author: ALMON, Justice.

text:
    Mark CAMBRON v. Paul E. CARLISLE and Diane Carlisle.
    79-837.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Rehearing Denied Oct. 30, 1981.
    Eric L. Carlton and Joseph W. Letzer of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Matt Scalici and Nicholas Bouler for Scalici & Bouler (On Rehearing only) Birmingham, for appellant.
    Eddie Leitman and Andrew P. Campbell of Leitman, Siegal & Payne, Birmingham, for appellees.
   ALMON, Justice.

This is an appeal from a judgment in favor of appellees, Paul and Diane Carlisle, declaring void a lease entered into by the appellant, Mark Cambrón, and the appel-lees. We reverse.

On July 17, 1978, Mark Cambrón entered into a contract of sale with Diane Carlisle, to purchase a business named “Dee’s Stop ‘N’ Shop Delicatessen” in Birmingham. At the same time, Cambrón entered into a lease agreement with Paul and Diane Car-lisle to lease the premises where “Dee’s” is located. The term of the lease was five years with an option to renew for an additional five years. The lease provided in part:

THIS LEASE SHALL BECOME NULL AND VOID in the event the said building should be entirely destroyed or rendered entirely unfit or incapable of being used for the purpose for which the same is hereby let, by fire or other casualty beyond the control of the Lessee....
If said premises are so injured by fire, rain, wind or earthquake as to render the same partially untenantable or partially unfit for the use or purpose for which the same are hereby let and are repairable within a reasonable time after written notice of said injury is given by the Lessee to the Lessor or his Agents, then, and in any of those events, the Lessor or Agents may repair the same within said time, and the rent during said time shall be reduced in the proportion that said premises in said untenantable or unfit condition bears to said premises in their condition before said injury, provided, however, that in the event Lessor or his agents fail to commence said repairs within thirty days after Lessee shall notify Lessor or his agents of such injury this lease may be terminated by the Lessee by written notice at any time after the expiration of said thirty days, and before repairs are commenced by Lessor or his agents.

Cambrón conducted business at the leased premises until February 10, 1980, when a fire occurred inside the building. The extent of damage done to the building is. in dispute, as are the actions of the parties after the fire. Cambrón sent the rent for February and March to the Carlisles. On March 12, 1980, the Carlisles’ attorney returned the rent to Cambrón with a letter of termination of the lease. The Carlisles claimed the fire had made the building “entirely unfit and incapable of being used for any business without substantial repairs,” and that the lease was therefore null and void. Cambrón, filed suit seeking: (1) a declaratory judgment as to his rights under the lease; (2) a temporary restraining order restraining the Carlisles from leasing the premises to anyone else; and (3) damages.

The trial court found that the fire rendered the building “entirely unfit for use for the purposes” for which it was leased and declared the lease null and void.

Cambrón contends that the trial court’s construction of the lease was erroneous and that the decision is contrary to the great weight of the evidence.

To make the lease null and void the building must have been “entirely destroyed or rendered entirely unfit or incapable of being used for the purpose for which the same [was] let . . . . ” It is clear from the record that the building was not entirely destroyed. The evidence shows there was little if any structural damage to the building. There was evidence that some concrete blocks on one wall were replaced. One interior wall was burned and there was a small hole in the ceiling. However, all four walls remained standing and the roof remained intact. The question presented is whether the trial judge’s finding that the building was “entirely unfit” is supported by the evidence.

Having not found an Alabama case speaking directly to this issue, we looked to decisions of other jurisdictions. The case of Barry v. Herring, 153 Md. 457, 138 A. 266 (1927), is very similar to the present case. In Barry, Herring leased the first floor in a three-story building to use as a place of business. The lease contained the following provision: “If the property shall be destroyed or rendered untenantable by fire, the tenancy shall be thereby terminated, and all liability for rent hereunder shall cease upon payment proportionately to the days of fire or unavoidable accident.” A fire damaged the building and the lessor sought to terminate the lease under the above provision. The lease was for five years with an option to extend it for five additional years. At the time of the fire, there were five years remaining on the lease because Herring exercised his option to extend the lease. In holding that the lease was not terminated, the court stated:

It is fairly well settled by the authorities that where a lease contains a provision like the one before us in this case, made primarily for the benefit of the lessee, and the leased building is destroyed or rendered untenantable, the tenancy is thereby terminated if to restore such building it becomes necessary to rebuild it, thereby depriving the tenant of its use. But where the building may be restored by ordinary repairs made thereon with no considerable interruption to the tenant’s business while the same are being made, the tenancy is not terminated or the lease forfeited.
In determining whether the repairs are ordinary repairs, and the interruption temporary only, the value of the property, as well as the duration of the lease, may be taken into consideration.

In Barry, the damage consisted of burned joists supporting the first floor of the building. The ceiling and side walls were burned and damaged by water. The furnace, heating pipes and electrical wiring were also damaged by fire and water. Hence, under similar circumstances as in the present case, the Maryland court held the lease was not terminated. Also in accord is 51C C.J.S. Landlord and Tenant § 99(2)(b) (1968), wherein it is stated:

.. . Partial damage to, or destruction of, the building does not of itself terminate a lease which provides for its termination if the premises are destroyed, or damaged so as to be unfit for occupancy, and this is true, although the premises, or a part of them, are rendered temporarily untenantable for the purpose of the lease.

The majority of the damage done to the building leased by Cambrón was to the interior of the building. The ceiling was damaged by fire and water. The interior paneling was burned, as was the electrical wiring. The estimates as to the costs of repairs were approximately $30,000. The lease was not to expire for another eight years. Cambrón had paid $125,000 for the business and was paying $1,200 per month as rent. In order to purchase the business Cambrón had obtained a $100,000 loan from Birmingham Trust National Bank. Approximately $70,000 of the loan remained unpaid at the time of the trial. The repair time estimates ranged from thirty to ninety days with the majority of the testimony indicating that the repairs could be completed in thirty days.

We conclude that the trial court either misconstrued the applicable law or that its finding is not supported by the evidence. Because the premises were not rendered “entirely unfit,” it follows that the lease was not void.

For the foregoing reasons the judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice. EMBRY, Justice PER CURIAM. JONES, Justice

license: Public Domain

text:
    David McMICKENS, Administrator of The Estate of LaVonne McMickens v. Edwin Glen WALDROP, M. D., et al.
    80-395.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Rehearing Denied Nov. 6, 1981.

      P. Russell Tarver, Birmingham, for appellant.
    John F. Whitaker and Catherine E. Crud-up of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.
   MADDOX, Justice.

The only issue on this appeal is whether to apply the medical malpractice statute of limitations or the wrongful death statute of limitations. The viability of this action for wrongful death allegedly arising out of an act of medical malpractice depends on the resolution of this question, which is one of first impression in the State of Alabama.

The Alabama Medical Liability Act (Code 1975, § 6-5-480, et seq.), provides that all actions against physicians for malpractice must be brought within two years of the act giving rise to the claim, or within six months of date of discovery, and in no event more than four years from the date of the act. The wrongful death statute (Code 1975, § 6-5-410), provides that the action must be brought within two years from and after the date of death.

Appellant David McMickens is the representative of the estate of his deceased wife, LaVonne McMickens, and is suing Dr. Edwin G. Waldrop and Dr. William H. Brake-field of Birmingham. The following timetable is helpful:

February 10, 1975 - May 24,1975 LaVonne McMickens under the care of Drs. Waldrop and Brakefield.
March 24,1977 Civil suit filed by LaVonne McMickens against Drs. Wal-drop and Brakefield for medical malpractice.
October 30, 1977 LaVonne McMickens died.
August 24, 1978 Civil suit dismissed on joint motion of all parties.
October 29,1979 (a) David McMickens appointed administrator of LaVonne’s estate.
(b) David McMickens filed a wrongful death action against the defendants Waldrop and Brakefield.
January 26, 1981 Summary judgment granted for defendants.
March 6,1981 David McMickens filed notice of appeal.

Appellant argues that the Wrongful Death Act statute of limitations should apply to this lawsuit even though the act giving rise to the cause of action arose out of an alleged act of medical malpractice. Appellees, on the other hand, contend that the Alabama Medical Liability Act (Acts 1975, No. 513, Code 1975, § 6-5-480, et seq.), “provides a carefully designed statute of limitations which by its terms applies to ‘all actions’ for medical malpractice.” We agree with the appellant.

The precise wording of the Alabama Medical Liability Act is as follows:

All actions against physicians, surgeons, .. . for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; . . . [or] the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, . . . [but] in no event may the action be commenced more than four years after such act; . . . [Emphasis added.]

Appellees contend that the use of the words “all actions” in the Alabama Medical Liability Act clearly shows a legislative intent to include wrongful death actions. In this case, if the Alabama Medical Liability Act applies, the action was barred because the last treatment administered to Mrs. McMickens by the defendants was four years and five months before the wrongful death action was filed.

There is no clear weight of authority in other jurisdictions on the question whether a medical malpractice statute of limitations or the wrongful death statute of limitations should apply when the genesis of the wrongful death action was medical malpractice. Some jurisdictions, construing provisions of their own state laws on the subject, hold that if death results from the wrongful act, the statute of limitations for wrongful death actions applies. See Baxter v. Zeller, 42 Or.App. 873, 601 P.2d 902 (1979); Hachmann v. Mayo Clinic, 150 F.Supp. 468 (D.Minn.1957); Klema v. St. Elizabeth’s Hospital of Youngstown, 170 Ohio St. 519, 166 N.E.2d 765 (1960); Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644 (1947) (court applied shorter wrongful death statute, even though suit was timely if the medical malpractice statute had been applied).

