author: BROOM, Justice,

text:
    C. A. SPRAGINS, Sr., et al. v. LOUISE PLANTATION, INC., et al.
    No. 52252.
    Supreme Court of Mississippi.
    Dec. 3, 1980.

      Charles S. Tindall, Frank S. Thackston, Jr., Lake, Tindall, Hunger & Thackston, Ireenville, for appellants.
    Philip Mansour, Mansour & Thomas, Greenville, for appellees.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Sales contracts involving farm lands situate in Arkansas are background to this action appealed from the Chancery Court of Washington County. Under the terms of the four contracts appellants (C. A. Spra-gins, Sr. and his children, Ruth S. Cranston, Martha Veal, and C. A. Spragins, Jr.-Spra-gins herein) agreed to sell the lands to Kay R. Taylor. Refusal of the Spragins to convey one of the farms resulted in this specific performance suit filed by complainants/appellees Taylor and Dough Boy, Inc., Louise Plantation, Inc. and Huber Farm Service of Greenville, Inc., each being a Mississippi corporation. The lower court declined to order specific performance but awarded Taylor and the three corporations damages of $112,576, plus Taylor’s $30,000 down payment, totalling $142,576. From that award, the Spragins appeal, and Dough Boy cross-appeals from failure of the lower court to award Dough Boy $80,000 for services rendered.

On their direct appeal, the Spragins argue that the lower court erred in: (1) excluding the oral and documentary evidence offered by Spragins to show that Kay R. Taylor was a broker throughout and that she violated her fiduciary obligations; (2) failing to find the sales contract unenforceable under Arkansas law; (3) failing to find that Mrs. Taylor breached her fiduciary duties as a broker; (4) finding that appellant Ruth Cranston breached the sales contract; (5) dismissing the $80,000 claim for commission without prejudice; and (6) failing to order the execution by appellee Louise Plantation, Inc. of the deeds requiring the corporation’s signature and delivery to effect vesting of title in appellants Spra-gins.

Background to this litigation are the following facts related to four farms in Chicot County, Arkansas. C. A. Spragins, Sr. owns two of the farms known as “Caney Bayou” and “Edith.” His daughter, Martha Veal, owned “Indian” farm and his other daughter Ruth S. Cranston owned the other farm known as “Emenheiser” or “Boeuf River.” By contracts dated June 20, 1978, Spragins (representing himself and his daughters) granted Kay R. Taylor an option to purchase each farm; these contracts provided an expiration date of August 10, 1978. Attached to each option contract was a document authorizing Taylor to locate and sell to a purchaser the land and in return she would be paid a five percent commission. The attached document provided that Spra-gins gave to Taylor permission to

cooperate with a broker or brokers in or out of the State of Mississippi using your own judgment in this matter.

At trial Spragins offered into evidence these option contracts and attached documents which the chancellor excluded on the ground that such evidence was an attempt to vary the terms, of a subsequent contract sued upon and that the offered documents pertaining to the June 20, 1978 contracts had become merged into a subsequent contract dated October 24, 1978. The latter contract identified Taylor as simply a “purchaser” whereas the June 20th contract and attached document indicated that Taylor was acting as a “broker” in the sale of the land.

In Cause No. 38,703, C. A. Spragins, Sr. and wife Olivia W. Spragins, as complainants, sued Taylor, Dough Boy, Inc. and Louise Plantation, Inc. averring that the sale of the “Edith” farm had been consummated except Taylor and the two corporate defendants had refused to deliver unto appellants Spragins certain deeds conveying land that was to be swapped to the Spra-gins. In this action the Spragins sought delivery of proper conveyance of title from Louise Plantation so as to vest in the Spra-gins title to the land which was to be swapped to them.

In Cause No. 38,844 below the complaint as amended was filed by complainants (ap-pellees and cross-appellants here) Louise Plantation, Inc., Kay R. Taylor, and Dough Boy, Inc. seeking the following relief: (1) specific performance conveyance of Ruth Cranston’s farm as contracted in the October 24, 1978, sales contract-sales of the other three farms were consummated and not in issue here; the Cranstons who refused to consummate sale of their “Emenheiser” or “Boeuf River” farm were not involved in the other transactions; C. A. Spragins, Sr. and C. A. Spragins, Jr. were joined as defendants because they acted for Mrs. Cranston. (2) Taylor sought recovery of $100,000 for loss of profits by her. (3) Dough Boy, Inc. sought $80,000 for services rendered regarding the consummated sales of lands. In this connection it is to be noted that attached to the October 24,1978, contract was a letter addressed to Dough Boy, Inc., signed by C. A. Spragins, Jr., Attorney in Fact as “owner,” and “Kay R. Taylor, Pres.” above a line under which was typed “ACCEPTED.” This letter stated:

Upon sale and closing of my property located in the County of Chicot, State of Arkansas, consisting of 1600 acres, at a price of $1,000.00 per acre, you shall be paid $80,000.00 for services rendered.

Both causes were consolidated at trial. Spragins argues, in the main, that Kay R. Taylor was a “broker” throughout each of the transactions set forth above, that she violated her fiduciary obligations by failing to reveal that she represented other interests and made secret profits on the three transactions closed and, that under Arkansas statutes she acted as a “real estate broker” without an Arkansas license. Spra-gins, therefore, contends that the sales contract under which she claimed loss of profits for herself and a fee for services rendered by her corporation Dough Boy was unenforceable. We agree.

Before examining the facts before us, however, we must first address and resolve two preliminary issues: (1) does Arkansas or Mississippi law apply, and (2) does the parol evidence rule apply.

DOES ARKANSAS OR MISSISSIPPI LAW APPLY?

It is true that Mrs. Taylor and the appellants are all Mississippi residents; but the four farms in question are all located in Arkansas. Although the contracts were entered into in Arkansas, negotiations occurred in Mississippi, Arkansas, and Tennessee. The sale of three of the farms was concluded in Tennessee.

In cases involving a choice-of-law or conflict-of-law problem, this Court has adopted the center of gravity doctrine or the most significant relationship test. As Justice Rodgers noted in Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 649 (Miss.1968):

This doctrine is a rule whereby the court trying the action applies the law of the place which has the most significant relationship to the event and parties, or which, because of the relationship or contact with the event and parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation. 15A C.J.S. Conflict of Laws § 8(2) (1967).

In order to determine the most significant relationships, this Court has looked to Re statement (Second) of Conflict of Laws for guidance. In Mitchell v. Craft, 211 So.2d 509, 515-6 (Miss.1968), Chief Justice Eth-ridge quoted extensively from Restatement (Second). Especially helpful in identifying choice-influencing considerations and the most significant relationship is § 6 of Restatement (Second) of Conflict of Laws:

§ 6. Choice-of-Law Principles
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

In order to determine the conflict of law issue, this Court needs to examine the apposite statutory provisions of both states. Ark.Stat.Ann. § 71-1309 (Repl.1979) outlines the procedure involved for a non-resident real estate broker to transact business in the state. A non-resident real estate broker may associate with a resident broker in order to comply with the statutory requirements. See Mississippi Code Annotated § 73-35-11 (1972).

Spragins asserts that the chancellor was manifestly wrong in failing to find the sales contract unenforceable under Ark.Stat.Ann. § 71-1301 (Repl.1979) * because Taylor did not secure a real estate license in Arkansas. Violation of the statute is punishable criminally by fine and imprisonment. See Mississippi Code Annotated § 73-35-31 (1972).

Real estate broker is defined by Ark.Stat. Ann. § 71-1302 (Repl.1979) * as one who “sells (or) . . . purchases .... for another with the intention ... of receiving any valuable consideration. .. . ” The statute also disallows an unlicensed broker to bring suit for his fee in state court.

The licensing provisions of both Arkansas and Mississippi were enacted to protect sellers of real estate from unconscionable brokerage practices. Neither state’s policy is in conflict with the other. Arkansas rather than Mississippi, however, appears to have more significant contacts with the issues. Although the location of the land is not the overriding consideration, that coupled with the fact that all of the contracts and brokerage agreements were executed and signed in Arkansas gives Arkansas more of an interest in the case. The parties, in addition to the foregoing reasons, probably expected Arkansas law to be applied especially since they failed to include a choice of law clause in any of the documents and because the land deeds had to be recorded in Arkansas.

UNDER ARKANSAS LAW, DOES THE PAROL EVIDENCE RULE BAR THE ADMISSION OF THE JUNE 1978 CONTRACTS AND BROKERAGE AGREEMENTS, THE OCTOBER 1978 DOUGH BOY LETTER, AND ORAL TESTIMONY RELATING TO THESE DOCUMENTS IN ORDER TO SHOW THAT MRS. TAYLOR VIOLATED A FIDUCIARY DUTY SHE OWED TO THE SPRAGINS?

