author: PER CURIAM.

text:
    Sherry THORNTON v. Dr. S.M. MAHAN, Jr., et al.
    81-469.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Ralph E. Coleman, Birmingham, for appellant.
    W.B. Fernambucq of Huie, Fernambucq & Stewart, Birmingham, for appellees.
   PER CURIAM.

Appellant Sherry Thornton initiated this cause against Appellee Dr. S.M. Mahan, Jr., seeking damages for permanent facial dis-figuration allegedly resulting from Dr. Mahan’s negligence in performing a root canal on Ms. Thornton’s tooth, and in his subsequent care and treatment thereof. From a judgment entered upon a jury verdict favorable to Dr. Mahan, Ms. Thornton appeals.

We affirm.

THE FACTS

On July 3, 1978, shortly after an incident in which she fractured a tooth, Ms. Thornton visited the offices of Dr. Mahan for purposes of having her injury treated. Over the course of several visits, Dr. Mahan performed a root canal on Ms. Thornton’s tooth, using a procedure commonly known in the profession as the “Sargenti” method. In November of 1978, a small bump or pimple appeared on Ms. Thornton’s face. During the next two months this facial irregularity persisted, and grew larger. In January 1979, without success, Ms. Thornton tried antibiotics for treatment of her face. Subsequently, a hole developed at the spot of the pimple.

Because of the proximity of the hole and the tooth repaired by Dr. Mahan, Ms. Thornton consulted Dr. William Powell, a dentist in Birmingham, who, in turn, referred Ms. Thornton to Dr. William Buck, an oral surgeon. Upon his examination of Ms. Thornton, Dr. Buck was able to insert a probe into the hole on Ms. Thornton’s face, down to the tooth repaired some months earlier by Dr. Mahan. Dr. Buck performed surgery, whereupon the hole and its related complications healed. In November 1979, a second bump appeared, approximately one inch from the earlier one. At this point, Ms. Thornton was hospitalized for two weeks as a result of her continued facial problem.

Dr. Mahan testified at trial that he had performed some 100 apicoectomies, a procedure for cleaning out granulation areas of an abscessed tooth. Dr. Mahan first became aware of the “Sargenti” procedure in 1974, at a seminar in Birmingham. The procedure utilizes a motorized mechanism for packing the Sargenti “paste” into the repaired tooth, as opposed to the “gutta-percha” and “silver point” methods, which apply their paste by hand.

Dr. Charles R. Yates, a Bessemer, Alabama, dentist and witness for the Defendant, testified that the State Board of Dentistry in Alabama had neither advocated nor prohibited the use of the “Sargenti” procedure. Dr. Yates submitted that, during the course of his practice, he had performed some two to three thousand root canals using the “Sargenti” method.

THE ISSUE

The issue at trial focused primarily on whether Dr. Mahan was negligent in his utilization of the “Sargenti” method. Because this issue of fact was resolved against the Plaintiff, only one issue is dispositive of this appeal: Did the trial court err in its denial of Appellant’s proffered treatise as evidence of the Federal Drug Administration’s rejection of the “Sargenti” method?

THE DECISION

During the course of the proceedings below, Plaintiff called Dr. William Powell, a clinical instructor in crown and bridge work at the University of Alabama in Birmingham, and a practicing dentist in the Birmingham area since 1972. The crux of Dr. Powell’s testimony was aimed at evidencing the university dental program’s disapproval of the “Sargenti” method, and the fact that it is not taught there. While Dr. Powell was testifying to this fact, the following transpired under questioning by Plaintiff’s counsel:

“Q. All right. Since you’ve graduated from the University of Alabama Dental School, up until this date continuously, has the University of Alabama ever taught the Sargenti technique?
“A. Not to my knowledge.
“Q. To your knowledge, has the University of Alabama ever sponsored any workshop or seminar wherein the technique was taught?
“A. Not to my knowledge.
“Q. Does the F.D.A., the Federal Drug Administration, does it approve the utilization of Sargenti paste?
“MR. FERNAMBUCQ: We object to that as hearsay. Certainly there would be records to show whether or not it is. If he has them, we would like to see them.
“THE WITNESS: I have some.
“Q. (continuing) If you would, you may answer then.
“MR. FERNAMBUCQ: If he has the records, all right.
“THE WITNESS: Would you like to see it?
“THE COURT: What date is it?
“THE WITNESS: It’s the T.I.C.
“Q. (Continuing) What is the T.I.C.?
“A. It’s a magazine put out by the Tico-nium Laboratory. It just has some—
“MR. FERNAMBUCQ: (Interposing) Is it a magazine put out by some sales company or agency?
“THE WITNESS: It’s put out by a laboratory.
“MR. FERNAMBUCQ: We object to it as being hearsay, Your Honor. It’s not from the F.D.A. and that’s what he asked him.
“THE COURT: I don’t think you can establish a lab magazine and bind it to the F.D.A.
“THE WITNESS: It’s written by a dentist and an attorney. He’s one and the same.
“Q. It’s regarding a federal regulation?
“A. It’s written here by the editor. The paper is part of 36 annual postgraduate dental seminars sponsored by the association in cooperation with the Department of Public Health.
“THE COURT: Does it state a federal regulation?
“THE WITNESS: It talks about it.
“THE COURT: Does it give a cite on what the number of the regulation is? Does it say when the regulation was promulgated?
“THE WITNESS: It quotes the F.D.A., a guide to dental materials and it talks about the meeting in 1975 of the F.D.A. and—
“THE COURT: (Interposing) That’s not what I’m asking. I’m asking if in that article they make a reference to a specific regulation that might have been promulgated at a particular time by the Food and Drug Administration. Otherwise, it’s hearsay. In other words, what you’re reading is what somebody else’s opinion is. Do you see what I’m talking about?
“THE WITNESS: I’m not familiar with it.
“THE COURT: For dental purposes, it might be fine, but for legal purposes, we can’t allow it. That’s what I’m saying.”

Had the professional laboratory pamphlet been proffered as a learned treatise, grounded upon a proper predicate within the contemplation of the rule, Appellant’s contention that the trial court erred in denying its admission on grounds of hearsay, would be correct. Within prescribed limits, this State’s policy towards admission of learned treatises, essays, or pamphlets on subjects of science and the arts, as exceptions to the hearsay prohibition, is well established. C. Gamble, McElroy’s Alabama Evidence § 258.01 (3d Ed.1977), states

“A learned treatise, essay or pamphlet on the subject of science or art, which is testified to by an expert on the subject as being the standard or trustworthy authority on the subject, is admissible as an exception to the hearsay evidence rule.”

As a dental pamphlet, evidencing attitudes of that profession towards utilization of the “Sargenti” method, Plaintiff had the right, within the prescription of the rule, to admit into evidence the proffered publication. Here, however, the evidence of record makes clear that the proffer of this pamphlet was merely in furtherance of the Appellant’s original question: “Does [the F.D.A.] approve of the Sargenti method?” Clearly, that question, asked of Dr. Powell, was inadmissible as hearsay. Likewise, the T.I.C. pamphlet was inadmissible because of the lack of a proper predicate qualifying the proffered document as a “learned treatise.” Indeed, a careful reading of the record discloses that Appellant’s trial counsel did not attempt to invoke the “learned treatise” exception to the hearsay rule.

AFFIRMED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Charles Bruce HALL, as Administrator of the Estate of Charles Bruce Hall, Jr., deceased v. David BOOTH, et al.
    81-477.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Michael D. Smith of Hall, Clark & Smith, Eutaw, for appellant.
    John A. Owens, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellee David Marvin Smart and for appellee Leonard H. Cunningham.
    Olin W. Zeanah and R. Larry Bradford, of Zeanah, Donald & Hust, Tuscaloosa, for appellees Carl Taylor, Horace Claude Poole, James A. Price, Sr., and James A. Price, Jr.
   MADDOX, Justice.

The sole issue involved in this appeal is the liability of an unincorporated hunting club for the death of a young thirteen-year-old boy who was accidentally shot during a deer hunt. The trial court granted summary judgment in favor of all defendants who were members of the unincorporated hunting club; except, the case was not dismissed against the party who actually shot and killed the young boy.

Appellant does not assert that any of the dismissed defendants actually shot the decedent, but he seeks to extend liability to members of the hunting club based on an alleged duty to conduct the hunt safely. The critical issue before the Court is if such a duty exists, and is breached, can that constitute proximate cause in a shooting death? The trial court, based on the facts presented on the motion for summary judgment, refused to extend liability to those defendants who did not actually shoot the decedent. We affirm.

Construing the basic facts in favor of the appellant, they are as follows: Appellant, Charles Bruce Hall, Sr., his son Chuck, and Charles Tubbs left Tuscaloosa on December 29, 1979, and went to the Union Hunting Club in Greene County to participate in a deer hunt. Once at the hunting site, Hall paid a guest fee to the hunting club’s president James A. Price, Sr., Price, his son, James A. Price, Jr., Carl Taylor and Horace Claude Poole, Jr., were all members of the Union Hunting Club and were named as defendants in this action. The same counsel represented these appellees. Another attorney represented two other club members, Leonard Cunningham and David Marvin Smart.

