author: JONES, Justice.

text:
    Chester RUDOLPH and Lyndall Rudolph, separately and severally v. FIRST SOUTHERN FEDERAL SAVINGS & LOAN ASSOCIATION.
    80-848.
    Supreme Court of Alabama.
    May 7, 1982.
    Irvin Grodsky of Grodsky & Wilson, Mobile, for appellants.
    Gary A. Hudgins of Coley & Coley, Mobile, for appellee.
   JONES, Justice.

This is an appeal from a summary judgment entered in favor of Defendant First Southern Federal Savings & Loan Association.

In 1978 Chester and Lyndall Rudolph (Owners) and Associated Builders-Norman Firth (Contractor) entered into a standard Agreement Between Owners and Contractor, which document provided for the construction of improvements to the Rudolphs’ home for $19,700.00. The contract set out a “draw schedule” for the payment of monies during the construction and required all draws to be approved by a registered architect after his periodic inspections of the premises under construction.

First Southern agreed to finance the construction on two conditions: 1) that the Rudolphs and their Contractor execute a First Southern construction contract; and 2) that the Rudolphs grant First Southern a mortgage on their property as security for the loan.

The First Southern contract, which superseded the earlier agreement between the Rudolphs and Contractor, materially altered the draw schedule as originally agreed upon by the parties in that it provided for five equal draws and deleted the required architect’s approval for the draws.

Because of a previous unpleasant construction experience, the Rudolphs expressed to First Southern’s Vice President their concern regarding the dangers of advancing funds to a construction contractor and their desire to be protected against the loss of such advanced funds.

The Rudolphs allege, however, that the Vice President assured them that they need not worry about this particular problem because First Southern employed an inspector who would not approve a draw unless the work had been properly performed; and, further, that a portion of their fee to First Southern would be applied to this inspection service.

After the construction began, First Southern issued four of the five draw checks. Alleging they relied solely on First Southern’s “approval” of the work done, the Rudolphs endorsed the four checks without conducting independent inspections of the premises. The four draws disbursed to the contractor totalled $15,760.00.

The Contractor defaulted on the construction contract and left unpaid accounts with several materialmen and subcontractors. The City of Mobile Inspection Services Department rejected the work done; and the Rudolphs were forced to expend an additional sum of money to make their home habitable. First Southern withheld the final draw of $3,940.00 for “security,” while the Rudolphs have made monthly payments on the entire amount financed since 1978.

The Rudolphs’ claims against First Southern, as set out in their complaint, are for negligent inspection of the work performed prior to the authorization of the payments to the Contractor, and for conversion of the final draw. The Rudolphs’ motions to consolidate the instant case with an action filed against them by a materialman and to add as a party defendant the Contractor’s bonding company were granted by the trial court.

First Southern, with its motion for summary judgment, filed the affidavit of its Vice President, Mr. G. H. Rains, which states:

“All inspections made on the property of Chester Rudolph and Lyndall Rudolph were for the sole benefit of First Southern Federal Savings and Loan Association.
“Said inspections were for the specific purpose of determining whether sufficient improvements had been constructed to constitute [security] for its construction loan.
“No representations were made to the Plaintiffs by First Southern Federal Savings and Loan Association as to the quality of the work performed.”

Lyndall Rudolph’s affidavit, in opposition to the motion for summary judgment, however, states:

“My husband and I sought financing from First Southern Federal Savings and Loan and spoke with Mr. Rains. First Southern insisted that our construction contract with Associated Builders be changed so as to be placed on their contract form. . . . Note that Paragraph 5 [of the Bank’s contract form] provides that this contract supersedes all other contracts.
“Prior to my husband and I applying for the loan with First Southern and all during our discussion and contacts with Mr. Rains of First Southern, we mentioned on numerous occasions our concern that our previous bad experience with [another contractor] would repeat itself with Mr. Firth’s company. We expressed our concern that we would lose our money to the contractor by his not finishing the job after getting paid or his doing unsatisfactory work and not fixing it. Mr. Rains told us not to worry about these problems because First Southern employed an inspector who would not approve a draw called for on the revised draw schedule unless the work was done and performed properly. He even told us that a portion of the fee we paid First Southern was for the service of First Southern inspecting the work. I have reviewed the closing statement and it does reflect a $197.00 construction charge.”

A supplemental affidavit was later filed by the Rudolphs, which states:

“After Associated Builders left the job, our house was not in an inhabitable condition. My husband and I spent more than $5,000.00 of our own money, ... to make the house inhabitable. We have never received the $3,940.00 retained by First Southern Federal Savings and Loan Association even though we have been required to make payments on that full sum.”

The trial court granted First Southern’s motion for summary judgment, denied the bonding company’s motion for summary judgment, and denied the Rudolphs’ motion for summary judgment and their motion to alter, amend or vacate the judgment. This appeal followed.

In its motion for summary judgment, First Southern reasserted its defense that all inspections of the Rudolphs’ premises had been conducted solely for the benefit of First Southern in order to protect its security interest in that property. The asserted ground for the motion was that First Southern owed no duty to the Rudolphs upon which a claim of negligence could be based because “the law of Alabama does not impose liability on the part of a construction lender to the Plaintiffs for structural defects of warranties by the builder.”

The Rudolphs, therefore, state that the primary issue before this Court on appeal is whether, under Alabama law, First Southern owed a duty to the Rudolphs to “use ordinary care in the conduct of its inspections under the circumstances of this particular case.” (Emphasis supplied.)

On appeal, then, we must determine whether the evidence before the trial court, when considered in a light most favorable to the Rudolphs, supports any one of the Rudolphs’ theories of liability, and thus defeats summary judgment. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976); ARCP 56(c).

Before analyzing the authorities cited in support of the parties’ respective positions, one further refinement of the issue presented will be helpful. The Rudolphs contend, “under the circumstances of the particular case,” that First Southern voluntarily undertook to assume the inspection duties for the Rudolphs’ benefit by assuring them “not to worry about these problems because First Southern employed an inspector who would not approve a draw called for on the revised draw schedule unless the work was done and performed properly,” for which inspection service they were charged a fee.

In other words, the Rudolphs do not claim, as an abstract proposition, that the normal lender/borrower relationship, even where that relationship includes inspection of the premises by the lender during construction, imposes a legal duty upon the lender to perform inspection services for the benefit of the borrower. Therefore, contend the Rudolphs, the factual posture of the case before the trial court presents a factual issue which precludes disposition by summary judgment. We agree.

The affidavit of First Southern’s Vice President, the only evidence in support of its motion for summary judgment, is to the effect that its inspections of the Rudolphs’ property were for the sole benefit of First Southern and not for the benefit of the Rudolphs, and that no representations were made to them by First Southern “as to the quality of the work performed.” Otherwise stated, Mr. Rains’s affidavit, other than expressing a legal conclusion, goes only to representations with respect to the quality of the work performed, and does not constitute a denial of the representation alleged and testified to by Mrs. Rudolph going to the voluntary undertaking by First Southern to conduct periodic inspections for the benefit of the Rudolphs.

Therefore, under the- case as here postured, the Rudolphs’ evidentiary support of their negligence claim, if legally cognizable, stands uncontradicted. We note further, however, that the Rudolphs did not cross appeal from the denial of their motion for summary judgment.

Initially, we will address the broader issue of whether a duty exists to exercise reasonable care in conducting inspections of a premises, where that issue is posqd in the context of a money lender’s inspections of the borrower’s new construction which is financed by the loan proceeds.

While this precise question is one of first impression, this issue has been treated generally in Alabama in other factual settings; and our decisions employ language similar to that found at Restatement (Second) of Torts, § 324A:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or,
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

It is a clearly established doctrine in this jurisdiction that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting reasonably, and is liable in damages for injury resulting from a breach of that duty. Dailey v. City of Birmingham, 378 So.2d 728 (Ala.1979).

Likewise, consistent with the Restatement’s expression of the common law rule, a course of dealing which results in a special relationship between the parties can give rise to the duty to use that degree of care and skill which would be reasonably necessary under the circumstances, notwithstanding the specific language which is contained in the document creating the original contractual relationship. Hartford Steam Boiler Inspection and Insurance Company v. Pabst Brewing Company, 201 F. 617 (7th Cir. 1912).

In Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971), in which this Court held that a workmen’s compensation carrier that undertook to conduct safety inspections of the employer’s premises was required to use due care in conducting those inspections as a duty to third parties (the employees), the Court stated:

“This state, at least as early as 1911, recognized that ‘when a person undertakes an employment, which requires care and skill, whether for reward or not, a failure to exert the measure of care and skill appropriate to the measure of such employment is negligence, for which an action will lie.’ Parker & Bro. v. Hodgson, 172 Ala. 632, 635, 55 So. 818, 819....
“As Justice Cardozo said, ‘It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.’ Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425.” Beasley, at 287 Ala. 193, 249 So.2d 844.

Most recently, this Court was faced with this issue in the context of those inspections conducted by insurance companies of the thing to be insured for the purpose of fixing the premium rates. In The Ranger Insurance Company v. Hartford Steam Boiler Inspection and Insurance Company, 410 So.2d 40 (Ala.1982), however, the insurance contract between the parties contained language to the effect that “neither the company’s right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the named insured or others, to determine or warrant that such object is safe or healthful.”

