author: BEATTY, Justice.

text:
    Hollis J. ESTES, d/b/a Estes Funeral Home v. BOARD OF FUNERAL SERVICE, State of Alabama.
    80-726.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Alva C. Caine of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah M. Spratling, Asst. Atty. Gen., for appel-lee.
   BEATTY, Justice.

Appellant, Hollis J. Estes, had his license to practice funeral directing suspended for 90 days, from October 30, 1980 to January 29, 1981, by the Alabama Board of Funeral Service for embalming deceased human bodies without a license. On March 13, 1981 the Funeral Service Board charged appellant with practicing the profession of funeral directing without a license, a violation of Code of 1975, § 34-13 — 70(a), and aiding an unlicensed person to practice funeral directing without a license, a violation of Code of 1975, § 34-13-56(2)(h). These alleged violations took place during the period of Mr. Estes’s suspension. After an administrative hearing was held in which evidence was produced to substantiate the charges, the Board issued a final order finding Estes guilty of the practicing of funeral directing without a license and ordering that his license be revoked. He appealed that administrative order to the Circuit Court of Cleburne County on the ground that insufficient evidence had been produced to sustain the Board’s order. The circuit court issued an order denying relief to appellant. It is from that court’s affirmation of the Funeral Service Board’s decision that appellant appeals to this Court. We affirm.

The issue on appeal is whether the order of the Funeral Service Board revoking the license of appellant is supported by legal and substantial evidence. The evidence presented at the hearing consisted of letters from families of deceased individuals, copies of two certified death certificates signed by appellant, and the testimony of appellant and one of his employees.

Appellant claims that the letters considered by the Board are nothing more than inadmissible hearsay and cannot be used to support the revocation of appellant’s license. However, we held in Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So.2d 619 (1963), that administrative boards are not restricted to a consideration of evidence which would be legal in a court of law and may consider evidence of probative force even though it may be hearsay or otherwise illegal. Nonetheless, there must be sufficient legal evidence to support the order of an administrative board. If founded only on hearsay or other improper evidence, the decision of a board cannot be sustained. North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183 (1943).

In the present case, in addition to hearsay evidence the Funeral Service Board considered legally admissible evidence demonstrating that appellant engaged in the practice, profession or business of a funeral director without a license. The legal evidence is in the form of death certificates signed by appellant on the lines designated “Funeral Director.” Code of 1975, § 34— 13-l(a)(16), in relevant part, defines funeral directing as

the use of the words or term “funeral director,” “undertaker,” “mortician,” “funeral parlor” or any other word or term from which can be implied the practice of funeral directing; or the holding out to the public that one is a funeral director or engaged in a practice herein described.

Appellant claims that the above statute is unconstitutionally vague. We find no merit in that argument as the definition given for funeral directing is explicit. And, use of the term “funeral director” from which can be implied the practice of funeral directing clearly falls within that definition. Appellant, therefore, violated Code of 1975, § 34-13-70(a), which prohibits the practice of funeral directing without a license, when he signed the death certificates in question. The signatures constituted a representation to the public that he was a funeral director.

Having found that the death certificates are sufficient legal evidence to support the order of the Board of Funeral Service, we need not address the additional charge accusing appellant of violating Code of 1975, § 34—13-56(2)(h), by aiding and abetting the unauthorized practice of funeral directing. The judgment of the trial court sustaining the decision of the Board is due to be, and is hereby, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Angela Keith KUHLMAN v. S. P. KEITH, Jr., and Hilda Tant.
    80-742.
    Supreme Court of Alabama.
    Jan. 22, 1982.

      Gould H. K. Blair, Birmingham, for appellant.
    W. J. Sullivan, Jr., of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for ap-pellee S. P. Keith, Jr.
    Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for appellee Hilda Tant.
   SHORES, Justice.

This is an appéal by the plaintiff, Angela Keith Kuhlman, of the trial court’s order which dismissed Hilda Tant as a party defendant and granted summary judgment in favor of the other defendant, S. P. Keith, Jr. In its order, the trial court said:

“As the Court understands the facts in this case, stated in very brief form, they are as follows. The plaintiff filed a divorce action against the son of the defendant Keith in 1977. She was represented by Mr. Cliff Hardy and this action was dismissed on September 15, 1977. Domestic problems continued very shortly thereafter and it was at this time that the defendant Keith consulted with his son and his daughter-in-law, the plaintiff, and drafted a pre-divorce agreement for the parties. The original pre-divorce agreement provided, among other things, that the plaintiff in this action would have custody of the two minor children. Subsequently, this agreement, which was never filed, was changed and the custody given to the defendant’s son for a period of the first year, while the plaintiff was to be out of state, and at the end of that year, if the parties could not agree on custody, the matter would be submitted to the Court. There are conflicts in the evidence at this point concerning influence exerted by the defendant on the plaintiff, failure to adequately advise her as to the dangers of such an agreement, also the influence of a hypnotist. The second agreement, which was signed by the plaintiff and her husband, was then presented by the defendant to Judge Barber on November 4, 1977, and the divorce decree was entered as of that date by Judge Barber. This was the last involvement by the defendant regarding the divorce proceedings between his son and the plaintiff, his daughter-in-law. Subsequent to that time, a Motion to Vacate said Decree was set and heard by Judge Barber and in 1978 a further hearing concerning custody was set and heard before Judge Joe Barnard. The Decree of Judge Barnard was subsequently appealed to the Alabama Court of Civil Appeals.
“On November 2, 1978, plaintiff filed the present action in the Civil Division of this Court, demanding a jury, and on November 3, 1978, she filed suit in the Federal Court in Tampa, Florida, against the same defendant and additional parties. In the action before this Court, basically the plaintiff charges the defendant, Palmer Keith, with negligence and fraud. She claims that as a result of this negligence and fraud on the part of the defendant, she was caused to lose the custody of her minor children and the related mental anguish, pain and suffering caused thereby.”

In relation to the motion by Tant to dismiss or, in the alternative, for summary judgment, the court said:

“The defendant, Tant, was added as a party defendant on May 22, 1981. This action was originally filed on November 2, 1978. The record is without contradiction that the defendant, Tant, was known to the plaintiff at the time the action was filed. The amendment adding this defendant comes too late. This motion is due to be granted. The defendant, Tant, is therefore dismissed as a party defendant and the Court finds no reason for delay, and this order is hereby entered as a final order of dismissal.”

In the granting of Keith’s motion for summary judgment, the trial court did not enumerate all of its reasons but did find the following to be of paramount importance:

“First of all, this action would call for a jury to sit in judgment of a Circuit Court decree. The plaintiff directly attempts to impeach an order entered by Judge Barber and to some degree, a final order of Judge Barnard. Certainly the more appropriate remedy would have been for the plaintiff to have initially moved Judge Barber to vacate and set aside his order for error.
“Secondly, as the Court views the claim for damages by the plaintiff, this Court finds them to be entirely speculative. To the knowledge of this Court, only a Circuit Judge can determine custody of minor children in a divorce action. This is not a jury function. This Court is satisfied that a jury composed of laymen is not qualified to take into consideration and pass on the many legal issues involved in the question of child custody, as this goes beyond the mere interests of parents, but must also consider the best interests of the minors involved. As this Court views the position taken by the plaintiff, a jury would be required to first determine that the plaintiff would have received custody of the minor children had it not been for the legal wrongs alleged against the defendant and then award damages based upon loss of such minor children.
“Thirdly, the plaintiff in the numerous proceedings which took place prior to the filing of this action, has been represented by numerous attorneys. It is the opinion of this Court that the plaintiff has taken a position with regard to these prior proceedings which would serve to estop her proceeding further with this subsequent action.”

The trial court concluded by stating:

“This Court is very mindful of théí fact that rarely will summary judgment be appropriate in a negligence action. This is especially true where there is a duty on the part of the defendant to the plaintiff. Certainly this Court recognizes that a duty did exist between the defendant and to the plaintiff. That is clearly not the basis of this decision by the Court.”

The plaintiff then filed her notice of appeal. We affirm.

In her appeal, the appellant first of all argues that the trial court erred in dismissing Tant as a party defendant because the statute of limitations was tolled by her suit against Tant in federal court, so that amendment under Rule 15, Alabama Rules of Civil Procedure, would be appropriate in the circuit court. Appellant also argues that the statement of the court which said “[t]he record is without contradiction that the defendant, Tant, was known to the plaintiff” evidences that the court did not restrict itself to the pleadings, which had the effect of turning the motion to dismiss into a motion for summary judgment, thereby requiring Tant to show an absence of any genuine issue of material fact. Appellant asserts that Tant failed to meet that burden so the court should be reversed. We cannot agree.

We hold that there was sufficient evidence present through the pleadings alone for the trial court to determine that procedurally the appellant was barred from amending her suit to bring in Tant as a party defendant. The appellant, in her pleadings, shows that she knew the identity of Tant when she first filed suit against Keith on November 2, 1978. Paragraph five of the complaint alleged:

“On or about November 3, 1977, the plaintiff was in the state of Missouri away from her family and her attorney. While in Missouri a consent divorce agreement, prepared by defendant, S. P. Keith, Jr., was presented to the plaintiff for her signature. The defendant S. P. Keith, Jr. knew that the plaintiff was still represented by other counsel at the time the consent agreement was presented to her. The plaintiff was fraudulently induced to sign the consent agreement in a Missouri airport by a Mrs. Hilda Tant, a close friend of the defendant’s and a known hypnotist, who had conspired with the defendant to procure the plaintiff’s signature, and who acted as an agent for the defendant.”