The evidence showed that two hunts were conducted that day. On both hunts some of the men were designated as drivers and the other men were standers. The drivers’ job was to start from a specific location and walk through the woods, hopefully driving any deer toward the standers. The standers were placed at specific spots along one of the roads located in the woods. The first hunt ended without any incident.

The evidence shows that during the second hunt Hall, Chuck and Tubbs took stands on Pecan Tree Road. Hall asserted that one Claude Poole instructed them on where they should stand. The parties do not agree on whether Leonard Cunningham then sent other men, including David Booth, down Pecan Tree Road. The appellant claims Cunningham sent the men down Pecan Tree Road with instructions to act as drivers and further, that Cunningham told them that no one else was on Pecan Tree Road. Cunningham claimed that he never told anyone where hunters were located during the second hunt.

David Booth took a position on Pecan Tree Road and awaited the signal to begin the drive. As the signal was given to begin the drive, Booth heard a noise. He turned and saw movement. Booth fired twice at what he thought was a deer. The shots struck Chuck Hall and caused his death. It was clear from the evidence that only Booth fired the fatal shots.

While the evidence may indicate that possibly some of the appellees, particularly Cunningham and Poole, could have been negligent in the manner they conducted the second hunt, this evidence, even if proven to the reasonable satisfaction of a jury or factfinder, could not extend liability to them under the facts of this case, because the element of proximate causation is missing. This Court has ruled that however negligent a party may have been in some particular, he is accountable only to those injured as a proximate result of such negligence. Where some independent agency intervenes and is the immediate cause of the injury, the party guilty of prior negligence is not liable. See Smith v. Alabama Water Service, 225 Ala. 510, 512, 513, 143 So. 893 (1932). While the actions of the appellee may have been a cause in Chuck Hall’s tragic death, the appellant must show that appellee’s negligence constituted “ ‘the proximate, that is, the direct and immediate, efficient cause of the injury.’ ” Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 224, 130 So.2d 388 (1961) (quoting Western Railway of Alabama v. Mutch, 97 Ala. 194,196, 11 So. 894, 895 (1892)).

This Court has not addressed the issue raised on appeal before in a similar factual setting, but opinions from other jurisdictions are persuasive and have promulgated rules of law applicable in cases involving similar hunting accidents. When a hunter fires without first identifying his target and shoots another person, that irresponsible act is the proximate cause of injury regardless of some negligence on the part of the victim. Fowler v. Monteleone, 153 So. 490, (La.Ct.App.1934). In Fowler v. Monteleone, the Court opined:

“The plaintiff’s alleged contributory negligence in leaving his stand before the hunt was over and wandering in the barricaded area was passive and not a contributing cause of the shooting.”

Id. 494. The Court noted, however, that under the circumstances of that case, the plaintiff/victim was not guilty of contributory negligence. See also, Green v. Hagele, 595 P.2d 1159, 1161 (Mont.1979).

In an analogous situation involving the question of proximate causation, this Court ruled that:

“Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between the alleged negligence act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 (1954).”

Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976). In Vines the facts showed that the defendant had left his truck parked unlocked in an alley with the keys in the ignition. Auto theft was common in the area. A person stole the vehicle and subsequently had a collision which caused the plaintiff’s injuries. This Court ruled that the stealing of the truck was an unforeseeable event that broke the causal chain. Id. at 1339.

Generally, of course, proximate cause is a question for the jury. Havard v. Palmer & Baker Engineering, Inc., 293 Ala. 301, 307, 302 So.2d 228 (Ala.1974). In that case, this Court considered for the second time an appeal regarding an accident in the Bankhead Tunnel in Mobile. After the case had been remanded, the plaintiff amended her complaint and asserted that the defendant’s negligent maintenance of fire-fighting equipment in the tunnel was the proximate cause of the decedent’s death. This Court there held, in part, as follows:

“The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if care is not exercised. Orlo v. Connecticut Co. 128 Conn. 231, 21 A.2d 402 (1941) and cases cited. See also 65 C.J.S. Negligence § 4(11) (1966).
“But, as stated in Orlo, the test here is, would an ordinary man in defendant’s position, knowing what they knew or should have known, anticipate that injury of the nature of that suffered was likely to result. Applying this test the complaint as amended by Count Eight alleges a duty. It could be foreseen or anticipated by Palmer & Baker that a fire could break out in the Tunnel and when it did break out, good and workable fire-fighting equipment would be needed to fight the fire....
“The final point is whether the amended complaint sufficiently alleges proximate cause. We conclude that it does. In the end proximate cause is a question for the jury. Giles v. Gardner, 287 Ala. 166, 249 So.2d 824 (1971); McCaleb v. Reed, 225 Ala. 564,144 So. 28 (1932). The alleged intervening cause of the injury, viz., the truck running into the rear of decedent’s car, is not of itself sufficient to relieve Palmer & Baker of liability since it is their original negligent act which is alleged as being the proximate cause of the decedent’s death.”

Id. 302 So.2d at 307.

Here, if the alleged shooting was foreseeable, if due care was not exercised, then proximate causation would have been a jury question, but under the circumstances of this case, we hold that the trial court did not err in finding that the shooting of Chuck Hall by Booth was the proximate cause of his death, and was also an unforeseeable event that broke any causal chain which might extend liability to any 'of the appellees; therefore, the trial court properly granted the motions for summary judgment dismissing the appellees and the order is, therefore, due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ann G. KENNEDY, Matthew W. Harris and Diane E. Harris v. CITY OF MONTGOMERY.
    81-520.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Roger S. Morrow, Montgomery and Ted Taylor, Prattville, for appellants.
    Charles B. Paterson and G. Dennis Na-bors of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   BEATTY, Justice.

These consolidated cases involve claims alleging that the City of Montgomery has wrongfully allowed flooding of the plaintiffs’ homes. The plaintiffs appeal from summary judgment in favor of the city. We reverse.

The plaintiffs allege that their homes, located on South Hull Street in Montgomery, have been subject to flooding for several years. They filed damage claims with the city and made numerous requests to have the drainage system in the area improved. They received no relief and filed suit in July 1981.

The complaints are in four counts. Count One states that the city “negligently caused the Plaintiffs’ property and home to be flooded on numerous occasions in the past two years.” Count Two states that the city’s unsuccessful attempts to provide adequate drainage for ordinary rainfall has caused water to be cast upon the Plaintiff’s property. In their briefs the parties treat Count Two as based upon a lower property owner’s common-law right not to be injured by interference of an upper property owner with the natural drainage of water onto the lower property. Count Three states that the city’s employees acted wantonly in failing to provide adequate drainage. Count Four states that the conditions created by the city constitute a nuisance. The relief sought was damages in the amount of $100,000 and an injunction prohibiting the city from permitting further flooding.

After the two cases were consolidated, the parties engaged in extensive discovery. The city then filed a motion for summary judgment, stating that the complaints fail to state a claim upon which relief can be granted, because the city has no duty to maintain proper drainage and prevent flooding. The motion also stated that any damages were not proximately caused by the city. Based on consideration of the pleadings, an affidavit and several depositions, the trial court granted summary judgment in favor of the city without explanation.

The question on appeal is the propriety of summary judgment on the following issues: (1) As to the negligence and wantonness counts, whether the city had a duty to control the drainage and flooding on the plaintiffs’ respective properties. This is the threshold issue for both the negligence and wantonness counts, which the parties treated together in their briefs. (2) As to Count Two, whether the plaintiffs’ common-law right to be free from interference by an upper property owner with the natural drainage onto their property created a claim against the city. (3) As to Count Four, whether the plaintiffs had claims to compensatory damages or injunctive relief based on the law of nuisance. Of course, at this stage in the proceedings, we are not determining the merits of these issues but only deciding whether there exist genuine disputes as to material facts, precluding judgment as a matter of law.

I

Under Code of Ala.1975, § 11-50-50, municipalities are authorized to construct and maintain drainage systems. However, a municipality is not required to exercise this authority. In general a municipality has no duty “to provide and maintain proper drainage of surface water from a resident’s property to prevent flooding and damage to the property. That is a function committed to the municipality which calls for the exercise of governmental discretion.” Hendrix v. Creel, 292 Ala. 541, 545, 297 So.2d 364 (1974). Once the authority to construct or maintain a drainage system is exercised, a duty of care exists, and a municipality may be liable for damages proximately caused by its negligence. Fricke v. City of Guntersville, 254 Ala. 370, 48 So.2d 420 (1950); City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353 (1932). This reflects the familiar tort principle that liability may arise from the negligent performance of a voluntary undertaking. Beasley v. MacDonald Engineering Co., 287 Ala. 189,193, 249 So.2d 844 (1971).

Here, the city relies on Hendrix v. Creel, supra, and Hursey v. City of Mobile, 406 So.2d 397 (Ala.1981), to argue that it has never undertaken to limit what is simply natural drainage of surface waters onto the plaintiffs’ properties. In Hendrix the Court found that the City of Dothan had no duty to maintain drainage through a watercourse that followed the natural contour of the land, where the city’s previous use and maintenance of the watercourse to drain adjacent properties was not sufficient to create an easement by prescription. In Hursey the City of Mobile held a drainage easement in a ditch that followed the natural fall of the land. This Court found that the city had no duty to maintain drainage, because the city had not constructed the ditch and had cleared it only twice in ten years.

