author: EMBRY, Justice.

text:
    LOW COST CARS, INC., a corporation, d/b/a Smith Motor Company v. Robert E. MUNN and Chrysler Corporation.
    79-292.
    Supreme Court of Alabama.
    May 28, 1981.

      Alan C. Livingston of Lee & Mclnish, Dothan, for appellant.
    J. R. Herring, Dothan, for appellees.
   EMBRY, Justice.

This case began as one by Robert E. Munn against Low Cost Cars, Inc., a corporation, d/b/a Smith Motor Company, for damages on account of misrepresentation and breach of warranty concerning a motor vehicle. Then, Chrysler Corporation was added as a defendant as to the breach of warranty claim. Subsequently, a counterclaim was filed by Low Cost against Munn for a deficiency, resulting from resale upon repossession, on the promissory note given upon purchase of the vehicle. Following that, Munn amended, claiming that Low Cost repossessed the vehicle in such a fashion as to amount to a conversion of it. The action proceeded to trial before a jury. At the close of Munn’s case in chief, verdict was directed in favor of Low Cost as to the fraud claims. At the conclusion of the trial, defendants moved for directed verdicts; the motions were denied. The jury returned a verdict in favor of Munn and against Low Cost on both the conversion claim and that for breach of warranty. It assessed damages at $40,000 on the conversion claim but none on the one for breach of warranty. It returned a verdict for $1,900 in favor of Low Cost for the deficiency. Verdict was found in favor of Chrysler Corporation. Judgments were entered accordingly, including one for zero dollars on the claim for breach of warranty. Low Cost filed a motion for new trial and one for judgment non obstante veredicto, which were denied. This appeal ensued.

Low Cost states the issues as follows:

I. Whether the trial court committed reversible error in failing to follow the requirement of Rule 51 of the Alabama Rules of Civil Procedure in denying defendant an opportunity to object to the court’s charge to the jury outside the presence of the jury.
II. Whether the trial court erred in charging the jury that failure of the debtor to receive a notice of resale of repossessed collateral was the legal equivalent of conversion.
III. Whether plaintiff’s evidence established a conversion absent a showing of demand and refusal.
IV. Whether the trial court erred in submitting the issue of punitive damages to the jury.
V. Whether the trial court erred in refusing to allow defendant’s counsel to argue dates of filing of plaintiff’s claims.
VI. Whether the trial court erred in instructing the jury as to the measure of damages in conversion.
VII. Whether the verdict was erroneous as a quotient verdict.
VIII. Whether the verdicts were inconsistent.
IX. Whether an award of $40,000 is excessive.

Resolution of the first two issues is disposi-tive of this case, but after treating those we will briefly comment on some of the others because we are reversing and remanding and think it might be helpful for the guidance of the parties and the trial court upon retrial of this case.

Before addressing the dispositive issues, we must recite sufficient facts in the record to show the events giving rise to the action. Many of these facts are hotly disputed, but, a version generally favorable to Munn would reflect the following events. On Saturday, 10 September 1977, Munn agreed to purchase a 1977 Plymouth Trailduster truck from Low Cost Cars, Inc., d/b/a Smith Motor Company. He drove the truck home and took with him certain paperwork to complete and return. Over the weekend and before he returned to Smith on Monday to make the cash down payment finalizing the sale, Munn discovered slivers of glass in the carpet of the truck and a water leak around the windshield. On Monday he learned that it had been damaged in shipping and the front windshield had been replaced. He left the truck with Smith to have the leak around the windshield corrected.

The terms of the sale provided for a $9,385 purchase price, of which $800 was paid in cash, $1,632 was credited to Munn as a net trade-in allowance, and the balance of $6,973, plus other miscellaneous charges, was financed. Smith took an installment promissory note in payment of, and a security interest in the truck as collateral for, the financed balance.

Munn complained of several defects in the truck, including a water leak around the windshield, a water leak around the sunroof, a dust leak around the tailgate, an unsewn seam in the upholstery, an improperly fitted carpet, a malfunction in the four wheel drive shift and a defective radio light. Munn took the truck to Smith several times for repairs.

The first monthly payment was due on 25 October 1977, but Munn never made this or any other installment payment. Several attempts were made to collect the 25 October 1977 payment and on 18 November 1977, Othel Creel, Collection Manager for Smith, went to Munn’s home to repossess the truck. Creel, upon observing that water had leaked into the truck, asked if Munn would make the payments if the truck were repaired. Munn agreed, and the next day took the truck to Smith for repairs. Smith lent a truck to Munn for the latter’s use while his truck was being repaired.

Certain repairs had been made on the truck and on Thursday, 24 November 1977, Robert Arthur Paul, an employee of Smith Motors, after cleaning it, left the keys in the truck. He broke into Smith’s on the night of 26 November 1977 and stole the truck. It was recovered in the early morning of Sunday, 27 November 1977, after Paul had been involved in a hit and run accident in which substantial damage was done the truck. Paul was then fired by Smith.

Munn was informed of the theft and damage but refused to sign a proof of loss statement required under an insurance policy naming the bank, holding the security interest in the truck with right of recourse, as loss payee.

Smith and the bank, as a standard practice, began their collection process when accounts of this type were ten days past due and commenced repossession proceedings when the payments were thirty days past due; this one was thirty days past due on 25 November 1977. There is evidence that written notice, properly addressed to Munn, with postage affixed, was deposited in the mail on 26 November 1977. It was notice that the truck had been repossessed and would be sold if payments had not been received, or satisfactory arrangements made for payment, by 10 December 1977. Munn testified, however, that he neither received that notice nor any notice that the repairs, for which the truck had been brought in, were completed. Munn made no inquiries about or demands for return of the truck.

Smith made monthly payments to the bank and, on 4 January 1978, paid the outstanding balance due on the truck. The bank reassigned the note to Smith. Meanwhile, Smith had repaired the truck and placed it on its lot for sale. In April 1978, Smith sold the truck to an individual for less than the balance due on the note; hence the deficiency.

Actually, the first two issues may be treated as one because if there was no error in the instructions to the jury then there was no prejudicial error in the failure to afford Low Cost the opportunity of objecting to the instructions before the jury retired to deliberate and outside its hearing. Miller v. Dacovich, 355 So.2d 1109 (Ala. 1978).

Upon Munn’s request, the trial court gave his written instruction number two. It read as follows:

I charge you, Ladies and Gentlemen of the jury, that pursuant to the Uniform Commercial Code of the State of Alabama, Robert Munn was entitled to reasonable notification of the time and place of any public sale or reasonable notification of the time of any private sale or other intended disposition of the 1977 Plymouth truck by the defendant, Low Cost Cars, Inc., and in the event you should find from the evidence that the Plaintiff received no such notice from the said Defendant, said Defendant would be guilty of a conversion of said motor vehicle. [Emphasis added.]

This charge is clearly and patently erroneous.

Regarding a secured party’s right to dispose of collateral after default, Code 1975, § 7-9-504(3), provides that: “.. . [Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor .... ” (Emphasis added.)

The term “send” is defined in Code 1975, § 7-1-201(38): “... to deposit in the mail or deliver for transmission by any other usual means of communications with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances.”

The trial court read to the jury the provisions of Code 1975, §§ 7-9-504(3), and 7-1-201(38), together with several other sections of the Commercial Code. The instruction in question is clearly inconsistent with the above cited sections in that it requires receipt of notification by the debtor while the code sections only require that notification be sent.

Although notice must be sent pri- or to disposition of repossessed collateral, there is no requirement that notice be sent prior to repossession. Weaver v. O’Meara Motor Co., 452 P.2d 87 (Alaska 1969); Teeter Motor Co., Inc. v. First National Bank of Hot Springs, 260 Ark. 764, 543 S.W.2d 938 (1976); Ford Motor Credit Co. v. Hunt, 241 Ga. 342, 245 S.E.2d 295 (1978). The requirement that reasonable notification be sent to the debtor, however, clearly does not require that the debtor receive it. Northwest Bank & Trust Co. v. Gutshall, 274 N.W.2d 713 (Iowa 1979); MFT Leasing v. Fillmore Products, Inc., 579 P.2d 924 (Utah 1978). The given written instruction required the jury to find Low Cost guilty of conversion if it found from the evidence that Munn had not received reasonable notification of any private sale or other disposition of the truck. This placed an additional burden on Low Cost beyond that required by the Commercial Code. Furthermore, this court has held it to be error to give contradictory or conflicting instructions to the jury. Russell v. Thomas, 278 Ala. 400, 178 So.2d 556 (1965). In this case, the trial court had read §§ 7-1-201(38) and 7-9-504(3) before it read Munn’s written requested charge numbered two.

It was reversible error to give Munn’s written requested charge numbered two and therefore also reversible error to not comply with Rule 51, ARCP. Rule 51 is explicit in its requirement that “Opportunity shall be given to make the objection out of the hearing of the jury.” It was not afforded counsel for Low Cost in this case. The record shows that the trial court inquired at the conclusion of its instructions to the jury, in the presence of the jury, if there were any objections to the instructions. Counsel for Low Cost stated he had some exceptions, in spite of which the trial court promptly submitted the case to the jury for deliberation and verdict; it thereupon retired to the jury room for that purpose. Low Cost’s counsel then stated objections to the instructions, including Munn’s numbered two, and assigned grounds. See Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976).

A few brief comments, regarding other alleged errors embraced within two of the significant issues, that, hopefully, may prove helpful upon retrial of this action.

Under the facts of this case as they were developed during the trial, evidence relating to the dates of the filing of Munn’s claims raised a triable issue regarding any alleged conversion, and argument concerning them would be appropriate.

