text:
    Maurice INGRAM v. AKWELL INDUSTRIES, INC.
    80-809.
    Supreme Court of Alabama.
    Nov. 20, 1981.

      J. Earl Smith of Smith & Smith, Dothan, for appellant.
    Herman Cobb of Buntin & Cobb, Dothan, for appellee.
   PER CURIAM.

Plaintiff Maurice Ingram appeals from a summary judgment in favor of Defendant Akwell Industries, Inc. Plaintiff claims that the trial court, in determining the legal issue of whether there were triable issues of material fact, exceeded its authority and usurped the jury’s duty by resolving the factual issue of whether Plaintiff, at the time of her fall, held the status of a licensee or invitee, and, upon that impermissible finding, granted Defendant’s motion for summary judgment.

We affirm.

On April 19, 1979, Plaintiff went to the business premises of Defendant to deliver cigarettes to her husband, a truck driver and warehouse worker for Defendant. While there, Plaintiff received permission from the supervisor of the premises to enter one of Defendant’s trucks and retrieve some trading stamps left there by her husband. As she was climbing out of the truck, Plaintiff slipped and fell, breaking her ankle.

The record discloses that since 1977, when Plaintiff’s husband began working for Defendant, Plaintiff, at the request of and with the approval of Defendant’s transportation supervisor, has ridden with her husband on several of his trips in Defendant’s truck. Furthermore, Plaintiff has, on several occasions, performed various other services for Defendant, including checking cargo and operating a forklift. Notwithstanding the fact that Plaintiff’s services were acknowledged and gratefully accepted by Defendant, Plaintiff was never compensated for these services by Defendant, was never actually employed by Defendant, and, at the time of her fall, was employed elsewhere.

The ultimate issue here, as in any appeal from a summary judgment, is whether all the evidence shows that there is “. . . no genuine issue as to any material fact and that the moving party [was] entitled to a judgment as a matter of law. ...” ARCP 56(c). On a motion for summary judgment, then, the trial judge must make the determination whether that triable issue exists, but the resolution of factual issues is a duty reserved to the jury. Bennett v. United Auto Parts, Inc., 294 Ala. 300, 315 So.2d 579 (1975).

Plaintiff claims that the genuine issue of material fact, i.e., triable issue, is whether Plaintiff, at the time of her fall, was an invitee or licensee of Defendant. The resolution of this issue is, of course, determinative of Plaintiff’s right to maintain an action against Defendant. That very resolution, says Plaintiff, citing Franklin Fire Insurance Co. v. Slaton, 240 Ala. 560, 200 So. 564 (1941), is a factual question and it is for the jury to make that determination.

We agree with this reasoning and note that this Court has stated, with regard to the status of a “licensee”:

“The duty owed by a landowner to one on his property generally depends on the status of the injured party in relation to the land. See, e.g., Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). Where [the Plaintiff is] on defendant’s property with his consent or as his guest, but with no business purpose, [Plaintiff] attains the status of a licensee and is normally owed only the duty not to be willfully or wantonly injured and not to be negligently injured after the landowner has discovered [Plaintiff’s] peril. Autry v. Roebuck Park Baptist Church, supra.

Hickey v. Charlton, 335 So.2d 389 (Ala.1976).

In a later case, again citing the Autry decision as our authority, we similarly defined an “invitee”:

“An invitee is a visitor, a transient who enters property at the express or implied invitation of the owner or occupier for the material or commercial benefit of the occupier.”

Osborn v. Brown, 361 So.2d 82 (Ala.1978). Likewise, we have affirmatively held that Alabama will continue to recognize the distinction between a licensee and an invitee and the responsibilities which a landowner or an occupier has with respect to those in either category. McMullan v. Butler, 346 So.2d 950 (Ala.1977). Indeed, as we have pointed out, Plaintiff frames the issue so as not to challenge that distinction.

We cannot agree with Plaintiff that the trial court erred in granting Defendant’s motion for summary judgment. The evidence of record, when viewed most strongly in Plaintiff’s favor, fails to reveal facts which would refute the evidence with which Defendant supports its motion for summary judgment. We observe that while Plaintiff, on several occasions, did, in fact, render services which inured to the benefit of Defendant, Plaintiff was never compensated in any way for any service rendered in Defendant’s behalf nor was she ever considered an employee of Defendant; Plaintiff was employed elsewhere at the time- of her accident; and Plaintiff had to come onto Defendant’s premises on this particular occasion to accomplish two purposes which were of exclusive benefit to herself and to her husband with no mutual benefit of any kind flowing to Defendant.

Notwithstanding Plaintiff’s status during any earlier visits to Defendant’s premises, we are here concerned only with her status at the time of her accident, which status, we conclude, was clearly that of a licensee; and, further, that Plaintiff was on Defendant’s premises “. . . by permission or sufferance only, and not by virtue of any business or contractual relation with the owner or occupant inuring to the benefit of both, or by virtue of any enticement . . .,” 65 C.J.S. Negligence § 63(29). Clearly, we find Plaintiff’s situation to be similar to that of the invitee who, upon exceeding the physical boundaries of his invitation, becomes a licensee. See Robinson v. Maryland Coal & Coke Company, 196 Ala. 604, 72 So. 161 (1916). Here Plaintiff’s coming to Defendant’s premises on the day in question was the result of her own initiative and in furtherance of her personal errand and, therefore, exceeded the time boundaries of any past invitation Defendant may have extended to her to ride with her husband or to perform various services for Defendant.

We agree with the trial Court’s conclusion that there was no genuine issue as to any material fact. There was no evidence presented by Plaintiff to indicate that, at the time of her accident, she held the status of an invitee; and, therefore, there was nothing to contradict that evidence which clearly indicated that Plaintiff’s status was that of a licensee and nothing more. In other words, the evidence presented to this Court indicates that Plaintiff was precluded, as a matter of law, from proving her case. See Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975).

AFFIRMED.

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

      . In reciting these facts, we should emphasize that we do not hold, necessarily, that any single one of the facts would be sufficient to render Plaintiff, as a matter of law, a licensee as opposed to an invitee. Rather, it is the cumulative effect of the totality of the circumstances which leaves no factual issue to be resolved for a determination of her legal status.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    LUCKY MANUFACTURING COMPANY v. ACTIVATION, INC., and Webster Electric Company.
    80-116.
    Supreme Court of Alabama.
    Nov. 25, 1981.

      James T. Baxter, III of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    E. Cutter Hughes, Jr. of Lanier, Shaver & Herring, and Philip A. Geddes, Huntsville, for appellee Activation, Inc.
    Danny D. Henderson of Henderson & Grace, Huntsville, for appellee Webster Elec. Co.
   EMBRY, Justice.

Defendant, Lucky Manufacturing Company, appeals from a judgment entered on a jury verdict awarding damages to plaintiff, Activation, Inc. for Lucky’s breach of contract. The questions for review concern certain evidentiary rulings and jury instructions by the trial judge, as well as its granting of Activation’s motion for directed verdict regarding Lucky’s counterclaim for fraud.

Activation filed its action alleging Lucky’s failure to pay for equipment and merchandise ordered and received from Activation, and also seeking damages for the contract price, costs of collection, and reasonable attorney’s fees. Lucky counterclaimed for breach of warranty and fraud, alleging the equipment supplied was defective and its quality was misrepresented, whereupon Activation filed a third-party complaint against Webster Electric Company seeking indemnity, based on Webster’s warranty as manufacturer of the equipment, for any amount for which Activation might be held liable to Lucky.

At the close of Lucky’s case, the court granted Activation’s motion for directed verdict on the counterclaim for fraud. The jury returned a verdict for Activation in the amount of $22,739.14. Implicit in that verdict was a denial of relief to Lucky on its remaining counterclaim. Lucky’s motion for judgment notwithstanding the verdict, or in the alternative for a new trial, was denied and this appeal ensued.

Lucky is a manufacturer of log loading machinery. The principal' moving parts of this machinery are activated by a system utilizing fluid pressurized by a hydraulic pump.

During 1976 and 1977, Lucky purchased a substantial number of hydraulic pumps and related components from Activation, a dealer in hydraulic equipment, for use in a new model of log loader, Lucky’s 818, which it had developed in recent years. The pumps sold by Activation to Lucky were manufactured by Webster. The same type of Webster pump had been utilized in Lucky’s 818 prototype, which was tested from April 1974 to April 1975; however, the Webster pump incorporated in the prototype was sold to Lucky by Fluid Dynamics, Inc., a competitor of Activation.

