author: EMBRY, Justice.

text:
    Evelyn SMITH v. Harold SMITH. In re ESTATE of Willie Dolphus SMITH, Deceased.
    78-808.
    Supreme Court of Alabama.
    June 20, 1980.
    Jackie M. McDougal, Bessemer, for appellant.
    R. 0. Hughes of Barber, Johnston, Holmes & Hughes, Birmingham, for appel-lee.
   EMBRY, Justice.

Evelyn Smith, widow of decedent, Willie Dolphus Smith, filed his will for probate, whereupon, Harold Smith, half-brother of decedent, filed a contest which was transferred for trial to the circuit court. A trial by jury on the issues of testamentary capacity and undue influence was had. The jury returned a general verdict in favor of contestant, Harold Smith, upon which judgment was entered and from which this appeal is taken by Mrs. Smith. We reverse and remand.

Issue

The dispositive issue before us is whether the trial court erred to reversal by refusing to direct a verdict in favor of Mrs. Smith on the issue of undue influence.

Facts

The evidence discloses that deceased, Willie Smith, executed a will on 9 January 1973 which devised the greater portion of his estate to his half-brother, Harold. A much smaller portion was bequeathed to his wife, Evelyn. Harold testified that Willie had stated that he, Willie, wanted his estate handled according to the 1973 will of which Harold was named executor.

The evidence further discloses that in January of 1976 Willie went to the office of his real estate agent and requested his agent to retype the 1973 will according to the changes he had made on a copy of it. The agent made the requested changes and Willie executed it on 21 January 1976. This new will left almost all of Willie’s property to Evelyn and named her as executrix.

The real estate agent who typed the 1976 will testified she had known Willie since he was four or five years old and had handled several pieces of property for him. She testified that Willie read the will before he signed it and stated the will was exactly the way he wanted it. She further testified that Willie and two witnesses signed the will in her presence; further that Willie appeared to be the same man she had known for many years and she noticed no difference in his ability to talk or read, and that she had known Evelyn all her life, although they were not close friends. She stated she had never smelled any alcohol on Willie when he was in her office, although she had heard he had a drinking problem.

Both witnesses who attested the 1976 will testified that they noticed no marked difference in Willie’s ability to carry on business the day he executed the 1976 will as compared with that ability on other occasions when they had done business with him. Both testified Willie was doing repair work on houses the day he executed the 1976 will. Both also admitted they had knowledge that Willie had a drinking problem.

John Martin McMahon, M. D., one of Willie’s doctors, testified on behalf of Harold. He testified Willie had some degree of brain deterioration as early as 1973, although he could still function. Doctor McMahon first began treating Willie in 1962, and later treated him periodically from December of 1972 until early 1977. Prior to 1973 Willie was treated for angina and various other ailments. Dr. McMahon testified that as of March 1973 Willie was drinking a pint of vodka a day for pain.

Dr. McMahon further testified that he did not treat Willie during the period of time between April 1973 and June 1976. He did state he treated Willie in June of 1976 and that Willie had suffered a stroke in the interval on account of which he had been hospitalized. At this time Willie had difficulty with mentation, thought processes, his speech and vision.

Willie was hospitalized from 3 to 16 December 1976. Dr. McMahon testified Willie was admitted to the hospital by an associate, Dr. Edge, because Willie had become unmanageable at home. He further testified that during this period of hospitalization Willie was diagnosed as suffering from generalized hardening of the arteries; chronic brain syndrome (which indicates severe brain deterioration); arteriosclerotic heart disease; severe low thyroid function; and Parkinson’s disease.

The doctor stated he could only speculate as to Willie’s mental capacity in January of 1976 because he did not see Willie during that time. He did testify that a man in Willie’s physical condition in December 1976 would not have had the ability to know the nature of the act he was doing if he signed a will. He further testified he would doubt that Willie would have known what he was doing if he had signed a will in June of 1976. He also stated it would be highly questionable if Willie would have known what he was doing had he, Willie, signed a will on 21 January 1976.

Mrs. Smith testified she and Willie were married 26 June 1969; that she had contacted an attorney in the latter part of 1976 about having some of Willie’s property transferred to someone else because he was seriously ill. She said she did not know about the will Willie had made in 1973, but he had brought her the 1976 will for her to read. She went on to say that Willie did not have trouble managing his property until the summer of 1976; at that time Willie asked her to start writing the checks because he was so shaky, but even then he still went over the bills. She further testified she went to see the attorney concerning the property because a social worker at the Veterans Administration Hospital advised her to do so and she did not make the visit until the summer of 1976.

Becky Carter, the daughter of Evelyn Smith, testified she went with Evelyn to the attorney’s office to see about changing the title to Willie’s property. Becky testified she learned of Willie’s 1973 will at the attorney’s office. Becky also testified they went to the attorney on the advice of a social worker and the visit to the attorney’s office was in the latter part of 1976.

Numerous other witnesses testified concerning Willie’s mental state. Witnesses for the contestant testified: Willie had a severe drinking problem; his mental capacity had severely deteriorated; and he suffered from hallucinations. Those witnesses also testified to incidents where Willie had acted irrationally. All such testimony concerned time periods prior to or subsequent to the time the 1976 will was executed. Raymond Carter, Evelyn Smith’s son-in-law, testified the only time he thought Willie did not have good business sense was in 1973 or 1974 when Willie was drinking heavily and the latter part of 1976 when Willie was on cough medicine which contained alcohol.

Decision

Mrs. Smith contends there was not a scin-tilia of evidence to create a jury question as to undue influence. She therefore argues the trial court committed reversible error by not granting her motion for directed verdict as to that issue and by not granting her written requested charge number seven: “I charge you, ladies and gentlemen of the jury, that you are not to consider the charge of undue influence presented by contestant in determining the validity of the contested will of Willie Dolphus Smith.” We agree and reverse.

Harold Smith, the contestant, contends there was a scintilla of evidence as to undue influence because: (1) Mrs. Smith occupied a confidential relationship (that of wife) with Willie; and (2) the evidence disclosed Mrs. Smith occupied a dominant relationship with respect to Willie due to his weakened mental and physical condition. Harold argues that Willie’s weakened condition raises a presumption of undue influence. In support he cites Reed v. Ship, 293 Ala. 632, 308 So.2d 705 (1975), and Grady v. Wallace, 272 Ala. 119, 130 So.2d 21 (1961). Neither case supports his position.

In Grady v. Wallace, supra, this court quoted from Stanley v. Kelley, 267 Ala. 379, 382, 102 So.2d 16, 19 (1958), as follows:

“ ‘When a will is contested on the ground of undue influence, the burden is on the contestant, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of the will or for a favored beneficiary. Wilson v. Payton, 251 Ala. 411, 37 So.2d 499; Hyde v. Norris, 250 Ala. 518, 35 So.2d 181. We do not think the appellants have successfully carried that burden.
“ ‘The controlling principle on the issue of undue influence is that the contestants must show active interference of the beneficiary in procuring the execution of the will. Lockridge v. Brown, 184 Ala. 106, 63 So. 524. To make out the charge, it must be proved that an influence was exerted on the testator which was tantamount to moral coercion and constrained him to do that which was against his will but which from fear, desire of peace, or some other feeling than affection, he was unable to resist. Cox v. Martin, 250 Ala. 401, 34 So.2d 463; Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792. * * * 272 Ala. at 122, 130 So.2d at 24.

In Grady, this court, per Mr. Justice Lawson, stated the general rule that both dominant confidential relationship and undue activity by a favored beneficiary in procuring the execution of a will must be shown in order to raise the presumption of undue influence that casts the burden of proof on the proponent. Grady in no way supports Harold’s position because he produced no evidence of undue activity on the part of Mrs. Smith in procuring the execution of the 1976 will.

Likewise, Reed v. Ship, 293 Ala. 632, 308 So.2d 705 (1975), lends no support to Harold’s position. In Reed, there was testimony presented concerning the proponent’s undue activity in procuring execution of the will. That testimony showed a female acquaintance, whose children were the beneficiaries of the will, had employed the attorney who drafted the will, excluded persons from the testator, concealed the making of a codicil to the will, and had engaged in illicit sexual relations with the testator. Nevertheless, this court affirmed a directed verdict in favor of the proponent on grounds that no presumption of undue activity in the procurement of the will, amounting to fraud or undue influence, arises from the mere natural disposition of property by the testator to persons he loves. Again, Reed holds there must be some evidence of undue activity on the part of a favored beneficiary of the will in order for the issue of undue influence to become a jury question. No such evidence was introduced in this case.

