text:
    Kenneth ANDERS, Harlon Baker, Jerry Teague, Billy Joe Tapscott and Jerry Tapscott v. William Carlton FOWLER, et al. Joe DUNN, Bobby Collins, Allen Jenkins, and Richard Oden v. William Carlton FOWLER, et al.
    81-385, 81-396.
    Supreme Court of Alabama.
    Dec. 10, 1982.

      Sherman B. Powell, Jr. and Tilden Dillard of Powell & Powell, Decatur, for appellants Kenneth Anders, et al.
    Charles Cleveland of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for. appellants Billy Joe Tapscott and Jerry Tapscott.
    Walter Allen Davis, Huntsville, for appellants Joe Dunn, et al.
    Albert P. Brewer of Brewer, Lentz, Nelson & Whitmore, Decatur, for appellees.
   ADAMS, Justice.

These appeals come to us from the Circuit Court for Morgan County, and they involve the propriety of granting a preliminary injunction without requiring plaintiffs to give security as mandated by Rule 65(c), Alabama Rules of Civil Procedure. Plaintiffs, numerous landowners in Morgan County, commenced an action on January 25, 1982, seeking injunctive relief to restrain defendants from their allegedly illegal deer hunting activities. After a hearing, the trial court granted a preliminary injunction against nine of the original ten defendants on January 29, 1982. One defendant was exonerated. The others appealed. They contend that the trial court erred to reversal by granting a preliminary injunction against them without requiring plaintiffs to give security pursuant to Rule 65(c), A.R.C.P. We agree, and we, therefore, reverse and remand.

In pertinent part, Rule 65(c), A.R.C.P., provides:

Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorneys fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the state of Alabama or of an officer or agency thereof, and provided further, in the discretion of the court, no such security may be required in domestic relations cases.

Interpreting Rule 65(c), this court said that the rule is plain, definite, and unambiguous, and that a restraining order or preliminary injunction cannot issue without compliance with it. Lightsey v. Kensington Mortgage and Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975) (Lightsey). This court went on to say:

We hold that before an injunction or restraining order is issued under ARCP 65, the giving of security by the applicant for the payment of costs, damages and reasonable attorneys fees as provided in Rule 65(c) is mandatory, unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist. See Hutchins v. Trombley, 95 Idaho 360, 509 P.2d 579. There was no such finding in the instant case and no suggestion by the trial court in its orders that an exception did exist. It follows that the judgment of contempt must be reversed, because “there can be no injunction, and consequently no contempt for its violation, until the bond has been given.” Ex parte Miller, 129 Ala. 130, 30 So. 611. See also, Annotation 12 A.L.R.2d 1093, § 21.

Lightsey, 294 Ala. at 285, 315 So.2d at 434. The trial court, therefore, erred by granting the preliminary injunction without applying Rule 65(c).

Plaintiffs argue, nevertheless, that this is not an appropriate case in which to require security. They may be correct:

We are aware that there are necessary exceptions to such an absolute holding in all cases under Rule 65(c), such as requiring only a nominal security, or where the litigant is impecunious or the issue is one of overriding public concern. Wright & Miller, Federal Practice and Procedure, Civil, § 2954, p. 529.

Lightsey, 294 Ala. at 285, 315 So.2d at 434. However, we express no opinion on that question. It is mandatory that security be given under Rule 65(c), “unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.” Lightsey, supra. Here, the trial court made no such finding. Therefore, we decline to further consider plaintiffs’ argument, because we cannot properly review it under the posture of this case.

Plaintiffs also argue that even if it was error to grant the preliminary injunction without applying Rule 65(c), we need not hold the injunction void. Instead, they argue that we can remand for the trial court to consider the issue of security. In support of this argument they cite Jones v. Ewing, 56 Ala. 360 at 363 (1876). There, this court stated:

It is against the current of our decisions to vacate process, or to dismiss suits (unless statutory requisition compels it), because of the failure to execute bonds which are intended as security against wrongful or vexatious suits. The order, on a proper application, should have been, that in a reasonable time a proper bond be executed, or the injunction discharged.

That has not been the law for a long time. Fifty years ago, that holding in Jones v. Ewing was explained as follows:

This court held in Jones v. Ewing, 56 Ala. 360, that the failure to require a bond as a condition to a temporary injunction was an irregularity which did not render the order void, and that the only remedy of the respondent was a motion to discharge the injunction. There was then no provision for an appeal from an order overruling a motion to discharge an injunction, and mandamus was the appropriate remedy to review it. Ex parte Sayre, 95 Ala. 288, 11 So. 378; Ex parte Fechheimer, 103 Ala. 154, 15 So. 647. Such an appeal is now provided by section 6081, Code. That is still the procedure except when the court has heard the application after notice, as provided by section 8304.

Morris v. Sartain, 224 Ala. 318 at 319, 140 So. 373 at 373 (1932). Decisions of this court, more recent than Jones v. Ewing, require security as a prerequisite to the granting of a preliminary injunction. “There can be no injunction ... until the bond has been given.” Ex parte Miller, 129 Ala. 130 at 133, 30 So. 611 at 612 (1901); quoted with approval in Lightsey, supra. Under the clear mandate of Rule 65(c), and the previous decisions of this court, we have no alternative but to reverse and remand. This decision is not to be interpreted as precluding plaintiffs, should they deem it necessary, from requesting the trial court to again issue a preliminary injunction, and from one being issued after the proper application of Rule 65(c). Our holding requires that we pretermit discussion of the other issues raised by these appeals.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ava Lee GUYTON, Administratrix of the Estate of Ida C. Boyd, deceased, etc., et al. v. Pam LaBOSSIERE and James E. Vann.
    81-389.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Nelson Vinson of Vinson & Guyton, Hamilton, for appellants.
    James C. Cashion of Jackson & Cashion, Haleyville, for appellees.
   ALMON, Justice.

Appellees petitioned the Circuit Court of Marion County to issue a writ of mandamus ordering the Probate Court of Marion County to accept the filing for probate of a purported last will and testament. The circuit court granted mandamus and ordered the probate court to hear the petition for probate. We affirm.