Although Lucky encountered no problems with the Webster pump when testing the prototype, Lucky installed, in the initial 818’s it placed on the market, more expensive hydraulic pumps manufactured by Commercial Shearing, a brand which it had been using in another model of log loader. When Activation offered Webster pumps at a price lower than that at which Fluid Dynamics could provide the same, however, Lucky began to purchase from Activation Webster pumps for installation in the 818’s.

Many of Lucky’s customers who purchased the 818’s in which Activation supplied Webster pumps experienced failures of those pumps. Bobby Lucky, president of Lucky, testified that he knew of about 35 such failures; 18 pumps were returned to either Activation or Webster.

Disputes concerning the cause of the pump failures arose and, as a result, Lucky refused to pay approximately $16,000 of its account owed Activation. This account included charges for a substantial quantity of equipment other than hydraulic pumps. This action ensued.

At trial, Activation presented evidence of Lucky’s due account and rested its case. Lucky countered with evidence of specific pump failures, largely through the testimony of Don Hawkins, who retailed and serviced Lucky machinery in Arkansas. Lucky also adduced testimony, controverted by Activation, that during the sales negotiation Activation’s representative assured Bobby Lucky that “the Webster pump was as good or better than a Commercial Shearing pump”; that alleged representation was the sole basis of the counterclaim for fraud. The evidence offered by both Activation and Webster, based primarily on expert analysis of the failed pumps and the oil used therein, tended to show that the pump failures were caused by overpressurization and contaminated oil and not defects in manufacturing.

Lucky’s principal contentions on appeal concern the trial court’s sustaining objections to certain questions propounded to Don Hawkins by counsel for Lucky. Hawkins conducted a sales and service business, at Sheraton, Arkansas, known as Don’s Hydraulic Sales and Service. Lucky argues that it was error not to allow Hawkins to testify as an expert regarding: (1) the effectiveness of the valve bank installed on the machine (for the purpose of rebutting the contentions of Activation and Webster that the pump failures were caused by over-pressurization); (2) the normal use expectancy of hydraulic pumps in similar systems; (3) the lack of problems experienced with Commercial Shearing pumps used to replace the Webster pumps which failed; and (4) loss of reputation to the 818 resulting from use of the Webster pumps and the failures of those pumps.

The determination of whether a witness is competent to testify as an expert on a particular subject is within the discretion of the trial judge, whose ruling will not be disturbed on appeal unless it was a patent abuse of that discretion. Ford Motor Co. v. Rodgers, 337 So.2d 736 (Ala.1976).

The specific portions of the record cited by Lucky reveal that the first question regarding the valve bank (alluded to ante) was properly sustained because no predicate regarding Hawkins’ qualifications as an expert had, at that point, been laid by counsel for Lucky. The remaining objections to questions about the valve banks were sustained on grounds of irrelevancy.

Similarly, objections to testimony about performance of Commercial Shearing pumps installed after removal of the failed Webster pumps were sustained on grounds of irrelevancy. Lucky’s contentions regarding Hawkins’ qualifications as an expert have no bearing on those objections which were sustained on bases of irrelevancy.

Neither do arguments regarding Hawkins’ qualifications relate to the trial court’s refusal to permit Hawkins to testify regarding any injury to the reputation of the 818’s because they were equipped with Webster pumps.

About the question seeking Hawkins’ opinion of “the normal use expectancy of a pump in a hydraulic system of like kind”, objection was first sustained for failure to lay a proper predicate, since counsel for Lucky had not at that point elicited from Hawkins his qualifications with respect to hydraulic equipment. Counsel for Lucky then proceeded to properly lay the foundation of Hawkins’ expertise in hydraulics, but when the question regarding normal use expectancy was repeated, objection was again made and the objection sustained:

Q: Based on your experience, do you have a judgment as to what the normal life expectancy of a pump of like kind on this type of hydraulic system would be?
MR. HUGHES: Your Honor, I object to that, like kind alone I think would make that objectionable.
THE COURT: Sustained. [Emphasis added.]

Although the ground for this objection was not clearly enunciated by counsel for Activation, it is apparent from the language used that the objection, and ruling thereon, were based upon grounds of relevancy rather than upon the witness’s qualifications as an expert. Therefore, it follows that Lucky’s attack on the latter ground was without merit.

Lucky’s final contention relating to Hawkins’ testimony is that the trial court erred in sustaining Activation’s objections, on the grounds of irrelevancy, to questions about the performance of Commercial Shearing pumps which replaced the failed Webster pumps in the 818's. According to Lucky, evidence of the lack of problems experienced with the 818’s after Commercial Shearing pumps were installed is clearly relevant to support its counterclaim for fraud, by tending to show the falsity of the alleged representation by Activation’s agent that “the Webster pump was as good or better than a Commercial Shearing pump.” This alleged representation also served as an express warranty, Lucky maintains, and evidence about the Commercial Shearing pumps’ performance would tend to prove a breach of that warranty.

We cannot conclude that the trial court exceeded its broad discretion in excluding this testimony of dubious probative value; testimony that a Cadillac does not burst into flames when hit from the rear would have no bearing on whether a Pinto which did so contained a design defect.

Furthermore, had this testimony been admitted, it could not have altered the end result in light of our decision, infra, on the directed verdict and on the issue of whether the alleged representation constituted an express warranty. Before addressing those matters, however, there remain several other contested evidentiary rulings relating to the testimony of Thomas Faust, a salesman for Activation who investigated the pump failures.

Counsel for Lucky questioned Faust concerning conversations he had with Homer Urquhart, at that time president of Activation and also a mechanical engineer, seeking to elicit from Faust statements made by Urquhart as to possible reasons for the pump failures other than those offered by Webster’s experts. Objections to three such questions were sustained. Although the objections entered did not specifically state that the grounds were hearsay, the pertinent portions of the colloquy, which follow, reveal that hearsay was the basis of the objection and the trial court’s ruling.

Q: And your boss told you that he didn’t see how that could be possible, because this was a fixed volume pump that was directly hooked — directly powered by the engine, did he not?
MR. HUGHES: Object to the conversation between the two of them.
THE COURT: Sustained.
Q: Did you and Mr. Urquhart talk about, well, probably some bad bearings in the pump is causing the failure?
MR. HUGHES: Objection to what he talked about.
THE COURT: Sustained.
Q: ... did you and Mr. Urquhart have any discussions with each other about the pump probably or likely being caused to fail by bad bearings?
MR. HUGHES: Same objection.
THE COURT: Sustained.
Q: Did you and Mr. Urquhart talk to each other about the probability that the tolerances or the alignments of the pumps were off and that was causing the failure?
MR. HUGHES: Same objection.
THE COURT: Sustained.

With respect to these objections, Lucky’s brief states that surely Activation could not be objecting because the contents of the conversations were hearsay, when this would be true only if Activation sought to prove the contents of them. Lucky offers no authority in support of this strange proposition, and for good reason: “hearsay includes every human statement, not made in the process of testifying as a witness in the present trial or confined in a deposition taken for use in the present trial, offered as tending to prove the truth of the matter asserted.” Gamble, McElroy’s Alabama Evidence § 242.01(1) (3d ed. 1977); see also Cleary, McCormick on Evidence 584 (1972); 5 Wigmore, Evidence § 1362 (Chadbourn rev. 1974). Obviously, the questions posed by Lucky sought answers proscribed by the hearsay rule. Whether those answers might be categorized as exceptions to the hearsay rule or have been admitted for another purpose, such as impeachment, need not be addressed because counsel for Lucky failed to make an offer of proof preserving any error in that regard. See Rule 43, ARCP. .

More generally, Lucky complains it was denied a thorough and sifting cross-examination of Faust about the fact that he acquired only one oil sample during his investigation of the pump failures. Counsel for Lucky questioned Faust concerning specific purchasers of Lucky- Log loading machinery from whom Faust did not attempt to obtain oil samples. Objections to these questions on the grounds of irrelevancy were sustained. The purpose of this line of questioning, according to Lucky, was to show that Activation made less than a wholehearted effort to obtain representative oil samples.