In Pruitt v. Pruitt, 343 So.2d 495 at 499 (Ala.1977), this court, per Mr. Justice Beatty, concisely summarized the elements that must be proved in order to sustain an allegation of undue influence:

“Our cases have consistently held that when undue influence is asserted in a will contest, the contestant has the burden, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. Wilson v. Payton, 251 Ala. 411, 37 So.2d 499 (1948), citing Hyde v. Norris, 250 Ala. 518, 35 So.2d 181 (1948). In other words, evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Wilson v. Payton, supra; Alexander v. Alexander, 208 Ala. 291, 94 So. 53 (1922).
“A confidential relationship may spring from ‘those multiform positions in life wherein one comes to rely upon and trust another in his important affairs.’ Raney v. Raney, 216 Ala. 30, 34, 112 So. 313, 316 (1927).
“Whether the beneficiary, or one acting for him, was the dominant party in the relationship between the two is usually a question of fact, but in any case there must be some evidence of controlling influence over the testator’s purposes by the other. Little v. Sugg, 243 Ala. 196, 8 So.2d 866 (1942); Kilgore v. Atkinson, 227 Ala. 310, 149 So. 808 (1933).
“A ‘favored beneficiary’ has been held to be:
‘[o]ne who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.’ [Cook v. Morton, 241 Ala. 188, 1 So.2d 890 (1941).]
“These elements of the presumption go far, of course, in proving the principal charge of undue influence which has been defined in Locke v. Sparks, 263 Ala. 137, 140, 81 So.2d 670, 673 (1955):
“ ‘Undue influence, . . . must be such as, in some measure, destroys the free agency of the testator, and prevents the exercise of that discretion which the law requires a party should possess as essential to a valid testamentary disposition of his property . . ’
And it must be kept in mind that not all influence is undue; any influence resulting from sympathy and affection only is not disfavored. See Abrams v. Abrams, 225 Ala. 622, 144 So. 828 (1932).” (Emphasis in original.)

See also, Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490 (1965).

This case is void of evidence tending to prove any undue activity on the part of Mrs. Smith in procuring the execution of the will even if we assume, for purpose of argument, there was a scintilla of evidence that Mrs. Smith was dominant and controlling in the relationship due to Willie’s weakened mental state. Moreover, it is not clear, just as it was not clear in Pruitt, that Mrs. Smith was a favored beneficiary under the test laid down in the cases. It was not shown that Harold had a claim to Willie’s benevolence or sympathy that was equal to that of Mrs. Smith, Willie’s wife. Consequently, this case must be reversed for the trial court’s refusal to direct a verdict for Mrs. Smith, the proponent, on the issue of undue influence. See Pruitt, supra.

Because we have concluded the judgment in this case must be reversed for the trial court’s refusal to direct a verdict in favor of Mrs. Smith on the issue of undue influence, all other issues raised by the parties are pretermitted from consideration. We hereby reverse and remand for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, as Subrogee of Southern General Contractors v. ESCAMBIA ELECTRIC AND APPLIANCE COMPANY et al.
    78-865.
    Supreme Court of Alabama.
    June 20, 1980.
    Philip H., Partridge of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Johnnie B. Byrd, Jr. of Caffey & Byrd, Brewton, for appellees.
   ALMON, Justice.

This is an appeal by the plaintiff, United States Fidelity & Guaranty Company (USF & G), as subrogee of Southern General Contractors, from a summary judgment in favor of defendant, Escambia Electric and Appliance Company. We reverse.

The Escambia County Board of Education employed an architectural firm to design, plan and supervise the construction of an athletic building for W. S. Neal High School. Southern General Contractors was awarded the contract which called for the project to be completed according to plans prepared by the architectural firm. It also included the following provision concerning “extra work” ordered by the School Board:

SECTION 11
EXTRAS:
Without invalidating the contract, the owner may order extra work or make changes by altering, adding to, or deducting from the work; the contract sum being adjusted where necessary or desirable. All work of the kind bid upon shall be paid for at the price stipulated in the proposal, and no claims for any extra work or materials shall be allowed unless the work is ordered in writing by the Architect, acting officially for the owner, and the price is stated in such order.

A builder’s risk insurance policy including fire coverage was obtained by Southern General from United States Fidelity.

Southern General subcontracted with Es-cambia for the installation of a heating and air conditioning system as provided in the plans and specifications prepared by the architects. The following article appeared in the subcontract:

ARTICLE 9
INSURANCE
Prior to starting work, the Subcontractor shall obtain the required insurance from a responsible insurer, and shall furnish satisfactory evidence to the Contractor that the Subcontractor has complied with the requirements of this Article 9. Similarly, the Contractor shall furnish to the Subcontractor satisfactory evidence of insurance required by the Contract Documents.
The Contractor and Subcontractor waive all rights against each other and against the Owner and all other Subcontractors for damages caused by fire or other perils to the extent covered by property insurance provided under the General Conditions, except such rights as they may have to the proceeds of such insurance.

Escambia deviated from the architectural plans when it installed, with the School Board’s consent and architect’s oral approval, a used central heating and cooling unit which was donated to the school by Escam-bia. Southern General’s President, W. A. Wiggins, advised the School Board that his Company would not be responsible for this deviation from the original plans.

On November 6, 1977, a fire occurred, severely damaging the athletic building. USF & G paid to its insured, Southern General, an amount necessary to repair the structure.

USF & G then brought suit, as subrogee of Southern General, against Escambia. Its complaint alleged negligent installation of the heating and cooling system by Escam-bia and breach of contract, by improperly installing the system which allegedly caused the fire.

On April 11,1979, Escambia filed a third-party complaint against its insurer, Home Indemnity Company, requesting Home Indemnity to provide Escambia with a defense to the action and to pay any amounts which United States Fidelity might be awarded.

Escambia filed a motion for summary judgment with supporting exhibits. USF & G filed a response, supported by affidavits. Escambia’s motion was granted and USF & G appeals.

In support of the trial court’s decision granting summary judgment in its favor, Escambia contends that the School Board is the “owner” under § 11 of its contract with Southern General, and therefore had the right to unilaterally modify the contract. Such a modification occurred when it accepted the used heating and cooling system. Escambia also contends that Article 9 of its subcontract with Southern General bars any action by USF & G against it.

We disagree with the above contentions and find that a genuine issue of material fact has been presented from the pleadings and affidavits which should have prevented the granting of summary judgment. Ragland v. Alabama Power Co., 366 So.2d 1097 (Ala.1978); Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). Escambia has failed to show that the opposing party could not recover under any discernible set of circumstances. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

Article 9 of the subcontract between Es-cambia and Southern General prevents USF & G as subrogee of Southern General from bringing an action against Escambia. However, this Article will apply only if the work performed by Escambia is pursuant to the subcontract. Thus, a question of fact is presented as to whether the installation of the system was pursuant to the subcontract or whether it was an independent act outside the limits of Article 9.

Article 9 must also be construed in conjunction with other provisions of the subcontract. One such provision is Article 11.9 which states:

11.9 The Subcontractor warrants that all materials and equipment furnished and incorporated by him in the Project shall be new unless otherwise specified and that all Work under this Subcontract shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these standards may be considered defective. The warranty provided in this Paragraph 11.9 shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents.

This section establishes a warranty placing responsibility on the subcontractor. This responsibility is not limited by any other provision of the contract. It gives to the contractor a right of action against the subcontractor for a breach of this section. A failure to comply with Article 11.9, as has been claimed by USF & G, would give rise to a cause of action in Southern General to which USF & G could be subrogated. A question of fact remains regarding the breach of Article 11.9.

Another question of fact is presented in connection with § 11 of the contract between the School Board and Southern General. This section allows the School Board to order extra work. But this section will apply only if the extra work ordered was within the framework of the contract. This creates a question of fact concerning the School Board’s agreement with Escambia to install this alternate system.

We find there are genuine issues of fact in this case and summary judgment was therefore inappropriate.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.


text:
    Ex parte H. L. RABURN & COMPANY, a Partnership Composed of its Partners, Herbert L. Raburn and Hasbrouck Haynes, Jr. In re H. L. RABURN & COMPANY, etc. v. EDUCATIONAL CONSULTANTS, INC., et al.
    79-3.
    Supreme Court of Alabama.
    June 20, 1980.
    James L. Shores, Jr. of Johnston & Shores, Birmingham, for petitioners.
    George W. Royer, Jr. of Butler & Potter, Huntsville, for respondents.
   ALMON, Justice.

This is a mandamus proceeding to change venue.

The plaintiff H. L. Raburn & Company is a partnership of certified public accountants whose offices are located in Jefferson County, Alabama. The plaintiff brought suit in Jefferson County, for work and labor done, against Educational Consultants, Inc., and Educational Resources, Inc., both of which were incorporated and have their principal places of business in Madison County, Alabama; and Carlos B. Harbison, an individual residing in Marshall County, Alabama. Neither corporation did business by agent in Jefferson County.

After motion and hearing the Circuit Court transferred this cause of action to Madison County. The plaintiff petitioned this Court for a writ of mandamus to vacate the order of transferal.

The plaintiff contends the action of the Circuit Court in transferring the cause is contrary to Code 1975, § 6-3-3, which states:

In all actions for work and labor done or breaches of contracts or covenants as to easements or rights-of-way, the action may be commenced in the county in which the work was done or in which the land is situated as to which the easement or right-of-way was granted.

The respondents contend that venue should be in the county where the ultimate application or benefit of the services rendered is conferred. They contend that the statute provides venue in the county where the object of the work and labor was to be received.

The evidence submitted to the Circuit Court was in conflict as to where the majority of the work was performed. Each side presented evidence that a majority of the work was done in its respective county. It is clear from the record that a substantial amount of the work was done in Jefferson County.

