author: JONES, Justice.

text:
    ESTES HEALTH CARE CENTERS, INC., and Jackson Hospital and Clinic v. Bessie Ruth Cowan BANNERMAN and Barbara Cowan Hudgins, as Joint Administratrices of the Estate of Ronnie Joe Cowan, Deceased.
    80-157.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    Rehearing Denied March 19, 1982.

      McCoy Davidson of Roberts & Davidson, Tuscaloosa, Jasper P. Juliano and W. J. McDaniel, Birmingham, William J. Donald, Tuscaloosa, for appellant Estes Health Care Centers, Inc.
    Perry Hubbard, W. Ryan deGraffenried, Jr., and Jay Guin of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellees.
   JONES, Justice.

This is an appeal from a judgment upholding the plaintiffs’ jury verdict in a wrongful death action.

Ronnie Cowan (age 26 at the time of his death) was born severely retarded (both physically and mentally), blind, mute, and virtually deaf, and remained all of his life totally dependent upon others. Upon the death of his parents, Ronnie’s sisters (Plaintiffs) had him placed, as a ward of the state, in a state adjustment center. He was later transferred to a nursing home in Montgomery, and from there he was transferred to the Estes Health Care Center, where he resided at the time of the incident in question.

On approximately December 22, 1978 (there are no records to pinpoint the exact date), an Estes nursing aide left Ronnie in an empty bathtub in the presence of another retarded patient. The aide left the room to gather some necessary articles to complete Ronnie’s bath and his clothing and bed change, and to take a younger patient to the day room. Upon her return to the bathroom the aide found the tub in which Ronnie was sitting partially filled with hot water and the hot water still running into the tub.

The aide promptly removed Ronnie from the tub, but it was not discovered for several hours that Ronnie had been burned badly enough to cause blisters over a portion of his lower body.

The attending nursing home physician ordered that, in addition to medicinal treatments, Ronnie be given a great deal of nutrition and that he be forced to take fluids. When Ronnie failed to take in sufficient amounts of fluid to improve his condition, he was transferred to Jackson Hospital and Clinic on December 28, where he died on December 30.

Plaintiffs, as joint administratrices of Ronnie’s estate, instituted a wrongful death action against Estes. Subsequently, Jackson and two individual physicians (one associated with Estes and the other associated with Jackson) were added by amendment as parties defendant. Plaintiffs dismissed the nursing home doctor and the trial proceeded against the other three Defendants.

At the close of Plaintiffs’ case, Defendants’ respective motions for directed verdict were argued and granted as to the issue of wantonness but were denied with respect to the issue of negligence. A jury verdict was returned against Estes and Jackson with an award of $500,000. From the order denying their respective motions for new trial or, in the alternative, J.N.O.V., both Defendants appeal.

Of the multiple issues raised, two are sufficiently preserved and presented by both Defendants to merit our consideration:

1. The failure of prospective jurors to respond to certain questions on voir dire; and
2. The propriety of certain portions of Plaintiffs’ counsel’s closing argument.

Defendant Estes raises one additional issue: The admissibility of certain evidence relating to the condition of its premises. Defendant Jackson also raises one additional issue: The failure of the trial judge to give Jackson’s requested written jury instruction No. 5.

VOIR DIRE EXAMINATION OF JURORS

This issue is properly raised in the context of an adverse ruling of the trial court following an ore tenus hearing on Defendants’ motions for new trial.

Two points are raised: 1) relating to Jur- or Diggins; and 2) relating to Jurors Dig-gins and Weekly.

Mr. Diggins did not respond to the question: “Has any member of the jury panel ever been a defendant in a law suit?” During the hearing on Defendants’ motions for new trial, Mr. Diggins testified that a suit had been filed against him by a hospital, that his wages had been garnisheed, and that he had ended up in bankruptcy. He testified further that he was named as a defendant in a law suit arising out of an automobile accident which he settled with a cash payment to the plaintiff.

By way of explanation for his failure to respond to the voir dire inquiry, Juror Dig-gins stated: “My idea of a law suit was just like what I sat here and looked at .... [W]hat I thought it was, was go into court and defending myself; that was my idea of a law suit. That is the reason I said that.”

The standard against which the trial court tests alleged improper responses to voir dire inquiries is set out in Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970):

“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant.” Freeman, at 286 Ala. 166.

Furthermore, on appeal the trial judge’s decision whether the juror’s answers constituted probable prejudice “is subject to review only for abuse of discretion.” Freeman, 286 Ala. at 166.

The Freeman decision goes on to hold:

“This rule comports with logic and common sense. The trial judge heard the questions posed on voir dire and answers thereto. He is in the best position to make findings on the question of probable prejudice after the testimony is developed orally, or by affidavit, on new trial motion. His conclusions are then subject to our review for abuse of discretion.” Freeman, 286 Ala. at 167.

Here, the trial court’s decision is questionable only in the context of Juror Dig-gins’s response to the “defendant in a law suit” question. The trial judge, in exercising his discretion not to grant a new trial, correctly considered the use and definition of the term “law suit.” While taking into consideration that “law suit” is clearly understood by members of the legal' profession, the court was well within the bounds of its discretion to take into account that this term is subject to other interpretations by the lay person and to accept what Juror Diggins maintained was his understanding of a “law suit.”

The second point raised under this issue relates to the failure of Jurors Diggins and Weekly to respond to the inquiry: “Does any member of the jury panel have a close relative—by that, a parent, brother, sister, child—who is at this time or has been in a nursing home or an institution of that kind?”

The testimony of both Jurors Diggins and Weekly, at the hearing on Defendants’ motions for new trial, revealed that each juror did have a relative in a nursing home at the time of the trial. We note that in both cases the relative institutionalized was a grandmother. The lawyer’s voir dire inquiry, however (to which both men gave an original negative response), was qualified by the definition of “close relative” as a “parent, brother, sister, child.” In view of the narrowed scope of the question as posed, we can find no reversible error in the trial court’s acceptance of the answers given by Jurors Diggins and Weekly.

Moreover, the trial judge was justified in concluding that neither of these negative responses, in the context given, resulted in probable prejudice to the Defendants. Cf., Ex parte Ledbetter, 404 So.2d 731 (Ala.1981).

PROPRIETY OF CLOSING ARGUMENTS

Defendants further urge our reversal of the trial court’s decision because of the allegedly improper and prejudicial nature of Plaintiffs’ counsel’s closing argument. Specifically, Defendants objected to that portion of the argument wherein Plaintiffs’ counsel stated:

“How valuable and how precious is human life? Ladies and gentlemen, how valuable and how precious are the hostages over in Iran? How much would this country pay to have those individuals back?
“Would any amount of money suffice for those lives? How much are the lives of all the Cuban refugees that our tax dollars are going to support, how much ‘are they worth? They are human beings, also.”
“. .. [A]nd I submit to you that the life that Ronnie Joe Cowan had during his lifetime was worth as much to him as mine is to me and any other individual in the world is to them. And he had the right to live his life in the fullest and best way that he would. And, but for the fact that they burned him, and but for the fact that the treatment in Jackson Hospital, and the fact that that boy was dehydrated, I submit to you that he would be here today.”

These statements, Defendants claim, amounted to an argument for an award of damages compensatory in nature rather than punitive.

It is settled tha,t under Alabama law (Code 1975, § 6-5-410) the only damages recoverable in a wrongful death action are punitive in nature, determined by the gravity of the wrong done, the propriety of punishing the wrongdoer, and the need for deterring others from committing the same or similar wrongful conduct. Merrell v. Alabama Power Company, 382 So.2d 494 (Ala.1980); Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958).

Furthermore, argument of counsel appealing to the jury for an award of compensation for an individual’s death as measured by the material worth of his or her life is improper. Hardin v. Sellers, 270 Ala. 156, 117 So.2d 383 (1960).

The very purpose of punitive damages, then, in a wrongful death context, rests upon the Divine concept that all human life is precious. The language of § 6-5-410 is that recovery may be had for “such damages as the jury may assess.” The judicial interpretations of our wrongful death statute have developed this principle: While human life is incapable of translation into a compensatory measurement, the amount of an award of punitive damages may be measured by the gravity of the wrong done, the punishment called for by the act of the wrongdoer, and the need to deter similar wrongs in order to preserve human life. The wisdom of this principle is all too dramatically exemplified by the station in life of Ronnie Joe Cowan. See Geohagan v. Genera] Motors Corporation, 291 Ala. 167, 279 So.2d 436 (1973).

We hold, then, that the trial court correctly ruled that compensation was not the measure of damages sought by Plaintiffs’ counsel when he referred to the value of human life in his closing argument — it is indeed the value of life itself upon which punitive damages are premised. This must be the rule in view of the extremely difficult responsibility resting upon a jury in a wrongful death action: to equate the wrong done — the wrongful taking of human life — with a monetary award.

In the instant case, we find no evidence that the jury retired with the attitude of awarding compensatory rather than punitive damages. On the contrary, the trial judge, in his oral charge, was careful to exclude any indication of compensation in the event the jury should make an assessment of damages. This was clearly evidenced by the posture of a question asked of the trial judge by the foreman of the jury, indicating the jury’s understanding that the nature of the allowable damages was punitive:

“In the case that we find guilty or not guilty, the amount that you have down for Mrs. Bannerman, or whatever, is the amount supposed to be the punishment that we put if we render an innocent or guilty — is that what this is the purpose of? Is it a punishment?
“THE COURT: ‘Yes, sir, it is in the form of a suitable fine, penal in nature.’ ”

ADMISSIBILITY OF EVIDENCE

Defendant Estes maintains that the trial court committed reversible error in admitting evidence of the temperature of the nursing home’s hot water as taken on January 2 or 3, 1978 — approximately one week after the incident occurred. The error, says Estes, lies in the admission of the results of a water temperature test which was not direct evidence of the water temperature on the day Ronnie was found in the bathtub. Citing S. H. Kress & Co. v. Barratt, 226 Ala. 455, 147 So. 386 (1933), Estes reminds us that evidence of this sort “is competent only upon its first being made to appear that the conditions were substantially the same on the two occasions.” Barratt, 226 Ala. at 459.