On August 23,1980, Ava Lee Guyton (Ms. Guyton) petitioned the Probate Court of Marion County for letters of administration of the estate of Ida C. Boyd (Ms. Boyd). Ms. Boyd had died on May 23, 1980, survived by a brother and a sister; seven nieces, including Ms. Guyton; and six grandnieces and -nephews, including Pamela Ja-ley Vann LaBossiere (Ms. LaBossiere) and James E. Vann (Mr. Vann), the appellees. Ms. Guyton’s petition appended a will dated August 14, 1956, and alleged that it had been revoked by a subsequent will, also revoked. Ms. Guyton also appended an envelope to her petition bearing the words, allegedly in Ms. Boyd’s handwriting: “Important Information about change of will after death of Vera B. Dugger.”

The will included in Ms. Guyton’s petition for letters of administration left all Ms. Boyd’s property to her sister, Joanna Boyd; if Joanna Boyd predeceased Ms. Boyd, to her sister Vera Boyd Dugger; if Joanna Boyd and Ms. Dugger predeceased Ms. Boyd, to her neice, Mona D. Vann; and if all three above-named beneficiaries predeceased Ms. Boyd all would go to Ms. Vann’s children in equal shares. Joanna Boyd, Vera Boyd Dugger, and Mona D. Vann apparently predeceased Ms. Boyd. Ms. La-Bossiere and Mr. Vann are the children of Mona D. Vann.

The probate clerk mailed notice of a hearing scheduled for September 3,1980, on the petition for letters of administration to the heirs of Ms. Boyd, including Ms. LaBossiere. Ms. Labossiere, through her attorney, filed a motion on September 2, 1980, to stay the proceedings for the appointment of an ad-ministratrix for the reason that she had filed the will of Ms. Boyd dated August 14, 1956, for probate in the Probate Court of Montgomery County. On September 3, however, Ms. LaBossiere moved the court to dismiss her motion to stay. The Marion County Probate' Court complied and proceeded with the hearing. On that same day the probate court issued a decree.

The decree found that Ms. Boyd had revoked her will and died intestate. The probate court granted letters of administration to Ms. Guyton upon her filing a $100,000 bond. No appeal was taken from this order.

On September 8,1980, some of Ms. Boyd’s heirs, including Ms. Guyton, filed in the Probate Court of Montgomery County a motion to dismiss the application for probate of Ms. Boyd’s will previously filed in that court. The court granted the motion, noting that Ms. LaBossiere had consented to the dismissal of her petition.

On March 31, 1981, Ms. LaBossiere and her brother Mr. Vann moved the Circuit Court of Marion County to remove the administration of the estate of Ms. Boyd to the circuit court. The circuit court granted this motion on the same day and ordered the probate court to transfer its records of the case. Ms. LaBossiere and Mr. Vann then filed a motion in the circuit court to probate the above-mentioned will. Ms. Guyton moved to strike this motion on the grounds that the circuit court had no jurisdiction to admit wills to probate. The circuit court granted the motion to strike on May 19, 1981.

Ms. LaBossiere and Mr. Vann returned to the probate court on May 19 and filed a petition to probate the will. Ms. Guyton filed a motion to dismiss the petition for probate on August 19, and the probate judge granted her motion on that date. On September 8, 1981, Ms. LaBossiere and Mr. Vann filed a petition for writ of mandamus in the circuit court to compel the probate court to enter the will to probate. Ms. Guyton filed a motion to strike the petition for mandamus, but the circuit court granted the petition on January 19, 1982, and ordered the probate court to hear the petition for the probate of the last will and testament of Ida C. Boyd. Ms. Guyton and the other heirs of Ms. Boyd, other than Ms. LaBossiere and Mr. Vann, appealed from this grant of the petition for mandamus. The probate judge joined as an appellant.

The appellants contend that the order of the probate court dated September 3, 1980, is res judicata as to the offered will and that, because Ms. LaBossiere and Mr. Vann did not appeal from that order, they cannot now attack it by a writ of mandamus. Ms. LaBossiere and Mr. Vann counter that Code 1975, § 43-2-29, allows them to have the will probated. This section requires the probate court to revoke letters of administration and grant letters testamentary where a will is proved after a grant of letters of administration. The circuit court relied on this section in granting the writ of mandamus.

We do not agree with Ms. Guyton that the probate order is res judicata on the validity of the will. Ms. Guyton never offered the will for probate. Ms. LaBossiere and Mr. Vann argue that merely attaching the will as an exhibit to the petition for letters of administration is not equivalent to filing for probate of the will. They rely on Russell v. Maxwell, 387 So.2d 156 (Ala.1980); Gross v. Slye, 360 So.2d 333 (Ala.1978); and Hooper v. Huey, 293 Ala. 63, 300 So.2d 100 (1974).

In Russell v. Maxwell, supra, this Court held that merely giving a will to a probate court for recordation in the will book does not constitute “filing for probate” within the meaning of Code 1975, § 43-1-37. There was no evidence that the person ever intended to probate the will. In Gross v. Slye, supra, this Court held that the probate court should not have denied probate of a will offered under § 43-2-29 solely because the estate had been fully administered and settled.

More to the point of this case is Hooper v. Huey, supra. Hooper filed a contest to a 1972 will offered by Mrs. Bruce. He wanted to bring two earlier wills naming Mrs. Bruce as primary beneficiary into the action, asserting that none of the three wills revoked a yet earlier will under which he was the primary beneficiary. Judge Huey granted Mrs. Bruce’s motion to dismiss Hooper’s contest of the two intermediate wills because they had not been offered for probate. This Court sustained Judge Huey’s demurrer to Hooper’s petition for mandamus whereby Hooper sought to have this Court order Judge Huey to set aside his order dismissing Hooper’s contest of the two intermediate wills.

The Court did, however, hold that Hooper could file a contest of the two wills because he was an “interested person” under the terms of the will contest statute, now Code 1975, § 43-1-70. “Thus, any person, whether he is interested for or against the will, may offer a will for probate in Alabama; and such person will not be estopped to contest the validity of the instrument in the same proceeding.” Hooper v. Huey, supra, 293 Ala. at 68. See also, Cagle v. Reeves, 353 So.2d 787 (Ala.1977).