The Arkansas Supreme Court has noted that there are a number of exceptions to the parol evidence rule and instances when the rule has no application. Parol Evidence may be admitted to show the illegality of a written agreement. Farmers Cooperative Ass’n v. Garrison, 248 Ark. 948, 454 S.W.2d 644, 646-7 (1970); Roe v. Kiser, 62 Ark. 92, 34 S.W. 534, 535 (1896). Our sister Court has also held that the parol evidence rule does not prevent introduction of extrinsic evidence to prove an independent, collateral fact. Lane v. Pfeifer, 568 S.W.2d 212, 215 (Ark.1978); Loe v. McHargue, 239 Ark. 793, 394 S.W.2d 475 (1965); Equitable Discount Corp. v. Trotter, 233 Ark. 270, 344 S.W.2d 334 (1961). Noting the exceptions to the parol evidence rule, we may now apply Arkansas law and examine chronologically the events surrounding the Arkansas land transactions.

DID MRS. TAYLOR VIOLATE THE FIDUCIARY DUTY OWED TO APPELLANTS?

The facts in this case reveal that Taylor failed to disclose material information to the Spragins. On June 20, 1978, C. Allen Spragins, Jr. and Taylor signed brokerage agreements and option contracts for the sale of four Arkansas farms. Although the option contracts expired on August 10, 1978, no buyers were secured; consequently, Taylor obtained several extensions and on October 24 the sale contracts were executed.

In August 1978, Taylor contacted E. L. Hutton, a Memphis attorney, to see if he had any client interested in the Arkansas property. In order to exercise the option contract, a deposit was required for each farm. Taylor arranged by telephone with Hutton for him to wire $100,000 in down payment money. The $30,000 September 6, 1978 down payment check on “Emenheiser” was signed by Kay Taylor and made payable to C. A. Spragins, Sr. and/or Ruth Cranston. Hutton had wired the money to the Bank of Cleveland, Cleveland, Mississippi, on behalf of Huber Farm Services of Greenville. Although Taylor had difficulty recalling on whose behalf Hutton acted, she did acknowledge that she was vice-president and owned one-third of the stock of Huber Farms.

Prior to signing the October 24 sales contracts and Dough Boy letters, Taylor’s attorney, James W. Haddock of Lake Village, Arkansas, advised her to associate with an Arkansas broker in order to comply with Ark.Stat.Ann. § 71-1309 (Repl.1979). Taylor, however, with the approval of Mr. Spra-gins, elected to purchase the property in her own name.

We note that neither prior to nor on October 24, 1978, did Taylor make any disclosure to appellants that she was a stockholder, director, and officer in Huber Farm Services or that the corporation might acquire the four farms. Appellants’ testimony, if admitted, was that no such disclosure was ever made. Additionally, Taylor failed to inform appellants that Huber Farm Services planned to sell the properties for a profit.

Taylor, who gave information about the farms to Hutton, testified that after October 24 she showed the properties to some of Hutton’s “clients.” Her testimony was that before the March 14th closing she had compiled maps, soil studies, yield studies and made determinations of what could be planted. She gave this information to Hutton at the Greenville office of Huber Farm Services of Greenville. Additionally, her testimony was that she showed the Tate property to a German investor, Mr. Brock-erman, who was referred to her through the Hubers and sent to the Greenville office; Brockerman later bought the Tate property through arrangements of Mr. Feltus, the buyer’s attorney. Taylor showed the Edith place to a husband and wife (whose name she forgot) who bought it through assistance of Feltus, their representative.. The Cranston property was also shown to one Saulters, a German investor. According to Taylor, when she showed the properties to Brockerman and to the buyers of the Edith property, she did not discuss price with them; they got the price from their lawyer, Feltus, who would have gotten the price either from her or from Huber Farm Services of Greenville. She did not know whether any price above what was paid Mr. Spragins was discussed and stated, “I just presented the farm, showed the farm.” She further stated that the only compensation she had received from the three transactions which were closed was the amount agreed on with Spragins and that she expected no more from the Cranston transaction.

At the February 28, 1979 closing involving the Caney Bayou property, a “seller’s account” closing statement was prepared on a printed form, setting forth printed descriptions of customary deductions such as proration of taxes, closing fees, notary fee, etc., including a “real estate commission.” On the “seller’s account statement” prepared and used on February 24, 1978, opposite the words “real estate commission” appears the words and figures “Dough Boy, Inc. $47,719.00.” Similarly, on the “seller’s account statement” form, prepared and used for the Edith Farm closing, there was shown opposite real estate commission “Dough Boy, Inc. $63,750.00.” As concerns the Cranston lands, a “seller’s account” statement was prepared but was not signed. On the line indicating “real estate commission” appears “K. R. Taylor $80,000.00.”

While taking the Huber Farms deposition, appellants’ attorney, Mr. Terney, discovered a document that set out anticipated profits that Huber Farms would make from the sale of each piece of property. The list indicated that Huber Farm Services of Greenville, Inc. made or would make profits of: $24,000.00 on the Veal property (Indian Plantation), $98,122.30 on the Caney Bayou property, $108,375.00 on the Edith Farm property, and $112,576.00 was contemplated on the Cranston land (Emenheiser Farm).

Clear from the record is the fact that, according to her own testimony, up and until the time of lapsing of the June 20, 1978 option contracts, Taylor’s status was that of a broker which she attempted to change to “purchaser” by the October 24 sales contracts. As a broker she was obligated to reveal to her principals (appellants) all information possessed by the broker concerning the value of the property. The broker must obtain for the principal the best available deal without withholding any information the broker has which is adverse to the principal. The broker must reveal the source and amount of any profit she may make from the transaction, including any relationship she has with any other party to the transaction. In Phillips v. Arkansas Real Estate Commission, 244 Ark. 577, 426 S.W.2d 412, 416 (1968), appellant, an unlicensed real estate broker, was enjoined from enforcing any right out of the land sale in which he participated. In order to avoid having to comply with Ark.Stat. Ann. §§ 71-1301, 71-1302 (Repl.1957), the appellant arranged to purchase property for himself and, in turn, sell it at a profit to his client. As Chief Justice Harris noted, “We think the instruments . .. make it clear that the proposed ‘purchase’ .. . was only a means used to evade the statute.... ” Ellsworth v. Benedict, 216 S.W.2d 392 (Ark.1949). Secret profits are not allowable to the broker. 12 Am.Jur.2d Brokers § 86 (1964).

The appellees argue and the chancellor so found, that when Taylor became “purchaser” under the October 24, 1978, contract, all prior negotiations and the earlier June 20, 1978, contracts, whether expired or not, were merged or superseded by the October purchase contract. On that basis all evidence of the matters prior to October 24th were in effect excluded with the chancellor ruling that parol evidence would not be permitted to vary the terms of the October contracts. The chancellor further ruled that he considered all of the evidence for the purpose of establishing an exception to the parol evidence rule and in that context found that the evidence was insufficient to meet the standard of clear and convincing proof. He concluded: there was no principal and agent relationship between the parties; Taylor was not a fiduciary; and Arkansas statutes did not apply. We think his ruling in this regard is contrary to the overwhelming weight of the evidence and manifestly in error.

Regardless of what did or did not occur prior to October 24, 1978, when the last sales contract was executed, we think the Dough Boy, Inc. letter attached to each of the sales contracts makes it clear that Taylor was acting as a broker. She owned 60% of the stock in Dough Boy, and her minor son owned the remaining 40%. There is no denial that the Dough Boy letters were attached to the contracts and must be considered along with the contracts as part of the same transaction. Each of the contracts provided 'hat “this contract is executed simultaneously with three other contracts ... none of the properties which are subject to this contract and the three other contracts shall be conveyed unless all of the properties are conveyed pursuant to each contract.” Appellees sued for $80,000 (and other relief) under the contract related to the Cranston farm to which was attached the letter signed by Spragins as attorney-in-fact as owner and signed by Taylor as president of Dough Boy providing that there would “be paid $80,000 for services rendered.” The letter provided for the payment “[U]pon sale and closing of my property in ... Arkansas, consisting of 1600 acres, at a price of $1,000 per acre.... ” Eighty thousand dollars sued for here is exactly five percent of the sales price. Five percent of the sales price in each contract would total $230,769. Taylor’s explanation of “services rendered” was preparation of “soil and area maps and yield data” on the farms. Language in appellees amended complaint in Cause No. 38,844 shows the following averment:

That defendants agreed to a price of $950.00 per acre with the additional $50.00 per acre being added as compensation to Dough Boy, Inc. for services rendered in the sale of said land.

The words “for services rendered in the sale of said land” (emphasis added) is strong indication that the $80,000 was a broker’s commission.

Our view is that all the negotiations and transactions, before and after October 24, 1978, appearing in the record were so closely connected, inter-related, and continuous that they cannot be separated and thereby exclude the June 20,1978 contracts and actions the parties took thereunder. The June 20th contracts appear to have been placed in the record for “identification only.”