On May 13, 1981, the appellant amended her complaint to add Hilda Tant '(“Mrs. Tant”) as a party defendant, alleging the following:

“Comes now the Plaintiff pursuant to Rule 9(h), Alabama Rules of Civil Procedure and amends her pleading heretofore filed in this cause to substitute, for the fictitious party ‘X’, HILDA TANT, whose work address is 1000 19th Street, South, Birmingham, Alabama.
“The averments of the original Complaint together with the demand for trial by struck jury are in all other respects reaffirmed.”

On May 22, 1981, the appellant once again amended her complaint:

“Comes now the Plaintiff pursuant to Rules 15(a) and 15(c), Alabama Rules of Civil Procedure, and amends her Complaint heretofore filed in this cause to add as a party defendant HILDA TANT, whose work address is 1000 19th Street, South, Birmingham, Alabama.
“The averments of the original Complaint together with the demand for trial by struck jury are in all other respects reaffirmed.”

The law is well settled in this state that appellant’s action against Tant is barred by the statute of limitations. Minton v. Whisenhant, 402 So.2d 971 (Ala.1981); Fowlkes v. Liberty Mutual Insurance Company, 392 So.2d 803 (Ala.1980); Hinton v. Hobbs, 349 So.2d 28 (Ala.1977).

It makes no difference to the disposition of this case whether the appellant tried to amend to add Tant pursuant to the fictitious party rule of ARCP 9(h) or pursuant to Rules 15(a) and 15(c), ARCP. The fact remains that the appellant knew of the identity and actions of Tant at the time the original suit was filed, but waited for over two years to bring her into the action. Appellant’s suit in federal court did not toll the statute of limitations in circuit court. Indeed, the only effect it has on this disposition is to even further evidence that the appellant had knowledge of Tant’s identity.

The appellant also claims that the court .erred in granting summary judgment against her in her suit against S. P. Keith for fraud and negligence. This raises the issue of whether material questions of fact exist as to either the fraud or the negligence count, thereby causing a reversal of the judgment, or whether the judgment should be affirmed as a matter of law. Rule 56, ARCP. Material questions of fact do not exist; we, therefore, affirm.

The appellant’s allegations of fraud claim that S. P. Keith, through his agents Hilda Tant and Robert Keith, misrepresented to the appellant the impact of the consent agreement, thereby causing her to lose the custody of her children.

In order to recover in this instance, the plaintiff must prove that she relied on the alleged fraudulent representations made by Tant and Keith. Jordan v. Pickett, 78 Ala. 331 (1894).

In her deposition, appellant states that she fully understood the agreement and all of the documents she signed. She also states that Tant made no effort to influence her decision either through threats or suggestions. Also, appellant’s actions subsequent to her signing the documents in Missouri show affirmatively that she knew and understood what she was signing and also the consequences of her actions. The facts before the court showed that, without the appellant’s knowledge, a petition had been filed to challenge the judgment based on the agreement. A letter was presented which showed that subsequently the appellant wrote to an attorney stating that the petition had been filed without her consent and should be dropped since the settlement agreement “was drawn up to my specifications. ... I made a few changes in the agreement when Tant brought it to me in St. Louis, but I am happy with the agreement as it reads.” In addition, the appellant appeared in court and asked that the petition be dismissed. Judge Barber’s order dismissing the petition shows that it was entered only after he had ascertained that she knew and understood the nature of the proceedings and the consequences of her actions.

The facts also show that during this time period the appellant consulted several other attorneys besides S. P. Keith. Therefore, appellant has failed to show that it was in reliance upon a statement or act of S. P. Keith or his agents that she signed the agreement.

In addition, an action for fraud must have proof that the plaintiff has suffered damages. Old Southern Life Insurance Company v. Woodall, 348 So.2d 1377 (Ala.1977). Appellant has failed to satisfy this burden since the facts show that she gave up her children voluntarily.

Appellant also contends that as a result of S. P. Keith’s negligence, she has suffered great mental anguish stemming from her inability to regain custody of the children.

“The elements of an action against an attorney in his professional capacity for negligence are essentially no different from those of any other negligence suit. To recover, the appellant must prove a duty, a breach of the duty, that the breach was the proximate cause of the injury, and damages. Alabama Digest, Negligence, Key 1; Wade, The Attorney’s Liability for Negligence, 12 Vand.Law Rev. 755 (1959); Barclift and Newman, The Attorney’s Liability for Negligence: an Alabama Perspective, 7 Cumberland Law Rev. 69 (1976).”

Herston v. Whitesell, 348 So.2d 1054, 1057 (Ala.1977).

A legal question arises regarding the issue of proximate cause. Could the appellant have received custody of the children but for the negligence of S. P. Keith? If she cannot show that, then any negligence of S. P. Keith could not have proximately caused her loss of custody of the children. See, Herston v. Whitesell, supra, at 1057.

As we have pointed out previously, the facts show that the appellant knowingly and voluntarily gave up custody of her children in the original divorce agreement and later chose not to contest the same when she asked that the petition to challenge the judgment be dismissed. We find that it was the appellant’s actions, not S. P. Keith’s, that were the proximate cause of her loss of the custody of the children. Therefore, the trial court’s judgment is affirmed.

AFFIRMED.

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


author: SHORES, Justice. “S/Michael E. Zoghbv

text:
    Charlene LAWLEY, as Executrix of the Estate of Dean Smith v. Grover C. SMITH.
    80-924.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
    T. Dwight Reid, Mobile, for appellee.
   SHORES, Justice.

A judgment of divorce was rendered in this case between the parties on March 21, 1978. As to real property owned by the parties the court ordered as follows:

“It is further ORDERED, ADJUDGED AND DECREED by the court that the court hereby awards to the Plaintiff [wife] the homeplace of the parties located at 2303 Boykin Boulevard subject .to any liens, mortgages, or encumbrances due thereon and orders that the Defendant [husband] shall convey all of his rights, title and interest in and to said real property to the Plaintiff subject to any liens, mortgages or encumbrances due thereon.
“It is further ORDERED, ADJUDGED AND DECREED by the court that the court hereby awards to the Defendant the lot on the river in the State of Mississippi and orders that the Plaintiff shall convey all of her rights, title and interest in and to said lot in Mississippi to the Defendant. The court further awards to the Plaintiff the burial lots belonging to the parties.
“It is further ORDERED, ADJUDGED AND DECREED by the court that the court awards to the Defendant the house located at Tillman’s Corner on Old Pasca-goula Road and McDonald Streets which is presently in the sole name of the Defendant and further awards to the Defendant the house located on Dog River in Theodore which is solely in the name of the Defendant, both said pieces of property being awarded to the Defendant subject to any liens, mortgages or encumbrances due thereon.
“The court is conscious that the real property on which the business is presently located is in the joint names of both the Plaintiff and the Defendant. The court is further conscious that the business is presently operated by the Defendant. The court hereby awards to the Defendant the said business together with inventories and other assets and liabilities of the said business. The court anticipates that if the Defendant continues to operate the said business in the present location, that arrangements will be made for the payment of rent to the Plaintiff by the Defendant.”

On August 30, 1978, the husband filed a motion with the trial court alleging the following:

“MOTION TO DIVIDE PROPERTY BETWEEN PARTIES
“Comes now the Defendant, Grover C. Smith in the above styled cause and moves this Honorable Court to divide the real estate located at 2500 Dauphin Island Parkway, Mobile, Alabama, between the parties and for reason therefor says as follows:
“1. This Honorable Court entered a judgment of divorce on the 21st day of March, 1978, in which the court left said real estate in the joint names of both the Plaintiff and the Defendant.
“2. The Defendant alleges that he has attempted to purchase the Plaintiff’s interest in said property and has offered her $30,000.00 which Defendant alleges is a fair and equitable sum for Plaintiff’s interest therein, but has been unable to conclude the matter between the parties.
“3. Defendant alleges that it is to the best interest of the parties that the property be sold for division or that he be allowed to purchase the plaintiff’s interest therein as the property cannot be equitably divided between the parties.
“WHEREFORE, Defendant moves this Honorable Court to order the property sold for division between the parties, or in the alternative that the Court allow him to purchase the plaintiff’s interest in the property for a fair sum and Defendant prays for such other and further relief as he may be entitled, in the premises.”

On November 8, 1978, the trial court entered the following order:

“This cause coming on to be heard this day on motion to divide property between parties and motion to modify as filed by the above Defendant and on motion for rule nisi as filed by the above Plaintiff; both parties appearing in Court with counsel, and the Court being informed of an agreement of the parties relative to the motion to divide property, therefore, upon consideration, it is ORDERED, ADJUDGED AND DECREED by the court that the agreement of the parties is hereby ratified and affirmed and the court orders as follows:
“1. That the Defendant shall pay to the Plaintiff the sum of $30,000.00 for her interests in the real property known as the business and the adjacent warehouse thereto and that the parties shall cooperate with each other and with Mr. Vance for the sale of the other warehouse and that the proceeds from the sale of the other warehouse shall be divided equally between the parties after the payment due to Mr. Vance, with interest, has been paid.
“2. That in the event the Plaintiff fails to issue the necessary deed to the Defendant upon the tender of the said $30,000.00, then the court will allow the monies to be paid into the office of the Register of this Court and the Register is empowered and authorized to execute the necessary deed, upon an affidavit and legal description thereof being furnished to the Court.
“It is further ORDERED, ADJUDGED AND DECREED by the court that in the event the Defendant fails to pay to the Plaintiff, within a reasonable length of time, the said monies for her interest in the real property, as hereinabove ordered, then the Court will consider appointing a Commissioner to sell the property, either at a public or private sale, upon a proper affidavit being presented to the Court.

“Dated, November 8, 1978.