Other jurisdictions have come to an exactly opposite conclusion and have applied the medical malpractice statute of limitations to a wrongful death action which arose out of an alleged claim of malpractice. See Pasquale v. Chandler, 350 Mass. 450, 215 N.E. 319 (1966); Camp v. Martin, 150 Ga.App. 51, 256 S.E.2d 657 (1979); Glass v. Camara, 369 So.2d 625 (Fla.Dist.Ct.App.1979); Eland v. Aylward, 373 So.2d 92 (Fla.Dist.Ct.App.1979).

As previously indicated, this is a case of first impression in Alabama and, as indicated, other jurisdictions reach different results; therefore, we must decide this case by construing the intent of the Alabama Legislature in passing the Alabama Medical Liability Act, and the effect of that Act, if any, upon the right of a personal representative to bring an action for wrongful death within two years of the death of his “testator or intestate.” Code 1975, § 6-5-410.

The law of Alabama for many years has been that the two-year period provided for in the Wrongful Death Statute is a part of the substantive cause of action and is not to be treated as a statute of limitations. After two years, the remedy expires. Downtown Nursing Home v. Pool, 375 So.2d 465 (Ala.1979).

In view of the above, we conclude that the medical malpractice statute of limitations does not apply; therefore, the judgment of dismissal is due to be reversed and the cause remanded. Our decision should not be construed as holding that the legislature could not modify or change the two-year period now a part of the Wrongful Death Statute; we only hold that by passage of the Medical Malpractice Act, the legislature did not affect that two-year period.

REVERSED AND REMANDED.

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

FAULKNER, JONES and EMBRY, JJ., concur specially.

EMBRY, Justice

(concurring specially):

I concur in the result in this case but wish to reassert my views regarding the unconstitutionality of the Alabama Medical Liability Act expressed in my dissent in Reese v. Rankin Fite Memorial Hospital, 403 So.2d 158 (Ala.1981). Because I do not believe . that act is constitutionally valid, I see no issue raised by it in the context of this action.

FAULKNER, J., concurs.

ON REHEARING EX MERO MOTU

PER CURIAM.

ON REHEARING, EX MERO MOTU, SPECIAL CONCURRENCE OF 9-25-81 WITHDRAWN AND SPECIAL CONCURRENCE OF 11-6-81 SUBSTITUTED THEREFOR; AND APPLICATION FOR REHEARING DENIED.

JONES, Justice

(concurring specially):

This cause having been placed on rehearing ex mero motu, the special concurrence accompanying the opinion released on September 25, 1981, is withdrawn, and the following special concurrence is substituted therefor.

I concur specially to emphasize the significance of the holding in contexts outside and beyond the facts of the instant case. Here, the wrongful death two-year period has the effect of “extending” the time period within which to commence the wrongful death action. In the context of the discovery or tolling provisions of the Medical Liability Act, however, it could have the effect of “shortening,” rather than “extending,” the time frame for commencing the action. In other words, with respect to the “lengthening” or “shortening” of the period of limitations, the Medical Liability Act’s discovery and tolling provisions are inapplicable to a wrongful death action. Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965). See, also, Pollard v. United States, 384 F.Supp. 304, (M.D.Ala.1974). Because the Wrongful Death Act contains the only statute of limitations . applicable to wrongful death actions, its two-year period from the time of death, within which the action may be commenced, is unaffected by the discovery or tolling provisions in the Medical Liability Act.

This is not to say, however, that the discovery and tolling provisions of the Medical Liability Act have no field of operation in testing whether “the . . . intestate could have commenced an action ... if [the injury] had not caused death.” § 6-5-410(a). In other words, while the Wrongful Death Act’s two-year period is unaffected by any of the provisions of the Medical Liability Act, the discovery and tolling provisions of the latter act may be crucial in determining whether an action for wrongful death survives.

A couple of examples may be helpful: Suppose the parents of a minor who died at age two, allegedly caused by medical malpractice, brought suit just prior to the child’s eighth birthday. Clearly, the statute of limitations defense would prevail because the tolling provision of the Medical Liability Act (“until his eighth birthday”) could not be invoked to lengthen the Wrongful Death Act’s two-year period of limitations. On the other hand, if the child died just prior to his eighth birthday, allegedly the result of a medical malpractice injury at the age of two, the Wrongful Death action could be commenced within two years from the date of the child’s death. The discovery provisions of the Medical Liability Act are subject to like application.

Stated another way, nothing in the Medical Liability Act can lengthen or shorten the two-year provision in the Wrongful Death Act; but, depending upon the facts of any given case, the discovery and tolling provisions of the Medical Liability Act may be determinative of whether the intestate’s cause of action survives the death, i.e, whether the intestate, at the time of death, could have commenced the action had the injury not caused death.

      . By agreeing to the dismissal of the malpractice suit, plaintiff apparently was merely recognizing the procedural requirement of Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (Ala.1942), which requires that the previously filed personal injury suit cannot be amended to allege wrongful death, but must be dismissed and a new suit brought.


text:
    James WILSON v. Neil Edward THOMASON and Mary L. Thomason.
    80-82.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    Rehearing Denied Oct. 30, 1981.
    G. Daniel Evans of Ramsey & Evans, Birmingham, for appellant.
    Robert C. Boyce, III of Furner, Boyce & Nave, Bessemer, for appellees.
   ALMON, Justice.

This appeal is from a judgment denying specific performance and awarding damages for breach of a contract to convey realty.

Neil Thomason and his wife, Mary, owned a house and lot in McCalla, Alabama. In 1979 they listed their house for sale with Johnson-Rast & Hays. Madge Campbell, an employee of Johnson-Rast & Hays, was designated as the listing agent for the Thoma-son home. During the summer of 1979, another Johnson-Rast & Hays agent, Mrs. Jerry Jones, secured from James Wilson a contract to purchase the Thomason house for $55,000, which she presented to the seller’s agent, Madge Campbell. The Thoma-sons counteroffered for $56,000. Wilson accepted this offer and set a closing date of August 30, 1979. After Wilson paid his earnest money, but before the closing date, the Thomasons’ attorney notified Mrs. Jones that the Thomasons would not close the sale. Wilson filed suit against the Thomasons on October 16, 1979, seeking specific performance of the contract and, in the alternative, damages for breach of contract. In addition to the complaint, Wilson filed a lis pendens notice notifying all prospective purchasers of the pending suit. Thomason later sold the home to the Sawyers in November of 1979.

During trial, Wilson testified that although his birth name was Larry Wright, he also used the name James Wilson, and that he had previously purchased property under both names. Wilson conceded that he was a member of the Devil’s Disciples motorcycle club, and that he had been involved in several altercations, but denied that he concealed his identity by representing himself to be James Wilson or that he intended to use the house as a clubhouse for the Devil’s Disciples. Wilson also denies any fraudulent intent by the use of the name James Wilson.

Mrs. Thomason testified that she would not have signed the contract of sale if she had known Wilson’s true identity and his affiliation with the Devil’s Disciples.

A property appraiser, testified that the appraised value of the Thomason home was $70,000.00. William Sawyer, who owned the house at the time of trial, testified that its market value was $55,000.00. The trial court, sitting without a jury, denied Wilson’s prayer for specific performance, found that the Thomasons had breached the contract, and awarded $2,532.00 in damages. Wilson appeals.

There are two reasons why the court could have denied specific performance. First, the Sawyers, who had previously purchased the house and lot, were not made parties to the suit. Rule 19, ARCP. This Court held in Johnson v. White-Spunner, 342 So.2d 754 (Ala.1977) that:

... In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party to the action. Davis v. Burnette, 341 So.2d 118 (Ala.1976); Dews v. Peterson, 283 Ala. 650, 219 So.2d 903 (1969); Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837 (1924) .... [Emphasis added.]

Second, the plaintiff, whose true name is Larry Donald Wright, signed the contract of sale as James Wilson. The plaintiff owned other property, both as Larry Wright and as James Wilson. While it has been said that a person may adopt what name he pleases if no harm has been done, Milbra v. Sloss-S.S. & I. Co., 182 Ala. 622, 62 So. 176 (1913), nevertheless he may not do so for a fraudulent purpose. Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 126 So. 869 (1930). A person will not be allowed to adopt two names and use one or the other at will for nefarious reasons. There was sufficient evidence for the trial court to have concluded that the plaintiff used the name James Wilson to avoid a possibly tainted reputation which had become attached to the name of Larry Wright. The remedy of specific performance is equitable in nature and he who seeks equity must do equity. This principle was ably stated in McCord v. Bridges, 205 Ala. 692, 89 So. 39 (1921), to the effect that:

“A contract may be perfectly binding at law; it may be of a class which brings it within the equitable jurisdiction, because the legal remedy is inadequate; but, if the plaintiff’s conduct in obtaining it, or in acting under it, has been uncon-scientious, inequitable, or characterized by bad faith, a court of equity will refuse him the remedy of specific performance.” 1 Pom.Eq.Jur. § 400.

And thus in conclusion of the whole subject:

“It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscien-tious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very foundation is good conscience.” Section 404.