Initially venue would have been proper in either county. When venue is proper in two or more counties the plaintiff may elect the county in which to proceed, and when this election is made venue will not be disturbed. Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala.1978); Associated Grocers v. Graves Co., 272 Ala. 158, 130 So.2d 17 (1961); Ex parte: Cummings, Gazaway & Scott, Inc., [Ms. May 30, 1980] (Ala.1980).

The apparent basis of the trial judge’s order transferring venue is that of convenience. In Medical Service Administration v. Dickerson, supra, this Court, in considering convenience as the basis for a change in venue, stated:

We have failed to find any authority in Alabama, statutory or otherwise, changing venue for the convenience of either the parties, the witnesses, or the court. In fact, we find a statement that there is no provision in the Rules of Civil Procedure, or in statutes which authorizes a change of venue solely for convenience. See Author’s Comments to Rule 82, Lyons, Alabama Practice, Rules of Civil Procedure Annotated, Vol. 2, p. 581.

362 So.2d at 909.

The burden of proving improper venue is upon the party making such a claim. Medical Service Administration v. Dickerson, supra; Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960). The respondents have failed to meet this burden and the trial judge is hereby directed to withdraw and vacate his order transferring this cause to Madison County.

WRIT OF MANDAMUS GRANTED.

TORBERT, C. J., and FAULKNER, JONES and EMBRY, JJ., concur.


author: FAULKNER, Justice.

text:
    Frederick C. WOODS, etc. v. COMMERCIAL CONTRACTORS, INC., et al.
    79-218.
    Supreme Court of Alabama.
    June 20, 1980.

      Richard A. Lawrence of Fuller & Lawrence, Montgomery, for appellant.
    No brief for appellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment for defendants, made final by a determination and entry pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure. We reverse.

The case arose as a suit for breach of contract. Plaintiff, Frederick Woods entered into a contract to provide architectural services in the development of a condominium project in Sarasota, Florida, with Commercial Properties, Inc. (CPI). The contract was signed by James Folmar on January 2, 1973.

The initial complaint was filed on November 4, 1976, and named as defendants CPI, Folmar, Commercial Contractors, Inc. (CCI) and Airedale Holding Corporation, Inc. (AHCI). Subsequent amended complaints added as defendants Meadow Corporation (MC) and Lido Beach Development Co., Inc. (Lido). According to the affidavits and depositions before the Court, at the time the contract was made MC was the parent corporation for 15-25 wholly-owned subsidiaries including CPI, CCI, AHCI, Lido, Ft. Myers South Plaza, Inc. (FMSPI) and others. The stock of MC was held by James Folmar, his wife Mary Folmar and his brother Emory Folmar. James Folmar and Emory Folmar served as directors and officers of all the corporations. CPI was merged into AHCI subsequent to the time of the contract. Since this litigation began the Folmars have sold MC and all their interest therein. Lido was eventually sold to Radix Corporation, a venture in which the Folmars had no interest.

The option to purchase the Florida land for the condominium was taken by FMSPI, which assigned its option to Lido which in turn purchased the land, its purpose being to develop the land.

The general purpose of CPI in this organizational plan was to obtain options to purchase real estate for the purpose of developing the land for commercial use. Then CPI would assign the option to a developing corporation. Defendants Folmar and AHCI admitted that at the time of construction CPI had no financial interest in the project. At the time of the agreement of January 2, 1973, the developing company, Lido, had not been incorporated. The contract was, however, entered into by CPI for the benefit of the entity which would develop the project, i. e., Lido.

CCI was a development corporation operating as a general contractor. It did not participate in development of the Florida condominiums although CCI did the construction of other projects for Folmar.

Although CCI did not participate in the project which is the subject of this litigation, the payment checks the plaintiff received for the part of the contract on which payment was made were from CCI. Also, the defendant Mr. Folmar mailed the contract to the plaintiff with the cover letter bearing CCI letterhead. There were at least two such letters to the plaintiff from CCI.

According to the files of the defendant Mr. Folmar’s accountant, Mr. Folmar and his brother Emory Folmar drew their salaries only from CCI and MC. According to the accountant’s documents, monies were readily transferred from one corporation to another corporation via the parent corporation, MC. Some of these transfers were in the form of loans.

The plaintiff sued CPI, Folmar, CCI, and AHCI for breach of contract in Mobile County in November, 1976. On motion of the defendants, the case was transferred to Montgomery County in October, 1977. In May, 1978, Folmar and CCI moved for summary judgment asserting that the only party charged in the contract was CPI. The plaintiff opposed this motion on the grounds that there were material issues of fact and amended the complaint to allege that Folmar was the alter ego of CPI, CCI and/or AHCI. The complaint was further amended in October, 1978, to allege that CPI had no direct interest in the building project, that CPI and Lido were mere arms or divisions of MC, and that Folmar and/or CPI were acting as agents for MC with regard to the January 2, 1973, contract. The complaint was amended again in November, 1978, to allege that Folmar and/or CPI acted as agents for Lido with regard to the contract and that they assigned their interest in the contract to Lido with Lido assuming the obligations and liabilities of the contract.

The defendants Folmar, CCI and MC renewed the motion for summary judgment in December, 1978. Extensive discovery followed, and again the complaint was amended to add Lido as a defendant. Ten months after the defendants Folmar, CCI, and MC moved for summary judgment, the trial court granted the motion and entered it as a final judgment. Plaintiff appealed.

The issue presented for our consideration is whether the trial court properly awarded summary judgment for the defendants. Plaintiff asserts on this appeal that sufficient evidence was presented to the trial court supporting its theory or theories of liability to defeat summary judgment.

The standard set out in ARCP 56(c), is that summary judgment may be granted only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party must clearly show that the other party could not recover under “any discernible set of circumstances.” Chiniche v. Smith, 374 So.2d 872 (Ala.1979); Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975). This rule must be considered in the context of the scintilla evidence rule applicable in Alabama. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979). Furthermore, all reasonable inferences from the facts must be viewed most favorably to the non-moving party. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).

The defendants Folmar and CCI moved for summary judgment on the grounds that they were improperly named as defendants since only CPI was named in the contract. In order to maintain his suit against Folmar and CCI, the plaintiff contended either that Folmar acted without authority in signing the contract or that Folmar and CCI acted with authority on behalf of an undisclosed principal, that principal being MC, Folmar, or CCI. The plaintiff also sought to show that CPI was merely a division of MC and that Folmar was the alter ego of CPI.

If James Folmar acted without authority, he is individually liable on the contract. Copeland v. Swiss Cleaners, 255 Ala. 519, 52 So.2d 223 (1951). If Folmar and CCI acted with authority without disclosing the principal, the undisclosed principal is bound by the acts of its agent acting within the scope of his authority. Billingsley v. McRae, 245 Ala. 422, 17 So.2d 286 (1944); Rochell v. Moore-Handley Hardware Co., 29 Ala.App. 315, 196 So. 141 (1940).

As stated above, the defendant admitted that the contract was not made for the benefit of CPI, but rather that the contract was entered into by CPI “for the benefit of the entity which would develop the project.” That entity was Lido, a corporation which was not in existence at the time of the contract according to the affidavits and depositions before the court. MC was the holder of the stock of both CPI and Lido. Thus whether the contract was made for the benefit of MC as an undisclosed principal is a question of fact within the ambit of ARCP 56(c). The affidavits and depositions also revealed that CCI was the corporation that paid the amounts under the contract that the plaintiff did receive. Thus it is not unlikely that a jury could conclude that Folmar individually or CCI was the undisclosed principal.

To prove his allegations, the plaintiff sought through the discovery process to pierce the corporate veil of MC, CCI, CPI and AHCI to show that CPI was a division of MC and that Folmar was the alter ego of CPI. It is the law in Alabama and elsewhere that the court will disregard the corporate entity when it is used solely to avoid personal liability of the owner while reserving to the owner the benefits gained through use of the corporate name. Dixie Coal Min. & Mfg. Co. v. Williams, 221 Ala. 331, 128 So. 799 (1930). It is also true that a “separate corporate existence will not be recognized where a corporation is so organized and controlled and its business conducted in such a manner as to make it a mere instrumentality of another . . . .” Forest Hill Corp. v. Latter & Blum, 249 Ala. 23, 28, 29 So.2d 298, 302 (1947). More recently this Court held that the theory of separate corporate existence can properly be discarded, even in the absence of fraud, to prevent injustice or inequitable consequences. Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975). Whether Folmar was the alter ego of his numerous corporations is necessarily a question of fact. Forest Hill Corp. v. Latter & Blum, supra.

As stated above, James Folmar, his wife and his brother were the sole shareholders of MC. They also served as officers and directors of the numerous subsidiaries of MC. The record indicated that monies readily flowed from one corporation to another via MC. Furthermore, only MC and CCI ever paid the Folmars a salary.

The affidavits also revealed that the sole purpose of CPI was to obtain options to purchase real estate and then to assign the options at cost to the developing corporation. Hence CPI had no financial interest in the purchases it made. In the case of the land involved in this contract dispute, CPI did not even have an option on the property. That option was taken by FMSPI, Fol-mar’s Florida based corporation. Neither did CPI ever pay any money to the plaintiff; he was paid only by CCI which, according to Folmar’s affidavit and deposition, was not involved in the development of this project.