In the present case a drainage ditch or swale runs along the rear lot lines of the plaintiffs’ properties, where the city holds an easement (as in Hursey). The city contends that this ditch simply follows the natural fall of the land as in Hursey and Hendrix, while the plaintiffs’ argue that this ditch is an integral part of an inadequate drainage system. Flooding occurs in periods of above average rainfall, when this ditch and the 12-inch pipe into which it passes become insufficient to hold all the water that flows onto the plaintiffs’ properties. Evidence was presented that the problem could be remedied only by spending $500,000 to $1,000,000 to install larger drainage pipes in the area.

The plaintiffs’ position is that the city’s right to drainage through the easement “carries with it the corresponding duty to maintain the ditch in such a condition that the water cast into the ditch by the city not cause it to overflow.” City of Mountain Brook v. Beatty, 292 Ala. 398, 406, 295 So.2d 388 (1974). In our view this case, rather than Hursey and Hendrix, applies (1) if the city has undertaken control of the drainage system for the plaintiffs’ properties and (2) if waters from the city’s drainage system— rather than natural drainage of surface waters — caused the flooding problems.

From review of the materials submitted by the parties in support of their positions, it is clear that a genuine dispute exists on these two factual matters. For example, the affidavit of the city maintenance superintendent states that routine maintenance of the area’s drainage system includes inspection and clearing of the ditch that traverses the plaintiffs’ lots. In depositions the city engineer indicated that the water from the area was channeled into the ditch across the plaintiffs’ land. Such evidence is sufficient to establish that summary judgment was inappropriate on Counts One and Three.

II

Count Two of the complaints is based on the common-law right of a lower property owner not to be injured by interference of an upper property owner with the natural drainage of water onto the lower property. See generally Mitchell v. Mac-kin, 376 So.2d 684 (Ala.1979). As the Court of Civil Appeals has noted, this is a distinct cause of action, not dependent upon proof of negligence or trespass. Sargent v. Lambert Construction Co., 378 So.2d 1153 (Ala. Civ.App.1979). We believe that this cause of action is inapplicable, because the city is not an upper property owner. The cases cited by the plaintiffs involve adjoining landowners and do not support their position. The relation between the parties in those eases is not comparable to the relation between the city and the plaintiffs here.

III

Count Four and the prayer for in-junctive relief in each complaint are based on the law of nuisance. The statutory definition of a nuisance is

“anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance.... ” Code of Ala.1975, § 6-5-120.

However, the lawfulness of the act complained of, though irrelevant to a claim for money damages, does affect the availability of injunctive relief. “[Pjroof of negligence is required to sustain injunctive relief ordering abatement of a nuisance when the conduct giving rise to the conditions complained of was expressly authorized by legislative act.” City of Birmingham v. City of Fairfield, 375 So.2d 438, 441 (Ala.1979). Here, the parties agree on the applicability of this rule, since Code of Ala.1975, § 11-50-50, authorizes construction of municipal drainage systems.

The city apparently rests on the contention that it had no legal duty and therefore could not be negligent. We have already held that the plaintiffs are entitled to a trial on the negligence and wantonness counts since they may be able to establish that the city violated a duty of care. Accordingly, the summary judgment must also be reversed on the issue of injunctive relief for abatement of the alleged nuisance.

The city does not discuss in brief whether the conditions complained of constituted a nuisance, entitling the plaintiffs to compensatory damages. Rather, the city argues in reference to both nuisance and negligence, that the courts have no authority to review a policy decision concerning maintenance or improvement of the city’s drainage system. This argument reflects a misunderstanding of the issues presented for decision. We hold only that the plaintiffs are entitled to a trial to prove the existence of a nuisance and of a duty of care. Further exploration of the factual matters discussed above is necessary to determine if the city engaged in a nonreviewable policy decision or in culpable conduct, either negligent or wanton.

The judgment below must be affirmed as to Count Two, reversed as to Counts One, Three and Four, and remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: JONES, Justice.

text:
    PEPSI-COLA BOTTLING COMPANY OF DOTHAN, ALABAMA, INC. v. COLONIAL SUGARS, A DIVISION OF BORDEN, INC.
    81-580.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      C.R. Lewis of Lewis & Brackin, Dothan, for appellant.
    T.E. Buntin, Jr. of Buntin & Cobb, Do-than, for appellee.
   JONES, Justice.

Plaintiff/Appellant Pepsi-Cola Bottling Company of Dothan, Alabama, Inc., commenced this proceeding with a four-count complaint, two counts of which (on account and negligence) were against Colonial Sugars, a division of Borden, Incorporated, seeking recovery of $10,156.27 allegedly paid by Pepsi to Colonial for 56,000 pounds of bulk sugar delivered via Southern Railway Systems. The crux of the complaint was that a refund of such monies was appropriate, because, upon delivery, portions of the sugar were nonextractable from the railroad car.

The case was tried to a jury, which returned a verdict favorable to Colonial. Pepsi appeals. We affirm conditionally.

FACTS

In April of 1979, Pepsi ordered from Colonial 176,362 pounds of bulk sugar at a price of 18.63 cents per pound. The cargo was shipped in one naqua-matic bulk sugar railroad car which contained three compartments, and was delivered to Pepsi on April 25, 1979, for which Pepsi paid Colonial in excess of $32,000.

Upon arrival in Dothan, for reasons unknown to Pepsi at the time, only two of the three compartments operated so as to freely discharge their contents. Following repeated attempts to rectify the situation, with no success, Pepsi was informed by Colonial’s Mobile office to return the car and its one unloaded compartment to Colonial’s plant in Gramercy, Louisiana. After receiving the ear back in Louisiana, Colonial discovered that of the approximately 56,000 pounds of sugar originally in compartment three upon the car’s leaving Dothan, only 2,150 pounds remained. Thereupon, Colonial issued to Pepsi a credit memorandum in the amount of $264.45 based upon 2,050 pounds at $12.90 per hundredweight.

ISSUES PRESENTED AND STANDARDS OF REVIEW

Of the three issues stated, only the “preponderance of the evidence” issue is properly before us for review. Pepsi’s abstract statement of issue No. 1, as well as the argument section of its brief, suggests no adverse ruling of the trial court to invoke appellate review. Additionally, our review of the record discloses that the court’s instruction to the jury was confined to the plaintiff’s claim for damages based upon the combined negligence of Colonial Sugars and Central of Georgia Railroad and Colonial’s alternative defenses of the general issue and contributory negligence. Pepsi seeks to invoke our review of specific statutory provisions of the UCC upon which neither was the case tried nor the jury instructed.

Issue No. 2 is not properly before us because of Pepsi’s failure to comply with ARCP 51. This Rule of civil procedure effected a major change in the former practice permitting reservation of error by the trial court’s merely marking a written requested charge “refused.” The Rule is explicit in its requirement of a specific objection and the assignment of grounds therefor. The record before us is devoid of any objections to any jury instructions given or refused on the point in question. For a series of cases in which this Court addressed the proper application of Rule 51, see Odom v. Linsey, 365 So.2d 664 (Ala.1978); Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979); hol-lar v. Alabama Power Co., 371 So.2d 9 (Ala. 1979); Louisville and Nashville Railroad Co. v. Garrett, 378 So.2d 668 (Ala.1979); Chil-dress v. Cooper Real Estate, Inc., 399 So.2d 286 (Ala.1981); Ward v. Southern Pine Electric Cooperative, Inc., 401 So.2d 22 (Ala. 1981); Walker v. Dutton, 401 So.2d 32 (Ala. 1981); and Alabama City Bank of Gadsden v. Vaughn, 413 So.2d 1053 (Ala.1982).

The requested affirmative charge in this case does not fall within the purview of the exception to Rule 51’s application set forth in Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977). Pruitt correctly recognized that, ordinarily, a request for an affirmative charge is the legal equivalent of a motion for a directed verdict; but it conditioned the exemption of such a request from the requisites of Rule 51 on the trial court’s awareness of the movant’s position.

Pruitt posed the inquiry thusly: “[C]an a specific objection and stated grounds add to an explanation of such a request?” Generally speaking, a motion for directed verdict contains its own grounds, implicit in the context in which it is made; and a specific objection to the court’s adverse ruling, and the assignment of grounds therefor, add nothing, because the request is self-explanatory.

Such is not the case here, however. Pepsi seeks appellate review of the trial court’s refusal of the affirmative charge, based upon the application of complex UCC principles, but it is clear from the record that such matters were not brought to the trial court’s attention. Furthermore, we note that no request for additional instructions on the law of the case relating to any claim other than negligence was ever forthcoming. Indeed, during a pre-charge conference in which the trial court considered, and preliminarily ruled upon, each of the parties’ respective requested charges, and in which counsel was given the opportunity to register objections, the court’s announced refusal of Pepsi’s requested affirmative charge was met with total silence. Matters not presented below will not be reviewed on appeal. Johnston v. Bridges, 288 Ala. 156, 258 So.2d 866 (1972).