“It is further ORDERED, ADJUDGED AND DECREED by the court that the motion to modify filed by the Defendant, be and hereby is denied; and that the Defendant shall continue payments as previously ordered in the sum of $100.00 per week, as alimony, and that all payments of support shall be paid through the office of the Accounts Clerk of this Court, together with all commission due thereon as required by law.
“It is further ORDERED, ADJUDGED AND DECREED by the Court that the Defendant, be and hereby is held in contempt of the orders of this Court, but is allowed to purge himself from said contempt by paying the sum of $400.00 within thirty (30) days of this date, in addition to paying his regular weekly payments as previously ordered by the Court, into the office of the Accounts Clerk, plus commission due thereon as required by law; and, in the event the Defendant misses three (3) consecutive weekly payments of support, then a writ of arrest shall be issued, upon an affidavit of non-compliance being filed, subject to a cash bond in the sum of $1,000.00; and, further that the Defendant shall make a payment of at least $100.00 by this Friday, November 10th, 1978.
“It is also further ORDERED, ADJUDGED AND DECREED by the Court that the costs having been prepaid in this matter, that no costs are due to be taxed herein.

“S/Michael E. Zoghbv

“MICHAEL E. ZOGHBY, “CIRCUIT JUDGE”

Several attempts to collect alimony were made by the plaintiff and one of the post-trial orders was reviewed in Smith v. Smith, 378 So.2d 1134 (Ala.Civ.App.1979). The plaintiff died on November 6, 1979, while the case was pending in the appellate court.

On motion, the daughter of the parties was substituted as the executrix of the estate of plaintiff, and on July 3, 1980, a motion was filed, seeking to collect an ar-rearage of periodic alimony and also to enforce the provisions of the order of the court of November 8, 1978, concerning the conveyance and sale of the jointly-owned real property.

A hearing was held on this motion, and an order was rendered on December 17, 1980, setting the periodic alimony arrearage at $3,655.50, awarding a judgment in the sum of $30,000.00 against the defendant with interest at 8% from May 8, 1979, and directing that the warehouses referred to in the order of November 8, 1978, be sold and one-half the proceeds be paid to the plaintiff.

The defendant/husband filed a motion for rehearing. After a hearing, the trial court entered an order dated April 10, 1981, holding in pertinent part:

“In regards to the other matters raised in the above mentioned motion, the Court notes that in the original Judgment of Divorce entered in this cause dated March 21, 1978, the Court stated:
‘The Court is conscious that the real property in which the business is presently located is in the joint names of both the Plaintiff and Defendant. The Court is further conscious that the business is presently operated by the Defendant. The Court hereby awards to the Defendant the said business together with inventories and other assets and liabilities of the said business. The Court anticipates that if the Defendant continues to operate the said business in the present location, that arrangements will be made for the payment of rent to the Plaintiff by the Defendant.’
“In the Divorce Decree, therefore, the Court left the business property in the joint names of both the Plaintiff and the Defendant as provided for in the original deeds to said property. The Defendant filed the motion in Court to divide the property between the parties and modify the original decree and said motion, together with the motion for rule nisi filed by the Plaintiff, was set for hearing on November 8, 1978, at which time the Court issued its order on the said date. The Court confirmed the agreement between the parties whereby the Defendant was to pay the Plaintiff the sum of $30,-000.00 for her interest in the real property known as the business and the adjacent warehouse thereto, among other things, and the Court further stated in its said order:
‘It is further ORDERED, ADJUDGED and DECREED by the Court that in the event the Defendant fails to pay to the Plaintiff, within a reasonable length of time, the said monies for her interest in the real property, as hereinabove ordered, then the Court will consider appointing a Commissioner to sell the property either at a public or private sale, upon a proper affidavit being presented to the Court.’
“The facts reveal that the Defendant did not, in fact, pay the Plaintiff the said $30,000.00 and, therefore, no deed was ever conveyed to the Defendant for the said property, nor did either party file ‘a proper affidavit’ with the Court seeking the assistance of the Court for the sale of the property at public or private sale.
“It would, therefore, appear that since title to the property was to pass from the Plaintiff to the Defendant upon the payment of $30,000.00 and that this condition precedent to the passing of title did not occur, nor did the Court order the property be sold by a Commissioner, as provided for in the Order in the event the Defendant did not pay the Plaintiff, it would, therefore, appear that title to said property remained as provided for in the original deeds to the property in the light of the death of the Plaintiff, Dean Smith.
“It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the prayer of the Plaintiff that the Court award a Judgment to her against the Defendant in the amount of $30,-000.00 with interest thereon, be, and hereby is denied.”

Was the trial court correct in holding that title to the property remained as provided for in the original deed? This turns on the effect of the court’s decree of November 8, 1978. This is the only issue presented on this appeal.

Ala.Code 1975, § 35-6-20, confers jurisdiction on the circuit courts to divide or partition or sell for division any property held by joint owners or tenants in common. By his petition seeking the sale for division or, in the alternative, an order allowing him to purchase his former wife’s interest in the jointly-held property, Mr. Smith invoked the court’s jurisdiction. Under the authority of Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), by which this case is governed, the interests of the joint owners under a deed containing rights of survivorship are salable without the acquiescence of the joint owner. The court order of November 8, 1978, ordered the husband to pay his former wife $30,000.00 for her interest in the property and ordered her to execute a deed conveying that interest to her former husband. This order destroyed the surviv-orship feature of the tenancy and the joint tenants became tenants in common. Either was entitled to have the order enforced and, upon the death of the wife, her personal representative was entitled to have the order enforced. The trial court erred in refusing enforcement of the November 8, 1978, order. The trial court mistakenly characterized the payment of the purchase price as a condition precedent which did not occur. The court ordered the husband to pay that amount as consideration for the wife’s interest in the property. Had the exact provision been incorporated in a contract for the sale of the land, either party would have been entitled to specific performance of the contract, the husband upon tendering the purchase price and the wife upon tendering a deed.

We hold that the order of November 8, 1978, is clear and unambiguous and fixed the rights of the parties to the land involved. It destroyed the survivorship interest of both parties and, upon the death of the wife, her interest, that of tenant in common, descended to her heirs and not to the husband, subject, however, to the interest created in the husband by the order, i.e., his right to enforce the order by paying the $30,000.00 purchase price.

The judgment appealed from is reversed, and the cause is remanded.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Clifford Eugene STRAUM, v. Jim HARRIS.
    81-34.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    George L. Simons of Seale, Marsal & Seale, Mobile, for appellant.
    Ray Acton, Montgomery, for appellee.
   PER CURIAM.

Plaintiff/appellant Straum brought suit against defendant/appellee Harris, seeking $50,000 damages for an alleged assault and battery. The jury returned a verdict for the defendant, and the plaintiff appealed.

The following was uneontradicted: At or near 1:00 p. m. on June 26, 1979, at the intersection of County Roads 44 and 13 in Baldwin County, Trooper Jim Harris observed an automobile stopped in the intersection. Clifford Straum was standing in front of the parked automobile and was urinating. There was a heavy odor of alcohol about Straum, and he was unsteady on his feet. Straum was told by Trooper Harris to seat himself on the back seat of the trooper’s ear. When the trooper attempted to get in the driver’s seat, Straum leaned forward over the top of the front seat to the point that his torso was “kind of halfway over.” Each time the trooper tried to get in his car, Straum would attempt to grab him or swing at him. Straum was asked to sit back and would not do so. The stand-off lasted a “few minutes.” Straum prevented the trooper from using his radio to call for help. The engine of the trooper car was running and when, ultimately, Straum swung at the trooper and then attempted to place the car in gear, the trooper struck Straum twice on the head with a night stick. At this point, the trooper used his radio to call for help and, shortly thereafter, two Fairhope police officers were on the scene. Straum resisted being placed in the Fairhope police car and, en route to the police station, he cursed, threatened, and went into “rages and fits.” Over a period of time after being placed in jail, Straum bumped and banged his head on the window bars and other objects within his cell to the extent that blood was “spewing out and going everywhere.” A witness, Joyce Grimmel, testified that the bars on which Straum banged his head were not round bars, but square and rather sharp.

As a result of this incident, Straum was charged with littering, indecent exposure and highway intoxication. He subsequently pleaded guilty to these charges and paid a $582 fine (plus costs).

He then filed suit against Trooper Harris by a complaint charging assault and battery. The defendant filed two affirmative pleas by way of defenses, which read as follows:

On June 26th, 1979, and while in the performance of his official duty as an Alabama State Trooper, the Defendant attempted to arrest the Plaintiff for highway intoxication and other offenses. The Plaintiff forcefully and physically resisted such arrest.
“The Defendant alleges that he was struck numerous times by the elbows, forearms, and fists of the Plaintiff and that the Plaintiff attempted to gain operational control of the Defendant’s state trooper automobile.
“The Defendant avers that the only force applied to the Plaintiff was that which was reasonable and necessary to complete the arrest.
.. . The Defendant avers that any injuries sustained by the Plaintiff were proximately caused by the violent and unlawful conduct of the Plaintiff himself.”

The jury returned a verdict in favor of Trooper Harris. Straum appeals and argues that the trial court erred in its oral charge to the jury. We affirm.

We have carefully read all of the evidence and are clear to the conclusion that the trial court would not have been in error had it directed a verdict in favor of the defendant either at the close of the plaintiff’s case or at the close of all the evidence. This is true because the uneontradicted evidence taken most strongly in plaintiff’s favor is insufficient to support a reasonable inference that the force used under these circumstances was excessive. Therefore, although the appellant makes a persuasive argument that the court’s oral charge was technically incorrect, the error, if any, was not such as would justify a reversal for a new trial. “[Wjhere a losing party is not entitled to recover in any event he cannot complain as to alleged errors committed in the trial.” Cummings v. Caldwell, 276 Ala. 375,162 So.2d 470 (1964); Chandler v. Pope, 205 Ala. 49, 87 So. 539 (1920); Donley v. Camp, 22 Ala. 659 (1853).