The express disclaimer in the insurance contract, then, brought Ranger Insurance within a recognized exception to the common law responsibility stated above, i.e., “no such rule of duty obtains in favor of the assured where the inspections are attributable alone to the policy provision for the sole benefit of the insuror, which would leave no ground for a finding of fact that they were understood between the parties to be made and accepted as inspection service for direct benefit to the [insured].” Pabst Brewing Company, 201 F. at 629.

The Rudolphs, in support of their contentions, have directed this Court’s attention to a recent line of cases in other jurisdictions which support their theories of liability against First Southern.

In 1968, the California Supreme Court issued its decision in Connor v. Great Western Savings & Loan Association, 69 Cal.2d 850, 73 Cal.Rptr. 369, 447 P.2d 609 (1968). Plaintiffs were the purchasers of homes in a residential development, which residences were severely damaged because their foundations were not designed to withstand the expansion and contraction of the adobe soil upon which they were built. In a 4-3 decision, the Court reversed a judgment of non-suit in favor of defendant Great Western, the supplier of finances for the purchase of the land and for the construction of the homes, and the holder of “first refusal” for the financing of the individual home purchases.

After finding “abundant evidence” that the construction company had negligently constructed the homes “without regard to soil conditions prevalent at the site,” the Court then addressed the issue of whether Great Western, while not in privity of contract with Plaintiffs, except as money-lender, owed a greater duty to Plaintiffs and was, therefore, negligent in its dealings with them.

In finding that Great Western was, indeed, negligent and liable to plaintiffs, the Court stated:

“The fact that Great Western was not in privity of contract with any of the plaintiffs except as a lender does not absolve it of liability for its own negligence in creating an unreasonable risk of harm to them. ‘Privity of contract is not necessary to establish the existence of a duty to exercise ordinary care not to injure another, but such duty may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty.’ (Cites omitted.) The basic tests for determining the existence of such a duty are clearly set forth in Biakanja v. Irving, supra, 49 Cal.2d 647, 650, 320 P.2d 16, 19, as follows: ‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to him, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant’s conduct and the injury suffered, (5) the moral blame attached to the defendant’s conduct, and (6) the policy of preventing future harm.’
“In the light of the foregoing tests Great Western was clearly under a duty to the buyers of the homes to exercise reasonable care to protect them from damages caused by major structural defects.
“(1) Great Western’s transactions were intended to affect the plaintiffs significantly.
“The success of Great Western’s transactions with [construction contractors] depended entirely upon the ability of the parties to induce plaintiffs to buy homes in the [development] and to finance the purchases with funds supplied by Great Western. Great Western’s agreement to supply funds [to the contractor] was on condition that a sufficient number of persons first made commitments to buy-homes. Great Western agreed to warehouse land for [the contractor] on the understanding that the land would be used for a residential subdivision. Great Western also stipulated that advances from its construction loans would be used by [the contractor] to exercise repurchase options, thereby affording Great Western the opportunity for a $30,000 capital gain. Finally, Great Western took steps to have [the contractor] channel buyers of homes to its doors for loans, extracting a 1 percent loan fee from [the contractor] in the process.
“(2) Great Western could reasonably have foreseen the risk of harm to plaintiffs.
“Great Western knew or should have known that [the contractors had never] developed a tract of similar magnitude ... [and that the contractor] was operating on dangerously thin capitalization, creating a readily foreseeable risk that it would be driven to cutting corners in construction. That risk was enlarged still further by the additional pressures on [the contractor] ensuing from its onerous burdens as a borrower from Great Western.
“(3) It is certain that plaintiffs suffered injury.
“(4) The injury suffered by plaintiffs was closely connected with Great Western’s conduct.
“Great Western not only financed the development of the [residential tract] but controlled the course it would take. Had it exercised reasonable care in the exercise of its control, it would have discovered that the pre-packaged plans purchased by [the contractor] required correction and would have withheld financing until the plans were corrected.
“(5) Substantial moral blame attaches to Great Western’s conduct.
“(6) The admonitory policy of the law of torts calls for the imposition of liability on Great Western for its conduct in this case. Rules that tend to discourage misconduct are particularly appropriate when applied to an established industry.” Connor, at 73 Cal.Rptr. 377, 378, 447 P.2d 617, 618.

While the Connor decision appeared to take the liability of the money lender to a far-reaching, new limit, we find that subsequent judicial and legislative actions have tended to limit Connor to its facts.

In Bradler v. Craig, 79 Cal.Rptr. 401, 274 Cal.App.2d 466 (1969), the Court of Appeal, in affirming a summary judgment for defendant contractor and defendant money lender, engaged in a lengthy analysis of Connor and quoted with approval that portion of the Connor majority opinion dealing with the “privity of contract” issue and the standard to be applied in determining whether the requisite duty exists. That Court, however, went on to hold:

“[The lending company’s] alleged participation was that of the usual and ordinary construction and purchase money lender, content to lend money at interest on the security of real property. Approval of plans and specifications, and periodic inspection of houses during the construction is normal procedure for any construction money lender. . . . Unlike Connor, its financing did not take on ‘ramifications beyond the domain of the usual money lender.’ [Connor, 73 Cal.Rptr. at 376, 447 P.2d at 616.] Unlike Connor, it was not financing the development of a large tract wherein it sought to receive substantial fees for making construction loans. Unlike Connor, it did not receive a fee for ‘warehousing’ the land. Unlike Connor, it received no guarantee from loss of profits in the event a home buyer sought permanent financing elsewhere. Unlike Connor, it was not ‘preoccupied with selling prices and sales.’ [Connor, 73 Cal.Rptr. at 374, 447 P.2d at 614.]” Bradler v. Craig, 79 Cal.Rptr. at 407.

In Callaizakis v. Astor Development Co., 4 Ill.App.3d 163, 280 N.E.2d 512 (1972), a class action was instituted by condominium purchasers alleging negligent inspection by the savings and loan company of the premises while under construction. The appellate court affirmed the lower court’s dismissal of the savings and loan association as a party defendant, because there were no allegations which would show that the association’s alleged inspection activities were conducted for the benefit of the plaintiffs, or that they were made for purposes other than those of the usual money lender.

After a lengthy discussion of Connor and its six-factor standard, the Illinois appellate court noted that the plaintiffs had alleged that “virtually every aspect held to be important [in Connor] was either actually present or probably present in [this defendant contractor’s] participation in the [development],” and asked that the court “safely assume” certain things about the defendant.

The Court answered by holding:

“We must determine whether these facts may be reasonably inferred from the facts actually alleged in the complaint so as to be of relevance in determining whether the complaint states a cause of action....
“We do not believe that the rationale of Connor should be expanded to meet the facts alleged in the amended complaint. To do so would possibly effect ‘a drastic restructuring of traditional economic relationships’ as Justice Mosk stated in his dissent in Connor [73 Cal.Rptr. at page 382], 447 P.2d at page 622.
“The California legislature has taken a similar view. The majority opinion in Connor characterized Great Western’s activities as taking on ‘ramifications beyond the domain of the usual money lender.’ (Cite omitted.)
“A statute passed by the California legislature (West’s Ann.Civ.Code § 3434) after the Connor decision incorporates the above phraseology:
“ ‘A lender who makes a loan of money, the proceeds of which are used or may be used by the borrower to finance the design, manufacture, construction, repair, modification or improvement of real or personal property for sale or lease to others, shall not be held liable to third persons for any loss or damage occasioned by any defect in the real or personal property so designed, manufactured, constructed, repaired, modified or improved or for any loss or damage resulting from the failure of the borrower to use due care in the design, [etc.] of such real or personal property, unless such loss or damage is a result of an act of the lender outside the scope of the activities of a lender of money ...’”

Callaizakis, at 280 N.E.2d 516, 517.

For subsequent decisions similarly limiting Connor, see Armetta v. Clevetrust Realty Investors, 359 So.2d 540 (Fla.App.1978); Murry v. Western American Mortgage Co., 124 Ariz.App. 387, 604 P.2d 651 (1979).

Another decision wherein plaintiffs alleged liability of a money lender for negligent inspection of a construction site is Rice v. First Federal Savings and Loan Association of Lake County, 207 So.2d 22 (Fla.Dist.Ct.App.1968). In that case, notwithstanding the money lender’s deducting from the loan proceeds an “inspection and supervision fee” and its periodic inspections of the construction site, the appellate court, rejecting the owners’ claim, held:

“The effect to be given to an alleged implied contract is that effect which the parties as fair and reasonable men presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had expressly contracted in reference thereto. Bromer v. Florida Power & Light Co., Fla.1950, 45 So.2d 658, 660, 13 A.L.R.2d 1227. It would be unreasonable to infer merely from [the savings and loan company’s] deduction of an inspection fee a contractual duty to [plaintiffs] to perform such inspection on their behalf. As the court below aptly stated:
“ ‘A lender of construction money has an interest in the progress and quality of the construction of its security proportional to the amount of money invested and would reasonably be expected to inspect the construction and be entitled to additional compensation for its additional costs in making such inspection.’ ”
Rice, at 207 So.2d 23.