Ms. Guyton, however, did not offer the will for probate and then contest it, as contemplated by the decision in Hooper v. Huey, supra. The procedure for granting letters of administration is quite different from the procedure for probating a will. When there is some contest to an application for letters of administration,

“the court may, in all cases examine the persons applying therefor, on oath, touching the time and place of the death of the intestate and as to whether or not he left any will and other matters necessary to give the court jurisdiction; and may also examine any other witnesses as to the same facts and may compel their attendance for that purpose by subpoena and attachment.”

Code 1975, § 43-2-45. The probate of a will is governed by a comprehensive set of statutes, §§ 43-1-30 through -52, and the contest thereof by §§ 43-1-70 through -82. The procedure for contest includes the right to trial by jury and the option to transfer the contest to circuit court, neither of which is available in a hearing on a contested petition for letters of administration. Although the above-quoted statute allows the probate court to inquire whether the deceased “left any will,” it does not provide for a full-blown trial to determine the validity of such a will.

Because of these differences in the gravity of the proceedings and the protection afforded interested persons, Ms. LaBossiere had no reason to expect that the outcome of the hearing on Ms. Guyton’s petition for letters of administration would be conclusive on the validity of the will. Such a failure to regard the hearings as conclusive is further justified by the language of § 43-2-29(a):

“If, after letters of administration have been granted as in case of intestacy, any will is proved and the executor therein named appears, claims letters testamentary and complies with the requisition of the law, the probate court having jurisdiction must revoke the letters of administration and grant letters testamentary to such executor.”

Similarly, Mr. Vann’s failure to appear did not amount to a default or waiver of his right to offer the will to probate.

Because a proper proceeding to probate the alleged will was never instituted, the decree of the probate court that the will had been revoked is not conclusive and cannot bar Ms. LaBossiere and Mr. Vann from now offering the will for probate. The circuit court was correct in granting mandamus ordering the probate court to hear the petition for probate of the will. The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . Both the motion and the order are dated March 31, but marked “filed April 6, 1981.”

      . We shall refer to the appellants collectively as “Ms. Guyton.”


author: BEATTY, Justice.

text:
    Ex parte Dr. Lee S. SMITH. (In re Bryan Deese and Lisa DEESE, etc. v. Dr. Lee S. SMITH, et al.)
    81-764.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    W. Stancil Starnes of Starnes & Atchison, Birmingham, for petitioner.
    Terrell Wynn of Hare, Wynn, Newell & Newton, Birmingham, for respondents.
   BEATTY, Justice.

Petition for writ of mandamus to the Honorable Thomas E. Huey, Jr., Circuit Judge, respondent, to require the respondent to transfer this case from Jefferson County to Calhoun County. The writ is denied.

On September 29, 1981, Bryan and Lisa Deese filed this medical malpractice action in Jefferson County. The action concerns the stillbirth of the Deeses’ child in which incident a fetal heart monitor was used. Named as defendants were Dr. Lee S. Smith, the Regional Medical Board d/b/a Northeast Alabama Regional Medical Center, and certain fictitious parties,

“thereby intending to refer to the person, firm or corporation which manufactured the fetal heart monitor which was used to monitor the infant which was born dead in the incident described in the complaint.”

On October 25, 1981, Dr. Smith moved to transfer the action to the Circuit Court of Calhoun County on the grounds, inter alia, that he was engaged in the private practice of medicine in Calhoun County, had not engaged in such practice in Jefferson County, and that all medical treatment rendered by him had been rendered in Calhoun County, and that “the venue of this action as to all named defendants [was] improper in Jefferson County.”

Then, on January 22, 1982, the plaintiffs’ complaint was amended as follows:

“Comes [sic] now the plaintiffs in the above styled cause and amends [sic] their complaint by substituting for fictitious party ‘16’ the following:
“Corometrics Medical Systems, Inc. 61 Barnes Park Road North Wallingford, Connecticut 06492”

The petitioner’s motion was heard and denied on May 26, 1982, whereupon this petition for a writ of mandamus was filed in this Court which ordered the respondents (which include not only Judge Huey but also the Regional Medical Board and the Deeses) to answer the petition. The Medical Board has joined with Dr. Smith’s position on appeal.

In brief and in oral argument the petitioner asserts that the cases of Ex parte Parker, 413 So.2d 1105 (Ala.1982), and Ex parte Wilson, 408 So.2d 94 (Ala.1981), control the issue and reveal the soundness of the position that venue must be determined at the time the case is filed. Petitioner insists that the significance of fictitious parties has been confined to questions which concern the application of statutes of limitation, and not venue, citing Hinton v. Hobbs, 349 So.2d 28 (Ala.1977). With respect for the petitioner’s able counsel, we are not persuaded that these cases control the issue. Hobbs dealt with a situation in which a plaintiff knew the identity of fictitious parties at the time he filed his action, but did not know that a cause of action existed against them. He was not allowed the benefit of Rule 9(h), Alabama Rules of Civil Procedure. Ex parte Wilson did not involve an amendment to identify a fictitious party who was sued initially, but dealt with an amendment which added a new party in order to cure what was otherwise improper venue. It was for that reason that we observed in that case that “if venue is not appropriate when suit is filed, the case ‘shall’ be transferred.” Ex parte Parker likewise did not involve substitution for fictitious parties but the addition of a new defendant. And cf. Minton v. Whisenant, 402 So.2d 971 (Ala.1981).

Petitioner conceded during oral argument before this Court that venue would have been proper in this case had Corometrics been present as a party when the action was initiated, because Corometrics, a foreign corporation, was qualified to do business in Jefferson County and was doing so. Ingram v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980). Moreover, Corometrics was specifically identified in the amendment as fictitious party “16” previously identified in the complaint. When this is understood, it follows that the amendment only changed the means by which this same party was known, and neither added nor changed a party. Thus, Rule 15(c) was applicable to this amendment:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. ... An amendment pursuant to Rule 9(h), Fictitious parties, is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.”