We cannot accept appellees’ argument that (a) the Arkansas statute is unavailing to appellants because Taylor was “purchaser” and not “broker,” and (b) that the contract sued upon is only “unenforceable” (not “void”) in the courts of Arkansas. Upon the record we hold that Taylor is an individual who for another “for compensation” was acting as a real estate broker and that under the Arkansas statute the contract relied upon by appellees is void so far as Taylor is concerned. Sarkco, Inc. v. Edwards, 482 S.W.2d 623 (Ark.1972); Phillips v. Arkansas Real Estate Commission, 244 Ark. 577, 426 S.W.2d 412 (Ark.1968); Dunn v. Phoenix Village, Inc., 213 F.Supp. 936 (D.C.Ark.1963); Solmson v. Dees, (Ark.1920), 142 Ark. 189, 218 S.W. 657.

The chancellor in Cause No. 38,844 correctly refused to award appellees/eross-ap-pellants recovery of the $80,000 although he dismissed the claim for $80,000 “without prejudice.” As stated above the $80,000 was in fact for brokerage actions of Taylor who was unlicensed as a broker and, therefore, the claim for $80,000 is not enforceable and should have been dismissed “with prejudice” which will be done by order to issue here. That part of the decree ordering appellants Ruth S. Cranston and Phillip Cranston to refund to Taylor the $30,000 down payment is affirmed but the award of $112,576 damages will be reversed and rendered, and judgment to that extent entered here.

Cause No. 38,703, relates to the property owned by C. A. Spragins, Sr. and Olivia W. Spragins who contend they are entitled to an order requiring the corporate defendants Dough Boy and Louise Plantation to deliver the Spragins certain deeds in a land swap. Noting that there was no proof of damages to the Spragins in this regard, the lower court dismissed with prejudice their bill in Cause No. 38,703. In this we find no error. We noted at oral argument that counsel no longer sought relief as to this aspect of the case.

Accordingly, we must reverse in part the decree in Cause No. 38,844 so that: the appellees/cross-appellants claim for $80,000 will be dismissed with prejudice; we affirm as to refund of $30,000 down payment made by appellees to Taylor; we reverse and render as to the award of $112,576 profit to appellees.

AFFIRMED IN PART; REVERSED IN PART, AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

APPENDIX

Ark.Stat.Ann. § 71-1309 (Repl.1979).

71-1309. Nonresident real estate brokers-Prerequisites to doing business in Arkansas.-A nonresident of this State who performs any of the acts of a real estate broker or a real estate salesman within this State must conform to all of the provisions of this Act [§§ 71-1301-71-1311], including the maintenance of an office in Arkansas; provided, however, that in lieu of the maintenance of an office in Arkansas, such broker or salesman may operate through or in conjunction with a resident real estate broker licensed under the provisions of this Act, ...

[Acts 1929, No. 148, § 9, p. 742; 1931, No. 142, § 1[9], p. 380; Pope’s Dig., § 12484.] Ark.Stat.Ann. § 71-1301 (Repl.1979).

71-1301. Acting as real estate broker or salesman without license unlawful-Penalty.-It shall be unlawful for any person ... to act as a real estate broker or real estate salesman in Arkansas or to advertise or assume to act as such real estate broker or real estate salesman without first having complied with every provision of this Act [§§ 71-1301-71-1311] and having secured a regular, valid license issued by the Arkansas Real Estate Commission, authorizing the performance of such acts. . .. Any person violating the provisions of this Section shall be guilty of a misdemeanor and shall upon conviction thereof be fined in a sum not less than two hundred and fifty dollars ($250.00) nor more than one thousand dollars ($1,000.00), or be imprisoned in the county jail not less than thirty (30) nor more than ninety (90) days, or be both so fined and imprisoned. [Acts 1929, No. 148, § 1, p. 742; Pope’s Dig., § 12476; Acts 1953, No. 98, § 1, p. 287.]

Ark.Stat.Ann. § 71-1302 (Repl.1979).

71-1302. “Real estate broker” and “real estate salesman” defined-Parties excepted from act-Complaint to recover commission-violations.-A real estate broker within the meaning of this Act [§§ 71-1301-71-1311], means an individual other than a real estate salesman, who for another, and for compensation or the expectation of compensation: (a) sells, exchanges, purchases, rents, or leases real estate, (b) offers to sell, exchange, purchase, rent, or lease real estate, (c) negotiates, offers, attempts, or agrees to negotiate the sale, exchange, purchase, rental or leasing of real estate, (d) lists, offers, attempts, or agrees to list real estate for sale, lease, or exchange....
Any person who directly or indirectly for another with the intention, or on the promise, of receiving any valuable consideration, offers, attempts, or agrees to perform any single act described in this subsection, whether as part of a transaction, or as an entire transaction, shall be deemed a broker or salesman within the meaning of this Act, the commission of a single such act, by a person, required to be licensed under this Act and not so licensed, shall constitute a violation of this Act.
******
No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him unless he is licensed under the provisions of this Act and unless such fact is stated in his complaint. [Acts 1929, No. 148, § 2, p. 742; 1931, No. 142, § 1[2], p. 380; Pope’s Dig., § 12477; Acts 1975, No. 482, § 1, p. 466-A.]

       Arkansas statutes are reprinted in part in Appendix.


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    FORTENBERRY DRILLING COMPANY, INC. and Damson Oil Corporation v. William D. MATHIS.
    No. 52148.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Frank C. Horton, Daniel, Coker, Horton, Bell & Dukes, Jackson, Lawrence C. Gunn, Jr., Aultman & Aultman, Hattiesburg, for appellants.
    Guy M. Walker, II, J. Larry Walters, Laurel, for appellee.
    Before PATTERSON, C. J., WALKER and BROOM, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from a judgment of the Circuit Court of Wayne County awarding William Mathis $35,000 against Fortenberry Drilling Company, Inc. and Damson Oil Corporation.

Mathis was accidentally injured on January 31, 1977, at an oil well drilling site in Wayne County. Damson Oil Corporation (hereinafter Damson) owned the drilling rights on the land involved and Fortenberry Drilling Company, Inc. (hereinafter Forten-berry) was the owner of the rig and was the drilling contractor. Mathis, the injured party, was an employee of Oil Field Rental Service, an independent contractor, that had been engaged by Damson to run casing into the well. Jack Miller directed the overall operations of the drilling rig upon the premises. Miller was an employee of Stanley Stocksill, Inc. with whom Damson had contracted to drill the well. Neither Stocksill nor Miller was a party to the suit.

Mathis was injured as he attempted to straighten the drill pipes, drill collars and drill casings which were in disarray upon the pipe rack. In between the layers of pipe, collars and casings were rough oil field boards. When not in disarray, this arrangement allowed the pipes to be rolled across the rack to a catwalk adjoining the drilling platform from which they could be “winched” to the platform which was approximately thirty feet above the ground.

On the night of the accident, there was an irregular stacking of the drill collars left by the Fortenberry drilling crew. Mathis stated they “were stacked like a bunch of matches that had been pulled out of a match box.” Normally, a drilling crew has the responsibility of leaving the pipes, etc. in a suitable position for a casing crew to begin its work. It was not done in this instance. Following a conversation between the supervisor of the casing crew, of which Mathis was a member, and Miller, the overall superintendent, Mathis and his fellow crew members were instructed to straighten the pipe rack. While attempting to perform this function, Mathis fell and suffered multiple serious injuries.

Mathis testified he fell because the pressure of one of the drill collars he was moving with a pry bar caused one of the boards between the layers of pipe to break which in turn permitted the pipes to shift. He also stated that nothing about the pipe rack was hidden from his view and that he knew its condition because he and his fellow crew members had observed it for some period of time while awaiting the drilling crew to complete its task. It is clearly apparent that Mathis was fully aware of the situation, including the danger in straightening the equipment in disarray. It was as open and obvious to Mathis as it was to the employees of Damson and Fortenberry or anyone else at the drill site.

In our opinion, the foregoing states the dispositive issue in this case, which is to say there is no liability on the part of Fortenberry or Damson because the danger was open, obvious and apparent to Mathis. This issue was addressed in General Tire & Rubber Company v. Darnell, 221 So.2d 104 (Miss.1969), wherein we stated:

The owner or occupier of business premises owes business invitees the duty to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition. The owner of a business is not an insurer of invitees using the premises for business reasons, and there is no liability for injuries caused by conditions which are not dangerous or which are, or should be, known or obvious to the business invitee. (221 So.2d at 107) (emphasis added).

See also Jackson Ready-Mix Concrete Company v. Sexton, 235 So.2d 267 (Miss.1970), cert. denied, 400 U.S. 916, 91 S.Ct. 174, 27 L.Ed.2d 155.

