wrecked a new car. A service order was discovered which indicated that the car had been repaired in MLM’s body shop. When the manager of the body shop received a subpoena to submit to a deposition in this case, he told the president of MLM that if he were asked whether the car was wrecked before it was sold to Mrs. Gaioni, he was “going to tell the truth.”

There was evidence that a green TR7, just like this one, was driven by manager Smith in a car race in Dothan on March 9th. The race was described as “driving against the clock; driving through pylons, doing ‘S’ turns. The driver drives as fast as possible and as hard as he can, short of wrecking the car. The racing surface is concrete and the course consists of some straight, some right hand turns, some left hand turns, and some 180’s.” There was evidence that this kind of racing wears tires on the sides.

In addition to this, Mrs. Gaioni testified that she was told that the odometer had been changed.

In response to this, MLM argues that there is no evidence of any “active” misrepresentation on the part of its employees. It also argues that it made no representation to Mrs. Gaioni. The MLM salesman simply showed her the cars, and she picked the one she wanted. MLM argues that the facts do not justify an award of punitive damages. We disagree. The degree of damage to the car in this case is much more significant than what was involved in Boulevard Chrysler-Plymouth, Inc., v. Richardson, 374 So.2d 857 (Ala.1979), and this Court affirmed a $30,000 award. In this case, the evidence of misrepresentation and deceit far exceeds the evidence of fraud in that case. The evidence in this case would support a jury finding that the deception was deliberate, calculated to deceive, and did deceive the purchaser of the automobile in several different ways. Not only did MLM represent that the car was new when in fact it was a wrecked automobile, but it charged her $400 more than the manufacturer’s suggested retail price for one which was really new. It now seems to be saying that it didn’t sell her the car, she was so anxious to buy it that she was willing to pay $400 over list to get it. The jury did not believe MLM’s version of the facts, and we cannot say that it was wrong in believing the buyer’s version. To the contrary, the evidence is overwhelming in support of the buyer’s version.

We hold that the evidence in this case supports a finding that the fraud was oppressive, gross, intentionally perpetrated, and therefore, punitive damages were justified. See also: Neil Huffman Volkswagen Corp. v. Ridolphi, 378 So.2d 700 (Ala.1979), and Crews Chevrolet-Oldsmobile, v. Williams, 394 So.2d 912 (Ala.1981).

The judgment appealed from is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Mrs. William L. HESTER, etc., et al. v. The CITY OF BIRMINGHAM, a municipal corporation.
    80-336.
    Supreme Court of Alabama.
    July 24, 1981.
    R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Herbert Jenkins, Jr. and Milford G. Bass, Jr., Asst. City Attys., City of Birmingham, for appellee.
   PER CURIAM.

These plaintiffs/appellants’ first action against the City of Birmingham was dismissed by the circuit court on July 30,1980. On September 11, 1980, they filed notice of appeal in that case. On October 21, 1980, this Court returned the notice of appeal and docket fee in that case, advising that the appeal was untimely.

Thereafter on December 14, 1980, the plaintiffs filed this suit. The complaint in this case is identical to the first, except that it adds “in violation of Article XII, § 235, Alabama Constitution of 1901” in each count. The City filed a motion to dismiss which included the following ground:

The doctrine of res judicata is applicable to this action since it was previously litigated to a conclusion in this court under Case No. CV-80-02340 in which the cause was dismissed and the appeal taken therefrom was dismissed as untimely filed.

The trial court granted the City’s motion to dismiss. We affirm. Res judicata clearly bars this action, which involves identical facts, identical parties, identical subject matter, and resulted in a judgment on the merits. As the Court recently said in McGruder v. B & L Construction Co., Inc., 331 So.2d 257 (Ala.1976):

It has long been the policy in the courts of Alabama to provide a claimant a day in court, but he will not be allowed to continue to relitigate his claim. The underlying principle of res judicata or estop-pel by judgment is based upon public policy and necessity, because it is to the interest of the state that there should be an end to litigation, and that the individual should not be vexed twice for the same cause. Savage v. Savage, 246 Ala. 389, 20 So.2d 784.
The doctrine of res judicata rests upon the primary principle that matters once adjudicated are settled and determined. Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566; Suggs v. Alabama Power Co., 271 Ala. 168, 123 So.2d 4. Those cases are also authority for the rule that to sustain a plea of res judicata or judgment by estoppel, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point.
All of these elements were present in the first case, McGruder, 293 Ala. 354, 303 So.2d 103. Appellant has had her day in court and the same issues were adjudicated, settled and determined, and this is dispositive of this case. We note that our cases also state that a judgment in a former action between the same parties is not only conclusive of the questions actually litigated, but [also of those] which could have been litigated in the former suit. Reid v. Singer Sewing Machine Co., 218 Ala. 498, 119 So. 229; Hathcock v. Mitchell, 277 Ala. 586, 173 So.2d 576.

331 So.2d at 259.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Harold CARSON v. Preston HORNSBY, etc., et al.
    80-392.
    Supreme Court of Alabama.
    July 24, 1981.

      Robert M. Alton, Jr. and W. Stephen Graves, Montgomery, for appellant.
    Tyrone C. Means of Gray, Seay & Lang-ford, Montgomery, for appellees.
   PER CURIAM.

Finding that the referendum authorized by Act No. 80-50, 1980, Regular Session of the Alabama State Legislature, does not fall within the purview of the notice requirements of Code 1975, § 17-7-5 (governing general elections) or § 17-18-1 et seq., (governing special elections); and further finding that § 26, the only notice provision in Act 80-50, was fully complied with, we hold that the referendum held in Macon County on April 8, 1980, authorized by Act No. 80-50, is not subject to contest for failure to comply with the statutory publication of notice requirements prescribed for general and special elections.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Nell White COPELAND and Franklin Copeland, Deceased v. Durie WILLIAMSON.
    80-463.
    Supreme Court of Alabama.
    July 24, 1981.
    John E. Mays, Decatur, for appellants.
    Michael Gillion and John D. Richardson for Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   MADDOX, Justice.