The verdicts were inconsistent and contradictory. If there was a conversion consisting of exercise of dominion over Munn’s property, that to which he has general or special title and possession or the immediate right to possession, in exclusion of or in defiance of his rights, there can be no right upon the part of Low Cost to recover a deficiency. To hold otherwise would say that a tortfeasor may, at least partially, profit from his own wrongdoing. This would be true whether the conversion came about because of wrongful repossession and sale by fraud, deception, trickery, deceit or through breach of contract, or in violation of applicable statutes. The genesis of this rationale in general is found in the common law because deficiency judgments are in derogation of the common law; any right to a deficiency accrues only after strict compliance with relevant statutes. See Leasco Data Processing Equipment Corporation v. Atlas Shirt Co., Inc., 66 Misc.2d 1089, 323 N.Y.S.2d 13 (N.Y.Civ.1971). In general, regarding jury instructions where inconsistent theories of recovery are involved, see United States Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978).

For the reasons assigned, we are compelled to reverse the judgments below and remand for retrial.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON and ADAMS, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    JOE SARTAIN FORD, INC., et al. v. AMERICAN INDEMNITY CO., et al.
    79-301, 79-301A, 79-321 and 79-322.
    Supreme Court of Alabama.
    May 28, 1981.

      Norman Roby, Decatur, for appellant Joe Sartain Ford, Inc., in Nos. 79-301, 79-301A.
    John C. Eyster of Eyster, Eyster, Key & Tubb, Decatur, for appellant Ford Motor Company in Nos. 79-321, 79-322.
    Norman W. Harris of Harris, Harris, Shinn & Harris, Decatur, for appellee American Indemnity Company in Nos. 79-321, 79-322.
    Robert L. Milam, Decatur, for appellee Billy Joe Dunaway in Nos. 79-301, 79-321 and 79-322.
   FAULKNER, Justice.

These are appeals from jury verdicts and judgments in actions — (1) on a claim for damages to a truck, based on the Alabama Extended Manufacturer’s Liability Doctrine, and (2) on a claim for damages for loss of use of the truck during the repair time. We affirm both.

In September, 1977, Dunaway bought a truck manufactured by Ford Motor Company from Joe Sartain Ford for $22,257.09. On February 27, 1978, the truck’s engine caught fire and burned while the truck was being driven by an employee of Dunaway. American Indemnity paid $18,299.38 to repair it. American, subsequently, brought its action as subrogee to collect the repair bill. Its claim was brought under the Alabama Extended Manufacturer’s Liability Doctrine in one count, see Casrell v. Altec Industries, 335 So.2d 123 (Ala.1976), and for breach of implied warranty in another count. Later, Dunaway joined American and claimed damages for loss of the truck’s use. The trial resulted in separate jury verdicts — $19,446.61 for American — $12,-320.00 for Dunaway.

1.

American Indemnity Company’s claim against Ford Motor Company and Joe Sartain Ford under the Extended Manufacturer’s Liability Doctrine

First, Joe Sartain Ford does not argue any error in the judgment against it by American. Therefore, this part of the opinion relates to the contentions of Ford Motor Company.

Ford Motor Company contends that American and Dunaway should not recover damages against it because they failed to prove that the truck was either sold in a defective condition or that it reached the user without substantial change. It further contends that their proof was merely res ipsa loquitur — a doctrine inapplicable in an action based on AEMLD.

The evidence shows that when Dunaway ordered the truck from Joe Sartain Ford, they agreed on the specifications for the truck; that it was to be delivered to Mike Wiley Company in Nashville, Tennessee, for installation of a dump body. The truck was manufactured at Ford’s Louisville, Kentucky, plant, and shipped by common carrier to Nashville. There, Wiley installed the dump body, and the truck began its trip to Joe Sartain. But, a not-so-funny thing happened on its way. While it was being driven by Sartain’s employee from Nashville to Decatur, it “slung a rod,” knocking a hole in the air compressor, and leaving it without brakes. It was towed to Sartain, and there the truck was repaired by Sartain with Ford Motor Company parts. The repairs were paid by Ford Motor Company. (Ironically, Dunaway was not told of these events before his purchase.)

Dunaway used the truck from the dates of its delivery until the latter part of December, when it became immobile because of bad weather. But, during the period of its immobility, the truck was kept in Duna-way’s shop without molestation.

On the morning of the fire — well, read what American says in brief about the events leading up to the conflagration:

On the morning of the fire before Orme left Dunaway’s shop with the truck, he checked the water and oil and the engine oil level was full. He had made two relatively short trips hauling gravel and when he was returning to a quarry to get another load and was driving along the highway at a speed of about 40 miles per hour when the fire occurred.
The details of Orme’s testimony were that just before the fire a woman in a car meeting him started blinking her lights and almost ran off the road. At this time the engine of the truck quit running and it lost power. Orme, thinking it was not getting gas, manipulated a switch to change the gas supply from one tank to another. At this time the cab of the truck filled with smoke which came from the engine compartment through the wall separating it from the cab. Orme pulled off the road and jumped out and saw the truck was on fire in the engine compartment and he ran from the truck. He called Dunaway and the Hartselle fire department which responded and extinguished the fire which had burned the truck extensively.
After Dunaway arrived, he and Orme walked back along the highway behind the truck and observed a trail of droplets of oil on the pavement which led up to the truck and trailed behind it for a distance which Dunaway estimated as 600 to 700 feet and which Orme estimated as 200 feet. They then checked the oil level in the crankcase of the engine and found it to be two quarts low.
The truck was taken to Joe Sartain Ford’s place of business on the day of the fire but Sartain was not equipped to repair it and it was then taken to another place where it was repaired.

The real bone of contention between American and Ford Motor Company was the credibility of American’s expert witness as opposed to Ford’s. Ford maintains that American’s witness had never studied automotive design, whereas its witness had been employed by Ford for twenty years. Their differences are: American’s witness testified that the fire was caused by the failure of a neoprene hose; Ford’s witness said that the hose was made of luna rubber, and that there had never been any question about the sufficiency of the design of this line of trucks.

The competency of a witness to testify as an expert is largely discretionary with the trial court. And, his decision will not be disturbed on appeal except for palpable abuse. Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972); Trans-Southern Life v. Johnson, 287 Ala. 620, 254 So.2d 321 (1971). We find no abuse of discretion. American’s expert was an electrical engineer. His firm was engaged in the business of equipment failure analysis, including fire and explosion investigations.

In his testimony he concluded that the cause of the fire was a failure in the neoprene hose and that one of the reasons that led him to that conclusion was the melting of the carburetor which indicated to him that it was not gasoline that was burning on the top of the engine that caused the tremendous amount of heat (the amount of heat in a pound of gasoline is much less than the calorific contents in a pound of oil) that was necessary to melt the carburetor. In his opinion the hose failed and oil was sprayed and eventually deposited on top of the hot engine. The sprayed oil caught fire and the fire melted the carburetor away. He subsequently examined a Ford truck of the same model at a Ford dealership and found it to have the same neoprene hose. On cross-examination he pointed out, contrary to Ford’s expert, that the oil line was not metal; otherwise, it would have left a residue line. Furthermore, he judged the neoprene line to be a bad design.

In the first case decided by this court under the Extended Manufacturer’s Liability Doctrine, this Court held that whether or not a product is defective is ordinarily a question for the jury. Casrell v. Altec Industries, 335 So.2d at page 133 (Ala.1976). "Casrell defined defect as that which renders a product unreasonably dangerous, i e. not fit for its intended purpose. The care with which the product was manufactured and sold is not material.

We conclude that there was sufficient evidence of a defect to submit the case to the jury under the Extended Manufacturer’s Liability Doctrine.

2.

Dunaway’s claim for Loss of Use of the truck

The evidence is in sharp conflict as to whether Dunaway abandoned the burned truck, and replaced it by getting a new truck. He did get a new truck after the one involved in this litigation was damaged by fire. But, Dunaway contends that he had ordered two trucks and the damaged truck was just one of the two. To the contrary, Ford Motor Company contends that the truck was a total loss; therefore damages were limited to the difference between value of the truck before the fire, and its value after the fire. Additionally, it contends that damages cannot be had for both total loss of the truck and the loss of use of it. Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960).

In Hunt v. Ward, 262 Ala. 379, 79 So.2d 20 (1955), this Court stated:

The primary rule is generally stated to be that the damage is embraced in the formula that it is the difference in the value of the truck before and after the accident, caused by the accident. If it is so damaged as not to be repairable and had no value after the accident, it would be simply its value at the time of the accident (less its junk value, if any). On this amount interest should be allowed. If it is repairable and the owner sees fit to repair it and while doing so he is deprived of its use and incurs other expense in that connection, he may have the reasonable cost of the parts and labor in making the repairs together with the reasonable cost of transporting it and other incidental cost, if any, and the reasonable value of its use or hire during that time, on the theory that he could have hired one for use during that period: also interest on the total as indicated above.

The evidence showed that the value of the truck before the fire was $20,000.00-$22,000.00—value after $3,000.00-$4,000.00. Dunaway testified that the truck was a total loss and so did his driver. But, the evidence also shows that the truck was repaired for $18,299.38. Dunaway, subsequently, transferred it to another person on a lease-purchase agreement for a consideration of $16,000.00.

Next, Ford Motor Company, as well as Joe Sartain, argues in brief that even if damages are awarded for loss of use, they should be only for two or three weeks’ loss because Dunaway testified that he was using a new truck for work within that period after the fire. This two- or three-week span appears to be an afterthought by Ford and Sartain. They did not raise this point in the motion for new trial. Moreover, there was no motion to remit the damages for excessiveness. We cannot review the trial judge for something not presented to him.