A similar decision was reached in Graham v. Goodwin, 107 Miss. 896, 156 So. 513 (1934). In it the appellee was working for a timber owner engaged in hauling timber from the woods to a mill. Once the timber was unloaded onto the ramps, it was rolled into the mill yard. It was not part of the appellee’s or his employer’s duty to assist in rolling the timber; however, the appellee assisted on one occasion and was injured. In denying recovery, it was held:

The work of rolling the billets down the ramp, one by one, was a simple operation and whatever dangers there were in it were inherent and obvious. (107 Miss. at 901, 156 So. at 514)

We also recognize the rule that an owner or occupier of premises owes no duty of protection to an independent contractor when the contractor or his employee is injured by an activity which is intimately connected with defects which the contractor has undertaken to repair. Spruill v. Yazoo Valley Oil Mill, Inc., 317 So.2d 140 (Miss.1975); Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267 (Miss.1970), cert. denied, 400 U.S. 916, 91 S.Ct. 174, 27 L.Ed.2d 155; United Roofing & Siding Co. v. Seefeld, 222 So.2d 406 (Miss.1969). In this case, the Oil Field Rental crew had undertaken the rearrangement of the pipes upon the rack and thus Mathis cannot recover for injuries occurring as he was performing this task. Mathis attempts, however, to circumvent this rule on the basis that he was not an expert in this field. We are of the opinion that the lack of expertise has no application for the simple repair of a condition wherein no technical skill was needed and where the danger was as open and obvious to the injured party as to anyone else.

In summary, Mathis contended Damson and Fortenberry were negligent because they failed to provide him with a safe place to work, or to give him any warning of the danger at the work site. However, we conclude there was no legal duty upon Damson or Fortenberry to warn Mathis of an open and obvious danger of which he was aware. Furthermore, a contractor or his employee cannot recover for injuries which occur while correcting a defect which he had agreed to repair. There being no liability, the judgment was erroneously awarded.

REVERSED AND RENDERED.

SMITH and ROBERTSON, P. JJ., SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: SUGG, Justice,

text:
    Richard GRISHAM v. Christopher Donnell BRITFIELD, a Minor By Next Friend, Ollie Mae Birtfield.
    No. 52277.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Bob Owens, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

After a jury trial, the County Court of the First Judicial District of Hinds County .entered an order of filiation on July 6,1979. Grisham appealed to the Circuit Court of the First Judicial District of Hinds County which dismissed the appeal holding the appeal should have been to the Mississippi Supreme Court instead of the Circuit Court under section 93-9-41 Mississippi Code Annotated (1972).

Grisham appealed to this Court and one of his assignments of error is that the circuit court erred in dismissing his appeal. It is not necessary for us to notice the other two assignments of error because the circuit court properly dismissed Grisham’s appeal to that court.

Section 93-9-41 Mississippi Code Annotated (1972) provides in part the following:

An appeal in all cases may be taken by the defendant, a guardian ad litem appointed by the court for the child, the mother or her personal representative, or the public welfare official, from any final order or judgment of any court having jurisdiction of filiation proceedings, as provided for in sections 93-9-1 to 93-9-49, directly to the supreme court within thirty (30) days after the entry of said order of judgment.

The Mississippi Uniform Law on Paternity, sections 93-9-1 to 93-9-49 Mississippi Code Annotated (1972), provides that paternity may be determined in cases filed in the county court, family court, the circuit court, or the chancery court with appeals to be made directly to the Supreme Court within thirty (30) days after final judgment.

Grisham argues that he could either appeal directly to the Supreme Court under section 93-9-41 or to the Circuit Court under section 11-51-79 which provides, in part, as follows:

Appeals from the law side of the county court shall be made to the circuit court, and those from the equity side to the chancery court on application made therefor and bond given according to law, except as hereinafter provided.

Grisham argues that the language of section 93-9-41 which provides, “An appeal in all cases may be taken ...” is permissive and authorizes a party in a paternity suit to appeal either to the Supreme Court or to the Circuit Court. .The word “may” as used in the statute is permissive but applies only to the right of a party to appeal. It gives a party the right to appeal, but does not require either party to appeal. Once a party exercises the right of appeal in a paternity suit, the appeal must be taken directly to the Supreme Court under section 93-9-41. The appeal provision of section 93-9-41 in paternity suits is exclusive and appeals may not be made to any court other than the Supreme Court.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: BEATTY, Justice.

text:
    Paul Richard ALLEN and Bobby Wayne Scott v. DAIRYLAND INSURANCE COMPANY, INC.
    79-703.
    Supreme Court of Alabama.
    Dec. 2, 1980.
    Robert L. Gonce of O’Bannon & Gonce, Florence, for appellant, Paul Richard Allen.
    Daniel G. McDowell of Fine, McDowell & Cooper, Russellville, for appellant, Bobby Wayne Scott.
    Mary Anne Westbrook and Ralph M. Young of Barnett & Young, Florence, for appellee.
   BEATTY, Justice.

The plaintiff, Paul Richard Allen, filed suit against Bobby Wayne Scott and Dairy-land Insurance Company claiming $50,-000.00 damages for personal injuries resulting from an automobile collision which occurred on September 4, 1977 when Allen was riding as a passenger in Scott’s automobile. Allen claimed negligence and wanton misconduct on the part of the defendant, Bobby Wayne Scott, and claimed that the defendant, Dairyland Insurance Company, carried an uninsured motorist policy which covered the accident. The defendant, Dairyland, denied that any coverage existed. Scott denied the plaintiff’s claim, pleaded contributory negligence, and cross claimed against Dairyland, claiming insurance coverage for liability, uninsured motorist, collision, comprehensive coverage and attorney’s fees. The parties submitted the insurance coverage questions to the trial court, which found that the policy previously issued to Scott had lapsed and that there was no insurance coverage at the time of the accident. Allen and Scott now appeal.

The defendant, Bobby Wayne Scott, purchased an automobile insurance policy from the defendant, Dairyland, on June 3, 1977. The expiration date of the policy was August 14, 1977. On July 28, 1977, Dairyland mailed a renewal notice to Bobby Wayne Scott and on August 30, 1977, mailed a notice stating that the policy had expired and containing an offer to rewrite a new policy with coverage effective the day after the postmark of the envelope containing payment. Scott denied that he received these documents although both were mailed to his correct address.

The plaintiff, Paul Richard Allen, was a passenger in Scott’s automobile when the accident occurred on September 4, 1977. On September 6, 1977, Scott’s mother reported the accident to J. W. Milstead, an agent of Dairyland. Milstead filled out a loss report, but later the same day found out that Scott’s policy had lapsed. The next day, September 7, Milstead received a $95.00 premium check from Scott. Milstead endorsed the check to the order of Dairy-land Insurance Company. The same day he wrote a letter to Scott advising him that there would be no coverage applicable to the collision loss on September 4, 1977, and that acceptance of Scott’s check by Dairy-land would result in a new policy effective the day after the envelope bearing the check was postmarked.

On September 8, 1977, Milstead informed Scott’s mother by telephone that there was no coverage for the accident of September 4, 1977.

The sole issue before this Court is whether the trial court erred in finding that Dairyland provided no insurance coverage over the September 4, 1977 accident. We hold that it did not err and affirm.

Appellants rely on Central National Insurance Co. Group of Omaha v. Grimmett, Ala., 340 So.2d 767 (1976). In Grimmitt, this Court recognized the rule set out in Alabama Farm Bureau v. Hicks, 272 Ala. 574, 133 So.2d 221 (1960), that when an insurance company accepts payment for a premium on a lapsed policy with knowledge that an accident occurred during the period of lapse, three options are available to the insurer. The insurer may: 1) return the premium for the lapsed period; 2) apply the premium from the date received forward; or 3) retain the premium and cover the collision loss. In Grimmett, supra, this Court dealt with the second option and stated:

We hold that, before an insurance company may avail itself to the second option provided in Hicks, this intent must be clearly conveyed to the insured before premium payments are accepted.... [Emphasis added.]

Appellants contend that Dairyland accepted Scott’s premium and attempted to apply it from the date received forward without clearly conveying its intent to the insured. Thus, they contend that absent notice of the intent to apply the premium forward, coverage should be deemed to exist during the lapsed period.

The evidence shows, however, that Scott was given notice of the lapse of his policy and of the company’s procedure on renewal. Dairyland sent him a renewal note on July 28, 1977. On August 30, 1977, Dairyland sent him another letter in order to inform him that his policy had lapsed, and included a “rewrite policy,” which stated that his original policy had expired, and that acceptance of this “rewrite policy” would result in a new policy to begin the day after the postmark on the envelope containing payment. Scott denied receiving these communications, although both were mailed to his correct address.

Moreover, Scott was sent notice by return mail, the same day his premium check was received by Dairyland, that no coverage existed during the lapsed period, and his mother was told by telephone, the next day, that there was no coverage for the September 4th accident. Thus, Dairyland consistently and repeatedly notified Scott that no coverage existed over the accident.

This situation is distinguishable from that of Grimmitt, supra, because in that case the insured was not given any indication for ninety days after the renewal that the premium would be applied prospectively. By its actions in accepting several premium payments and in not notifying the insured for ninety days that coverage was to be prospective, and that no coverage existed during the lapse in his policy, the insurance company in Grimmitt conveyed to the insured an intent to waive its rights.

In the present case, however, notice of the prospective application of the premiums was given repeatedly and promptly. Not only did Dairyland send notices to Scott to inform him of the lapse in his policy and their renewal policy, but they also notified him as soon as they received his premium check that coverage would be prospective. At every opportunity Dairyland denied that there was any coverage. No action on the part of Dairyland was inconsistent with its intent to deny coverage. Accordingly, the finding by the trial court that no coverage existed over the September 4,1977 accident was correct.