“Substantially the same,” however, does not require total identity of circumstances; it requires, instead, a “similarity of conditions to give an experiment sufficient probative value to warrant its admission, and if the conditions were dissimilar in an essential particular, the evidence should be rejected.” Louisville & Nashville R. Co. v. Sullivan, 244 Ala. 485, 490, 13 So.2d 877 (1943). Neither is direct proof a requisite to the admissibility of the results of tests such as these (Southern R. Co. v. Lefan, 195 Ala. 295, 70 So. 249 (1915)); and “the lack of exact identity affects only the weight and not the competency of the evidence.” Sullivan, 244 Ala. at 490. Furthermore, the decision whether the “sufficiently similar” criterion for this evidence has been met rests largely within the sound discretion of the trial court. Sullivan, supra.

Testimony concerning the hot water temperature came from both Mr. Triplett, administrator of Estes, and Mr. Clark, the maintenance man for Estes. That testimony, heard by the trial judge, indicated the temperature of Estes’s hot water was checked upon the direction of Mr. Triplett, in the presence of a City of Montgomery inspector and in the same bathtub in which Ronnie had been placed by the aide. Mr. Clark, who is in charge of the management of the entire Estes facility and the necessary maintenance personnel, testified that, to his knowledge, the water temperature had been neither checked nor adjusted since Ronnie’s injury occurred.

Taking all these circumstances into consideration, we hold that the trial judge, upon hearing the evidence concerning the hot water temperature at the nursing home, did not abuse his discretion in admitting this evidence.

FAILURE TO GIVE REQUESTED JURY CHARGE

Defendant Jackson claims that the trial judge committed reversible error in refusing to give Jackson’s written requested jury charge No. 5. That charge, alleges Jackson, stated a correct principle of law which was applicable to the instant case and which was not covered by the judge’s oral charge.

The refused written charge stated:

“I charge you the fact that Ronnie Joe Cowan died while under the care and treatment of the Defendant, Jackson Hospital and Clinic, Inc., does not in and of itself mean that the Plaintiffs are entitled to recover a judgment against the Defendant Jackson Hospital and Clinic, Inc. The Plaintiffs have the burden of proof in this case to reasonably satisfy you from the evidence that Jackson Hospital and Clinic, Inc., did not use the care, skill and diligence that the ordinarily skilled hospital in the same general neighborhood uses under like or similar circumstances and that this failure to exercise such care, skill and diligence on the part of Jackson Hospital and Clinic, Inc., was the direct cause of the death of Ronnie Joe Cowan. If the Plaintiffs have not reasonably satisfied you of these facts, from the evidence, then they have failed to meet the burden of proof required by law and are not entitled to a verdict against the Defendant Jackson Hospital and Clinic, Inc.”
The trial court’s oral charge, however, when viewed in its entirety, sufficiently covered all principles of law which govern the correct disposition of the issues of this case.

Specifically, the trial judge’s oral charge included the following statements:

“The complaint alleges against the defendant Jackson Hospital, that the defendant undertook to provide hospital and nursing care to the deceased, and that the defendant negligently failed to provide proper hospital and nursing care to the plaintiff’s intestate.
“The defendants, in response to these allegations ... have each separately entered pleas of the general issue or general denial. Under the law, a plea of the general issue has the effect of placing the burden of proof on the plaintiffs to reasonably satisfy you from the evidence, the truth of those things claimed by them in the bill of complaint. The defendants carry no burden of proof.
“As to the defendant Jackson Hospital, the duty arises in that in rendering services to a patient, a hospital must use that degree of care, skill, and diligence used by hospitals generally in the community under similar circumstances.
“Negligence is not actionable unless the negligence is the proximate cause of the injury. The law defines proximate cause as that cause which in the natural and probable sequence of events and without the intervention of any new or independent cause, produces the injury, and without which such injury would not have occurred. For an act to constitute actionable negligence, there must not only be some causal connection between the negligent act complained of and the injury suffered, but connection must be by natural and unbroken sequence, without intervening deficient causes, so that but for the negligence of the defendant, the injury would not have occurred.
“If one is guilty of negligence which concurs or combines with the negligence of another, and the two combine to produce injury, each negligent person is liable for the resulting injury. And the negligence of each will be deemed the proximate cause of the injury. Concurrent causes may be defined as two or more causes which run together and act contemporaneously to produce a given result or to inflict an injury. This does not mean that the causes of the acts producing the injury must necessarily occur simultaneously, but they must be active simultaneously to efficiently and proximately produce a result.
“In an action against two or more defendants for injury allegedly caused by combined or concurring negligence of the defendants, it is not necessary to show negligence of all the defendants in order for recovery to be had against one or more shown to be negligent. If you are reasonably satisfied from the evidence in this case that all of the defendants are negligent and that their negligence concurred and combined to proximately cause the injury complained by the plaintiffs, then each defendant is liable to the plaintiffs.”

Moreover, the language of Jackson’s requested charge No. 5 — “the direct cause”— does not contemplate joint tortfeasors. To be sufficient the charge need only have been enlarged to state that the hospital’s conduct must have been one of the direct causes that combined to result in death or must have been the direct cause of death. Because Jackson’s requested charge was insufficient in this respect, it could properly have been refused.

Other alleged errors were either not sufficiently preserved or were not so prejudicial as to warrant reversal. Therefore, we affirm.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice. MADDOX, Justice

license: Public Domain

text:
    Eulene HAWKINS v. Forrest Hood JAMES, as Governor of the State of Alabama.
    80-498.
    Supreme Court of Alabama.
    March 12, 1982.

      Julian L. McPhillips, Jr., Montgomery, for appellant.
    Mary Lee Stapp, Clyde P. McLendon, Roger J. Burnett, and Ronald C. Forehand, Asst. Attys. Gen., Montgomery, for ap-pellee.
   SHORES, Justice.

This is an appeal from the trial court’s order granting the defendant’s motion to dismiss.

Ala.Const. 1901, Art. Ill, § 43, states:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

Plaintiff Eulene Hawkins alleged that Governor James had violated § 43 by an exercise of legislative powers when he issued an executive memorandum to “All Heads of Departments, Boards, etc.” on the subject of “Personnel,” which stated that:

“[N]o department, agency, board et al is to request a waiver of the 70 year old mandatory retirement without the approval of the Finance Director, and his approval is only to be given in the case when the public health of Alabama would be impaired.”

Hawkins alleged that Governor James’s executive memorandum is in violation of § 43 because it removed the permissive ability of a state employee who had reached the age of seventy to remain in employment for the State of Alabama under certain conditions, as allowed by Ala.Code 1975, § 36-27-16(a)(l)(c), which provides:

“Any employee who attains age 70 shall be retired or shall withdraw from service forthwith; except, that any employee may be continued in the state service from year to year on his application, approved by the personnel board, if evidence of physical and mental fitness is furnished.. .. ”

Ala.Code 1975, § 36-27-16(a)(l)(c), was incorporated into the Handbook for Employees of the State Personnel Department, Montgomery, Alabama, June, 1975 (Eighth Edition), which states, in part:

“Retirement at age 70 is compulsory, unless the Personnel Board, on the recommendation of the appointing authority and a medical review board, approves extension of service from year to year. Employees who want to work past age 70 must make a request and furnish a report on the physical examination forms prescribed by the Personnel Board. . .. ”

Hawkins, age seventy-four, continued in employment past her seventieth birthday by meeting the conditions of § 36-27-16(a)(1)(c). She alleged that she was still able to meet the requirements and that she would still be a paid employee of the State but for the unconstitutional exercise of legislative power by Governor James in his memorandum.

Hawkins asked the trial court to declare Governor James’s executive memorandum unconstitutional and requested a preliminary and permanent injunction enjoining and ordering defendant to reinstate plaintiff to her position in the Department of Pensions and Security, State of Alabama, with back pay from October 1, 1980, to date.

The defendant filed a motion to dismiss, claiming in part that the defendant was immune from the suit under Ala. Const. 1901, Art. I, § 14, which states “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” The trial court’s order granting the motion to dismiss does not give any reason for the same except to state:

“The Court, having considered the pleadings filed and agreements made by the parties, is of the opinion that, as a matter of law, Defendant’s Motion to Dismiss as amended, should be granted.” This appeal followed. We reverse.

The two issues linked within this appeal are:

(1) Whether the defendants were immune from suit under Ala.Const. 1901, Art. I, § 14; and (2) whether Governor James’s executive order was a violation of Ala. Const. 1901, Art. Ill, § 43.

The law concerning immunization from suit under Ala.Const. 1901, Art. I, § 14, was ably set out by Justice Almon in Gill v. Sewell, 356 So.2d 1196 (Ala.1978), wherein he said:

“In determining whether an action against a State office or agent is in fact a suit against the State, the court considers the nature of the suit or the relief demanded. Boaz Nursing Home, Inc., v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972); State v. Norman Tabacco Company, 273 Ala. 420, 142 So.2d 873 (1962).
“There are several categories of cases which do not fall within the prohibition of § 14. In Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1977), the court listed these categories as:
“ ‘(1) Actions brought to compel State officials to perform their legal duties. Department of Industrial Relations v. West Boylston Manufacturing Co., 253 Ala. 67, 42 So.2d 787; Metcalf v. Department of Industrial Relations, 245 Ala. 299, 16 So.2d 787. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So.2d 13; Southall v. Stricos Corp., supra [275 Ala. 156, 153 So.2d 234], (3) Actions to compel State officials to perform ministerial acts. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479, and cases there cited. (4) Actions brought under the Declaratory Judgments Act, Tit. 17, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation. Curry v. Woodstock Slag Corp., supra, and cases there cited.’ 287 Ala. at 229-230, 250 So.2d at 679.
“This list was never intended to be a comprehensive final list of those actions not barred by Section 14. In Unzicker v. State, 346 So.2d 931 (Ala.1977), we held that a suit may be maintained against State officials in their official capacity for acts allegedly committed fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law.”