The last contention of error deals with the award of damages to the plaintiff for breach of contract in the amount of $2,532.00. The plaintiff argues there is no evidence to support this amount. An expert testified that the fair market value of the house and lot was $70,000.00. Sawyer, who owned the house at the time of trial, testified that the fair market value of the house and lot was $55,000.00. The contract sales price was approximately $56,000.00. The evidence would therefore support a finding of damages to range from zero to $14,000.00. The court’s finding was within the range and will not be disturbed. Counsel for both the appellant and the appellee state that they cannot by computation arrive at the same figure as the trial court. We will concede that we cannot either. But the burden is on the appellant to show error, and we cannot conclude that he has done so. The appellant merely argues that the court was bound by the expert testimony of $70,000.00. As we have previously stated, there was other evidence before the court on the value of the property.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: BEATTY, Justice. JONES, Justice SHORES, Justice

text:
    Harvey J. BENEFIELD, as Administrator of the Estate of Jeffrey G. Benefield, Deceased v. AQUASLIDE ’N’ DIVE CORPORATION.
    No. 80-192.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    Rehearing Denied Nov. 6, 1981.

      Joseph M. Brown, Jr., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellant.
    Mack B. Binion and J. P. Courtney, III, of Lyons, Pipes & Cook, Mobile, for appellee.
   BEATTY, Justice.

This case presents a question of first impression on whether simultaneous recovery of both punitive damages for wrongful death under a tort claim and compensatory damages for injuries suffered by the decedent between the date of his injury and the date of his death under a contract claim may be sought. We answer the question in the affirmative.

On May 31, 1978 Jeffrey G. Benefield, as the result of sliding down a swimming pool sliding board which had been manufactured by Aquaslide ’N’ Dive Corporation (Aqua-slide) and installed by Continental Pools, Inc., sustained a fracture dislocation of two of the cervical vertebrae of his spine with incidental spinal cord transection and quadriplegia. Jeffrey died nine days later. Neither Jeffrey nor anyone on his behalf filed an action prior to his death.

On April 1, 1980 Harvey J. Benefield, as administrator of the estate of Jeffrey G. Benefield, filed an action against Aquaslide, Continental Pools, Inc. and certain fictitious parties. This appeal concerns only the claims alleged against Aquaslide. Those claims are contained in the first and third counts of plaintiff Benefield’s complaint. The first count sets forth a claim for the wrongful death of Jeffrey Benefield, the decedent, under the Alabama Extended Manufacturer’s Liability Doctrine. The third count sets forth a claim for breach of warranties, seeking recovery not for the death of the decedent but for the pain and medical expenses suffered by him between the date of his injury and the date of his death.

On June 6, 1980 Aquaslide filed a motion to dismiss each count for failure to state a claim upon which relief could be granted. Rule 12(b)(6), ARCP. In particular Aqua-slide urged that the third count, dealing with breach of warranties, should be dismissed because “the law of the state of Alabama does not allow for a breach of warranty (contract) claim in a death action.” The trial court granted Aquaslide’s motion to dismiss as to the third count on July 8,1980. Subsequently plaintiff filed a motion for the trial court to reconsider the order granting the motion to dismiss or, alternatively, to enter a final judgment pursuant to Rule 54(b), ARCP, so that this Court could review it. The trial court first denied the motion; however, on a later motion to reconsider, it did enter a final judgment as to the dismissed count under Rule 54(b), ARCP. Plaintiff appealed.

Aquaslide filed a motion to dismiss this appeal on the ground that the Rule 54(b) judgment was improperly entered, thereby depriving this Court of appellate jurisdiction. Plaintiff objected. We ruled, on January 26, 1981, that the motion to dismiss would be submitted on appeal along with the substantive issue of whether the trial court erred in dismissing plaintiff’s breach of warranty count.

The threshold issue before us is whether the trial court’s dismissal of the third count is a “final judgment” so as to give this Court appellate jurisdiction under § 12-22-2, Code of 1975.

. Rule 54(b), ARCP, states as follows:

When more than one claim for relief is presented in an action, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . .

The trial court’s order expressly directing the entry of judgment recites that there was “no just reason for delay” in entering judgment as to count three of the complaint. There is nothing wrong, then, with the wording of the order. The issue, more narrowly stated, is whether counts one and three present “more than one claim for relief” in this action. Aquaslide argues that there is only one claim for relief, the claim for wrongful death which is still pending under count one, and that count three is merely an alternative statement of that one claim. See Rule 8(e), ARCP. We disagree.

In Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975) we noted that “the ultimate determination of multiplicity of claims must rest in every case on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced.” Id. at 540, 307 So.2d at 10. We also expressly ruled in Cates that “the fact that the claims may have arisen out of the same set of facts does not mean they are not multiple claims.” Id. Thus, Aquaslide’s argument that the same set of facts gives rise to plaintiff’s theories of recovery in this case does not, without more, establish that the counts present only a singular claim.

It is clear that this case involves different claims. Even though the claims arise out of the same occurrence, the fact that one is a tort claim and the other a contract claim is a sufficient distinction. The tort claim for wrongful death seeks punitive damages only and the contract claim for breach of warranties seeks compensatory damages only. Thus, there can be no double recovery. And, as our discussion of the substantive issue on this appeal will show, the dismissed contract claim could have been separately brought and enforced without the attendant tort claim for wrongful death. We hold, therefore, that the trial court’s action entering a “final judgment” as to count three was in accord with Rule 54(b), ARCP, and we deny Aquaslide’s motion to dismiss this appeal.

The issue to be resolved on this appeal is whether the trial court erred in dismissing the breach of warranty claim for failure to state a claim upon which relief can be granted. Rule 12(b)(6), ARCP. To reiterate the essential facts, the breach of warranty count seeks compensatory damages for the injuries and expenses suffered by the decedent between the date of his injury and the date of his death. The decedent did not file an action on his behalf prior to his death.

Code of 1975, § 6-5-462 provides:

In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives ; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tort-feasor. [Emphasis added.]

Aquaslide argues that plaintiff’s breach of warranty claim is a “personal claim” under § 6-5-462 because the decedent suffered injuries to his person. Thus, according to Aquaslide, the action for breach of warranty could survive only if the suit had been filed prior to death. Admittedly, the decedent sustained personal injuries. Despite this tortious characteristic of plaintiff’s claim, it cannot be overlooked that a breach of warranty claim is a contract claim. Simmons v. Clemco Industries, Ala., 368 So.2d 509 (1979). A contract action pursuant to § 6-5-462 survives in favor of the personal representative regardless of whether the decedent filed the action before his death. The fact that the decedent dies as a result of the injuries sued upon does not change this general rule. Simmons, 368 So.2d at 516.

Aquaslide argues further that, even if the breach of warranty claim survives, plaintiff’s exclusive remedy is under the wrongful death statute, § 6-5-410, Code of 1975. That is, Aquaslide appears to argue that the breach of warranty claim merges into the extended manufacturer’s liability claim for wrongful death. The fallacy of that argument is that this plaintiff as well as future plaintiffs would then be barred from seeking any damages other than punitive damages for the death of the decedent. Should breaching manufacturers be allowed to escape liability for compensatory contract damages sustained by the decedent before his death merely because he dies as a result of the breach? We think not. The breach of warranty (contract) claim is a separate and distinct claim from the wrongful death (tort) claim and seeks compensatory damages only, not for the wrongful death of the decedent but for the injuries suffered before his death. It would be illogical to merge the two claims. We hold that it was error for the trial court to dismiss count three. That count does state a claim for which relief can be granted. The judgment therefore, must be, and is, reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

• REVERSED AND REMANDED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

JONES, J., concurs specially.

SHORES, J., dissents with opinion, in which TORBERT, C.J., and MADDOX, J., concur.

ALMON, J., dissents without opinion.

JONES, Justice

(concurring specially).

I concur with the majority only because of this Court’s holding in Geohagen v. Genera] Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973). If the dissent in Geohagen had prevailed, I would go even beyond the dissent in the instant case; I would follow the precedent of Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942), and not permit the election of remedies (as between the survival of the contract claim for compensatory damages and a claim for wrongful death) where death results from the alleged wrongful conduct. But the dissent in Geo-hagen did not prevail; and, under current Alabama law, no contractual cause of action for wrongful death exists.

Thus, the dichotomy that produced Fies & Sons is not present in the context of a death caused by breach of contract. In other words, the “merger of tort remedies” concept, on which the Fies & Sons rationale is premised, has no application in the “cross over” context of the survival of the contract claim and the current tort claim for wrongful death. The very element present in Fies & Sons — a like claim in tort for wrongful death — is absent here because there is no like claim in contract for wrongful death. Therefore, there is no impediment, under the current status of our law, to the survival of a contract claim for compensatory damages and a concurrent claim in tort for wrongful death where death results from the same injury.

Personally, I would welcome a reversal of Geohagen. In that event I would hold, consistent with Fies & Sons, that the contract claim for compensatory damages survives only where death results from causes other than the injury made the basis of the personal injury action.

SHORES, Justice

(dissenting):

I agree with the majority that a cause of action for breach of warranty survives the death of Jeffrey Benefield and may be maintained by his administrator. Section 6-5-462, Ala. Code 1975, expressly provides for its survival and we recognized that in Simmons v. Clemco Industries, 368 So.2d 509 (Ala.1979). I also agree that an action for wrongful death based upon the extended manufacturer’s liability doctrine lies. I disagree, however, that recovery may be had on both.