We conclude that the trial judge adequately charged the jury on the question of “total loss”; this was a jury question; it decided against Ford and Joe Sartain; the trial judge overruled their motion for new trial, thereby, strengthening the jury verdict, and it should not be set aside unless palpably wrong. We hold that the verdict should not be disturbed.

The judgment under the Extended Manufacturer’s Liability Doctrine and the judgment for loss of use are affirmed.

AFFIRMED.

JONES, ALMON, EMBRY and ADAMS, JJ., concur.


text:
    George WATSON v. PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    79-689.
    Supreme Court of Alabama.
    May 28, 1981.
    Peter V. Sintz of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    J. Edward Thornton, Mobile, for appellee.
   FAULKNER, Justice.

This is an appeal from a directed verdict in a suit filed by Watson based upon fraud by Prudential’s failing to convert certain life insurance policies according to his wishes. We affirm.

Count One in the complaint filed by Watson on December 2, 1976, alleged that:

On or about the 15th day of March, 1975, the Defendant and Plaintiff were negotiating concerning the purchase by the Plaintiff from the Defendant two insurance policies. ... At the time the Defendant Agent, Gerald Zalfas represented to the Plaintiff ... [facts which were false] and the Defendant knew that these representations were false...”

In Count Three (Count Two was dismissed by the trial judge), Watson alleged:

On or about the 15 day of March, 1975, the Defendant sold to the Plaintiff two insurance policies consisting of one policy in the amount of $50,000, and the other in the amount of $100,000, both being level-premium, whole-life insurance policies. The Defendant expressly warranted that he would follow the wishes of the Plaintiff purchaser and convert the existing policies into the two above mentioned policies, one $50,000 policy and one $100,000 policy both being level-premium, whole-life insurance policies.
In fact the Defendant purchased policies which were contrary to what the Plaintiff had intended that the Defendant purchase, the Defendant took the premium money paid by the Plaintiff and purchased six policies, five being modified life insurance policies and one term insurance policy, all of which were not wanted by the Plaintiff
WHEREFORE, the Plaintiff demands judgment against the Defendant in the amount of $50,000 and costs.

Prudential filed a motion to dismiss Count One, and the trial judge agreed that it should be dismissed because the suit was barred by the statute of limitations. But, he granted a motion for a more definite statement, and admonished Watson to determine whether he could amend so that a cause of action could be alleged. Watson assured the judge that he could amend so as to allege that he had not learned of the fraud until less than one year from the date the suit was filed. The motion to dismiss was overruled.

The case was tried to a jury and at the close of Watson’s evidence, Prudential moved for a directed verdict. Watson neither amended his complaint to bring his fraud action within the statute of limitations, nor did the evidence prove that the statute did not bar the claim. Thus, the trial judge had no choice — he directed a verdict in favor of Prudential.

A fraud action is subject to the one-year statute of limitations under Code 1975, § 6-2-39, but the statute does not begin to run until the discovery of the fraud pursuant to § 6-2-3. Board of School Commissioners v. Reynolds, 294 Ala. 21, 310 So.2d 876 (1975). And, where an action is brought more than one year after the discovery of the fraud, it is barred. State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So.2d 745 (1972). Here, the action was barred, and the trial judge correctly directed a verdict on motion of Prudential.

Count three sounds in breach of contract, yet Watson did not argue breach of contract in brief. His brief is committed to his action in fraud. However, we note that had he argued breach of contract, his argument would have had no merit. The evidence shows that the agent with whom Watson dealt was only a soliciting agent who had no authority to bind Prudential. So, assuming that the agent promised to convert Watson’s existing policies to other policies, that promise could not bind the company. Cf. Liberty National Ins. Co. v. Staggs, 242 Ala. 363, 6 So.2d 432 (1942).

AFFIRMED.

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


text:
    Aaron T. CHILDRESS v. COOPER REAL ESTATE, INC.
    79-716.
    Supreme Court of Alabama.
    May 28, 1981.
    Bayless E. Biles and Taylor D. Wilkins, Jr. of Wilkins, Bankester & Biles, Bay Mi-nette, for appellant.
    Lloyd E. Taylor of Taylor, Benton, Irby & Gibson, Fairhope, for appellee.
   FAULKNER, Justice.

This is an appeal from a jury verdict and judgment awarding Cooper Real Estate $42,000.00 commission. We affirm.

Aaron Childress, in 1979 (the date is uncertain), signed a listing agreement with Cooper Real Estate providing that it undertake to sell certain real estate in Baldwin County for $420,000.00. An agent of Cooper found a purchaser willing to buy the property for that amount. He submitted a written offer through Cooper where the amount stated was $320,000.00. But, all parties — the sellers, the purchaser, Chil-dres’s attorney, and the agent were aware of the fact that the purchase price was $420,000.00 not $320,000.00. Childress wanted $100,000.00 paid in cash to him when he delivered the deed. He did not want the additional $100,000.00 to show on the sales contract because of income taxes. Additionally, he needed the cash to support his family and his invalid son.

The written offer witnessed by his lawyer was accepted by Childress. When he accepted the offer, he, at that time, agreed to pay Cooper Real Estate $42,000.00 commission. Following the sales negotiation, Davis (the purchaser) arranged for partial financing through the Federal Land Bank. A warranty deed, conveying the property to Davis, drafted by Davis’s lawyer was signed by Childress. The date shown in the deed was June 1, 1979.

Before closing the sale, Cooper discovered that a court ordered lien had been placed against the Childress property before the offer and acceptance. Cooper undertook to assist Childress in removing the lien. By this time, Childress had decided not to complete the sale. Following an unsuccessful attempt to get Childress to perform, Cooper Real Estate filed suit for its commission. Childress defended on the ground that the contract was illegal and void on its face, principally because of the $100,000.00 cash payment, and because all parties knew about the lien, and the sale was dependent upon its release. The trial result was a verdict and judgment in favor of Cooper Real Estate, and against Childress.

Childress appeals on the grounds that the trial judge erred when he refused to give the following written requested charges:

Charge No. 1
It is against the law of the State of Alabama for a real estate broker to make any substantial misrepresentations or to pursue a continued flagrant course of misrepresentation through agents or salesmen.
Charge No. 2
The law will not lend its aid to a party who has been guilty of illegal conduct directly connected with the subject matter of the litigation. This doctrine is known as the “clean hands” doctrine. Charge No. 3
A party who has violated the law does not come into court with clean hands if the violation is directly connected with the subject matter of the litigation. If you are reasonably satisfied from the evidence that the Plaintiff violated the law of the State of Alabama by misrepresenting the purchase price of the property which was to be sold by the Defendant, then your verdict must be for the Defendant.
Charge No. 4
If you are reasonably satisfied from the evidence that the Plaintiff misrepresented the purchase price in the agreement between the Defendant and the purchaser and if you are further reasonably satisfied from the evidence that the Plaintiff misrepresented the purchase price to Judge Wilson Hayes, then the Plaintiff has entered this Court with unclean hands and your verdict must be for the Defendant.
Charge No. 5
A real estate broker is not entitled to a commission for procuring a purchaser when it is shown that the intended purchaser declined to complete the contract, without fault or negligence on the part of the intended seller, on account of a supposed defect of title.
Charge No. 6
If you are reasonably satisfied from the evidence that the sales agreement entered into between the defendant and W. C. Davis was conditioned upon the removal of the lien placed upon the Defendant’s property by the Circuit Court of Baldwin County, and if you are reasonably satisfied that the sale was not finalized because said lien remained against the property, then your verdict must be for the Defendant.
Charge No. 7
If you are reasonably satisfied from the evidence that the Plaintiff had knowledge of the lien placed on the Defendant's property by the Circuit Court of Baldwin County and that the Plaintiff obtained such knowledge prior to the date of the sales agreement between the Defendant and the intended purchaser and if you are further satisfied that the sale was not consummated because said lien caused Defendant to have an unmer-chantable title, then the Plaintiff cannot recover from the Defendant.

Rule 51, ARCP, provides that “[n]o party may assign as error the giving or failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.” To the court’s refusal of Charge No. 1, Childress stated that, “We feel that it is the law of the State of Alabama, and that it applies directly to this case.” To Charges 2, 3, and 4, his objection was that they related to the equitable defense of the clean hands doctrine, “which is the law in the State of Alabama.” To Charges 5, 6, and 7, he objected by stating, “These are correct statements of the law in the State of Alabama.” We hold that these objections are general, and they do not comply with the provisions of Rule 51. The trial judge properly refused to give these charges.

AFFIRMED.

TORBERT, C. J., and EMBRY and ADAMS, JJ., concur.

ALMON, J., concurs in the result.


text:
    Ronald C. ROBINSON v. ALLSTATE INSURANCE COMPANY.
    80-97.
    Supreme Court of Alabama.
    May 28, 1981.

      Robert E. McDonald, Jr., Mobile, for appellant.
    James P. Green of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   FAULKNER, Justice.

On or about October 29, 1978, a fire destroyed Robinson’s home. Robinson alleged that at the time of the fire he had in effect a homeowner’s insurance policy with Allstate covering the loss by fire. Robinson, at Allstate’s suggestion, contracted directly with Kountz, a contractor, to repair his home. The repairs were made.