356 So.2d at 1198.

Hawkins has alleged that the executive memorandum was made outside the authority granted to the Governor, which causes her actions to fall without the prohibition of § 14.

The touchstone in determining whether the Governor acted beyond his authority is the limitations set forth in Ala.Const. 1901, Art. Ill, § 43, and the interpreting case law. If Governor James’s executive memorandum is in violation of § 43, then Hawkins’s action is not barred by § 14.

It is commonly held that the executive cannot discharge the functions of the legislature in any manner by so acting in his official capacity that his conduct is tantamount to a repeal, enactment, variance, or enlargement of legislation. 16 Am. Jur.2d Constitutional Law, § 305 (1979).

Counsel for the Governor argues that there is no violation of § 43 because there is no requirement under § 36-27— 16(a)(1)(c) that there must be a recommendation from anyone before an employee who attains age seventy can make application for continuation in state service. Further, the Governor argues there is nothing in the statute that requires the personnel board to consider any recommendation in deciding whether or not to approve the application of the employee. Therefore, he says that the memorandum has not been shown to have any effect on this process, since the process is based only upon application by the employee and approval by the personnel board and is in no way contingent upon an approval of the finance director. We cannot agree.

Since the court’s order on the motion to dismiss considered the stipulation of facts made by the parties, the motion is to be treated as one for summary judgment and disposed of as provided in Rule 56, Alabama Rules of Civil Procedure. Rule 12(c), ARCP.

After careful review of the accompanying depositions as required by Rule 56, ARCP, we hold that, although Governor James’s memorandum by its express language does not specifically alter the requirements under § 36-27-16(a)(l)(c), Hawkins has shown that it does have a direct practical effect on the process established through that section. This is undisputedly shown by the testimony of Alabama State Personnel Director John Stanley Frazer given in response to questions in a deposition:

“Q. Now, what is the normal procedure when an employee reaches the age of seventy; and if he or she wishes to continue in employment, what must he or she do?
“A. There is a form on which the employee files an application for continuation. The form includes a— spaces for report of a physical examination. It also includes a space for review by the Medical Board of the State Retirement System. When that is submitted to this Department, we refer it to the employing department or agency — some of them are cities and counties, as you probably know — a form which provides space for the responsible party, the appointing authority to make a recommendation as to whether or not the employee should be continued or retired.
“Q. Okay. And so the recommendation comes from their own department?
“A. Right.
“Q.- And usually their department head?
“A. Right.
“Q. Or cabinet level official?
“A. It has to be the department head if it is a State department.
“Q. Right. By that, I mean not just their immediate supervisor?
“A. No.
“Q. But their very top . . .
“A. No.
“Q. ... cabinet level manager?
“A. Right.
“Q. All right. And further, does your Department, or is it the particular department from which they come that considers the evidence of their mental and physical fitness?
“A. Finally the State Personnel Board considers the entire package: the employee’s application, the physical examination report, the recommendation of the Medical Board in the Retirement System, and the appointing authority’s recommendation.
“Q. Okay. Now, who is the appointing authority?
“A. That is the department head.
“Q. Okay. Do you have any idea what weight if any is given to the Commissioner’s [department head’s] recommendation?
“A. Well, over the years, various Personnel Boards have for the most part regarded the Department Head’s recommendation as controlling, since they have no personal familiarity with the individual employee. And they therefore rely very heavily on the impressions that the people — -that the person who has the opportunity to know her and to make the recommendation has.
“Q. You say normally over the years this has been controlling. Has anything occurred in the last couple of years or so or in recent years that would make this less than controlling?
“A. The Department Head’s recommendation?
“Q. Yes, sir.
“A. No, sir.
“Q. Okay. Well, let’s say prior to the August 9, 1979, memorandum, was it a consistent policy of the Personnel Department to approve applications for continuation beyond the age of seventy if the particular Department Head approved it and even if the public health were not involved?
“A. Not the Personnel Department. The Personnel Board.
“Q. Excuse me.
“A. It was pretty much a consistent policy.
“Q. Okay. And that policy was changed by that August 9, 1979, memorandum, was it not?
“A. Yes.”

Also, the deposition taken of Alabama Department of Pensions and Security Commissioner Gary Cooper revealed that, but for the Governor’s memorandum, Cooper would have again recommended that Hawkins be continued on in employment in his department.

These excerpts of testimony show that, although the memorandum does not specifically change § 36-27-16(a)(l)(c) in that the employee still starts the process by making an application and the final determination is still made by the personnel board, it has the effect of altering the process because the pivotal consideration given by the personnel board was based upon the recommendation of the department head, which no longer can be freely given as a result of Governor James’s directive.

Therefore, the application of the memorandum has the effect of an exercise of legislative power, which violates Ala.Const. 1901, Art. Ill, § 43.

This cause is reversed and remanded to the trial court for a decision consistent with this opinion.

REVERSED AND REMANDED.

JONES, ALMON, EMBRY and BEAT-TY, JJ., concur.

TORBERT, C. J., and MADDOX and FAULKNER, JJ., dissent.

ADAMS, J., not sitting.

MADDOX, Justice

(dissenting).

While I agree that the Governor’s action did frustrate the employee’s right to continue in the state service after she attained age 70, I do not think his action amounted to a violation of the separation of powers clause of Alabama’s Constitution.

The Act [§ 36-27-16(a)(l)(c)], provides, inter alia:

“Any employee who attains age 70 shall be retired or shall withdraw from service forthwith; except, that any employee may be continued in the state service from year to year on his application, approved by the personnel board, if evidence of physical and mental fitness is furnished.... ”

The intent of the Legislature is plain:

(a) An employee shall be retired at age 70, except

(b) the employee may be continued if the Personnel Board approves.

The testimony of the State Personnel Director which is quoted in the majority opinion shows that:

(1) Applications by employees to continue past age 70 are filed with the Personnel Board, not the Governor.

(2) The Personnel Board refers the application to “the employing department or agency” to allow the employing department or agency to make a recommendation.

(3) The Personnel Board considers the entire package: the employee’s application, the physical examination report, the recommendation of the Medical Board in the Retirement System, and the appointing authority’s recommendation.

(4) The custom “over the years” was that “various personnel boards have for the most part regarded the Department Head’s recommendation as controlling....”

(5) Prior to the Governor’s memorandum it was “pretty much a consistent policy” to approve an application for continuation beyond the age of 70 if the particular Department Head approved it.

It is quite apparent that the Personnel Board, in carrying out its own legislatively delegated responsibilities under the Act, adopted a procedure which gave great weight to the recommendation of the department head, and in view of that procedure, the Governor’s memorandum did affect Personnel Board action, but did it affect it impermissibly? I think not. The Personnel Board was at liberty to continue an employee without getting the department head’s recommendation. There is absolutely no requirement in the law that the Personnel Board’s approval authority is in any way dependent upon the approval of the Governor or a department head. Under its statutory grant of approval authority, the Personnel Board, if it disagreed with the Governor’s position on continuing employees past age 70, could have changed its procedures, especially those which required departmental approval, or it could have exercised its power to continue an employee even in view of a negative recommendation from a department head. In short, the Personnel Board did opt to follow the wishes of the Governor, but it was not under any legal requirement to do so.

Admittedly, the Governor’s memorandum, especially in view of Personnel Board rules of procedure and past custom and practice, did have a chilling effect upon an employee’s right to continue in state service, but the Governor’s action was not an exercise of legislative power — the Personnel Board still had the power — it just made a policy choice to exercise the power consistent with the wishes of the Governor.

I would affirm.

TORBERT, C. J., and FAULKNER, J., concur.


author: MADDOX, Justice.

text:
    Robert C. MORROW v. E. Lloyd WOOD and Faye P. Wood.
    80-643.
    Supreme Court of Alabama.
    March 19, 1982.
    Jack Drake of Drake & Pierce, University, for appellant.
    Olin W. Zeanah and Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for ap-pellees.
   MADDOX, Justice.

This case arises out of a controversy involving a written lease agreement. The wording contained in that agreement, and the true intent of the parties with regard to that agreement, is the sole issue. The trial court ruled in favor of the tenant.

The pertinent provision of the lease, as set forth in the plaintiff landlord’s complaint, is as follows:

“For the Tenant to have and to hold from the date when Tenant opens said premises for the transaction of its retail business for the initial term of Five (5) years. The said Tenant shall, in addition, have a Five (5) year option on the same conditions as the initial term. Said option shall automatically arise upon the expiration of the initial term, unless Tenant shall give Landlord notice in writing at least ninety days (90) prior to the beginning of said option period.”

In his complaint the landlord asserted the following concerning the provision:

“The above quoted language [of the option to renew provision], considered along with the dealings of the parties and all related documents, clearly means that the lease automatically renewed and bound all parties effective October 1, 1980, unless Defendants gave the required ninety (90) day notice. No such notice was given. Accordingly, on October 1, 1980, the lease automatically renewed, binding Plaintiff and Defendants to the terms thereof until October 1,1985, provided that Defendants give the requisite ninety (90) days notice prior to October 1, 1985.”