Petitioner would have us do away with substitution of parties by interpreting the rules in a way which would require that venue be decided at the time of the initial filing of the complaint. Indeed, the petitioner asserts in his brief that, based on the amendments to Rule 82:

“These amendments do not touch upon a situation where venue is based upon the presence of a fictitious defendant. Neither plaintiffs nor Rule 82 answer a number of questions which would be raised if fictitious defendants can be considered for venue purposes:
“1. How soon must plaintiff substitute a real party for the fictitious defendant?
“2. What if no party was ever substituted for the fictitious party?
“3. What would prevent all cases from being filed in Jefferson County simply by alleging that venue was proper in that county as to a fictitious defendant?”

While these fears may not be unreasonable in the abstract, nevertheless these arguments would have been more appropriate at the time Rules 9(h) and 15(c) were promulgated and adopted. Clearly under the rules as expressed substitution of fictitious parties against whom a claim is asserted relates back to the date of the original pleading.

Por these reasons the order of the respondent trial court was correct. Accordingly, the petition for the writ of mandamus must be, and is, denied.

WRIT DENIED.

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

FAULKNER, J., not sitting.


author: BRADLEY, Judge. HOLMES, Judge

text:
    MONTGOMERY LINCOLN-MERCURY, INC. v. Perry David NEAL, as Administrator of the Estate of Cameron M. Neal.
    Civ. 2838.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    Rehearing Denied April 21, 1982.

      Robert S. Lamar, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Jere L. Beasley of Beasley & Wilson, Montgomery, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The employer, Montgomery Lincoln-Mercury, Inc., appeals from a judgment awarding compensation to Perry David Neal, administrator of the estate of deceased employee, Cameron M. Neal.

The evidence shows that Cameron M. Neal, deceased, was employed by Montgomery Lincoln-Mercury, Inc. on April 8, 1980 as lease manager. His compensation was based on a salary of $250.00 per week plus commission based upon the gross volume of the company’s lease department.

In the early part of July 1980 the company opened a new branch car lot in Pratt-ville. Neal was temporarily assigned to the Prattville office as manager of the lot. His job consisted of supervising salesmen and overseeing car sales.

On Saturday, July 12, 1980, Neal was to report to work at the Prattville car lot. The weather that day was extremely hot and humid; the temperature at 9:00 a.m. was 88° F., 96° F. at noon, and 99° F. at 3:00 p.m. During the month of July Montgomery had been plagued by a heat wave, which peaked a few days after the date in question.

Neal was forty-five years old, a diabetic and overweight, but otherwise his health was good. Testimony indicates that on the morning of July 12, 1980 Neal followed his normal routine. He ate breakfast with his mother and left for work apparently in good health. K.C. Wright, a salesman assigned to the Prattville lot, arrived at work around 8:00 o’clock that morning. Neal arrived shortly thereafter. Upon his arrival Neal complained to two salesmen that he was not feeling well, and that he was having chills in the air-conditioned office. Neal apparently sat in the office for a while, then went outside to lie down in his car, which was parked in the shade of some trees. Testimony indicates that Neal did not perform any work during this time.

One of the salesmen later went out to the ear and suggested to Neal that he go home. Neal left the lot around 2:00 that afternoon. When Neal arrived at his mother’s house, he complained that he was feeling hot and was too sick to eat. He thereafter went to his air-conditioned room to lie down. The next morning Neal’s mother found him extremely ill, and Neal was taken to the hospital in an ambulance. He died shortly thereafter.

Dr. Lightfoot, the examining physician, first saw Neal on the morning of July 13, 1980. He testified that it was his impression that Neal had suffered a heatstroke. Dr. Lightfoot’s opinion was admittedly based upon the history obtained from members of Neal’s family as to his health and the conditions of his work. Dr. Lightfoot was told that Neal “was selling used cars on an asphalt car lot during a severe heat wave .... He became heat stricken and was sent home from work due to his reaction to the heat.” Dr. Lightfoot could not express an opinion as to whether Neal’s job caused his illness and death.

A claim for workmen’s compensation benefits was brought against Montgomery Lincoln-Mercury, Inc. on October 2, 1980 by Perry David Neal, administrator of Neal’s estate and guardian of Neal’s minor dependent, a daughter. The court heard evidence ore tenus and found that Neal’s death was caused by an accident which arose out of and in the course of his employment. The court further found that:

Decedent, while working at his regular employment during normal working hours, and while on the job, suffered a heat stroke which the Court finds to be an accident within the meaning of the aforesaid Workmen’s Compensation Act.... On the date of the accident, decedent was exposed to conditions of risk or hazard to which he would not have been so exposed had he not been performing his job.

The court found that Neal’s average weekly wage equalled $400.00, and awarded Neal compensation in the amount of $148.00 per week and burial expenses in the amount of $1,000.00.

Montgomery Lincoln-Mercury, Inc. appeals from the award of compensation, alleging that the court erred (1) in finding that Neal’s death was caused by a heatstroke arising out of and in the course of his employment, (2) in finding that Neal’s average weekly wage was $400.00, and (3) in awarding Neal’s estate $1,000.00 in burial expenses.

The standard of review in workmen’s compensation cases is limited to a determination of whether there is any legal evidence to support the trial court’s findings of fact. This court will not weigh the evidence. If any reasonable view of the evidence supports the findings of the trial court, we may then determine if the correct legal conclusions have been drawn therefrom. Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977), cert. denied, 354 So.2d 1142 (Ala.1978).

In order for an employee to recover benefits under Alabama’s workmen’s compensation laws, his injuries or death must be “caused by an accident arising out of and in the course of his employment.” § 25-5-51, Code 1975. The employer contends that the evidence presented to the trial court does not sufficiently meet the test for causation set out for heat exposure cases so as to render Neal’s death an “accident” within the meaning of the workmen’s compensation statute. The two-pronged test applied to heat exposure cases was first set out in Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565 (1934):

[T]he harmful condition does arise out of the employment, if, in the performance of the duties for which he was engaged, in the manner required or contemplated by the employer, it is necessary for the employee to expose himself to a danger, materially in excess of that to which people commonly in that locality are exposed, when not situated as he is when thus performing his service, and that such excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure.
That principle has been specifically thus applied to sunstroke or heat prostration or heat exhaustion in many varying conditions. [Citations omitted.]