Whether this Court, if faced with the Connor facts, would follow the Connor precedent we need not decide. We emphasize, however, that the Connor decision, while opening new doors of litigation, was a 4-3 decision (with strong dissenting opinions filed), and has been critically limited by subsequent judicial decisions and legislative enactment.

We note further that Connor dealt with extreme facts — facts which disclose that the lender was in virtually complete control of the entire construction project — a relationship with the purchasers far beyond that of the traditional role of a lender.

For purposes of the instant case, we align ourselves with those cases that restrict Con-nor to its extreme facts. We hold that no duty is imposed upon a lender of a construction loan to exercise reasonable care in its inspection of the borrower’s premises, even where the borrower pays the lender’s inspection fee, unless the lender voluntarily undertakes to perform such inspection on behalf of and for the benefit of the borrower.

The mere relationship of lender/borrower, including the lender’s right of inspection at the borrower’s cost, does not, of itself, give rise to a duty of due care to the borrower in the lender’s exercise of that right. (For the application of an analogous principle, see Ranger Insurance, supra.) But this principle does not prohibit the lender from voluntarily assuming a special relationship whereby the lender undertakes to perform the function of inspecting the borrower’s property for the borrower’s benefit.

Because the lender may exercise its independent right of inspection for its exclusive benefit, and thus incur no liability to the borrower for its negligent inspection, the burden is on the borrower, seeking to impose liability, to prove the lender’s voluntary assumption of activities beyond those traditionally associated with the normal role of a money lender.

This burden of proof is met only when the evidence reasonably supports an inference of fact to the effect that the lender, either affirmatively or through a course of conduct, assumed the function of inspection expressly, though not necessarily exclusively, for the benefit of the borrower. Given the element of duty, of course, the borrower must further prove its breach, either through misfeasance or malfeasance, as well as resultant damage.

Applying the above-stated principles to the instant facts, we find that the trial court erred in granting summary judgment. Before any contact with First Southern, the Rudolphs had entered into a construction contract with the builder (using a standard A.I.A form), which provided for payment by a system of draws, approved by an architect after his inspection of the premises. When First Southern conditioned its loan upon the execution of its contract, eliminating the architect’s approval safeguard, the Ru-dolphs related to the lender their past experience in which they had been the loser in a similar situation. To this expression of concern over the elimination of the inspection safeguard, First Southern’s vice president told them not to worry and assured them that First Southern had its own inspector who would not approve a draw called for under the revised draw schedule until the work was performed properly. Certainly, this is ample evidence, if believed by the factfinder, to reasonably support an inference that First Southern voluntarily and affirmatively assumed the undertaking to inspect the subject property for the Ru-dolphs’ benefit.

Under these particular circumstances, the factfinder would be authorized to conclude that Mr. Rains’s statement to the Rudolphs was not just a casual reference to First Southern’s benefit, or that the inspection fee was not intended to be limited to services rendered exclusively for First Southern’s benefit.

This evidence lends itself to a reasonable inference that Mr. Rains’s statements were intended as assurances to the Rudolphs that First Southern’s inspection service, by which the revised draw schedule would be controlled, was a viable substitute for the architect’s approval safeguards contained in the former contract, and that the new inspection safeguards were intended to inure to the benefit of the Rudolphs.

In conclusion, we observe that there is considerable confusion in the record with respect to the Rudolphs’ claim against First Southern for conversion. First Southern’s motion for summary judgment did not encompass this issue and the trial court’s grant of summary judgment, as supplemented by its 54(b) order, is limited to the negligent inspection claim, without any reference, however, to the conversion claim. This anomaly was recognized by the Ru-dolphs’ counsel in a post-judgment .motion, asking the court to “amend its order so as to clearly state that the summary judgment entered is with respect only to First Southern’s liability for negligent inspection.” Then, the court entered its order, reciting “that Plaintiffs’ [motion to amend] be, and the same is hereby denied by agreement.” Though undisclosed by the record, we suspect that the “agreement” referenced in the court’s order is pursuant to averments contained in First Southern’s answer that it is holding $3,940.00, the unpaid portion of the loan, and offering to “apply such principle sum in such manner as the court may deem appropriate, or continue to hold the same pending a disposition of this cause.”

While an agreement of the parties, as well as responsive pleadings, not reduced to a court order, do not constitute an adjudication of a pending claim, we are confident in the instant ease — particularly in view of our remand of the negligent inspection claim for trial — that the conversion claim, or the agreement of the parties with respect thereto, is still before the trial court for appropriate disposition.

REVERSED AND REMANDED.

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

MADDOX, J., not sitting.

SHORES, J., recuses.

      . This order left pending asserted claims against all other named parties defendant, but was rendered final pursuant to ARCP 54(b), so as to support an appeal. While the record is not entirely clear as to the claim for conversion, we have treated the order as a final judgment for purposes of this appeal. This point is discussed later in the opinion.

      . While Ranger Insurance uses the term “exception to the rule” (and this is because it is so expressed in the authorities relied upon), we recognize that, in the purest sense, its holding of no liability is not an “exception”; rather, the Ranger Insurance facts, as well as the Pabst Brewing facts, do not invoke the operative effect of the “gratuitous undertaking” doctrine.


source: Caselaw Access Project

author: PER CIJRIAM.

license: Public Domain

text:
    Ex Parte ANONYMOUS, a Minor. (Re In the Matter of ANONYMOUS, a child under the age of 18 years).
    80-845.
    Supreme Court of Alabama.
    May 21, 1982.

      George B. Gordon, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and Al-gert S. Agrícola, Jr., Asst. Atty. Gen., for respondent.
    James G. Lee of Lee, Barrett & Mullins, Tuscaloosa, for amicus curiae Tuscaloosa County.
    Mary Lee Stapp, Clyde P. McLendon, and William Prendergast, Asst. Attys. Gen. and counsel for the Dept, of Pensions and Security of the State of Alabama, amici curiae.
   PER CIJRIAM.

This matter was begun by a petition filed in the Juvenile Court of Tuscaloosa County by the Department of Pensions and Security. It apparently sought to establish the paternity of an illegitimate child under § 26-12-1, et seq., Ala.Code 1975, and the petition also alleged that the respondent (petitioner here) was a child in need of supervision, defined in § 12-15-1(4), Ala. Code 1975, as a child who “has committed an offense established by law but not classified as criminal or one applicable only to children.”

The trial court, after determining that the juvenile was financially unable to obtain counsel, appointed counsel to represent him, as authorized by Act No. 81-717, Acts of Alabama, 1981 (§ 15-12-21, Ala.Code 1975).

Counsel for the juvenile thereupon filed a motion for blood tests pursuant to § 26-12-5, which provides in pertinent part:

“In any illegitimacy case the court, upon application made by the reputed father whose blood is involved, shall order the mother, child and reputed father to submit to one or more blood tests to determine whether or not the accused can be excluded as the father of the child. No such blood test of any child shall be taken before the child reaches the age of six months. Whenever the court orders any such blood test to be taken and the mother shall refuse to submit either herself or the child to the test, such fact shall be disclosed upon the trial unless good cause is shown for not doing so. Any tests shall be made by an expert qualified as an examiner of blood types, and he shall be appointed by the court. The court shall fix the compensation of any expert at a reasonable amount and may direct the same to be paid by the county or any other party to the case or by both, in such proportions and at such times as the court shall prescribe. Prior to the making of said test, the court may order any part or all of the said compensation paid in advance.”

The trial court refused to order blood tests, and the juvenile then filed this petition for writ of mandamus, asking this Court to direct the trial judge to order the blood tests, which he asserts are mandatory under § 26-12-5, and further to direct the trial court to order the County of Tuscaloosa to pay the cost of such tests, as it has the authority to do under § 26-12-5, or alternatively to direct the trial court to approve the cost of performing such blood tests as a reasonable expense incurred in the juvenile’s defense, thereby enabling the attorney to be reimbursed by the state as provided in Act No. 81-717 (§ 15-12-21, Code), which provides:

“(d) Counsel appointed [in a juvenile indigency case] shall be entitled to receive for their services a fee to be approved by the trial court. The amount of such fee shall be based on the number of hours spent by the attorney in working on such case and shall be computed at the rate of $40.00 per hour for time expended in court and $20.00 per hour for time reasonably expended out of court in the preparation of such case. The total fees to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not, however, exceed $1,000.00. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court, but in no individual case shall such expenses exceed one-half of the allowable attorney fees provided in this section.
“(e) Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, counsel shall submit to the trial court a bill for services rendered, not to exceed the amount provided in subsection (d) of this section, and such bill, if approved by the trial court, shall be submitted by the clerk of the court to the state comptroller for audit and allowance and, if approved by the comptroller, shall be forwarded to the state treasurer for payment.”

The legislature has made blood tests mandatory upon demand by the reputed father in a paternity proceeding under § 26-12-5, which also mandates that the trial court appoint an expert to conduct such tests. In both instances, the legislature uses the word shall, which we have traditionally held to be mandatory. However, as regards payment, the legislature leaves the source of the payment to the discretion of the trial court. It may direct payment by the county or any party to the case and, in this instance, the Department of Pensions and Security is a party. The trial court may, therefore, order payment by the state or the county by the authority conferred by § 26-12-5, if this is a true paternity case. However, on the petition before us, we cannot say that it is. It is described as a “hybrid” by the Department of Pensions and Security. Certainly the petition seeks two distinctly different determinations: one, that petitioner is a child in need of supervision under the juvenile code, and the other, that he is the putative father under the paternity statute.