In other words, the landlord contended at trial, and also contends on appeal, that the “option” clause of the lease agreement was, in effect, an “automatic renewal” clause; hence, contends the landlord, because the tenant did not notify him within the stated ninety-day period that he wished to terminate the lease agreement, then the lease automatically renewed and bound both parties to their respective obligations for an additional five years. We agree with the trial judge, who, after hearing the case ore tenus, made the following findings:

“It is also undisputed from the evidence that the parties never discussed the lease terms of any option or renewal thereof before executing the same. In fact, the plaintiff did not even know of the existence of the above-quoted language in the lease until the summer or fall of 1980 [some two years after the lease was entered into] when he was reviewing all of the leases in the shopping center.
“The Court further finds that the above-quoted language in the lease is ambiguous, since the term ‘option’ means ‘privilege’ in its normal and legal sense and is not synonymous with ‘automatic renewal’ as claimed by the plaintiff. The Court finds, therefore, that by the language of the lease agreement, there is no automatic renewal of the lease, but the lease merely provides that an option or privilege would arise. Since the document was prepared by the plaintiff and was for the benefit of the plaintiff, the Court finds that the said phrase should be construed against the plaintiff.
“The Court further finds that even if the above-quoted language were to be construed in favor of the plaintiff, its language and meaning would be in direct conflict with the undisputed meaning of the agreement between the parties of September 16,1976 [which was a previous agreement entered into by the parties concerning the same premises], that the defendants would guarantee the said lease payments for only four years (September 30, 1980).
“The Court finds that in any event, because of the ambiguous nature of the clause and because of the conflict between the lease terms and the [previous] agreement of September 16, 1976, that it is necessary to look at the entire transaction to determine the true intention of the parties.
“From all the evidence and exhibits, the Court is convinced that the true intention of the parties is expressed in the agreement of September 16, 1976, and that the defendants were obligated to guarantee the lease payments until September 30, 1980, which the defendants have done. The Court finds an absence of intent by the plaintiff or the defendants to modify that agreement, since, as the plaintiff admitted, the parties did not discuss increasing the defendants’ obligations nor did the plaintiff even know the above quoted language was in the lease until almost two years after it was executed.
“Accordingly, the Court finds that the defendants have fulfilled all of their obligations owing to the plaintiff under [the leasing agreement stated earlier], and, therefore, the plaintiff is not entitled to the relief requested.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT that the defendants have fulfilled all of its obligations under [the leasing agreement stated earlier], and that the defendants have no further obligation owing to the plaintiff as alleged in plaintiff’s complaint.”

This case was heard ore tenus; therefore, every presumption will be indulged in favor of the trial court, and its findings will not be disturbed on appeal unless palpably wrong or clearly erroneous. The findings of fact by the trial court and its conclusion of law are clearly supported by the very wording of the lease agreement entered into by the parties. Furthermore, its findings of fact are supported by the evidence given at trial concerning what the parties intended with regard to the lease. The judgment of the trial court, therefore, is due to be affirmed.

AFFIRMED.

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


text:
    COMMERCIAL UNION INSURANCE COMPANY v. ROSE’S STORES, INC., et al.
    80-657.
    Supreme Court of Alabama.
    March 19, 1982.

      Benjamen T. Rowe and William K. Thomas of McRight, Sims, Rowe & Stewart, Mobile, for appellant.
    Mitchell G. Lattof, Sr. of Diamond, Lat-tof & Gardner, Mobile, for appellees.
   MADDOX, Justice.

Plaintiff Commercial Union Insurance Company sought a declaration that it was not obligated to defend, as additional insureds, under a comprehensive general liability policy, two employees of Rose’s Stores, Inc., against claims for bodily injury brought by another employee of Rose’s. Circuit Judge Elwood Hogan held that under the terms of the policy, the Company was bound to defend the two employees because the policy was clearly intended to cover an employee of Rose’s against a claim by a co-employee for bodily injuries or personal injuries. We do not agree.

The facts of the case are uneontested. On June 19, 1978, defendants Simpson and Cox were named as defendants in a civil action entitled Bernard J. Seymour, Jr. v. American Baler Machine Co., et a 1., in the Circuit Court of Mobile County. The claims asserted against Simpson and Cox arose out of an accident which allegedly occurred on April 1, 1975, in which Seymour, then an employee of Rose’s, sustained certain bodily injuries arising out of and in the course of his employment. From January 1, 1975, until January 1, 1976, there was in effect a certain policy of liability insurance issued by Commercial Union which insured Rose’s against certain risks.

Coverage A of the policy provided that:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
“Coverage A. bodily injury or
“Coverage B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage... .

The policy defined the term “bodily injury” in the following terms:

“bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom; ...”

and further provided that this definition was applicable throughout the entire policy, including the endorsements.

Endorsement number 11 contained a personal injury liability insurance clause which provided, in pertinent part, as follows:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called ‘personal injury’) sustained by any person or organization and arising out of one or more of the following offenses committed in the conduct of the named insured’s business:
“A. false arrest, detention or imprisonment, or malicious prosecution;
“B. the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy, except publications or utterances in the course of or related to advertising broadcasting or telecasting activities conducted by or on behalf of the named insured;
“C. wrongful entry or eviction, or other invasion of the right of private occupancy; ...”

Also included in endorsement number 11, and at the heart of the issue in this case, was the additional insured clause which provided, in pertinent part, as follows:

“The ‘Persons Insured’ provision is amended to include any employee of the named insured while acting within the scope of his duties as such but the insur-anee afforded to such employee does not apply:
“1. to bodily injury or personal injury as described in the Personal Injury Liability Insurance section of this endorsement to (a) another employee of the named insured arising out of or in the course of his employment or (b) the named insured or, if the named insured is a partnership or joint venture, any partner or member thereof.”

We hold that the terms and provisions of this particular policy for insurance are not ambiguous; therefore, the trial court erred in finding an ambiguity.

This Court has previously held that trial courts are not empowered to insert ambiguities “by strained and twisted reasoning, into contracts where no ambiguities exist.” Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920, 924 (1960). It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist. Maryland Casualty Co. v. Allstate Insurance Co., 281 Ala. 671, 207 So.2d 657 (1968).

The additional insured clause at issue in this case clearly states that the insurance afforded to employees does not apply to injury from another employee arising out of or in the course of his employment. It could not be more explicit or straightforward. Appellees argue that the policy is ambiguous:

“The term ‘bodily injury’ and ‘personal injury’ in many instances can be used interchangeably as they can mean the same thing. An insured reading the coverage as to ADDITIONAL INSURED (EMPLOYEES) in Endorsement # 11 and reading the limiting phrase which follows ‘bodily injury or personal injury,’ in the exception to coverage, viz., ‘as described in the Personal Injury Liability Insurance section of this endorsement’ would reasonably conclude that the basic coverage afforded by the main liability policy was being extended to employees and only the additional items of personal injury added by the endorsement were being excluded insofar as claims by co-employees were concerned.
“If the intent of Plaintiff was to eliminate all liability coverage under both the main policy and Endorsement # 11 with respect to claims against employees by co-employees, Plaintiff could easily have worded its exception in unambiguous language

As we have already stated, we fail to find an ambiguity.

The terms “bodily injury” and “personal injury” are both used in the policy, but they do not necessarily mean the same thing in this policy. In fact, the terms are given two separate definitions in the provision. While it is correct that an ambiguous provision in an insurance policy is to be construed against the insurer, it is equally true that no such construction is permissible in the absence of an ambiguity. Utica Mutual Insurance Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 329 So.2d 82 (1976). See, Home Indemnity Co. v. Reed Equipment Co., Inc., 381 So.2d 45 (Ala.1980).

In granting defendant’s motions for summary judgment, the trial court erred in holding that the policy provided coverage for the employee-defendants.

REVERSED AND REMANDED.

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


text:
    Lorene CHILDRESS v. FOREMOST INSURANCE COMPANY, INC.
    80-682.
    Supreme Court of Alabama.
    March 19, 1982.

      William P. Boggs, Clanton, and Bobby E. Allen, Montgomery, for appellant.
    Donald D. Lusk of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.
   MADDOX, Justice.

This is an appeal from a directed verdict in which the trial court ruled that the insurance policy which the plaintiff had sued on had expired prior to the date of the incident alleged to have been covered under the policy. We find no prejudicial error in the trial court’s ruling, and affirm the judgment entered for the company.

The facts of the case are not complicated. Foremost Insurance Company, Inc., issued to the plaintiff a policy of insurance to cover the plaintiff’s mobile home for specified losses for a policy period effective from June 27, 1978, to June 27, 1979. The insurance policy lapsed on June 27, 1979, for non-payment of premiums. On July 2, 1979, approximately five days after the policy lapsed, the plaintiff’s mobile home was destroyed by a tornado. When the insurance company refused to pay the plaintiff’s claim for damages under the policy, the plaintiff brought this action.

At the conclusion of the plaintiff’s case, the trial court granted the insurance company’s motion for directed verdict. It is from the judgment entered on the directed verdict that the plaintiff brings this appeal.

The plaintiff contended at trial and, also argues on appeal, that under the terms of the policy which was admitted into evidence, the insurance company had a legal obligation to notify the plaintiff that her policy would expire on the stated expiration date unless sufficient premium payments were made by the plaintiff prior to that time. This árgument is based on the following clause contained in the insurance policy:

“CANCELLATION OR NONRENEWAL
“We agree to offer to renew YOUR policy unless WE mail YOU at least 45 days, but not more than 60 days before the ‘To’ date shown on Page One, written notice of OUR intention not to renew this policy. With YOUR payment of the premium WE will renew this policy....”