The trial judge granted defendant’s motion for a directed verdict in a personal injury action arising out of an automobile accident in Mobile County. The record indicates that the plaintiffs agreed that the motion for directed verdict filed by the defendant should have been granted; consequently, this appeal presents a very interesting question of appellate review: Can this Court review a ruling of the trial court when the record shows that the appellants agreed with the ruling?

The facts are not complicated. Plaintiff Nell White Copeland claimed that while she was stopped to make a left turn, a car behind her also stopped, but that the defendant hit the car immediately behind her, and drove that car into the rear end of her car, and as a proximate consequence, plaintiff Nell White Copeland suffered personal injuries. During trial, plaintiffs attempted to prove the extent of Nell White Copeland’s personal injuries and damages through the testimony of a chiropractor who had treated her. The trial judge refused to permit the chiropractor to testify and give his opinion on certain matters; plaintiffs seeks to review this ruling on this appeal.

The paramount question specifically presented by this case is whether plaintiffs properly preserved the question for appellate review.

The record shows that when plaintiffs rested their case, the following occurred:

MR. MAYS: Plaintiff rests.
THE COURT: Let me have your motion, Mr. Richardson.
MR. RICHARDSON: If it pleases the Court. The plaintiff has indicated he has rested his case at this time. At this time it moves the Court to grant my client, Mr. Williamson, a directed verdict on the grounds that the plaintiff has failed to prove evidence to the jury and that the Court has no evidence to submit this case to the jury. He has not shown any negligence on the part of my clients.
There has been some testimony of an accident of a collision. He didn’t show any negligence on the part of my client. The Supreme Court held the Court is familiar with the old proctor [Proctor] case that says, “the burden is on the plaintiff to prove his case.” And, of course, we all know that. That sounds redundant.
THE COURT: What have you got to say about it, Mr. Mays?
MR. MAYS: I think there is a lack [lot] of evidence.
THE COURT: Tell me what it is.
MR. MAYS: Mr. Lewis indicated that he had come to a complete stop behind Mrs. Copeland, and Mr. Williamson drove into the rear of the car. He indicates that he did not slam on his brakes. He indicated that he did not stop abrupt causing Mr. Williamson to continue into him.
THE COURT: I don’t remember this defendant’s name being mentioned but one time in the course of the trial.
MR. RICHARDSON: You have not heard any testimony that Mr. Williams ran into the back of Mr. Lewis. You asked if anything unusual happened. He says, “I was run into.”
MR. MAYS: I asked him who the person was that ran into him, and he indicated Mr. Williamson. You haven’t shown any negligence on his part caused—
THE COURT: What did you show any negligence that he did, Mr. Mays? What did you show that Mr. Williamson did? There hasn’t been any testimony that he was driving the car.
[MR. MAYS]: There has been testimony from both Mrs. Copeland and Mr. Lewis that Mr. Williamson was driving the automobile that started the chain reaction, rear end collision, sir.
MR. MAYS: But your Honor, we would take up at this time also a collateral matter.
[THE COURT]: Well, let’s take this matter up first. [MR. MAYS]: I’ll be honest with you I think the motion is well taken. We have a motion which would have a similar affect if the Court granted Mr. Richardson’s motion.
THE COURT: I really don’t know what you are talking about. What kind of motion?
MR. MAYS: Your Honor. Without certain evidence that we had hope[d] to introduce in this case, we have no case, and we would be in a position now, I think, it would be fruitful [fruitless] to continue the trial of the case not having the evidence and we—
THE COURT: What are you talking bout [sic] the contradictor [chiropractor].
MR. MAYS: His xrays and his evaluation of them, and we are willing to let the Court go ahead and grant Mr. Richardson’s motion and grant [give] notice of an appeal at this time.
THE COURT: I grant your motion of directed verdict for the defendant.
MR. MAYS: We do concur.

The defendant/appellee contends that “the plaintiffs acquiesced and concurred in the granting of defendant’s motion for directed verdict and conceded that the motion was proper and due to be granted...” and “plaintiff[s] therefore cannot now assert the court’s ruling as reversible error.” Ap-pellee cites several cases in support of this proposition. Two of the cases appellee cites are Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963); and Sayre v. Dickerson, 278 Ala. 477, 179 So.2d 57 (1965). That the plaintiffs consented to the grant of defendant’s motion for a directed verdict is clear. That plaintiffs wanted appellate review of the trial judge’s refusal to permit the chiropractor to testify was also clear — it is the issue which plaintiffs/appellants briefed and argued on appeal. The question is, however, whether plaintiffs properly preserved the issue for appellate review. Plaintiffs filed no motion for new trial in which they listed as a ground the ruling by the trial court on the chiropractor’s qualifications as an expert. Instead of objecting to the trial court’s action granting defendant’s motion for a directed verdict, plaintiffs specifically concurred in the grant of that motion.

We have carefully reviewed the record on this appeal in the spirit of Rule 1 of our appellate rules which directs that we construe our procedural rules to assure “the just, speedy and inexpensive determination of every appellate proceeding on its merits,” but we cannot reach the issue appellants would have us reach because it is simply not presented. As we read the colloquy between the court and counsel during the presentation of defendant’s motion for a directed verdict, we note that the plaintiffs apparently were considering filing a motion to ask the court to grant them a voluntary nonsuit in order that they might obtain review of the court’s ruling on the evidentiary issue, but even assuming that to be the case, the law is fairly settled, that, in the absence of a statute or court rule, where a defendant has filed a motion for a directed verdict, the plaintiff is not entitled to take the voluntary dismissal. Annotation: Right to Dismiss Motion for Judgment, 36 A.L.R.3d 1113. Furthermore, where a plaintiff’s notice of voluntary dismissal under Rule 41(a)(1), A.R.C.P., is not disturbed by the trial court or where the plaintiff knowingly and willingly agrees to a stipulation of dismissal, he has no standing to appeal. Moore’s Federal Practice, ¶ 41.02[6], pp. 41-43.