This standard has been followed in subsequent similar cases, notably Pullman-Standard Car Manufacturing Co. v. Lively, 239 Ala. 684, 196 So. 870 (1940), and Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938).

This two-pronged test has been cited as controlling in the more recent cases of City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975), and Newman Brothers, Inc. v. McDowell, supra. These cases deal with death or injury arising from a heart attack allegedly caused by strain or exertion on the job. In Newman Brothers, this court attempted to clarify its decision in Howard, citing the two-pronged test as set out in Pow v. Southern Construction Co., supra. This court then restated that test:

If in the performance of his job [the employee] has to exert or strain himself or is exposed to conditions of risk or hazard and he would not have strained or exerted himself or been exposed to such conditions had he not been performing his job and the exertion or strain or the exposure to the conditions was, in fact, a contributing cause to his injury or death, the test whether the job caused the injury or death is satisfied.

Appellant contends that this language constitutes a less restrictive standard than that originally set out in Christison. However, we interpret the above language to be a mere clarification of the original Christison test: the legal test of causation does not require proof of some unusual exertion, strain or exposure not ordinary to the job, but the strenuous activity, exposure or other risk must be different from that to which others not employed in the same capacity are exposed.

Reviewing the evidence, we agree with appellant, Montgomery Lincoln-Mercury, Inc., and find that there is no legal evidence with which to support the finding of the trial court that Neal’s death was caused by an “accident” within the meaning of the statute. As to the first prong of the causation test, the only evidence presented at trial by Neal’s estate consists of testimony concerning the state of Neal’s health prior to his going to work on the Saturday in question and subsequent to his returning home from work in the afternoon, and statements made by a secretary, Ms. Duncan, concerning subsequent discussions of the incident among the other employees. The secretary’s testimony simply relates speculations by the employees as to the possible medical cause of Neal’s death; the statements do nothing to establish that Neal’s death was the result of his performance of job-related duties. In fact, nowhere in the record do we find legal evidence that Neal, once he got to work, performed any activities required of him by his job, or that as a result of his employment he was exposed to the hot and humid weather to any greater degree than any other person in the community. On the contrary, it appears from the testimony of the two car salesmen that Neal was ill when he reached the employer’s premises and that he did not perform work of any kind after his arrival at the car lot. Testimony indicates that Neal sat in an air-conditioned office until he went to lie down in his car, which was parked in the shade of a tree.

The only evidence we can find upon which the trial court could have found Neal’s death to be an accident “arising out of and in the course of his employment” is the testimony of Dr. Lightfoot as to the history he obtained from a member of Neal’s family. Dr. Lightfoot testified that a member of Neal’s family told him that Neal was selling cars on an asphalt parking lot during the heat wave, and that he became ill and was sent home because of his reaction to the heat. The general rule is that statements made to the examining physician by the patient concerning the circumstances under which the injuries were sustained are admissible into evidence over a hearsay objection if the information is necessary to a determination of the nature of the patient’s illness. Newman Brothers, Inc. v. McDowell, supra; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543 (1929). These statements are, however, admissible only to establish the basis for the physician’s finding as to the condition of the patient, not as evidence as to how the accident occurred. McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958). We are aware that the cases cited concern statements made by the patient himself. In view of the limited admissibility of such statements, and the purpose for which they are offered, we think that statements made by a member of the family under the circumstances of the present case would fall within the ambit of this rule.

With regard to the second prong of the causation standard, the medical test, we find that there is sufficient evidence to support the trial court’s finding that Neal suffered from a heatstroke. The testimony of Dr. Lightfoot concerning statements made to him about the circumstances surrounding Neal’s death is admissible to support the physician’s diagnosis. See Newman Brothers, Inc., supra. The trial court could have found the physician’s diagnosis to be credible based on that evidence.

However, in light of our finding as to the legal test of causation, we cannot say that Neal’s death was caused by an accident arising out of and in the course of his employment. The judgment of the trial court is reversed and the cause remanded for entry of judgment consistent with this opinion.

In view of our decision that Neal’s estate is not entitled to recover workmen’s compensation benefits under these circumstances, there is no need for us to enter into a discussion of appellant’s other allegations of error.

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P.J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

My review óf the record reveals ample evidence to support the trial court’s finding that the employee’s death was caused by an “accident” within the meaning of the workmen’s compensation law.

The doctor’s testimony clearly supports such a finding. The cases cited by the majority, that this testimony is of a limited nature, are not persuasive. In fact, I do not find, in this instance, these cases support the conclusion reached by the majority.

The doctor’s testimony when considered with the employee’s mother’s testimony, Ms. Duncan’s testimony, and the weather condition support the trial court’s finding that the employee’s death was caused by an accident. I note that the pertinent testimony was admitted without objection.

I further note that this is a workmen’s compensation case and construction of facts favorable to employee should be adopted on appeal if reasonably supported by the evidence. W.T. Smith Lumber Co. v. Raines, 271 Ala. 671, 127 So.2d 619 (1961). I find the trial court’s finding to be reasonably supported by the evidence.

I would affirm the trial court.


author: FAULKNER, Justice.

text:
    Ex parte Perry David NEAL, as Administrator of the Estate of Cameron M. Neal, Deceased. (Re MONTGOMERY LINCOLN-MERCURY, INC. v. Perry David NEAL, as Adm., etc.)
    81-607.
    Supreme Court of Alabama.
    Oct. 15, 1982.
    Rehearing Denied Nov. 5, 1982.

      Robert S. Lamar, Jr. of Lamar, McDor-man & Moody, Birmingham, for petitioner.
    Jere L. Beasley of Beasley and Wilson, Montgomery, for respondent.
   FAULKNER, Justice.

This is a workmen’s compensation case. The trial court awarded workmen’s compensation benefits. On appeal, the Court of Civil Appeals, 423 So.2d 846, reversed on the ground that the evidence was insufficient to support the trial court’s findings that death was caused by an accident within the meaning of the workmen’s compensation statute.