In Employer’s Insurance Company of Alabama, Inc. v. Hare, 292 Ala. 637, 640, 641, 299 So.2d 243 (1974), this Court stated:

“The question then is whether or not the respondent was obligated to notify the complainant that policy No. AC 99690 would expire on July 21, 1971. In our opinion no such notification was required to be given by the respondent. The express provisions of the complainant’s policy of insurance were sufficient to apprise him of the policy period and the time when his insurance coverage would expire. Where an agreement provides for termination at a certain time, no notice of termination is necessary. 17A C.J.S. Contracts, § 385(1); Moulson v. Iannuccilli, 84 R.I. 85, 121 A.2d 662. Nothing in the policy required the respondent to do anything more in the way of reminding the insured about the expiration of his insurance. The parties to the contract were at liberty to prescribe a fixed term for its duration, Phenix City v. Alabama Power Co., 239 Ala. 547, 195 So. 894.”

This Court has consistently upheld the fundamental rules of insurance law that any ambiguities in an insurance policy are to be resolved in favor of the insured and that the provisions of the policy must be construed in light of the interpretation that ordinary persons would place on the language used. Employers Insurance Company of Alabama, Inc. v. Jeff Gin Company, 378 So.2d 693 (Ala.1979). In our opinion, however, the clause concerning renewal of the policy in this case is clear on its face. It does not place the burden on the insurance company to contact the insured and make him an express offer of renewal prior to the expiration of the period which the existing policy covers, nor does it place the burden on the insurance company to notify the insured that his policy is about to terminate. Rather, the policy gives the insured a standing offer to renew the policy unless the insured is informed to the contrary; renewal is conditioned upon the payment of the premium. The plaintiff admitted at trial and, also, in her brief, that she did not pay the premium to renew the policy. The wording of the policy allows for no interpretation other than that the policy expired on June 27, 1979, and, when the plaintiff did not pay the premium to renew that policy prior to the expiration date, she became uninsured.

There is an exception to the above-stated rule:

“We have held that if an insurance company, by its habits of business, creates in the mind of a policyholder the belief that payment may be delayed until demanded, or otherwise waives the right to demand a forfeiture, this is binding on the company notwithstanding there may not have been a compliance with the express letter of the policy. Home Protection of North Alabama v. Avery, 85 Ala. 348, 5 So. 143. Such is the general rule. 45 C.J.S. Insurance § 712; 29 Am.Jur., Insurance, § 860; 3 Couch on Insurance, § 681. But that principle has no application unless the custom or usage was one of which the insured had knowledge and upon which he relied. Bosworth v. Western Mut. Aid Soc., 75 Iowa 582, 39 N.W. 903; 3 Couch on Insurance, § 681a.

Inter-Ocean Insurance Company v. Banks, 268 Ala. 25, 28, 104 So.2d 836 (1958). The exception is inapplicable under the facts of this case.

There was no evidence presented at trial that the insurance company had established any habit or custom with regard to this plaintiff nor that the plaintiff had knowledge of, and relied upon, the fact that the company normally provided such a service. In fact, this policy had only been in effect for one policy period and had never been renewed by the plaintiff before. We fail to see, nor does the plaintiff offer, any way in which the insurer could have established a business habit or custom concerning renewal with this plaintiff.

Upon our review of all the facts presented in this case, and upon our consideration of the applicable law, we find that the trial court did not err in granting a directed verdict in favor of the defendant insurance company in this case. There is not a scintilla of evidence from which the plaintiff could recover.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Jack WAITES v. John TORAN and Leslie Toran.
    80-724.
    Supreme Court of Alabama.
    March 19, 1982.
    Leo E. Costello of Costello & Stott, Birmingham, for appellant.

      W. Michael Atchison and Carol A. Smith of Starnes & Atchison, Birmingham, for appellees.
   BEATTY, Justice.

The defendant appeals from a judgment in favor of the plaintiffs in their action based upon implied warranty and fraud in the sale of a residence. We affirm.

This controversy arose when the basement wall of the Torans’ side of a duplex collapsed on May 8, 1978, less than two years after their purchase of it. This action was filed, a jury trial ensued, and the plaintiffs were awarded a verdict in the amount of $27,000.00. The defendant contends that the trial court erred in submitting the case to the jury over his motion for a directed verdict and for denying his motions for judgment notwithstanding the verdict and for a new trial.

Defendant raises three issues: (1) whether there was any evidence of reliance on the part of the plaintiffs; (2) whether the principles of implied warranty applied to the sale of premises previously rented; and (3) whether there was any evidence justifying an award of punitive damages.

The defendant, Waites, constructed the duplex house. He rented one side to a family named Henderson who occupied their side about two months earlier than the Torans began to occupy theirs. When the Torans were “househunting,” they saw a “rent or sell” sign in the front yard of the duplex. They contacted Waites and ultimately agreed to rent the new but unoccupied side. Within two weeks or a month, they began negotiating with Waites to purchase the side they occupied. The purchase agreement was ultimately executed on June 14, 1976, some three months after the To-rans began their occupancy, and the closing occurred on August 31, 1976.

The tendencies of the evidence disclose that the house in question was constructed on a relatively steep hillside, with a nine-foot-high basement wall made of hollow concrete blocks without reinforcement or bracing. A hollow block wall divided the two units. Eight to ten feet of fill dirt was piled next to the outside of the hollow basement wall against which rainfall flowed directly. The backyard was not landscaped to direct the flow of water and, there being no gutters on the roof, water discharging therefrom accumulated at the point where the basement wall eventually collapsed. There was expert testimony adduced by the plaintiffs to establish that this construction did not accord with good construction practice and caused the wall to fail. Defendant, who was present at the construction site daily, acknowledged telling plaintiffs during their negotiations that he had built the house in a good and workmanlike manner.

While plaintiffs were renting their home, and about two weeks before closing the sale, the basement wall of the home next door in the duplex collapsed. Not only were the buildings and walls built exactly alike, but the later collapse of the plaintiffs’ wall was almost identical to the first collapse. Waites contended at trial that the first collapse was caused by lightning, but it was shown that his insurance carrier denied Waite’s own claim for damages on the ground that the collapse was due to hydrostatic pressure. Indeed, following the first collapse, when Mrs. Toran asked defendant to examine their basement wall, he assured her after his examination that it was “just sweating a little bit” even though he added braces to the first wall, but not to the Torans’ basement wall.

I

On the first issue defendant insists that the plaintiffs produced no evidence that they relied upon any misrepresentation made by defendant. He points us to the education and experience of the plaintiffs and to the fact that they employed their own contractor to check the property after their discussions with the seller. Moreover, he asserts, the plaintiffs had lived in the duplex for approximately one month before they purchased it, thus putting them in the position of one who has the opportunity to investigate and does not do so. Cf. Myers v. Moody, 259 Ala. 638, 67 So.2d 891 (1953).

The evidence discloses through the testimony of Mrs. Toran, however, that the purchasers were relying upon the seller’s representation of good workmanship. After testifying to her unfamiliarity with house construction, she was asked:

Q. Who were you depending on when you bought that house to see that it was built in a good manner, and didn’t have walls collapsing?
A. Mr. Waites.

That testimony and the other evidence concerning the wall were sufficient to make reliance an issue of fact for the jury. Old Southern Life Ins. Co. v. McConnell, 52 Ala.App. 589, 296 So.2d 183 (1974).

II

Did the principles of implied warranty apply in this case? In Sims v. Lewis, Ala., 374 So.2d 298 (1979), the elements of that cause of action were delineated: (1) The plaintiffs purchased a new residence from the defendants; (2) The defendants had constructed the residence; (3) The residence had not been inhabited by any other person or persons prior to the purchase of the residence; (4) The residence was constructed by the defendants for purposes of sale and was sold in a defective condition, which defective condition impaired the intended use of the residence, namely, inhabitation; (5) Plaintiffs were not aware of the defective condition and were not possessed of any knowledge or notice by which they could have reasonably discovered it; and (6) By reason of the defective condition, the plaintiffs suffered damages in the form of a decrease in the fair market value of the residence.

The defendant contends that the establishment of certain of these elements is missing, viz., this was not a single family residence and consequently the warranty is inapplicable. Moreover, he contends that the residence was not “new” because it had been rented by the plaintiffs before they purchased it, and, in addition, that they had notice of the defect beforehand.

To limit the definition of “residence” in the context of implied warranty by excluding a duplex residence would be sophistical, in our opinion. The word “residence” means “a building used as a home.” Webster’s Third New International Dictionary (1971) at 1931. Nothing is contained in this Court’s Sims decision which would cast such a restriction upon the subject of the implied warranty approved therein, and it would be unreasonable to establish such a restriction. We have no hesitation in stating that the term “residence” in this frame of reference includes a “home” which is one side of a duplex home. Accord, Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971). Having repudiated the doctrine of caveat emptor in favor of protection for new home owners, we cannot re-impose it to discriminate against those who find it necessary or desirable to purchase that new home in the form of a duplex.

Was the residence rendered “not new” because the plaintiffs rented it for two weeks to a month before negotiating to purchase it?

It should be noted that in Sims, supra, the purchasers moved into the home after it was completed but before actually purchasing it. We judicially know that it is not uncommon for home buyers to move into a newly constructed home and to make payments in the form of rent up until the time of closing. In this case the plaintiffs followed that course—their duplex was not quite completed when they moved in, the difference being that they entered apparently under a rental agreement and did not enter purchase negotiations immediately. Under Sims what is required is that the “new” residence not have been inhabited by others prior to purchase. Here, no others had inhabited the residence. The short length of time between their occupancy and their negotiations for purchase, coupled with the fact of additional work having been done by the builder after their occupancy began and the fact that the dwelling had been constructed “for sale or rent,” made a jury question on the issue of whether the duplex was “new.” The jury obviously resolved that issue in the plaintiffs’ favor.