For many years, this Court has held that an action for personal injury filed before the plaintiff’s death survives and may be thereafter maintained only if death results from some other cause than that made the basis of the personal injury suit. Breed v. Atlanta, B. & C.R. Co., 241 Ala. 640, 4 So.2d 315 (1941). If death results from the same injury made the basis of the personal injury action, the wrongful death statute supplies the only remedy for the injury resulting in death. Carroll v. Florala Memorial Hospital, Inc., 288 Ala. 118, 257 So.2d 837 (1972).

While I might not have agreed with the reasonings of these old cases, particularly where it is uncertain whether the death was due to the injury or to other causes, causing plaintiff’s lawyer to decide in advance and at his peril a question upon which physicians might disagree, nevertheless they have been consistently followed and plaintiffs have been relegated to an action for wrongful death and punitive damages only.

To allow the plaintiff here to proceed on the breach of warranty count, as well as on the count seeking damages for wrongful death on a tort claim, would give the contract claim greater efficacy than is allowed a tort claim for personal injury. The majority reasons that this result is permissible because the survival statute says that a contract cause of action survives. The survival statute also says that a tort action survives, but this Court has always held that the survival statute is not to operate to defeat the purpose of the wrongful death statute, to punish civilly wrongdoers who cause homicide and to deter others from similar activity. The result reached by the majority would allow compensatory damages in a death case, which this Court has consistently refused to allow until today. I would hold that the plaintiff can proceed on the breach of warranty claim or the death action, but not both. I would require an election before submission to the jury. Therefore, I respectfully dissent.

TORBERT, C.J., and MADDOX, J., concur.

      . Although, Parker v. Fies & Sons, supra, has been the source of frequent criticism, I have always felt that both its holding and its underlying rationale were basically sound. My only point of disagreement is with its implied mandate that the plaintiff’s lawyer is required to make a choice between the survival of a tort claim and the claim for wrongful death where the cause of death is in dispute. It seems to me that any factual dispute as to the cause of death should be resolved by the jury.


author: PER CURIAM.

text:
    W. T. RATLIFF COMPANY, INC. v. Carol G. GREEN, et al.
    79-806.
    Supreme Court of Alabama.
    Nov. 6, 1981.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Lee B. Williams, Grove Hill, for appellees.
   PER CURIAM.

Affirmed on the authority of W. T. Ratliff Company, Inc. v. Henley, Ala., 405 So.2d 141 (1981).

AFFIRMED.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    David C. HOLLAND v. Carolyn M. HOLLAND a/k/a Carolyn M. Dickerson.
    80-453.
    Supreme Court of Alabama.
    Nov. 6, 1981.

      Sandra Vinik of Markstein, Morris, Sweeney & Liles, Birmingham, for appellant.
    Roy J. Brown, Birmingham, for appellee.
   EMBRY, Justice.

In this action plaintiff seeks to collect one-half of the proceeds from defendant’s sale of certain residential property, pursuant to an agreement allegedly entered into by the parties.

The parties were divorced in 1974. The final decree of divorce incorporated an agreement between the parties which required plaintiff (wife) to execute a deed transferring the parties’ residential property to defendant (husband) within ten days of the agreement and to vacate the premises within 30 days thereafter. Plaintiff failed to transfer to defendant, or vacate, the property.

Approximately two years after the divorce, the husband’s attorney wrote a letter to his former wife by which the husband offered to divide the proceeds from a subsequent sale of the property equally with her if she would execute a deed to the property, in compliance with the final decree of divorce, by 9 August 1976. She failed to execute the deed within the stipulated time. However, on 12 August 1976, she did execute a warranty deed conveying her interest in the realty to defendant. Defendant accepted the deed and sold the property on 6 December 1979.

Thereafter, the former wife filed this action seeking among other things to collect one-half of the proceeds from the sale. David Holland, the former husband, counterclaimed seeking, among other relief, the amount of several child support payments previously made by him. He alleged that Carolyn Dickerson, nee Holland, the former wife, received these payments unlawfully by her failure to apprise him of their son’s employment, an event which under the terms of the final decree of divorce ended defendant’s duty to make child support payments.

In its final judgment, the trial court held that although the deed was executed three days later than the date specified in David Holland’s written order, he accepted the tardy performance of the act he had requested be done and was, therefore, es-topped from asserting the untimeliness of Carolyn’s performance. Accordingly, the trial court concluded, she was entitled to one-half of the net proceeds from the sale of the property; the amount of $15,662.21, plus interest. That amount was offset by judgment in favor of David for the sum of $675 on his counterclaim to recover child support payments, leaving Carolyn with a judgment against him for $16,163.69 and costs. All other relief sought by the parties was denied.

We find the first issue raised by David Holland to be dispositive of this appeal. He contends, correctly we conclude, that a final judgment or decree may not be modified or amended by a subsequent agreement between the parties.

A final judgment is a terminal decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself. All matters should be decided; damages should be assessed with specificity, leaving the parties with nothing to determine on their own. Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976). Accordingly, parties to a divorce decree may not change or modify the decree merely by an agreement between themselves. Mullis v. Caldwell, 50 Ala.App. 508, 280 So.2d 558 (1973).

The judgment of the trial court awarding Carolyn Holland Dickerson $16,-163.69 is due to be, and is hereby, reversed. She makes no issue on this appeal of the trial court’s finding that child support payments totalling $675 were wrongfully received by her. Accordingly, that finding of the trial court is affirmed and judgment is hereby rendered in favor of David Holland for $675.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

FAULKNER and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

Legal consideration is an essential ingredient of any contract. Assets Realization Co. v. Ganus, 25 Ala.App. 113, 141 So. 721 (1932). The agreement between the parties here had no substantial consideration. The plaintiff was under a duty, by virtue of a court order, to deed the house to the defendant. To induce this performance, the defendant proposed that if performance was made by August 9, 1976, then he would share the proceeds of the sale of the house with her. It is a well established principle that doing what one is already under a legal obligation to do is not sufficient consideration. Moore v. Williamson, 213 Ala. 274, 104 So. 645 (1925). While no consideration is needed for the modification of an execu-tory contract, Winegardner v. Burns, 361 So.2d 1054 (Ala.1978), this agreement was not a modification of a contract, but in fact a new agreement, subsequent to an order from the court, and thus required substantial legal consideration. The defendant here received no consideration. For this reason, I concur in reversing the trial court’s decision awarding Carolyn Holland Dickerson half of the proceeds from the sale of the property.

ALMON, J., concurs.


author: MADDOX, Justice.

text:
    Odie M. ZIRLOTT, George W. West, Marietta West, Truman W. Zirlott, Helen J. Zirlott, Vester Leon Brown, and Mildred Brown v. Vivian Z. RADCLIFF.
    80-308.
    Supreme Court of Alabama.
    Nov. 20, 1981.

      J. Gordon House, Jr., of Gordon & House, Mobile, for appellants.
    Mary Elizabeth McFadden of McFadden, Riley & Parker, Mobile, for appellee.
   MADDOX, Justice.

This is an appeal from a Mobile Circuit Court judgment for plaintiff Radcliff granting an easement over defendant Zir-lott’s property, establishing a boundary line between plaintiff’s and defendants’ lands, and permanently enjoining defendant Zir-lott from barricading or obstructing plaintiff’s way of access. We affirm.

Plaintiff owns a parcel of land in Mobile County which lies immediately west of defendants’ land, the exact location of the coterminous boundary being a subject of this suit. Defendant Odie Zirlott obstructed a roadway which runs over his lands that plaintiff and her predecessors in title have used as a sole means of ingress and egress for sixty years. Defendant Zirlott maintains he gave plaintiff permission to use the road for family and friends, but barricaded the road when he saw many different vehicles travelling the road.

Judge Braxton Kittrell conducted a three-day bench trial. Forty-three exhibits, surveys and maps, along with testimony of fifteen witnesses, were included in the trial record. The trial judge established the boundary line in dispute, granted a right of way to plaintiff over defendant Zirlott’s property for means of ingress and egress, ordered defendant to remove the barricade, and permanently enjoined him from obstructing the roadway. Costs were taxed one-half to the plaintiff and one-half to all defendants. The defendants filed a motion to set aside the judgment, which was denied. The defendants filed notice of appeal. A stay of judgment and supersedeas bond were granted.

It is well settled that the findings of fact of a trial court which hears the evidence ore tenus will not be disturbed on appeal unless those findings are plainly and palpably erroneous. Sandlin v. Sanders, 360 So.2d 977 (Ala.1978); Davis v. Linden, 340 So.2d 775 (Ala.1976). The trial judge had the opportunity to observe the demean- or of the witnesses and it is the duty of the trial judge sitting without a jury to resolve conflicting evidence by relying on his personal observations. In this case, the trial judge examined numerous exhibits and heard testimony from several witnesses before he rendered judgment.

We do not think the findings of fact made by the trial judge are clearly and palpably wrong. Neither do we think that his conclusions of law, based on those findings, are incorrect. The judgment entered, therefore, is due to be affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    CHEROKEE INSURANCE COMPANY v. Melva O. FRAZIER, et al.
    80-324.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    Cooper C. Thurber and Victor H. Lott, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
    Abram L. Philips, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellees.
   SHORES, Justice.

This is an appeal from a declaratory judgment which held that the policy of insurance issued by appellant Cherokee Insurance Company (hereinafter referred to as Cherokee) to appellees Frank R. Warren and Joanne C. Warren, d/b/a Warren Properties, did provide coverage with regard to the allegations contained in a separate pending lawsuit.