We cannot accept Lucky’s argument that these rulings constitute reversible error. The trial court has the discretion to reasonably limit the range of cross-examination with respect to collateral and irrelevant matters, or with respect to matters that unnecessarily consume time in the trial of a case. Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973); McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971); Powell v. Powell, 285 Ala. 230, 231 So.2d 103 (1970).

On cross-examination by Lucky, Faust testified he obtained only one oil sample, and sought no other samples, because he was denied permission to do so by Lucky’s president. Further inquiries into whether other samples were procured from specific customers were merely repetitive of that point which had been clearly made. The trial court acted well within its discretion in requiring counsel for Lucky to move on to another line of questioning.

Further, Lucky complains of error in the trial court’s grant of Activation’s motion for directed verdict on Lucky’s counterclaim for fraud.

It is a well-established principle that if a legitimate inference furnishes a scintilla of evidence in support of the theory of a claim in the complaint, that claim must go to the jury. It is equally well-established, however, that where there is no legitimate evidence supporting the charge made by the claim, but rather the evidence shows the claim is based on speculation and conjecture, then, in that event, the claim should not be submitted to the jury. Whaley v. Lawing, 352 So.2d 1090 (Ala.1977); Commercial Fire Insurance Company of New York v. Parvin, 279 Ala. 645, 189 So.2d 330 (1966); Perdue v. Mitchell, 373 So.2d 650 (Ala.1979). Furthermore, evidence supporting each element of the claim in question must be presented before the case is allowed to go to the jury. State Security Life Insurance Co. v. Henson, 288 Ala. 497, 262 So.2d 745 (1972).

The essential elements of a fraud claim are found in Code 1975, § 6 — 5—101:

Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.

This court has noted that both reliance and damages are essential elements to be proved in fraud actions. Woodham v. Nationwide Life Insurance Co., 349 So.2d 1110 (Ala.1977). Regarding the element of reliance in an action for fraud in Alabama the Fifth Circuit Court of Appeals, in First Virginia Bankshares v. Benson, 559 F.2d 1307 (5th Cir. 1977), noted the requirements of showing:

(c) reliance by the plaintiff on the representation and that he was deceived by it, Bynum v. Rucker, 235 Ala. 353, 179 So. 241 (1938);
(d) reliance which was justified under the circumstances, Fidelity & Cas. Co. v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669 (1943);
(e) damage to the plaintiff proximately resulting from his reliance. Smith v. Smith, 266 Ala. 118, 94 So.2d 863 (1957).

Review of the record in this ease shows a complete lack of evidence of the critical element of reliance. Lucky contends that the alleged statement by Activation’s representative that the Webster pump was “as good or better” than a Commercial Shearing pump was the representation upon which it relied to its detriment. Wholly apart from the fact that such comments constitute “traders’ talk,” or “puf-fery,” as discussed in connection with warranty questions, infra, there is no merit to the argument that such representation was a material fact upon which Lucky relied, in light of the uncontroverted evidence that Lucky had previously purchased the same type of Webster pump from another dealer and tested it in the 818 prototype for at least a year. Consequently, there could be no finding of fraud as a matter of law. Directing a verdict on that count of the counterclaim was proper.

Lucky next challenges three aspects of the court’s charge to the jury: (1) refusal to give two requested instructions, (2) an instruction given on express warranties, and (3) an alleged improper comment on the evidence.

The first requested instruction, definition of a merchant under Alabama’s commercial code, was offered in connection with Lucky’s claim for breach of implied warranty of merchantability.

However, the trial court’s correct instruction on the implied warranty of merchantability as found in Code 1975, § 7-2-314, was presented in such a manner that Activation’s status as a merchant was an assumed fact. Therefore, this requested instruction would have been mere surplusage.

The other requested instruction was simply the general policy statement that the commercial code is to be interpreted liberally so as to put an aggrieved party in as good a position as he would have been had he not been wronged. This is such a vague and general instruction that no harm arises from failure to give it; indeed, Lucky alleges harm only in conclusionary terms with no specific indication of how it considers it was harmed by not having the jury so instructed.

Lucky also complains that the court’s instruction precluded the jury from finding any express warranty other than the written warranty included in Webster’s description of the pump. It contends Activation’s representation that the Webster pump was “as good or better” than a Commercial Shearing pump constituted an “affirmation of fact or promise” made a “part of the basis of the bargain” within the meaning of Code 1975, § 7-2-313, which created an additional express warranty under that statutory provision. This proposition is without merit in light of Code 1975, § 7-2-313(2), which recognizes that “a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

Finally, Lucky argues that the trial judge improperly commented on the evidence in his jury charge by saying: “. . . the Defendant admitted receipt of the merchandise in question and made no serious denial during the trial concerning the receipt or concerning the existence of the amount.” Lucky contends that “receipt” was in dispute because the merchandise received was not that contracted for and, further, that the amount was in question because of Lucky’s counterclaim. This is sophistry. The trial court did not opine either that the goods received conformed to the contract (as defined in § 7-2-106(2)) or that the amount shown on Activation’s bills was the amount which the jury should award. The sense of his remark was that Lucky did not deny receiving goods from Activation nor did it introduce evidence controverting the price shown on Activation’s bills rendered for those goods. Viewed as a whole, the trial court’s instructions properly delineated the issues and instructed the jury on its duty as the trier of fact.

Because we find no reversible error in the record, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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

      . Activation sued for $16,013.68 balance due and $5,337.89 attorneys’ fees. The trial court’s instructions disallowed attorneys’ fees, and re-mittitur was ordered bringing the sum to $18,-495.00 (balance due plus 6% interest).


author: ADAMS, Justice.

text:
    R. D. REED and Linda Reed v. CITY NATIONAL BANK OF SELMA, ALABAMA.
    80-416.
    Supreme Court of Alabama.
    Nov. 25, 1981.

      Marc E. Bradley of Turner, Onderdonk, Bradley & Kimbrough, Chatom, for appellants.
    Joseph W. McDowell of Pitts, Pitts & Thompson, Selma, for appellee.
   ADAMS, Justice.

This appeal concerns the propriety in selecting venue under 12 U.S.C. § 94 in an action against a national bank. R. D. Reed and Linda Reed (we will refer to appellants in the singular as “Reed”) appeal from a judgment of the Circuit Court for Washington County dismissing City National Bank of Selma (CNB) as a party to an action by Foremost Insurance Company against Reed. The Circuit Court held that under 12 U.S.C. § 94, CNB was not subject to suit in Washington County. Final judgment was entered pursuant to Rule 54(b), A.R.C.P., and Reed appealed.

The dispositive issue on this appeal is whether CNB is subject to suit in Washington County under one of the exceptions to 12 U.S.C. § 94. We hold that it is not, and we affirm.

CNB is a national banking association established, located, and doing business in Dallas County, Alabama. It maintains no office, and has no officers or agents in Washington County.. Reed was sued originally in the District Court of Washington County by Foremost Insurance Company to collect a deficiency judgment arising from a contract for the sale of a mobile home. Reed assumed the indebtedness due under the contract which CNB originally held, but later assigned to Foremost Insurance Company. Reed lost in district court and appealed to circuit court. In circuit court Reed moved to add CNB and others as parties. The motion was granted and Reed alleged in a counterclaim that CNB and other parties had conspired to defraud him in the mobile home transaction by misrepresenting material facts. CNB filed a motion to vacate service and/or dismiss, contending that the circuit court lacked jurisdiction and that venue was improper. The circuit court granted CNB’s motion on the authority of 12 U.S.C. § 94.

Venue in actions against national banks is governed by 12 U.S.C. § 94, which provides:

Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.

The provisions of § 94 have been held to be mandatory and not permissive. Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977); Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Central Bank v. Boyles, 355 So.2d 98 (Ala.Civ.App.1978). Nevertheless, the United States Supreme Court has held that a national bank can waive the venue privilege afforded under § 94. Charlotte First Nat Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889). An exception also exists to § 94 where the action is local as opposed to being transitory. Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52 (1880). Whether an action is local or transitory is determined by state law. Moreland v. Rucker Pharmacal Company, 59 F.R.D. 537 (W.D.La.1973); Central Bank v. Boyles, supra. Reed contends that both of the above mentioned exceptions to § 94 apply to his case. Reed acknowledges that CNB did not intentionally waive the venue privilege afforded by § 94. Instead, he argues that CNB, by its actions, impliedly waived its right under § 94 so as to allow suit against it in Washington County. We will examine both arguments.