Did plaintiffs have notice of the defect which would preclude their recovery?

That the construction of the basement wall in question was a latent defect, not visible to observation, is unquestioned and one, therefore, which could not have been readily discovered either by the plaintiffs or their own inspector. Indeed, neither the plaintiffs nor their own inspector saw the wall being constructed, and there is nothing contained in the record to indicate that they had any reason to suspect a deficiency in its construction. Defendant, on the other hand, was on the job site frequently. Nevertheless, when the basement wall of the other component collapsed, he reinforced it in the course of repairs while reassuring plaintiffs that their basement wall was free from problems and that the collapse of the companion wall was due to lightning. Under these facts the jury was justified in finding, as they must have found, that plaintiffs were neither aware of the defective condition nor possessed of any knowledge by which they reasonably could have discovered it.

Ill

The record supports the conclusion that plaintiffs relied upon an affirmative representation that the house was built in a good and workmanlike manner. Given the manner and construction of the basement wall(s) in relation to the contour of the site and the inadequate provision for drainage, coupled with the defendant’s conduct with regard to the neighboring basement wall and his statements relating thereto, a jury question was presented on whether or not the defendant made a willful misrepresentation. See Code of 1975, § 6-5-101.

The plaintiffs adduced expert testimony that:

Nobody in good conscience is going to build a nine-foot hollow-block retaining wall, and put nine foot of dirt against it. First of all, hydrostatic pressure is going to knock it down.

Expert testimony also characterized this construction practice as “extremely dangerous.” Such testimony, when coupled with defendant’s positive representations, allowed the jury to infer either a positive intention to deceive on the part of the defendant, Geraldine Smith v. Big Three Motors, Inc., Ala., 412 So.2d 1222 (1982), or a recklessness amounting to the same thing, Loch Ridge Construction Co., Inc., v. Barra, 291 Ala. 312, 280 So.2d 745 (1973); Hall Motor Co., Inc. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970); thus the plaintiff argues that punitive damages are allowable. However, inasmuch as the jury verdict fell within the range of testimony offered on the amount of actual damage suffered, we need not elaborate on this issue.

Having found no reversible error under the issues raised, we conclude that the judgment must be, and is hereby, affirmed.

AFFIRMED.

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

      . The plaintiff produced evidence of compensatory damages ranging from $24,594.00 to $30,-487.00.


text:
    Dallas B. HALLMAN and Martha Hallman v. MARION CORPORATION, et al.
    80-830.
    Supreme Court of Alabama.
    March 19, 1982.

      John T. Crowder, Jr. and Michael S. McGlothren of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellants.
    Cooper C. Thurber and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for appel-lees.
   BEATTY, Justice.

Plaintiffs, Dallas and Martha Hallman, filed this action on June 23, 1980, in Mobile Circuit Court against defendants Marion Corporation, Kenneth Walters, and various fictitious parties seeking damages for injuries resulting from the alleged negligence and wantonness of defendants. The action arose as the result of an automobile accident. Personal service was made on Marion Corporation on July 28, 1980. Approximately three months later, on October 9, 1980, the trial court entered a default judgment against defendant Marion Corporation for $200,000.00 plus costs of court. Prior to that judgment, defendant Kenneth Walters was never served with legal process.

On February 20, 1981, Marion Corporation filed a motion requesting the trial court to reconsider or, in the alternative, to set aside the entry of default and default judgment. The defendant set forth several grounds which are summarized as follows:

(1) The default judgment was not a 'final judgment because claims remained pending against other named defendants stated in the complaint;

(2) Proper service of process was not had on the defendant in that an employee of the defendant not capable of receiving service of process was served with the summons and complaint;

(3) The entry of default and default judgment by the trial court was not obtained in a procedurally correct manner pursuant to Rule 55, Alabama Rules of Civil Procedure; and

(4) The default was excused because of mistake, inadvertence, and excusable neglect by the defendant.

After an evidentiary hearing, the trial court entered an order granting Marion Corporation’s motion to reconsider or to set aside the default judgment on condition that Marion Corporation secure the appearance of Marion Drilling and Service Corporation and Kenneth Walters as defendants in this action. Marion Corporation complied with the requirements of this order, and the default judgment was set aside on July 1,1981. The trial court issued a certificate of appealability of an order not otherwise appealable and, subsequently, we granted plaintiffs’ petition to appeal from an interlocutory order, i.e., the order setting aside the default judgment. We affirm.

Plaintiffs contend that it was error for the trial court to set aside the default judgment on any of the grounds alleged by defendant. We disagree. The default judgment on behalf of plaintiffs was not a final judgment. The claims against Kenneth Walters and certain fictitious defendants were not adjudicated at the time the default was taken against Marion Corporation. The significance of a judgment against less than all of the parties is that the judgment does “not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating ail the claims and the rights and liabilities of all the parties.” Rule 54(b), Alabama Rules of Civil Procedure. (Emphasis added.) A judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants. Ford Motor Credit Company v. Carmichael, Ala., 383 So.2d 539 (1980). Interlocutory orders and judgments are, therefore, not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires. Wright & Miller, Federal Practice and Procedure: Civil § 2852.

The granting or denying of a motion to set aside a judgment of the court involves the exercise of the sound discretion of the trial court, and that will be interfered with by an appellate court only when there is an abuse of discretion. Wade v. Pridmore, Ala., 361 So.2d 511 (1978). The trial court in the present case, by exercising its plenary power to revise the default judgment before final adjudication of the rights and liabilities of all the parties, did not abuse its discretion. The order of the trial court must be, and is, affirmed.

AFFIRMED.

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

      . A contrary result might be reached under amendments to Rules 4(f) and 54(b), ARCP, which provide that a judgment is final when it disposes of fewer than all the parties when the parties as to whom there has been no judgment have not yet been served with process. However, the effective date of those amendments is March 1, 1982, thereby precluding their applicability to the present case.


author: SHORES, Justice.

text:
    STATE of Alabama v. Donnell SHEPARD and Joyce Shepard.
    80-836.
    Supreme Court of Alabama.
    March 19, 1982.

      Gary E. Davis, Centre, for appellant.
    J. Pelham Ferrell of Ferrell & Davenport, Phenix City, for appellees.
   SHORES, Justice.

This is an appeal from a judgment denying a new trial in an eminent domain case where the State condemned a part of the Shepards’ property for a highway.

The only issue tried below was the amount of damages to be awarded for the property taken.

The only issue on the appeal is whether the trial court committed reversible error in refusing to grant a new trial on the ground that the jury verdict is excessive.

At the time of the taking, condemnees owned an auto repair business located on their property where large tractor-trailer trucks and other vehicles were repaired.

State’s witness L. E. Tyson, the right-of-way engineer for the highway department, testified in substance as follows:

After the highway project is completed, condemnees’ present and unlimited access to the existing four-lane highway or “Phe-nix City Bypass” will be blocked by a fence having a height of three to four feet. Ingress to and egress from the condemnees’ property will be by way of an access road twenty-two feet in width which the State will construct and which will have curbs on each edge or margin of same. After the project is completed and the fence and access road are in place, any large motor vehicle that enters upon the condemnees’ property by the access road will not be able to leave the property without backing about 300 feet along the access road, because of the size of the vehicle, the narrowness of the access road, and the fact that the access road will dead-end on the condemnees’ property.

The State’s appraiser fixed the damages to the property in question at $15,050.00. He arrived at that figure by fixing the value of the land prior to the date of condemnation, $60,150.00, and subtracting therefrom the value after the date of condemnation, $45,100.00. He further stated that the remaining property had use remaining after the condemnation; he stated that the property could be used as an auto repair shop, a TV and radio repair shop, a plumbing contractor’s shop, an electrical contractor’s shop, office storage, or an automobile tire sales store.

The condemnees’ expert testified that she had been engaged in the realty business in the area for ten or more years. She placed a before taking value on condemnees’ property of $120,000.00 and an after value of $36,000.00 and accordingly fixed their damages as a result of the taking at $84,000.00. In making her appraisal, she considered as valid “comparables” parcels of property which were all located on the bypass. She based her appraisal on a front-foot value rather than a square foot value, which was in keeping with local custom and usage. She consulted with other real estate people and engineers in making her appraisal. She knew of no property on the bypass that had sold for less than $450.00 a front foot; some sold for as high as $800.00 a front foot. Condemnees’ property fronts 97.5 feet on the bypass.

Donnell Shepard, one of the condemnees, testified in substance as follows:

Very large, as well as smaller-sized vehicles, are repaired at his garage on the subject property.

He placed the before taking value on his property at $150,000.00, the after value at $30,000.00 and condemnees’ damages resulting from the taking at the difference of $120,000.00.

The trial court’s general charge to the jury included the following instructions:

“Now, you are not bound by the opinions of experts as to matters about which they expressed an opinion. You may draw your own conclusions as to values in this case based upon a consideration of all of the evidence that you have heard.
“Now, in this case you have heard testimony as to the value of this property. Now, I am not trying to give you any judgment as to value of thé property. I am going to charge you, though, that you can’t return a verdict for less than $15,-050.00. That is the lower figure that you can bring. Nor can you bring in a verdict for more than $120,000.00. Those are the two variables or the two ends that you have heard testified to here today.”

The State did not object to any part of the court’s charge.

The jury returned a verdict for $75,-000.00. The State argues that the trial court erred in refusing a new trial on the single ground that the verdict is excessive. We disagree and affirm.