AFFIRMED.

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


text:
    Hellon REED, v. Billy J. RAY.
    81-52.
    Supreme Court of Alabama.
    Jan. 22, 1982.

      R. B. Jones, Birmingham, for appellant.
    Roy W. Williams, Jr., Cullman, for appel-lee.
   BEATTY, Justice.

The defendant appeals from summary judgment against her on her counterclaim, and from a final judgment after a hearing on the merits. We affirm.

Plaintiff, Billy J. Ray, brought a suit to quiet title to one acre of land located in Cullman County, naming Hellon Reed as defendant. In his complaint he alleged that he derived title through a deed from Ernest C. Reed to himself and Timothy McMeans, dated February 2, 1977, and a subsequent deed from McMeans and wife to himself, dated March 9, 1977. He further alleged that his grantor in the first deed, Ernest C. Reed, acquired title from Mrs. Hellon MeCullers Reed by deed dated May 6,' 1969. Plaintiff then alleged that defendant, Hel-lon Reed, claimed an interest in the land under a quitclaim deed from the same Ernest C. Reed to Hellon Reed, dated June 21, 1977, but that that deed was not legal because the grantor Reed had no interest in the land to convey, having previously conveyed his interest to plaintiff.

Defendant Hellon Reed filed her answer and counterclaim in due course. She admitted the allegations of paragraph 1 of the complaint and denied the allegations of paragraphs 3, 4 and 5 (neither admitting nor denying those of paragraph 2 which described the land and traced title in plaintiff through the deeds of Ernest Reed and McMeans) and then counterclaimed against plaintiff Ray.

In her counterclaim she alleged her former marriage to Ernest C. Reed and her conveyance of this land to him without consideration; that she derived title through her parents’ estates, and had paid $100.00 on February 6,1960 to her father and mother for the property; that she paid the taxes on the property from 1961 through 1977; that her house trailer had been on the property and she had been in possession of the property “during all this period of time.”

Then she alleged that on December 3, 1976 she had filed a suit for a divorce from Ernest C. Reed in Jefferson County, and that while that suit was pending the plaintiff Ray, “with full knowledge of all the facts and circumstances, conspired with Ernest C. Reed, Sr. to purchase said property and did attempt to purchase the property on February 2, 1977. . . . ” She further alleged that on May 9, 1977 she was granted a divorce from Reed; that the divorce decree ordered Reed to convey the property in question to her, and that he had done so. She also alleged that plaintiff Ray “conspired willfully, maliciously and wrongfully with Ernest C. Reed in an attempt to acquire the property ...” causing her “great physical and mental anguish.”

Plaintiff Ray answered the defendant’s counterclaim by admitting the former marriage of the defendant to Reed and her conveyance of the property to Reed in 1969; he denied all other allegations. Ray also moved to have Reed joined as a party defendant by virtue of the allegations of conspiracy between himself and Reed. This motion was granted. From the record it is apparent that there was no compliance with the trial court’s order of joinder.

On November 19, 1980 plaintiff moved for summary judgment on the defendant’s counterclaim and offered an affidavit and defendant’s deposition in support of this motion. The motion was set for a hearing on February 5, 1981, the attorneys having been notified by mail on January 22, 1981. The defendant appeared at this hearing without her counsel, but with an. affidavit of the defendant styled “Affidavit in Support of Motion for Summary Judgment.” This affidavit essentially recited the allegations of the defendant’s counterclaim. At this hearing on the plaintiff’s summary judgment motion both the trial court and plaintiff’s counsel examined defendant to determine the existence of any new evidence in support of her counterclaim since her deposition was taken the preceding October. At the conclusion of this hearing the trial court entered summary judgment against the defendant’s counterclaim.

That judgment was correct. Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Gray v. WALA-TV, Ala., 384 So.2d 1062 (1980); Rule 56, ARCP.

The essential contentions of the defendant’s counterclaim are: (1) that her deed of the property in question to her husband was void because it was without consideration; (2) that she had paid taxes on the land from 1961 through 1977 and had been in possession of it during that period of time; and (3) that the plaintiff, Ray, had conspired with her husband to purchase the property.

(1) The deed from Mrs. Reed to her husband, Ernest Reed, recites a consideration of “Ten ($10.00) Dollars and of other good and valuable considerations, to the undersigned grantor ... in hand paid . . . the receipt whereof is hereby acknowledged . . . . ” In her deposition Mrs. Reed testified that she did not receive any money but that she relied upon Mr. Reed’s promise to pay her later. As a matter of law the recited consideration was sufficient to support this conveyance from wife to husband. Taylor v. Jones, 285 Ala. 353, 232 So.2d 601 (1970), and the failure to pay the recited consideration is not a sufficient ground for canceling a deed. Williamson v. Matthews, Ala., 379 So.2d 1245 (1980).

(2) The defendant’s pleadings do not clearly allege title in her by adverse possession, but if that were her contention it also would fail through her own deposition. Mrs. Reed testified that she paid the taxes on the property from 1960 to 1978, but she conveyed the property to Mr. Reed in 1969. Both she and her husband lived on the property in 1969, and thereafter, living at another place, they visited it jointly on occasional weekends, and in 1977 they together leased the property to Mrs. Reed’s daughter who vacated it in 1977.

Payment of taxes alone is not dis-positive on the question whether an occupant of land is holding adversely. Calhoun v. Smith, Ala., 387 So.2d 821 (1980). There must also be adverse actual possession, an occupancy that is clear, definite, positive, notorious, continuous, adverse and exclusive for the requisite period under claim of right. Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760 (1956). The facts recited by Mrs. Reed simply do not establish any legally adverse holding against him since the deed to him in 1969 which would in law amount to adverse possession.

(3) Insofar as the conspiracy allegation between her husband and plaintiff Ray, Mrs. Reed adduced no facts herself or any from other witnesses establishing any such conspiracy. She testified that after the conveyance from her husband to Ray, her husband called her and told her he had sold her house and got $400.00 for it:

A That’s all he said.
Q He didn’t tell you that he told Mr. Ray that you had a divorce pending when he sold the property?
A I didn’t ask him.
Q You didn’t ask him and he didn’t say it?
A No.

These answers clearly negated Mrs. Reed’s allegations of paragraph (3) of her counterclaim that Ray, knowing of her pending divorce, conspired with her husband to purchase the property.

The plaintiff’s motion for summary judgment was supported by defendant’s own deposition. The defendant failed to offer any countering evidentiary material. Accordingly, summary judgment for the plaintiff on the defendant’s counterclaim was properly entered. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975).

The case was tried before the trial court ore tenus. The evidence adduced that Mr. and Mrs. Reed lived on the property in part of 1969 but resided at Pinson after that, occasionally visiting the property on weekends until they separated in November 1976. After that Mrs. Reed’s daughter lived on the property in February 1977 until shortly after Ray purchased it at that time, when she moved away. She conveyed the property to her husband on May 6, 1969. Thereafter, on or about February 2, 1977, Ernest Reed offered to sell the property to Ray, representing himself as fee simple owner. Ray questioned Reed about his marital status and was assured that Réed was not married. Ray obtained a quick title check which disclosed the deed from his wife to Reed. After negotiations, Ray purchased the property from Reed for $500.00.

In fact, the parties were not divorced as of the date of that deed, their final decree being rendered on May 9, 1977, some three months later. That decree ordered:

SIXTH: That the property of the parties located at Hanceville, Alabama, is hereby awarded to plaintiff, and the defendant is hereby ordered to execute a quit claim deed for whatever interest he may have in said property, which said property was formerly owned by plaintiff prior to the marriage of the parties. Said quit claim deed is to be executed by defendant within thirty days from the date hereof.

Reed complied with the order by conveying his interest to Mrs. Reed by quitclaim deed. What was his interest?

Since Mrs. Reed had conveyed the property earlier to her husband by warranty deed, her only interest in the property thereafter was that of an inchoate dower. Code of 1975, § 43-5-1. At the time Reed conveyed the property to Ray, even had Ray known of the pending divorce, which knowledge he denied, still Reed could have conveyed the property to Ray subject to Mrs. Reed’s dower interest. The final judgment of divorce, however, terminated that dower interest. Code of 1975, § 43-5 — 4. Consequently, she had no interest in the land following the divorce. And having conveyed his interest in the land to Ray, Reed had no interest in the land when he executed his quitclaim deed to Mrs. Reed in June 1977, thus she could prove no interest in the land from that conveyance.

Our examination of the record discloses ample evidence which supports the trial court’s judgment confirming the plaintiff’s ownership and title to the land. That judgment, therefore, must be, and is, affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Guy SUMLIN d/b/a Guy Sumlin Construction Company, and United States Fidelity and Guaranty Company v. HAGAN STORM FENCE COMPANY OF MOBILE, INC. a Corporation.
    80-114.
    Supreme Court of Alabama.
    Jan. 29, 1982.
    William M. Cunningham, Jr. and Mary Elizabeth Hurm of Sintz, Pike, Campbell & Duke, Mobile, for appellants.
    Mitchell G. Lattof of Diamond, Lattof & Gardner, Mobile, for appellee.
   EMBRY, Justice.

This is an action on a bond, pursuant to the provisions of Code 1975, § 39 — 1—1(b), to recover monies, together with attorney’s fees, owed on an account for materials furnished for a public works project at Gulf Shores, Alabama.

Plaintiff, Hagan Storm Fence Company of Mobile, furnished the materials, for which payment is sought, to Tennis Court Construction, a subcontractor of Guy Sum-lin d/b/a Guy Sumlin Construction Company; the latter was the prime contractor for the project. Tennis Court and Sumlin were named as defendants in the action along with United States Fidelity and Guaranty Company (USF&G), the surety on the bond.