Reed theorizes that CNB waived its venue privilege by inconsistent conduct. In support of this theory, Reed points to numerous alleged acts by CNB. CNB, Reed says, has sent agents into Washington County to check on the collateral and CNB records liens on secured property in the county’s probate court. That CNB allegedly communicates with Washington County residents concerning payments due on investments within the county, and finances local transactions, Reed argues as supporting his theory. Finally, CNB’s alleged commission of the tort of which Reed complains, and the fact that CNB could use the Washington County courts if it wanted to, are advanced as reasons supporting the waiver argument.

In essence, Reed argues a “minimum contacts” theory used in interstate situations where a question of a state’s long arm jurisdiction is raised. We find that argument has no application to the venue privilege under § 94. The very case cited by Reed to support his theory rejected a similar argument. In Staley v. Homeland, Inc., 368 F.Supp. 1344 at 1347 (E.D.N.C.1974), it was recognized that a minimum contacts argument was not viable:

In effect, the plaintiffs are asking the Court to hold that if a bank has minimum contacts in a state under guidelines set in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and related cases, they have impliedly waived their § 94 immunity from suit. This would bend the law too far from the obvious intent of the legislature and render altogether meaningless the Congressional enactment favoring local suits of national banks. The Supreme Court in Langdeau and [Michigan Nat. Bank v.] Robertson [372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961] would not allow this Court to go so far.

We agree. Although the United States Supreme Court more recently has recognized in Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977), that an action against a national bank can be maintained in a county where it has a branch, the waiver argument advanced by Reed conflicts with the above cited cases interpreting the protective nature of § 94. Although a national bank can waive the venue privilege of § 94, the alleged acts of CNB advanced by Reed as constituting a waiver are not within the recognized acts supporting this exception. Annok, 1 A.L.R.3d 904 (1965). Addressing the issue of waiver, our Court of Civil Appeals has stated:

The special privilege accorded national banks by § 94 may be waived expressly or by failure to assert when sued. First Charlotte Nat’l Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889). Waiver may be inferred from conduct inconsistent with the assertion of the privilege. However, the conduct relied upon must demonstrate an intentional relinquishment or abandonment of the privilege.

Central Bank v. Boyles, at 100. Accordingly, we cannot find that CNB waived its venue privilege under 12 U.S.C. § 94.

Is Reed’s action a local action under Alabama law? His theory is based upon the following premises. First, Foremost Insurance Company instituted an action against Reed in Washington County. Second, Reed’s counterclaim (alleging a civil conspiracy), is compulsory, at least as to Foremost Insurance Company, and must be asserted; otherwise, Reed would be bound by res judicata under Rule 13, Alabama Rules of Civil Procedure. Third, all co-conspirators, including CNB, are indispensable parties to the action under Rule 19, A.R.C.P. Reed concludes that because the Alabama Rules of Civil Procedure require the instant action to be tried in the Circuit Court for Washington County, it is a local action and, thus, an exception to 12 U.S.C. § 94.

We cannot agree with Reed’s contentions concerning the compulsoriness of his “counterclaim.” At the outset, we note that Reed has not asserted a counterclaim against CNB. Reed brought CNB into the action started by Foremost Insurance Company as an additional party. Next, Reed erroneously argues that its conspiracy action becomes a local action by reason of the co-conspirators being indispensable parties pursuant to Rule 19, A.R.C.P. The distinction between local and transitory actions has been observed to be as follows:

The test as to whether an action is transitory or local is not, as a general proposition, the subject causing the injury, but the object suffering the injury, or, as the distinction is otherwise stated, it exists in the nature of the subject of the injury and not in the means used or the place at which the cause of action arises. Transitory actions are universally founded on the supposed violation of rights which, in contemplation of law, have no locality. They are personal actions, that is, they are brought for the enforcement of purely personal rights or obligations. If the transaction on which the action is founded could have taken place anywhere, the action is generally regarded as transitory; but if the transaction could only have happened in a particular place, or, as it is sometimes expressed, when the cause of action could only have arisen in a particular place, the action is local. Some authorities, considering the effect of the distinction, define transitory actions as actions which may be tried wherever defendant may be found and served.

92 C.J.S. Venue § 8, at 678-9 (1955) (footnotes omitted). Long ago, this court observed that local actions “are in the nature of suits in rem .. . which are to be prosecuted where the thing on which they are founded is situated.” First Nat. Bank of Linden v. Alston, 231 Ala. 348 at 350, 165 So. 241 at 242 (1936) (citing Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52 (1880); Woolf v. McGaugh, 175 Ala. 299, 57 So. 754 (1911); Turnipseed v. Fitzpatrick, 75 Ala. 297 (1883). Applying the above quoted test, and this court’s precedent, there is no doubt that Reed’s action alleging a conspiracy is transitory in nature. Nor do we accept Reed’s contention that the alleged indispensability of CNB under Rule 19, A.R.C.P., to his action transforms it from one that is transitory to one that is local. Were we to hold that Rule 19 has the effect Reed urges, then virtually any type of action could be local as opposed to transitory. Such a result could not be sanctioned. Holding that the venue, requirements of 12 U.S.C. § 94 are mandatory, the United States Supreme Court observed:

The consequence of our decision, appel-lee says, is that a litigant will be unable to join two national banks in the same action in the state courts if they are located in different counties or in the federal courts if they are located in different districts. But aside from not being presented by these cases, such a situation is a matter for Congress to consider. Cf. 28 U.S.C. §§ 1391(a), (b), 1401; Greenberg v. Giannini, 140 F.2d 550, 552 (C.A.2d Cir.). See also, Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 [74 S.Ct. 145, 148, 98 L.Ed. 106].
Similarly, even if all of the 145 defendants may not be sued in one proceeding in Dallas County with the same facility as they may in Travis County, this, of course, is insufficient basis for departing from the command of the federal statute.

Mercantile National Bank v. Langdeau, 371 U.S. at 563-4, 83 S.Ct. at 525.

In First Nat. Bank of Linden v. Alston, supra, this court held that a national bank properly could be sued in an equitable proceeding in a county where it was not located. Discussing 12 U.S.C. § 94, the Alston court held:

Moreover, we doubt if that provision of the federal statute could be applicable to cases in which a national bank becomes a joint party as an incident to the enforcing of an equitable or legal right as here. As a material respondent, John Brandon, resides in Montgomery, it would be quite an anomaly to hold that, in a proceeding of this character wherein several national banks located in different counties were involved, they could not be jointly brought in one action. We therefore hold that the bill was not improperly filed in Montgomery county under section 6524 of the Code of 1923.

First Nat. Bank of Linden v. Alston, 231 Ala. at 350, 165 So. 241. Judge Wright, speaking for the Court of Civil Appeals, in Central Bank v. Boyles, supra, observed that the Alston decision probably was no longer viable in light of Mercantile National Bank v. Langdeau, supra. Central Bank v. Boyles, at 100. We agree with Judge Wright. The “anomaly” referred to by the Alston court clearly is allowable, as the United States Supreme Court said in Mercantile National Bank v. Langdeau. Accordingly, First Nat. Bank of Linden is overruled insofar as it holds that 12 U.S.C. § 94 is rendered inapplicable merely because a national bank is a joint defendant with a party properly sued in a county in which the bank is not located.

Finding no error, we affirm the judgment of the circuit court.

AFFIRMED.

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


text:
    Ex parte MARSHALL COUNTY. (Re MARSHALL COUNTY v. Fob JAMES, etc., et al.)
    80-731.
    Supreme Court of Alabama.
    Nov. 25, 1981.
    T. J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    J. R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for respondent City of Huntsville Hospital Bd. d/b/a Huntsville Hospital, etc.
    M. R. Nachman, Jr., Spec. Counsel to the Governor of the State of Alabama, Montgomery, William J. Samford, Jr., Legal Ad-visor to the Governor of the State of Alabama, Opelika, Glen F. Manning, Spec. Counsel to the Governor, Huntsville, and Thomas McAlpine, Gen. Counsel for the Dept, of Corrections, Montgomery, for respondents.
   EMBRY, Justice.

Writ of mandamus denied on authority of Madison County, Alabama v. James, 406 So.2d 398 (Ala.1981).

WRIT DENIED.

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


author: BEATTY, Justice.

text:
    Donald C. CAMPBELL, et al. v. SOUTHERN ROOF DECK APPLICATORS, INC.
    80-808.
    Supreme Court of Alabama.
    Dec. 4, 1981.