On May 6,1977, Cherokee issued a special multi-peril policy of insurance to Frank R. Warren and Joanne C. Warren covering the large 200-unit family apartment complex known as Warren Village, which is owned by the Warrens and is located off Airport Boulevard in Mobile, Alabama. In pertinent part, coverage under the policy was conditioned upon compliance with the following standard provision:

D. INSURED’S DUTIES IN THE EVENT OF OCCURRENCE, CLAIM OR SUIT:
1. In the event of an occurrence, a written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances
thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the Company or any other authorized agent as soon as practicable.
2. If claim is made or suit is brought against the insured the insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.

The policy further provided:

G. ACTION AGAINST COMPANY: No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy. . . .

On May 13, 1978, a severe downpour in the Mobile area caused flooding and water damage to the Fraziers’ property, which was coterminous with Warren Village. Shortly thereafter, on May 16, 1978, the Fraziers, through their attorney, wrote to Warren Properties, in care of the Warren Village Apartments, and advised that “substantial damage was done to the Frazier’s property caused by water coming from your property” during the recent heavy downpour. The letter further encouraged the Warrens “to take appropriate action immediately to see that the problem does not re-occur” and requested the Warrens to advise the Fraziers as to their “plans to pay the Fraziers for the damage done their property.”

There was testimony showing that the Warrens advised Cherokee of the floods and certain claims for property damage made by the Warrens’ tenants. Cherokee sent an adjuster to the property to investigate. The adjuster was given information as to the cause of the damage and the fact that it related to the overflow of surface waters and the drainage problems. However, Cherokee was not notified of the Fraziers’ letter during this period.

On August 13, 1978, there was another severe downpour which caused additional damage to the Frazier property as a result of an allegedly inadequate drainage system serving the Warrens’ property. Once again, on August 14, 1978, the attorney for the Fraziers wrote Mr. Colbourne, general manager of Warren Properties, advising of the incident and referring to his earlier letter of May 16. After a criticism of Warren’s drainage system, the August 14 letter requested Colbourne to “respond immediately as to steps which your company intends to take to correct this situation.” The letter ended with the following demand: “Failing to hear from you within the next ten days, we have been instructed to proceed with all available legal remedies in an effort to see that this situation does not continue and to seek damages for the recent problems.”

There was another letter of December 15, 1978, referring to a meeting between Mr. Colbourne’s brother and the Fraziers’ attorney, and it also advised of additional damage to the Fraziers’ driveway and concluded with the request “that this condition be remedied immediately at your expense and that you advise us of appropriate steps taken to correct the problem in general.”

The evidence showed that during this entire period of time there had been numerous conversations between Colbourne and the Fraziers’ attorney. In early 1979, the Warrens engaged a local attorney to negotiate with the City of Mobile regarding the drainage problem. They also hired engineers to study the problem, and the results of that study were made available to any interested parties. The Warrens and other neighbors met with the city on a periodic basis, and while neither the Fraziers nor their attorney attended these meetings, the Warrens kept the Fraziers abreast of matters through contacts with the Fraziers’ attorney at least once a month. Mr. Colb-ourne testified in effect that Cherokee had not been notified because he had considered his conversation with the Fraziers’ attorney as involving an overall solution to the drainage problem rather than a claim for damages.

On June 6, 1979, the Fraziers filed suit in the circuit court of Mobile County seeking compensatory damages for the injuries suffered by the Fraziers and their property as well as punitive damages and a temporary and permanent injunction against the defendants therein restraining them from causing any additional damage to their property.

The Warrens were served with the summons and complaint on June 14, 1979, and forwarded this process to their insurance agent by letter dated June 21, 1979. After reviewing the situation, Cherokee sent a reservation of rights letter to the Warrens, dated June 29, 1979, and shortly thereafter filed its complaint for declaratory judgment in the circuit court to determine the coverage question.

The cause was tried without a jury, and the trial court in its decree noted:

During the course of trial Cherokee also conceded that it had timely notice of the occurrence, the overflowing drainage system, and timely notice of the commencement of the lawsuit against Warren. More specifically, therefore, the only issue for decision by the Court was whether or not Cherokee can avoid policy coverage upon its contention that Warren failed to give proper notice of the claim ultimately embodied in the [Frazier] lawsuit.

The court found that the policy was valid and that Cherokee was obligated to defend the lawsuit and was liable to pay any judgment that might be rendered against the Warrens.

Cherokee’s motions for reconsideration of judgment or, alternatively, for new trial were denied. This appeal followed. We affirm.

In its brief, Cherokee raised three issues which can be merged into a single question: Did the trial court err to reversal by its determination that the notice condition of the insurance policy was not breached by the Warrens? Cherokee asserts that it did. We cannot agree.

First of all, it is long settled in this state that where conflicting evidence has been taken ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusions unless clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence. Cougar Mining Co. v. Mineral Land and Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981); Raidt v. Crane, 348 So.2d 358 (Ala.1977); Adams Supply Co. v. United States Fidelity and Guaranty Co., 269 Ala. 171, 176, 111 So.2d 906 (1959).

The policy in this case required “immediate” forwarding of any demand, notice, summons, or other process. In Allstate Insurance Co. v. Fogg, 293 Ala. 155, 300 So.2d 819 (1974), this Court held that a requirement in a policy for “immediate” notice means that notice must be given with reasonable dispatch and within reasonable time in view of all the facts and circumstances of a particular case. Therefore, the determinative question is not whether the actions of the Warrens were immediate, but rather whether the delay in the notice was reasonable under the circumstances.

The two factors to be considered in the determination of reasonableness of delay are the length of the delay and the reasons for the delay. Southern Guaranty Insurance Co. v. Thomas, 334 So.2d 879 (Ala.1976). Also, where conflicting inferences may reasonably be drawn from the evidence, the question of the reasonableness of a delay in giving notice is a question of fact for the factfinder. See, Southern Guaranty Insurance Co. v. Thomas, supra; Provident Life and Accident Insurance Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934). Conflicting inferences concerning the reasonableness of a delay may sometimes be drawn where the insured offers evidence of mitigating circumstances. Southern Guaranty Insurance Co. v. Thomas, supra.

After reviewing the record in this case, we cannot find that the trial court was clearly erroneous in its determination that it could not find “as a matter of law that a reasonable and prudent man would have acted any differently than did the Warrens under the circumstances of this case.” Therefore, the trial court is affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Robert Edward FRITZ, Jr. v. Ruby Louise SALVA, as Administratrix of the Estate of Johnny Salva.
    80-339.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    Y. D. Lott, Jr., and A. Holmes Whiddon, Mobile, for appellant.
    Robert F. Clark, Mobile, for appellee.
   JONES, Justice.

Plaintiff/Appellee, Ruby Salva, filed suit against Defendant/Appellant, Robert Fritz, for the wrongful death of her husband, John Salva. The jury returned a verdict in favor of the Plaintiff for $100,000.00. The trial court denied the Defendant’s motion for a new trial and he appealed. We affirm.

John Salva, while pouring gasoline into his disabled truck on the shoulder of the highway, was struck and killed by a car driven by the Defendant Fritz. Witnesses testified they saw Defendant’s car swerve toward Salva and then accelerate after hitting Salva. Defendant’s car continued some distance before Defendant returned to the scene of the incident where, according to the witnesses, he staggered, appeared to be drunk, and smelled of alcohol. One of the witnesses further testified that he maintained a continuous surveillance and custody of Defendant at the scene until the arrival of the police only a few minutes later.

Of the four issues raised by Defendant on appeal, two were sufficiently preserved and presented for our review.

I.

Defendant alleges that the results of the photoelectric intoximeter test (“breath test”) were unreliable, and thus inadmissible, for two reasons: 1) a lack of continuous custody of Defendant during the approximately one hour and ten minutes interval between the time of the incident and the time the test was administered by the investigating officer; and 2) the existence of variable and individual tolerances for alcohol. There is no merit in these arguments.

Uneontroverted evidence established that Defendant was under continuous surveillance from the time of the incident and that he was under continuous custody and control from the time he left his car at the scene until after the administration of the P.E.I. test. Unquestionably, under these circumstances, one could reasonably conclude that there was no break in the chain of custody and control of Defendant. Additionally, the reliability of the proffered evidence was not so affected by the “time span” challenge to render it inadmissible. See McGhee v. State, 365 So.2d 116 (Ala.Cr. App.1978); cert. denied, 365 So.2d 123 (Ala.1978).

As to the second prong of Appellant's challenge to the admissibility of the P.E.I. test, we note that the test was administered by a trained, qualified and certified officer one hour and ten minutes after the occurrence, and revealed an alcohol content of .15 per cent in Defendant’s blood. Under the provisions of Code 1975, § 32-5A-194(b)(3), “[i]f there were at [the time of the incident] 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcohol.” Appellant, however, makes the naked assertion that “[i]t is a well known fact that the same quantity of alcohol in the blood does not provide in all persons the same degree of perceptible divergence from the norm.” We find this ground of challenge, absent any evidentiary support therefor in the record, inadequate as a matter of law.

II.

Defendant challenges the jury’s award of $100,000.00 as excessive. This State’s' rule with regard to an award of punitive damages has been well-stated by this Court:

“While juries, in the assessment of punitive damages are given a discretion in determining the amount of the damages, this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion. Due regard should be had to the necessity of preventing similar wrongs. Briefly, the punishment by way of damages is intended not only to punish the wrong doer, but also, to deter others similarly minded. [Cites omitted.]”