By a long line of cases, we have consistently held that where the jury returns a verdict which falls within the expert testimony, as it did here, we will not reverse a judgment entered on that verdict on the single ground that the verdict is excessive. We are especially loath to do so where the trial judge refuses a motion for new trial on that ground. Such is the case before us. State v. Waller, 395 So.2d 37 (Ala.1981); State v. McLemore, 387 So.2d 827 (Ala.1980); State v. Steele, 374 So.2d 325 (Ala.1979); State v. Long, 344 So.2d 754 (Ala.1977); State v. Colley Corp., 295 Ala. 204, 326 So.2d 120 (Ala.1976).

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    KWICK SET COMPONENTS, INC. v. DAVIDSON INDUSTRIES, INC.
    80-856.
    Supreme Court of Alabama.
    March 19, 1982.

      Charles C. Carter of Araguel, Sanders & Carter, Columbus, Ga., for appellant.
    R. Michael Raiford of McKoon & Raiford, Phenix City, for appellee.
   BEATTY, Justice.

Plaintiff, Davidson Industries, Inc., filed this action in Russell Circuit Court against Ira Dennis Salter, individually, and Capital Components, Inc., d/b/a Kwick Set Components, Inc., for failure to pay a debt on open account. The trial court heard testimony ore tenus, dismissed Ira Dennis Salter as a party defendant, and entered judgment against Capital Components and Kwick Set Components for $20,567.92 together with interest and court costs. Kwick Set appeals. We affirm.

Kwick Set contends that it was never named as a party defendant in this action, but only as a trade alias of the defendant Capital Components. According to Kwick Set, the two entities are separate corporations. As a result Kwick Set claims that process was never directed to it as an entity and therefore the trial court lacked jurisdiction to render judgment against Kwick Set Components, Inc., under Rule 4, Alabama Rules of Civil Procedure. We disagree.

The order holding Kwick Set liable was based upon the following findings made by the trial court:

“That Kwick Set Components, Inc., was a dominant corporation as to Capital Components, Inc. at all times pertinent to this cause of action and that Capital Components, Inc. had become a mere instrumentality of Kwick Set Components, Inc.; that the president of both corporations was one and the same, i.e., Ira Dennis Salter, and that the actions of the dominant corporation caused the plaintiff harm in the damages complained of through misuse of the control of the subservient corporation.
“The reality of this relationship indicates that the president of Kwick Set Components, Inc. purchased goods in the name of the defunct or subservient corporation and upon delivery delivered these to Kwick Set Components, Inc. who then performed jobs of a construction nature disposing of the goods and in these transactions it is to the Court as if the defunct corporation did not- exist and the justice of the case requires the Court to look directly at Kwick Set Components, Inc. for the injuries and damages caused.”

The record further reveals that Capital Components, Inc., is out of business, has no corporate office, and has been defunct since the latter part of 1979. Thereafter, Capital Components and Kwick Set entered into an agreement whereby Kwick Set would finish up certain contracts for Capital Components in return for payment. Some of the merchandise purchased by Capital Components from plaintiff was used in connection with the work subcontracted by Capital Components for Kwick Set. Although Kwick Set denies any obligation to pay for the materials shipped to Capital Components, there is evidence that Kwick Set attempted to pay at least one invoice from plaintiff. That payment was refused, however, because of insufficient funds. The testimony of Ira Dennis Salter, president of both Kwick Set and Capital Components, discloses that Salter and his father constitute the majority of the directors on both boards. Furthermore, both corporations have the same mailing address.

The liability of Kwick Set was obviously predicated upon the rule that, when one corporation controls and dominates another corporation to the extent that the second corporation becomes the “mere instrumentality” of the first, the dominant corporation becomes liable for those debts of the subservient corporation attributable to an abuse of that control. Krivo Industrial Sup. Co. v. National Distill. & Chem. Corp., 483 F.2d 1098 (5th Cir. 1973). That is, the legal fiction of separate corporate entity should not be so extended “as to enable the corporation to become a vehicle to evade just responsibility.” Forest Hill Corp. v. Latter & Blum, 249 Ala. 23, 27, 29 So.2d 298 (1947). The theory of separate corporate existence can properly be discarded, even in the absence of fraud, to prevent injustice or inequitable consequences. Woods v. Commercial Contractors, Inc., Ala., 384 So.2d 1076 (1980). Two elements are essential, however, for liability under the “instrumentality doctrine.” First, the dominant corporation must have controlled the subservient corporation, and second, the dominant corporation must have proximately caused plaintiff harm through misuse of this control. Krivo Industrial, 483 F.2d at 1103.

The second element, i.e., harm to plaintiff, has clearly been established in this case. The crucial question to be answered is whether Kwick Set, the alleged dominant corporation, controlled Capital Components. The control required under the “instrumentality” rule amounts to “total domination of the subservient corporation, to the extent that the suhservient corporation manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.” Krivo Industrial, 483 F.2d at 1107.

In the case before us, plaintiff presented evidence that (1) both corporations have the same president and board of directors and (2) Kwick Set purchased goods through the name of the defunct corporation, Capital Components, and used these goods to perform contracts. The mere fact that some or all of the stockholders or officials of two corporations are identical or because one corporation dominates the other does not, of itself, destroy the corporate identity or merge one into the other. Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 29 So.2d 298 (1947). That factor, however, combined with the apparent scheme here of the dominant corporation to avoid payment of the subservient corporation’s debts while benefiting from use of the goods causing that debt, indicates a lack of separate corporate purpose or existence on the part of the subservient corporation. The courts will not “allow the corporate entity to successfully masquerade through its officers, stockholders, representatives or associates so as to defeat the payment of its just obligations.” Id. at 28, 29 So .2d 298.

Our review of the record convinces us that the trial court had before it sufficient evidence from which it could have found that Capital Components had become the mere instrumentality of Kwick Set and that justice required the court to look directly at Kwick Set for payment of the injuries and damages caused plaintiff. Those findings and the decree based thereon are entitled to a presumption of correctness which may be overturned only if plainly or palpably erroneous. Ragland v. Walker, Ala., 411 So.2d 106 (1982).

Although Kwick Set claims that it was not properly served with process, the record reveals that process was served upon Ira Dennis Salter, the president and official agent of both Capital Components and Kwick Set. That service was sufficient to bring Kwick Set within the jurisdiction of the court. Rule 4, Alabama Rules of Civil Procedure.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    Jai M. KUTACK v. WINN-DIXIE LOUISIANA, INC.
    81-45.
    Supreme Court of Alabama.
    March 19, 1982.

      Gary A. Moore of Shores & Moore, Fair-hope, for appellant.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   BEATTY, Justice.

Plaintiff, Jai M. Kutack, appeals from a summary judgment granted to defendant, Winn-Dixie Louisiana, Inc., in a negligence action. We reverse and remand.

Plaintiff filed suit against Clifford M. Nunnally and Winn-Dixie after sustaining personal injuries in an automobile collision which occurred on February 18, 1979. The complaint alleges that “Clifford M. Nunnally ... and the owner [Winn-Dixie] of the motor vehicle being operated by Clifford M. Nunnally on that occasion, negligently caused or allowed the motor vehicle to collide with an automobile in which the plaintiff was riding as a passenger.” At the time of the accident, Nunnally and his spouse were returning to their home in Baldwin County, Alabama, from a social function held at the Mobile Municipal Auditorium, i.e., a Mardi Gras ball.

On December 12, 1980, defendant Winn-Dixie filed its motion for summary judgment accompanied by an affidavit from its co-defendant and employee Nunnally in which he stated that he was not working at the time of the accident nor was he on any form of errand for his employer, Winn-Dix-ie. Plaintiff did not offer any additional evidence to rebut the affidavit, though discovery materials in the form of answers to interrogatories and requests for admissions were already before the court. On September 3, 1981, the trial court, after reviewing the pleadings, interrogatories, requests for admissions and affidavit, entered summary judgment for defendant Winn-Dixie.

Under Rule 56, Alabama Rules of Civil Procedure, summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Bryant v. Morley, Ala., 406 So.2d 394 (1981). All reasonable inferences from the facts are viewed most favorably to the non-moving party, and the moving party is required to establish that the other party could not recover under “any discernible circumstances.” Woods v. Commercial Contractors, Inc., Ala., 384 So.2d 1076 (1980). This burden upon the movant is substantially increased by the scintilla rule which requires that a summary judgment not be granted and that a factual question be submitted to the jury if there is a mere gleam, glimmer, spark, the least bit, or the smallest trace of evidence in support of the non-moving party. Ex parte Bagby Elevator & Electric Co., Inc., Ala., 383 So.2d 173 (1980).

We agree with plaintiff that defendant Winn-Dixie failed to sustain its burden of showing that plaintiff could not recover from it under any discernible set of circumstances; therefore, the granting of summary judgment was improper. The question of agency is one of fact. Wood Chevrolet Co., Inc. v. Bank of the Southeast, Ala., 352 So.2d 1350 (1977). We find at least a scintilla of evidence in support of plaintiff’s claim that Nunnally, the employee, was acting within the line and scope of his agency relationship with his employer, Winn-Dixie, at the time of the accident in question. For example, Nunnally was asked the following interrogatory:

“5. Describe fully the policy of your employer regarding the use of the car by its employees as of the date of the collision.”

Nunnally responded:

“5. Vehicles are furnished to accomplish company business only.”

And, when Winn-Dixie was asked the following interrogatory:

“3. Did your policy, whether formal or informal, of allowing Mr. Clifford M. Nunnally use of the car to transport non-employees to social functions change in any respect after the date of the collision? If so, describe fully any such change.”

Winn-Dixie responded as follows:

“3. Winn-Dixie’s policy is that company cars are to be used for company business by employees only.”

In response to further interrogatories, Winn-Dixie stated that Nunnally is allowed use of the company car for business purposes and is reimbursed for all expenses incurred while using the car.