      Ernest W. Weir, Birmingham, for appellants.
    W. Lee Pittman of London, Yancey, Clark & Allen, Birmingham, for appellee.
   BEATTY, Justice.

Appeal from a summary judgment entered in favor of the defendant, Southern Roof Deck Applicators, Inc. We affirm.

This action began as a bill for a declaratory judgment brought by the plaintiffs as trustees of the Fultondale First Baptist Church against Southern Roof Deck Applicators, Inc., Neil Bruce d/b/a Neil Bruce Associates (the architect), and two fictitious parties. The bill sought a declaration of the respective rights of the parties under a contract for the construction of a new roof for the church building. The bill was later amended as a demand for damages from the defendants allegedly due because of their negligence. A later amendment to the complaint alleged the following:

2. Plaintiffs aver that they entered into a contract under date of December 22, 1977, with defendant Southern Roof Deck Applicators, Inc., wherein said defendant agreed to construct a new roof on an existing building owned by plaintiffs; that as a part of said contract, defendants agreed to indemnify and hold harmless the owner and the architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the work under contract; that defendants negligently performed said work under said contract in such a negligent manner so as to cause losses, damages, expenses, loss of use of the building or structure on which said work was performed by defendant, Southern Roof Deck Applicators, Inc., plus the additional expense of litigation, including a reasonable attorney’s fee therein, all to the damage of the plaintiffs as a proximate consequence of said negligent performance of the work under said contract in that the roof structure was caused to bear excessive weight causing a break, snap and/or collapse of the structural support beam timbers upon which said work was performed and making such structure unfit for the use thereof, all to the damages of plaintiffs for which indemnification is here demanded.

In due course the plaintiffs and Southern Roof moved for summary judgment on the plaintiffs’ claim for a reasonable attorney’s fee under the contract, based upon the pleadings, interrogatories, answers, request for admissions and answers, affidavits, and the contract referred to. The defendant Neil Bruce d/b/a Neil Bruce Associates, also moved for summary judgment on his cross claim against Southern Roof, on the theory that Southern Roof likewise had indemnified him for attorneys’ fees under Article 10.10 of the contract between plaintiffs and Southern Roof. The trial court granted the motion of Southern Roof and denied the motions of plaintiffs and Bruce. The effect of these rulings was that under the contract in question the defendant contractor, as a matter of law, had not agreed to indemnify the plaintiffs for attorneys’ fees incurred in the litigation between themselves.

A proper Rule 54(b) certification was entered and the plaintiffs have appealed the ruling adverse to them on that issue.

The contract in question, a standard AIA form contract, contained two sections bearing on the issue of indemnification. Article 10.10 states:

The Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property other than the Work itself including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder, in any and all claims against the Owner or the Architect or any of their agents or 'employees by any employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this Paragraph 10.10 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under workmen’s compensation acts, disability benefit acts or other employee benefit acts. The obligation of the Contractor under this Paragraph 10.10 shall not extend to the liability of the Architect, his agents or employees arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the Architect, his agents or employees provided such giving or failure to give is the primary cause of the injury or damage.

Article 17 pertaining to the protection of persons and property states in part:

All damage or loss to any property caused in whole or in part by the Contractor . . . shall be remedied by the Contractor .... [Emphasis added.]

The defendant, Southern Roof Deck Applicators, Inc., argues the existence of an ambiguity, caused by these two provisions, with respect to the contractor’s obligation, and that therefore, because of this ambiguity, the contract had two separate meanings concerning indemnity, which the trial court resolved. We need not consider Article 10.-10 in pari materia with Article 17, however, because it is clear that no such ambiguity existed requiring resolution by the trial court. The language of Article 17 refers to “damage” or “loss to any property” and, standing alone, does not refer to indemnification for attorneys’ fees.

Article 10.10, however, does refer to “all . . . losses and expenses including attorneys’ fees ...” and is the only contractual reference to attorneys’ fees. By its express terms the “Contractor shall indemnify . . . the Owner and the Architect . . . against all claims ■. . . and expenses including attorneys’ fees arising out of . . . performance of the Work. . . . ” The claims for which indemnity is made are described in Article 10.10 as “. . . any and all claims against the Owner or the Architect or any of their agents or employees by any employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. . . . ” Clearly, this language does not permit a construction which would indemnify the owner or architect for attorneys’ fees incurred by either in a claim which either brought against the contractor. The contractural terms in question refer to the claims of the described third parties against the owner and the architect. Contracting parties have a right to express the limitations under which they will be bound, and such clearly manifested limitations will be recognized by the courts. United States Fid. & Guar. Co. v. Jacksonville State University, Ala., 857 So.2d 952 (1978).

The movant for summary judgment has the burden of showing the absence of any genuine issue of material fact, and the record must be viewed in a light most favorable to the party opposing the motion. Rule 56, ARCP; Papastefan v. B & L Construction Co. of Mobile, Ala., 356 So.2d 158 (1978). In other words, on motion for summary judgment the movant must demonstrate that if the case went to trial there would be no competent evidence to support a judgment in favor of the other side and, therefore, that a trial is useless. Logan v. Beuttner, Ala., 342 So.2d 352 (1977), citing Wright & Miller, Federal Practice and Procedure, Civil § 2727. It is clear that such a situation exists here with respect to the defendants’ lack of responsibility under the express terms of the contract to pay attorneys’ fees, and this question was properly disposed of by summary judgment. Cf. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

Accordingly, the judgment must be, and is, affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY v. Carl S. SMITH, Jr.
    Civ. 2482.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Rehearing Denied July 29, 1981.

      Donald N. Spurrier of Williams, Spurrier & Rice, Huntsville, for appellant.
    Jimmy E. Alexander of Steele, Alexander, Corder & Plunk, Athens, for appellee.
   HOLMES, Judge.

This is an insurance case.

Carl Smith, Jr., sued Alabama Farm Bureau, claiming rights under a homeowner’s insurance policy. Smith’s complaint contained four counts and sought damages from Farm Bureau under theories of breach of contract and negligence. In addition to other damages, Smith sought recovery of the insurance proceeds. Marshia Hewitt also sued Farm Bureau, claiming the insurance proceeds. Farm Bureau filed an inter-pleader and paid the policy proceeds into court. The trial court distributed the proceeds between Smith and Hewitt. Smith then amended one count of his complaint to state a new contract theory of recovery and to claim damages for mental anguish and injury to credit. The other counts in Smith’s complaint were stricken or dismissed and only the amended count was submitted to the jury. The verdict and resulting judgment was in-favor of Smith and against Farm Bureau. An award of $10,000 was made.

Farm Bureau appeals and we reverse and remand.

Farm Bureau on appeal alleges numerous errors. This court will detail the pertinent facts as they relate to the issues.

I

-, Farm Bureau through counsel contends that it exonerated itself from further liability to Smith by filing the interpleader and by paying the insurance proceeds into court. In other words, Farm Bureau argues that it was entitled to be discharged from further liability to Smith and that the trial court erred by allowing the litigation against it to continue.

We do not agree.

The record shows that both Smith and Hewitt claimed the insurance proceeds. In-terpleader appears to have been the most expeditious method of settling those conflicting claims. However, the record also shows that at the time the interpleader was filed and at the time the interpleaded funds were distributed to Smith and Hewitt, Smith’s complaint contained four counts. Two of those counts sought recovery of the insurance proceeds. The other two counts alleged that Farm Bureau negligently and wantonly injured Smith by failing to name him as an insured on the homeowner’s policy. These two counts sought damages in amounts greater than the amount of the insurance proceeds.

Under rule 22(b), ARCP, if a party seeking interpleader has no interest in the outcome of the contest of the claimants, does not deny liability in whole or in part to any of the claimants, or a claim of independent liability is not presented, the party may be discharged from liability. However, if the pleadings create a genuine issue of fact as to independent liability to a claimant other than upon title to the fund, the stakeholder should be kept in the action for determination of the issue of independent liability. Dick v. First National Bank of Birmingham, Ala.Civ.App., 334 So.2d 922 (1976). See rule 22(b) ARCP.