It is our duty to review the material in the same light as the trial court. Foimar v. Montgomery Fair Company, Inc., supra. Having done so, it is evident that the defendants have not precluded the possibility, as a matter of law, that the plaintiff might establish the issues he has raised. Summary judgment was therefore improper.

REVERSED AND REMANDED.

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


text:
    Harry GILMORE et al. v. CITY OF MONROEVILLE, Alabama, et al.
    79-240.
    Supreme Court of Alabama.
    June 20, 1980.
    J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellants.
    Nicholas S. Hare and Nicholas S. Hare, Jr., Monroeville, for appellees.
   FAULKNER, Justice.

Harry Gilmore and other property owners in a subdivision in Monroeville filed suit seeking to enjoin the City and Southern General Contractors from erecting and operating a public works shop adjacent to their property. They sought relief on the ground that the operation of the facility would create a nuisance. The trial court denied relief and entered a final order. We affirm.

The City Council of Monroeville authorized a public works building to be erected and operated on 11 acres of land adjacent to Crestview Subdivision, a residential area zoned R-l. The building is to be used for fueling city vehicles with gasoline and natural gas; city garbage trucks are to be serviced and maintained there; gasoline and diesel fuel tanks are to be installed, and an area for washing garbage trucks is to be utilized. Concerned that the facility would create a nuisance, the property owners sought an injunction to prevent its erection and operation. They presented evidence showing that by operating the work shop, noise and odors would be created; vermin and flies would be attracted there; their property would be decreased in value, and traffic and safety problems would arise.

For a court to intervene under § 6-5-125, Code 1975, before the public works shop is erected and put into operation, the property owners must show that it is a nuisance per se. Mr. Justice Somerville, in Rouse & Smith v. Martin & Flowers, 75 Ala. 510 (1883), stated:

The rule has long been recognized as quite different where the thing sought to be prohibited is per se a nuisance, and where it is not unavoidably noxious in itself, but may prove so according to circumstances, or otherwise. In the first class of cases an injunction will ordinarily be granted without waiting for the result of a trial at law. In the second class the court will generally refuse to interfere until the matter has been tried at law.

We opine that the evidence presented by the property owners does not show that the operation of a public works shop by the city is a nuisance per se. Its operation may become a nuisance in the future if there are offensive odors, disagreeable noises, annoying vibrations from the motor vehicles, and traffic hazards, that imperil the health and safety of the property owners. But, at this point in time, any alleged injury to them is speculative. Relief was properly denied. Cf. Parker v. City of Mountain Brook, 286 Ala. 241, 238 So.2d 868 (1970).

The order of the trial court is affirmed on this issue.

AFFIRMED.

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


author: SHORES, Justice.

text:
    W. Graham WOOD v. CITY OF HUNTSVILLE, a Municipal Corporation.
    78-713.
    Supreme Court of Alabama.
    June 27, 1980.

      Julian D. Butler, of Butler & Potter, Huntsville, for appellant.
    L. Bruce Abies, of Berry, Abies, Tatum, Little & Baxter and Charles H. Younger, Huntsville, for appellee.
   SHORES, Justice.

The defendant below, Dr. Wood, appeals an order of the trial court enjoining him from operating a helicopter from his residence. Appellant is a medical doctor who lives within the city limits of Huntsville and practices medicine at two clinics located in rural Madison County. In 1977, he built a helipad on top of his house at a cost of $27,000.00. He has used the helipad to operate his own helicopter for commuting purposes, and to transport patients in emergency situations. Prior to construction of the helipad, he obtained a permit from the Huntsville City Building Inspector for a “dwelling patio deck.” He then obtained a Certificate of Approval for Airport Site from the Alabama Department of Aeronautics, and FAA permission to land helicopters on his helipad. Shortly thereafter, his neighbors began to complain of noise and alleged safety hazards caused by operation of the helicopter.

On June 16, 1978, the City of Huntsville sought an injunction against Dr. Wood, alleging that he was operating his helicopter in violation of city zoning ordinances. At a hearing on the City’s request for a permanent injunction, the trial judge stated that the proper remedy would be one for private nuisance rather than violation of zoning ordinances, and found that the City was not the proper party to seek such relief. He then joined the “complaining witnesses” (neighbors who had testified for the City) as petitioners in the action, and enjoined defendant from operating any helicopter flights which created a disturbance in the neighborhood. He explicitly based this action on a private nuisance theory.

Soon after, eight of Wood’s neighbors, including those added as petitioners in the City’s action, filed a separate action in circuit court, alleging that Wood’s operation of a helicopter from his property constituted a private nuisance, violated zoning ordinances of the City of Huntsville, and violated restrictive covenants of the Piedmont subdivision. Wood then filed a motion for a new trial, or to alter, amend or vacate the order entered in the earlier action. Plaintiffs in the second action petitioned the court to consolidate their suit with the City’s. The trial court granted both these motions, held an additional hearing, and amended its prior order so as to prohibit any operation of the helicopter whatsoever from defendant’s helipad. For the reasons discussed herein, we affirm.

Appellant earnestly contends that the trial court’s action in joining the “complaining witnesses” as parties and granting relief on a theory not presented by the City violated his due process rights under the Fourteenth Amendment to the United States Constitution. We do not agree. Under the Alabama Rules of Civil Procedure, the trial court has broad discretion to add or drop parties on its own motion to serve the ends of justice. See ARCP 19, 20, 21. Further, any disadvantage that defendant may have suffered by the unexpected addition of parties at the first hearing was remedied by the scheduling of an additional hearing at which all parties were present and allowed to present evidence on all issues considered by the trial judge.

Appellant also contends that federal law pre-empts local control of aircraft noise to the exclusion of private nuisance actions. This argument misconstrues the scope of the federal pre-emption. While it is true that Congress, in the exercise of its powers under the Commerce Clause, has extensively and exclusively regulated use of the navigable air space in the United States (see Federal Aviation Act of 1958, 49 U.S.C. §§ 1301-1541), state and local governments retain substantial control over some aspects of aviation, particularly ground usage. In Alabama, for example, the state Aeronautics Commission is empowered to formulate and adopt airport approach plans for commercial airports, Code 1975, § 4-2-71, to approve airport sites and to license airports, Code 1975, § 4-2-72. Municipalities are authorized to acquire, operate and regulate airports or landing fields, Code 1975, § 4-4-2, and to regulate the operation of private airports, Code 1975, § 4-4-14. Further, counties or municipalities are empowered to enact airport zoning ordinances to prevent the creation of airport hazards, Code 1975, § 4 — 6 1, et seq.

In holding that state and local regulation of the location of helipads is not pre-empted by federal law, the Supreme Court of New Jersey has discussed the pre-emption issue in these terms:

Federal preemption will be found where the subject activity intrinsically requires uniformity of regulation, Cooley v. Bd. of Wardens of the Port of Phila., 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996, 1005 (1851), or where Congress has either expressly or impliedly assumed regulatory control of the entire field of activity. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947).
The case at hand does not present a situation where preemption may be predicated upon a felt need for a monolithic system of regulation. While in some important aspects uniform regulation may be required, such as in the control and supervision of air space, cf. Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626-628, 93 S.Ct. 1854, 1856-1857, 36 L.Ed.2d 547, 550 (1973), that obvious need does not reach down to the level of the location of small, relatively isolated, privately owned helistops or heliports. Cf. Cooley v. Bd. of Wardens of the Port of Phila., supra, 53 U.S. (12 How.) at 320, 13 L.Ed. at 1005.
Moreover, we have not been directed to express statements of congressional intent or other explicit indications by Congress to preempt local regulation of the placement of helistops or heliports. Similarly, we discern no federal constitutional or statutory sources for implying a congressional intention to preempt this field.
The federal commerce clause grants Congress extensive power to regulate air traffic. U.S.Const., Art. I, § 8, cl. 3; Burbank v. Lockheed Air Terminal, Inc., supra. Pursuant to that power our national legislature has enacted the Federal Aviation Act of 1958, 49 U.S.C.A. § 1301 et seq., a comprehensive federal scheme under which the Secretary of Transportation has the authority to ‘regulate[ ] * * air commerce’, id. at § 1303(a), defined as “ * * * any operation or navigation of aircraft within the limits of any Federal airway or any operation or navigation of aircraft which directly affects * * * interstate, overseas, or foreign air commerce.” Id. at § 1301(4). While it is clear that state and local authority over the ‘operation and navigation of aircraft’ is supplanted by this federal regulation, see, e. g., Burbank v. Lockheed Air Terminal, Inc., supra, (aircraft noise); Allegheny Airlines, Inc. v. Village of Cedar-hurst, 238 F.2d 812, 815 (2 Cir. 1956) (flight altitudes); County of Cook v. Priester, 22 Ill.App.3d 964, 318 N.E.2d 327, 331-332 (App.Ct.1974), aff’d 62 Ill.2d 357, 342 N.E.2d 41 (Sup.Ct.1976) (aircraft flight weight), significant local power over ground operations of aircraft remains viable. Aircraft Owners & Pilots Assoc, v. Port Auth. of New York, 305 F.Supp. 93, 104-105 (E.D.N.Y.1969) (federal regulation not so extensive as to prevent airport proprietor from imposing landing fees to regulate traffic utilizing airport); Port of New York Auth. v. Eastern Airlines, Inc., 259 F.Supp. 745, 752 (E.D.N.Y.1966) (F.A.A. regulations setting preferential runway procedures did not preempt power of Port Authority to prohibit the use of certain runways until certain other runways had been extended); LaSalle Nat’l Bank v. County of Cook, 34 Ill.App.3d 264, 340 N.E.2d 79, 87-88 (App.Ct.1975) (F.A.A. regulations establishing height restrictions do not preempt power of local governments to enact height restrictions on property surrounding airports); City of Winner v. Lineback, 86 S.D. 165, 192 N.W.2d 705 (Sup.Ct.1971) (power of local zoning board to acquire and regulate a municipal airport not preempted by federal statutes).
Further, Congress has expressly acknowledged that state authorities have a governmental role in aeronautic fields. Both the Civil Aeronautics Board and the Federal Aviation Administration are directed to cooperate with state and local aeronautical agencies in connection with matters arising under their jurisdiction. 49 U.S.C.A. §§ 1324(b), 1343(i).