Magnusson v. Swan, 291 Ala. 151, 155, 279 So.2d 422 (1973). Nothing in the record before us indicates that the verdict was excessive nor that the members of the jury, after hearing the testimony of all of the witnesses, abused their discretion in analyzing the issue of damages. “Moreover, the denial by the trial Court of this ground for a new trial serves to strengthen the validity of the jury verdict.” Beloit Corporation v. Harrell, 339 So.2d 992, 999 (Ala.1976). We therefore affirm.

AFFIRMED.

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


text:
    C. David TUCKER, et al., v. CITY OF ROBERTSDALE, a municipal corporation, et al.
    No. 80-354.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellants.
    Edward S. Sledge, III and M. Mallory Mantiply of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
   JONES, Justice.

This appeal is from the grant of summary judgment in favor of the Defendants, City of Robertsdale and certain named city officials. We affirm.

The two basic legal questions presented concern 1) the procedure which a municipality must use in its decision making, and 2) the theories upon which a municipality may be held liable when it acts under legislative authorization.

The facts are uncomplicated. Representatives of a real estate development company appeared before the Robertsdale planning commission with plans for the construction of an apartment complex on a tract of land outside the city limits, to be financed by the Farmers Home Administration. This delegation requested that the City extend utility services to the site. The mayor, a member of the planning commission, informed the representatives that the City would furnish utilities.

At the next regular meeting of the planning commission, a number of residents near the apartment complex expressed opposition to the proposed complex. Nevertheless, the commission voted to confirm in writing the tentative approval granted earlier, with certain conditions not relevant here, and this written confirmation was sent to the developers. About four months later, the mayor informed the developers by letter that the proposed apartments were within the City’s zoning ordinances for the area, and had been approved by the planning commission and the city council. He added that the City’s utilities would be furnished as needed.

The proposed construction was approved by the South Alabama Regional Planning Commission, and later, both the City and County issued building permits. Plans and specifications for the complex’s utilities were approved by the City’s engineers.

The plaintiffs, as taxpayers of Defendant City, instituted this action for a declaratory judgment and injunctive relief to prevent the City of Robertsdale from extending its water and sewer systems outside its corporate limits to the apartment complex which it characterized as a “low income” housing project. The complaint contained two counts: Count One alleges that the City agreed to furnish water and sewer services to the development site outside the city’s corporate limits without having adopted a resolution making a determination that such extension was necessary or expedient. Count Two alleges that Plaintiff Sam Freeman and wife, as taxpayers of Baldwin County and property owners outside the City and near the development in question, would suffer property damage if the City were permitted to pursue its proposal to furnish water and sewer service to the development.

While acknowledging the City’s authority to extend its water and sewer service beyond the city limits pursuant to Code 1975, §§ 11-50-56 and ll-81-161(b), Plaintiffs earnestly contend that a municipality may not extend such services without first adopting a resolution finding that it is necessary or expedient to do so. This contention is two pronged: First, that the formal action of the City must rise to the level of a “resolution,” and, second, that such resolution must contain an express finding of necessity or expediency.

In rejecting the first aspect of this contention, we need not disavow Plaintiffs’ insistence upon the need for some fonnal entry upon the city council’s minutes. Here, that formal action took the form of a “motion,” duly made, acted upon, and recorded. While our case law has drawn a rather sharp distinction between the term “ordinance” and the terms “resolution” and “motion,” the latter two terms are used interchangeably. Rushing v. City of Georgiana, 374 So.2d 253 (Ala.1979). There is no statutory requirement for a “resolution”; and, consequently, we hold that the entry upon the minutes of the city council’s meeting reflecting its approval of the request for extension of its water and sewer service beyond the city limits constitutes an appropriate procedure to effectuate its decision-making process.

The second aspect of Plaintiffs’ contention—the lack of the finding of “necessary and expedient”—is likewise without merit. The language of the authorizing statute (§ 11-50-52)—“. . . whenever in the opinion of the city or town it may be necessary or expedient to [extend its sewer system]”—contains not words or restriction, but words of discretion. This statutory language authorizes the City’s exercise of broad authority to extend its sewer service outside its own boundaries. That such extension “in the opinion of the city . . . may be necessary or expedient” is implicit in the action taken by the City to so expand its services; and the absence of an express finding to this effect is of no consequence in the instant case.

Citing Section 235 of our State Constitution (eminent domain), Plaintiffs contend that the City’s extension of its water and sewer service to serve “low income” housing constitutes an effective taking of their property without just compensation. Although Plaintiffs do not so characterize it, they seek to invoke the “indirect taking” or “inverse condemnation” doctrine. No citation of authority is necessary to demonstrate that the instant facts fall far short of the requisite circumstances giving rise to any cognizable legal theory of relief pursuant to the constitutional proscription against governmental taking without just compensation.

AFFIRMED.

TORBERT, C. J., and MADDOX, EM-BRY and ADAMS, JJ., concur.


text:
    Addie FISHER v. Kenneth HIGGINBOTHAM, et al.
    80-389.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    Isaac P. Espy of Tucker, Gray & Espy, Tuscaloosa, for appellant.
    Robert V. Wooldridge, III of Wooldridge & Wooldridge, Tuscaloosa, for appellees.
   SHORES, Justice.

This appeal is from a decree in an action in which the plaintiff-appellant sought to enjoin the defendants from using a road which traverses the plaintiff’s property and leads to that of the defendants. The complaint also asked the court to determine the respective rights of the parties to use the road and specifically sought a determination that only the plaintiff had a right to use the road.

After a trial, the court entered its decree finding all issues in favor of the defendants. Plaintiff appealed. We affirm.

There is evidence in the record which would permit a finding that the defendants had acquired a private easement by prescription to this roadway, thus justifying denial of the relief sought by the plaintiff. The evidence shows that the plaintiff acquired her five-acre tract in 1937. Defendant R. L. Oglesby acquired two acres adjacent to and west of the plaintiff’s property in 1939 and began to use the roadway over the plaintiff’s property. This roadway was the only access to Oglesby’s property. From the late thirties to the present, almost fifty years, R. L. Oglesby, his family, assigns, and successors have used this road continually as their means of ingress to and egress from the Oglesby property.

The evidence was disputed on the issue of permissive user. The defendants’ evidence would support a conclusion that their use was without the plaintiff’s permission and was adverse to her title. The plaintiff contended the use by the defendants was by permission. The trial court resolved the issue in favor of the defendants. Although Alabama indulges a presumption that the use of a roadway across the lands of another is permissive, the presumption is rebuttable, and the evidence in this case, if believed by the factfinder, supports the conclusion that the presumption of permissive use was overcome.

The controlling law in this state in a case like this is stated in West v. West, 252 Ala. 296, 40 So.2d 873 (1949), cited with approval in Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974):

Four principles stated or quoted in West are applicable here:

1. “A private easement is not established merely by the use of the lands of another for a period of twenty years or more. Such use must have been adverse to the owner of the premises over which the easement is claimed, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. (Citations omitted.)”
2. To establish a private easement, the prima facie sufficiency of the proof is clearly different from that necessary to establish a dedication to the public use.
3. To create such an easement, there must be evidence that the use was adverse to the owner. Such nature of use will not be presumed, but evidence must be such that its adverse nature is a proper inference.
4. The presumption is that the user is permissive rather than adverse, unless it is shown otherwise.
Another principle is that a permissive possession does not ripen into title adverse to the owner unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. Smith v. Persons, 285 Ala. 48, 228 So.2d 806; White v. Williams, 260 Ala. 182, 69 So.2d 847.

293 Ala. at 214-215, 301 So.2d 168.

In Cotton v. May, supra, this Court affirmed the trial court, noting that there was evidence to support a finding that the use was permissive. Here we affirm because there was evidence to support a finding that it was not. Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969), is a case similar to the one before us. In affirming the trial court’s finding that the use was adverse, the Court said:

The main thrust of appellants’ argument in brief is that the use of the road was permissive, that the use was not adverse and it was not exclusive. Appellants rely on West v. West, 252 Ala. 296, 40 So.2d 873, where we cited numerous authorities for the principle that a private easement is not established merely by the use of the lands of another for a period of twenty years or more. Such use must have been adverse to the owner of the premises over which the easement is claimed, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. We also noted that we follow the minority rule applicable to private easements in that there must be evidence that the use was adverse to the owner; that such nature of use will not be presumed, but the evidence must be such that its adverse nature is a proper inference.
Appellants contend that the use of the road by appellees and their predecessors in title was neither under claim of right or adverse. The evidence, or the inferences therefrom, reveal that for more than twenty years, the occupants of dwellings on appellees’ land used the road to haul their belongings in and out, that one of them had paid one of the appellants to pull his automobile out of mu-dholes three or four times with a tractor when it was stuck on the road, that their children used the road to go to and from school, that their visitors used the road when they used their automobiles to visit them and that the road was the only means of vehicular ingress and egress. We cannot agree that there was no claim of right when all of the above-mentioned activity took place on the only roadway leading to and from dwellings for over twenty years. Certain it is that the owners of appellants’ land through the years had actual or presumptive knowledge of the use and that the use had been made for more than twenty years prior to the purchase of the land by appellants.

284 Ala. at 256-257, 224 So.2d 613.

The defendants produced evidence of similar use in this case extending over several decades, and we cannot say that the decree of the trial court was plainly erroneous or manifestly unjust. Belcher v. Belcher, supra.

The decree appealed from is affirmed.

AFFIRMED.

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


text:
    COMMUNITY ACTION AGENCY OF HUNTSVILLE, MADISON COUNTY, INC., a Non-Profit Corporation v. STATE of Alabama, et al.
    80-521.
    Supreme Court of Alabama.
    Nov. 20, 1981.