In the instant case, as indicated above, Smith’s complaint contained four counts. Two of those counts alleged that Farm Bureau tortiously injured Smith and sought damages that exceeded the amount of the insurance proceeds. We find that Smith’s complaint presented a claim of independent liability that was not and could not be resolved by the interpleader and that the trial court did not err in keeping Farm Bureau in the action to determine whether Farm Bureau was liable to Smith for more than just the insurance proceeds.

II

Farm Bureau next contends that damages for mental anguish may not be recovered in an action for breach of an insurance contract and that the trial court erred in instructing the jury that such damages were recoverable, if proven, in the instant case.

The facts pertinent to this issue are as follows:

Smith and Hewitt, who were husband and wife, owned a home which was insured by Farm Bureau for $50,000. The home was mortgaged to First Federal Savings and Loan Association of Lewisburg, Tennessee. First Federal was named as a loss payee on the Farm Bureau policy.

Smith and Hewitt were subsequently divorced. The divorce court ordered a public sale of the home and a division of the net proceeds between Smith and Hewitt.

On August 31, 1979, just prior to the date set for the sale, the home was totally destroyed by fire. Smith claimed coverage under the Farm Bureau policy. On January 17, 1980, while this case was pending in the trial court, Farm Bureau paid First Federal $31,254.31, a sum representing the unpaid balance of the mortgage on the home. Later, Farm Bureau paid the balance of the insurance proceeds, $18,745.69, into court. As stated above, the trial court ordered the fund distributed between Smith and Hewitt.

Following the distribution of the inter-pleaded funds, Smith amended the first count of his complaint to allege that Farm Bureau breached the insurance contract by refusing to pay Smith’s indebtedness to First Federal within a reasonable time after the fire. Under this amended count, Smith claimed damages for mental anguish and injury to credit.

The case went to trial. As indicated above, three of the four counts in Smith’s complaint were eliminated leaving only the amended count for the jury’s consideration. The trial court instructed the jury on the issue of damages for mental anguish and, over the proper objection of Farm Bureau, submitted that issue to the jury.

Farm Bureau contends this was error. We agree.

In Alabama the general rule is that mental anguish is not a recoverable element of damages arising from a breach of contract. B & M Homes, Inc. v. Hogan, Ala., 376 So.2d 667 (1979); Sanford v. Western Life Insurance Co., Ala., 368 So.2d 260 (1979). Smith, however, contends that the facts of this case fall within the exception to the general rule set forth in B & M Homes, Inc. v. Hogan, supra. We note the contract in this case and the contract in B & M Homes both involved a home owned by the plaintiff. However, the contract in B & M Homes was for the construction of a home, while the contract in the instant case was one of insurance. It is settled that the law of this state does not permit recovery for personal injury, inconvenience, annoyance or mental anguish and suffering in an action for breach of a contract of insurance. Vincent v. Blue Cross-Blue Shield of Alabama, Ala., 373 So.2d 1054 (1979); Sanford v. Western Life Insurance Co., supra; Stead v. Blue Cross-Blue Shield of Alabama, Ala., 346 So.2d 1140 (1977). For this reason we find that the trial court erred in instructing the jury on the issue of damages for mental anguish.

Error in a jury instruction is ground for reversal unless it affirmatively appears that it was not prejudicial. St. Paul Fire & Marine Insurance Co. v. Anderson, Ala.Civ.App., 358 So.2d 151 (1977), reversed, 358 So.2d 164 (1978), Ala., on remand, 358 So.2d 167, Ala.Civ.App. (1978); Sibley v. Adams, 56 Ala.App. 572, 324 So.2d 287, writ denied, 295 Ala. 121, 324 So.2d 291 (1975). Our review of the record discloses that the trial court instructed the jury on three elements of damages; namely, damages for mental anguish, damages for injury to credit; and damages to compensate Smith for payment of additional interest charged on the First Federal mortgage. The jury returned a general verdict and the basis of its award cannot be determined from the record. For this reason we cannot say that the erroneous instruction was harmless. Therefore, the case must be reversed.

The above being dispositive, discussion of the other issues presented by Farm Bureau is pretermitted. We do note in passing that we are aware of our supreme court’s decision in Chavers v. National Security Fire & Casualty Co., 1 So.2d 405 (Ala.1981). However, the instant case was not tried under the theory announced in that decision. In fact, the case was tried approximately one year prior to the Chav-ers decision. This court will review a case only on the theory under which it was tried and judgment rendered. Sutton’s Music Co. v. Top Music Co., Ala.Civ.App., 377 So.2d 1092 (1979).

This ease is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    Ex parte Carl S. SMITH, Jr. (Re ALABAMA FARM BUREAU CASUALTY INSURANCE COMPANY v. Carl S. SMITH, Jr.).
    80-777.
    Supreme Court of Alabama.
    Dec. 11, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


author: PER CURIAM.

text:
    R. S. CROWDER, v. ZONING BOARD OF ADJUSTMENT and City of Birmingham, Alabama.
    Civ. 2587.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Rehearing Denied July 29, 1981.
    R. S. Crowder, pro se.
    William M. Pate, Jr., Birmingham, for appellee.
   PER CURIAM.

This is a zoning case.

The Circuit Court of Jefferson County, upon motion, consolidated two actions brought by Crowder against the Zoning Board of Adjustment of Birmingham. Crowder appeals from the trial court’s denial of his motion for a rehearing in the first action, Civ. 78-00569, and from the trial court’s dismissal, upon the board’s motion, of the second action, Civ. 80-03680.

We find that the appeal from the ruling in Civ. 78-00569 was not timely filed and is, therefore, due to be dismissed and that Crowder has failed to affirmatively show any error by the trial court in the grant of the zoning board’s motion in Civ. 80-03680. Civ. 80-03680 is due to be affirmed.

The record in pertinent part reveals the following:

In January, 1978, the board granted a zoning variance to a person not a party to this appeal. Crowder appealed the board’s decision to the circuit court pursuant to Article XXVI, Section 6, of the Zoning Ordinance of the City of Birmingham and § 11-52-81, Code of Ala. 1975. The case was designated Civ. 78-00569. The board sought summary judgment and the motion was granted on May 19, 1980. On June 5, 1980, Crowder filed a motion for rehearing. On October 27, 1980, a date more than ninety days after the date of filing Crow-der’s post trial motion was denied. Crow-der filed a notice of appeal on December 8, 1980.

While Civ. 78-00569 was pending in the circuit court, the board granted a new variance to the aforementioned nonparty. Crowder appealed that decision to the circuit court. This case was designated Civ. 80-03680. The board moved for summary judgment or dismissal, contending that Crowder failed to state a claim for which relief can be granted and that he lacked standing to bring the action. The board’s motion was granted and Civ. 80-03680 was dismissed. Crowder also appeals from that ruling. ■.

I

We shall first consider Crowder’s appeal from the trial court’s ruling in Civ. 78-00569.

Crowder’s rule 59 post trial motion for a rehearing was filed on June 5, 1980. The trial court did not rule on that motion during the ninety days following its filing. Crowder’s motion was, therefore, denied by operation of law as provided by rule 59.1, ARCP, on a date no later than September 3, 1980. Board of Water & Sewer Comm’rs v. Alabama Power Co., Ala., 363 So.2d 304 (1978). Under rule 4(a)(3), ARAP, when a post trial motion is deemed denied by operation of law, the forty-two day period for filing notice of appeal begins to run ninety days from the filing of the post trial motion. Thompson v. Keith, Ala., 365 So.2d 971 (1978); Board of Water & Sewer Comm’rs, supra. Stated differently, under circumstances, as indicated above, notice of appeal should have been filed no later than 132 days after the filing of the post trial motion.

In the instant case, the time allowed for filing of notice of appeal expired on a date no later than October 15, 1980 (forty-two days from the expiration of the rule 59.1 ninety day period). As stated above, notice of appeal was not filed until December 8, 1980. We therefore find that the notice of appeal was not timely filed and that this court is without jurisdiction in the case. Olson v. Olson, Ala.Civ.App., 367 So.2d 504 (1979).

. The appeal from the trial court’s ruling in Civ. 78-00569 is due to be dismissed.

II

As indicated, the board in Civ. 80-03680 sought a dismissal or summary judgment in its favor, contending that Crowder failed to state a claim for which relief could be granted and that he lacked standing to bring the action. The board’s motion was granted and the action was dismissed. Crowder, on appeal, contends the trial court erred in so doing.