Garden State Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978).

In the specific area of noise control, state and local governments cannot use their police powers to control noise by regulating the flight of planes, as appellant points out, City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 625, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). They can, however, as proprietors of airports or landing areas, establish reasonable noise levels by regulations. City of Blue Ash v. McLucas, 596 F.2d 709 (6th Cir. 1979), British Airways Bd. v. Port Authority of New York, 558 F.2d 75 (2d Cir. 1977). Appellant relies on Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975), a case which applied the rule of City of Burbank, supra, to private nuisance actions, holding that where “federal laws and regulations have preempted local control of aircraft flights [citation omitted] the defendants may not, to the extent they comply with such Federal laws and regulations, be charged with negligence or creating a nuisance.” Both City of Burbank and Luedtke involved local attempts to control commercial airline flights from public airports, matters which are not within the purview of municipal regulation. Under Code 1975, § 4-4-14, however, municipalities are authorized to regulate the operation of private airports, including helipads, and a private nuisance action is thus not inappropriate. Indeed, dozens of cases in other states have upheld private nuisance actions against private airports or helipads. See eases collected at 79 A.L.R.3d 253 (1977) Annotation, “Airport Operations or Flight of Aircraft as Nuisance.” Section 4(b) specifically lists cases supporting the rule that liability in nuisance may exist despite governmental authorization or regulation of airport activities.

Appellant also contends that the evidence introduced at trial regarding the noise produced by Wood’s helicopter is not sufficient to justify a finding of nuisance. However, no ground for reversal is more carefully scrutinized or rigidly limited than one charging that the verdict is against the great weight of the evidence, Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). Where the trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed unless palpably wrong. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965). Here, evidence was introduced at trial which indicated that the noise from appellant’s helicopter could bring residents out of a sound sleep; that the noise could be heard with doors and windows closed and appliances operating; that the helicopter performed low altitude passes, overflew several residential properties at low altitude, just above trees, and hovered over residential property. Landings were described as offensive, extremely loud and annoying, and were said to cause exhaust odor to be distributed into neighboring homes. Although this testimony was not undisputed, it is sufficient to sustain the trial court’s ruling.

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

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Jack C. MONTGOMERY et al. v. William D. STRICKLAND et al.
    79-139.
    Supreme Court of Alabama.
    June 27, 1980.
    F. E. St. John, of St. John & St. John, Cullman, for appellants.
    Ralph Bland, of Bland & Bland, Cullman, for appellees.
   MADDOX, Justice.

The trial court granted the plaintiffs’ prayer for specific performance of a contract in which they agreed to purchase a tract of land from the defendants. Defendants claimed the contract was entered into by them while under the mistaken impression that the tract contained twenty-one acres of land when in fact there were some thirty-five acres in the subject tract. Defendants appeal; we affirm.

The issue is whether the trial court abused its discretion in granting specific performance.

Defendants Jack and Jennie Montgomery owned a tract of land in Cullman County through which ran Williamson Road and Bailey Drive. They had owned the property for some three months when they listed part of the property for sale with the Doyle Real Estate Agency in Cullman. The part of the tract they wished to sell was that acreage on the east side of Williamson Road and Bailey Drive. Located on the subject property were two chicken houses, a farrowing house and a hog parlor which were to remain with the property. Jack Montgomery had been told by the previous owner that there were twenty-one or twenty-two acres in the subject property. It was advertised by the real estate agent as containing twenty-two acres.

Plaintiff William Strickland contacted Jack Montgomery and discussed purchasing the property. They then went to the Mont-gomerys’ real estate agent’s office where a sales contract was drawn. Strickland and his wife agreed to purchase the subject property for a price of $41,500. The contract described the land as: “21 acres & 2 chicken houses located at Rt. 5, Box 505, Cullman, AL.” Before the contract was signed, William Strickland had the following added to the terms of the instrument: “This contract of sale to include all land of Jack Montgomery East of Williamson road and East of Bailey’s drive.”

William Strickland testified that he had the clause inserted because there was a question of whether a small strip of land went with the tract, and that clause would clear up any dispute as to what lands were covered by the contract. Jack Montgomery testified that he mistakenly believed at the time the contract was entered into there were twenty-one or twenty-two acres in the tract. When he later learned the tract contained roughly thirty-five acres, he refused to go through with the deal and the Strick-lands filed the instant action for specific performance.

The trial court found, and the evidence is clear, that the parties intended that the Montgomerys would sell, and the Strick-lands would purchase, the subject property for the total sum of $41,500. The parties did not agree that the property would be sold for a certain amount per acre or place a certain value on the buildings. The Montgomerys defended on the grounds, inter alia, that the consideration named in the agreement was agreed upon through mistake, it was out of all proportion to the actual value of the property, there was no meeting of the minds, and therefore, it would be inequitable to enforce such an agreement.

The trial court, sitting in equity, found for the Stricklands and ordered the Mont-gomerys to perform according to the terms of the agreement.

The Montgomerys correctly argue that the controlling rule is that as stated in Board of Water and Sewer Commissioners of the City of Mobile v. Spriggs, 274 Ala. 155, 146 So.2d 872 (1962):

“The equity of the instant bill is rested on the principle which has been referred to by this court as follows:
“ ‘If one of the parties, through mistake, names a consideration that is out of all proportion to the value of the subject of negotiation and the other party realizing that a mistake must have been committed, takes advantage of it and refuses to let the mistake be corrected when it is discovered, he cannot under these conditions claim an enforceable contract. Where there is a mistake that on its face is so palpable as to place a person of reasonable intelligence upon his guard, there is not a meeting of the minds of the parties, and consequently there can be no contract. 6 R.C.L. page 623, section 42; 12 Amer.Jur. 624, section 133, and cases there cited.’ Ex parte Perusini Const Co., 242 Ala. 632, 636, 7 So.2d 576, 578.”

This Court went on to cite with approval the generally recognized rule that “ ‘[t]he mistake must be so grave a consequence that to enforce the contract as actually made would be unconscionable.’ ” 274 Ala. at 160, 146 So.2d at 876.

It is well settled that neither party to a contract is entitled to specific performance as a matter of right, but the granting or withholding of the equitable remedy rests largely in judicial discretion, directed and regulated by defined rules. Dendy v. Anchor Construction Co., Inc., 294 Ala. 120, 313 So.2d 164 (1975).

We have reviewed the entire record in this proceeding. Although the defendants presented expert testimony that the thirty-five acre tract, with the buildings, was worth $55,000, the record is clear that the property was sold for a fixed sum not expressly calculated according to the acreage involved.

In ordering that the contract be enforced, the trial court found:

“It is evident to the court that we are dealing here with two mature men where one believed that he had found a good buy and the other was intent on selling his property on the east side of the road at a price to him that seemed reasonable. The court is reasonably satisfied from all the evidence that paragraph 5 of the contract was inserted before it was signed by Mr. Strickland and Mr. Montgomery and that it was intended by all concerned to convey by Mr. Montgomery to Mr. Strickland all of the land on the east side of the highway and between Williamson Road and Bailey’s Drive. The court lastly holds from the evidence that the enforcement of the contract is not unconscionable as to the defendants nor that the negligence of the defendants, if any, was excusable.”

“It is the duty of this court to indulge all reasonable presumptions in favor of the trial court’s conclusions when the evidence is heard ore tenus. We cannot substitute our judgment on the effect of the evidence, dealing with the pivotal issue of fact in this case, for that of the Chancellor.” Hyatt v. Compton, 262 Ala. 649, 80 So.2d 650 (1955). We cannot find that the trial court, sitting in equity, abused its discretion in granting specific performance.

The judgment appealed from is due to be affirmed.

AFFIRMED.

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


text:
    Nolan P. COOPER v. Nick PETURIS.
    79-574.
    Supreme Court of Alabama.
    June 27, 1980.

      Kenneth Cooper, Bay Minette, for plaintiff.
    Charles C. Simpson, III of Owens & Simpson, Bay Minette, for defendant.
   MADDOX, Justice.

This appeal is from a denial of plaintiff Cooper’s motion for new trial on the ground that the jury verdict was against the great weight and preponderance of the evidence. We have carefully reviewed the record and do not agree with plaintiff that the verdict is without support. The judgment of the trial court is affirmed.