On February 29, 1980, Robinson filed a four-count complaint against Allstate and Kountz. Motions to dismiss filed by and on behalf of Kountz were denied, but Allstate’s motion to dismiss was granted as to counts one, three and four. Thereafter Robinson filed two amended complaints containing six counts. Both of them were ultimately dismissed with prejudice on Allstate’s motion. The dismissed counts were:

Count 1 — alleging fraud and misrepresentation against defendant Allstate Insurance Company as the agent, servant or employee of defendant Kountz.
Count 3 — alleging Allstate Insurance Company was the agent, servant or employee of Kountz and further alleging that Kountz performed his work in a negligent manner and damaged Robinson.
Count 4 — alleging that Kountz as the agent, servant or employee of Allstate Insurance Company did repair Robinson’s home in a wanton manner and thereby damaged it.
Count 5 — alleging that Allstate as an agent, servant or employee of Kountz prevailed upon Robinson to sign a contract to repair his home, and that Kountz performed the repairs in a wanton manner and thereby damaged it.
Count 6 — alleging that Kountz as an agent, servant or employee of Allstate, negligently repaired Robinson’s home and* damaged it.

The trial judge did not dismiss the second count alleging breach of insurance contract. On September 30, at Robinson’s request, the trial court entered final judgment on the previous dismissals pursuant to Rule 54(b), ARCP. Robinson appeals. We affirm the trial court.

Rule 9(b), ARCP, provides that when fraud is alleged the circumstances constituting the fraud shall be stated with particularity. This does not require every element to be stated with particularity, but the pleader must use more than generalized or conclusionary statements setting out the fraud. The pleader must state the time, the place, the contents or substance of the false representations, the fact misrepresented, and an identification of what has been obtained. See Committee Comments to Rule 9(b), ARCP. Rubens v. Ellis, 202 F.2d 415 (5th Cir. 1953).

In this complaint, Count One shows neither the time nor location of the alleged misrepresentation. Furthermore, although the complaint avers that Allstate made the misrepresentation, it fails to identify the individual who actually is alleged to have misrepresented the fact. The pleader attempts to predicate fraud on a promise which is not a representation of a material fact. In order for fraud to be predicated upon a promise, it is essential that the promisor intended not to perform at the time of making the promise. The complaint fails to allege any intent by Allstate not to perform.

Counts Three and Five alleged that “Allstate as the agent, servant or employee of ... Kountz .. . prevailed upon the plaintiff to sign a contract with Kountz ...” and that Kountz negligently repaired or wantonly repaired plaintiff’s house. The net result of these allegations is that the principal — not the agent — committed negligence or wantonness. Robinson does not cite any authority for this unique and novel theory of law whereby an agent is liable for acts of the principal. For an agency relationship to exist there must be a right of control by the principal over the agent. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). In a principal-agent relationship, the tail does not wag the dog.

Counts Four and Six alleged that Kountz as servant, agent or employee of Allstate undertook to repair plaintiff’s home. Court Four alleged that the work was accomplished in a wanton manner. Count Six alleged in a negligent manner. While the Alabama Rules of Civil Procedure liberalized our forms of pleading, they did not throw the baby out with the wash. We opine that the pleader must, in pleading agency, allege some facts that show an agency relationship; that the agent was acting within the line and scope of his authority, and that the injury complained of was the proximate result of the agent’s negligence or wantonness. There are no facts alleged in these counts upon upon which to base an agency relationship. Moreover, there is no allegation that the work was done within the line and scope of the agent’s authority.

The order of dismissal by the trial court is affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

BEATTY, J., concurs in the result.


text:
    Ex parte Tammy Annette LORD and Willie Knowles. (In re Harvey G. BAGGETT and Angelia Baggett, who sues by her father and next friend, Harvey G. Baggett v. Tammy Annette LORD, Willie Knowles, et al.)
    80-145.
    Supreme Court of Alabama.
    May 28, 1981.

      E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for petitioners.
    James E. Hart, Jr., Brewton, for respondents.
   FAULKNER, Justice.

Tammy Annette Lord and Willie Knowles petition this Court for a writ of mandamus and pray that the trial judge be ordered to withdraw his order compelling discovery. We grant in part and deny in part.

On March 17, 1979, Angelia Baggett, a minor passenger in a truck driven by Lord, received leg and pelvic injuries when the truck collided with a concrete culvert on County Road # 33 in Escambia County. Suit for damages was filed by Angelia’s father against Lord and her grandfather, Knowles, the owner of the truck. The complaint was bottomed on negligence and wantonness of Lord, and negligent entrustment by Knowles, owner of the truck.

On July 2, 1980, the Baggetts’ lawyer served Lord and Knowles with a request for production of:

(1) Copies of all statements, if any made to their insurance company or any other agent or person regarding the accident that is the basis of the suit in this case.
(2) All photographs, investigative reports and other documents, of any kind, relating to the accident and injuries to the plaintiff in this cause which may be in the possession of the defendants or their insurance carrier.
(3) The names and addresses of all witnesses, that they have knowledge of to the accident.
(4) All medical records, if any, received by the insurance carrier in connection with the injuries to Angelia Baggett.
(5) A copy of the insurance policy insuring the defendants.

When the requested information was not produced, the trial judge, on motion of the Baggetts, entered an order, dated August 25, compelling production. On October 15, an employee of Allstate Insurance Company filed an affidavit stating, principally, that the investigation of the accident was conducted in anticipation of eventual litigation. On November 17, the trial judge entered another order, in effect saying, either produce the requested information or be held in contempt. Lord and Knowles petition this Court for mandamus to have both orders of the trial judge vacated.

As we review it, this case is not totally distinguishable from Ex parte State Farm Mutual Auto Insurance Company, 386 So.2d 1133 (Ala.1980). Based on that authority, we hold that the discovery of all of the requested materials cannot be ordered because the Baggetts have not shown that they have a substantial need of the materials to prepare their case, and that they are unable to obtain the substantial equivalent of the materials by other means.

Here, the Baggetts attempt to show a substantial need and undue hardship because of Angelia’s loss of memory, and Mr. Baggett’s lack of information. We opine that these assertions are insufficient to overcome their burden. Angelia testified in a deposition that in addition to other injuries, she suffered a slight concussion of her head, and doesn’t remember what happened at the time of the accident. Mr. Baggett testified that he had only talked with the insurance adjuster about the accident. In his answer to the petition for mandamus, he alleges that “there is absolutely no other information available to them concerning the accident other than the information that may have been accumulated by the petitioner’s insurance carrier .. .. ”

His adversary says in brief that the Bag-getts have deposed Ms. Lord, Mr. Knowles and the investigating officer, State Trooper Harris. To us, it appears unlikely that the Baggetts could not gain enough information from these witnesses to prosecute their claim.

Next, if it is true, as the Baggetts assert, that Allstate has the medical records in either its possession or its attorney’s possession, then those records must be surrendered to the Baggetts. If, however, the Baggetts either have had or do now have equal access to the medical records, they are not entitled to have an order to produce them.

Finally, under Rule 26(b)(2), ARCP, the Baggetts are entitled to discovery of the insurance policy of Allstate’s insured to determine the existence of coverage only— not the amount of coverage.

The petition for writ of mandamus is granted as to that part of the trial judge’s orders requiring production of the records, and materials other than (1) the insurance policy to determine existence of coverage, and (2) Angelia’s medical records if he finds that the Baggetts do not have equal access to those records. The petition is denied as to item (1) of this order and conditionally denied as to item (2) of this order.

THE PETITION FOR WRIT OF MANDAMUS IS GRANTED IN PART AND DENIED IN PART.

ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.


author: ADAMS, Justice.

text:
    Hayward THOMPSON v. CITY OF BAYOU LA BATRE, Alabama, A Municipal Corporation.
    79-633.
    Supreme Court of Alabama.
    May 29, 1981.

      Joseph M. Brown, Jr., Mobile, for appellant.
    Virginia A. Johnston and Barry Hess, Mobile, for appellee.
   ADAMS, Justice.

Hayward Thompson appeals a decision of the trial court granting defendant’s motion for judgment notwithstanding the verdict. The case was tried before a jury and a verdict for the plaintiff was returned in the amount of $30,000.00. Defendant filed a motion for JNOV, or in the alternative, motion for a new trial, having moved earlier for a directed verdict which was denied. In granting the motion for JNOV, the trial court judge stated that he found no liability on the part of the City of Bayou La Batre, and in the event liability existed, that the jury’s award was grossly excessive. From that order, Thompson timely appealed.

Thompson was injured in the course of his employment as a laborer with Seaman Plumbing Company when a ditch in which he was working caved in and buried him alive. He sustained personal injuries and was hospitalized for ten days. Seaman Plumbing had been hired by Seafood Haven, a seafood industry in the Bayou La Batre area, to connect its sewage line to the main trunk line of appellee’s sewer system. To accomplish this, Seafood Haven obtained the required permit from the City of Bayou La Batre to tie into its system. The excavation site was located outside appellee’s city limits. Outside the city limits, appellee owned easements upon which its pipes were located.

Seaman Plumbing was owned by Glen Seaman, who was also the superintendent of the Sewer Department and city inspector for the appellee. The employees of Seaman Plumbing, including appellant, were on its payroll, and not the appellee’s. No equipment of the appellee was used for the project. Appellee’s connection with the project involved issuing the permit to Seafood Haven, owning the trunk line and the easement upon which it was located, and inspecting the work for conformity to the Southern Plumbing Code which had been adopted by the City of Bayou La Batre. Inspection occurred after the work was completed, but before the excavation was covered up.

When the accident occurred, Thompson was working in a ditch approximately nine feet in depth. Testimony at trial from both sides established that the portion of the ditch that caved in on appellant was not sloped or banked. Expert testimony noted that sloping or banking is required in ditches of a depth exceeding five feet as a safety precaution against cave-ins. At trial, Seaman acknowledged the necessity for sloping the ditch that caved in on appellant. Seaman was present at the time of the accident and observed the condition of the ditch before it caved in. Whether Seaman was there in his capacity as owner of Seaman Plumbing, or as city inspector of the appellee was contested vigorously at trial.