Let the judgment be affirmed.

AFFIRMED.

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


author: JONES, Justice. MADDOX, Justice

text:
    Marguerite G. COGGIN v. STARKE BROTHERS REALTY COMPANY, INC., and Bragg Apartments.
    79-790.
    Supreme Court of Alabama.
    Dec. 2, 1980.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee Starke Bros. Realty Co., Inc.
    Richard B. Garrett and Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee Bragg Apartments, Inc.
   JONES, Justice.

Appellant appeals from-the trial court’s granting of summary judgment for Defendants-Appellees on the issue of a landlord’s duty to maintain common areas and passageways of residential premises. We reverse and remand.

Appellant Marguerite G. Coggin is a 68-year-old widow who executed a residential lease for an apartment at 101-A Carey Drive in Montgomery, Alabama, in June of 1978. Upon taking possession of the premises, she noticed that the back steps leading up to her dwelling were “steep and narrow” and lacked a handrail. These steps were a portion of the common area of the rental property used by Ms. Coggin and the other tenants.

A short time thereafter, Ms. Coggin noticed two long iron railings leaning against the exterior walls of her apartment building. Later, in the fall of 1978, she observed a third railing leaning against the southern exterior wall of the building in which her apartment was located. Prior to September of 1978, she primarily used the front steps to her apartment for ingress and egress, using the back steps on occasion for carrying out the garbage to containers located behind her building. After her automobile battery was stolen from her car parked in front of her residence, she began substantial use of the back steps to her apartment. On February 8, 1979, Ms. Coggin slipped and fell down the back steps. As a result of her fall, she sustained a broken arm as well as numerous bruises and abrasions, hospitalizing her from February 8 until February 14, 1979.

While our case law is replete with the standards for review of summary judgments, we now restate certain of these principles in the context of the instant appeal. In order to overcome a motion for summary judgment, a plaintiff must come forward with at least a scintilla of evidence that establishes the negligence of the defendant landowner. Such evidence must exist to show, inter alia, that the defendant had a duty and that an alleged breach thereof was the proximate cause of the injury suffered by the plaintiff. Summary judgment is mandatory, then, if no genuine issue of material fact exists and, as a matter of law, the plaintiff could not prevail if proof of the alleged facts was made. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1978).

Admittedly, the question of the existence vel non of a genuine issue of material fact remains a subjective determination, which initially confronts the trial judge. ARCP 50 and 56, and the comments thereto, stand for the proposition that, if there is a scintilla of evidence supporting the position of the party against whom the motion for summary judgment is made, so that a tria-ble issue is entitled to go to the jury, summary judgment cannot be granted. Consequently, the slightest genuine issue of material fact would render the trial judge’s action herein improper. Hancock v. Alabama Home Mortgage Co., 372 So.2d 858 (Ala.1979).

Before applying these summary judgment standards in the instant context, a review of the applicable substantive law is appropriate. Generally, landlords have the same responsibilities to exercise due care with regard to common areas over which they retain control as ordinary owners of land would have. In this regard, tenants are considered to be the invitees of the landlord while utilizing the common areas of the landlord’s property. Hancock, supra; Mudd v. Gray, 200 Ala. 92, 75 So. 468 (1917). See Comment, “Liability of an Alabama Landlord for Defects in the Premises,” 3 Ala.L.Rev. 335, 349 (1951).

Restatement (Second) of Torts, § 360 (1965), adopted by this Court in Hancock, reads as follows:

“Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use. “A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” (Emphasis added.)

In Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975), this Court stated that the “rule as established in [Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585 (1924)] is also embodied in ... § 361.... ” Restatement (Second) of Torts, § 361 (1965), which we now reaffirm, reads as follows:

“Parts of Land Retained in Lessor’s Control but Necessary to Safe Use of Part Leased.
“A possessor of land who leases a part thereof and retains in his control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care
“(a) could have discovered the condition and risk involved, and
“(b) could have made the condition safe.” (Emphasis added.)

Appellees, acknowledging the policy of this Court to the effect that summary judgment is rarely appropriate in a negligence claim, direct our attention to relatively recent invitee eases in which we affirmed summary judgments adverse to the claimants: Sledge v. Carmichael, 366 So.2d 1117 (Ala.1979); and Tice v. Tice, 361 So.2d 1051 (Ala.1978).

The former of these two cases is so clearly distinguishable as to require little discussion. There, the plaintiff Sledge “missed the [porch] steps entirely, causing her to fall approximately two feet and resulting in injury to her leg.” No defect in the steps, or the lighting conditions in the vicinity of the steps, was claimed or shown. Thus, no genuine issue of material fact was presented.

Although not as extreme in its contrast, Tice, likewise, is readily distinguishable. There, the yard in which the plaintiff fell was not, of itself, defective, nor was there shown any “instrumentality located on the premises as a result of the defendants’ negligence of which the defendants had or should have had notice at the time of the accident.”

Appellees lay great stress on the similarity of Tice and the instant case in that the plaintiff in each case was unable to testify as to “what caused you to fall.” The mere similarity of plaintiffs’ testimony on causation, however, does not mandate identical holdings. Under the circumstances of Tice, lack of evidence of causation went to the very heart of the requisite elements of plaintiff’s claim-primarily, the breach of any duty owed to her. In the instant case, on the other hand, the Plaintiff’s testimony that she did not know what caused her to fall relates more narrowly to the precise mechanics of her accident. When the evidence is viewed most favorably to the Plaintiff, it is clear that she fell while descending a steep stairway with narrow steps and without a handrail. All of the elements of her claim could reasonably be inferred by the factfinder from the totality of the circumstances as shown by the evidence.

We hold, therefore, that the evidence, including evidence bearing on the defense of “open and obvious danger,” viewed in light of the applicable substantive law, presents genuine issues of material fact which Plaintiff is entitled to have submitted, pursuant to appropriate instructions, for a jury’s determination.

Thus, the trial court erred in granting Defendants’ motion for summary judgment.

REVERSED AND REMANDED. .

SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

Deciding these summary judgment cases involving negligence claims, in which the scintilla rule must be applied, and in which summary judgment is rarely appropriate, is like steering the ship of justice on a course between the rocky shore of Scylla and the whirlpool of Charybdis. The law says that a plaintiff should be able to state what actually caused the injury. Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975), (Maddox, J., dissenting). On the other hand, a plaintiff who shows a condition which a jury could find was unsafe, and who further shows the relationship of the parties and other evidence from which a jury could find a lack of due care, and that the alleged injury was proximately caused thereby, is entitled to have a jury, which has been properly instructed on the law by the court, decide the issues in the case. Winn-Dixie v. Godwin, Ala., 349 So.2d 37 (1977).


author: SHORES, Justice.

text:
    Patricia BYRD and Ora Wheeler v. COMMERCIAL GUARANTY BANK OF MOBILE.
    79-813.
    Supreme Court of Alabama.
    Dec. 12, 1980.
    Warren L. Finch and Ann E. Taylor of Finch, Shoemake & Taylor, P. C., Mobile, for appellants.
    Thomas J. Stein, Mobile, for appellee.
   SHORES, Justice.

Ora Wheeler filed a complaint in the Circuit Court of Mobile County seeking to enjoin the sheriff from selling certain property described in the complaint to satisfy a judgment rendered in favor of Commercial Guaranty Bank in the District Court of Mobile County.

The complaint in the circuit court alleged that service of process was never perfected on Ora Wheeler and that the district court had refused to set aside a default judgment in favor of the bank on motion of Mrs. Wheeler.

In her complaint seeking a temporary restraining order, Mrs. Wheeler alleged that she had a “good and adequate defense at law and in equity” to the bank’s claim.

The trial court issued a temporary restraining order and held a hearing on the complaint after which it entered its order denying a permanent injunction. The appeal is from this order.

It is the appellant’s contention that the trial court erred to reversal in denying a permanent injunction. The basis of that contention is that the district court erred in refusing to set aside the default judgment and, thus, she is entitled to a permanent injunction prohibiting the bank’s executing on that judgment.

The record shows that at the hearing on the appellant’s complaint seeking a permanent injunction, the trial court made these observations:

It was brought to my attention through this T.R.O., temporary restraining order, that you were not legally or properly served in the lower court. If your attorney is correct in that regards the judgment they got in the lower court would be what we call void ab initio, ... void from the beginning, as if it didn’t happen .... If his service is good I’m going to leave it stand exactly as it is. If his service is not, then I won’t even have to issue an order, he’s a bright young man and he knows all he would have to do is to re-serve you and go through the process again and get his judgment again.

Thereafter, the trial court entered its order denying the permanent injunction.

On this state of the record, we cannot say that the trial court erred in denying the permanent injunction. The proceedings held in the district court are not before us, and we have only the record made in the circuit court. We cannot go beyond this record. We have only the allegations of the complaint in the circuit court wherein Mrs. Wheeler alleged that her motion to set aside the default judgment in the district court had been denied.