Cameron M. Neal, Jr., was employed by Montgomery Lineoln-Mercury, Inc. on April 8, 1980, as a lease manager. His earnings were based on a salary of $250.00 per week plus commission based upon the gross volume of the company’s lease department. On Saturday, July 12, Neal, diabetic and obese, went to work about 7:00 A.M., and according to his mother, he had eaten breakfast and was feeling fine. During the month of July, the City of Montgomery had been plagued by a long lingering heat wave. Temperatures that Saturday varied from 88°F at 8:00 A.M., to 99°F around 3:00 P.M., with a maximum of 100 °F. The humidity was high. There was no wind. Employment records revealed that the deceased was working on July 12, and that his responsibilities were on the car lot of Montgomery Lincoln-Mercury.

Co-employees testified that Neal was already at work when they got there and that they did not know what Neal did that day while outside the air-conditioned office. Another co-employee, Ms. Duncan, overheard conversations between salesmen alluding to the fact that Neal had suffered a heat stroke and that it was a possible cause of his death.

Neal’s mother’s testimony at trial was as follows:

“A. He came in that Saturday afternoon, it must have been around two-thirty. I mean I didn’t look at the clock, but I think it was around between two thirty and three. He said, I am exhausted, I am so hot, and I said can I fix you something, and he said I’m too sick and went to bed.
Q. Yes. I believe he stated to you when he came home that he had gotten too hot?
A. That’s right.
Q. And that he was exhausted?
A. That’s right.
Q. And that he had been at work?
A. That’s right.”

Neal’s mother and sister both testified that Neal’s bedroom was air-conditioned and cool. The next morning, July 13, his mother found Neal unconscious, very ill and suffering from high fever, and diarrhea. Neal was taken to the hospital in an ambulance. Upon arrival in the emergency room, Neal was in a coma with a body temperature of 108 °F. He died shortly thereafter. The examining physician, Dr. Lightfoot, found the diagnosis to be compatible with heat stroke, which was indicated on the hospital records and his death certificate. Dr. Lightfoot testified that Neal, at age forty-five, obese and diabetic, was a high risk and that the weather conditions were inducive to heat stroke.

On November 10, 1980, Dr. Lightfoot wrote a letter to the workmen’s compensation insurance carrier for Montgomery Lincoln-Mercury, in which he stated that the deceased “was selling used ears on an asphalt car lot during a severe heat wave.... He became heat stricken and was sent home from work due to his reaction to the heat.” All testimony, hospital records and letter were introduced into evidence without objection.

The standard of review in workmen’s compensation cases is limited to a determination of whether there is any legal evidence to support the trial court’s findings of fact. The appellate court does not weigh the evidence. If any reasonable view of the evidence supports the findings of the trial court, it is then determined if the correct legal conclusions have been drawn therefrom. Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1978), cert. denied 354 So.2d 1142 (Ala.1978).

In order for an employee to recover under the workmen’s compensation statute, the injury or death must be “caused by an accident arising out of and in the course of his employment.” (Emphasis added.) Section 25-5-51, Code 1975.

The Court of Civil Appeals found “no legal evidence with which to support the finding of the trial court that Neal’s death was caused by an ‘accident’ within the meaning of the statute,” and that in fact, the only evidence upon which the trial court could have based its decision was the testimony by Dr. Lightfoot that a family member informed him that prior to his illness, Neal “had been selling cars on an asphalt parking lot during the heat wave."

As a general rule, statements made to a physician by his patient to establish the basis for the physician’s diagnosis, are admissible only in support of his findings, and not as evidence as to how the accident occurred.

In Newman, supra, where an employee had struggled with a tarpaulin and subsequently suffered a heart attack, the court held that the doctor’s statements as to what the employee had told him were properly admitted, over an objection by the employer. The court further stated that even if there had been error in the admission of the physician’s statements, it would not require reversal. Statements by a patient who claimed that her abortion was due to a streetcar ride were properly admitted in Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543 (1929). McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958), held that testimony by the physician who had been told by his patient at what time the patient had left home, was admissible.

Montgomery Lincoln-Mercury contends that none of the evidence admitted by the trial court was legal, and that even if the evidence were legal, it would not satisfy the medical causation test. We disagree.

We find that the medical causation test was met. The physician’s testimony and the hospital records indicate that Neal suffered a cerebrovascular accident and diabetic ketoacidosis precipitated by the severe heat exhaustion.

All pertinent evidence was admitted without objection. While the court in Newman, Alabama Power Co. and McLaney overrule hearsay objections and admitted the evidence for a limited purpose, in the case at bar, no objections were made. This Court held in Gurganus v. Kiker, 286 Ala. 442, 241 So.2d 113 (1970), that inadmissible evidence, admitted without objection, should be given the same weight as if it had been admissible, even when such evidence is inadmissible hearsay. Also, Hackmeyer v. Hackmeyer, 268 Ala. 329, 106 So.2d 245 (1958), held that any taint because of hearsay is waived and forever lost if the complaining party fails to object at trial.

The trial court is not in error if inadmissible testimony comes in without objection and without a ruling thereon appearing in the record. The testimony is thus generally admissible and not limited as to weight or purpose. State v. Kennedy, 52 Ala.App. 470, 294 So.2d 439 (1974).

Furthermore, this is a workmen’s compensation case and the standard of review dictates that we must construe the facts favorably to the employee in this case, where the evidence allows such construction. Reynolds Metals Company v. Gray, 278 Ala. 309, 178 So.2d 87 (1965). In other words, if there is any legal evidence on any reasonable view, or reasonable inference therefrom, the trial court’s determination will not be disturbed. W.T. Smith Lumber Co. v. Raines, 271 Ala. 671, 127 So.2d 619 (1961).

In the final analysis, this case presents a matter raised on appeal which was not raised at the trial level. Formal objections are a condition precedent to an appeal based on the improper reception of evidence. C. Gamble, McElroy’s Alabama Evidence, § 426.01(1) (3d ed.1977).

We hold that Neal’s death was caused by an “accident” within the meaning of the workmen’s compensation statute. Neal obviously suffered a heat stroke while at work. The physician testified that he was a high risk and that the heat stroke precipitated his death.

The judgment of the Court of Civil Appeals is reversed and the case remanded to it to reinstate the judgment of the trial court.

REVERSED AND REMANDED WITH DIRECTIONS.

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

MADDOX, J., dissents.