Because we determine that plaintiffs, by consenting to the grant of defendant’s motion for a directed verdict, cannot obtain review of the trial judge’s ruling on the evidentiary matter, we do not address whether the motion for a directed verdict was properly granted. Neither do we address the question whether the trial court abused its discretion in refusing to permit plaintiff’s chiropractor to testify. These issues were not properly presented for appellate review.

AFFIRMED.

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

      . During the chiropractor’s testimony, the following occurred:
      THE COURT: You’re asking this witness to testify as to disc[s] and things of that [sic].
      MR. MAYS: I have asked him—
      THE COURT: I know what you have asked him. Are you asking the doctor to testify to that?
      MR. MAYS: No, Your Honor. I am going to go through the test that he performed and I am going to ask him his evaluation of all the tests.
      THE COURT: Do you propose to get into things involving the spine? Do you propose to do it?
      MR. MAYS: Yes, sir.
      THE COURT: i will not permit you to do it unless you show the doctor has qualifications to testify in that field of medicine. Go ahead, please sir.

      . We have quoted from the transcript just as it appears, but have indicated, by bracketed material, what we understand the record to show.


text:
    Clarence SCHRIMSHER, Jr., et al. v. Joan Silver SULLIVAN.
    79-921.
    Supreme Court of Alabama.
    July 24, 1981.
    Rehearing Denied Aug. 21, 1981.
    Roscoe Roberts, Jr., of Watts, Salmon, Roberts, Manning & Noojin, and David H. Culver of Culver & Miller, Huntsville, for appellants.
    James E. Davis, Jr., and E. Cutter Hughes, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee.
   SHORES, Justice.

This is an appeal by the plaintiffs from a judgment entered on a jury verdict in favor of the defendant. The suit arose from a collision on Highway 20 between the defendant Sullivan’s automobile and a patch roller (equipment for laying asphalt pavement) operated by the plaintiff Schrimsher.

On March 17, 1977, Schrimsher was operating a patch roller around the abutment of a bridge on Highway 20 for the Highway Department. Highway 20, divided by a median, consists of two westbound lanes leading to Decatur, Alabama, and two eastbound lanes leading to Huntsville, Alabama.

The paving work on the bridge along the two westbound lanes of traffic had been completed before the accident. Schrimsher had driven the patch roller some twelve hundred feet westwardly on the inside or left-hand westbound lane to the first crossover, turned into the crossover and stopped to check the traffic before proceeding to the eastbound lanes of the bridge.

Schrimsher testified that he saw a tractor trailer approximately one-half mile west of him, driving in the outside or right-hand lane of the two eastbound lanes. He then turned onto the inside or left-hand lane of the two eastbound lanes and proceeded towards the bridge at a rate of two to three miles per hour. He also testified that he intended to remain within that lane until he reached the bridge. The vehicular traffic on the highway at that time was described as “pretty heavy.”

Schrimsher had traveled approximately two hundred thirty-nine feet down the inside or left-hand lane when his vehicle was struck in the rear by the automobile driven by Sullivan.

Sullivan testified that immediately prior to the accident she was driving east towards Huntsville and was following a tractor trailer in the outside or right-hand lane. In attempting to pass the tractor trailer, she had just pulled out of that lane onto the inside or left-hand lane when she first saw the patch roller, jammed on her brakes, and struck the roller. The roller measured five feet eight inches in total width, was five feet high, and thirteen feet long.

Schrimsher testified that as a result of the accident, he had an operation to remove a herniated disc from his back and was forced to retire from work. The plaintiff Aetna Casualty and Surety Company paid Schrimsher’s workmen’s compensation benefits for the injury suffered by Schrimsher as a result of the accident and, therefore, claimed its right of subrogation.

At trial the plaintiffs alleged defendant’s negligence and wantonness. The jury returned a verdict in favor of the defendant. Both plaintiffs appeal.

The sole issue on appeal is whether the trial court erred in refusing the plaintiffs’ requested charges while granting the defendant’s charges relating to Code 1975, § 32-5-55, which, although repealed by Acts 1980, No. 80-434, § 15-106, effective May 19, 1980, was in effect at the time of the accident. The statute states:

Upon all highways of sufficient width, except upon one way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of such highway unless it is obstructed or impassable and except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in Section 32-5-131 and 32-5-132. Any person violating this section shall be guilty of a misdemeanor and punished as provided in Section 32-5-312.

The plaintiffs’ requested charges that were refused state:

No. 23. The Court charges the jury that Alabama Code (1975), Section 32-5-67(3) which requires that slow moving vehicles use the right lane does not apply to a multiple lane highway and therefore does not apply to the Plaintiff, Clarence Schrimsher, in this case.
No. 74. The Court charges the jury that one using a highway divided by a median with two lanes of traffic going in either direction is, subject to the rule that he must exercise reasonable care for others thereon, free to travel in any portion of the highway he chooses, having due regard for the safety of others.

The defendant’s requested charges that were given by the court and duly excepted by the plaintiffs state:

No. 16. The Court charges the jury that the law in the State of Alabama provides that upon all highways of sufficient width, the driver of a vehicle shall drive the same upon the right half of the highway, and shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of such highway, unless it is obstructed or impassable, and except when overtaking or passing another vehicle. The Court further instructs the jury that if you are reasonably satisfied from all of the evidence in this ease that the Plaintiff, Clarence Schrimsher, Jr., violated the foregoing provision of law, such violation on his part would constitute negligence as a matter of law, and the Plaintiffs herein could not recover under the claim premised upon negligence, if such negligence on the part of the Plaintiff, Clarence Schrimsher, Jr., proximate-Iy contributed to the injuries and damages claimed herein.
No. 18. The Court charges the jury that the law of the State of Alabama provides that upon all highways of sufficient width, the driver of a vehicle shall drive the same on the right half of the highway and shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of said highway, unless it is obstructed or impassable, and except when overtaking and passing another vehicle. The Court further instructs the jury that the Defendant, Joan Silver Sullivan, had the right to assume that the Plaintiff, Clarence Schrimsher, Jr., in operating a slow moving asphalt roller, would observe the rule of the road mentioned above, and that she is entitled to act upon the assumption that until such time as she was reasonably and sufficiently apprised of the fact that the Plaintiff, Clarence Schrimsher, Jr. would not observe the rule of the road.