Based upon the record before us, we are compelled to conclude that the trial court did not err to reversal in denying a permanent injunction.

Although a defendant might be entitled to have a default judgment set aside if service of process was not perfected under Rule 4, Alabama Rules of Civil Procedure, it does not follow that that person is entitled to an injunction enjoining the plaintiff from executing on that judgment. We have said many times that an injunction is not a matter of right and whether to grant an injunction rests largely within the sound discretion of the trial court. Acker v. Protective Life Ins. Co., 353 So.2d 1150 (Ala.1977).

If the judgment entered against Mrs. Wheeler in the district court is void because she was never served in that court, she has a remedy to have it set aside. She is not entitled to relief by way of injunction as a matter of right. The case before us involves a collateral attack on that judgment.

The judgment appealed from is affirmed.

AFFIRMED.

MADDOX, JONES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.

      . While the style indicates two appellants, only one has an interest in this appeal; this opinion is directed toward her claim.


text:
    Larry WILLIAMSON v. Patricia WILLIAMSON.
    Civ. 2284.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.

      George S. Wright of Rosen, Wright, Har-wood, Albright & Cook, Tuscaloosa, for appellant.
    Margie T. Searcy, Tuscaloosa, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case is principally concerned with child support.

On appeal, four issues are involved: (1) an adjudication of the defendant — father to be in contempt of court for failing to pay child support and medical expenses of his children; (2) a denial of the defendant’s petition to reduce his child support payments; (3) a requirement that he notify his attorney of any increase in income, with the attorney being required to notify the court, the plaintiff's attorney and the plaintiff of any consequential income increase; and (4) the award of $1,250 in fees to the plaintiff’s attorney. While other issues were either settled by the parties or decided by the court, they are not raised in this appeal. Consequently, we shall limit the factual recital to some of those facts pertinent primarily to these four issues and which tend to uphold the judgment of the circuit court.

The trial court in its March 21,1977 judgment which divorced the parties approved their agreement whereby the defendant, as to the times now applicable, agreed to pay $350 per month for the support of the two minor daughters, to pay all of their medical and dental expenses, and to keep them insured by a medical insurance policy. On July 10, 1978 the defendant was adjudged to be in contempt of court and was ordered to pay $2,400 in child support arrearage and $172 to the ex-wife to reimburse her for her payment of some medical expenses of the children.

At the February 4 and 5, 1980 trial, it was stipulated that when the defendant applied for a loan in May 1979, he estimated that his personal gross income for 1979 would exceed $50,000, and he stated his prior gross and net incomes to have been in 1978, $35,000 and $21,915, and in 1977, $25,-000 and $14,515. In 1979 his business gross receipts were $190,029, with a net profit of $9,291 after deducting expenses which included equipment depreciation of over $35,-000. Apparently a large portion of the depreciation which was deducted was personally expendable by him.

Immediately after the divorce the defendant resided in a mobile home which he owned outright. He remarried, has one natural child by his new marriage, and has adopted his present wife’s son.

Since the divorce the defendant purchased a home for $58,500, borrowing $52,-650, with his monthly mortgage payments being $507. He also purchased much new furniture for the home, a farm with $150 per month payments on the purchase price, an adjoining lot to his home for $5,500 with mortgage payments thereon being $65 each month, a new car upon which he pays $154 per month and much logging equipment. He supposedly sold that equipment two weeks prior to the last trial to two friends when they agreed to pay the debts against it.

The plaintiff’s average monthly expenses in the winter for herself and the girls increased from $712 at the time of the divorce to $1,130 in February 1980, with her summer expenditures being elevated an additional $38. Her total monthly income was $916, consisting of net wages of $543, $350 for child support and interest income of $23. Because of a temporary reduction in force by her employer, she was unemployed at trial time, but expected to shortly commence drawing unemployment compensation of $90 per week. It has been determined that the oldest daughter suffers brain damage which necessitates increased expenditures on her behalf.

I

It is not contested that the defendant failed to pay child support of $350 which was due in September 1978, and that he further did not pay the aforesaid sum of $172 to plaintiff to reimburse her for children’s medical expenses until February 4, 1980. The trial court held that the defendant was in contempt of court as to each item.

An appellate review of a judgment of contempt is by way of an appropriate extraordinary writ and not by appeal. 4A Ala.Digest, Contempt § 66(1). However, we have searched the record and find that there was legal evidence which supported the trial court’s judgment. Brady v. Brady, Ala.Civ.App., 358 So.2d 744 (1978). We find no fault with the defendant’s contention that inability to pay is a complete defense to such contempt proceedings, but we cannot hold that the trial court incorrectly ascertained that the defendant had possessed the means to meet such obligations.

II

The attorneys agree that the mother should assist in supporting the two children. We concur and reaffirm that principle of law as stated in Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974) as follows:

However, if the evidence in a case indicates such primary responsibility is incapable of being performed, we know of no law, antiquated or otherwise, which prevents requirement of support or contribution thereto by the mother if she is shown capable of providing it.

See also Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970). Divorced parents owe a duty to reasonably support their children according to the needs of the children and consistent with the means of the parents. In the present case, as well as in almost every case where the ex-wife is employed and has primary custody of children, it appears that the mother has contributed considerably towards the support of the children corresponding to her ability to do so. We have observed from support cases appealed to this court that, where both divorced parents have incomes, it is now rare when the support required from the divorced father closely approaches meeting the total monetary needs of the child. Undoubtedly this has evolved and has been occasioned by the equal protection provision as well as the self-emancipation of the female from the home to the job and the present ability and necessity of the respective parents to now each contribute to the support of their children.

The needs of the children and the means of the parents determine whether a modification of child support on the basis of changed conditions should be granted. The trial court has a discretion to exercise in child support modification cases, and its judgment will not be disturbed on appeal unless the evidence shows it to be plainly and palpably wrong. Childress v. Childress, Ala.Civ.App., 378 So.2d 1147 (1979); Murphree v. Murphree, Ala.Civ.App., 366 So.2d 1132 (1979). No error was committed by the circuit court in refusing to reduce the defendant’s child support payments, for the trial court was not amiss under the evidence heard by it at the trial. There was much evidence to support the judgment.

III

When the sale of the defendant’s logging business to his two friends occurred, the friends did not pay anything for his equity. They agreed to make future payments on the equipment, which was to remain in his name. He was to operate the business for them for $300 per week. During the trial, the judge voiced strong doubts concerning the bona fides of the sale. As contended by the plaintiff, this readily could have been the reason that the defendant is required to notify his attorney when he receives an increase in his income. This is not an unreasonable requirement nor burden after considering all of the evidence. Of necessity, a trial court has considerable discretion and the power to utilize any legitimate reasonable means in effecting justice between the parties, presently and in the future.

IV

The plaintiff requested attorney’s fees in her amended contempt petition, but no additional pleading expressly asked for any such fees as to any other aspect of the case. This litigation was tried as if a prayer for an allowance of attorney’s fees had also been properly filed as to her petition for an increase in child support and as to her defense of her ex-husband’s petition to reduce child support. Without objection from the defendant, expert testimony was taken as to the reasonableness of a fee and the plaintiff’s counsel testified as to services rendered. At the conclusion of the trial, when the court announced that one of the issues to be decided was the matter of her attorney’s fees and when it stated that it would fix such fees at $1,250 for the defendant to pay, no objection whatsoever was made that they had not been claimed. In short, that issue was tried as if proper requests for fees of the plaintiff’s attorney had been filed in every instance. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” ARCP, Rule 15(b). Except as to parties in default, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” ARCP, Rule 54(c).

In eases of this nature, the issue of whether a party shall pay the fee of an ex-spouse’s attorney, or any portion thereof, is discretionary with the trial court. Such discretion will not be revised on appeal except where it is abused. 8 Ala.Digest, Divorce § 223. The fee was not excessive, the award being for less than $30 per hour for time expended and being only 62.5% of the total amount testified to at the trial. We find no abuse of discretion.

This case is affirmed.

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 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Charles Ray MILLER v. Barbara Young MILLER.
    Civ. 2343.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.
    Irvin Grodsky of Grodsky & Wilson, Mobile, for appellant.
    Joel Thomas Daves, IV, Mobile, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

After twenty-seven years of marriage the parties to this proceeding were divorced by the Circuit Court of Mobile County on the ground of incompatibility.

The trial court, in its final decree, ordered that: (1) custody of the two minor children be awarded to the wife; (2) child support and alimony equal to $350.00 per month be paid to the wife by the husband; (3) title to the homeplace and all insurance proceeds thereon be given to the wife exclusively, subject to the outstanding mortgage which the wife was to pay; (4) title to certain unimproved acreage in Creóla, Alabama be retained in the joint names of the parties; (5) household furniture, except the husband’s personal belongings, located in the home be awarded to the wife; (6) a 1978 Oldsmobile Cutlass be awarded to the wife with the wife to be responsible for paying the debt secured by said vehicle; (7) a 1972 Oldsmobile be awarded to the husband; (8) the stock in the corporation be awarded to the husband; (9) the husband to pay the wife’s attorney’s fee of $750.00.