In order for a party to have standing to challenge the decision of a zoning board of adjustment he must be a “party aggrieved.” To establish himself as a “party aggrieved” he must present “proof of the adverse effect the changed status of the rezoned property has, or could have, on the use, enjoyment and value” of his own property. Cox v. Poer, 45 Ala.App. 295, 229 So.2d 797 (1969).

Crowder contends the trial court erred in finding that he lacked standing. However, in reviewing the action of the trial court this court must look only to the record for the evidence and cannot look outside of the record. United States Fidelity & Guaranty Co. v. International Brotherhood, 40 Ala.App. 452, 115 So.2d 42 (1959). In other words, errors, if any, committed below must be affirmatively demonstrated by the record before this court. Summerlin v. Bowden, Ala.Civ.App., 353 So.2d 1175 (1978). If the record does not disclose the facts upon which the alleged error is based, such error may not be considered on appeal. Clevenger v. State, Ala.Civ.App., 369 So.2d 563 (1979); Mauldin v. Mauldin, 399 So.2d 858 (Ala.Civ.App., 1981).

In the instant case, the record does not disclose the facts upon which the alleged error is based. There is no testimony, supporting affidavits, or depositions indicating what effect, if any, the disputed zoning variance has, or could have, on Crowder’s property. Under these circumstances, as stated above, the alleged error may not be considered on appeal. Mauldin, supra.

In view of appellant’s ernest contentions in brief and during oral arguments we feel constrained to comment that from statements made during oral arguments it would appear that Crowder’s residence is located some five city blocks from the property in question. These statements are not reflected in the record and cannot, therefore, be properly considered by this court. However, from these statements it would appear to this court that Crowder lacks standing as a party aggrieved under the criteria set forth in Cox v. Poer, supra, and that the trial court did not err in reaching the same conclusion.

We make this comment only in passing and we strongly reiterate that this court can look only to the record for the evidence and that the record, in the instant case, does not disclose the facts upon which the alleged error is based.

In view of the above, we find that Crow-der has failed to affirmatively show any error in the trial court’s ruling in Civ. 80-03680. The case is due to be affirmed.

Civ. 78-00569 DISMISSED.

Civ. 80-03680 AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte R. S. CROWDER. (Re R. S. CROWDER v. ZONING BOARD OF ADJUSTMENT and City of Birmingham, Alabama).
    80-778.
    Supreme Court of Alabama.
    Nov. 20, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    CITY OF MUSCLE SHOALS v. David DAVIS.
    Civ. 2716.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 19, 1981.

      Luke E. Alexander of Guin, Bouldin, Porch & Alexander, Russellville, for appellant.
    D. Marcel Black of Hewlett & Black, Tuscumbia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case involving a heart attack suffered by the employee.

A portion of the trial court’s findings as recited in its final judgment were as follows:

2. That on said date, while acting in the line and scope of his employment, Plaintiff suffered an accident which arose out of and in the course of said employment with Defendant, namely, a [myocardial] infarction or heart attack. That on the day of said accident the Plaintiff was engaged in the emptying, carrying, loading, unloading and otherwise collecting of garbage while employed by the City of Muscle Shoals, Alabama. Plaintiff’s job involved locating garbage at residences in the City of Muscle Shoals, Alabama, emptying the residential garbage into a larger basket capable of holding several cans of garbage, then dragging the larger basket to the garbage truck and lifting it and emptying it into the truck. That at certain times Plaintiff had assistance in lifting and emptying the larger basket of garbage into the garbage truck and at times he had no assistance. That on the day of the accident, the weather was hot with the temperature in excess of eighty-five degrees (85°) F. That on the day of the accident the City had increased the number of houses served- on the garbage route on which Plaintiff was working in an effort to redefine the garbage routes in the City due to new equipment.
3. That Plaintiff’s accident, namely, his heart attack, was caused by Plaintiff’s exertion in emptying, carrying, loading, unloading and otherwise collecting garbage while employed by the City of Muscle Shoals, Alabama.
6. That the Plaintiff has limited education having completed the eighth (8th) grade. And that based on Plaintiff’s education, training and experience, Plaintiff is unsuited for work other than manual labor.
CONCLUSION
Based on the foregoing findings of fact, the Court, therefore, concludes that for and on account of Plaintiff’s injury and resulting disability, Plaintiff became totally and permanently disabled from obtaining gainful employment on date of the accident suffered by him and Plaintiff is entitled to receive benefits for permanent total disability as set forth in the Workmen’s Compensation Laws of the State of Alabama.

In workmen’s compensation cases, our review is limited to a determination of whether there is any legal evidence supportive of the finding of fact by the trial court and if the correct law was applied to the facts. City of Tuscaloosa, v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). In that case, the problem of causation in heart attack cases was detailed, and it was emphasized that causation has two distinct parts, legal causation and medical causation, with tests or definitions of both being refined. The basic premise set forth in Howard was stated briefly and simply in Newman Brothers, Inc. v. McDowell, Ala.Civ.App., 354 So.2d 1138 (1977), cert. denied, Ala., 354 So.2d 1142 (1978), as follows:

(1) If in the performance of his job he has to exert or strain himself or is exposed to conditions of risk or hazard and he would not have strained or exerted himself or been exposed to such conditions had he not been performing his job and (2) the exertion or strain or the exposure to the conditions was in fact, a contributing cause to his injury or death, the test whether the job caused the injury or death is satisfied. [Numbers and parentheses added.]

Parenthesis 1 therein states the test for the legal portion of causation and parenthesis 2 the medical part.

LEGAL CAUSATION

In the present case, as to the legal aspect of causation, we have reviewed the entire record and find it unnecessary to reiterate the evidence, for it is clear that the learned trial court fairly found the facts pertaining to that aspect and that such facts are sustained by proper evidence. Those facts established legal causation for “It is no answer to contend that he had been doing similar work under similar conditions for many years and the exertion was not unusual, or that he had heart disease. Unusual strain or exertion not ordinary to the job is not required to be shown.” Newman Brothers, Inc. v. McDowell, supra at 1141; Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So.2d 87 (1965). We find no fault with the trial court’s findings regarding legal causation.

MEDICAL CAUSATION

Mr. Davis’s personal physician and a cardiologist, who also treated him, both testified. Portions of their depositions tend to buoy the arguments of the parties either for or against medical causation. However, we are concerned with whether there was any legal evidence which upholds the trial court’s judgment in that regard.

On June 19, 1978, during very hot weather, the garbage crew worked continuously without any break from 7:00 a. m. until 11:30 a. m., when they took thirty minutes off for lunch. Between 12:30 p. m. and 1:00 p. m., the plaintiff, while pulling his basket of garbage, complained of chest pains to a fellow employee. That co-worker finished the plaintiff’s immediate work in collecting garbage from houses in that locality, and, when he returned to the garbage truck, Mr. Davis was down on his knees. The plaintiff informed the truck driver of the hurting in his chest, and, after momentarily resting in the cab of the truck, he asked to be carried to the car barn because of the severity of the pain. The truck driver testified that Davis was a little lighter in color than usual and took him to the car barn, where he rested on the back seat of his automobile for a brief time, when his departmental supervisor arrived. The superintendent described him as being pale, complaining of chest pains and with having most large balls of sweat upon his face. The plaintiff was immediately taken to a local hospital where he was admitted and promptly treated by his family physician, who diagnosed the plaintiff’s problem as being an acute myocardial infarction, commonly called a heart attack. He was transferred to a Birmingham hospital three days later, where he was treated by a cardiologist and released from the hospital after several days. Mr. Davis suffered another heart attack on July 14, 1978, and his Birmingham heart specialist later implanted in him a permanent pacemaker.

The plaintiff testified that he had never had any chest pains until June 19, 1978. At that time he was only twenty-two years of age. It is most unusual for a person that young to suffer a heart attack.

His personal physician testified that the plaintiff probably had- preexisting conditions, that persons with such conditions are more likely to experience heart attack after exertion than a person without such conditions, that heart conditions are aggravated by extremely heavy exercise, but that he could not testify one way or another with any degree of medical certainty that the plaintiff’s job did or did not cause his heart attack.