Until a determination is made that this is a paternity case, the petitioner is not entitled to blood tests. The trial court, in refusing to order the requested blood tests, was justified in doing so if this is a juvenile proceeding with a goal of having the juvenile declared a child in need of supervision. Therefore, mandamus will not lie because the petitioner has not shown that the right to relief is clear.

WRIT DENIED.

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


author: BEATTY, Justice.

text:
    Ex parte HARRINGTON MANUFACTURING COMPANY, INC. (In re Sally Belle MEEKS, as Administratrix of the Estate of Charley Jones, Deceased v. FORD MOTOR COMPANY, INC., et al.)
    80-920.
    Supreme Court of Alabama.
    May 21, 1982.

      Paul W. Brock and W. Alexander Moseley of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for petitioner.
    Michael S. McGlothren of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for respondent.
   BEATTY, Justice.

Petition for a writ of mandamus directed to the Honorable Robert E. Hodnette, Judge of the Circuit Court of Mobile County. The writ is denied.

On November 17, 1980, plaintiff, Sally Belle Meeks, as administratrix of the estate of Charley Jones, deceased, filed suit in the Circuit Court of Mobile County against Ford Motor Company, Hendrix Tractor Company, Inc., Cotton Ford Tractor Company, Inc., Harrington Manufacturing Company, Inc. (hereinafter referred to as Harrington Manufacturing), and various fictitious defendants, seeking damages for the wrongful death of the plaintiff’s intestate. On January 21, 1981, defendant Harrington Manufacturing filed a motion to dismiss for improper venue and, on February 25, 1981, a motion to transfer venue to the Circuit Court of Monroe County. Affidavits were filed by Charles H. Edwards, Secretary for Harrington Manufacturing, in support of the venue motions. On July 27, 1981, the trial court entered an order denying the motion to dismiss and the motion to transfer venue. Harrington Manufacturing filed a motion to reconsider the order, which was denied. Thereafter, Harrington Manufacturing filed this petition for writ of mandamus.

When a party seeks review by writ of mandamus of an order transferring or refusing to transfer venue, we determine whether the lower court has sufficient facts before it to ■ ascertain proper venue, i.e., doing business in the county. See Ex parte Wilson, Ala., 408 So.2d 94 (1981). Petitioner claims that it was a clear abuse of discretion for the trial court to deny its motions to dismiss or transfer venue from Mobile to Monroe County. We respectfully disagree.

It is undisputed that the issue of proper venue is governed by § 232 of the Alabama Constitution of 1901 and Code of 1975, § 6-3-7. These sections establish that a foreign corporation may be sued in any county where it does business by agent. Petitioner is a North Carolina corporation which has properly qualified to do business in Alabama. It contends, however, that it was not “doing business” in Mobile County at the time of the suit.

In International Cotton Seed Oil Company v. Wheelock, 124 Ala. 367, 27 So. 517 (1900), this court defined the acts of business meant by the requirement that a foreign corporation do business in this state:

“... ‘There must be a doing of some of the works or an exercise of some of the functions for which the corporation was created to bring the case within the clause.’ In applying that test it may not always be easy to distinguish between acts done in the exercise of corporate functions and those done merely within corporate powers.
“... [I]t appears that the sale of its products is as much an exercise of defendant’s corporate functions as is their manufacture. ... [Id. at 370-371, 27 So. at 518 (quoting Beard v. Publishing Co., 71 Ala. 60 (1881) (emphasis added).]”

The deposition of Charles H. Edwards established that Harrington Manufacturing is a manufacturing and sales company which employs two salesmen whose sales territory includes Mobile County. Prior to the instant suit, the salesmen made telephone calls and personal visits to Mobile County. The record also reveals that petitioner sells its products in Mobile County through two contacts. The first contact, Forestry Equipment, sells two heavy industrial products used for logging in Mobile County. This company sold twenty-two of these industrial machines for the petitioner during the past several years in Mobile County. The second contact, Home & Restaurant Company, sells woodburning stoves for the petitioner in Mobile County. These stoves have been sold since 1980, and five units were sold in Mobile County during the winter of 1980-81. Some of the stoves, then, were sold after the institution of this suit. The manufacturer’s representative of petitioner receives a commission on wood-burning stoves sent to Mobile County. Furthermore, petitioner consigned a forklift for six months in Mobile County. The principal purpose for this consignment was to establish a dealer in the Mobile area. Clearly, the petitioner considered the sale of its products to be an important corporate function and directed attention to this end in Mobile County.

Isolated transactions occurring prior to the suit are inconclusive to show a continuance of such business at the bringing of the suit. Continuity may be inferred, however, as existing at the time of suit from a course of business pursued before and proximately thereafter. International Cotton Seed Oil Company v. Wheelock, supra. In the case at bar, the record, as discussed above, clearly establishes a continuity of business in Mobile County by petitioner.

The burden of proof is on the party raising the issue of venue. Ingram v. Omelet Shoppe, Inc., Ala., 388 So.2d 190 (1980). Here, petitioner has not met that burden. We find no abuse of discretion in the trial court’s order denying the motions to dismiss or transfer venue.

The writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner, Ex parte Slade, Ala., 382 So.2d 1127 (1980). The petitioner's right to relief must be clear and there must be no other adequate remedy. Id. Neither of these prerequisites appears here. Accordingly, the writ of mandamus must be, and is, denied.

WRIT DENIED.

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


author: SHORES, Justice.

text:
    Theodis DENT v. Lindsey S. SMITH and Chevron U.S.A., Inc.
    81-163.
    Supreme Court of Alabama.
    May 21, 1982.
    S. Shay Samples of Hogan, Smith & Als-paugh, Birmingham, for appellant.
    Warren B. Lightfoot of Bradley, Arant, Rose & White, Birmingham, for appellees.
   SHORES, Justice.

Plaintiff appeals from summary judgment for defendants in a defamation action.

At the time of the alleged defamation, the plaintiff, Theodis Dent (Dent), was employed by Miller Transporters, Inc. (Miller), as a truck driver. Miller had a key stop agreement with Chevron U.S.A., Inc. (Chevron) for loading fuel out of the storage tanks at Chevron’s Powderly terminal in Jefferson County, Alabama. Defendant Lindsey Smith (Smith) was the terminal superintendent for the Powderly terminal.

Under the key stop agreement, Chevron assigned the number four pump at the terminal to Miller and issued keys to that pump to Miller drivers who were certified by Miller. Both the driver and his Miller supervisor signed for each key issued, and once a Miller driver had a key, he could unload fuel from the number four pump without supervision by Chevron. Miller agreed to pay Chevron for any fuel loaded through the number four pump, whether accounted for or not, because only Miller drivers could use that pump.

Until a Miller driver was certified and issued a number four key, he was required on each occasion to ask Chevron personnel for the number one (Chevron) key and load under Chevron’s supervision through the number one (Chevron) pump. The number one key always stayed at the terminal.

Dent began loading and hauling fuel out of the terminal in March, 1978, by using the number one key. In late 1978, Dent was issued a number four key and, from that time on, he could load without Chevron’s supervision from the number four pump.

When Miller drivers loaded through the number four pump, they were supposed to document the load by inserting a multi-cop-ied loading ticket (prestamped with the ultimate customer’s name) into the pump, which would then record the date and gallons on the ticket, and the driver would simply leave a copy of the ticket in the box at the terminal on the way out. At least one Chevron supervisor was on duty at the terminal every day of the week except Sunday, but the certified Miller drivers could load any day of the week because each of them had a key to the main gate at the terminal, as well as to the number four pump. The number four pump would operate without a loading ticket being inserted.

On Monday morning, February 4, 1979, Smith learned that 2,251 gallons of diesel fuel had been loaded through the Miller pump and not been documented. No Miller driver had signed for a load for the (Sunday) evening before, and Smith asked Chevron personnel at the safety meeting on that Monday morning whether anyone had seen a Miller driver in the terminal on Sunday evening, February 3, 1979.

Smith was informed that day by a Chevron driver, Darnell Parker, that Parker had seen a Miller driver in the terminal on the previous evening, but that Parker did not know the Miller driver’s name. Smith reported both the loss and the Parker information to Joe Sumrall, Miller’s manager, and Smith and Sumrall agreed that each would do the best he could to identify the Miller driver whom Parker had seen. In the meantime, Chevron forwarded to Miller its claim for the loss, and Miller paid it.

On February 9, 1979, Dent inadvertently left his number four key at the terminal and when he went by to pick it up from Smith, Darnell Parker saw him. After Dent left, Parker identified Dent to Smith as the Miller driver Parker had seen in the terminal on Sunday evening, February 3, 1979. Smith then called Sumrall, identified Dent as the driver seen on February 3, 1979, and asked that Dent’s keys be picked up. At Sumrall’s request, Smith sent Sum-rall a detailed statement and Smith also reported the series of events in writing to his superiors in Atlanta.

Dent was fired by Miller. He subsequently filed a union grievance concerning his termination and was found not guilty of stealing the fuel and was reinstated by Miller. However, he was still prohibited from hauling fuel from the Chevron Pow-derly terminal.