BEATTY, J., not sitting.


author: BRADLEY, Judge.

text:
    MONTGOMERY LINCOLN-MERCURY, INC. v. Perry David NEAL, as Administrator of the Estate of Cameron M. Neal.
    Civ. 2838.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that the decision of the Circuit Court of Montgomery County should be affirmed in accordance with the opinion rendered by the Supreme Court on October 15, 1982, 423 So.2d 850.

AFFIRMED ON REMAND.

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


text:
    Earl MANNING v. Coleman WHITE.
    Civ. 3343.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.
    Rehearing Denied Dec. 8, 1982.

      Lewis H. Hamner, Roanoke, for appellant.
    S.Sanford Holliday, Wedowee, for appel-lee.
   BRADLEY, Judge.

The appeal is from a judgment in a trespass action on the ground of inadequate damages.

Earl Manning sued Coleman White in trespass for cutting timber on fifty-two acres of land to which plaintiff held record title. White, in turn, filed a third-party action against the record owners of certain land from whom he had received authority to cut certain timber. The third-party defendants claimed the greater portion of the land from which the timber was cut was their land by adverse possession. It is undisputed that White cut twenty-six trees on lands owned by Manning and outside the acreage in dispute. Moreover, there is no specific evidence in the record as to the before and after value of the land from which these twenty-six trees were cut. However there was extensive proof as to the number and value of the trees cut on the entire fifty-two acres, which would include the land owned by plaintiff, as well as proof of other damage to the acreage cut by the defendant.

The jury returned a verdict for plaintiff and against defendant and awarded plaintiff damages in the amount of $1,000. The effect of the jury’s verdict for the third-party defendants was to affirm their claim of adverse possession to a major portion of that acreage on which plaintiff claimed defendant had trespassed by cutting timber therefrom.

After his motion for new trial was overruled, plaintiff appealed to this court. He now argues that the damages awarded him are inadequate and unsupported by the evidence.

When a judgment is challenged on the ground of inadequacy of damages, the reviewing court attempts to ascertain from the record whether the judgment is the result of improper motive or improper influence on the jury, and, in the absence of such, whether the verdict gives substantial compensation for substantial injury. Hardy Insurance Co. v. Baumhauer-Croom Insurance, 339 So.2d 584 (Ala.Civ.App.1976). Moreover, a jury verdict is presumed correct and the presumption of correctness is strengthened where the trial court has denied a motion for new trial. Cox v. Herrington, 416 So.2d 968 (Ala.1982).

The measure of damages for trespass to land when trees have been cut is the difference between the value of the land before the cutting and its value immediately after the cutting. Hogan v. Alabama Power Co., 351 So.2d 1378 (Ala.Civ.App.1977).

Although plaintiff offered substantial proof of the damages to the fifty-two acres in question, he failed to offer specific proof of the damages to that portion of the fifty-two acres deemed by the jury to be owned by him. In the absence of such proof, the jury could assess only those damages resulting to the land plaintiff actually owned based upon the proof offered as to the entire tract. This they did by awarding plaintiff $1,000 as damages. Based on the record before us, we cannot say that the jury’s award is inadequate.

AFFIRMED.

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


text:
    FRANK DAVIS BUICK AMC-JEEP, INC. v. FIRST ALABAMA BANK OF HUNTSVILLE, N.A.
    Civ. 3360.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.
    Rehearing Denied Dec. 8, 1982.

      H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellant.
    Paul A. Pate of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
   BRADLEY, Judge.

This is an appeal from a summary judgment. The action arose out of a secured transaction.

On February 24, 1981 First National Bank of Huntsville, N.A., entered into a security agreement with Schrader AMC-Jeep, Inc., also of Huntsville. In this agreement the bank was granted a security interest in all the automobile dealer’s present and after acquired inventory of new and used automobiles, demonstrators, spare parts, and supplies. Schrader and the bank also entered into a floor plan arrangement whereby the bank financed the dealer’s inventory. All the necessary steps were taken to perfect the security interest.

On July 10, 1981 the AMC sales manager for Frank Davis Buick AMC-Jeep, Inc., an automobile dealership in Nashville, Tennessee, contacted the American Motors zone office in Atlanta to locate a particular type of jeep for a customer. He was told that the Schrader dealership had the particular vehicle in stock. Purchasing arrangements were made with the Huntsville dealership and on July 11, 1981 two daughters of one of Frank Davis Buick’s salesmen drove to Huntsville to get the jeep. In exchange for the automobile, they delivered to Schrader AMC-Jeep a check in the amount of $9,251.95. A bill of sale was issued showing the amount due as zero. The vehicle was taken back to Nashville.

A couple of days later the Nashville dealership realized that the manufacturer’s statement of origin and original invoice had not been furnished in the July 11th transaction. A Frank Davis Buick employee telephoned Schrader AMC-Jeep and was told by them that the documents would be forwarded immediately. Soon thereafter Schrader AMC-Jeep ceased doing business. The documents were never sent.

During an inventory check of the Schrader dealership made on July 16, 1981, the bank discovered that Schrader had transferred the jeep to Frank Davis Buick and the bank had not received payment for the jeep. Under the terms of the floor plan agreement, payoff of sold floor planned units is due the bank in full when cars are sold.

Frank Davis Buick learned that First Alabama Bank held the manufacturer’s statement of origin and original invoice for the automobile, and requested on a couple of occasions that the bank send the documents to the dealership. The dealership alleged, in an affidavit, that a bank employee agreed to send the manufacturer’s statement of origin and invoice. The bank denies that such an arrangement was made. In fact the bank asserts that it told the dealership’s employee that the bank held a perfected security interest in the vehicle and would discuss the matter with the bank’s counsel. The documents were never forwarded by the bank.

On October 2, 1981 First Alabama Bank formally informed Frank Davis Buick, by letter, that it held a validly perfected security interest in the jeep and demanded that possession of the automobile be returned to the bank. The jeep had been sold to a customer on July 20, 1981, approximately two months prior to receipt of the bank’s letter.