Default judgment was entered against Tennis Court. This appeal is by Sumlin and United States Fidelity and Guaranty Company against whom summary judgment was subsequently entered. The facts and principles supporting the trial court’s decision are well-stated in its summary judgment, the pertinent portions of which follow:

“2. At the request of Tennis Court Construction of Mobile, Inc., a sub-contractor of the Defendant, Guy Sumlin d/b/a Guy Sumlin Construction Company, Hagan Storm Fence Company of Mobile, Inc., during December 1978, furnished labor and materials on that certain public project known as “The Development of Gulf Shores Municipal Park”, Gulf Shores, Alabama,' which project was being performed under a contract between the Defendant, Guy Sumlin Construction Company, and the Town of Gulf Shores, Alabama, entered into during or about October, 1978.
“3. The labor and materials furnished by the Plaintiff as referred to in the preceding paragraph consisted of installation of the following items:
“592 feet of 10' high 11 gauge wire fence with l5/s' top rail and 21k" standard line posts
“3 — 7' X 4' gates
“13-3" X 13" corner posts
“660 feet of 5' high IIV2 gauge wire
“6 terminal posts
“4. The total price due the Plaintiff for the foregoing labor and materials furnished was $9,000.00 and was billed to the Defendant, Tennis Court Construction of Mobile, Inc., on December 29, 1978, and was due and owing together with interest at the legal rate from that date.
“5. Tennis Court Construction of Mobile, Inc., had a number of dealings with the Plaintiff on various jobs. While Plaintiff received a number of payments from Tennis Court Construction of Mobile, Inc., during and subsequent to December 1978, Tennis Court Construction of Mobile, Inc., did not specify the jobs to which sums should be credited and Plaintiff’s policy was to credit payments against the oldest outstanding jobs. No amount was paid on the Gulf Shores, Alabama job and the sum due is $9,000.00 plus interest.
“6. The Defendant Guy W. Sumlin d/b/a Guy Sumlin Construction Company on the 9th day of October, 1978, executed a labor and materials bond payable to the Town of Gulf Shores, Alabama, in the sum of $135,928.00 with the Defendant, United States Fidelity and Guaranty Company, as its surety on said bond, in accordance with the provisions of Code of Alabama 1975, § 39-1-1.
“7. On March 21, 1979, the Plaintiff, through its attorney, gave written notice by mail to the Defendants, United States Fidelity and Guaranty Company and Guy Sumlin d/b/a Guy Sumlin Construction Company, of the amount claimed to be due and the nature of the claim, with respect to said Gulf Shores job, and more than 45 days later, but less than one year, from the date of final settlement of said contract, the Plaintiff on July 30, 1979, instituted this action.
“8. Under said bond in the Gulf Shores job the Plaintiff has the right of a direct action against the Defendants, Guy W. Sumlin d/b/a Guy Sumlin Construction Company, as Principal, and United States Fidelity and Guaranty Company, as surety, for the amount of its claim in the sum of $9,000.00. plus a reasonable attorney’s fee together with interest on such claim from the date of receipt of such notice, March 22, 1979, by said Defendants.
“9. The evidence is further undisputed that a reasonable attorney’s fee in a contested action of this nature would be a sum equal to between 25% and 33/3% of the combined total of the principal and interest due on the claim at the time judgment is rendered.
“10. The evidence offered by the Defendants, Guy Sumlin d/b/a Guy Sumlin Construction Company and United States Fidelity and Guaranty Company, shows that the Defendant, Guy Sumlin d/b/a Guy Sumlin Construction Company had a contract involving the Gulf Shores job for $79,143.00 with Tennis Court Construction of Mobile, Inc., and that said Sumlin paid $59,725.00 directly to Tennis Court Construction of Mobile, Inc., and $19,-418.00 for materials used in the subcontract and that there was no amount due from Guy Sumlin d/b/a Guy Sumlin Construction Company to Tennis Court Construction of Mobile, Inc., at the time Plaintiff gave written notice of its claim as required by law. However, the evidence is undisputed that Tennis Court Construction of Mobile, Inc., did not specify to the Plaintiff the jobs to which payments should be credited and the Plaintiff properly credited payments against the oldest outstanding jobs. Further, counsel for Defendants, Guy Sumlin d/b/a Guy Sumlin Construction Company and United States Fidelity and Guaranty Company, during oral argument, informed the Court that said Defendants had no dealings directly with Plaintiff and no knowledge or evidence to offer of what was said or done between the Plaintiff and Tennis Court Construction of Mobile, Inc., as to payments made by Tennis Court Construction of Mobile, Inc., to Plaintiff on the various invoices owed to Plaintiffs by Tennis Court Construction of Mobile, Inc.
“11. With respect to Count One of the Complaint, the Plaintiff is entitled to recover of the Defendants, Guy Sumlin d/b/a Guy Sumlin Construction Company and United States Fidelity and Guaranty Company, the principal sum of $9,000.00 plus interest at 6% per annum from March 22,1979, which as of June 20,1980, amounts to $672.00, plus a reasonable attorney’s fee, which the Court hereby fixes at $2,418.00.”

As indicated in paragraph 10 of the summary judgment, the evidence was undisputed that Tennis Court Construction did not specify to Hagan the jobs to which payments should be credited. Where a debtor who owes more than one debt to the same creditor does not specify to which debt a payment is to be applied, the creditor may apply the payment as it chooses. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975); Sherrill v. Federal Land Bank of New Orleans, La., 244 Ala. 461, 14 So.2d 361 (1943). Once application is lawfully made by either party having that right, that application is final and conclusive. Redd Bros. v. Todd, 209 Ala. 56, 95 So. 276 (1922). Where neither party specifies an application of the payment, the law will apply it in the manner most beneficial to the creditor. Lee v. Southern Pipe and Supply Co., 283 Ala. 37, 214 So.2d 313 (1968); Lipscomb v. Tucker, supra; Redd Bros. v. Todd, supra.

Sumlin and USF&G acknowledge that the rules stated above are the controlling law in Alabama, but assert they should apply only between the debtor and creditor and not to the detriment of innocent third parties. Limiting application of these rules in the manner urged by Sumlin and USF&G, however, would ignore the underlying purpose of the public works bond statute, Code 1975, § 39-l-l(b): to insure that a materialman receives full payment for labor or materials which he supplies to a public works project. Accordingly, “. . . the general rule permitting a recovery on the bond has been applied notwithstanding that the contractor had paid the subcontractor for the labor or materials in question.” 92 A.L.R.2d 1250 (1963).

For the foregoing reasons, the judgment below is due to be and is hereby affirmed. Accordingly, the motion to dismiss the appeal of United States Fidelity and Guaranty Company is denied without addressing the merits of the contentions in support of that motion.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Betty BAIRD v. Johnny SPRADLIN.
    80-428.
    Supreme Court of Alabama.
    Jan. 29, 1982.

      William J. Baxley and Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Larry W. Harper of Porterfield, Scholl, Clark & Harper, Birmingham, for appellee.
   MADDOX, Justice.

The question presented by this appeal is: Can a widow and sole dependent of a workman, who died as a result of injuries re-, ceived on the job, maintain a derivative action to recover damages from the date of her husband’s injury until the date of his death? In answering this question, we must interpret Alabama’s Workmen’s Compensation scheme, the survivability of actions and the right of a spouse to recover compensatory damages when a covered employee dies as a result of injuries received during the course of his employment.

The facts are not disputed. The deceased workman was burned over sixty percent of his body at his place of employment, Johnny Spradlin Auto Parts, Inc., on February 26, 1980. His wife, Betty Baird, the plaintiff below and the appellant here, attended her husband at the hospital from the date of the injury, February 26, 1980, until his death on April 29, 1980. She took time off from her employment with South Central Bell Telephone Company, where she earned $286.50 per week, to be with him constantly. Her husband’s doctors recommended that she attend him, because in his condition, she was the only person her husband could recognize sufficiently in order to attempt communication. Mrs. Baird was told by her husband’s doctors to stay with him to the exclusion of her employment and she did so. Mrs. Baird gave around-the-clock bedside attention for several weeks, and after her husband was transferred from the intensive care unit to the hospital’s burn and trauma unit, Mrs. Baird hired private duty nurses to remain with her husband while she was away from the hospital.

Plaintiff, Betty Baird, first filed, on May 13,1980, a verified workmen’s compensation complaint against Johnny Spradlin Auto Parts, Inc., in which she alleged, among other things, as follows:

“1. Plaintiff is the widow and sole dependent under the Workmen’s Compensation Laws of the State of Alabama of Gerald Wayne Baird, who was employed by Defendant on February 26, 1980 when injured in the course of his employment, said defendant at that time employing more than eight (8) persons and subject to the Workmen’s Compensation Laws of the State of Alabama.
“2. As a proximate result and direct cause of the aforesaid injuries, the said Gerald Wayne Baird’s death occurred on April 29, 1980.
“3. Defendant, at the time of the aforementioned accident, failed to comply with Code of Ala.1975, § 25-5-8, rendering it liable for two times the amount of compensation which would have otherwise been payable for injury or death.
“4. During the intervening time between the date of the accident from which these proceedings arise and the date of death of the said Gerald Wayne Baird, the deceased incurred substantial medical and surgical expenses and burial expenses for which defendant is obligated pursuant to Code of Ala.1975, §§ 25-5-67 and 25-5-77.
“5. Plaintiff, as the widow and sole dependent of the deceased is entitled to the death benefits provided by Code of Ala.1976, §§ 25-5-60 and 25-5-8.”

On May 28, 1980, plaintiff filed, In her individual capacity, the complaint which is the subject matter of this appeal, and in which she claimed damages allegedly suffered by her from the date of her husband’s injury until the date of his death.