Plaintiff, in alternative counts, claimed that defendant Peturis had damaged his soybean crop while aerially spraying a herbicide, a chemical known commercially as Banvel, upon property which adjoined his land. The trial court granted defendant’s motion for a directed verdict on plaintiff’s wantonness count, and submitted the case to the jury upon plaintiff’s negligence count. The jury returned a verdict in favor of defendant. The denial of plaintiff’s motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial, is the basis of this appeal.

Plaintiff contends that the trial court erred in denying his motion for a new trial because of uncontradicted testimony that defendant was negligent while spraying the chemical Banvel. Even if the testimony were uncontradicted, liability is not thereby created as a matter of law. Guthrie v. McCauley, 376 So.2d 1373, 1374 (Ala. 1979). If different inferences and conclusions may reasonably be drawn from the evidence, the question of liability must be left to the jury. Gleichert v. Stephens, 291 Ala. 347, 349, 280 So.2d 776, 777 (1973). Furthermore, plaintiff’s allegation of negligence was controverted by testimony that an unusual weather condition caused the Banvel to drift onto plaintiff’s soybean crop and that defendant followed accepted aerial practice while spraying the chemical. This Court must review the tendencies of the evidence most favorable to the prevailing party and indulge such inferences as the jury was free to draw. Wiggins v. McLeod, 371 So.2d 660, 661 (Ala.1979); Grandquest v. Williams, 273 Ala. 140, 147, 135 So.2d 391, 396 (1961).

No ground of a motion for a new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725, 727 (Ala.1979). Verdicts are presumed to be correct and that presumption is strengthened when a new trial is denied by the court. Gavin v. Hinrichs, 375 So.2d 1063, 1064 (Ala.1979); Elba Wood Products, Inc. v. Brackin, 356 So.2d 119, 123 (Ala.1978). Nevertheless, when the preponderance of the evidence is against the verdict, so as to clearly convince the court that it is manifestly unjust, the verdict will be set aside. Walker v. Cardwell, 348 So.2d 1049, 1051 (Ala.1977). The case at bar, however, does not present such overwhelming evidence. The denial of the new trial motion will be upheld by this Court.

AFFIRMED.

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


author:
      HOLMES, Judge.
      WRIGHT, Presiding Judge,

text:
    STATE of Alabama v. Wheeler LUDLAM, d/b/a Wheeler’s Nursery.
    Civ. 1935.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., John J. Breckenridge, Asst. Attys. Gen., for appellant.
    J. Gorman Houston, Jr., of Houston & Martin, Eufaula, for appellee.
   HOLMES, Judge.

The Circuit Court of Barbour County modified a final sales and use tax assessment. The State, through able counsel, appeals the circuit court’s action and we affirm.

There are two dispositive issues. The first is whether the taxpayer met his statutory burden of overcoming the prima facie correctness of the final assessment. Secondly, we must decide whether the learned and distinguished trial judge erred in concluding that the taxpayer’s business was located outside the city limits of the City of Eufaula but within the police jurisdiction of Eufaula.

The record reveals the following: The taxpayer was engaged in business as a nurseryman selling nursery products at retail and performing certain services for his customers. The department of revenue determined there was a deficiency in taxpayer’s sales and use tax payments for the period July 1, 1973, to May 1, 1976. As a result, the State entered a preliminary assessment against the taxpayer for state and city sales and use taxes.

The taxpayer duly protested these assessments. The department of revenue denied the protest but did correct the preliminary assessments, entering final assessments in the amount of $2,626.58 for the state tax and $1,400.02 for the city tax. The city sales and use tax was computed on the assumption that the taxpayer’s business was located within the city limits of Eufau-la.

We note it is not disputed that, if the business was located outside the city limits, but within the police jurisdiction as found by the trial court, the percentage of taxation on the taxpayer’s gross retail sales should have been halved.

The taxpayer then appealed to the Circuit Court of Barbour County pursuant to § 40-2-22, Code of Ala.1975. After an ore terms hearing, the learned trial judge entered an order further reducing the amount of the assessments.

The evidence before the trial court included the testimony of the taxpayer’s accountant and that of the taxpayer’s son. The State countered with the testimony of its own accountant. For purposes of this appeal, suffice it to say that the testimony of the two accountants consisted of an explanation of the data they relied upon and the methods they employed in making their calculations in regards to what would be the correct assessment. Both parties also entered exhibits in support of their respective contentions.

The learned trial judge’s order found, in pertinent part, that all subject retail sales by the taxpayer were made outside the city limits of Eufaula but within the police jurisdiction, that approximately 80% of the taxpayer’s income was derived from tax exempt services rendered as opposed to taxable retail sales, and:

(7) That the records as kept by the Appellant allowed a determination of what sales were and were not taxable, and the best method used by any of the parties in determining the amount of tax due was the method first used by Robert McCullar, a C.P.A. employed by the Appellant. Mr. McCullar went through every invoice, and every deposit, and categorized each between taxable and nontaxable sales and substantiated this by the records kept by the Appellant and records which were readily obtainable by the taxpayer from third parties, and, therefore, subject to scrutiny by the Department of Revenue. Using this method, Appellant owed $1,831.77 State tax and $260.11 City tax. Appellant has paid $1,500.00, and has offered to pay the balance of $591.88.

On appeal, the State first challenges the trial court’s conclusion that the taxpayer had adequately proved the tax exempt nature of 80% of his income. The State argues that the taxpayer’s admittedly inart-fully kept books did not allow such a determination and concludes it was error to rely on what it characterizes as the verbal assertions of the taxpayer’s accountant in ascertaining the amount of tax due.

The State bottoms this argument upon § 40-23-9, Code of Ala.1975, which provides:

It shall be the duty of every person engaging or continuing in this state in any business for which a privilege tax is imposed by this division, to keep and preserve suitable records of the gross sales, gross proceeds of sales and gross receipts or gross receipts of sales of such business and such other books or accounts as may be necessary to determine the amount of tax for which he is liable, under the provisions of this division. It shall be the duty of every person to keep and preserve, for a period of three years, all invoices of goods, wares and merchandise purchased, for resale or otherwise, and all such books, invoices and other records shall be open for examination at any time, by the department of revenue or its duly authorized agent. Any person selling both at wholesale and retail shall keep his books so as to show separately the gross proceeds of wholesale sales and the gross proceeds of retail sales.

The State also refers us to Regulation A27-061 of the Alabama Department of Revenue, Sales and Use Tax Division, which was promulgated pursuant to the statutory authority invested in the Department by § 40-23-31. This regulation provides, in pertinent part:

When a nurseryman sells shrubbery or other nursery stock and, as a part of the transaction, plants them in the land of the purchaser, the sales tax applies on the full price paid by the purchaser, including the cost of such planting. Provided, however, where such property is sold in a transaction separate and apart from an agreement to do the planting and where the sales price and a charge for planting are separated in the billing of the customer and in the records of the nurseryman, no sales tax will be required to be collected from the customer or paid to the State with respect of receipts from planting.

The State argues that the taxpayer failed to keep adequate books and records as required by § 49-23-9 and to properly separate in its billings charges for tax exempt services as required by Regulation A27-061. As a consequence, the State would have us hold the trial court in error for finding the taxpayer met its burden of overcoming the prima facie correctness of the final assessments entered by the Department. See, § 40-2-22. In support of this proposition, we are cited to the case of State v. T. R. Miller Mill Co., 272 Ala. 135, 140-141, 130 So.2d 185, 190 (1961), where our supreme court said:

The State is not required to rely on verbal assertions of the taxpayer in determining the correctness of the tax return, but records should be available disclosing the business transacted. Where there are no proper entries on the records . . , the taxpayer must suffer the penalty of noncompliance and pay on the sales not so accurately recorded as exempt. (Citation omitted.)

While agreeing that the State should not be required to rely on mere “verbal assertions” in computing the sales and use tax due, we do not agree that this was all the taxpayer had to offer in the case at bar. Indeed, the trial judge found as a fact that the taxpayer’s records were sufficient to allow a determination of what sales were taxable and that 80% of the taxpayer’s income was derived from tax free services rendered.

The case law supports this approach when technically perfect books are not kept. In State v. Levey, 248 Ala. 656, 29 So.2d 129 (1946), the supreme court was also faced with inartfully kept records. The issue there was whether the taxpayer could support its claim that certain sales it had made were at wholesale as opposed to retail and therefore exempt from the sales tax. In those instances where the taxpayers’ books were at least sufficient to constitute a “semblance of a record” of the exempt wholesale sales, the court upheld the trial court’s decree which struck the State’s assessment. 248 Ala. at 659, 29 So.2d at 132.

Again, in State v. Mims, 249 Ala. 217, 30 So.2d 673 (1947), while acknowledging the exacting nature of the statutory provisions as to sales tax records, the court refused to reverse the trial court’s decision in favor of the taxpayer.

In so ruling, the supreme court explicitly refused to lay down any particular method of bookkeeping as required by the statute for fear that such a course might unduly burden the small businessman taxpayer. Noting the taxpayer in Mims did have records of his sales and invoices covering purchases, the court upheld the trial court’s decision that the taxpayer had preserved a record within the requirements of the statute sufficient to allow a checkup of his business.