By giving the defendant’s requested charges, the trial court, in effect, interpreted Code 1975, § 32-5-55, to apply to four lane highways. We agree.

This Court has long held that violations of the statutory rules of the road which proximately result in injury to another constitute negligence per se. See Murphree v. Campbell, 266 Ala. 501, 97 So.2d 892 (1957). It is also an established rule that a driver of a vehicle on Alabama highways may proceed in the exercise of reasonable care under the assumption that others in traffic around him will observe the statutory rules of the road. See Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963).

However, the plaintiffs claim that the rule of the road requiring drivers to stay on the right-hand side did not apply, as a matter of law, to multiple lane highways. In support, they cite Brown v. Bush, 220 Ala. 130, 124 So. 300 (1929). In that case, a requested jury charge stated:

“The court charges the jury that under the law of the road, the driver of a car must keep to the right hand side the way he is going, and if there are two divisions or roadways provided on the same road, one for automobiles traveling in one direction and the other for those traveling in the opposite direction, then, prima fa-cie it is the duty of one driving an automobile in a certain direction along said road or street to use that division of the road or street provided for use for those traveling in the direction in which he is going, and a failure to do so would prima facie be negligence on his part, and if he did not do so the burden would be on him to show a legal excuse for not so doing.”

220 Ala. at 130, 124 So. 300.

There was no error in refusing defendant’s charge No. 8. It is not the rule of the road under all circumstances. A split street, indicated by barrier or line of demarcation or by two driveways, for practical purposes may be treated as separate highways. It is required of persons driving or riding on such street that they shall, when practicable, use the right-hand side thereof, as they proceed. This, however, is a duty that may be modified or changed by the immediate condition, use, or obstructions in or on such highway. That is, subject to the rule that one using a highway must exercise reasonable care for others thereon, he is free to travel on any portion of the highway which he chooses, having due regard for the safety of others.

220 Ala. at 131, 124 So. 300.

This case is inapplicable to the plaintiffs’ contention. The Court’s language was specific to the particular circumstances of that case, which were very different from those involved here. A reading of the entire opinion in Brown v. Bush, supra, shows that the case dealt with a situation where a four lane highway was under construction and some detouring back and forth was permitted between two and four lanes along the highway. In such a situation, the Court correctly decided that it would be improper to charge that the driver must always stay in the “division of the road or street provided for use for those traveling in the direction in which he is going.”

The plaintiffs also state that in all prior decisions in which it has been held that Code 1975, § 32-5-55, applies, the situation involved only two lanes of highway, each going in opposite directions. See Hubbard v. Thrasher, 26 Ala.App. 252, 157 So. 680 (1934); Daniel v. Matthews, 46 Ala.App. 568, 246 So.2d 457 (1971); Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So.2d 865 (1943). While this may be true, we can find no prior decision that has expressly limited this statute to only two lane roads. We can find no reason to do so now.

The purpose of the statute is twofold. First, the statute instructs that “except upon one way streets, the driver of a vehicle shall drive the same upon the right half of the highway.... ” It seems clear to us that the purpose of this portion of the statute is to prevent collisions between vehicles going in opposite directions by keeping traffic out of oncoming lanes, whether there be one, two or four of them. The term “right half” could encompass any number of lanes going in the same directions.

Secondly, the statute uses the conjunction “and” to also instruct that “[the driver of the vehicle] shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of such highway unless it is obstructed or impassable and except when overtaking and passing another vehicle.... ” The purpose of this portion is clearly to facilitate passing of such slow moving vehicles on the left by overtaking traffic. See Daniel v. Matthews, supra. There is nothing in this portion of the statute which would suggest that it be limited to two lane roads. In fact, it seems well suited for multi-lane highways, in that it provides that the inside or passing lane on such highways should be unobstructed by vehicles moving considerably slower than the normal flow of traffic.

A review of the statute that replaced Code 1975, § 32-5-55, supports our interpretation as to its applicability to four lane highways. Code 1975, § 32-5A-80(b), states:

Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway. ... [Emphasis added.]

Plaintiffs also argue that it would be manifestly absurd to apply Code 1975, § 32-5-55, to multiple lane highways since requiring that “the driver of a vehicle shall drive the same upon the right half of the highway ...” would result in long traffic jams on all interstate and multi-lane highways as each driver attempts to drive in the right-hand lane of the highway except to pass. They then cite numerous cases from other jurisdictions where the court had found that such behavior should not be required. See Riehl v. DeQuarne, 24 Wis.2d 23, 127 N.W.2d 788 (1964); Claypoole v. Motor Finance Corporation, 125 N.J.L. 440, 15 A.2d 794 (1940); Poe v. New Amsterdam Casualty Company, 154 So.2d 519 (La.App.1963).

This statute does not mandate that all drivers must drive in the right-hand lane of the highway except to pass. It only requires that all drivers have a duty to stay on their right half of the highway, and drivers of slow moving vehicles have the additional duty to stay in the right-hand lane of the right half of the highway.

The plaintiffs also contend that the legislature clearly did not intend this statute to apply to four lane highways because to do so would cause it to be incompatible with four other statutes and thereby render them meaningless.

The statutes are: (1) Code 1975, § 32-5-67, which provides:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply:
(3) Official signs may be erected directing slow-moving, traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway and drivers of vehicles shall obey the directions of every such sign.