Defendant contends that the answers to interrogatories relied upon by plaintiff, without any further proof in the form of depositions or affidavits, are insufficient to create a material issue on the question of agency. We respectfully disagree. Under Alabama law, as well as that of federal courts, a trial court pursuant to Rule 56 may properly consider any material that would be admissible at trial and all evidence of record as well as material submitted in support of or in opposition to the motion when ruling on a motion for summary judgment. Fountain v. Phillips, Ala., 404 So.2d 614 (1981).

Defendant failed to adduce any material showing that it was entitled to judgment on the issue of agency as a matter of law. The summary judgment is hereby reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    Thomas P. BUSH, Jr., Darien Homes, Inc. and Baker Enterprises, Inc. and Conrad W. Rafield, III v. JAMES T. JOHNSON AND COMPANY.
    Civ. 2893, 2954.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    On Rehearing March 3, 1982.

      Jack E. Held of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellant Thomas P. Bush, Darien Homes, Inc. & Baker Enterprises, Inc.
    James J. Odom, Jr. of Odom & May, Birmingham, for appellant Conrad W. Ra-field, III.
    No brief for appellee.
   BRADLEY, Judge.

This appeal arises out of a suit filed by James T. Johnson and Company against Thomas P. Bush, Jr., Darien Homes, Inc., Baker Enterprises, Inc., and Conrad Ra-field, III alleging the breach of a lease agreement.

It appears that the original lessee was Baker Enterprises which later changed its name to Darien Homes, Inc. It also appears that later several of the parties formed Baker Enterprises, Inc. which has also undergone several subsequent name changes.

In March 1977 Baker Enterprises leased office space from James T. Johnson and Company for a period of three years. During the term of the lease, the occupancy of the premises was shared with several of the other corporations. Finally the premises were prematurely vacated in September of 1979. As a result, suit was filed against the corporation involved and individuals who were alleged officers, incorporators, and stockholders of Baker Enterprises, Inc.

The ease was called for trial on the morning of May 26, 1981, and the attorneys representing the defendants announced “ready.” The attorney for the plaintiff announced that he would not be ready until Wednesday morning, May 27,1981. At this point the case had not been assigned to a trial judge. The case was marked “ready” for Wednesday at 9:00 a. m. Trial on the merits was commenced on Wednesday morning in the absence of the attorneys for defendants, Thomas P. Bush, Jr., Darien Homes, Inc., and Baker Enterprises, Inc. A judgment was entered against all defendants, including these three defendants, in the amount of $5,402.89 plus court costs.

An A.R.C.P. 59 motion to vacate the judgment as to defendants Thomas P. Bush, Jr., Darien Homes, Inc., and Baker Enterprises, Inc. was filed on the ground that these defendants had no notice that the case was going to be tried on May 27, 1981. This motion was denied. Defendant Conrad Rafield asked for a new trial or judgment notwithstanding the verdict. This motion was also denied. As a result, all defendants appeal to this court.

Two issues are raised in this appeal. The first issue concerns whether the trial court should have vacated the judgment against defendants Thomas A. Bush, Jr., Darien Homes, Inc. and Baker Enterprises, Inc. because it was in effect a default judgment as to them and was thus improperly entered. The second issue is whether the trial court erred in finding the existence of a lease agreement between Rafield and Johnson and Company.

In addressing the first issue, we note that a trial on the merits was held in the absence of defendants Bush, Darien and Baker, Inc. At the conclusion of trial, a judgment was entered against all the defendants. The defendants Bush, Darien and Baker, Inc. contend that the judgment against them was in the nature of a default since they did not appear to defend. In any event, as soon as these defendants learned that a judgment had been entered against them, they filed a motion to vacate the judgment.

Default judgments are not favored by the courts, and the discretion to grant such judgments should be resolved in favor of the defaulting party when there is doubt as to the propriety of the default judgment. Oliver v. Sawyer, 359 So.2d 368 (Ala.1978). The granting or denying of a motion to set aside a default judgment lies in the sound discretion of the trial court, and will be overturned by an appellate court only for an abuse of that discretion. Wade v. Pridmore, 361 So.2d 511 (Ala.1978).

The trial judge in this case was from another county, sitting specially in the Circuit Court of Jefferson County. He refused, however, to vacate the judgment even after being apprised of the custom of the Jefferson County Circuit Court. We find this to be error, and thus reverse the judgment.

It is undisputed that the long-established custom is that an attorney will be called by the clerk of Jefferson County’s circuit court when a judge becomes available to hear a case. The defendants appeared at the call of the docket and announced that they were ready. The plaintiff, however, stated that he could not be ready for trial until Wednesday at 9:00 a. m. It appears that at 9:00 a. m. on Wednesday a courtroom became available, and the case was assigned to a trial judge for trial and was tried.

The defendants’ attorney stated that he waited in his office all day Wednesday for a phone call telling him that a courtroom was available for the case to be heard. He was never called. Immediately upon learning that a judgment was rendered against these defendants, a motion to vacate was filed.

In the present case defendants relied on a long-established custom of the Jefferson County Circuit Court. We find the case of Williams v. Tyler, 14 Ala.App. 591, 71 So. 51 (1916) to be comparable. In that case a printed docket failed to show that a certain case was set for hearing. It was held that where the attorney had relied on a printed docket, as was the general custom, then a default judgment should have been set aside on the ground of mistake without fault.

In the present case' we find that the trial court abused its discretion in not vacating the judgment. Clearly, these defendants’ failure to appear was due to excusable neglect because of reliance on a long-established custom. As a result, we find it necessary to reverse the judgment in order to give these defendants an opportunity to appear and defend.

The second issue is an appeal from the trial on the merits by the other defendant in this suit, Conrad Rafield. Rafield’s position is that there was not sufficient evidence upon which to base a judgment against him.

We note that the record on appeal contains none of the testimony or evidence adduced at trial. The rule is well settled that a trial court’s judgment will be presumed to be supported by the evidence where the trial court received evidence which is not before the appellate court. Consequently, the judgment against Conrad Rafield would necessarily be affirmed. Valley Mining Corp. v. Metro Bank, 383 So.2d 158 (Ala.1980).

In this case, however, the final judgment was rendered against all. of the defendants. The relationship between the defendants is so intertwined that it would be unjust to affirm the judgment as to the one defendant who appeared and reverse the judgment as to those who failed to appear. In Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674 (1966) it was stated:

At common law a joint judgment was regarded as an entirety, and a reversal of the judgment as to one defendant required a reversal as to all. Some of our earlier cases reflect this rule. See Huckabee v. Nelson, 54 Ala. 12; Massey v. Oates, 143 Ala. 248, 39 So. 142; Lawrence v. Stone, 160 Ala. 382, 40 So. 376. This earlier rule of entirety has now been modified to the extent that where a judgment, though joint in form is several in effect, and the interests of the parties are several and independent, then such judgment is not necessarily considered as entire, and such joint judgment may be reversed as to one or more of the defendants and not as to the other. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223, on rehearing.
This relaxation of the older rule has, however, never been applied where it might work an injustice to one party defendant if the judgment were to be affirmed as to him while reversed as to one or more of the joint defendants. In such case the power exists, in the ends of justice, to reverse the judgment in its entirety. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So.2d 259; Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824.

In this case we find that the ends of justice necessitate reversal as to all of the defendants. Clearly, it would be unfair to leave this one defendant liable for the whole amount of this judgment. Also, a new trial for less than all of the defendants could result in the entry of inconsistent judgments.

Considering the complex relationship among these defendants, we find it necessary to reverse this case and remand it for a new trial on the merits.

REVERSED AND REMANDED.

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

On Rehearing

BRADLEY, Judge.

James T. Johnson and Company has filed an application for rehearing in this cause. However, no brief on the merits in opposition to appellants’ brief was filed in this court on original submission, thereby precluding an application for rehearing. A.R.A.P. 40; see, Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123 (1971). As a result, the application for rehearing is due to be dismissed.

APPLICATION FOR REHEARING DISMISSED.

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


author: PER CURIAM.

text:
    Lacy WELCH v. George TURNER and Linda Turner.
    Civ. 2977.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Rehearing Denied March 3, 1982.
    Lacy Welch, pro se.
    No brief for respondents.
   PER CURIAM.

Plaintiff-appellant seeks by this pro se appeal to have this court review a judgment adverse to him.

The function of the appellate court is to review the issues raised from the trial proceeding to determine whether prejudicial error has occurred. This court is committed to a policy of reaching the merits of every appeal where possible. However, appellant has failed to furnish this court with any legal issues to review and has not cited to any authority for reversal. Thus, this appeal falls squarely within the rule set forth in Davis v. Hartford Accident and Indemnity Co., 385 So.2d 688, 690 (Ala.Civ.App. 1976):

In a recent decision, Thoman Engineers, Inc. v. McDonald, 57 Ala.App. 287, 328 So.2d 293, this court held that in the interest of reaching the merits, certain formal defects in the statement of issues will not prevent review if the true issues can be readily determined from the remainder of the brief or if the appellee suffers no prejudice. That is as liberal a construction of ARAP as this court intends to make. To attempt an ascertainment of the actual issues presented by this appeal would require that we delve into the realm of speculation, for the remainder of the brief confuses the issues rather than clarifying them, and this would cause us to exceed the limits of review established in Thoman Engineers. This we do not intend to do. Where, as here, the statements present no reviewable issues based on rulings below and the remainder of the brief is not helpful in amplifying the issues, this court will not take upon itself the task of legal research and writing necessary to organize appellant’s contentions. It is incumbent on appellant to submit a brief containing clear and succinct issues based on rulings of the trial court. Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639.
Since our review is not sufficiently invited to any ruling below, the judgment of the trial court is affirmed.

Likewise, this appeal is due to be affirmed.

AFFIRMED.

All Judges concur.