      Patrick H. Graves, Jr., of Smith, Huckaby & Graves, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr. and Bill Thompson, Counsel, Dept, of Revenue and Asst. Attys. Gen., for appellees.
   MADDOX, Justice.

This case involves the cancellation by the Alabama Department of Revenue of the exemption of a non-profit corporation from the payment of Alabama state sales and use taxes.

Community Action Agency of Huntsville, Madison County, Inc., filed in the Circuit Court of Montgomery County, Alabama, a complaint and asked the trial court to enjoin the State of Alabama, et ah, from cancelling its sales and use tax exemption. All facts and issues were stipulated by the parties. From these facts, the trial court found the Community Action Agency was not exempt from the payment of state sales and use tax on purchases of tangible personal property. The Community Action Agency appealed.

The primary issue presented is whether or not the purchases of tangible personal property made by the Community Action Agency are subject to Alabama sales and use tax. In deciding this issue, we must resolve several underlying issues, viz:

Is the Community Action Agency an agency of the federal, state or local government and thereby exempt from sales and use tax under the doctrine of implied government immunity, or does the Community Action Agency perform its services, not as a governmental agency, but as an independent subcontractor which would not be exempt from sales and use tax?

Is the Community Action Agency an “educational institution” within the purview of Code of Alabama 1975, §§ 40-23-4(15) and 40-23-62(16), and thereby exempt from sales and use tax?

Are the sales made to the Community Action Agency non-taxable “wholesale sales,” or are they “retail sales” which are subject to taxation?

A final issue is whether or not the cancellation of the certificate of sales and use tax exemption which the Department of Revenue had previously issued to the Community Action Agency violates that agency’s due process rights, and whether the Revenue Department is estopped from withdrawing this exemption certificate, because it has waived or lost, by laches, its right to levy such taxes.

It is well settled that eligible state and federal government agencies are exempt from Alabama sales and use tax as provided for by Code of Alabama, 1975, §§ 40-23-4(11) and 40-23-4(17). Such agencies may also be exempt under the doctrine of government immunity. The first issue thus becomes whether or not the Community Action Agency is in fact an “agent” of the government within the purview of these statutes on the doctrine of immunity.

The Community Action Agency of Huntsville, Madison County, Inc., was organized as authorized by the Economic Opportunity Act of 1964, 42 U.S.C. § 2701 et seq., as amended, as a non-profit corporation under the laws of the State of Alabama for the public, educational and charitable purposes of eliminating poverty in Madison County, Alabama. The Community Action Agency sets forth several assertions in support of its contention that it is, in fact, an agency of the government. For instance, it cites that it is totally funded and heavily regulated by the federal government. In addition, it contends that “the purchases made by the Community Action Agency, are owned by the United States Government, not the Community Action Agency,” and that the economic burden and legal incidence of the sales tax paid by the Community Action Agency is directly upon the United States Government. In addition to these assertions, the Community. Action Agency cites a 1974 case from the Circuit Court of Montgomery County wherein that court held that A.R.A. Services, which the Community Action Agency states was identical in funding, organization and programs to itself, was an educational organization operating as an agency of the federal government, that the economic burden and legal incidence of a sales tax was directly upon the United States or its agents, and, therefore, A.R.A. Services was exempt from Alabama sales tax. A.R.A. Services, Inc. v. State, Civil Action Nos. 38833 & 38833V2, Circuit Court of Montgomery County (1974), (unpublished).

In response to these assertions, the Revenue Department contends that the holdings by the Circuit Court in A.R.A. Services, Inc. v. State, (unpublished) is not sound, and urges this Court to adopt the holding of the South Carolina Supreme Court in the case of A.R.A. Services, Inc. v. South Carolina Tax Commission, 271 S.C. 146, 246 S.E.2d 171 (1978), cert. denied, 439 U.S. 1048, 99 S.Ct. 725, 58 L.Ed.2d 707 (1978).

In the South Carolina ease, the status of A.R.A. Services as an agent of the federal government was involved, although not as the primary issue. In that case the South Carolina court held that A.R.A. Services was subject to the state sales tax. It stated:

ARA entered into a written contract with each of the local sponsors which were referred to in the contracts as “purchasers.” The preamble of the contract stipulated that “. . . purchaser is desirous of purchasing meals for consumption by children under the Special Summer Service Program for Children of the United States Department of Agriculture . . . . ” (Emphasis added.) No federal agency was a party to the contract. The Department of Agriculture entered into a separate reimbursement contract with the local sponsors. [Emphasis added.]

A.R.A. Services, Inc. v. South Carolina Tax Commission, supra pp. 171, 172.

It is uncontested by either party that the Community Action Agency is identical, in characteristics which are pertinent to this decision, to the A.R.A. Services, Inc. which was involved in the South Carolina case. The reasoning and determinations of the South Carolina Supreme Court are sound and after carefully considering the facts in this case, we conclude that the Community Action Agency is not an agent of the federal, state or local government. We reach this determination because of several reasons. The Community Action Agency does not make purchases in the name of the federal government or any other government, but, rather, in its own name. The language in the contracts between the Community Action Agency and the various governments they deal with is indicative of arm’s-length transactions between two independent parties. The Community Action Agency has complete control over the money it receives and can use it in any way it deems appropriate in order to fulfill its contractual duties. No government is considered to own the items purchased by the Community Action Agency; the ownership of these items is, instead, in the Community Action Agency itself until those items are given away or otherwise used. Only the Community Action Agency is liable for payment for the items it purchases and there is no evidence showing that the federal government or any government is obligated in any way to pay for those purchases.

In light of these facts we are convinced that the Community Action Agency does not perform its services as a governmental agency, but, as an independent contractor which is hired by various governments to perform certain services. This being our conclusion, the following statement from the case of United States v. Boyd, 378 U.S. 39, 84 S.Ct. 1518, 12 L.Ed.2d 713, becomes applicable.

The Constitution immunizes the United States and its property from taxation by the States, M’Culloch v. Maryland [7 U.S. 316], 4 Wheat. 316 [4 L.Ed. 579], but it does not forbid a tax whose legal incidence is upon a contractor doing business with the United States, even though the economic burden of the tax, by contract or otherwise, is ultimately borne by the United States. James v. Dravo Contracting Co., 302 U.S. 134 [58 S.Ct. 208, 82 L.Ed. 155]; Graves v. New York, 306 U.S. 466 [59 S.Ct. 595, 83 L.Ed. 927]; Alabama v. King & Boozer, 314 U.S. 1 [62 S.Ct. 43, 86 L.Ed. 3], p. 44, [84 S.Ct. p. 1521].

In addition, this Court stated in Associated Contractors v. Hamm, 277 Ala. 500, 172 So.2d 385 (1965):

Under these circumstances we are abundantly convinced that Curry v. United States et al., 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9, is the controlling authority in this case. In that case (which is a companion case to State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3), the question was whether by a cost-plus contract the contractors were immune from the use tax imposed by the state because the materials with respect to the use of which the tax was assessed were ordered by the contractors and used by them in performance of their contract with the government. There the contractor opposed the tax on the ground that it was in effect an effort by the state to tax the federal government, which by the terms of the contract bore the ultimate cost. The Supreme Court of the United States held that:
“* * * we think that the contractors, in purchasing and bringing the building material into the state and in appropriating it to their contract with the Government, were not agents or instru-mentalities of the Government [a contention made in the case at hand]; and they are relieved of the tax to which they would otherwise be subject, by reason of the fact that they are Government contractors. If the state law lays the tax upon them rather than the individual with whom they enter into a cost-plus contract like the present one, then it affects the Government, like the individual, only as the economic burden is shifted to it through operation of the contract. * * the Constitution, without implementation by Congressional legislation, does not prohibit a tax upon Government contractors because its burden is passed on economically by the terms of the contract or otherwise as a part of the construction cost to the Government.”

p. 388.

The second issue presented in our determination of whether the Community Action Agency should be afforded tax exempt status with regard to Alabama state sales and use tax is presented by the Community Action Agency’s contention that it is an “educational institution” under the purview of Code of Alabama 1975, §§ 40-23-4(15) and 40-23-62(16). Section 40-23-4(15) exempts from sales tax “the gross proceeds of the sale or sales of tangible personal property to county and city school boards, independent school boards and all educational institutions and agencies of the state of Alabama, the counties within the state or any incorporated municipality of the state of Alabama.” Section 40-23-62(16) exempts from use tax “tangible personal property stored, used or consumed by county and city school boards, independent school boards and all educational institutions and agencies of the state of Alabama, the counties within the state or any incorporated municipality of the state of Alabama.”

At the outset, we take note of the well known rule of construction that “exemptions from taxation, whether statutory or constitutional, are to be strictly construed, against the exemption and in favor of the right to tax, and that no person or property is to be exempted unless the intention to exempt such person or property clearly appears in some statute or constitutional provision.” Brundidge Milling Company v. State, 45 Ala.App. 208, 210, 228 So.2d 475 (1969); State v. Bridges, 246 Ala. 486, 21 So.2d 316 (1945); 159 A.L.R. 678. Furthermore, it has long been the rule that one seeking an exemption from taxation assumes the burden to clearly establish the right, and that in all cases of doubt as to legislative intention, the presumption is in favor of the taxing power. Brundidge Milling Company v. State, supra, Title Guarantee Loan and Trust Co. v. Hamilton, 238 Ala. 602, 193 So. 107 (1940); Curry v. Reeves, 240 Ala. 14, 195 So. 428 (1940).