Mr. Davis’s cardiologist deposed that the plaintiff had a heart disease known as arteriosclerosis, which is the hardening of the arteries, that “when the stage is set” by such heart disease, it is conceivable that the plaintiff’s exertion could have brought on his heart attack; and that the hardening of his arteries combined with the heavy manual labor required by his job, exposed him to more risk of heart attack than existed as to persons doing less physically strenuous work. His testimony was that the plaintiff suffered a complete occlusion of the anteri- or descending coronary artery, and that “the final closing of that artery was a sudden and final event that brought this boy to the doctor and resulted in .. . his . . . heart attack.” He stated that people with hardening of the coronary arteries can aggravate their problem through heavy physical work, and that it is a medical possibility that his heavy labor contributed to the plaintiff’s heart attack. “[I]f sufficient disease is there to get one in trouble, exercise could make it worse.”

In summarizing.the above evidence, we do not intend to convey the impression that evidence did not exist which favored the position taken by most competent counsel for the City. However, the evidence is adequate to prove medical causation, i.e. that the plaintiff’s exertion was, in fact, a contributing cause to his injury. Reynolds Metals Co. v. Gray, supra; Big “B” Discount Drugs, Inc. v. Parker, Ala.Civ.App., 401 So.2d 115 (1981).

Since the evidence supports the trial court’s findings of fact as to both legal and medical causation, the test of whether the job caused the injury is satisfied.

EXTENT OF DISABILITY

Again we search and refer to the tendencies of the evidence to ascertain if it supports the trial court’s holding that Mr. Davis was permanently and totally disabled.

The plaintiff finished the eighth grade. His employment record consisted only of jobs which required hard manual labor in carrying brick, in mounting heaters in a stove foundry and, lastly, in pulling garbage for the City of Muscle Shoals. There was medical evidence that he could resume work if it did not require heavy physical labor, but a problem therein exists because of the plaintiff’s “limited mental acuity.”

The cardiologist also testified that the plaintiff was disabled to work in his former job. While he could no longer perform heavy labor, he could work at a desk job or at other employment requiring less physical effort. He is disabled to perform a job requiring any level of physical exertion. It requires very little activity in excess of simple walking to occasion shortness of breath or fatigue in Mr. Davis. The plaintiff is restricted since very little activity on his behalf causes symptoms of heart failure. That physician further gave his opinion that Mr. Davis was approximately seventy-five percent disabled, that he will never improve and that his life span has been shortened because of his present heart condition.

Total disability does not mean absolute helplessness or entire physical disability, but it is the inability to perform the work of one’s trade (manual labor in this case) or inability to obtain reasonably gainful employment. Carroll Construction Co. v. Hutcheson, Ala.Civ.App., 347 So.2d 527 (1977). With the plaintiff being restricted in physical activity to little more than simple walking, with his lack of education or training, with his job history and limited mental acuity, with his already having suffered two heart attacks and being dependent upon a permanent pacemaker, and with his injury undoubtedly having a profound adverse effect upon his earning ability, we do not disturb the holding of the trial court that the plaintiff was totally and permanently disabled, for lawful evidence upheld that adjudication.

We affirm.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Ex parte CITY OF MUSCLE SHOALS. Re CITY OF MUSCLE SHOALS v. David DAVIS.
    80-877.
    Supreme Court of Alabama.
    Nov. 20, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    NATIONAL SECURITY INSURANCE COMPANY v. Linda BEASLEY.
    Civ. 2707.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    Rehearing Denied Sept. 9, 1981.

      Jack W. Torbert of Torbert, Turnbach & Warren, Gadsden, for appellant.
    Gary L. Phillips, Gadsden, for appellee.
   HOLMES, Judge.

This is a fraud case.

Linda Beasley sued National Security Insurance Company and R. J. White, claiming damages for fraud. A jury found in favor of Beasley and against both defendants and awarded damages in the amount of $8,000.

National Security appeals and we affirm.

The dispositive issues are (1) whether there was evidence to support the jury’s finding that Beasley suffered damages as a result of the defendants’ alleged fraud and (2) whether the trial court erred in refusing to instruct the jury that punitive damages could not be recovered in this case.

The record reveals the following facts:

R. J. White was employed as a soliciting agent by National Security. As soliciting agent White was authorized to fill out applications for insurance and submit them to National Security for approval or rejection.

In May of 1979, White agreed to sell Beasley a hospitalization policy. While filling out the application for insurance, White asked Beasley if she suffered from arthritis. Beasley testified that she told White that she had been treated for “a touch of arthritis.” She also testified to the effect that she told White that she had been unable to obtain insurance from other companies and that she asked him whether her physical condition would prevent her from getting a policy from National Security. Beasley testified that White asked her additional questions concerning her arthritis and its diagnosis and treatment and that he, upon hearing her answers, marked “no” on the application in response to its question concerning arthritis. Beasley then testified that she asked White if he was sure that the company would pay off and that White had answered “yes.” There is also evidence indicating that White, with regard to the arthritis question, remarked that “what they [the company] don’t know won’t hurt them.”

Beasley paid an'initial premium of $19. The policy went into effect on May 14,1979, and was in force when Beasley was hospitalized for lower back pain on August 20, 1979. Beasley’s hospital bill totaled $465. She filed a claim with National Security. The claim was denied on the ground that the hospitalization was due to a pre-existing condition which was not covered by the policy.

As indicated, National Security through counsel contends that Beasley failed to prove that she was damaged by White’s misrepresentations.

Damage is an essential element of actionable fraud. Law v. Law, 381 So.2d 76 (Ala.Civ.App.1980); 10A Ala. Digest, Fraud Key 25. However, our review of the record discloses ample evidence from which the jury could have concluded that Beasley was damaged. Specifically, Beasley incurred a hospital bill of $465 which was not paid. It cannot be contended that the alleged misrepresentation, the malady causing Beasley’s hospitalization and the denial of Beasley’s claim by National Security were not related. Beasley’s medical records, which were in evidence, disclosed that she had been treated for low back pain since October of 1977 and that the problem may have been due to arthritis. In addition, she lost the time value of the money she paid in premiums and the opportunity to obtain other coverage by relying on the protection of the policy as represented by White. National States Insurance Co. v. Jones, 393 So.2d 1361 (Ala.1980).

To recover for fraud the plaintiff need not prove the exact extent of her damages, but only that she has been damaged. Such proof will support an award of nominal damages. Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App.1980), cert. denied, 392 So.2d 548 (Ala.1981).

From the above, we find that there was evidence from which the jury could conclude that Beasley was entitled to at least nominal damages.

In addition, National Security contends that the trial court erred by refusing to instruct the jury that punitive damages could not be recovered in this case.

Once the plaintiff has shown that she is entitled to actual or even nominal damages, punitive damages may be awarded, National States Insurance Co. v. Jones, supra, if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross and that the representations were made intentionally and with knowledge of their falsity. Spartan Pools v. Royal, 386 So.2d 421 (Ala.1980).

As stated above, there was evidence to support an award of at least nominal damages; therefore, an award of punitive damages would be proper, provided the other prerequisites were satisfied.

In the instant case, there was evidence that White was aware of Beasley’s history of arthritis when he filled out her application for coverage. There was evidence indicating that White assured Beasley that her arthritis and his “no” answer on the application would not prevent coverage. There was also evidence that it was White’s duty as soliciting agent for National Security to fill out applications for insurance. Finally, there was evidence indicative of White’s attitude towards Beasley’s insurance needs and her rights in general, specifically “what they don’t know won’t hurt them.” From this we find that the jury could have reasonably concluded that White knew that Beasley’s arthritis would not be covered and that he intended to deceive her when he marked “no” on the application and told her that she would have coverage.

Put another way, we find that the trial judge did not err in refusing National Security’s requested jury charge and that he did not err in instructing the jury that punitive damages could be awarded in the instant case.

Finally, National Security contends that it should not be liable for the acts of White, its agent.

A principal is liable for his agent’s fraud though committed without the principal’s participation or consent, if it is done in the course of the agent’s employment. District 20, United Mine Workers of America v. Sams, 287 Ala. 312, 251 So.2d 613 (1971); Shelton v. Duncan, 385 So.2d 1329 (Ala.Civ.App.1980). In the instant case, there is evidence that White made the alleged misrepresentation to Beasley while acting in the course of his employment. Therefore, the jury could properly find National Security liable for the acts of its agent, White.

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

AFFIRMED.

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


text:
    Ex parte NATIONAL SECURITY INSURANCE COMPANY. Re NATIONAL SECURITY INSURANCE COMPANY v. Linda BEASLEY.
    80-918.
    Supreme Court of Alabama.
    Nov. 20, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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