The preponderance of the evidence issue, having been presented by Pepsi to the trial court as a ground for its post-judgment motion for a new trial, is properly before us for review. Johnston v. Bridges, supra. Our scope of review is governed by familiar standards. Absent a failure of proof claim (i.e., given a sufficiency of evidence to overcome a directed verdict), one who challenges a judgment based on a jury verdict on grounds of the weight and preponderance of the evidence bears a heavy burden.

This burden finds its basis in the sanctity of a jury verdict, and the presumption of its correctness; and if the verdict is supported by the evidence, the presumption is strengthened where the trial court overrules a motion for a new trial. This is not to say that in all events and under all circumstances jury verdicts, supported by some evidence, are beyond judicial review. After indulging all presumptions of validity, and viewing the evidence most favorably to the nonmoving party, if the trial court is convinced that the verdict is so against the great weight and preponderance of the evidence as to be clearly wrong, it is the court’s duty to set the verdict aside and order a new trial. First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510 (Ala.1982). Likewise, under the same standard, a trial court’s ruling is subject to appellate review for abuse of discretion.

Turning now to the evidence, we find no direct testimony bearing on the mysterious loss of the sugar from the train on its return shipment from Alabama to Louisiana. There is, however, an abundance of circumstantial evidence—centered primarily around the defective handling of the shipment by both Colonial and Pepsi— which gives rise to conflicting inferences as to whose fault resulted in the loss. Indeed, our review of the evidence proceeds on this premise, because of Pepsi’s failure to challenge the sufficiency of the evidence and Colonial’s sole insistence on appeal that the weight and preponderance of the circumstantial evidence of Pepsi’s contributory negligence sustains the verdict.

We agree with Colonial as to the negligence claim. Although the jury could have interpreted the evidence favorably to Pepsi, Pepsi’s own testimony is replete with showings of circumstances from which the jury could conclude that the failure to extract the sugar was grounded in the ineptness and inexperience of Pepsi’s employees in dealing with liquified sugar. Likewise, although the exact cause of the loss remains unknown, the jury could have found that the loss occurred during shipment and that the loss was due to Pepsi’s mishandling of the extraction process.

The inferences from the evidence supportive of Pepsi’s claim of negligence do not reach such a degree of preponderance as to outweigh the contrary inference of Pepsi’s contributory negligence and thus impugn the jury verdict. We find no abuse of discretion on the part of the trial court in overruling Pepsi’s motion for a new trial as to the negligence claim.

When the preponderance of the evidence test is applied to the claim in assumpsit, however, we are constrained to reach a different result. Assuming no tort liability on the part of Colonial, we, nonetheless, are unable to find any explanation of Colonial’s credit to Pepsi for only 2,050 pounds of sugar, when Colonial’s own uncontradicted testimony shows that the amount of sugar returned was 2,150 pounds. Likewise, Pepsi paid $18.63 per hundred pound weight for the original shipment, while Pepsi’s credit allowed by Colonial for the returned sugar was $12.90 per hundred pound weight.

As we concluded earlier, Pepsi’s allegation of error with respect to the trial court’s refusal to grant its affirmative charge was not properly presented for review. But this does not preclude our consideration of undisputed evidence which conclusively establishes Pepsi’s entitlement to a portion of its liquidated damages claimed in assumpsit. Apart from the charges and countercharges of fault (an issue settled against Pepsi), Colonial’s credit to Pepsi for $264.45 is $135.40 less than $399.85—the full amount due for the sugar returned to and accepted by Colonial. Thus, a zero verdict for Pepsi is unsupported by the evidence.

As to the claim for negligence, the judgment is affirmed. As to the claim for monies due on account, the judgment is affirmed conditionally. If, within 28 days from the date of the judgment of this Court, Colonial files in the trial court a confession of judgment in the amount of $135.40 and costs of court, and files with the clerk of this Court a certificate of the same, the judgment on appeal will be affirmed. Otherwise, the judgment will be reversed and a new trial ordered as to the claim on account.

AFFIRMED IN PART; AFFIRMED CONDITIONALLY, IN PART.

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

      . Plaintiffs original complaint was brought against Colonial Sugars, Southern Railway Systems (later replaced by Central of Georgia Railroad), and A to Z as unknown defendants. Defendants A to Z were later dismissed. No appeal is taken from a favorable jury verdict and judgment thereon for Central of Georgia.

      . The discrepancy between the numbers 2,150 and 2,050 is addressed later in this opinion.


author: FAULKNER, Justice.

text:
    David R. WINDHAM v. BLOUNT INTERNATIONAL, LTD., a corporation, et al.
    81-642.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    James H. Starnes of Starnes & Atchison, Birmingham, for appellees.
   FAULKNER, Justice.

David Windham appeals from a summary judgment granted in favor of Blount International, Ltd., on the basis of the employer’s immunity under the Alabama Workmen’s Compensation Act. We affirm.

Under the facts, it is undisputed that Windham was an employee of Blount, was injured in the course of his employment, and as a result of this injury collected workmen’s compensation. There is a factual dispute between the parties, however, as to who made the safety hook which caused Windham’s fall. Windham contends that a fellow employee of Blount fabricated the safety hook for Windham’s use. Blount, however, denies that it designed or fabricated this device and alleges that Windham was responsible for the unapproved safety equipment.

On May 7, 1981, Windham filed his complaint against Blount, seeking damages due to the negligent design and manufacture of the safety hook which caused his fall. This claim was made under the “dual capacity” doctrine. Blount filed a motion to dismiss the action, alleging that Windham was an employee of Blount at the time of the incident, and thus his exclusive remedy was workmen’s compensation.

The trial court considered the motion on behalf of Blount as one for summary judgment and granted that motion on April 7, 1982. This judgment was made final pursuant to ARCP 54(b). Windham filed notice of appeal, along with security for costs, on May 3, 1982.

The Workmen’s Compensation Act of Alabama provides that the rights and remedies granted to an employee “shall exclude all other rights and remedies of said employee.” Section 25-5-53, Code 1975. However, if the injury is caused by some conduct on the part of the employer which results from a separate, independent relationship between the employer and the employee, the doctrine of dual capacity may remove the action from the exclusive provisions of the Workmen’s Compensation Act. Mapson v. Montgomery White Trucks, Inc., 357 So.2d 971 (Ala.1978).

In this case, as in Mapson and in the later case of Stone v. United States Steel Corp., 384 So.2d 17 (Ala.1980), the facts do not afford us an opportunity to consider the merits of the dual capacity doctrine. Wind-ham was employed by Blount as an iron worker, and it was often necessary for him to work above ground in performing his work. Iron workers working for Blount normally wore safety belts when working above ground. At the time of the accident, Windham was tying iron approximately twenty feet above ground and was using a safety belt.

It was disputed as to who made the safety belt. This, however, is not the determining point as to whether the dual capacity doctrine applies. The employer must be acting in a special individual capacity separate from his capacity as employer in order to be subject to common law liability under the doctrine.

In this cause, Blount did not undertake any special relationship other than an employer-employee relationship with Wind-ham, and Windham’s injuries arose out of the very nature of his work. Windham was doing his regular job (tying iron) and Blount was performing a normal function by furnishing its employee with safety equipment.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte ASSOCIATES COMMERCIAL CORPORATION. (Re Wiley SANDERS, Jr. v. ASSOCIATES COMMERCIAL CORPORATION).
    81-725.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      W.B. Hairston, Jr., and G. Griffin Sikes, Jr., of Engel, Hairston, Moses & Johanson, Birmingham, for petitioner.
    N.J. Cervera of Cervera & Yancey, Troy, for respondent.
   EMBRY, Justice.

This is an original petition for the writ of mandamus, or in the alternative the writ of prohibition, by Associates Commercial Corporation to cause Honorable Terry L. Butts, Judge of the Circuit Court of Pike County, to:

(1) Void, vacate or annul a temporary restraining order issued 28 April 1982;

(2) To void, vacate or annul a preliminary injunction issued 7 May 1982; and to

(3) Direct that such orders be entered or issued to cause certain certificates of title to certain truck trailers to be restored to Associates Commercial Corporation that were delivered to Wiley Sanders, Jr., in compliance with the order of the trial court of 28 April 1982 (alleged by Associates to be void).

We issue the writ of mandamus conditionally.