Based on the record before us, a similar conclusion was justified in the case at bar. The taxpayer’s accountant was able to match deposit slips against invoices and to categorize sales as either exempt or nonexempt. A number of bids and billings prepared by the taxpayer in the ordinary course of business were also available. Using a “test period” in which adequate records were kept, the taxpayer’s accountant was able to determine that 80% of the taxpayer’s income was derived from tax exempt services. Although the time frame for this test period did not coincide with the years covered by the assessments, there was testimony that the taxpayer’s business was substantially the same in both instances.

Thus, the learned trial judge was able to determine, not from mere “verbal assertions,” but from competent evidence of a kind approved in Mims and Levey, which of the proffered methods of computation best reflected the amount of tax due. Viewing his conclusions with the presumption of correctness which attaches when an ore tenus hearing is held, we are not prepared to reverse this case on these grounds. State v. T. R. Miller Mill Co., supra.

As indicated, the trial court further concluded that the taxpayer’s business was located within the police jurisdiction of the City of Eufaula but outside the city limits.

We note that the trial court took judicial knowledge of this fact. We further observe that the State does not dispute the correctness of this conclusion, but argues this was not a fact within the judge’s judicial knowledge. Contending there was no competent evidence before the court to otherwise support this finding, the State again urges us to reverse the decree on the grounds the taxpayer failed to meet its burden of overcoming the State’s prima facie case.

After a careful review of the record, we are convinced there was no error committed by the trial court in this respect. We so rule because, even if it is assumed the learned trial judge was incorrect in taking judicial notice of the location of the taxpayer’s business, there was nevertheless sufficient evidence introduced to justify this conclusion.

This is so because a fact may be established by either direct or circumstantial evidence, and the proof is sufficient if, from the facts and circumstances adduced, it can be reasonably inferred. Armstrong v. State, 249 Ala. 40, 29 So.2d 330 (1947).

In Armstrong, the supreme court upheld the trial court’s finding that a certain night club was located in Etowah County where the evidence was simply that both the defendant and the arresting law enforcement officers were from that county.

Here, the State’s assessment was computed as if the taxpayer’s business was located within the city limits. The taxpayer’s accountant clearly and unequivocally let it be known that his calculations were based upon the lower police jurisdiction rate. The State failed to challenge the propriety of using this lower rate in any way.

We conclude that, based upon these facts and circumstances, which were at least as strong as those relied upon in Armstrong, it was reasonable to infer that the taxpayer’s business was located outside the city limits.

The judgment is therefore due to be affirmed.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I must respectfully dissent from the decision of my brothers on the court.

I have carefully studied the transcript of the testimony in this case and the finding of facts by the distinguished trial judge. I am constrained to say that there is no evidence from records kept by defendant as required by the statute which supports the finding and judgment of the court.

It is without dispute that the testimony offered by the taxpayer to overcome the prima facie correctness of the assessment is not derived from the records of the taxpayer. That fact is clearly disclosed from the words of the C.P.A. who presented all of the material testimony on behalf of taxpayer. For instance, we quote pertinent portions of his testimony:

We felt that the amount of the tax was erroneous ... in that we felt there was services that Mr. Ludlam had performed that were being taxed so we tried to determine a method, due to the lack of records during this period of time by which we could arrive at that would be his taxable sales. We did it from two different approaches. (R. 9) (Emphasis ours.)

The first approach he used was explained:

Now, I asked Mr. Ludlam if he would contact all of his suppliers and get from them a statement of the goods that he had bought or the total goods he had bought during the period under audit . . Those figures were the basis for this computation . . . By taking the merchandise bought for resale, adjusting for inventory, marking it up, and adding the raised merchandise we arrived at a sales price and computed sales tax on that sales price for the period under audit. (R. 9, 10)

The second “method” used by the C.P.A. was to use a two-month sample or test period in September and November of 1976. (These months were not within the assessment period.) In the words of the C.P.A., “This approach was to take the total deposits for this period of time and try to remove from those any non-taxable sales to arrive at the sales of merchandise which would be taxable.” (R. 11,12) From this test period he determined what percent of income was sales of tangible personal property and what percent of income was from services. The percentages derived from this test period were then applied to calculated net bank deposits for the audit period. “This gave us an estimated tangible sales figure on which we figured city and state sales tax,” said the C.P.A. (R. 13)

The finding of the trial court that “approximately 80% of the income of the taxpayer during the taxable period was for services on which no tax was due” was not derived from any records kept by the taxpayer during the taxable period. It could only have come from testimony by taxpayer’s son that he calculated it from records being kept by him as bookkeeper for a five-month period during 1978 and extrapolated and applied to each taxable year. That evidence was duly objected to by the State but admitted by the court. Again, it did not come from any record kept during the assessment year.

In considering his ruling upon the admission of this fabricated figure, the court verbalized the exact issue in the case. I quote:

Well, of course, ordinarily, I think it would have some relevancy but when you come to a state law that requires the keeping of records, the big question is whether or not these formulas and test periods, and that sort of thing, is going to supply the demands of the law for accurate records. (R. 40)

The court exactly described the context of taxpayer’s evidence. It is undisputed that the taxpayer kept no records during the assessment years of gross sales, gross receipts or gross receipts of sales from which the amount of tax could be determined. It is admitted that the prima facie correct assessment is disputed not from any valid and definitive record to the contrary, but upon formulas and calculations made from verbal assertions, un-itemized and unidentified bank deposits, other material not kept as records but assembled after the assessment, and percentages fabricated from so-called test from periods subsequent to the years in question.

I do not believe the cases cited as authority by the majority support the decision in this case. Each of them explicitly holds that it is the statutory duty of the taxpayer to keep and preserve sufficient records of gross sales and receipts of his business from which the tax may be determined. In each of the cases it is stated that there were records of invoices (State v. Mims) or of sales (State v. Levey) in existence at the time of the audit, though unartfully kept, sufficient to make a determination of the tax. There is no case which holds that the assessment may be overcome by subsequent fabrication and calculations from test periods, formulas, verbal assertions or mere assumptions as is found in this case. To overturn the assessment in this case is to ignore the statute requiring the keeping of records and establishing the prima facie correctness of the assessment. The majority has quoted from the case of State v. T. R. Miller Mill Co., supra. That quote is a paraphrase of the decision in State v. Le-vey, supra. In Levey the court continued: “Records should be available disclosing the business transacted. Of necessity, if the statute is to be considered of any practical operation, the books should be so kept as to properly reflect the sales claimed as exempt that an examination will establish their true character . . . .” State v. Levey, supra, 248 Ala. at 658, 29 So.2d at 131. That observation is appropriate to this case.

I also disagree with the majority that the trial court did not err in taking judicial knowledge of the city limits of Eufaula. Such was not a matter which the court could judicially know. I understand the majority does not expressly say to the contrary. However, it does not aid the court’s ruling to say that the State does not dispute the knowledge of the court. The State was not required to dispute the court’s conclusion in order to claim error from it.

Neither does the evidence in this case bring it within the principle of the holding in Armstrong v. State, supra. The fact that the taxpayer’s witness testified that his calculations of tax due were based upon the tax rate applying to a business located without the city limits but within the police jurisdiction is not a circumstance from which may be inferred the true location of the business. To require the State to refute that as if it were fact would place the burden upon the State of proving the location rather than the taxpayer. The State’s assessment was premised upon the business being within the city limits of Eufaula. The burden was upon the taxpayer to establish that it was otherwise. The trial court expressly stated in its judgment that it judicially knew that the business was without the city limits but within the police jurisdiction. That it may in fact be so located does not excuse the court’s error. It could not take such judicial knowledge. Armstrong v. State, supra.

For failure to produce evidence through records kept in accordance with the statute sufficient to overcome the prima facie correctness of the assessment, the assessment must stand. State v. Levey, supra, 248 Ala. at 658, 29 So.2d at 131. I would reverse and render.


text:
    Ex parte State of Alabama. (Re STATE v. Wheeler LUDLAM d/b/a Wheeler’s Nursery).
    79-458.
    Supreme Court of Alabama.
    July 7, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

MADDOX, FAULKNER, JONES, AL-MON and BEATTY, JJ., concur.

TORBERT, C. J., dissents.


author: WRIGHT, Presiding Judge.

text:
    Nancy Ann BARBER v. Terry F. LAY.
    Civ. 1922.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    Rehearing Denied April 9, 1980.
    David H. Bibb of Coleman & Bibb, Decatur, Maury D. Smith of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Noble J. Russell and Robert Straub of Russell & Straub, Decatur, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parties were divorced in 1973. There was one child born of the marriage, a boy now nine years of age. Custody was originally given to the mother. In 1977, the mother remarried and obtained a modification of the decree of custody allowing her to move the child to South Carolina. In response to his cross-petition for primary custody, the father was given custody during the summer.

In July 1978, the mother and her husband were moving to Chicago. The father, having married again, filed a petition for primary custody. Modification was entered after hearing, reversing the existing custodial roles. The father was given primary custody; the mother custody for the summer. The modification was not appealed.

In March 1979, the mother and her husband moved back to Decatur and filed for return of primary custody. After oral hearing, the court denied modification. The mother appeals, charging an abuse of discretion.