(2) Code 1975, § 32-5-68, which provides:

Whenever any highway has been divided into two roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over, across or within any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection established by public authority.

(3) Code 1975, § 32-5-77, which provides:

(a) Any law to the contrary notwithstanding, the director of the department of public safety is hereby authorized to restrict driving in the extreme left side in any portion of any interstate highway, or of any highway of sufficient width, except for overtaking and passing. He may issue any reasonable rules and regulations necessary to implement this section.

(4) Code 1975, § 32-5-134, which provides:

(a) The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:
(3) Upon a one-way street or upon any roadway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and of sufficient width for two or more lines of moving vehicles.

We disagree that a holding that § 32-5-55 is applicable to four lane highways renders these other statutes meaningless. Once again, a conflict would arise only if § 32-5-55 required that all vehicles must stay in the right-hand lane. These statutes are not in conflict with the duty imposed on a driver of a slow moving vehicle to drive as closely as possible to the right-hand curb. They merely supplement that duty under certain circumstances. Mere overlapping of some wording does not make one superfluous.

Lastly, plaintiffs contend that the statute is not intended for the protection of drivers in an overtaking position such as the defendant. The Daniel v. Matthews, supra, decision is clear authority to the contrary. The Alabama Court of Civil Appeals was correct in holding that:

The purpose of the cited rule of the road [Code 1975, § 32-5-55] is to insure that right of way is made available for other traffic lawfully using the highway, either oncoming or overtaking. [Emphasis added.]

46 Ala.App. at 570, 246 So.2d 457.

For these reasons, the trial court was correct in holding that Code 1975, § 32-5-55, was applicable to multi-lane highways. Plaintiffs’ requested charges were correctly refused, and defendant’s charges were properly granted.

AFFIRMED.

TORBERT, C. J., and JONES and BEAT-TY, JJ., concur.

MADDOX, J., concurs in the result.


author: ALMON, Justice.

text:
    Dalton J. GEORGE and Margaret George, v. ALABAMA POWER COMPANY, et al.
    79-513.
    Supreme Court of Alabama.
    July 31, 1981.

      Dennis Abbott, Pell City, for appellants.
    John P. Scott, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Church, Trussell & Robinson, Pell City, for appellees.
   ALMON, Justice.

Dalton George, plaintiff in a personal injury action, appeals from a directed verdict granted in favor of the defendant, Alabama Power Company. We affirm.

George, an ironworker with fifteen years of experience, sustained a back injury while sorting or “shaking out” several twenty foot long, 250 pound iron rails at the Greene County Steam Plant. George’s immediate employer, Dunn Construction Company, was under contract to perform various maintenance and improvement projects at the steam plant. George served as the iron-worker foreman on Dunn’s crew at the plant.

At the time of his injury, George and two other ironworkers were assigned the task of constructing a monorail in a tunnel underneath the plant. After reviewing the plans for the monorail, all three men determined that additional ironworkers would be needed to safely perform the work. This fact was allegedly brought to the attention of both Alabama Power and Dunn Construction. Apparently, no action was taken on their request for more men. The three then began working on the monorail and, as his co-workers were performing preliminary welding in the area, George began sorting through the rails and was injured.

George sued Alabama Power, alleging that his injuries were caused by Alabama Power's negligent failure to provide an adequate work force and a safe place to work. These allegations stem from the contract between Alabama Power and Dunn Construction which contained various provisions outlining the duties and authority of the respective companies. The provision to which George attaches particular significance is the grant to Alabama Power of the authority to limit the size of Dunn’s work crews and to prohibit Dunn from hiring additional workers without Alabama Power’s approval. George contends that this provision, coupled with others in the contract, created a master-servant relation between Alabama Power and Dunn even though the contract provided that Dunn was acting as an independent contractor.

At the close of George’s presentation of the case, Alabama Power moved for and was granted a directed verdict. George contends he raised a scintilla in support of his claims that a master-servant relation existed between Alabama Power and Dunn; that Alabama Power had a corresponding duty to provide an adequate work force; that this duty was breached when it failed to do so after it was apprised of the fact that more ironworkers were needed; and that he was injured as a result of Alabama Power’s failure to provide the additional men. He therefore argues that a directed verdict was erroneously entered against him. We disagree.

In Reynolds v. Atlantic Coast Line R. Co., 251 Ala. 27, 36 So.2d 102 (1948), affirmed 336 U.S. 207, 69 S.Ct. 507, 93 L.Ed. 618 (1949), the wife of an employee sued his employer under the Federal Employers Liability Act for the wrongful death of her husband. One of the allegations in her complaint was that the employer negligently failed to provide an adequate number of employees to perform the tasks assigned. In affirming the trial court’s action sustaining defendant’s demurrer to this allegation, this Court stated:

Conceding that defendant did not provide sufficient help, yet there is no showing whatever of a direct causal connection between that omission and the death of Reynolds. It is not alleged that he was not free to handle his own movements, or that any superior’s orders required him to pursue the course of conduct he did pursue. It cannot be said that the omission to provide sufficient and competent help was the primary moving cause, which in the natural and probable sequence of events, and without the intervention of a new or independent cause, produced Reynolds’ fall between the [railroad] cars, and his death. * * *

251 Ala. at 32, 36 So.2d at 106 (citations omitted).

Similarly, in Seymour v. Holman, 229 Ala. 634, 158 So. 525 (1935), the plaintiff, an experienced carpenter employed by the defendant as a foreman to perform and oversee repair work, was injured when a heavy timber he and his fellow workers were using to jack up a wall slipped and hit the plaintiff’s ankle. In his suit against his employer, the plaintiff alleged, inter alia, that the employer negligently failed to provide an adequate workforce. This Court affirmed the giving of an affirmative charge below, stating:

While plaintiff’s testimony tended to show an inadequate force to handle certain heavy timbers, such as sills and floor joists, there is no evidence that three men were an inadequate force to handle this timber at the time. Especially is there a want of testimony showing that any danger incident to this work was unavoidable by reasonable precautions in planning the work, a matter under plaintiff’s control.
The employer is not to be held negligent for inadequacy of force to do a specific work, if there was a safe and reasonable way to do it with the force at hand. He may reasonably assume the foreman in charge will adopt such plan as to conserve his own safety.
The burden was on plaintiff in this case to show inadequacy of force to place this timber with safety, employing such plans and precautions as were reasonably open to him.