The course of proceedings in the trial court presents a very bizarre set of facts. Those facts are well stated in Associate’s petition. The portions of that petition pertinent at this point read:

“1. On or about November 21, 1978 Associates Commercial Corporation (hereafter ‘Associates’) was assigned a security agreement by Tidwell Trailer & Equipment Company, Inc. (hereafter ‘Tidwell’) wherein Tidwell was secured party and Wiley C. Sanders, Jr. (hereafter ‘Sanders’) was debtor. A copy of this agreement is attached as Exhibit ‘A’ to Part V of this petition. The contract provides that 36 trailers secure the payment of a purchase price of $592,444.13 in accord with the terms of a promissory note executed by Sanders and attached as Exhibit ‘B’. Under the terms of the assignment Associates has a right of recourse against Tidwell. $153,912.66 was due on this contract as of April 28, 1982.
“2. On May 24,1979 Associates loaned Sanders $467,812.80 to purchase 32 trailers. To secure this obligation Associates was given a purchase money security interest in the trailers. A copy of the security agreement evidencing the debt and granting the security interest is attached as Exhibit ‘C’. $206,572.33 was due on this obligation of April 28, 1982.
“3. On or about January 12, 1982 Sanders advised Associates that he wished to pay off the debt evidenced by the May 24,1979 contract; substitute the collateral securing the May 24, 1979 contract for the collateral securing the November 21, 1978 contract; and secure a release of the collateral securing the November 21,1978 contract so that he could sell those trailers. Associates refused to release any collateral securing an obligation so long as the obligation was outstanding on which Associates refused to substitute collateral from one debt to the other.
“4. Sometime during the latter part of April, 1982, Sanders, with full knowledge that Associates would not agree to their release, entered into an agreement to sell 20 of the trailers securing the November 11, 1978 contract to Dorsey Trailers, Elba, Alabama. As a part of this sales transaction the trailers were delivered to the possession of Dorsey Trailers on or about April 22, 1982.
“5. On April 27, 1982 Sanders’ bookkeeper called Associates and requested information as to the amount then due on both contracts. In this conversation no mention was made of the fact that the vehicles secured by the November 21, 1978 have been sold or that an application would be made to the Circuit Court for the 12th Judicial Circuit for a temporary restraining order requiring Associates to deliver over the titles to these trailers.
“6. On April 27, 1982 Sanders and Sanders Lead Company, Inc. executed a bond payable to Associates in the amount of $300,000.00 conditioned on Sanders paying damages and cost that any person may sustain by the suing out of an injunction if that injunction was dissolved.
“7. On April 27, 1982 Sanders executed a sworn petition for declaratory judgment which asked for a temporary restraining order that would prohibit Associates from refusing to surrender ‘physical position, free from all encumbrances, of the security now being used to secure the security agreement 273 (contract of November 21, 1978) upon the tender by the plaintiff (Sanders) to the defendant (Associates) of the security now being used to secure security agreement 367 (contract of May 24, 1979).” A copy of the petition is attached as Exhibit ‘D’.
“8. In the April 28, 1982 Petition for Declaratory Judgment Sanders alleged, among other things; that the two security agreements referred to above did not prohibit substitution of collateral; that Associates was wrongfully refusing to accept a substitution of collateral; and that unless there could be a substitution of the collateral Sanders would ‘suffer immediate and irreparable injury, loss and damage before notice can be served and a hearing had thereon.’ The Complaint asked for a judgment declaring that Sanders had the right to cause a substitution of collateral. The prayer for relief contained the request that:
‘... this court will issue a temporary restraining order prohibiting the defendant from refusing to surrender physical possession, free from all encumbrances, of the security now being used to secure the security agreement No. 273 upon the tender by the plaintiff to the defendant of the security now being used to secure security agreement No. 367.’
The ultimate relief prayed for by Sanders was:
‘... the court will render a declaratory judgment declaring that the plaintiff has the permanent right to cause a substitution of collateral, provided said substitution does not adversely affect the defendant’s security position with respect to the security agreement No. 273.’ ”

On 28 April 1982, the trial judge, without notice to Associates and without holding a hearing, issued a temporary restraining order enjoining Associates from:

“. .. refusing to accept the released security from contract No. 367 dated May 24,1979 consisting of thirty-two (32) 1979 Utility flat trailers, serial numbers 7L9-2571-001 through 032 as the security for the indebtedness incurred under security agreement No. 273 dated November 21, 1978, thereby releasing and surrendering title to the security used to secure said contract No. 273. The defendant is further restrained from refusing to surrender to the plaintiff the unencumbered certificates of title to the security used to secure security agreement No. 273 more particularly described as follows: twenty (20) 1978 Utility 44 foot van trailers serial number 7U8199-001 through 005 and serial number 7U8-2000-001 through 005 and ten (10) 1978 Utility 40 foot van trailers, serial numbers 7U8-2137-001 through 010. This order shall be effective only upon plaintiff, in certified funds, paying off the outstanding indebtedness under the contract No. 367, thereby effectuating a release of the security under that contract so that that said security becomes available for the security under contract No. 273.’ ”

On the same date, the attorney for Sanders and a deputy sheriff of Pike County served Associates with the temporary restraining order and delivered certified funds in a sufficient amount to discharge the monetary obligations due under the contract dated May 24, 1979. The attorney for Sanders demanded endorsed certificates of title on those trailers subject to Associates’ security interest as described in the contract dated November 21, 1978. Associates complied with the mandate contained in the temporary restraining order.

The next day, Sanders formalized its sale to Dorsey Trailers by delivering 20 of the certificates of title obtained from Associates to Dorsey Trailers and receiving payment of $137,000.00. Sanders has apparently retained the possession and the endorsed certificates of title on ten of the trailers.

On 5 May 1982, Associates moved the Pike County Circuit Court to dissolve the temporary restraining order.

On 7 May 1982, a hearing was held before Judge Butts. Petitioner alleges that

“It does not appear from specific facts shown by affidavit or by verified complaint (a) that immediate and irreparable injury, loss or damage would result to Sanders before Associates can be heard in opposition; nor (b) any certification as to the efforts made to give notice and the reason supporting the claim that notice should not be required.”

and further alleges that the purpose of the hearing 7 May was

“... to consider Associates’ motion to dissolve the temporary restraining order and Sanders’ motion for a preliminary injunction. No evidence was offered the court as to the immediate and irreparable injury suffered by Sanders if he did not receive, by way of preliminary injunction, the relief requested in his complaint nor was there any evidence to substantiate the general allegations that Associates was under an obligation to substitute collateral for its various security interests on demand of Sanders. There was no evidence to support the allegation that the Circuit Court of Pike County had the authority to order Associates to make a substitution of such collateral.... ”

After the hearing the trial judge entered an order that, among other things, (1) dissolved the temporary restraining order; (2) granted the preliminary injunction; (3) stayed “all matters in the above styled case” pending further orders of the court; (4) continued the motion for preliminary injunction until 21 June 1982.

Petitioner also alleges that:

“The order of May 7, 1982 did not set forth the reasons for its issuance; was not specific in its terms; and did not describe in reasonable detail the act or acts sought to be restrained....”,

and further that:

“The preliminary injunction issued by the Court’s order of May 7, 1982 was not conditioned upon Sanders giving bond or other security to protect Associates from damages arising out of the granting of the preliminary injunction.”

The answer of Honorable Terry L. Butts to the petition states:

“1. The Court feels that the Petitioner seeking the temporary restraining order sufficiently established a need for same on the day same was issued, April 28, 1982.
“2. The Court feels that at hearing on May 7, 1982 the Petitioner seeking the preliminary injunction sufficiently established the necessity for same.
“3. The Petitioner for Mandamus and/or Prohibition Associates Commercial Corporation is in no way injured by the action taken by the Court in the above mentioned orders. In point of fact the court feels said Petitioner is adequately secured and the writ should be denied.”

The answer of Wiley Sanders, Jr., states:

“1. That on November 21, 1978, the plaintiff became indebted to the defendant in the amount of $592,444.13, said indebtedness secured by 36 1978 utility trailers. That on or about December 4, 1980, six of said trailers were released by the defendant without controversy and that as of April 28, 1982, those 30 1978 utility trailers were securing an indebtedness of $153,912.66.
“2. On May 24, 1979, the plaintiff became further indebted to the defendant in the amount of $467,812.80, said indebtedness being secured by 32 1979 utility trailers. And that during said negotiations of the May 24, 1979, indebtedness the plaintiff was assured by the defendant that as the trailers being used as security under the 1978 indebtedness became depreciated and less valuable the plaintiff would be permitted to substitute collateral thereunder so that said security may be disposed of by the plaintiff before said security would become valueless. The plaintiff was further advised by the defendant that said contracts would not prevent a substitution of collateral and, in fact, they do not. The substitution of collateral would be permitted only if the defendant would be as secure at the time of said substitution as it would have been prior thereto.
“3. In December 1981 the decision was made by the plaintiff that the 30 remaining trailers under the November 21, 1978 security agreement had depreciated to the point that it became necessary to dispose of the same, and plaintiff immediately thereafter requested of the defendant the necessary paperwork to effectuate said substitution, assuring the defendant that 32 newer model and more valuable trailers would be used as the substituting collateral to secure an indebtedness of approximately one-fifth of that which was being secured by 30 older model, less valuable trailers. Said request was in letter form and is attached hereto as ‘A’. The defendant refused to comply with its agreement, and said refusal was in the form of a letter from the defendant’s attorney to the plaintiff’s attorney. A copy of said letter is marked as Exhibit ‘B’ thereto.
“4. After many attempts to sell the 30 remaining trailers under the 1978 contract had failed, the plaintiff became concerned with the deteriorated condition of said trailers and in April 1982 the plaintiff found a purchaser for 20 of said trailers, conditioned upon the release of the titles being held by the defendant by May 1, 1982. In an attempt to protect the plaintiff’s interest, it again sought to have the trailers released, assuring the defendant that the substitution of collateral would place the defendant in a more secure position than they would be without said substitution. Again the defendant refused.
“5. That on the 27th day of April, 1972, the plaintiff executed a Petition for Declaratory Judgment which asked for a temporary restraining order conditioned upon the plaintiff executing a bond payable to the defendant in the amount of $300,000, with good and sufficient sureties (attached hereto and marked as Exhibit ‘C’) prohibiting the defendant from surrendering 30 1978 trailers and accepting the 32 1979 trailers as substituted collateral. The irreparable injury resulting to the plaintiff in its failure to surrender said titles by the 1st day of May, 1982, would have caused the plaintiff to lose a purchaser for the 1978 trailers which had deteriorated and depreciated to the point to where they were becoming less valuable than the amount owed thereupon. The net result of the Circuit Court’s relief granted the plaintiff was to leave the defendant as a creditor of the plaintiff in the amount of $153,912.66 secured by 32 1979 utility trailers and a $300,000 bond of good and sufficient sureties.
“6. The Circuit Court, at its May 7 hearing, set this cause upon its merits on June 21, 1982, in determining whether the plaintiff, under the contracts in question and the representations made by the defendant to the plaintiff, had a right of substitution of collateral. At said hearing the defendant filed a Motion for Continuance over the plaintiff’s objections, said motion being granted by the Circuit Court.”