On August 2,1979, Dent filed a complaint which alleged slander and libel per se arising out of the oral and written statements of Smith, while acting within the line and scope of his duty as an agent for Chevron.

The defendants filed an answer which sets forth the following defenses: general denial, privilege, conditional privilege, and lack of malice.

The depositions of Dent and Smith were taken on September 24, 1979, and on October 16, 1981, the court granted defendants’ motion for summary judgment. This appeal followed. We affirm.

In his brief, Dent states:

“The Appellant also frankly concedes that, under the facts and circumstances of this case, the defendants probably did enjoy qualified or conditional privilege; however, plaintiff strenuously argues that summary judgment was inappropriate in this case due to the presence of evidence inferring malice, lack of good faith, and abuse of privilege.”

We agree with the appellant only to the extent that the facts in this case do establish the presence of a qualified privilege. See, Berry v. City of New York Insurance Company, 210 Ala. 369, 98 So. 290 (1923).

Further,

“[wjhere a communication is conditionally privileged, it is free from the legal imputation of malice and is actionable only if there is actual malice. O'Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974). The burden is on plaintiff to prove actual malice. Interstate Electric Company v. Daniel, 227 Ala. 609, 151 So. 463 (1933).
“This Court has recognized that disposition of the issue of actual malice by summary judgment is generally inappropriate. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). However, where no proof of malice is offered at all, summary judgment is appropriate. Id.
“Actual malice
“ ‘. .. may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of publication, and the like.’
“Kenney v. Gurley, 208 Ala. 623 at 626, 95 So. 34 at 37.”

Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117, at 1120 (Ala.1976).

The record reveals that Smith scarcely knew Dent. There was no evidence that he bore any ill will towards him. This is clearly indicated through Dent’s deposition testimony concerning a discussion between Dent and Smith after Dent’s termination:

“Q. (By Mr. Lightfoot) Tell me everything you said and everything Lindsey Smith said when you called him on the phone that Monday.
“A. Well, I just asked him did he know anything about, you know, me getting the fuel. He said, ‘Well, we got proof that you did it, and if you want to take it further, you can.’
“I said, ‘Well, I will try, you know — I’m going — I’m going to look further in detail.’ They never did tell me the man’s name that said I stole the fuel or nothing. I didn’t say nothing else to him. I hung up the phone.
“Q. Was it a short conversation?
“A. It was a short conversation, wasn’t over three or four words.
“Q. Have you told me everything that you remember about that conversation?
“A. As far as I remember about that conversation, because it was just a few words, and he said, ‘Well, you can take it further if you want.’ And I said, ‘Well, that’s it then.’
“Q. You didn’t get mad, and he didn’t get mad?
“A. No.
“Q. It was a very pleasant conversation?
“A. Very pleasant conversation.”

We hold that the plaintiff has offered no evidence whatsoever that would constitute actual malice on the part of the defendants, not even a scintilla. Rather, the record reveals a classic situation for which the qualified privilege was designed, i.e., a straightforward business communication made in the performance of duty. See, Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899 (1941). We hold, therefore, that summary judgment was appropriate in this case.

AFFIRMED.

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


author: PER CURIAM.

text:
    Larry McANALLY v. Douglas L. KEY and Iron and Steel Credit Union.
    81-388.
    Supreme Court of Alabama.
    May 21, 1982.

      P. Mark Sandlin, Huntsville, for appellant.
    Rick A. Risner, Birmingham, for appel-lees.
   PER CURIAM.

The trial court granted the defendants’ motions to dismiss an action for malicious prosecution. The plaintiff appealed. We affirm.

The appellant’s brief contains a number of factual assertions not contained in the record. Our affirmance of the trial court is based upon what the record shows, and that is that Iron and Steel Credit Union and Douglas L. Key, its agent, brought suit against one James Thomas McAnelly on or about November 21, 1979, and took a judgment thereon (apparently by default) on February 6, 1980, in the amount of $2,455.25.

The plaintiff’s name is Larry McAnally. Although he asserts in his brief that he was “denied credit by the First National Bank of Birmingham due to the fact that the above mentioned judgment appeared on his credit report which was given to the First National Bank of Birmingham by the Merchants Credit Association,” nothing in the record shows that this plaintiff has ever been sued by these defendants. It simply shows that a person with a somewhat similar name was sued. Having never been sued by the defendants, the plaintiff has not stated facts upon which he can obtain relief on his claim for malicious prosecution.

Although not delineated as such, the court’s order dismissing the complaint was based upon the pleadings, Alabama Rules of Civil Procedure, Rule 12(c). By its answer, Iron and Steel Credit Union alleged that no judgment was taken against a Larry Mc-Anally by the credit union. This was not controverted below, nor does the appellant deny it in his brief. He simply says the names are so similar as to cause him injury. He does not assert a claim against Merchants Credit Association, nor does he challenge the validity of the suit filed against James Thomas McAnelly. We find no basis for reversal in the record before us. National Metropolitan Bank v. United States, 323 U.S. 454, 65 S.Ct. 354, 89 L.Ed. 383 (1945).

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Ex parte John T. ROACH, Jr. and The Legal Center, Inc., A Corporation. (In re Frank K. BYNUM and James D. Forstman v. John T. ROACH, Jr., and The Legal Center, Inc., A Corporation).
    81-454.
    Supreme Court of Alabama.
    May 21, 1982.

      See also, Ala., 403 So.2d 187.
    William H. Mills of Redden, Mills & Clark, Birmingham, for petitioners.
    Hobart A. McWhorter, Jr. and Robert K. Spotswood of Bradley, Arant, Rose & White, Birmingham, for respondents.
   PER CURIAM.

Petitioners John T. Roach, Jr., and The Legal Center, Inc., ask this Court to issue a writ of mandamus or alternatively a writ of prohibition against the Honorable William C. Barber, Judge of the Circuit Court of Jefferson County.

After remand by this Court of the cause in Roach v. Bynum, 403 So.2d 187 (Ala.1981), Frank K. Bynum and James D. Forstman gave notice to Roach of a shareholders’ meeting of The Legal Center, Inc. Roach promptly issued himself 500 shares of Legal Center stock, purporting to make himself majority stockholder. After the meeting, Roach refused to acknowledge the new bylaws adopted by Bynum and Forst-man, continued to hold himself out as president of the corporation, and would not hand over the corporate records for inspection and accounting.

Bynum and Forstman filed a “petition for relief” in the Circuit Court for the Tenth Judicial Circuit of Alabama, Equity Division, civil action number CV-77-502-147-WCB (the same action from which the prior appeal was taken). This petition for relief sought to have Roach’s attempted issuance of stock to himself declared null and void, to have Roach enjoined from interfering with Bynum’s efforts to have an accounting, and other similar relief. Roach responded by filing a motion to strike or dismiss the petition for relief. The Court held a hearing on the motion to strike, denied it, and set a hearing on the petition for relief. Roach thereupon petitioned this Court to issue a writ ordering the trial court to grant Roach’s motion to strike.

The thrust of Roach’s motion to strike is that the prior decision of this Court in Roach v. Bynum, supra, effectively closed this case and therefore Bynum and Forst-man cannot institute any further proceedings without filing a new action. He claims that although this Court reversed the prior judgment in part and remanded the cause, the only permissible action the trial court could take upon remandment would be to issue an order denying the prayer for dissolution of the corporation, because the trial court’s order was affirmed except as to .the dissolution.

This argument is without merit because (1) the trial court expressly retained jurisdiction in its prior order; (2) Bynum and Forstman’s complaint sought an accounting, which was granted as part of the dissolution and now must be sought anew; (3) “When this court reverses and remands without further direction, the trial court may, in the exercise of sound judicial discretion, permit further pleadings and proof as justice and equity dictate.” Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974). The cases cited by Roach are distinguishable. In Brown v. Olsson, 252 Ala. 670,42 So.2d 619 (1949), the cause was rendered in the first appeal, and the prior remand in Costellos v. Jebeles, 406 So.2d 393 (Ala.1981) had “included instructions to the trial court to fashion a remedy” (Id., p. 394), in accordance with law, so no reopening of the facts was necessary or permissible. No such instructions were given in this cause; so the trial court may entertain the petition for relief. Therefore, the instant petition is denied.

WRIT DENIED.

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

FAULKNER and EMBRY, JJ., recuse themselves.

JONES, J., not sitting.

      . Hereinafter we attribute the actions of petitioners to Roach, for convenience.

      . Roach had previously issued himself ten shares.


text:
    Ex parte Rodney HOLDER, Samuel A. McGee, and David W. Christian. (In re ATHLETIC FOOTWEAR OF BIRMINGHAM, a joint venture v. Rodney HOLDER, Samuel A. McGee, and David W. Christian).
    81-561.
    Supreme Court of Alabama.
    May 21, 1982.
    Robert F. Prince of Prince & Black, Tuscaloosa, for petitioners.
    E. Terry Brown of Copeland, Franco, Screws & Gill, Montgomery, for respondents.
   PER CURIAM.

Writ granted on the authority of Ex parte Parker, 413 So.2d 1105 (Ala.1982).

WRIT GRANTED.