Appellant contends that the trial court erred in granting defendant’s motion for JNOV. Appellant insists that a scintilla of evidence existed to support the jury’s finding that Seaman was at the project in his capacity as city inspector and was, thus, an agent of the appellee. As city inspector, appellant contends that Seaman had the authority and duty, upon seeing the dangerous condition, to stop work on the project until the deficiency was corrected. It is the appellant’s position that Seaman’s failure to exercise his alleged authority was the proximate cause of the personal injuries received by Thompson. Appellant theorizes that this and other duties to provide for appellant’s safety arose because of the retention of control that appellee had over the project as evidenced by appellee’s authority to order corrections to any work that did not comply with the city’s plumbing code.

We see the following issue as dispositive of this appeal:

What was the nature of the duty, if any, owed by the City of Bayou La Batre to Thompson?

Appellant cites Alabama Power Company v. Henderson, 342 So.2d 323 (Ala.1976), in support of his position. We think the instant case is clearly distinguishable from our decision in Henderson. Our holding in that case is an exception to the usual rule of non-liability of a premises owner for the acts of an independent contractor. Generally, a premises owner is not liable for the torts of an independent contractor. State Farm Mutual Automobile Ins. Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964). More recently, we held specifically that a premises owner owes no duty to the employees of an independent contractor regarding conditions that arise in the course of work on the contract. Pate v. United States Steel Corp., 393 So.2d 992 (Ala.1981); Hughes v. Hughes, 367 So.2d 1384 (Ala.1979). The general rule does not apply, however, if the premises owner retains or reserves the right to control the manner in which the independent contractor performs its work. Hughes at 1386. When the right of control is reserved, the relationship changes from one of premises owner and independent contractor to that of master and servant. Hughes v. Hughes, 367 So.2d 1384 (Ala.1979); Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970); Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939).

In Henderson, we found sufficient control present to attach liability to the premises owner. There, Alabama Power Company, the premises owner, contracted to have a smoke stack built on its property by Custo-dis Construction Company. Henderson, an employee of Custodis, was severely injured when an improper mixture of concrete caused a form to buckle and the freshly poured concrete fell on him. Evidence in that case tended to show that Alabama Power had great authority, control and supervision over the work that caused Henderson’s injury. Alabama Power had control over the kind and quantity of ingredients used in mixing the concrete; checked the suitability of each mixture; supervised pouring the concrete at the work site; and, periodically checked the concrete’s rate of hardening. Henderson, 342 So.2d at 325.

We do not find as a matter of law •that the amount of control retained by ap-pellee in the instant case brings us within the scope of our decision in Henderson. Here, appellee neither owned the property, nor contracted for the work. Appellant stressed the fact that appellee retained the right to inspect the work of Seaman Plumbing for conformity to the Southern Plumbing Code. Whether or not Seaman had the authority as an agent of the appellee to inspect outside the city limits was disputed at trial. Nevertheless, even if we assume that he did, we are not convinced the right to inspect is substantial control. This court has held that the right to inspect to assure compliance with contract specifications does not by itself create liability for the acts of an independent contractor. Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832 (1919). More recently, we observed that reservation of the right to inspect for deviations from the contract did not constitute retention of the right to retain control over the manner of the work as contemplated by Henderson; and further, that retention of the right to inspect alone did not create a duty to inspect. Pate v. United States Steel Corp., 393 So.2d 992 (Ala.1981). McQuillin notes that retention by a municipality of the right to inspect, in the absence of a non-delegable duty or the retention of substantial control over the work, does not vitiate the independent contractor relationship. McQuillin, Municipal Corporations, § 53.20(a) (3d ed. 1977).

In order to predicate liability on the basis of a negligence action, the appellant must show a duty owing to him by the appellee, breach of that duty, and injury flowing to appellant in consequence of that breach. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978); Sammons v. Garner, 284 Ala. 131, 222 So.2d 717 (1969); Tennessee Coal, Iron & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170 (1911). The appellant’s failure to prove the first element of a negligence action allows us to pretermit discussion of the alleged excessiveness of the jury’s award. The judgment of the trial court granting the JNOV when the defendant failed to establish a duty was proper, and, therefore, is due to be affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Vicki WAGNER v. WINN-DIXIE, a corporation.
    79-684.
    Supreme Court of Alabama.
    May 29, 1981.
    James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellant.
    John B. Givhan of Albrittons & Givhan, Andalusia, for appellee.
   TORBERT, Chief Justice.

Vicki Wagner and her husband, Billy Wagner, were shopping in the Winn-Dixie store in Andalusia, Alabama on July 14, 1978. While in the area of the produce and frozen food displays, Mrs. Wagner slipped and fell. All witnesses agreed that immediately after her fall, there were skid marks on the floor and a potato was observed lying near her feet. Witnesses for the plaintiff, however, testified that one end of the potato was “squooshed” and the skid marks were wet with particles of potato on either side, while witnesses for the defendant contended that the skid marks were dry and the potato was intact. Medical evidence was introduced to the effect that, as a result of this fall, Mrs. Wagner injured her lower back. There was also evidence that her careers as a waitress and as a professional country singer and buck dancer were terminated due to her injuries. The jury returned a verdict for the defendant, Winn-Dixie, and the plaintiff appeals.

The plaintiff argues initially that the trial court erred by overruling her objection to the defendant’s statement in closing argument that “the only way you can return a verdict in favor of the plaintiff is that you have got to believe that Mr. Gris-sett [the store manager] or somebody, somebody in his store ... knew that that potato was on the floor.” The plaintiff contends this is such a gross misstatement of the law that her objection at the time the statement was made should have been sustained. The law applicable to this point was set out in the case of S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1958). There this Court stated:

[T]o prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it.

267 Ala. at 569, 103 So.2d 171.

Although the statement made by defense counsel in argument was an incomplete statement of the law, reversal cannot be grounded upon this issue. The trial court’s oral instructions were a complete and correct statement of the law. Moreover, the trial court appropriately admonished the jury that it was to take the law from the court and not from counsel.

Appellant next contends that the verdict was against the weight and preponderance of the evidence. The main thrust of her argument is that although two witnesses testified Mrs. Wagner slipped on a “squooshed” potato, and two witnesses testified she did not, the jury somehow erred in believing the witnesses for the defendant rather than those for the plaintiff. While a jury verdict may not be predicated on pure speculation or conjecture, Clark v. Smith, 292 Ala. 617, 299 So.2d 226 (1974); Howell v. Roueche, 263 Ala. 83, 81 So.2d 297 (1955); Goodwyn v. Union Springs Guano Co., 228 Ala. 173, 153 So. 246 (1934), there is a very strong presumption in this state in favor of upholding jury verdicts on appeal. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979); Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975); Clift v. Donegan, 237 Ala. 304, 186 So. 476 (1939). That presumption is strengthened where, as here, the trial judge has overruled a motion for a new trial. Louisville & N. R. v. Garrett, 378 So.2d 668 (Ala.1979); Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975); T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So.2d 706 (1966). Plaintiff has failed to demonstrate that the verdict is clearly and palpably erroneous.

Plaintiff argues finally that the trial court erred in refusing to grant her motion for new trial, such motion being based on her allegation that the jury verdict was against the preponderance of the evidence. Since we have already determined that the evidence is sufficient to support the jury verdict, there is no need to reach this issue. It fails for the same reasons as the plaintiff’s argument that the jury verdict was against the preponderance of the evidence.

Since plaintiff has failed to show that reversible error occurred, the decision of the trial court is hereby affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


text:
    MUSCLE SHOALS NATIONAL BANK v. Norma J. HALLMARK, et al.
    79-888.
    Supreme Court of Alabama.
    May 29, 1981.
    Charles W. Cochran, III of Keller & Cochran, Florence, for appellant.
    Charles D. Rosser of Rosser & Munsey, Tuscumbia, for appellees.
   TORBERT, Chief Justice.

Truman C. Hallmark and his wife, Norma J. Hallmark, obtained a loan from Muscle Shoals National Bank (Muscle Shoals) on July 22, 1975. As security for the loan, they executed a promissory note and a second mortgage to Muscle Shoals on a parcel of real property situated in Colbert County, and in addition, Muscle Shoals took a security interest in fixtures and equipment owned by Truman C. and Norma J. Hallmark d/b/a Captain Hook’s restaurant. As further security for the loan, Muscle Shoals required the execution of guaranty agreements by appellees Thompson, Tillman, and Martin.

In the fall of 1975, it was discovered that First Colbert National Bank (First Colbert) had also taken a security interest in fixtures and equipment being used in the operation of Captain Hook’s restaurant. After discussion among the parties involved, Muscle Shoals released its security interest in the restaurant equipment and fixtures in favor of First Colbert.

Muscle Shoals purchased the first mortgage on the real property from Sheffield Federal Savings and Loan Association. In 1977, Truman C. Hallmark filed for bankruptcy, and both the promissory note secured by the first mortgage and the one secured by the second mortgage were discharged. Shortly thereafter, Muscle Shoals conducted a mortgage foreclosure sale on the real property on June 23, 1977. At the foreclosure sale, Muscle Shoals bid in the sum of $56,550.79 (amount of the loan plus interest, attorney’s fees, and expenses of the sale). There were no other bidders, so a mortgage foreclosure deed was executed to Muscle Shoals and recorded June 29, 1977.

On November 15, 1978, Muscle Shoals conveyed the property to purchasers, Bobby and Mary Frances Clardy, for the sum of $51,000.00. On December 14, 1978, it filed suit against Norma J. Hallmark and against the guarantors, Roy D. Thompson, Mrs. Oscar H. Tillman, and Robbie Martin, for the deficiency. Defendants failed to answer, and a default was entered against them on February 13,1979. On February 15,1979, a judgment was entered in appellant’s favor in the amount of $12,744.27. The original defendants filed a Motion for Relief from Judgment on April 27, 1979. After a hearing on this motion, the trial court denied relief to the appellees. The appellees then filed a Motion for a New Trial, or in the Alternative, to Alter or Vacate a Judgment. On June 13,1980, the trial court entered an order vacating its previous order and entered a judgment in favor of appellees based on the fact that foreclosure had occurred. Hence, this appeal.