There was absolutely no justification for the grant of injunctive relief to Sanders in this case. The pivotal rule that lies at the core of this case is that which says no court can rewrite the terms of a plain and unambiguous contract. See, e.g., Hardin v. John Hancock Mutual Life Ins. Co., 387 So.2d 123 (Ala.1980).

We agree with Associates that the trial court was without jurisdiction to issue a temporary restraining order. The complaint was not verified and neither did it, or any affidavit, contain specific facts showing that immediate and irreparable injury, loss, or damage would result to the applicant before the adverse party or its attorney could be heard in opposition. Additionally, there was no application in writing by the applicant’s attorney to the court regarding the efforts, if any, that had been made to give the notice and reasons supporting the claim that notice should not be required. It is therefore apparent that jurisdiction of the trial court was not invoked under the provisions of Rule 65(b), ARCP.

At the expense of repetition, we will again state the 7 May order:

“ORDER
“The above styled case came before the Court for hearing on temporary restraining order and motion to dissolve said temporary order. After hearing same was submitted to Court for ruling. Without comment on the evidence,
“IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court as follows:
“1. That motion of defendant to dissolve temporary restraining order is GRANTED.
“2. That motion of plaintiff for preliminary injunction is GRANTED pending further orders of the Court as set out herein.
“3. All matters in the above styled case are STAYED as said matters presently exist as of the date of this order pending further orders of the Court other than as set out hereinabove.
“4. The Court desires further hearing on matters before the Court including but not limited to motion for preliminary injunction, petition for declaratory judgment, and forthcoming answer to be filed by the defendant to the herein named motions, petitions and declaratory judgment.
“5. Accordingly, all of the matters and things including but not limited to the motion for preliminary injunction, petition for declaratory judgment and forthcoming to same and any other matters that may arise and/or exist in the above styled case are consolidated and set for hearing on their respective mer-its_”

Thus it appears the TRO this order purportedly dissolves effectively makes permanent the terms of that TRO subject only to further hearings to take place at a time too late to afford Associates any relief if a preliminary injunction was denied. In overall effect, the TRO became a permanent injunction. The 7 May order did not state reasons why it issued or was entered; was not specific in its terms, and did not describe in reasonable detail what act or acts it sought to restrain (when “all matters in the above styled case are STAYED as said matters presently exist.... ”). That order was therefore legally ineffective, International Brotherhood of Electrical Workers v. Morton, 365 So.2d 662 (Ala.1978).

Absent an agreement contained in the security instrument the debtor cannot require the substitution or release of collateral. By the terms of the security agreements between the parties in this case, only payment of the debts would require release of the collateral.

Associates correctly calls attention to the statutory provisions applicable to, and affecting the result in, this case. To quote Associates:

“There is only one way that the holder of a security interest properly perfected by notation on the certificate of title can be required to surrender that certificate and thereby remove the restraints on its debtor. That way is following demand after satisfaction of the obligations.
Section 32-8-64(a) Upon the satisfaction of a security interest in a vehicle for which the certificate of title is in the possession of the lienholder, he shall, within ten days after demand execute a release of his security interest, in the space provided therefor on the certificate or as the department shall prescribe, and mail or deliver the certificates or release to the next lien-holder named therein, or, if none, to the owner or any person who delivers to the lienholder an authorization from the owner to receive the certificate.
Since there has been no satisfaction of the obligation secured there can be no forced release of the certificates of title.”

Section 7-9-201 provides: “[A] security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors”, and as the Court of Civil Appeals has pointed out in Get It Kwik of America, Inc. v. First Alabama Bank of Huntsville, 361 So.2d 568, 572 (Ala.Civ.App.1978):

“The terms of the security agreement are effective as between the parties to the agreement. The security agreement is, however, effective against purchasers of the collateral in the context of protecting the secured party’s interest by allowing repossession of the collateral or allowing an action for conversion.”

We have researched diligently and we have found no case authority to support the proposition that a debtor can require the substitution of or release of collateral in the absence of enabling contract provisions; however, there are a few cases where the secured party has attempted to substitute collateral. See, e.g., In re Dykes, 20 U.C.C. Rep.Serv. 524 (Bankr.E.D.Tenn.1976); In re McTerry Corp., 8 U.C.C.Rep.Serv. 108 (Bankr.D.C.Conn.1970).

In the McTerry case, both parties to the contract agreed to a substitution of collateral. Notation of substitution was made on the security agreement and on substituted certificates of title. In ruling that there was no substitution of collateral the court held:

“There is no question as to what the parties intended. Had the original security agreement provided for a substitution of collateral the claim of the petitioner would be stronger. However, there was . no such provision and the matter must be considered in the same light as though this was an original undertaking. By no stretch of the imagination can the original security agreement with notations thereon initialled by the secured party be interpreted as the written signature of the debtor.” McTerry at 109.

Conversely, if the original security agreement does not contain a provision for substitution of collateral or if there is no subsequent “substitution of collateral” agreement, the debtor cannot require substitution of collateral.

If, upon the basis of this decision, the trial court does not:

(1) void, vacate or otherwise annul the temporary restraining order issued on 28 April 1982; and

(2) void, vacate or otherwise annul the preliminary injunction issued on 7 May 1982; and

(3) issue such orders as may be necessary to restore to Associates those title certificates that were delivered to Sanders in compliance with the order of the trial court of 28 April 1982; a writ to effectuate that action will, upon request of petitioner, be granted.

WRIT GRANTED CONDITIONALLY.

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


text:
    Ex parte Dorothy RIGGS. (In re Steve DRINKARD, By and Through his next friend Dorothy RIGGS. David DRINKARD, By and Through his next friend Dorothy RIGGS v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama; and Thelma Cook).
    81-752.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Vaughan Drinkard, Jr., and S.C. Middle-brooks of Drinkard & Newton, Mobile, for petitioners.
    Clyde P. McLendon, Asst. Atty. Gen., State Dept, of Pensions and Sec., Montgomery, and Richard G. Alexander, Mobile, for respondents.
   FAULKNER, Justice.

This is a petition for writ of mandamus. Mrs. Riggs’s children were allegedly assaulted by a Mobile schoolteacher, Thelma Cook. Mrs. Riggs reported this to the Department of Pensions and Security. The Department investigated, and during the investigation Ms. Cook is alleged to have made admissions of the assault to the Department. .

Mrs. Riggs filed a damage suit against the teacher and the Mobile County school commissioners. Subsequently, she filed a motion to produce all reports, summaries, documented interviews, or other written evidence of any communication to an agent, servant, or employee of the Department of Pensions and Security regarding the Riggs-Cook investigation.

The Department moved for a protective order on the ground of confidentiality of the records, citing Code 1975, § 26-14-8. The trial judge, Michael Zoghby, granted the Department’s motion.

The respondent judge declined to have an in camera viewing of the written evidence and ruled that the records were strictly confidential and not subject to perusal by the court or counsel for Mrs. Riggs.

Mrs. Riggs seeks a writ of mandamus to Judge Zoghby, praying that he be ordered to permit her to discover the Department records. We opine that at the very least, the trial judge should conduct an in camera inspection of the subject records and any other written evidence to determine if there is relevant evidence, and, if so, grant Mrs. Riggs the right to discover that evidence from the files of the Department of Pensions and Security. Ex parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979).

WRIT OF MANDAMUS GRANTED.