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


author: WRIGHT, Presiding Judge.

text:
    Albert D. LIPSCOMB and Bonnie A. Lipscomb v. HERCULES, INC.
    Civ. 2671.
    Court of Civil Appeals of Alabama.
    Sept. 16, 1981.
    Rehearing Denied Oct. 21, 1981.

      E. L. Brobston, Bessemer, for appellants.
    Robert G. Tate of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Plaintiffs-appellants, Albert D. and Bonnie A. Lipscomb, filed suit in circuit court alleging that defendant-appellee, Hercules, Inc. so negligently operated its chemical plant that an explosion occurred, proximately causing damage to their home which was located approximately one mile away from the plant. The Lipscombs subsequently filed an amended complaint adding Counts A and B. Count A alleged damage caused by an explosion of nitroglycerin, “a dangerous instrumentality” and Count B alleged damage by “defendant’s trespass . .. causing the plaintiff’s property to be invaded by concussions and vibrations from said explosion.. .. ” At the close of the Lipscombs’ case, the trial court granted a Motion for Directed Verdict as to Counts A and B. Proceeding on the negligence count, the court charged the jury on that issue alone at the close of the evidence and the jury returned a verdict in favor of Hercules. From judgment entered on the verdict and denial of the Lipscombs’ motion for a new trial or judgment notwithstanding the verdict, the Lipscombs bring this appeal.

The first issue presented is whether the trial court erred in granting a motion for directed verdict on Count A of the amended complaint.

The Lipscombs assert that Count A stated a claim for relief on the basis of strict liability. If it did not, then Hercules is correct in urging that a party cannot try his case on one theory and then appeal on a separate theory. Vaughn v. Thomas, 372 So.2d 1309 (Ala.1979); Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974). Assuming arguendo that Count A of the amended complaint was sufficiently framed to sound in strict liability, we find no error in the directed verdict as to that count.

In the first instance, the Lipscombs’ reliance on the recent opinion of the Alabama Supreme Court in Harper v. Regency Development Company, 399 So.2d 248 (Ala.1981) is not acceptable. Harper involved the deliberate and intentional setting off of explosives in a blasting operation. The case before us involves an unintentional and accidental explosion arising from the manufacture or storing of explosives.

Secondly, even if strict liability could be said to apply to the manufacturing and/or storing of nitroglycerin, the trial court in ruling on a motion for directed verdict at the close of the Lipscombs’ case was bound by the evidence, or lack thereof, in the record at that point. The record before us is void of proof on several of the elements requisite to a claim in strict liability as delineated in Harper. We would further note that we would not be inclined to apply Harper and the Restatement (Second) of Torts espoused therein retroactively to this case which was tried to a jury on the theory of law then recognized in this state. Atkins v. American Motors Corporation, 335 So.2d 134 (Ala.1976) and Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), cited by the Lipscombs, are likewise inapplicable to the case before us. These cases did apply strict liability, but recovery was based on an extended manufacturer’s liability doctrine. We are not here concerned with the manufacture or sale of a dangerously defective product causing damage in the hands of the ultimate consumer or user.

The second issue presented is whether the trial court erred in directing a verdict against the Lipscombs on Count B of the amended complaint sounding in trespass. To hold this to be error would require a finding by this court that an unintentional invasion of the Lipscombs’ property by concussions and vibrations absent the depositing of any particulate matter is a trespass. We do not so find.

The Lipscombs rely heavily on the decision in Borland v. Sanders Lead Company, 369 So.2d 523 (Ala.1979). Contrary to their argument in brief, Borland does not lead to the inescapable conclusion that invasion by concussion will amount to an actionable trespass. In Borland, the property owner was seeking recovery for the pollution of his property by lead particulates and sulfox-ide deposits. After a discussion of the difference between trespass and nuisance, the Borland court stated,

For an indirect invasion to amount to an actionable trespass, there must be an interference with plaintiff’s exclusive pos-sessory interest; that is, through the defendant’s intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res.

Id. at 530.

Alabama case law rejects the theory that mere concussion caused by blasting operations constitutes a trespass. Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969). In Coalite the court distinguished injuries from concussion or vibration from a trespass by the casting of debris or rocks onto the land of another. The court held further that where one is lawfully blasting on his own property, it must be shown that the injury resulted from negligence in the blasting operation for liability to be imposed.

In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), the court reaffirmed the existence of a cause of action for indirect trespass. Here again, however, there was an actual deposit of some physical matter (asphalt) on the plaintiff’s land.

Born v. Exxon Corporation, 388 So.2d 933 (Ala.1980), sums up the position taken by the courts of this state. While recognizing a cause of action for indirect trespass, the court in Bom held that in order for one to be liable to another for trespass, a person must intentionally enter upon the land in possession of another or must intentionally cause some substance or thing to enter another’s land. The court distinguished Bor-land and Rushing on the basis that in Born the only invasion was by light and odor. There was no deposit of particulate matter. If the concept of common-law trespass is to be supplanted as discussed in dicta of substantial length in Borland, it must be done by our court of last resort. This may be the “appropriate case” which may release the “judicial restraint” held so stoutly in abeyance by that court in Borland.

The last issue presented by the Lipscombs is whether the trial court erred in its instructions to the jury at the close of all the evidence.

As the directed verdict on Counts A and B was not in error, the court’s refusal of the Lipscombs’ requested instructions on those issues was proper as such instructions were no longer applicable.

The Lipscombs also allege that the giving of Hercules’ requested instruction number 15 was erroneous as to both its timing and its content. Requested charge number 15 was as follows:

[WJhere the Defendant is conducting a lawful operation on its own premises, the Defendant is not liable to an adjoining or a neighboring land owner for damages caused by an explosion on the Defendant’s property unless the Plaintiffs have reasonably satisfied you from the evidence that the Defendant was negligent in the mode or circumstances of its operation. (R. 244)

The Lipscombs assert that the giving of this charge at the conclusion of the court’s oral charge was prejudicial because it unduly emphasized Hercules’ position. According to the record before us, the court did not reveal which party requested the charge, only that it was a requested charge. We can find no precedent in this state for the proposition that either the preface to or the placement of the charge was violative of Rule 51, A.R.C.P.

Objection to the content of the charge centered on the “mode and circumstances” language. The charge itself was not an incorrect statement of the law. Ex parte Birmingham Realty, 183 Ala. 444, 63 So. 67 (1913). Furthermore, the reviewing court must look to the total effect of the entire jury charge to determine if there was reversible error. Price v. Jacobs, 387 So.2d 172 (Ala.1980); Nelms v. Allied Mills Company, 387 So.2d 152 (Ala.1980).

In view of Rule 45, A.R.A.P., we cannot say that either the refusal of the Lip-scombs’ requested charges or the giving of Hercules’ requested charges was so prejudicial as to constitute reversible error.

Finding no errors warranting a reversal, this case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice. EMBRY, Justice JONES, Justice

text:
    Ex parte Albert D. LIPSCOMB and Bonnie A. Lipscomb. (Re Albert D. LIPSCOMB, et al. v. HERCULES, INC.)
    81-134.
    Supreme Court of Alabama.
    May 21, 1982.
    E. L. Brobston, Bessemer, for petitioners.
    Robert G. Tate of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for respondent.
   BEATTY, Justice.

WRIT QUASHED, 414 So.2d 82, AS IMPROVIDENTLY GRANTED.

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

EMBRY, J., concurs specially.

FAULKNER, JONES and ADAMS, JJ., dissent.

EMBRY, Justice

(concurring specially):

By concurring to quash the writ in this case I avail myself of the opportunity to call attention to my views regarding strict liability in cases of damages resulting from explosives as expressed in my dissent in Harper v. Regency Development Co., 399 So.2d 248 (Ala.1981).

JONES, Justice

(dissenting).

I respectfully dissent. The Court of Civil Appeals’ affirmance of the trial court’s grant of the defendant’s motion for directed verdict on the strict liability count is grounded principally on two propositions: 1) Harper should not be retroactively applied; and 2) the instant case is distinguishable from Harper in that the explosion in the instant case was accidental.

As to the quasi-prospective application of Harper issue, suffice it to say that this is a sparingly applied doctrine and there is not the slightest hint in this Court’s opinion in Harper that the Harper holding was intended to be restricted to that case and to causes of action arising on and subsequent to the date of the Harper opinion. Just as Casrell and Atkins were not so limited, Harper was not intended to apply only to future causes of action.

Turning now to the central thrust of the Court of Civil Appeals opinion, I can only observe that the mere posing of the intentional/accidental explosion dichotomy denotes a misunderstanding of the very premise upon which Harper is based. It is the carrying on of an abnormally dangerous activity that subjects one to liability for harm to another resulting from such activity. The manufacture and storage of nitroglycerin is, in every respect, as much an abnormally dangerous activity as the intentional carrying on of blasting operations for commercial or industrial purposes.

Indeed, one entire section of the Harper opinion is entitled “An Abnormally Dangerous Activity Constitutes Negligence.” To be sure, Harper addressed that activity in the context of an intentionally conducted blasting operation; but the basic principle upon which the Harper holding is founded is not so limited. The official Comments to the Restatement (Second) of Torts, §§ 519 and 520, abound with examples which include both intentionally conducted activities and maintenance and control of conditions and substances, all of which fall within the broad category of abnormally dangerous activities. Likewise, the case law in those states which have adopted these sections of the Restatement without equivocation include within the term “one who carries on an abnormally dangerous activity” those who store abnormally dangerous substances as well as those who intentionally conduct operations which utilize such substances.