The trial court granted defendant’s motion for summary judgment. We affirm.

The Workmen’s Compensation Act creates rights, remedies and procedure all its own, and Code 1975, § 25-5-53, specifically provides that:

“The rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee, his personal representative, parent, dependents or next of kin, at common law, by statute or otherwise on account of said injury, loss of services or death.’’ (Emphasis added.)

The workman’s death resulted from injuries he received during the course of his employment; therefore, the principles of law set forth in Slagle v. Parker, 370 So.2d 947 (Ala.1979), that neither a personal representative nor a dependent of an employee can sue a co-employee for the alleged wrongful death of the employee apply.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM. JONES, Justice

text:
    Elizabeth BRAXTON, as Administratrix of the Estate of Cora Lee Braxton v. DIXIE ELECTRIC COOPERATIVE, INC., et al.
    80-481.
    Supreme Court of Alabama.
    Jan. 29, 1982.

      Jere L. Beasley of Beasley & Wilson, Montgomery, and Lynn W. Jinks, III, Union Springs, for appellant.
    Fred D. Gray of Gray, Seay & Langford, Tuskegee, and Randall C. Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Dixie Elec. Co-op.
    Charles B. Paterson of Ball, Ball, Duke & Matthews, Montgomery, and Milton C. Davis, Tuskegee, for appellee Gilmore & Tatge Mfg. Co.
    Joe Espy, III of Melton & Espy, Montgomery, for appellee Millers’ Mut. Ins. Assoc. of Illinois.
   PER CURIAM.

Two issues are presented:

1. Whether a wrongful death action, filed by the only dependent of a deceased employee, who was covered by Workmen’s Compensation, survives the death of that dependent.

2. Whether a wrongful death action may be maintained against the employer’s Workmen’s Compensation carrier.

We hold that the trial court erred in holding that the wrongful death action did not survive the death of the dependent mother, but we agree with the trial court that the wrongful death action was not maintainable against the Workmen’s Compensation carrier.

In reaching the conclusion we do, we must construe not only the provisions of the Workmen’s Compensation Law, but also the provisions of Alabama’s wrongful death statute. The two statutes must be construed together and harmonized so as to give effect to each law, if possible. Robinson v. Western Ry. of Alabama, 243 Ala. 278, 9 So.2d 885 (1942). See also Sanders v. Shockley, 468 F.2d 88 (5th Cir. 1972).

The interplay between the workmen’s compensation and wrongful death statutes was succinctly stated in Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275 (1971), where the Court opined:

“No new cause of action was created by [§ 25-5-11]. The wrongful death action was created by [§ 6-5-410], [§ 25-5-11] only extended the right to bring such action to dependents of a deceased. . . . Previous to [§ 25-5-11] only the administrator of the deceased’s estate could bring a wrongful death action. [§ 6-5 — 410]. Since the enactment of [§ 25-5-11], . .. [i]f the deceased is an employee coming within the provisions of Workmen’s Compensation and has dependents, any action for his wrongful death against a negligent third party must be brought by his dependents under [§ 25-5-11].” [Emphasis added.]

The full Court is in agreement that the wrongful death action survived, but the Court is divided on the question of whose personal representative, the employee’s or the dependent’s, is the proper party.

The cause of the disagreement is based upon a difference of opinion among the Court on the intent of the legislature when a wrongful death action is filed by the dependents of a deceased workman who is covered under the Workmen’s Compensation Act.

The facts in this case are undisputed:

1. The deceased employee was covered under Workmen’s Compensation.
2. At the time of his death, his only dependent was his mother.
3. His mother filed a wrongful death action under the provisions of § 25-5-11.
4. The mother died while the action was still pending.

We now apply what we consider to be the intent of the legislature and list the reasons why we determine that the wrongful death action survives, and why we determine that the personal representative of the dependent mother is entitled to revive the action and is further entitled to any recovery which may be obtained over and above the amounts paid to her in compensation benefits by the employer.

Code 1975, § 25-5-ll(b), provides:

“In the event the injured employee or, in case of his death, his dependents do not file a civil action against such other party to recover damages within the time allowed by law, the employer or the insurance carrier for the employer shall be allowed an additional period of six months within which to bring a civil action against such other party for damages on account of such injury or death. In the event the employer or the insurance carrier shall have paid compensation to such employee or his dependents, or in the event a proceeding is pending against the employer to require the payment of such compensation, such civil action may be maintained either in the name of the injured employee or, in case of his death, in the name of his dependents, or in the name of the employer or the insurance carrier, and in the event the damages recovered in such civil action are in excess of the compensation payable by the employer under this chapter and costs, attorney’s fees and reasonable expenses incurred by the employer in making such collection, the excess of such amount shall be held in trust for the injured employee or, in case of his death, for his dependents. In the event such injured employee has no dependents, his personal representative in the event of his death may bring a civil action against such other party to recover damages without regard to this chapter.” (Emphasis added.)

What did the legislature mean when it used the word “dependents” in § 25-5— 11: Did the legislature mean dependents at the time of the employee’s death, or at some other time ? We hold that the legislature meant dependents at the time of the employee’s death. Under the provisions of § 25-5-ll(a), “dependents” may “proceed against the employer” to recover compensation and at the same time, “may bring an action against such other party to recover damages for such . .. death.” It is apparent that the legislature intended that the word “dependents” each time the word “dependents” is used in § 25-5-11, meant dependents at the time of the employee’s death.

The fact that the legislature has provided in the last sentence of § 25-5 — 11(b) that “[i]n the event such injured employee has no dependents, his personal representative in the event of his death may bring a civil action against such other party to recover damages without regard to this chapter” (emphasis added), does not change our opinion regarding the time when dependency is determined. Obviously, if there were no dependents of the employee at the time of his death, there would be no compensation benefits or wrongful death damages payable to any dependent, and consequently, there would be no right of subrogation by the employer or the carrier to any recovery obtained in a third-party suit; therefore, the right to sue would logically be in the personal representative of the deceased employee. If there were no dependents of a deceased workman, in the case of a minor employee, the suit would be maintainable as provided in Code 1975, § 6-5-391; in the case of an adult employee, the suit would be maintainable by the personal representative of the deceased employee. Code 1975, § 6-5-410.

The construction we give to the word “dependents” is strengthened by language used by this Court in Daniel Construction Company v. Pierce, 270 Ala. 522, 527, 120 So.2d 381 (1959), wherein this Court referred to “dependents” as persons “surviving [the employee].” There, the Court discussed, at length, the interplay between the Workmen’s Compensation Act and the Wrongful Death Act, as it dealt with a minor employee. The Court held:

“The first question presented is whether the suit was properly brought by the father. Appellant’s insistence is that it could only have been brought by the son’s administrator, in view of § 312, Tit. 26, Code 1940, as amended by Act No. 635, appvd. Oct. 9, 1947, Gen. Acts 1947, p. 484. This section authorizes recovery of damages by an ‘employee, or his dependents in case of his death’, from a party other than the employer, ‘where the injury or death for which compensation is payable under article 2 of this chapter [which deals with elective compensation under the Workmen’s Compensation Law] was caused under circumstances also creating a legal liability for damages on the part’ of such third party ‘whether or not such party be subject to the provisions of article 2 of this chapter.’ Act No. 635 also repealed § 311, Tit. 26. In this case, as already noted, the deceased minor son left no dependents surviving him. For this reason, says appellant, only the son’s administrator can maintain the suit because of the following provision of § 312, added by the 1947 amendment:
“ ‘In the event such injured employee has no dependents, his personal representative in the event of his death may bring suit against such other party to recover damages without regard to article 2 of this chapter.’
“Our problem is to determine whether the legislature intended, in amending § 312, to take away from the father the right to sue given him under § 119, Tit. 7, Code 1940. It is our view that it was not so intended and that the suit was properly brought by the father.
“In the first place we do not think there is anything in amended § 312 clearly indicating an intention to take away the father’s already existing right to sue expressly given by § 119, Tit. 7. As said in Goodman v. Carroll, 205 Ala. 305, 306, 87 So. 368, 369:
“ ‘Among the accepted rules of statutory construction, here as well as generally elsewhere, are these:
“ ‘The presumption is that “the Legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; * * * that it is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness. * * * » >
“There is still another reason why there can be no objection to the suit being brought by the father. We have held that the damages recoverable under § 119 in a suit brought by the father belong to the father. As said by a full court in Peoples v. Seamon, 249 Ala. 284, 288, 31 So.2d 88, 90:
“ ‘We adhere to the principle stated in our cases that when the death of a minor is wrongfully caused, and he leaves a parent surviving, who is not disqualified under section 118, section 119, and not section 123, supra, has application, and the damages recoverable are solely for the benefit of that parent, who may sue in his own name, or if he becomes administrator may sue as such for his sole benefit.’
“We have also held that there is no real difference between a suit brought by a father individually and one brought by him as his son’s administrator. Peoples v. Seamon, supra; Benson v. Robinson, 223 Ala. 85, 86, 134 So. 799. In the Benson case the suit was brought by the father under §, 5695, Code 1923, now § 119, Tit. 7. It was there held that the court correctly refused to allow an amendment to show that the father sued as administrator because thereby there was no effectual change in plaintiff’s status since, in either event, the recovery was for the sole benefit of the father. See Peoples v. Seamon, supra; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A.,N.S., 568; Tennessee Coal, Iron and R. Co. v. Herndon, 100 Ala. 451, 14 So. 287.
“Even assuming § 312 requires a suit for the wrongful death of a minor without dependents to be brought by the minor’s administrator, still we do not think, under our liberal system of pleading, that the instant suit should be dismissed simply because it was brought by the father in his individual capacity and not as his son’s administrator. As already noted, in either event he would be the sole beneficiary of any recovery had under § 119.”