229 Ala. at 635, 158 So. at 526. The same rule and placement of the burden of proof was followed in Louisville & N. R. Co. v. Green, 255 Ala. 642, 53 So.2d 358 (1951), another action brought under the Federal Employers Liability Act.

Viewing the present case in the light of the facts, rules and decision in Seymour, we are of the opinion that the trial judge properly directed a verdict in favor of Alabama Power. Dalton George is an experienced ironworker. When he began working at the steam plant he was employed as the superintendent in charge of the other iron-workers. Although he was classified as a non-working foreman at first, when the number of ironworkers was reduced, leaving himself, Ferguson and Coley, he became a working foreman. In that capacity he retained the authority to instruct and order the other ironworkers as to the tasks they were to perform and the manner of performance; he also aided them in the completion of those jobs.

At trial, George conceded that ironwork-ers usually work in pairs and that this is the safest way to shake out the rails. He also admitted that he needed another ironwork-er at the other end of the rail in order to safely shake it out. Although no time constraints were placed upon the completion of the monorail, and although he had the authority to order the other ironworkers to help him, he did not ask the others to help him shake out the rails.

It is clear from the foregoing that the danger incident to this work was avoidable by the implementation of other reasonable precautions in planning the work, a matter completely within George’s control. Alabama Power imposed no time constraints upon the completion of the monorail so that securing the aid of his fellow ironworkers in shaking out the rails would have been an eminently reasonable precaution to employ. Even construing the facts in a light most favorable to George, it is clear that he failed to carry his burden of showing that the force supplied by Alabama Power was inadequate to shake out the rails, given such plans and precautions as were reasonably available to George. The fact that Alabama Power may have stood in a master/servant relation to Dunn Construction in no way alters this result. It follows, therefore, that the trial judge properly entered a directed verdict for Alabama Power and his judgment is due to be affirmed.

AFFIRMED.

TORBERT, C. J. and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Hazel T. KOONCE v. Nannie Sue MIMS, etc., et al.
    79-618.
    Supreme Court of Alabama.
    July 31, 1981.

      Carl E. Chamblee of Chamblee & Cham-blee, Birmingham, and Walter W. Furner of Furner, Boyce, Nave & Thomason, Bessemer, for appellant.
    Robert E. Paden and George W. Andrews of Paden, Green & Paden, Bessemer, for appellees.
   ALMON, Justice.

Hazel Koonce, contestant below, appeals from a judgment for the proponents in a will contest. We affirm.

James Wilson Koonce was admitted to Lloyd Noland Hospital in Birmingham, Alabama, on October 18,1974, for treatment of his emphysema and heart trouble; he was released from the hospital eighteen days later. While confined to the hospital, James consulted with J. Clewis Trucks, an attorney, and requested Trucks to draft a will for him. Trucks complied with this request and, on October 22, 1974, James executed the will. This will left James’s entire estate to his two sisters, Edith K. White and Nannie Sue Mims.

Although at the time he executed his will he was not married, James married Hazel Thomas Koonce in April of 1976. When he died in September of 1978, Nannie and Edith, as the named co-executrixes of James’s will, filed the will for probate in the probate court of Jefferson County, Alabama, Bessemer Division. Hazel subsequently filed a will contest in the circuit court. As grounds for the contest, Hazel alleged (1) that James was of unsound mind and incompetent at the time he executed the will; (2) that the will was neither properly executed by James nor properly witnessed; and (3) that the will was procured through undue influence exercised by both Edith and Nannie. By way of amendment to her complaint, Hazel dropped the counts of improper witnessing and undue influence. Thus, the issues framed for trial focused upon whether James had the requisite capacity at the time he executed his will and, if so, whether he properly executed his will.

Upon the conclusion of the trial, the trial judge directed a verdict in favor of the proponents (Edith and Nannie) on the question of testamentary capacity, and the jury returned a finding that the will was the valid last will and testament of James Koonce. Hazel appeals, raising several issues.

Hazel argues that the trial judge erred by permitting Dr. A. K. Black, the physician who treated James for twenty years as well as when he was confined to the hospital, to testify as to his opinion of James’s competency on the day he executed his will. That testimony was brought out during cross examination of Dr. Black by the attorney for the proponent:

Q And I’m going to ask you this, Doctor. Are you telling this jury that this man was mentally incompetent on the 22nd day of October, 1974?
MR. FURNER: Judge, that calls for a mental conclusion.
MR. PADEN: This is their doctor.
MR. CHAMBLEE: Well, mental incompetence is not the test.
MR. FURNER: It’s a legal conclusion, Your Honor.
THE COURT: Sustained.
MR. PADEN: You mean we can’t ask their own witness, a physician, as to whether or not the man he was treating—
THE COURT: I’ll let him answer that.
MR. PADEN: Would you read the question?
(Requested portion of record read.)
A When I recorded this note on the morning of the 22nd, I had no reason to think he was incompetent mentally.
Q Is that your opinion this day also, concerning his condition on the 22nd day of October, 1974?
A I have no opinion different than what is recorded on the chart of this date.
Q Doctor, I’m going to ask you if based on your treatment of James Wilson Koonce for a period of approximately 20 years, is that correct, you treated him?
A Right.
Q Based on your knowledge and treatment of him over that period of time, based on your knowledge and treatment of him from October 18th to October 22nd, 1974, based on the notes that you have there before you and what you have received, do you have an opinion as to whether or not James Wilson Koonce was mentally competent on October 22, 1974?
A From my notes—
Q No, sir; do you have an opinion?
A I have no opinion except what is in the notes.
Q And you told us what your notes indicated.
A Right.
Q And based on those notes, what is your opinion, Doctor?
A It is my opinion, on the morning of October 22, 1974, from my note, I had no reason at that time to think he was incompetent mentally.
Q You have nothing to change your mind as of this date?
A No, sir.