Appellants urge us to adopt a rule of law that would allow a mortgage holder who, at a foreclosure sale, bids in the property for the full amount of the debt, including expenses and attorney’s fees, thus relieving the maker from any further obligation, to enforce a guaranty agreement against the guarantors of the note when the property is later sold for less than the amount of the debt. We decline to adopt such a rule; thus the trial court is due to be affirmed.

It is well settled in Alabama that proceeds from the sale of mortgaged property must be applied to the debt secured by the property. See, Pearce v. Mills, 190 Ala. 616, 67 So. 581 (1941); Strickland v. Hardie, 82 Ala. 412, 3 So. 40 (1887); Johnson v. Thomas, 77 Ala. 367 (1885). Therefore, once the mortgaged property was sold upon foreclosure, Muscle Shoals was bound to apply the proceeds to the debt. Had the sale yielded an amount in excess of the debt, the Hallmarks would have been entitled to such excess amount. Continental Casualty Co. v. Brawner, 227 Ala. 98, 148 So. 809 (1933); Hayes v. Woods, 72 Ala. 92 (1882). The result is unchanged by the fact that the purchaser was the mortgagee. See, Pruett v. First National Bank of Anniston, 229 Ala. 441, 157 So. 846 (1934). Furthermore, payment or satisfaction of the debt discharged the guarantors. Shur-Grain Feed Division William Davies Co. v. Huntsville Production Credit Association, 372 So.2d 1317 (Ala.Civ.App.1979). Therefore, foreclosure operated to release both the principal debtors and the guarantors.

Appellants argue also that the trial court erred in granting the appellees’ Motion for Relief from Judgment. This argument however, is based on the assumption that appellees did not have a meritorious defense to the complaint. Since we find the appel-lees’ argument has merit, the contention of the appellants must fail.

Because of the foregoing, the trial court is due to be affirmed.

AFFIRMED.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    Robert O. HAAS v. Virgil McCRARY.
    80-5.
    Supreme Court of Alabama.
    May 29, 1981.

      William W. Tally, Scottsboro, for appellant.
    Charles A. McGee, Fort Payne, for appel-lee.
   ALMON, Justice.

This is an appeal from a final judgment in an election contest. We affirm.

Virgil McCrary was elected Mayor of Hollywood, Jackson County, Alabama, by a one vote margin over his opponent, Elizabeth Haas. A total of 345 votes were cast in the election; McCrary received 173 votes and Haas received 172. Robert Haas, Elizabeth’s husband, filed an election contest in which he alleged that two votes were illegally cast for McCrary by persons who were not Hollywood residents at the time of the election. McCrary responded by claiming that illegal votes were also cast for Haas by persons who were neither residents of, nor registered to vote in, Jackson County, Alabama. McCrary was declared the winner of the mayoral race after the trial judge invalidated one vote cast for McCrary and three votes cast for Haas. The three votes for Haas were cast by Miriam Watson, registered to vote in Jefferson County; Norman Suggs, registered in Calhoun County; and Henry Burns, registered in Tuscaloosa County; all of whom resided in Hollywood at the time of the election. Despite the fact that all three executed challenge oaths before voting, the trial judge invalidated their votes on the ground that none were registered to vote in Jackson County and were therefore not qualified electors. Haas contends this was in error.

The central issue presented in this case is whether a person who is registered in one county may vote in a municipal election held in another county to which he has moved and established his residence without registering to vote in that county. Haas maintains that the following language, applicable to municipal elections, permits a voter to do so as long as he is registered to vote anywhere in the State:

(b) No person may vote at any such election unless he is a registered and qualified elector of the state of Alabama, who has resided in the county 30 days and in the ward 30 days prior to the election and who has registered not less than 10 days prior to the date of the election at which he offers to vote; * * *.
(c) Any qualified elector of a ward who knows or suspects that a person proposes to vote or will offer to vote in such ward who is not entitled or duly qualified to vote in such ward may challenge such person. The challenge shall be communicated to the inspector before the challenged person is permitted to vote by the person in charge of admissions to the polling place. The person so challenged shall not be permitted to vote until he takes and subscribes the oath prescribed by subsection (c) of section 11 — 46—41 and identifies himself in the manner therein prescribed.

Code 1975, § 11-46-38. In sum, Haas argues that if a voter is registered in any county of the State, he is a “registered and qualified elector” of the State and may therefore vote in a municipal election as long as he offers proof of his qualifications to vote by executing a challenge oath. We disagree.

The question of whether a person who moves his residence from one county to another must register in the county of his new residence in order to vote in a general election was answered in the affirmative in Shepherd v. Sartain, 185 Ala. 439, 64 So. 57 (1913), wherein this Court stated:

Reading section 187 of the Constitution along with sections 316 and 320 of the Code, and construing them in connection with the entire system of laws relating to elections in this state, although, considered separately, their language might bear a less stringent meaning, we hold that, when a registered voter changes his legal residence from one county to another, he must register again in the county of his new residence in order to entitle him to vote therein. The imputation of any other meaning to the provisions referred to, though the requirement is expressed in negative terms, would reduce the whole scheme of registration to practical futility. An intention to destroy so valuable an agency by making re-registration permissive, merely, ought not to be imputed to_ the lawmakers if their language will reasonably bear a mandatory meaning, and we think it clearly does.

185 Ala. at 453, 64 So. at 63. Although Haas correctly asserts that Shepherd involved the predecessor to the general election code, Code 1975, § 17-1-1, et seq., and that the provisions of that code do not apply to the instant municipal election by virtue of Code 1975, § 17-1-1, we cannot agree with Haas’s contention that the decision in Shepherd has no application to this case.

In Shepherd the Court concluded that if re-registration was not mandatory “the whole scheme of registration [would be reduced] to practical futility.” 185 Ala. at 453, 64 So. at 63. We perceive the same danger in municipal elections if re-registration is permissive only. The various municipalities are authorized to contract with the Board of Registrars in the county in which the municipality is located “to conduct an identification program of electors eligible to vote in municipal elections.” Code 1975, § 11-46-4. Municipal officials are given access to the official list of qualified electors on file at the probate office of the county in which the municipality is located in order to compile a “list of the qualified voters who reside within the corporate limits of such city or town and who are registered to vote.” This list is to be compared to the official list in the probate office and is to be published prior to the election. Code 1975, § 11-46-36. Furthermore, a person may not vote in a municipal election “unless he is a registered and qualified elector of the state of Alabama, who has resided in the county 30 days and in the ward 30 days prior to the date of the election at which he offers to vote.” Code 1975, § 11-46-38.

It is clear from the foregoing that registration in the county where an elector offers to vote in a municipal election is implicitly required. It is also clear that the entire regulatory scheme applicable to municipal elections would be frustrated if reregistration were merely permissive. We therefore hold that in order for a voter who is registered in one county to be eligible to vote in a municipal election held in another county to which he has moved and established a new residence, the voter must re-register in the county of his new residence.

The oath and the statutory provisions which permit a challenge of a voter and the execution of a challenge oath relate exclusively to an elector’s qualifications to vote in a particular ward. There appears to be no provision for the challenge of an elector’s right to vote in the municipal election in general. We therefore conclude that execution of a challenge oath does not operate to qualify an elector to vote in a municipal election if the elector has not previously registered to vote in that county.

In the present case, Watson, Suggs and Burns were registered to vote in counties other than Jackson County. Because they failed to register in Jackson County and because the execution of a challenge oath did not operate to qualify them to vote, they were not qualified electors in the Hollywood municipal election. Accordingly, the judgment of the trial judge invalidating the votes of Watson, Suggs and Burns, and declaring McCrary the winner of the election, is due to be affirmed.

AFFIRMED.

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

      . That section provides:
      All of the provisions of this title [which govern general elections] shall apply to all primary elections and all elections by counties or municipalities held in this state, except in cases where the provisions of this title are inconsistent or in conflict with the provisions of a law governing special primary, county or municipal elections.
      The provisions which govern municipal elections are set out at Code 1975, § 11-46-1, et seq.


author: WRIGHT, Presiding Judge.

text:
    Samuel R. McPHERSON v. T. J. GROSS.
    Civ. 2573.
    Court of Civil Appeals of Alabama.
    April 15, 1981.
    Rehearing Denied May 20, 1981.
    William S. Poole, Jr., Demopolis, for appellant.

      Woodford W. Dinning, Jr. of Lloyd, Dinning & Boggs, Demopolis, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from a judgment of the Marengo County Circuit Court denying a claim for damages resulting from a collision between plaintiff’s automobile and defendant’s calf. The only issue is the constitutionality of § 3-5-3(a), Code of Alabama (1975). We find the statute to be constitutionally sound and affirm.

Section 3-5-3(a) provides:

The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the state of Alabama shall- be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person, to be recovered before any court of competent jurisdiction; provided, that the owner of any stock or animal shall not be liable for any damages to any motor vehicle or any occupant thereof suffered, caused by or resulting from a collision with such stock or other animal. unless it be proven that such owner knowingly or willfully put or placed such stock upon such public highway, road or street where such damages were occasioned. (Emphasis ours.)

The appellant charges that the underlined proviso of § 3-5-3(a) violates the due process and equal protection provisions of the United States Constitution and the Alabama Constitution.