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


text:
    Alice Matilda GAYLORD, Individually and as Executrix of the Estate of James W. Gaylord, deceased, v. Sara G. GOLDBLATT.
    81-756.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Frank W. Riggs, Montgomery, for appellant.
    George Beck of Baxley, Beck & Dillard, Montgomery, for appellee.
   JONES, Justice.

This is a will contest case. Item II of the will under inquiry provides:

“My real property at 449 North Ryan Street, Montgomery, Alabama, I will, devise and bequeath to my wife, Alice Matilda Gaylord, for her lifetime only, with remainder to my lineal descendants, in equal shares per stirpes. I also give to my said wife the power to sell, mortgage, convey or otherwise dispose of said real property during her lifetime.”

Appellant states the issue presented: “[Wjhether ... Alice M. Gaylord was given the right, under the will of her late husband, James Wessley Gaylord, to sell, mortgage, convey or otherwise dispose of certain real property during her lifetime.” The trial court voided the second sentence of Item II, holding that it “does not give an absolute power of disposition to the widow.”

The controlling statute is § 35-4-292, 1975 Code:

“(a) When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power is not executed or the lands sold for the satisfaction of debts during the continuance of such particular estate.
“(b) When a like power of disposition is given to any person to whom no particular estate is limited, such person also takes a fee, subject to any future estate which may be limited thereon; but absolute in respect to creditors and purchasers.
“(c) In all cases where such absolute power of disposition is given, not accompanied by any trust, and no remainder is limited on the estate of the donee of the power, he has an absolute fee.”

Nevin v. Nevin, 366 So.2d 266 (Ala.1979), which controls this case, paraphrased these statutory provisions thusly:

“[A]n owner of a life estate with an absolute power of disposition may convey a fee absolute as to creditors and purchasers, but if the power is not executed the future estates limited thereon are effective.” Nevin v. Nevin, at 267-68.

At common law, if a testator devised real property to a person for life with absolute power of disposition, that person took a fee simple interest in the property; and this fee simple interest could not be defeated by further providing for the remainder to vest in other persons if the power of disposition was not exercised during the lifetime of the life tenant. Young v. Sheldon, 1139 Ala. 444, 36 So. 27 (1904). See, also, Reeves v. Tatum, 233 Ala. 455, 172 So. 247 (1937).

The obvious intent of § 35-4-292 was to effect a change in the common law so as to give effect to the testator’s intent, thus, where clearly provided in the will, allowing the remainderman to receive the property if the life tenant died without disposing of it. Nevin, supra, and Reeves, supra. See, also, Williams v. Spears, 235 Ala. 611, 180 So. 266 (1938).

The challenge, here, does not center on the remainderman’s right to receive the property in the event the widow does not dispose of it during her lifetime. Rather, the contingent remainderman attacks the widow’s right to dispose of the property (or, perhaps more literally expressed, she contests that provision of the will giving the widow the power to dispose of the property). When viewed in this posture, the issue, quite simply, is whether Item II of Mr. Gaylord’s will gives an absolute power of disposition to this widow.

The item of the will in question contains two sentences: The first devises a life estate to his wife with remainder to his lineal descendants; the second gives his wife the power to dispose of it during her lifetime. The trial court agreed with the contestant that the two sentences were legally inconsistent, in that the testator could not in one breath give the property to his wife “for her lifetime only,” and in the next breath empower her to dispose of it.

We disagree. The limiting phrase “for her lifetime only” in the first sentence merely invokes the operation of § 35-4-292, allowing the testator’s lineal descendants to take the property in the event his widow does not dispose of it. This “limitation” on the widow’s devised interest does not restrict, or otherwise render less than absolute, her power to dispose of the property during her lifetime. A contrary holding would necessarily thwart, rather than enhance, the legislative intent and the purpose of § 35-4-292. See, Brashier v. Burk-ett, 350 So.2d 309 (Ala.1977).

REVERSED AND REMANDED.

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


text:
    Dorothy Mae JONES, as Administratrix of the Estate of Charles C. Jones v. Willie JONES, et al.
    81-814.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Joseph W. Adams, Birmingham, for appellant.
    Marcus A. Hall of Nichols & Hall, Birmingham, for appellees.
   JONES, Justice.

This appeal was taken from a judgment in an interpleader action filed by the First National Bank of Birmingham, seeking instructions as to the proper disbursement of the sum of $20,509.94.

Claimants to the fund were Dorothy Mae Jones, as administratrix of the estate of Charles C. Jones, deceased, and Willie Jones, as the alleged survivor of a joint account with right of survivorship. At the time of the death of Charles C. Jones, the money was on deposit in a First National savings account under the names of Charles C. Jones and Willie Jones.

The trial court ordered that the assets be paid to Willie Jones. From a denial of a post-judgment motion for rehearing and reconsideration, Dorothy Mae Jones appeals.

We affirm.

FACTS

In 1978, Johnnie Jones, father of Charles, opened a savings account with the First National Bank of Birmingham in the names of Johnnie Jones and Charles C. Jones. The deposit contract, signed by Johnnie and Charles C. Jones, as well as by a bank representative, read as follows:

“This account is joint and several and may be withdrawn in whole or in part upon the order of either of the parties in whose name this account is opened or to the survivor of them.”

Subsequent to its inception, Johnnie made deposits into and withdrawals from the account, while Charles made neither. Johnnie Jones died on March 10, 1980. Thereafter, on March 14, 1980, Charles C. Jones and his cousin Willie Jones went to the First National Bank offices, where, along with a bank representative, they each signed a signature card providing for a joint account in both their names with right of survivorship, using the same contract form cited above. Charles made withdrawals from the account on occasions, but made no deposits. Willie made no deposits into or withdrawals from the account.

Charles died on February 26, 1981. On March 2, 1981, Willie Jones made demand upon the bank for the deposited monies. In the absence of a passbook, the bank refused to release the amount to Willie without an indemnifying bond. Shortly thereafter, Dorothy Mae Jones, as administratrix of the estate of Charles C. Jones, submitted to the bank her demand for the fund. At this point, the bank filed its interpleader petition.

DECISION

Two sections of the Alabama Code, one section having superseded the other on May 28, 1980, are relevant to our analysis, and are as follows:

“§ 5-1-25.
“(a) When a deposit shall be made in any bank doing business in this state in the names of two persons payable to either of such persons, or payable to the survivor of them, the said deposit shall, upon the death of either of said persons, become the property of and be paid in accordance with its terms to the survivor, irrespective of whether or not the funds deposited were the property of only one of said persons, irrespective of whether or not at the time of the making of such deposit there was any intention on the part of the person making such deposit to vest the other with a present interest therein, and irrespective of whether or not only one of said persons during their joint lives had the right to withdraw such deposit and irrespective of whether or not there was any delivery of any bank book, account book, savings account book or certificate of deposit by the person making such deposit to the other of such persons.”
“§ 5-5A-41.
“(a) Any deposit heretofore or hereafter made in any bank in the names of two or more persons payable to any of such persons, upon the death of either of said persons, may be paid by the bank to the survivors jointly, irrespective of whether or not:
“(1) The form of the deposit or deposit contract contains any provision for sur-vivorship;
“(2) The funds deposited were the property of only one said person;
“(3) There was at the time of making such deposit any intention on the part of the person making such deposit to vest the other with a present interest therein;
“(4) Only one of said persons during their joint lives had the right to withdraw such deposit;
“(5) There was any delivery of any bank book, account book, savings account book, certificate of deposit or other writing by the person making such deposit to the other of such persons; or
“(6) Any other circumstances.
“The bank in which such deposit is made may pay such deposit, or any part thereof or interest thereon, to either of said persons, or if one is dead, to the surviving of them, and such payment shall fully release and discharge the bank from all liability for any payment so made.
“(b) The provisions of this section shall apply to savings accounts, checking accounts and certificates of deposit and shall also apply to any deposit made in the names of more than two persons where there is an express written provision for survivorship in the deposit contract.
“(c) Nothing contained in this section shall be construed to prohibit the person making such deposit from withdrawing or collecting the same during his lifetime; nor shall anything contained in this section prohibit any person or persons making a deposit in the names of more than one person from providing for disposition of such deposit and interest thereon in a manner different from that provided above in this section, provided such different manner of disposition is expressly provided for in writing in the deposit contract.”

Based upon these two code sections, the trial judge determined that Willie Jones was the proper recipient of the funds in question. We quote pertinent portions of the final judgment:

“At the time the account was created, § 5-1-25, Code of Alabama was in full force and effect. This section provided that where there was a survivorship provision on a joint account, the funds would become the property of the survivor without regard to donative intent. The Ad-ministratrix, Dorothy Mae Jones, contends that at the time Johnnie Jones died, § 5-1-25 had been repealed and a new code section superseded it which, in effect, did not determine the ownership of the property as § 5-1-25 did, but instead is limited to setting out the rights of the bank regarding the payment of funds to the survivor. Under the new statute, § 5-5A-41, Code, the Administratrix contends that ownership rights must now be decided under the common law as set out in Clark v. Young, 246 Ala. 529, 21 So.2d 331 (1944).
“Willie Jones contends that at the time his name was put on the account with Charles Jones, § 5-1-25 was still in effect and that the rights he acquired under § 5-1-25 are preserved under § 5-5A-41, Code. § 5-1A-8, Code, provides, ‘Nor shall the repeal ... of this title affect any right accrued or established .. . under the provisions of such prior act before the repeal thereof.’
“If the time of the creation of the account controls, then the rights acquired by Willie Jones under § 5-1-25 are preserved under § 5-5A — 41, and he is entitled to the funds in the account. If the time of Charles’ death controls, as the Administratrix contends, then the common law standards set out in Clark would be applied to determine the ownership rights of the parties. In the Clark case, the gift in question failed because the surviving joint tenant did not have a present interest in the account. Instead, the Court found that the interest was testamentary in nature and the fact that there was no delivery enforced that finding. In this case, the evidence shows that Willie Jones had a present interest in the account and the fact that there was no delivery of the passbook does not invalidate the gift.”