Furthermore, the distinction relied upon the Court of Civil Appeals for rejecting the strict liability rule of the Restatement is totally without rational basis. The purpose for the imposition of strict liability in this kind of case is the shifting of the culpability test “to the conduct of the blaster in carrying on an abnormally dangerous activity which subjects innocent parties to an unreasonable risk of harm.” It is the control and dominion over the abnormally dangerous substance under ultrahazardous conditions that is characterized as the wrongful conduct within the traditional “duty/breach of duty principle of tort law.”

To quote directly from Harper: “The use of the explosives under abnormally dangerous conditions is negligence, and thus actionable if such conditions proximately caused damage to another.” Harper continues, “[Liability for an abnormally dangerous activity arises out of the intrinsic danger of the ultrahazardous activity itself and the risk of harm it creates to those in the vicinity.”

The “use” in the instant case consists of the Defendant’s manufacture and storage of the abnormally dangerous substance under its exclusive control. The reason for the rule of strict liability in no way diminishes just because the activity is one of intentionally storing as opposed .to intentionally exploding. Both constitute the carrying on of an abnormally dangerous activity.

Comment f, “Abnormally dangerous,” to § 520 of the Restatement states:

“Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence.”

These inquiries necessarily become issues of fact for the jury. I would reverse with instructions to remand the cause for trial on Count A.

      . Harper v. Regency Development Co., Inc., 399 So.2d 248 (Ala.1981).

      . Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976).

        . Atkins v. American Motors Corporation, 335 So.2d 134 (Ala.1976).

      . For a series of cases applying the strict liability rule of § 520 of the Restatement to the storage of substances far less inherently dangerous than nitroglycerin, see Cities Service Co. v. State, 312 So.2d 799 (Fla.Dist.Ct.App. 1975) (storage of phosphate slime); Clark-Aiken Co. v. Cromwell-Wright Co., 367 Mass. 70, 323 N.E.2d 876 (1975) (storage of large quantity of water); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971) (storage of poisonous gas); Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (Md.1969) (storage of gasoline).


text:
    Mildred PIEL, as Executrix of the Estate of Matthis W. Piel, Deceased v. James Allen DILLARD.
    Civ. 2787.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.
    Rehearing Denied Feb. 10, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-443.

      Frank W. Riggs, Montgomery, for appellant.
    Roger C. Appell, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

This case arises out of a claim by James Allen Dillard for legal malpractice. From a jury award of $7,000 rendered against her husband’s estate, Mildred Piel, as executrix, appeals to this court.

On April 25, 1977, Mr. Dillard was involved in an automobile accident with Margaret Boswell and another driver. Mrs. Boswell died as a result of injuries received in the collision. Prior to the accident, Mr. Dillard had developed Parkinson’s Disease. The physical and emotional trauma occasioned by the accident allegedly aggravated the symptoms of the disease. Mr. Dillard sought the services of Matthis W. Piel, an attorney, to recover damages from the estate of Mrs. Boswell for the injuries he sustained in the accident. The Boswell estate was opened on April 29, 1977, and closed on December 8, 1977. Mr. Piel did file suit on behalf of Mr. Dillard on April 19, 1978. The action was dismissed, however, on a motion for summary judgment because of Piel’s failure to file within the six-month period as provided by § 43-2-350, Code (1975).

In October 1979 Dillard filed a malpractice suit against Matthis W. Piel, Richard Piel, Horace N. Lynn, Michael Goodson and Piel and Lynn. Matthis W. Piel died on January 12, 1980. On April 16, 1980, Piel’s attorney filed a suggestion of death with an attached Certificate of Service averring mailing to Mr. Dillard’s attorney at the following address: Roger C. Appell, Suite 15, 2155 11th Court South, Birmingham, Alabama 35205. On November 7, 1980, Piel’s attorney moved to dismiss for failure of plaintiff to timely substitute the proper party under Rule 25, A.R.C.P. On November 17, 1980, Dillard’s attorney moved to substitute Mrs. Piel as executrix of her husband’s estate. After a hearing on these motions, substitution was allowed and the case went to trial. A motion for directed verdict in favor of the estate was made at the close of Dillard’s case. The motion was denied. The jury awarded Dillard a verdict of $7,000. Mrs. Piel appeals from the trial court’s denial of her motion for a JNOV or in the alternative a new trial.

The first issue presented is whether the trial court erred in denying the motion to dismiss for Dillard’s attorney’s failure to substitute Mr. Piel’s personal representative within six months of the filing of a suggestion of death on the record.

Rule 25(a)(1), A.R.C.P. provides as follows:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. (Emphasis added.)

Rule 5(b) provides:

Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, .... (Emphasis added.)

When service of a paper may be made upon a party or his attorney by mailing it to his last known address, such service is deemed complete upon mailing. Brown v. Brown, 374 So.2d 332 (Ala.Civ.App.), cert. denied, 374 So.2d 334 (Ala.1979). In the instant case the suggestion of death was mailed on or about April 16,1980. The motion for substitution of parties was not filed until November 17, 1980, some seven months later. According to Rule 25(a)(1), A.R.C.P., the action pending against Piel should have been dismissed. Dillard argues, however, that the running of the six-month time period does not effectively begin on mailing if the suggestion of death is not mailed to the “last known address.” The address to which the suggestion of death was mailed was not the address of Dillard’s counsel appearing on the original complaint nor any subsequent pleading of either party. The record does not disclose legal evidence of whence it came. It was not the address of counsel at the time of mailing. See, Bergfeld v. Campbell, 290 F.2d 475 (5th Cir. 1961). Dillard’s attorney testified at the hearing on the motions to dismiss and to substitute a party that he did not receive the suggestion of death until possibly as late as two or three months after it was mailed. In event of receipt in either June or July, the substitution filed on November 17, 1980, was within six months of notice. We consider that service by mailing is not deemed complete unless mailed to the last known address of the party or counsel, as the case may be, or until received.

Rule 6(b) provides:

When by these rules ... an act is required or allowed to be done at or within a specified time, the court for cause shown may ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . .

Whether the trial court found that the suggestion of death was not mailed to the “last known address" of Mr. Dillard’s attorney or that Rule 6(b) would allow an extension of the prescribed time period, we find no error in its allowance of the substitution of Mrs. Piel as representative of her husband’s estate.

The second issue raised by Mrs. Piel is whether there was sufficient evidence to submit to the jury the question whether Dillard employed Piel within the six-month claim period against the estate of Margaret Boswell. Mrs. Piel asserts that a directed verdict should have been granted at the close of Dillard’s case because evidence of the existence of a duty was insufficient.

The elements of an action against an attorney in his professional capacity for negligence are essentially no different from those of any other negligence suit. Malloy v. Sullivan, 387 So.2d 169 (Ala.1980). To recover, one must prove a duty, a breach of that duty, that the breach was the proximate cause of the injury, and damages. Herston v. Whitesell, 348 So.2d 1054 (Ala.1977).

The scintilla rule applies in this state. Reed v. Walters, 396 So.2d 83 (Ala.1981). When a directed verdict is requested, the entire evidence must be viewed in the light most favorable to the non-moving party, and it should be refused where reasonable inferences may be drawn unfavorable to the moving party or where there is a conflict in any material matter at issue. Baker v. Chastain, 389 So.2d 932 (Ala.1980).

It is evident that Piel did act on behalf of Dillard for he eventually filed suit against Mrs. Boswell’s estate. The disposi-tive issue is whether the employment relationship began within the six-month claim period. Dillard testified that shortly after the accident he went to Piel’s office and went approximately fifty times thereafter. He introduced into evidence a letter dated September 6, 1977, which was written to Piel by Dillard’s physician apprising Piel of Dillard’s medical condition after the accident. The jury could have drawn the reasonable inference that attorney-client relationship between Dillard and Piel existed prior to the expiration of the six-month claim period. We find no error in the submission of this issue to the jury.

The third issue presented is whether there was sufficient evidence to submit to the jury the question whether a breach of duty by Piel was the proximate cause of Dillard’s injury. Dillard presented expert testimony to the effect that a reasonably prudent attorney should be aware of the applicable statute of limitations for filing a claim against an estate. There was evidence to support a finding by the jury that the dismissal of Dillard’s claim against Mrs. Boswell’s estate was the result of Piel’s failure to timely file the complaint. Submission of the issue to the jury was not error.

The fourth and fifth issues presented by Mrs. Piel concern the question whether Dillard’s medical expenses were the proximate result of Mrs. Boswell’s negligence. Mrs. Piel asserts that the trial court erred in admitting evidence of Dillard’s medical expenses in the absence of expert evidence that such bills were for treatment incurred as a proximate result of Mrs. Boswell’s negligence. The trial court refused to charge the jury that it could not award damages for medical expenses or for medical disability. In the record before us there was expert testimony as to the reasonableness of Dillard’s medical expenses. Furthermore, his wife and business associates testified to a marked deterioration in his condition following the accident. In Alabama a lay witness familiar with the physical condition of an injured person before and after an injury is competent to testify to changes in that condition after an injury. Perrine v. Southern Bitulithic Company, 190 Ala. 96, 66 So. 705 (1914). Dillard’s own testimony supported a finding of disability. A lay witness may testify as to his own inability to work. Prescott v. Martin, 381 So.2d 240 (Ala.1976). Expert medical testimony concerning proximate causation was sufficient to raise a reasonable inference that the trauma of the accident was the cause of Dillard’s progressive deteriorated condition. In view of the scintilla rule, the admission of evidence on the issue of medical expenses was not error.