It is quite apparent that had the minor in the Daniel Construction Company case had “dependents surviving him” the right to sue would have been in those dependents.

This Court, in Robinson v. Western Ry. of Alabama, 243 Ala. 278, 280, 9 So.2d 885 (1942), discussed the effect of the adoption of § 25-5-11 [formerly Section 7587 of the 1923 Code; Code 1940, T. 26, § 312]:

“In Smith et al. v. Southern Ry. Co. et al., 237 Ala. 372, 187 So. 195, 197, the question of the right of the dependents of a deceased workman to maintain an action against a third party causing the death of the workman was considered, and it was there observed:
“ ‘We do not doubt in the least that the dependents of a deceased employee, whose death was brought about under such circumstances as that they, as such dependents, would be entitled to compensation from the employer, are entitled to bring an action, in their own names against a third party, who is also subject to the Workmen’s Compensation Act [Code 1940, Tit. 26, § 253 et seq.], for the wrongful death of such employee. But, under the Homicide Statute (Code 1923, § 5696 [Code 1940, Tit. 7, § 123]), as it existed prior to the adoption of the Workmen’s Compensation Act of Alabama, and as it still exists in all cases not falling within the provisions of said Act, the right to maintain a suit for damages for the wrongful death of an adult is alone in the personal representative. No one else in such cases can bring the suit. Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann.Cas.1913B, 225; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A.,N.S., 568; Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; Georgia Casualty Co. v. Haygood, 210 Ala. 56, 97 So. 87, 91.
“ ‘The effect of the adoption of Sections 7586 and 7587 of the Code [Code 1940, Tit. 26, §§ 311, 312], and of the Act of the Legislature now embodied in said sections of the Code, was to modify the Homicide Statute in cases falling within the provisions of said Sections 7586 and 7587 of the Code. The three statutes, Homicide Statute and Sections 7586 and 7587, should be construed together in a way to give effect to each law.
“ ‘We deem the question of the right of dependents to bring suit in their own name, when suing for their own benefit, in cases falling within the influence of the Workmen’s Compensation Act, was settled by this court in the case of Georgia Casualty Co. v. Haygood, supra (210 Ala. 56, 97 So. 87, 91), where it was observed: “The homicide statute is not repealed by the Compensation Act but is limited in cases like the one now under consideration to be enforced in behalf of the dependents of the deceased employee, and in such cases the right of the administrator to pursue the remedies thereunder is withdrawn.” (Italics supplied.)’ (Parenthesis ours.)”

In American Mutual Liability Ins. Co. v. L & N. R. R. Co., 250 Ala. 354, 362, 34 So.2d 474 (1948), the Workmen’s Compensation carrier claimed its right of subrogation and brought suit under Code 1940, T. 26, § 312. This Court opined:

“Appellant contends that the L. & N. R. R. Co. was engaged in interstate commerce at the time of the accident and accordingly that § 311, Title 26, Code of 1940, has no application. On the contrary appellant claims its right of subrogation and brings this suit under § 312, Title 26, Code of 1940, to recover damages for acts of the defendant in wrongfully and negligently causing the death of Wilmer Warren, including the aggregate amount of compensation payable and which it is obligated to pay as compensation carrier under the Workmen’s Compensation Act of Alabama, together with costs of the action and such further sum as the evidence may reveal it is entitled to receive for prosecuting the action, including reasonable attorney’s fees of $1,000. It is alleged in substance in the complaint that the plaintiff, as directed by the provisions of the Workmen’s Compensation Act of Alabama, namely § 312, Title 26, Code of 1940, will pay over to the widow of decedent, who is his sole dependent, any sum received by it as damages, in excess of the amount paid by it as compensation costs, reasonable expenses and attorney’s fees. In result it is claimed that under § 312, Title 26, Code of 1940, the compensation carrier in this case may recover for the benefit of the widow such punitive damages as could be recovered under the Homicide Act. Code 1940, Tit. 7, § 123. This interpretation of § 312, Title 26, Code of 1940, is correct. Robinson v. Western Ry. of Alabama, 243 Ala. 278, 9 So.2d 885; Georgia Casualty Co. v. Haygood, 210 Ala. 56, 97 So. 87.”

On this appeal, we decide only that the personal representative of the deceased dependent is entitled to revive the action for wrongful death; we do not decide and neither do we address the question of who is entitled to the proceeds of any recovery which may be received in the action. That question is not presented by this appeal.

Based on the foregoing, we hold that the trial court erred in determining that the action for wrongful death did not survive. In all other respects, the judgment below is affirmed. See Boehlert v. Royal Globe Insurance Co., 397 So.2d 108 (Ala.1981), summarily affirmed on the authority of Slagle v. Parker, 370 So.2d 947 (Ala.1979).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

JONES, J., concurs specially, with whom FAULKNER, J., concurs.

JONES, Justice

(concurring specially):

I concur specially in order to voice my strong disagreement with one aspect of the Court’s opinion. Initially, I emphasize that there is, indeed, unanimity on the primary issue — whether the wrongful death cause of action survives the death of a dependent mother. The precedent for our agreement seems solid and irrefutable.

In addition to Baggett’s accurate overview of the interplay between the Wrongful Death Act and the Workmen’s Compensation Act, the key words are: “[§ 25-5-11] only extended the right to bring [the wrongful death action] to dependents of a deceased. . . . ” The third party section of the Workmen’s Compensation Act extends, rather than restricts, the Wrongful Death Act. This “extension” merely gives to the dependents the capacity to sue. In keeping with the statutory scheme of this remedial legislation, the third party section permits a dependent to sue for wrongful death without the necessity for an administration of the deceased employee’s estate.

An interpretation that a wrongful death action, arising in the context of § 25-5 — 11, is extinguished, where the only surviving dependent dies before the action is prosecuted to judgment, unduly restricts the right of action for wrongful death and thwarts the legislative purpose to hold accountable tort-feasors whose wrongful conduct results in the taking of human life. See Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965); Liberty Mutual Insurance Co. v. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So.2d 821 (1962); and Breed v. Atlanta B. & C. R. R., 241 Ala. 640, 641, 4 So.2d 315 (1941).

Moreover, this conclusion is mandated by § 25-5-11, which, after giving the dependents of a deceased employee the right to bring an action against a third party, provides in the last sentence of subsection (b):

“In the event such injured employee has no dependents, his personal representative in the event of his death may bring a civil action against such other party to recover damages without regard to this chapter.”

The secondary issue — In whom does the action survive? — was not raised by either party at trial or on appeal and (on the surface, at least) is relatively insignificant. I agree, however, that this issue needs to be addressed and that the concept on which it turns is an important one. My problem with the Court’s resolution of this issue is more than a mere matter of disagreement. I do not understand any portion of the opinion’s treatment of this point. While I still have a lot to learn, even in the one area of the law in which I am most experienced, I cannot perceive any relationship between the authorities cited' by the Court and the right of revival of the pending wrongful death suit in the name of the personal representative of the deceased dependent. Rather than making a point by point refutation of the Court’s opinion on this issue, however, I will state my own views.

I believe that the mother, who had filed a wrongful death action as a dependent, ceased to be a dependent when she died during the pendency of the suit, thereby triggering the operation of the last sentence of § 25-5-ll(b) in the same manner as though no dependent had survived the deceased employee.

In my opinion, both the primary issue— survival ve¡ non — and the secondary issue — In whom does the action survive? — are made clear by the very wording of the survival statute, § 6-5-461:

“[A]ll claims upon which an action has been filed .. . survive in favor of . . . personal representatives.”

It is the right of action (or in the case of a pending suit, as here, the action) for wrongful death, not the personal action of the dependent, that survives. Here, the mother has a statutory right to bring the action only because of her dependency status. While that dependency status survives the employee’s death, it does not survive the dependent mother’s death. Just as the remarriage of a widow and the attaining of majority by a minor extinguish dependency, so does the death of a dependent. § 25-5-60(l)e.

I find absolutely no authority for a holding that a pending suit, upon the death of a nominal plaintiff, may be revived in the name of the nominal plaintiff’s personal representative. Take the case of a pending suit on behalf of a minor by a next friend. Upon the death of the nominal plaintiff, no one would suggest that the action may be revived in the name of the personal representative of the next friend. Likewise, where the personal representative dies during the pendency of a wrongful death action pursuant to § 6-5 — 410, surely, all would agree that the pending action is not revivable in the name of the personal representative of the deceased nominal plaintiff — the personal representative of the deceased whose death is the basis of the wrongful death suit.

Conversely, however, suppose, during the pendency of a wrongful death action filed by the only qualified parent of a minor pursuant to § 6-5-391, the plaintiff/parent dies. There, because the parent is the real party in interest (the parent owns the cause of action as opposed to the mere right to bring the suit), the action is revivable in the name of the parent’s personal representative.

Interestingly enough, if the deceased employee in the instant case had been 18 instead of 19 years of age at the time of his death, the mother, in addition to bringing the suit as a dependent, would have been the real party in interest; and the revival of the suit after her death in the name of her personal representative would have been proper. But this wrongful death suit is governed by § 6-5-410, not by § 6-5— 391; and, unless we change the distribution rule of Shockley, the only basis for revival (or survival where the suit is not already pending) is in the personal representative of the deceased employee.