According to Hazel, the admission of this opinion-was in error because it invaded the province of the jury. We disagree.

In Councill v. Mayhew, 172 Ala. 295, 55 So. 314 (1911), the Court restated the well settled rule

that, on the issue as to testamentary capacity, a witness, whether expert or not, cannot testify that the testator was or was not capable of making a will, because, as it is said, this is the very issue to be submitted to the jury.

172 Ala. at 306, 55 So. at 317 (citations omitted).

In Elliott v. Elliott, 372 So. 2d 846 (Ala.1979), the contestant in a will contest cited the rule in Council} as grounds for finding reversible error in the admission of the following testimony:

Q Okay. Now I will ask you if on June 17,1971, if you have some opinion as to the mental capacity of Myrtle Whit-more Elliott?
Mr. Keith: We object to that.
The Court: Overruled.
A Yes, I do.
Q And in your judgment was she of sound mind?
A She was absolutely of sound mind in my opinion.

This Court found no reversible error because the testimony “was not the conclu-sionary testimony condemned in Councill.” 372 So.2d at 848.

The opinion evidence admitted in the present case falls within the rule of Elliott Dr. Black’s testimony was directed to James’s competency at the time he executed his will and not to the ultimate issue of testamentary capacity. Thus, there was no error in the admission of this opinion evidence.

Hazel also asserts that the trial judge erred by granting the proponents’ motion for directed verdict on the issue of testamentary capacity. We disagree.

The law presumes that every person of legal age has the capacity to make a will. Fletcher v. DeLoach, 360 So.2d 316 (Ala. 1978); Haghart v. Cooley, 278 Ala. 354, 178 So.2d 226 (1965). The burden of proving the lack of the requisite capacity is cast upon the party who contests the validity of a will. Fletcher v. DeLoach, supra; Dersis v. Dersis, 210 Ala. 308, 98 So. 27 (1923). In order to survive a motion for directed verdict in a will contest, the contestant must produce at least a scintilla of evidence in support of his or her claim. Bardin v. Jones, 371 So.2d 23 (Ala. 1977).

Dr. Black testified at trial that James was receiving various medications for his heart problems and emphysema as well as the anxiety which accompanied his shortness of breath. He further testified that, according to the notes he recorded during James’s hospital stay, on October 22nd James was “[improving; still quite weak; heart rate 112 and irregular.” On October 23rd, Dr. Black recorded that James was “[n]ot doing well; lethargic and not as clear mentally.” On cross examination Dr. Black testified that, based upon his notes, he had no reason to think that James was mentally incompetent on October 22nd, the day James executed his will.

Hazel contends Dr. Black’s testimony raises a scintilla that James was incompetent on October 22nd. We cannot agree. Any scintilla that James may have lacked testamentary capacity on the 22nd simply because he was “not as clear mentally” on the 23rd would be based upon pure speculation. As this Court has stated, “[t]he scintilla rule is not satisfied by speculation.” Arrington v. Working Woman’s Home, 368 So.2d 851, 854 (Ala.1979). Because such speculation is insufficient to raise a scintilla that James lacked the requisite testamentary capacity at the time he executed.his will, it follows that the trial judge did not err in directing a verdict on that issue.

Finally, Hazel argues the trial judge erred to reversal by admitting over objection other testimony. We find no reversible error.

The two issues at trial were James’s capacity and whether he properly executed his will. The trial judge directed a verdict on the first issue, and the jury returned a verdict in favor of the proponents on the second issue. Hazel does not contend the jury verdict was erroneous. We have reviewed the alleged objectionable testimony and conclude that it in no way changes the fact that Hazel failed to raise a scintilla of proof that James was incompetent at the time he executed his will. We therefore cannot say that the admission of such testimony was reversible error.

For the foregoing reasons, the judgment below is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Lewis J. HILL, et al. v. CAPE CORAL BANK, as Administrator of the Estate of James I. Holman.
    80-90.
    Supreme Court of Alabama.
    July 31, 1981.

      Van Gamble, Birmingham, for appellants Lewis J. Hill and Judy Hill.
    R. A. Norred, Birmingham, for appellant Jim Walter Homes, Inc.
    John S. Casey, Heflin, for appellee.
   EMBRY, Justice.

Defendants, Jim Walter Homes, Inc., Lewis J. Hill, and Judy Hill, appeal from a judgment entered on a jury verdict in favor of the plaintiff in a statutory action in the nature of ejectment. Code 1975, § 6-6-280. Cape Coral Bank, as administrator of the estate of James I. Holman, deceased, was substituted for the plaintiff James I. Holman after his death during pendency of this action. Plaintiff complained that Jim Walter Homes, Inc. had constructed a house for Lewis J. and Judy Hill and they had lived in it upon land belonging to James I. Holman. Defendants admitted they were in possession of Holman’s land but alleged the possession was adverse and had been for three years next before commencement of plaintiff’s action and further they had made permanent improvements upon the property, the value of which greatly exceeded the value of the use and occupation of the land, and even of the land itself. They went on to allege that the improvements were susceptible of removal without damaging or injuring the real property and had been made in good faith and in a bona fide belief they had the right to make them and to receive payment for them. Further, that all had been done as the result of an excusable mistake of fact and it would constitute unjust enrichment to allow plaintiff to receive the beneficial ownership of the improvements. They went on to pray, in their answers, that as equitable relief, should it be determined that the real property belonged to plaintiff, they be allowed to remove the improvements from it. This defense was a partial effort of defendants to avail themselves of the benefits provided by Code 1975, § 6-6-286. After trial, the jury found the assertion of adverse possession to be false; that plaintiff was entitled to recover possession of the land, but awarded no damages.