This court’s predecessor, the Alabama Court of Appeals, discussed the proviso in the statute in relation to the due process provisions of the Alabama Constitution (§ 13) in the case of Randle v. Payne, 39 Ala.App. 652, 107 So.2d 907 (1958), cert. denied, 268 Ala. 697, 107 So.2d 913 (1959). The proviso was held not to violate due process. That decision has been favorably cited and inferentially approved by subsequent cases of our supreme court as recently as 1979. Coxwell v. Whatley, 367 So.2d 962 (Ala.1979); Chandler v. Waugh, 290 Ala. 70, 274 So.2d 46 (1973). The majority of the court in Randle discussed the evolution of stock laws in Alabama from the time of the formation of the state up to the enactment of the present statutes. It was stated therein that Alabama as a new state adopted the stock laws of the Mississippi Territory, of which Alabama had been a part. Those laws were “open range” laws. That is, the owner of stock was not liable for damage for intrusion of his stock on the lands of another or public ways.

The court then indicated that by Title 3, § 79, Code of Alabama (1940) (§ 3-5-3(a), Code of Alabama (1975)), the legislature enacted in 1939 a “closed range” law imposing a new legal duty upon the stock owner.

At the-same time the legislature created the duty, it also provided remedies for its breach. The remedy in case of damage to a motor vehicle or its occupant caused by a collision with livestock on a public highway, was limited to those cases in which the owner of the livestock knowingly or willfully placed or put such livestock upon the highway. The court in Randle then said, “These limitations placed on the liability thus created became a part of the right created.... Having the power to create a new legal duty, necessarily the legislature had a right to limit the liability for breach of such duty.”

It is the opinion of this court that there is no denial of due process in the statute. Though limited to a particular circumstance, there is a remedy provided for injury done.

“Due process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. “Equal protection,” on the other hand, emphasizes disparity in treatment by a state between classes of individuals whose situations are arguably indistinguishable.

Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 2443, 4 L.Ed.2d 341 (1974).

Appellant contends that the proviso in the statute denies him equal protection of the law because he is required to sustain a greater burden of proof in order to establish liability of the owner of livestock causing his damage than do others similarly situated.

It appears to this court that the issue of equal protection may be properly addressed by what we have previously extracted from Randle. Judge Cates in his dissent in Randle, appropriately said, “I see no reason why two remedies cannot be available for different sets of facts.” It seems reasonable to say that one whose premises are invaded and damaged by cattle over which he has no control and which he cannot evade or avoid, is not similarly situated as one traveling a public highway in a motor vehicle operated by one who is maintaining a lookout and who has evasive capabilities. However, we do not consider it necessary to our decision in this case to explore in depth the principles espoused in recent decisions defining and applying constitutional equal protection. Assuming the presence of similarity of situations in this case, unless there are “fundamental rights” or “suspect classifications” involved, there is no constitutional prohibition against statutory classification even of those similarly situated so long as there is a “rational basis” therefor. Woods v. Holy Cross Hospital, 591 F.2d 1164, 1172 (5th Cir. 1979).

The rational basis standard by which state laws are challenged has been stated as:

The constitutional safeguard [of equal protection] is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any statement of facts reasonably may be conceived to justify it.

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

If the challenged statute does not violate a fundamental right, the burden is upon the challenger to show that the restriction is wholly arbitrary and without rationality. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364-365, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973).

In the area of economics and social welfare, a state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.”

Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)).

Without purpose of defending the action of the legislature, it does not appear unreasonable that in imposing a new duty upon owners of livestock, it provide for different duties to persons in different circumstances. Such differences in duties are not uncommon in our law, i. e., automobile guest statutes, held constitutional in Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929); Beasley v. Bozeman, 294 Ala. 288, 315 So.2d 570 (1975); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939).

We consider that plaintiff has failed to carry the burden of establishing that § 3-5-3(a), Code of Alabama (1975) constitutes a denial of due process or equal protection to owners or occupants of a motor vehicle injured or damaged by a collision with livestock upon a public road or highway.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . That duty was to not “knowingly, voluntarily, negligently or willfully” permit his livestock to go at large in the state, either upon premises of another or upon public lands, highways, roads or streets. (§ 3-5-2(a))


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    Imogene MADDEN v. Ralph MADDEN.
    Civ. 2562.
    Court of Civil Appeals of Alabama.
    May 20, 1981.
    Clyde D. Baker, Guntersville, for appellant.
    W. D. Wilkes, Jr., Guntersville, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married at middle age and lived together for nearly five years. They were granted a divorce for incompatibility. The judgment effected a property settlement. As a part thereof the court included the following:

Four: As property division, the plaintiff is hereby granted sole right and title to the residence owned by her prior to the marriage upon the payment to defendant of the sum of $2,800 for which a judgment in favor of defendant and against plaintiff is hereby entered.

The legal propriety of this provision of the judgment is the only issue on appeal. We find it erroneous both legally and equitably.

At the time of the marriage of the parties, each owned a home and furnishings. For a short time after marriage, they resided in the home owned by the husband. They later moved to the home owned by the wife. The furnishings owned by the husband were moved into the home of the wife. The husband sold his home and netted $10,-000 from the sale. He deposited $6,000 in a joint bank account with the wife. Certain repairs and improvements were made to the wife’s property from the joint account. The amount so used was uncertain; however, the husband stated it came to three thousand or more. The wife subsequently borrowed $8,000 from a bank and made other improvements and additions to the house. She has repaid that indebtedness from her own funds. The evidence disclosed that the wife wrote two checks on the joint account totaling $2,800. She said she did not remember what she did with the cash but assumed it went to pay for improvements to the house. The husband did not state to the contrary.

During the marriage, both parties were employed. The husband made contributions toward food, paid half the utilities and gave the wife gifts and cash from time to time. The wife paid taxes and insurance on her property and paid all other household expenses. A son of the wife by a previous marriage lived part time in the home. Another son of the wife was killed during the marriage. From insurance benefits paid to the wife because of the son’s death, the loan for improvements to the house was paid in full by the wife. At the time of trial the wife retained $1,000 from the insurance benefits.

At one time during the marriage, the husband left the home and moved into a motel for some three months. The wife asked him to return to the home and attempt to make the marriage work. The husband demanded that she pay him $1,000 for his expenses while living in the motel. The wife agreed to pay him $500. She paid. He returned. He subsequently sought to borrow $1,000 from her insurance benefits. She refused but loaned him $150 to purchase an automobile body.

Though there is no specific finding in the judgment, in view of the evidence, we conclude the order for payment by the wife of $2,800 to the husband represents repayment of the two checks written from the joint account by the wife and used in improving her home. The order for payment of the sum is indicated in the judgment to be a consideration for the granting of sole title to the home owned by her prior to the marriage. The order presents the anomaly of requiring the wife to pay for title to property which she already owns — property which she owned prior to the marriage.

From a legal view, the order is brought into the purview of § 30-2-51, Code of Alabama (1975) (as amended in 1979). That statute is authority for the granting of alimony in a divorce case. Such alimony may be awarded as periodic payments, in a lump sum in gross, by an award of specific property or in a combination of any or all of these methods. Ex parte Thompson, 282 Ala. 248, 210 So.2d 808 (1968). The purpose of alimony is to preserve, insofar as possible, the economic status quo of the parties as it existed during the marriage. Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.), cert. denied, 374 So.2d 898 (Ala.1979). Though the statute was made gender neutral by the legislature in 1979, we have said that the award of alimony to the husband, as to the wife, is to be granted only upon a showing of need by one together with the requisite ability to pay by the other. Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979). Our examination of the record discloses neither need of the husband for alimony nor an ability of the wife to pay. Each works, with the husband earning almost twice the wages of the wife. Therefore, it clearly appears that the award of the judgment for a sum certain may not reasonably be said to be for maintenance and support. If it is so, there is an abuse of discretion and error.

We conclude that the award of such a specific sum directly assessed against the title of the wife to her home must be intended for the purpose of balancing the accounts or adjusting equities between the parties. We find such an award to be unjust and unfair to the wife under the evidence.

The result of the award is to require the wife to attempt to repay to the husband his investment in a five-year marriage. By his own testimony he contributed less than one-half of the living expenses of the household during the marriage. Whatever his contribution to the repair or maintenance of the home ($3,000?), it amounted to less than rental for five years. There can be no equity in placing a cloud upon title of the wife to her home which she owned prior to the marriage and in which the husband lived for five years merely because it appears that he spent $2,800 on it during that time. That represents a contribution to the marriage of some $50 per month. According to undisputed evidence the wife has already given in cash to the husband $650— nearly one-fourth the judgment against her. In addition, the evidence indicates the wife is a waitress, earning a little more than a hundred dollars per week. Her only asset other than her home is a $1,000 savings account remaining from insurance benefits from the death of her son.

We find the court abused its discretion in the provisions of paragraph four of its judgment. The judgment as to paragraph four is reversed and the same is stricken therefrom. The remainder of the judgment is hereby affirmed in all things.

The appellant is granted attorney fees on appeal in the amount of $300.

AFFIRMED IN PART: REVERSED IN PART AND RENDERED.

HOLMES, J., concurs.

BRADLEY, J., concurs in the result.


author: HOLMES, Judge.

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    NORTHEAST STATE BANK OF ALABAMA v. COPELAND TIRE COMPANY, INC.
    Civ. 2641.
    Court of Civil Appeals of Alabama.
    May 20, 1981.
    John F. Porter, III, of Livingston, Porter & Paulk, Scottsboro, for appellant.
    John F. Proctor of Thomas & Proctor, Scottsboro, for. appellee.
   HOLMES, Judge.

This is a detinue action.