The husband sought a new trial on the ground that the final decree was not a complete order because the court failed to state which of the parties was to be responsible for the remainder of the marriage debts. This motion was denied and the husband appeals.

As stated by appellant in brief, the issue here is whether the final decree is void for uncertainty because the trial court failed to assign responsibility for the payment of the marriage debts not otherwise disposed of in said decree.

There appear in the record, other than the indebtednesses against certain real and personal property set out in the final decree, bills, both current and past due, for medical expenses, from retail businesses, and as a result of personal loans, all of which were incurred apparently during the marriage.

The husband argues that the trial court should have said who was responsible for paying these marriage debts and that the failure to do so voids the decree. We disagree.

Granted, the decree fails to assign responsibility for the remainder of the marriage debts but this failure does not in and of itself void the decree for uncertainty. The party liable for his or her debts during the marriage would still be liable for those debts after the dissolution of the marriage and if the parties were jointly liable for debts during the marriage they would still be jointly liable for them after the divorce. In other words the trial court left the parties in the same position relative to the debts after the divorce as they were in prior to the decree.

The failure of a court to assign responsibility for marriage debts in a case of this type does not void for uncertainty an otherwise proper decree. See Cox v. Cox, 260 Ala. 524, 71 So.2d 275 (1954).

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Peggy Sue LOWERY v. Clodius J. LOWERY, Sr.
    Civ. 2366.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.

      Larry W. Morris of Radney & Morris, Alexander City, for appellant.
    James M. Fullan, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parties were divorced May 21, 1980, on the ground of adultery committed by the mother. The decree granted custody of the three children born of the marriage, ages four, three and two years, to the father and allowed liberal visitation privileges to the mother. The mother appeals the award of custody to the father. We affirm.

The mother first contends that the trial court erred to reversal in refusing two witnesses their constitutional rights against self — incrimination when asked about adulterous activities between the mother and themselves. We think that the evidence received in this fashion was not illegal as to the mother. The privilege claimed is personal to the witness testifying and cannot be claimed for him by a party to the suit. Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040 (1907). Furthermore, other evidence presented, including the mother’s admission of adultery coupled with corroborating testimony voluntarily given by one co-adulterer, was sufficient, standing alone, to support the finding of her guilt. Anonymous v. Anonymous, 353 So.2d 510, rev’d on other grounds, 353 So.2d 515 (Ala.1977). We find no prejudicial error in regard to the issue of privilege.

The remaining issue is whether the trial court abused its discretion in awarding custody of the children to the father. We will not reverse the trial court’s determination as to which party should be granted custody of children except for palpable abuse of discretion. 8 Ala.Dig., Divorce, Key No. 312.6(5).

The prevailing consideration in determining the custody of minor children is the best interest and welfare of the children. Higgins v. Higgins, 336 So.2d 194 (Ala.Civ.App.1976). The mother’s attack on the award of custody to the father is anchored on the premises that the father had never had to care for children before, that there was no evidence of her unfitness other than her adulterous conduct, and that the tender age of the children should weigh greatly in her favor.

We know not the specific reasons which prevailed upon the learned judge in awarding custody to the father. Nor do we need to be aware of those reasons. We do know that the mother’s adultery is a circumstance which may be considered in determining the children’s best interest. Anonymous v. Anonymous, supra. We also know that the weight to be given to the age and sex of children is for the discretion of the trial court and that the “tender years doctrine” is not a compelling presumption on the court. Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.1979).

The mother freely admitted having sexual relations with at least six casual acquaintances in the six months prior to the decree. The admitted instances during that six-month period where the mother stayed out dancing and carousing all or most of the night with men other than her husband are too numerous to recount. Many times she simply left the home on supposed errands or to visit friends and failed to return until the next morning. She stated, after remonstrances by her husband and sister, that she wanted to be free. The husband was left to care for the children on most of these occasions. His family lives next door and his mother assisted with the children. She will assist him in caring for them in the future. The award of custody to the father was not an abuse of discretion. The mother may rehabilitate and earn reconsideration of custody in the future. The motion of appellee for sanction for a frivolous appeal pursuant to Rule 38, ARAP, is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Brenda S. HALL v. Billy Ray HALL.
    Civ. 2395.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.
    Ronald G. Davenport, of Ferrell & Davenport, Phenix City, for appellant.
    Bob Faulk, of Faulk & Landreau, Phenix City, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife filed for divorce. The trial court divorced the parties; made a division of property; awarded custody of the parties’ minor child to the wife; awarded visitation rights to the husband; and required the husband to pay child support.

The wife appeals and contends the trial court erred to reversal in the division of property, in the amount of the award of child support, and in the visitation rights awarded to the husband. We find no such abuse of discretion by the trial court as to require reversal and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s decree, we find the following is pertinently revealed.

The parties lived together as man and wife for approximately five years. One child was born of the union. However, the husband had been married previously. The husband’s first wife died, leaving the husband with three children. The parties’ child was born prematurely and there is some evidence that this male child is not in the best of health.

The wife has a responsible job with a utility company and earns in excess of $1,500 per month. The husband is an insurance salesman and earns approximately $1,100 per month.

At the time of the divorce the parties owned four automobiles. Some were “paid for” and some were not. The parties also owned a mobile home.

The parties also owned a home. However, the real estate had been purchased prior to marriage by the husband. In addition to the home the parties owned five acres of land in Lee County. This property was purchased by the wife prior to the marriage. The parties also owned a lot in Barbour County. It should be noted that while certain of the properties were purchased by the respective parties prior to the marriage, the mortgage payments on these properties were paid during the marriage from a joint checking account.

With the above in mind, the learned trial judge divorced the parties; awarded custody of the minor child to the wife; gave the husband the right to have the minor child visit with him every other weekend and two one-week periods during the summer; ordered the husband to pay $70 every two weeks as child support; awarded the home to the husband; awarded the five acres in Lee County to the wife and the lot in Barbour County to the husband; awarded two automobiles to the husband and two to the wife; awarded the wife $1,500 for her interest in the mobile home and awarded the mobile home to the husband. Other personal property, mainly furniture, was divided.

As indicated above, the wife appeals, contending the trial court erred in the division of property, the amount of child support, and in the visitation privileges awarded to the husband.

I

A divorce decree dividing the parties’ property is a matter addressed to the discretion of the trial court and is subject to review only for clear abuse of that discretion. Foster v. Foster, Ala.Civ.App., 365 So.2d 1227 (1979); 8 Ala.Digest Divorce Key 252.1.

In this instance, with the facts as indicated above in mind, we cannot say that there has been such an abuse of discretion as to require reversal. It would appear that the trial court has attempted to place the parties in the approximate financial positions that they were in prior to the marriage. While the division might not be exactly equal, the law does not require it to be equal.

A division of property in a divorce proceeding need not be equal, but must only be equitable according to the circumstances of the case. Beale v. Beale, Ala.Civ.App., 371 So.2d 931 (1979); 8 Ala.Digest Divorce Key 252.2.

For this court to reverse the instant appeal, we would have to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

II

The wife, through able counsel, next contends the trial court committed reversible error in the award of child support.

The amount of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. See, Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977). The amount of child support granted depends upon both the needs of the child and the ability of the parent to pay. Metcalf v. Metcalf, Ala.Civ.App., 340 So.2d 38 (1976).

While the amount awarded in this case is certainly not an excessive award, it is not such an abuse of discretion as to require reversal. See, Campbell v. Campbell, Ala.Civ.App., 377 So.2d 1098.

Undoubtedly, the trial court considered the husband’s income as compared to the wife’s and also the husband’s obligation to his other children. These are permissible considerations. See, Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974).

Ill

The wife’s last contention is that the trial court erred in the visitation privileges awarded the husband.

The wife contends the husband is unduly harsh on his children; that he has a bad temper; and further, that the mother was concerned about some of the actions of one of the husband’s children toward the parties’ minor child. The husband contradicted the above. Hence, there is a conflict regarding all of the wife’s concerns.

The trial court has wide discretionary powers in the settlement of visitation rights. See, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969); 8 Ala.Digest Divorce Key 296.

Suffice it to say we find no such abuse of discretion as to require reversal.

The wife’s request for an attorney’s fee for representation on appeal is denied.

The case is due to be affirmed.

AFFIRMED.

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


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    Renate Elizabeth Wirth ARMSTRONG v. Hylott L. ARMSTRONG, Jr.
    Civ. 2308.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.

      Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Samuel Maples of Corretti, Newsom & Rogers, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The Circuit Court of Shelby County divorced the parties, made an award of support for the wife and child and divided the property of the parties. The wife appeals. The primary issue is whether the trial judge abused his discretion in the award of support for the wife and child. We find no abuse and affirm.