Perhaps the utter fallaciousness of the Court’s holding, as well as the significance of an otherwise seemingly minor issue, can be dramatized by changing only one fact in the scenario: Suppose, instead of a dependent mother (who, in all probability, is also an heir), the deceased employee left surviving as his only dependent a stepson (not an heir), who brought a third party wrongful death suit and then died while the suit was pending. Suppose, also, that his dependency status is unquestioned and that the compensation carrier had paid all compensation due at the time of the stepson’s death. No one would dispute that under the Shockley rule the deceased employee’s heirs at law and not the stepson’s heirs at law have the only interests in the third party recovery. Yet, the instant holding places the control of the litigation of the third party wrongful death action beyond that estate whose heirs have the sole interest in the recovery and distribution of any award.

How can the heirs at law of the'deceased employee, from either a legal or practical point of view, look to an alien estate for their distributive share of the third party recovery? Do they become mere claimants against the other estate? What about the fiduciary duties of the personal representative of the dependent’s estate to the heirs at law of the employee whose wrongful death is the basis of the litigation? Obviously, the instant holding loses sight of the requisite nexus between the prosecution of the wrongful death claim and the interested estate (the deceased’s heirs at law) as contemplated by the Wrongful Death Statute (§ 6-5-410). I know of no authority for charging one estate with the collection of another estate’s claim under these circumstances.

Ironically, although the opinion explicitly disavows addressing the distribution of proceeds issue, this Court, in my opinion, in effect, has made such a ruling. Undoubtedly, the Court did not intend to create the dilemma posed above; and, if facts similar to those here hypothesized are presented, the Court will have no choice but to overturn the Shockley rule and hold that the Workmen’s Compensation Act not only gives the dependent the right to bring a third party suit for the wrongful death of the deceased employee, but also vests in him the sole interest in any proceeds therefrom to the total exclusion of the deceased’s heirs at law.

The Shockley rule of distribution and the instant holding, which sanctions the reviva-bility of the action in the name of the deceased dependent’s personal representative, cannot co-exist;1 and, in my opinion, it is the instant holding, and not the Shockley rule, that is misguided. I point to the stepson situation cited above as my Exhibit “A” in support of the Shockley rule. The Shockley rule would allow the stepson to recover to the extent of the death benefits authorized for one dependent pursuant to the Workmen’s Compensation Act, while allowing distribution of the balance of any proceeds from the third party recovery to the heirs at law of the deceased employee. The instant holding, in my opinion, mandates a result which pays to the dependent stepson of the deceased employee all of the proceeds of a third party wrongful death recovery.

FAULKNER, J., concurs.

      . The pendency of the action for wrongful death during the dependent’s lifetime, except for the mechanics of the revival of the action, is of no consequence. The result would be the same whether or not the only dependent had filed the claim before her death.

      . Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275 (1971).

      . Conversely, her right to the proceeds, if any, of the wrongful death action is not altogether contingent upon her dependency relationship with the deceased employee. See Sanders v. Shockley, 468 F.2d 88 (5th Cir. 1972), which holds that the proceeds of any third party wrongful death recovery in excess of death benefits under the Workmen’s Compensation Act are distributable to the heirs at law, pursuant to the law of descent and distribution as contemplated by the Wrongful Death Act (§ 6-5-410).

      . Incidentally, this is the holding, and the only holding of Daniel Construction Co. v. Pierce, 270 Ala. 522, 120 So.2d 381 (1959).


author: FAULKNER, Justice.

text:
    FORESTER & JERUE, INC., et al. v. Allen DANIELS.
    80-717.
    Supreme Court of Alabama.
    Jan. 29, 1982.
    Alfred Q. Booth and Clifford W. Cleveland, Prattville, for appellants.
    Stephen M. Langham, Prattville, for ap-pellee.
   FAULKNER, Justice.

John Jerue and Charles Forester are officers and stockholders of Forester & Jerue, Inc., a truck brokerage firm. The appellee, Allen Daniels, was an employee of Forester & Jerue, Inc. Daniels operated a truck terminal for the corporation in Prattville, Alabama. Daniels was to receive one half of the net profits derived from the operation of the terminal as compensation for his services. Daniels never received the compensation.

Daniels brought an action for breach of the employment agreement for failing to compensate him for his work. Daniels attached funds of the corporation in Alabama to satisfy the debt.

The appellants, defendants below, made a Rule 12(b)(6) motion to dismiss for failure to state a claim. The court never ruled on this motion. On March 25, 1981, Daniels filed a motion for summary judgment. On May 1, 1981, the Court granted the motion for summary judgment against all defendants. The defendants filed a Rule 59(e) motion to alter, amend or vacate the judgment on May 19, 1981. The defending parties asserted that the motion to alter, amend or vacate the judgment should be granted on the grounds that the trial court erroneously granted a summary judgment against the individual defendants. On July 9, 1981, the appellants made a motion to supplement the motion to alter, amend or vacate the judgment. This motion was made prior to the hearing on the original Rule 59(e) motion. The defendants, in their motion to supplement, wished to assert additional legal grounds for the Rule 59(e) motion. The major ground for the motion was that the trial court was precluded from granting the summary judgment because of the failure of the trial court to rule on the motion to dismiss and to permit the defendants to answer. The trial court refused to grant both motions, and permitted the summary judgment to stand.

The appellants assert that the trial court erred in refusing to grant the motions to alter, amend or vacate the judgment and the motion to supplement the Rule 59(e) motion. We reverse in part, and affirm in part. We affirm the denial of the motion to supplement or amend the Rule 59(e) motion. We reverse the summary judgment against the individual defendants. We do not address the issue of the propriety of granting the summary judgment against the corporate defendant. The corporation is in bankruptcy proceedings in the Central District of California. The Bankruptcy Court stayed all proceedings against Forester & Jerue, Inc.

Very little authority exists on the issue of when a trial court may allow a party to supplement a Rule 59(e) motion. Professor Moore suggests the following standard for motions under Rule 59 in general:

“[A] Trial Court, in the exercise of sound judicial discretion [may] allow a subsequent amendment of the motion to state additional grounds for granting of the motion. If the motion to amend is made before the [thirty (30) day] period of Rule 59 has run it would normally be allowed as of course. If made thereafter, the Trial Court should determine whether it would serve the ends of justice to allow the amendment to be made in a particular case.
“An important consideration for the Court would naturally be to prevent the hearing and the determination of the motion to be delayed unnecessarily. Thus, a party should rarely be allowed to amend the motion after there has been a hearing and the Court has taken the matter under advisement. But there is no reason why a party should not be permitted to amend if this would not unreasonably delay a hearing and the mover shows good reason why he did not state the grounds in the original motion.” (emphasis supplied) 6A Moore’s Federal Practice, 59.09(2).

This position is supported by the special concurring opinion of Justice Maddox and Chief Justice Torbert in Thompson v. Keith, 365 So.2d 971 (Ala.1978). Thompson v. Keith involved an amendment of an ARCP 59(a) motion for a new trial. Justice Maddox stated that a trial court has discretion to permit amendment of a motion for a new trial when a party has filed a timely Rule 59(a) motion. Although timely filing of a motion to alter, amend or vacate a judgment is a jurisdictional act, once the trial court’s jurisdiction is established, it may permit amendments to the motion. See Fassler v. Moran, 576 F.2d 1372 (9th Cir. 1978).

In the present action, the trial court did not abuse its discretion in refusing to grant the motion to supplement the Rule 59(e) motion. The appellants offer no showing of why they failed to raise the issue of the motion to dismiss in the original motion to alter, amend or vacate. Furthermore, even if the motion to supplement was granted, the appellants could not succeed. The trial court’s failure to rule on the appellants’ motion to dismiss did not preclude the trial court from rendering a summary judgment in favor of Daniels. Under Rule 56, the filing of an answer is not a prerequisite to the consideration of a motion for a summary judgment. See First American Bank v. United Equity Corp., 89 F.R.D. 81 (D.D.C.1981); Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980). By granting the appellee's motion for summary judgment, the trial court by implication ruled adversely on the appellants’ motion to dismiss. This satisfies the requirements of Rule 12(d) that the trial court determine a Rule 12 motion before trial.

The trial court erred in granting Daniels’s motion for summary judgment, and thus erred in failing to grant the appellants’ motion to alter, amend or vacate the judgment under Rule 59(e). A summary judgment should be granted only when, after viewing the evidence in favor of the nonmoving party, it appears that there is no material issue of fact and the nonmoving party cannot prevail. Raley v. Royal Insurance Co., 386 So.2d 742 (Ala.1980); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979).

The appellants presented no evidence rebutting the allegations of Daniels. Nevertheless, Daniels’s complaint and supporting affidavits fail to allege a theory upon which the individual appellants should be liable for the debts of the corporation. The affidavits of Daniels, taken alone, merely establish that the corporation owed Daniels compensation.

The presumption in Alabama is that a corporation is a separate and distinct legal entity from its shareholders, officers and directors. Alorna Coat Corp. v. Behr, [1981] 408 So.2d 496 (Ala.1981); Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). This rule may be disregarded in the appropriate circumstances, such as when a shareholder is the alter ego of the corporation. The complaint in the present action did not allege that the appellants, Forester and Jer-ue, were the alter ego of the corporation or any other cognizable action for personal liability. The testimony in the affidavits does not allege that there was any commingling of funds of the individuals and the corporation, that corporate formalities were not met, that the corporation was a mere shell, that the corporation was undercapital-ized, or any of the myriad factors which may indicate that an individual is liable for corporate debts. Thus, even though the affidavits and pleadings may establish a debt owed by the corporation, they do not justify an inference that individuals are liable for the debt. The summary judgment against Forester and Jerue as individuals must be re’versed, and the cause remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The appellants also asserted that the penden-cy of a bankruptcy proceeding involving the corporation precluded a determination of its liability in this proceeding. Since that time, the bankruptcy court has issued an injunction against continuation of this proceeding against Forester & Jerue, Inc. Therefore, the question of whether the trial court should have granted the motion to amend on the basis of the bankruptcy proceeding is rendered moot.