The only issue on this appeal is whether the jury’s finding that defendants had not adversely possessed the lands for the requisite three years required by § 6-6-286 was against the preponderance of the evidence.

The evidence shows that on 21 February 1973 Lewis Hill and Judy Hill purchased one acre of land in Winston County, Alabama, from Tillman Treece and Eva Mae Treece. The one acre tract was described as being 70 yards long and 70 yards wide and located in the NW corner of the SW Vi of NW % of Section 25, Township 10S, Range 8W. The remainder of the SW Vi of NW Vi was owned by James I. Holman and he also owned the adjoining E xh of SE Vi of NE Vi of Section 26, Township IOS, R8W. The sketch in attachment A shows the location of the land occupied by the Hills relative to the location of that which they bought from the Treeces.

In midsummer of 1973, Eli Pruit, a neighbor of the Hills, told Mr. Hill that their mobile home was on the wrong parcel of land; nevertheless, the Hills remained on the property. On 8 October 1975 the Hills contracted with Jim Walter for the construction of a home. Jim Walter took a mortgage from the Hills on the property (parcel B on the attached sketch) the Hills purchased from the Treeces to secure the purchase price of the home. Jim Walter built the house on the property of James I. Holman near the Hills’ mobile home (parcel A in the attached sketch). The Hills moved from their mobile home into the house in late October or early November 1975. Mr. Holman asked them to move off of his property in late November or early December of 1975 but they continued to live there until after he filed suit against them on 11 June 1976.

Records of the tax assessor showed the one acre parcel the Hills purchased from the Treeces (parcel B in the attached sketch) was assessed for ad valorem taxes in the Hills’ names but the parcel upon which their mobile home and house were located (parcel A in the attached sketch) had never been assessed in their names.

Defendants’ answer was substantially based upon Code 1975, § 6-6-286:

(a) When an action is commenced to recover land or the possession thereof, the defendant may, at any time before the trial, suggest upon the record that he, and those whose possession he has, have, for three years next before the commencement of the action, had adverse possession thereof, which must be construed to mean the same character of possession as will put in operation the statute of limitations. In such case, if the jury finds for the plaintiff, it must also ascertain by its verdict whether such suggestion is true or false. If the jury finds it to be false, it must return a verdict for the damages as in ordinary cases. If the jury finds it to be true, it must assess the value, at the time of trial, of the permanent improvements made by the defendant, or those whose estate he has, and also ascertain by its verdict the value of the lands and of the use and occupation thereof, not including the increased value by reason of such improvements.
(b) If the value of the use and occupation as assessed exceeds the value of the permanent improvements made, judgment must be entered against the defendant for the excess. If the value of the improvements exceeds the value of the use and occupation, no writ of possession shall issue for one year after the entry of the judgment unless the plaintiff or his legal representative pays the defendant, or deposits with the clerk for him, the excess of the assessed value of the improvements over the value of the use and occupation. If the plaintiff or his legal representative neglects for the term of one year to pay such excess, and the defendant or his legal representative within three months after the expiration of the year pays to the plaintiff, or to the clerk for him, the value of the land and of the use and occupation thereof as assessed by the jury, the plaintiff is forever barred from his writ of possession and from commencing any action whatever against the defendant, his heirs or assigns to recover such land or the possession thereof.

A suggestion offered by a defendant under that section constitutes a defense in the nature of a counterclaim for the value of permanent improvements, and carries with it the burden to prove every fact necessary to support that claim. Kerret v. Nicholas, 88 Ala. 346, 6 So. 698 (1889). The defendants’ burden is to prove three years of adverse possession of the same character that would put into operation the statute of limitations prior to the commencement of the action for ejectment. To meet the burden the defendants must prove their possession was actual, hostile, open, notorious, exclusive and continuous for the three year period. Jemison v. Belcher, 368 So.2d 849 (Ala.1979); Cameron v. Union Hill Baptist Church, 350 So.2d 314 (Ala.1977). Such possession must be in good faith and under color of title. Pickett v. Doe, ex dem. Pope, 74 Ala. 122 (1883); New Orleans & S. R. Co. v. Jones, 68 Ala. 48 (1880); Lamar v. Minter, 13 Ala. 31 (1848). The absence of evidence that defendants had a deed to the property, subject of this suit, and the absence of evidence that they paid ad valorem taxes on the property, for which plaintiff sued to recover possession, is sufficient to substantiate a jury’s finding that defendants did not hold the property under color of title. The testimony that the Hills had been told they were on the wrong property would support a jury’s finding that there was a lack of good faith in their continued possession of the property. However, the most damaging evidence to the Hills’ case was Mrs. Hill’s testimony to the effect that she and her husband really never claimed to own the acre where the house was located.

The question of adverse possession is one properly determined by the trier of facts. English v. Brantley, 361 So.2d 549 (Ala.1978). The jury found for the plaintiff and the trial court refused to grant a new trial on the basis that the verdict was supported by the evidence.

. . . Jury verdicts are presumed to be correct and no ground for granting a new trial will be more carefully scrutinized or more rigidly limited than that the verdict is contrary to the weight of the evidence .... This presumption, as to the correctness of jury verdicts, is strengthened when the trial judge refuses to grant a motion for new trial.... And on appeal, this court will not reverse a trial court’s refusal to grant a new trial on the ground of insufficiency of evidence unless, after allowing all reasonable presumptions of correctness, the preponderance of evidence against the verdict is so decided as to clearly convince the court that it is wrong.... [Citations omitted.]

Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972).

Under the evidence in this case the jury was authorized to reach the verdict it did and therefore that verdict is not against the preponderance of the evidence and the judgment entered thereupon is due to be and is hereby affirmed.

AFFIRMED.

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