We hold that the proper point of inquiry is the date on which the account of Charles C. Jones and Willie Jones was created. At that time, and under § 5-1-25, then in effect, Willie Jones acquired immediate rights, albeit along with Charles C. Jones, to the monies in the account. Thereafter, pursuant to § 5-1A-8, these rights were preserved. As stated in Harris v. Dial, 398 So.2d 679, 681 (Ala.1981):

“That statute has been considered by this Court in Street, Admr. v. Hilburn, 295 Ala. 232, 326 So.2d 724 (1976) ... to give the survivor of such an account the right to the proceeds remaining at the death of the other, without any duty resting upon the survivor to show a donative intent upon the party furnishing the funds.”

In conclusion, we make an additional observation respecting the Appellant’s assertion that § 5-5A-41 vested the bank with discretion to pay (i.e., “may be paid by the bank”) to the survivor of the joint account, and that when the bank has exercised that discretion in favor of withholding payment, the ownership of the account is to be determined by common law principles.

Even assuming the application of § 5-5A-41, we dp not agree with this contention. Admittedly, the statute is drafted in terms which exempt the bank from liability for its payment of a joint account to the survivor. But the statute does not empower the bank to determine ownership of a joint account in its depository. Rather, title is determined in accordance with the intentions of the parties, “stated in the instrument creating such tenancy,” pursuant to § 35-4-7. When § 5-5A-41 superseded § 5-1-25, effective May 28, 1980, the sur-vivorship between joint tenants provisions of § 35-4-7, which applies to personal as well as real property, remained fully operative. First National Bank v. Lawrence, 212 Ala. 45, 101 So. 663 (1924).

This current survivorship statute (passed originally in 1852 and last amended in 1951) would have controlled this case had the joint account in question been created on or after May 28, 1980. Stated otherwise, if the bank elected to pay the joint account to Willie Jones after the death of Charles C. Jones, not only would the bank have been exempt from liability for such payment, pursuant to § 5-5A-41, but § 35-4-7 would have vested title to the account in Willie Jones.

AFFIRMED.

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


text:
    Russell BOREN v. Woodie ROBERTS.
    81-856.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Phil Laird and Henry C. Wiley, Jr. of Elliott, Laird & Wiley, Jasper, for appellant.
    Robert E. Cooper of Rives & Peterson, Birmingham, for appellee.
   PER CURIAM.

This is an appeal from a decree establishing the boundary line between coterminous landowners. We affirm.

Boren filed the action against Roberts. The complaint alleged that a dispute had arisen as to the correct position of their common boundary.

Roberts (defendant) acquired the property by two conveyances. The first conveyance from C.V. Yates and Annie Yates occurred in November, 1956, and conveyed the following:

“Begin at the Northwest corner of the Northwest Vi of the Northwest Vi, Section 14, Township 15, Range 5 West, and run along the Forty line to Highway 78, 350 feet more or less, thence run East along said highway 225 feet, thence North 447 feet more or less to Forty line, thence run West to beginning point 225 feet. Containing two acres more or less.”

The second parcel was acquired from Mar-zell Robbins and Dorthy Robbins in March, 1963. This conveyance contained the following description:

“Begin at the NW corner of the NW Vi Section 14, Township 15, Range 5 West, containing 40 acres more or less. Surface only. And run East along the Forty line to the NE corner of the W. Roberts property line for a point beginning. Thence continue East 100 feet thence South 509 feet more or less to the U.S. Highway (# 78) thence West along said highway (# 78) 100 feet, thence North 471 feet more or less to the point of beginning.”

The Robbinses had acquired this second described tract from the Yateses in April, 1960.

Plaintiff Boren’s chain of title also originates with the Yateses. In October, 1960, the Yateses conveyed the following described property to Thomas Earl Raines, John Thomas Raines, and Robert Freeman Raines:

“Begin at the southeast corner of the Marzell Roberts [Robbins] property. Thence run east along U.S. Highway (78) for a distance of 315 feet. Thence run north 210 feet thence run West 315 feet. Thence run south 210 feet to the point of beginning. This lying and being in Walker County and being a part of the NW Vi of NW V4 of Section 14, Township 15, Range 5 West. Surface only.”

In February, 1961, Thomas Earl Raines acquired the property from his co-grantees. In August, 1977, Thomas Earl Raines conveyed the property by the same description to James Dennis. On October 6, 1977, James Dennis conveyed the property, again by the same description, to the plaintiff, Russell Boren.

All of the conveyances in the plaintiff’s chain of title find their point of beginning at the southeast corner of the Marzell Robbins property. There is no instrument of conveyance that conveys any portion of the Robbins property to the plaintiff or any of his predecessors in title. It is a portion of the property originally conveyed by Yates to Robbins that the plaintiff is claiming by adverse possession.

A default judgment was entered against the defendant in November, 1979. The trial court set the default judgment aside and held a hearing on the motion. After viewing the property, the trial court fixed the boundary line between the two owners by first finding the correct description of the defendant’s property. The court then fixed the east line of the defendant’s property as the west line of the plaintiff’s property.

On appeal, the appellant argues that the trial court erred in setting aside the default judgment. We cannot agree. Rule 55(c) of the Alabama Rules of Civil Procedure provides:

“In its discretion, the court may set aside an entry of default and the court may set aside a judgment by default within 30 days thereafter.”

In Oliver v. Sawyer, 359 So.2d 368 (Ala.1978), we said:

“It is a primary principle of the Alabama Rules of Civil Procedure that the parties to an action should be afforded a prompt and fair trial upon the merits. It is because of this principle that default judgments are not favored, and, while the trial court has discretion to grant such judgments, we have frequently held that this'exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment.”

359 So.2d 368, 369-70. We cannot say that the trial court abused its discretion in setting aside the default judgment in this case.

There is some confusion surrounding a purported amendment to the default judgment based upon an alleged agreement. At the hearing on the defendant’s motion to set the default judgment aside, the defendant argued that he had not agreed to a settlement of the matter, and the trial court apparently believed him. Again, this is a matter within the trial court’s discretion, and we will not reverse a trial court which allows a hearing on the merits absent a showing of abuse of discretion.

Finally, the appellant argues that the trial court erred in establishing the boundary line as it did, because in doing so it failed to consider substantial evidence of adverse possession on the part of the plaintiff to the disputed strip of land. He also argues that the decree of the trial court is contrary to the weight of the evidence. Again, we cannot agree.

The standard for review in boundary line cases appears in Francis v. Tucker, 341 So.2d 710 (Ala.1977), as follows:

“It is an oft stated rule that a decree establishing a boundary line need not be supported by a preponderance of evidence. If, under any reasonable aspect of the case, the decree is supported by credible evidence, it is due to be affirmed unless palpably wrong or manifestly unjust.”

341 So.2d at 711-712. See also, Ferrell v. Shomo Land Co., 345 So.2d 297 (Ala.1977), and Blair v. Cooper, 392 So.2d 1205 (Ala.Civ.App.1981).

The statutory provisions governing adverse possession and the fixing of boundary lines appear at § 6-5-200 and § 35-3-1, et seq., Ala.Code 1975, respectively. Under the law of Alabama, a person claiming title by adverse possession against the holder of legal title has the burden of proving actual, clear, definite, positive, notorious, open, continuous, adverse, and exclusive possession of a definite tract of land under a claim of right for the time prescribed by law, and such possession must be shown by clear and convincing evidence. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976); and Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975). In the present case there is no dispute that the defendants are the holders of the legal title to the property in question. Indeed, all of the conveyances in the plaintiff’s chain of title find their point of beginning at the southeast corner of the defendant’s property.

Suffice it to say that the trial court was justified under the evidence in concluding that the plaintiff had not adversely possessed the disputed tract for the requisite ten years. Indeed, there was evidence from which the trial court could have found that the use of the disputed tract was permissive. Either finding would defeat the plaintiff’s claim of adverse possession.

In the instant case there is no dispute that the defendant is the holder of record title. The plaintiff failed to establish title by adverse possession by “clear and convincing evidence.” There is sufficient credible evidence to support the findings of the trial court in placing the line between the parties in accordance with the documents of title. The ore tenus rule is applicable. The judgment of the trial court is due to be affirmed.

AFFIRMED.

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