The last issue is whether the trial court erred in charging the jury that Mrs. Piel had the burden of proving contributory negligence on the part of Dillard in order to preclude recovery. Mrs. Piel relies on Herston v. Whitesell, supra, and Malloy v. Sullivan, supra, for the proposition that Dillard cannot recover against Piel’s estate unless he proves he would have recovered against Mrs. Boswell’s estate. It does not follow, however, that such proof includes a negation’ of all possible affirmative defenses which Mrs. Boswell’s estate might have raised in the original suit. The burden of proving contributory negligence rests with the defendant. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1973). We find no error in the trial court’s charge on the issue of contributory negligence.

Finding no error this cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ„ concur.

      . On December 5, 1980, summary judgment was granted in favor of all of the defendants except Matthis W. Piel.


text:
    McLENDON POOLS, INC. v. Keith L. BUSH.
    Civ. 2713.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied March 10, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-523.

      Francis Payne Ralph, Troy, for. appellant.
    Benjamin E. Pool, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

Keith L. Bush entered into a contract on May 6, 1978, with McLendon Pools, Inc., through its agent Jack Adger for construction of a “vinyl liner” pool at Bush’s home in Lowndes County, Alabama. The contract price was $6,725. Problems developed with the pool soon after it was completed. Bush filed suit against McLendon Pools on September 21, 1979, in the Montgomery County District Court for breach of contract. Following denial of the pool company’s motion to dismiss or to transfer to proper venue, the district court entered judgment for Bush in the amount of $2,109.82. McLendon Pools appealed to circuit court for trial by jury and reasserted its motion to dismiss or transfer to proper venue, which motion was denied.

Bush amended his complaint to include breach of warranty, express and implied, and breach of warranty of merchantability, as well as the breach of contract originally pleaded. He alleged that the pool was not constructed in a workmanlike manner.

After hearing on the motion to dismiss or transfer was denied, the case was tried to a jury. The jury returned a verdict for Bush in the amount of $10,000. McLendon moved for judgment notwithstanding the verdict or new trial, which motion was denied. McLendon appeals.

The following issues are raised on appeal:

1. Whether venue was proper;
2. Whether a portion of the $10,000 award was punitive or special damages and due to be set aside;
3. Whether the damage award was excessive;
4. Whether evidence concerning McLen-don Pools and third parties should have been excluded where no similarity between those instances and this one were shown;
5. Whether appellant’s counsel was given sufficient opportunity to object to the court’s oral charge under Rule 51, A.R.C.P.;
6. Whether recovery can be had on items specifically excluded from warranty under the contract; and
7. Whether the evidence was sufficient to support damages in excess of the total contract price where no value of the pool as constructed was offered.

The first issue concerns venue. Appellant contends that it does business in Pike County, Alabama, only accepts contracts at its home office, and does not do business by agent in Montgomery County. The pertinent venue statute is § 6-3-7, Code (1975), which reads in pertinent part:

[A] domestic coloration may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose.. ..

We note that the home office of McLendon Pools was located in Pike County, the pool was built in Lowndes County and suit was brought in Montgomery County. The record reflects that McLendon Pools was doing business by agent operating out of Montgomery to solicit pool buyers and sign binding contracts therefor. Such agent sold Bush the pool and signed the contract on behalf of McLendon. An ad in the Montgomery telephone directory set out that McLendon Pools was “one of Montgomery’s largest pool builders,” and listed a local telephone number and address. The trial court found venue to be proper in Montgomery County. We agree. See, Tennessee Coal, Iron & R. R. v. Bunn, 202 Ala. 22, 79 So. 360 (1918).

Three issues on appeal involve the measure of damages recoverable in an action for breach of contract, express and implied warranty and the warrant of merchantability. In applying the proper standard to the facts here, we must take into account several general rules of law.

Damages recoverable in cases of this nature are those that are the natural and proximate consequences of breach and must have been in the contemplation of the parties at the time the contract was made. Scott Southern Division Employee's Credit Union v. Loftin, 50 Ala.App. 571, 281 So.2d 283 (1973). General damages are those that naturally and necessarily flow from a wrongful act; special damages are those that flow naturally, but not necessarily, from the wrongful act. Crommelin v. Montgomery Independent Telecasters, 280 Ala. 391, 194 So.2d 548 (1967).

Our law recognizes that punitive damages are not recoverable for breach of contract. Wood v. Citronelle-Mobile Gathering System Co., 409 F.2d 367 (5th Cir.1968); Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (Ala.1973). The purpose of damages in a case such as this is to restore the injured party to the condition he or she would have occupied if the contract had not been breached. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala. 1979); Mid-State Homes, Inc. v. Berry, 359 So.2d 401 (Ala.Civ.App.1978). Special damages not pleaded are not recoverable. Crommelin, supra; Revel v. Prince, 37 Ala. App. 457, 69 So.2d 470 (1954). The jury’s assessment of damages cannot be based on speculation or conjecture, Briggs v. Woodfin, 388 So.2d 1221 (Ala.Civ.App.1980); Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975).

Applying these rules to this case, and despite the rule that a jury verdict will be reviewed with all favorable presumptions, Shiver v. Barrow, 45 Ala.App. 495, 232 So.2d 676 (1970), we find there was not evidence to support the amount of damages awarded. The general measure of damages in a case of this type is the difference between the market value of the pool as completed and the market value of the pool as warranted. Converse Bridge Co. v. Geneva County, 168 Ala. 432, 53 So. 196 (1909); Fleming v. Lunsford, 163 Ala. 540, 50 So. 921 (1909). No evidence of such measure was presented. The only evidence as to amount of damages was an estimate of $1,600 to replace the cracked concrete deck around the pool and $698 expended for a larger filter stated to be necessary to properly filter the pool.

There were statements in the evidence as to annoyance and inconvenience, but there were no instructions as to such being a source of damage in the court’s charge to the jury. Generally, such damages are not recoverable in a contract action, though an exception has been made to the general rule in some home construction and improvement eases. B & M Homes, Inc., supra; F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932); Hill v. Sereneck, 355 So.2d 1129 (Ala.Civ.App.1978). We do not consider that a simple breach of contract for construction of a swimming pool falls within the two exceptions to the general rule heretofore recognized by the appellate courts of this state. See Becker Asphaltum, supra. We will not presume to widen the breach in the general rule beyond its present limits. Because of the amount, in light of the evidence, it must be concluded that the verdict is largely an award of punitive damages or special damages for annoyance and inconvenience. Such an award is improper and contrary to the evidence. It is due to be set aside as hereinafter directed.

The next issue is whether the trial court complied with Rule 51, A.R.C.P., and, if not, whether that error prejudiced appellant. We note in its ruling on post-trial motion that the trial court disagreed strongly with McLendon’s contention that no opportunity was given counsel to object to the disposition of the written charges and to the oral charge as provided by Rule 51. The record itself does not aid. It indicates that the oral charge was completed and the jury directed to retire and consider its verdict. Though there is no indication that the court followed the usual procedure of asking counsel if they had objection to the charge, neither does it appear in the record that counsel stated objection or requested opportunity to do so. As we read Rule 51, A.R.C.P., the onus for objection is upon counsel. The rule does not require the court to initiate the opportunity to object, only that opportunity be given to make the objection out of the hearing of the jury. We conclude that if counsel fails to request the opportunity to object, the court will not be in error for not affirmatively offering it.

Another issue raised by appellant is whether evidence of the pool company’s business with third parties was properly admitted where there was no showing of similarity of circumstances with the case at trial. The doctrine espoused here is that referred to as res inter alios acta, which is based on irrelevancy. Loftin Rent-All, Inc. v. Universal Petroleum, 344 So.2d 781 (Ala.Civ.App.1977). We note that this doctrine has been eroded. See, McElroy, § 21.01(8) (3rd ed. 1977). Also, the evidence in question was admitted for the most part as impeachment and without objection. We find no prejudicial error in this regard.

The last issue on appeal is whether recovery could be based on items specifically excluded from warranty under the terms of the contract. This issue refers to the exclusion in the contract of any warranty as to machinery furnished other than the warranty of the manufacturer. The complaint as to the filter furnished and subsequently replaced was not to its mechanical performance, but to its inability to properly filter the pool because it was too small. Under the evidence the jury could determine that defendant failed in its contract by installing a filter too small for its job. Thus its replacement cost was proper damages.

Unless the plaintiff-appellee remits all in excess of $2,298 by filing a remittitur with this court within ten days following the finality of this opinion, the judgment of the lower court will be reversed and the cause remanded for new trial.

AFFIRMED CONDITIONALLY.

BRADLEY and HOLMES, JJ., concur.