On June 15,1979, Robert E. Miller obtained a loan from Northeast State Bank to purchase a 1979 Buick. The bank retained a security interest in the car. Shortly thereafter, Miller purchased a set of Goodyear tires from Copeland Tire Company on a ninety day financing plan and had them installed on the Buick.

In July of 1979, Miller apparently became delinquent on the car note and the bank repossessed the car. Miller also, about this time, apparently became delinquent on the debt owed Copeland. After repossession of the car, Copeland contacted the bank regarding the return of the Goodyear tires it had installed on the car. The bank did not return the tires and Copeland filed suit in district court.

The case was tried in district court and a judgment was rendered against the bank in the amount of $447.25, plus costs. The bank appealed to circuit court and a nonju-ry trial de novo was had. Judgment was again rendered against the bank in the amount of $447.25. The bank filed this appeal. We affirm.

The dispositive issue on appeal is whether there was sufficient evidence to support the lower court’s apparent finding that the bank had the requisite possession of the tires installed by Copeland on the car.

It is well-settled that when a judgment is rendered after an ore tenus hearing, it is presumed correct and will not be set aside unless clearly erroneous or unsupported by credible evidence under any reasonable aspect of that evidence. English v. Brantley, Ala., 361 So.2d 549 (1978); Beale v. Beale, Ala.Civ.App., 371 So.2d 931 (1979).

The bank contends on appeal that there was no evidence at trial that the tires sought to be recovered by Copeland were ever in the bank’s possession. We disagree.

Wayne Copeland, President of Copeland Tire Company, testified at trial that he had a conversation with Mr. Barrentine, President of Northeast State Bank, after the bank had repossessed the car. Mr. Copeland testified that he talked to Mr. Barren-tine about recovering the tires. At that time Mr. Barrentine admitted that the bank had possession of the car. Mr. Copeland testified further that he and Mr. Barrentine discussed two options, i. e., the bank could buy the tires from Copeland, or Copeland could replace them with the tires that were on the car when Miller bought it.

With the above testimony and the inferences therefrom in mind, there clearly was sufficient evidence to support a finding that the bank had possession of the tires supplied by Copeland. More specifically, the evidence showed that Copeland installed a set of Goodyear tires on Miller’s car about a month before the car was repossessed. The evidence further showed that the bank’s president admitted possession of the car and discussed Copeland’s recovery of the tires with Mr. Copeland. Clearly, the evidence and inferences raised by such evidence indicate that the bank was in possession of the tires in question. Hence, the trial court’s finding that the defendant-bank had the requisite possession was not clearly erroneous or unsupported by credible evidence and is due to be affirmed. English, supra; Beck, supra.

In view of the above, the issue raised by the bank as to whether certain pleadings constitute an admission of possession is pre-termitted.

Copeland’s request for damages and costs for a frivolous appeal pursuant to rule 38 of the Alabama Rules of Appellate Procedure is denied.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., concurs in the result.


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    Ralph A. GODWIN, Jr. v. Susan Mary GODWIN.
    Civ. 2667.
    Court of Civil Appeals of Alabama.
    May 20, 1981.

      Elno A. Smith, Jr., of Smith & Cruse, Montgomery, for appellant.
    W. H. Brittain, II, of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal of the denial of a motion to set aside a judgment of divorce entered after default. The motion to set aside was filed within thirty days of judgment under Rule 55(c), ARCP. We affirm.

Judgment of divorce, upon suit of the wife, including division of real and personal property and granting of an attorney fee, was granted on October 27, 1980, after default of the husband. On November 7, 1980, the husband by counsel filed a motion to set aside. As grounds for the motion the husband averred that prior to judgment, he had discussed terms of a possible settlement with counsel for the wife; that an unsigned agreement had been reached; that the husband was under mental stress because of the death of his father; that the terms of the judgment do not reflect the terms of the agreement with counsel.

The trial court duly set down the motion and heard testimony orally thereon. The motion was denied.

This court has stated in other cases and Rule 55(c), ARCP expressly provides that the ruling on a motion to set aside a judgment after default is discretionary within the equity powers of the trial court. Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978); Blackmon v. W. S. Babcock Corp., 342 So.2d 367 (Ala.Civ.App.1977).

Our review of the record discloses no abuse of discretion in the denial of the motion in this case. The grounds which we have previously set out herein and the evidence presented in support thereof provide no basis for claim of error.

The second issue presented for our review — that the court erred in granting an attorney fee in the judgment of divorce when none was requested in the complaint — was not presented in the motion to set aside nor does it appear in the transcript of the testimony. It therefore is not for our consideration on appeal. Brown v. Brown, 374 So.2d 332 (Ala.Civ.App.), cert. denied, 374 So.2d 334 (Ala.1979).

The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    James D. DAVIS v. Virginia COLE.
    Civ. 2719.
    Court of Civil Appeals of Alabama.
    May 20, 1981.
    Joe S. Pittman of Pittman, Whittaker & Hooks, Enterprise, for appellant.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellee.
   HOLMES, Judge.

This is a divorce case.

The parties to this appeal were divorced in 1974. The decree of divorce via an agreement of the parties contained certain provisions regarding two parcels of land. One parcel of land was a home located in Enterprise, Alabama. The other parcel was located in Tennessee.

Thereafter, in 1979, the ex husband filed suit in Enterprise seeking a sale for division of the Enterprise home.

The ex wife answered with a motion to dismiss. The trial court granted the wife’s motion. The trial court determined that the Enterprise home’s disposition was provided for by the terms of the divorce decree and could not be modified.

Approximately one week after the dismissal, the trial court allowed the ex husband to amend his lawsuit. The amendment alleged “changed circumstances” and sought modification of the 1974 decree as it pertained to the Enterprise home.

After an ore tenus hearing, the trial court again found the disposition of the Enterprise property, as provided in the 1974 divorce decree, was part of a division of property and therefore not subject to modification.

The ex husband appeals and we affirm.

The ex husband’s position is best stated by his able and distinguished counsel who, before the trial judge, said the following:

In the pending suit on modification we would contend that paragraph numbered Three is certainly in the nature of alimony and or child support, since at the time of the divorce there were two children who were not of age who have since then become of age and are both married. So we say that that portion of it that gave her the right to live in the marital home certainly is certainly no more and should be off in view of the change of the status of the parties and the fact that she is remarried and the children are of age, and we would ask the Court to modify the judgment to that extent and upon a modification to grant petitioner’s complaint seeking the sale for division of the property for division among the joint owners, but we would make known to the Court that we would like the sale to be as orderly as possible and therefore we would not object and would request the Court to give the parties six months in which to attempt to sell the — get the property FHA or VA appraised and sell it in an orderly fashion rather than a forced sale upon the courthouse steps, and that the proceeds be divided between the parties.

The pertinent paragraphs of the divorce decree are as follows:

3. It is agreed that the wife shall have the right to live in the marital home in Enterprise, Alabama and that she shall make the monthly payments on said home as they become due as well as providing maintenance and upkeep on said property.
4. It is agreed that the wife shall receive as alimony the income from property owned by the parties in Tennessee and that she will make the monthly payments on said property including taxes and insurance and that she will provide necessary repairs. In the event the wife remarries, the income from the Tennessee property will be placed in a joint savings account as an educational fund for the minor children to be used for their college education. In order to withdraw from this account it will be necessary [for] both the husband and wife to sign any withdrawal slips. After the education of the minor children, or upon determination of the parties that neither child desires an education on a college level, then the husband shall determine whether the Tennessee property should be sold. In the event the husband determines that the Tennessee property should be sold it is agreed that the net proceeds will be divided equally between the husband and wife, and that out of her share, she will pay to the husband $1000.00 and he at that time will convey the Enterprise, Alabama property to the wife. In the event there is no longer any need for an educational fund for the children and if the husband elects to not sell the Tennessee property, then, in that event, the husband and wife shall each receive one half of the net income of said property.

As our distinguished Presiding Judge Wright stated in Cochran v. Cochran, 49 Ala.App. 178, 269 So.2d 884 (1970), rev’d in part, 289 Ala. 615, 269 So.2d 897 (1972), on remand, 49 Ala.App. 749, 269 So.2d 905 (1972), it is the law in this state that a property settlement agreement incorporated in a divorce decree (such as we have here) is final and not modifiable. See also, Duboise v. Duboise, 275 Ala. 220, 153 So.2d 778 (1963); Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911 (1927).

It is further the law in this state that in order to characterize an agreement between husband and wife entered into pursuant to a dissolution of the marriage, the trial court must look to the intent of the parties. DuValle v. DuValle, Ala.Civ.App., 348 So.2d 1067 (1977).

In this instance, while the original agreement-decree is not a paragon of clarity, nor does it necessarily provide for all possible contingencies, this court cannot say the trial court erred in finding the pertinent provision to be part of a property settlement.

The agreement-decree provides that the husband has the authority to decide that the Tennessee property should be sold. In that event, the proceeds from such sale are to be equally divided. However, upon the sale of the Tennessee property, the ex wife shall pay an additional $1,000 to the ex husband. Upon such payment the ex husband shall convey to the ex wife the Enterprise home.

Additionally, the ex wife testified to the effect that if the Tennessee property was sold she would be willing to pay the ex husband $1,000 and would expect to receive in return a conveyance of his interest in the Enterprise property.

With the agreement and decree before the trial court and the oral testimony presented, the trial court was free to conclude that the disposition of the parcels of land was interdependent upon action by the parties and was the method selected by the parties to dispose of the property.

Summarizing, with the above agreement before the learned trial judge and the oral testimony presented, there is ample evidence to conclude that the agreement provided the means of disposing of the two parcels of land. Hence, a property settlement; hence, not subject to modification. See, Cochran v. Cochran, supra.

The case is due to be affirmed.

AFFIRMED.

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