Our cases have reiterated many times the settled principles that in order to secure a modification of a judgment of child custody, there must be shown a material change of circumstances since the prior judgment which affects the best interest and welfare of the child. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976). When, after oral hearing, the trial court renders its judgment, this court presumes it to have correctly applied discretionary authority and adjudged the best interest of the child. Donald v. Donald, 50 Ala.App. 9, 276 So.2d 436 (1973). We will not disturb or revise that judgment, unless it is so unsupported and contrary to the evidence as to appear plainly wrong. Stewart v. Grace, 360 So.2d 1032 (Ala.Civ.App.1978).

The mother attacks the judgment in this case first by saying that the court erroneously found there has been no material change in circumstances since the last judgment. She contends that primary custody was taken from her and given to the father in 1978 principally because she was moving to Chicago and because the child expressed to the court a desire to live with his father. Congruently, she has now shown her return to Decatur and the child has expressed a present desire to live with her. Ergo, the circumstances which caused custody to be given the father are now reversed and custody should be returned to the mother. Upon its face, the contention appears to have reason, but does it necessarily follow the light of the polestar of child custody— the best interest of the child? We cannot say that it does.

The mother in support of her petition has, by conclusion and inference more than by legal evidence, submitted that the child has shown emotional and physical distress during the custody of the father and since her return to Decatur. However, there was shown no lack of love, care or attention for the child by the father or the stepmother. The trial court could have found from the testimony that the child, in spite of love from both parents and stepparents, was distressed by the continuation of controversy and conflict between them and the uncertainly of which would next have his custody. If it so found, in its role of parens patriae, the court in its discretion was free to stop the bouncing ball of custody and hopefully give the child a sense of permanency and custodial security. It is not every change of circumstances which requires a change of custody.

It is also contended by the mother that the “tender years doctrine” demands the child be returned to her. We see little if any room in this case for that doctrine, whatever its efficacy in other cases. Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ. App.1979). That doctrine was presumably considered and weighed in the prior judgment, which gave custody to the father. We do not have that record before us. We perceive the issue at this point in the case to be only whether there had occurred a change of circumstances since the judgment of August 1978, which so affected the best interest of the child that a change of custody was plainly required. Our consideration of the record and argument of counsel does not convince us that the trial court abused its discretion. The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: JONES, Justice.

text:
    Ex parte Nancy Ann Barber LAY. (Re: Nancy Ann BARBER v. Terry F. LAY).
    79-547.
    Supreme Court of Alabama.
    July 7, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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

MADDOX, J., concurs in result.


author: HOLMES, Judge.

text:
    Wallace R. HARTSFIELD, Jr. v. Susan I. HARTSFIELD.
    Civ. 2040.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 23, 1980.

      Roderick Beddow, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellant.
    E. Ray Large, of Large & Donovan, Birmingham, for appellee.
   HOLMES, Judge.

The Circuit Court of Jefferson County determined that certain aspects of a divorce decree were part of a property settlement and that payments thereon constituted alimony in gross. As a result, the husband was ordered to reimburse the wife for payments she had made upon his ceasing to do so. The husband was also ordered to make all future payments.

The husband appeals and we affirm.

The dispositive issue is whether the pertinent terms of the decree were properly characterized as an award of alimony in gross and/or property settlement thereby constituting a continuing, nonmodifiable obligation of the husband after the wife’s remarriage.

The record reveals the parties were divorced in 1969. The decree of divorce incorporated an agreement of the parties which in pertinent part provided:

5. The respondent [husband] will assign, deliver and make the regular premium payment for the following listed insurance policies in the sum of $85,000, making the complainant [wife] the absolute owner thereof: .

There followed a list of the eight insurance policies which are the subject matter of this appeal. The decree further provided:

7. The respondent is to pay to the complainant as alimony and support and maintenance for her and the said minor children the sum of One Thousand Thirty-five and no/100 ($1,035.00) Dollars per month until the complainant remarries or her death, whichever shall first occur.

Upon the wife’s remarriage, the husband ceased making the premium payments on the policies awarded the wife. The wife then filed a petition for rule nisi and, after an ore terns hearing, the learned trial judge made the determination that the award of the policies was part of the property settlement of the parties and the requirement that the husband make the regular premium payments constituted a fixed award, of alimony in gross which was not subject to modification due to the wife’s remarriage.

On appeal, the husband contests this characterization. He argues that this award amounted to periodic alimony, and that his obligations thereon were terminated pursuant to § 30-2-55, Code of Ala.1975 (1979 Cum.Supp.), which states:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried . . . (Emphasis supplied.)

This court has previously ruled that this section of the Code applies only to awards of periodic alimony, and that it does not affect awards of alimony in gross. Higginbotham v. Higginbotham, Ala.Civ.App., 367 So.2d 972 (1979). We thus follow the well established law in Alabama that awards of alimony in gross, like property settlements, are nonmodifiable because based not on the future earning capacity of the husband, but upon the present value of his estate, not being intended to provide for the wife’s future support, but to compensate her for the loss of the present value of her inchoate marital rights. See, Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974).

Turning to the disputed paragraph 5 of the decree, we note that in Higginbotham, supra, this court upheld a finding by the trial court that a provision very much like the one at bar constituted a property settlement and/or alimony in gross. There, the paragraph read:

6. The Second Party agrees that he shall make the First Party be irrevocable beneficiary of one-half of the life insurance in effect on his life and shall continue to pay the premiums thereon as the same become due and payable. 367 So.2d at 973.

The husband, through able and distinguished counsel, does not attempt to distinguish the two provisions. His contention is that this court incorrectly decided Higgin-botham. Accordingly, we are urged not to repeat our purported error in the case at bar.

As support for his argument, the husband refers us to the case of Montgomery v. Montgomery, 275 Ala. 364, 366, 155 So.2d 317, 319 (1963), where the Supreme Court of Alabama said:

[F]or alimony to be in gross it should be unequivocally expressed in the decree and it must meet and satisfy two requirements, i. e., (1) the time of payment and the amount must be certain; (2) the right to alimony must be vested. (Emphasis supplied).

From this language the husband concludes this court erred in Higginbotham where we ruled the specific designation of the award as alimony in gross is not mandatory.

We cannot agree. While such a designation would of course be helpful as providing an indicium of the intent of the drafting party, we will not allow the mere lack of such a label to defeat a provision which in substance provides for an award of alimony in gross as part of a property settlement.

We reiterate, Montgomery, supra, clearly does not require such an elevation of form over substance. It merely holds that the designation of the award as alimony in gross should be present. Only when turning to the substantive requirements of such an award does the usually mandatory word “must” appear.

Indeed, in Hager v. Hager, supra, the supreme court said where the type of award is not specified, the source of the payment and the purpose of the award are of prime importance. In thus acknowledging the probable future existence of problems such as those before this court today, the supreme court wisely refused to transform a guidepost into an ultimate destination.

Here, it is clear the husband’s present estate was considered in deciding the source of the payment and that the purpose of the award was to compensate the wife for the loss of her share of that estate. As indicated, these are the distinguishing characteristics of an award of alimony in gross.

The husband further contends that in both Higginbotham and the provision at bar the time of payment and the amount of the award do not possess the requisite certainty required of an award of alimony in gross.

Again, we disagree. The husband’s obligation is to pay the regular premium payments as they come due so that the wife will receive the ultimate payoff on the policies upon his demise. This is sufficient. See, McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977). We do not find that the wife’s ability to slightly alter these premiums according to her use of the dividends which accrue, or to alter the cash value of the policies by borrowing on them deprive the husband’s obligation of certainty.

Furthermore, the award could be classified as a property settlement even in the absence of the above considerations. While paragraph 5 did not specify the type of award contained therein, paragraph 7 clearly was for support and maintenance and thus constituted periodic alimony and child support.

Construing the two paragraphs in pari materia, paragraph 5 seems clearly to have been intended to fulfill some other purpose. The most reasonable construction is that it was intended to be either alimony in gross or part of the property settlement. See Hager v. Hager, supra. This being so, its provisions were neither modifiable nor subject to § 30-2-55.

The wife has requested a fee for representation on appeal. As indicated above, this appeal comes to this court as a result of a contempt proceeding. However, there was no finding of contempt by the trial court.

In Scott v. Scott, 375 So.2d 797 (Ala.Civ. App., 1979), a case involving the award of attorney’s fee at the trial level, this court stated the following:

Under § 30-2-54, Code of Ala.1975, attorney’s fees may be awarded “in all actions for the recovery of alimony, maintenance or support in which ... a contempt of court citation has been made by the court against either party . . . .”
Our cases construe this statute to mean that attorney’s fees in enforcement proceedings may not be awarded when no contempt citation is made. Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978); Jernigan v. Jernigan, Ala.Civ.App., 335 So.2d 178 (1976). Clearly, in the instant case the entire proceeding was one for contempt. .

In view of the above, this court is without authority to grant an attorney’s fee on appeal since no finding of contempt was made below.

In view of the above, this case is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex parte Wallace R. HARTSFIELD. In re Wallace R. HARTSFIELD v. Susan I. HARTSFIELD.
    79-578.
    Supreme Court of Alabama.
    June 27, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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