The facts pertinent to our review reveal the following:

The parties were married in 1961 and moved into a small house in Shelby, Alabama. A child was born to the couple in 1963. For the first several years of the marriage the husband earned a modest income while diligently working his way up in the bank where he was employed. The wife has not worked but has, throughout the marriage, performed normal household duties and cared for the child. The parties saved a substantial portion of the husband’s income during the first twelve years of the marriage and in 1973, the husband having been promoted to vice president of the bank, they built their “dream house” in Columbiana. The husband has since been made president of the bank. He enjoyed a $75,000 income in the year preceding the divorce, a large part of which was a bonus awarded on the basis of his performance as president.

While the husband devoted a great deal of his time and talents to the business, the wife showed little, if any, interest in his work. Instead, shortly after the parties moved into their new home in 1973, the wife apparently went on a buying binge.

There was considerable evidence produced at trial regarding the wife’s spending habits and her attitude toward the husband’s concern over those habits. No useful purpose would be gained by repeating that evidence in detail here. We only say that after reviewing the trial record and the many exhibits, it is apparent that the wife, after the husband became successful at the bank, developed a propensity to spend excessive sums of money for things for which she or her family had little if any use. Upon remonstrance, even pleas, by the husband that she curb her spending, her response was that it was his problem. Her refusal to control her propensity apparently precipitated the separation. Her deficit and credit spending was an embarrassment to the husband and an affront to his position as a fiscally responsible president of the local bank. His mental and physical health were adversely affected. Divorce was granted the husband on the ground of incompatibility.

In addressing the main issue, we begin with the well-known rule that we review judgments entered by the trial court after oral hearing with the presumption of ■ correctness. Miller v. Miller, 373 So.2d 1098 (Ala.Civ.App.1979). The trial court’s determination of alimony, division of property and amount of child support are within the sound discretion of that court and such discretion will not be reversed except for palpable abuse. 8 Ala.Dig., Divorce, Key No. 235.

The trial court found the net assets of the parties to total approximately $300,000. Without detailing the aspects of the property settlement, it is evident that the wife’s share is somewhat more than one-third and slightly less than one-half the total assets. The largest single item was the award of one-half the proceeds from the sale of the parties’ jointly-owned $165,000 home.

In addition to the division of assets of the marriage, the court awarded, as “alimony and money settlement,” $82,500 to the wife to be paid in one hundred fifty monthly installments, $750 per month for the first thirty months and $500 per month for the remaining one hundred twenty months. The husband is required to purchase a reducing-term policy of life insurance on his life, with the wife as irrevocable beneficiary, in sufficient amount to cover this award. Although not mentioned in the decree, we assume the husband will continue to pay the mortgage on the home, in addition to his obligation to pay utilities, until the time of sale.

Support for the seventeen-year-old child included $200 per month until the age of nineteen. The wife is to be made trustee for the son of a $6,000 savings account to which the husband must deposit $100 per month until the son is nineteen. Such account is to be used exclusively for the child’s education expenses or will be paid to him outright if he seeks no further education after high school. The husband also is to provide health and major medical insurance for the child until he becomes nineteen years of age.

Having set forth the basic support provisions, we see little need to extend our discussion much further.

The wife contends the award of “alimony and money settlement” is alimony in gross and that she is entitled to an additional award of periodic alimony. On the other hand, the husband submits that such an award made after a division of marital assets and payable monthly from his future earnings is an award of periodic alimony. It is unnecessary that we interpret the judgment of the trial court and decide whether the award is periodic alimony or alimony in gross. An award of either kind or both kinds is within the discretion of the trial court. Hager v. Hager, 293 Ala. 47, 299 So.2d 743, on remand, 53 Ala.App. 740, 299 So.2d 751 (1974). We find no abuse.

Finally, the determination of the amount of child support is also a matter within the sound discretion of the trial court. Dismukes v. Dismukes, 376 So.2d 730 (Ala.Civ.App.1979). We cannot say that the court manifestly abused its discretion in its award of child support, especially when the payment of the trust account is considered.

The wife’s request for attorney’s fees on appeal is denied.

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . There is clearly basis for argument on each side of the question of whether the $82,500 is legally an award of periodic alimony or alimony in gross. If construction becomes necessary, it should properly come from the trial court.


text:
    Ernesto JOHNSON v. IRA PHILLIPS, INC., a Corporation.
    Civ. 2417.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    William D. Hudson of Wilson & Hudson, Gadsden, for appellant.

      James E. Turnbach of Torbert, Turnbach & Warren, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This case involves a dispute between Ira Phillips, Inc., a gas and oil distributor, and Ernesto Johnson, a service station operator who purchased petroleum products from Phillips on running accounts. Phillips filed suit against Johnson, claiming $4,913.10 due by account, plus interest and costs. The case was tried before the Circuit Court of Etowah County sitting without a jury. Judgment was entered for Phillips in the amount of $4,768.98. Johnson appeals.

The only issue raised on appeal is whether the evidence was sufficient to support the trial court’s judgment.

The trial court heard the evidence ore tenus. This court has carefully reviewed that evidence preserved by the record. We affirm on the authority of Gann & Lewis Roofing Co. v. Sokol, 359 So.2d 815 (Ala.Civ.App.1978).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Barbara D. ANDERSON v. BLUE STAR READY MIX, INC.
    Civ. 2421.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    Thomas E. Snoddy, Double Springs, for appellant.
    Walter Joe James, Jr. of James, Lowe & McNamee, Haleyville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Insofar as this appeal is now concerned, the case evolved into being an action upon an account for concrete used for footings and floors in a house then under construction.

Ray Anderson and Barbara D. Anderson were the parents of one child. They were divorced in 1975 but, without the benefit of a remarriage, were again living together in 1977. The couple had contemplated building a home for four or five years. Mr. Anderson commenced the house construction on the farm of Mr. Densmore, Mrs. Anderson’s father. Mr. Densmore had informed them that he would not deed a house place to them, but that it could be built on the land as a residence for his daughter and her children. He testified that if “they” outlived him, “they would get it, I guess.” Mrs. Anderson helped plan the house, assisted in selecting the building site and worked upon the house.

Mr. Anderson ordered concrete for the footings for the house from Blue Star Ready Mix, Inc. (Blue Star). When the concrete basement floors were poured, the order to Blue Star for ready-mix was placed by Mrs. Anderson.

She was present when some of the concrete was delivered and testified that she possibly informed a Blue Star driver that her father was giving her two acres as a home building site. There was also some evidence that she offered to pay for some concrete when it was delivered by Blue Star.

Ray Anderson absconded and his whereabouts was apparently still unknown through trial time. After he left, Mrs. Anderson paid $1,924.24 to a building supply company for materials, almost $1,300 to a mason to lay blocks to complete the foundation for the home and for a pump which was installed in a well at the building site.

Blue Star was never paid for any of the concrete utilized in the house. Its bills totaled $3,049.36, which was the amount, plus interest, of the judgment rendered favorably to Blue Star and against both Ander-sons after an ore tenus non-jury trial before the court. Mrs. Anderson appeals, and the issue is whether the evidence justified or supported the judgment against her. We affirm.

We have limited the recital of the pleadings and facts to the issue now involved and which are consistent with the well-worn axiom that, in such instances, we must review the tendencies of the evidence most favorable to the prevailing party. The judgment appealed from is presumed to be correct, and we are not permitted to disturb the findings of the trial court unless they are palpably wrong, without supporting evidence, or manifestly unjust. Gertz v. Allen, 376 So.2d 695 (Ala.1979). The evidence supported the judgment, which is neither palpably wrong nor manifestly unjust.

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. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Thomas WIGGINS v. Joe BROWN, Sr.
    Civ. 2459.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.

      V. Wylynn Gilmore of Gilmore & Keahey, Grove Hill, for appellant.
    Windell C. Owens, Monroeville, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The plaintiff filed his negligence action for damages occasioned by an automobile accident. The nonjury trial resulted in a judgment in favor of the defendant, from which the plaintiff appeals. We affirm.

The plaintiff, a sister, a brother and a cousin each testified as to facts indicating that the defendant was liable for the rear end collision. On the other hand, a state trooper disagreed in part with some of such evidence as to terrain features at the place of the accident and as to what had been said to him by the plaintiff and his sister. The defendant’s son’s evidence cast some doubt upon the ability of one or two of the plaintiff’s witnesses to have observed the accident. Without objection, the defendant swore that he was driving from thirty-five to forty feet behind the plaintiff’s automobile when it suddenly stopped “and I locked the wheels and slid on into them. I couldn’t miss it.”

The plaintiff contends that the judgment was contrary to the great weight of the evidence. We have summarized only so much of the evidence as to demonstrate that the trial evidence was in substantial disagreement. Under the contradictory testimony, it was within the special province of the trial court to determine both the weight and the credibility to be accorded to the testimony of each witness:

It is well settled that where the record shows that a case is tried by the court, sitting without a jury, upon disputed facts heard orally, the conclusion of the trial judge will be affirmed if it is fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust. [Citations omitted.]

Whitt v. McConnell, Ala., 360 So.2d 336 (1978).

We have reviewed and examined the entire transcript in detail. The evidence credibly supported the trial court’s judgment, which is neither wrong nor unjust.

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. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.