The Community Action Agency offers no proof that it is an educational institution within the purview of these statutes, except that it is involved in a program that provides school lunches to underprivileged children. We are not convinced that the legislature in providing these tax exemptions for “educational institutions” intended to include organizations such as the Community Action Agency which merely provide a service for the schools. We find nothing in the evidence, or in the Agency’s brief and arguments, which shows that the Agency met its burden to overcome the presumption in favor of the taxing authority-

The final issue involved in deciding whether the purchases made by the Community Action Agency are subject to Alabama sales and use tax requires us to determine if the sales made to the Agency are non-taxable “wholesale sales” or taxable “retail sales.”

Code of Alabama, 1975, § 40-23-1(a)(9)(a), defines “sale at wholesale” as follows:

A sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale. . . .

In its brief, the Community Action Agency offers the following argument to show that the sales made to the Community Action Agency come within this statutory definition of wholesale sales:

All items purchased by the Community Action Agency are items which are not consumed by the Community Action Agency but merely passed on to the needy, disadvantaged and underprivileged of Madison County, through the various federal programs. The flow of tangible goods through the Community Action Agency involves two distinct “sales”, the first from the seller to the Community Action Agency; and the second from the Community Action Agency to the recipients of the services. The consideration for the first sale flows from the Community Action Agency to the seller. The consideration from the second sale flows from the Federal Government to the Community Action Agency, since recipients do not pay for the benefits received. In most of the programs the Community Action Agency first gives benefits to the recipients and then is reimbursed by the funding organizations. Stipulation, p. 3. Both sales fit the code definitions of sale. It is not necessary for the recipients to give consideration for a sale to be present. The only requirement is that consideration is to have flowed to the Community Action Agency. The source of the consideration here is a third party, the federal government. Therefore, the sale from the seller to the Community Action Agency was a sale for resale. See dissent, A.R.A. Services, Inc. v. South Carolina Tax Commission, 271 S.C. 146, 246 S.E.2d 171, 173 (1978).

Contrary to this position is the holding in A.R.A. Services, Inc., v. South Carolina Tax Commission, supra, wherein the South Carolina Supreme Court stated:

We think that the lower court erred in holding that “. . . ARA’s sales were sales at wholesale and that . . . the sales tax was erroneously assessed.” It was the reasoning of the lower court that: “The sponsor, in turn, sold the meals to the consuming children or to the federal agency through a program of reimbursement.”
The meals were never sold by the sponsors to the children. The entire record indicates that everyone involved knew that this was a give-away program.

It is apparent that no sale was ever contemplated or was ever made by the sponsors to either the children or the Department of Agriculture. Accordingly, the last transaction for a consideration involved ARA as vendor and the sponsors as vendees. Code § 12-35-170 defines “wholesale sale” and “sale at wholesale” as follows:

“The terms “wholesale sale” and “sale at wholesale” mean a sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers or other wholesalers for resale, and do not include a sale by wholesalers to users or consumers, not for resale.” (Emphasis added.)

ARA argues that there were two distinct sales of the meals. It is maintained that ARA sold the meals to the sponsors, who in turn sold the meals to the children, and that the consideration for the sale from the sponsors to the children was provided by the Department of Agriculture. We are of the opinion that the fact that the Department of Agriculture reimbursed the sponsors for their costs does not convert the giving of meals from the sponsors to the children into a sale. The Department of Agriculture never owned the meals, and the sponsors were obligated to pay for them regardless of whether they were ever reimbursed by the Department,

p. 172.

Taking note of the stipulated fact in this case that the Community Action Agency receives no consideration from the recipients of benefits and the almost identical wording of the statutory definition of “wholesale sales” under the South Carolina Code and the Alabama Code, we are inclined to agree with the majority in A.R.A. Services, Inc. v. South Carolina Tax Commission, supra. The Community Action Agency does not sell any of the goods it purchases; it uses them to fulfill its obligations with the government. Whether the government’s payments to the Community Action Agency come as a grant prior to the time the purchases are made by the Community Action Agency, or come as a reimbursement after the purchases are made, makes no difference. Only one sale transpires, and that sale is a taxable retail sale under the Code of this state.

The contention of the Community Action Agency that the doctrines of due process and estoppel prevent the Revenue Department from collecting the tax in this case is without merit. The law of estoppel in tax matters is well settled and is contrary to the position taken by the Community Action Agency. See State v, Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So.2d 426 (1953); Ala.Const. 1901, Art. IV, § 100; Boswell v. Abex Corporation, 294 Ala. 334, 317 So.2d 317 (1975).

Based upon the foregoing, the purchases of tangible personal property by the Community Action Agency are subject to Alabama sales and use tax and, therefore, the findings and rulings of the trial court are to be affirmed.

AFFIRMED.

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

      . The purchases by the Community Action Agency, which are the subject of this lawsuit, are made by the Community Action Agency and the items purchased are owned by the Community Action Agency until such time as they are given away or used up by the Community Action Agency, if that be the case. It would be the testimony of Edwin S. Hill, Executive Director of the Community Action Agency that all property, e.g., automobiles, bookcases, desks, etc., which is not used up or given away by the Community Action Agency in furtherance of its specific programs, would, in the event of dissolution of the Community Action Agency, inure to the benefit of the United States Government.


text:
    FIRST STATE BANK OF ALTOONA v. Ray D. BASS.
    80-722.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    S. P. Keith, Jr., of Keith, Keith & Keith, for appellant.
    Maury D. Smith, Sterling G. Culpepper, Jr., and William P. Cobb, II, of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   SHORES, Justice.

This is an appeal from the granting of a motion to dismiss on the grounds that any claim against the defendant, Ray D. Bass, in his capacity as state highway director, was barred by the doctrine of sovereign immunity. The trial court in its order set out the following facts:

“1. On or about October 22, 1976, Southeastern Services, Inc., entered into a contract with the State of Alabama Highway Department whereby the State of alabama Highway Department was to pay a certain sum of monies to Southeastern Services, Inc., for the performance of duties.
“2. On or about November 30, 1976, Southeastern Services, Inc., pledged, sold, assigned, transferred and set over to the plaintiff [First State Bank of Altoona] all sums of money due or to become due from the State of Alabama State Highway Department under and by virtue of the contract of October 22, 1976. Ray D. Bass, as Director of Alabama State Highway Department accepted and agreed to the terms of that assignment on or about November 30, 1976. This assignment was to secure a note obligation of Southeastern Services, Inc., to First State Bank of Altoona dated December 1, 1976.
“3. On or about August 16, 1977, Southeastern Services, Inc., entered into a contract with the State of Alabama Highway Department whereby the State of Alabama Highway Department was to pay a certain sum of monies to Southeastern Services, Inc., for the performance of duties.
“4. On or about August 16, 1977, Southeastern Services, Inc., pledged, sold, assigned, transferred and set over to the plaintiff all sums of money due or to become due from the State of Alabama Highway Department under and by virtue of the contract of August 16, 1977. Ray D. Bass, as Director of Alabama State Highway Department accepted and agreed to the terms of that assignment on or about August 16, 1977. This assignment was to secure a note obligation of Southeastern Services, Inc., to the plaintiff dated March 30, 1979.
“5. Construing the allegations of the complaint most favorably for plaintiff, defendant at some point either failed or refused to pay the proceeds of the contract to plaintiff.
“The complaint seeks damages against Bass in his individual capacity, however, it is agreed that in executing the documents . . . Bass at all times acted in his official capacity as Director of Alabama State Highway Department.”

The defendant filed his motion to dismiss on April 24, 1981, and on June 2, 1981, the court entered its order based on “defendant’s motion to dismiss, documents submitted at the request of the court on the hearing on said motion, and argument of counsel.” The plaintiff, First State Bank of Altoona, appeals. We affirm.

The single issue on this appeal is whether this action constitutes a suit against the State of Alabama and, as such, would be barred by Ala.Const. 1901, Art. I, § 14.

The controlling law in this area has been ably discussed by Justice Almon in Milton v. Espey, 356 So.2d 1201 (Ala.1978), wherein he stated:

The issue is whether this is a suit against the State, which is barred by Section 14 of the Constitution of Alabama. ...
Section 14 of the Constitution not only prevents a suit against the State, but against its officers and agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the State. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972); Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963). The prohibition of Section 14 cannot be circumvented by suing the official or agent individually. See Wallace v. Malone, 279 Ala. 93, 182 So.2d 360 (1964).
In determining whether, an action against a State officer or agent is in fact a suit against the State, the court considers the nature of the suit or the relief demanded. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., supra; State v. Norman Tobacco Company, 273 Ala. 420, 142 So.2d 873 (1962).

356 So.2d at 1202.

It is uncontroverted that Bass at all times acted in his official capacity as director of the Alabama State Highway Department when he accepted and agreed to the terms of the assignment. Therefore, he was merely a conduit through which the state acted, and this suit is, therefore, a suit against the state barred by § 14 of the Constitution. The order of the court is affirmed.

AFFIRMED.

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

       During the pendency of this suit in the circuit court, the defendant Bass left the office of state highway director. Rule 25(d)(1), ARCP, provides that in such a case “his successor is automatically substituted as a party,” and that subsequent proceedings “shall be in the name of the substituted party.” That rule also provides that “any misnomer not affecting the substantial rights of the parties shall be disregarded”: the misnomer is to be disregarded in this case.