The bank, on October 13, 1981, filed a complaint alleging conversion and demanding $9,226.95, interest and costs. Frank Davis Buick pleaded, as a defense, that it was a buyer in the ordinary course of business and took the jeep free of plaintiff’s security interest. Defendant further pleaded that the bank had authorized the sale of the jeep and therefore was precluded from recovery. A counterclaim was also filed requesting, among other things, the delivery of the manufacturer’s statement of origin and original invoice to Frank Davis Buick.

Both parties filed a motion for summary judgment and supporting affidavits. The circuit court granted plaintiff’s motion for summary judgment and ordered the defendant to pay First Alabama Bank of Huntsville $9,226.95, plus six percent interest and costs. From this judgment defendant appeals.

The appellate court, on an appeal from summary judgment, looks at the same factors which the lower court considered in making its ruling on the motion. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). A motion for summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Alabama Rules of Civil Procedure 56(c). In determining whether the motion should be granted, all reasonable inferences from the facts are viewed in the light most favorable to the nonmoving party. Kutack v. Winn-Dixie Louisiana, Inc., 411 So.2d 137 (Ala.1982). Our review of the record reveals only one factual issue in dispute in this case, i.e., whether a bank employee stated, upon the dealership’s requests, that the documents would be forwarded. We note, however, that this factual dispute is unrelated to the real issue before this court. The issue here is whether the trial court applied the correct rule of law.

A resolution of this case requires an interpretation of the applicable provisions of Alabama’s Commercial Code. Inasmuch as this is a case of first impression, it will be necessary to examine the cases decided by other jurisdictions.

The bank’s claim is based on section 7-9-306(2), Code 1975, which provides:

“Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless the disposition was authorized by the secured party in the security agreement or otherwise .... ”

The dealer-purchaser of the jeep relies on an exception to the protection of section 7 — 9—306(2), Code 1975. This exception provides:

“A buyer in ordinary course of business (subsection (9) of section 7-1-201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”

§ 7-9-307(1), Code 1975. Important to our disposition of this case is a determination of whether Frank Davis Buick qualifies as a buyer in the ordinary course of business.

A buyer in the ordinary course of business is defined in section 7-1-201(9), Code 1975, as:

“[A] person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind

The commercial code provides two definitions of good faith. In section 7-1-201(19), Code 1975, good faith is defined as “honesty in fact in the conduct or transaction concerned.” Section 7 — 2-103(l)(b) states that good faith “in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.”

The bank contends that the objective standard of good faith found in section 7-2-103(l)(b), Code 1975, applies and precludes defendant from taking the jeep free of the bank’s security interest. Specifically, the bank argues that the purchaser-dealer, by failing to check for outstanding security interests in the vehicle, was not observing reasonable commercial standards of fair dealing for the automobile industry. Therefore, the dealership was not acting in good faith. To support this position, the bank relies in part on the deposition of the president of Frank Davis Buick. In the deposition, statements were made to the effect that the dealer-purchaser had no knowledge of any outstanding security interest and that no effort was made to ascertain whether there was any security interest outstanding. It is evident from the record that the president of the Nashville dealership floor-planned his inventory and, consequently, should have realized that there may be a security interest in the jeep. To buttress "their argument, the bank cites Swift v. J.I. Case Co., 266 So.2d 379 (Fla.Dist.Ct.App.1972).

Swift involved the sale of a tractor by J.I. Case Company, the manufacturer, to Florida Tractor Mart. Case held a perfected security interest in the tractor. Florida Tractor Mart, pursuant to an oral lease, transferred possession of the tractor to Gator Tractor. Gator Tractor traded the tractor to Swift. The manufacturer filed an action for replevin. The Florida Court of Appeals held the purchaser-dealer to the merchant’s standard of good faith. The court stated that a tractor merchant, acting in accordance with the reasonable commercial standards of fair dealing in the tractor trade, may not purchase a tractor from another dealer free of a perfected security interest without first making a good faith check to determine the existence of any such security interest.

Other jurisdictions have held that the general, subjective standard of good faith, found at section 7-1-201(19), Code 1975, is to be applied in transactions such as this. See Martin Marietta Corp. v. New Jersey National Bank, 612 F.2d 745 (3d Cir.1979); Sherrock v. Commercial Credit Corp., 290 A.2d 648 (Del.1972). One such jurisdiction is Illinois.

In Massey-Ferguson, Inc. v. Helland, 105 Ill.App.3d 648, 64 Ill.Dec. 142, 434 N.E.2d 295 (1982), the court looked to the relevant Uniform Commercial Code sections in determining which good faith standard to apply. U.C.C. section-1-201 states that the definitions contained in article one apply to the entire commercial code. These general definitions are subject to additional definitions found in other articles, which are applicable to the other specific articles or parts of articles. The definitional sections of article two on sales and article nine on secured transactions both provide that the definitions found in each article apply throughout that article and that the general definitions found in article one also apply in the article. The court then reasoned that the article two definition of good faith applies only to the sales article and that the general article one definition of good faith applies to article nine. The court’s reasoning was fortified by the official comment to section 1-201(19), which states:

“ ‘Good faith’, whenever it is used in the Code, means at least what is here stated. In certain Articles, by specific provisions, additional requirements are made applicable. See, e.g., Secs. 7-2-103(l)(b), 7-7— 404. To illustrate, in the Article on Sales, Section 7-2-103, good faith is expressly defined as including in the case of a merchant observance of reasonable commercial standards of fair dealing in the trade, so that throughout that Article whenever a merchant appears in the case an inquiry into his observance of such standards is necessary to determine his good faith.”

The objective good faith standard, proposed by the bank, was recently rejected in General Electric Credit Corp. v. Humble, 532 F.Supp. 703 (M.D.Ala.1982). We, too, recognize the subjective good faith definition of section 7-1-201(19), Code 1975, as the operative standard for article nine transactions between merchants. As so aptly stated by the Third Circuit Court of Appeals, “we feel it inappropriate to import the article 2 definition into article 9 without more explicit statutory authority.” Martin Marietta Corp. v. New Jersey National Bank, supra.

Moreover, our review of the record reveals that even under the stricter good faith test proposed by the bank, Frank Davis Buick would take the jeep as a buyer in the ordinary course of business. The tougher standard would require the dealership to search for any outstanding security interests in the vehicle. But even if the purchaser discovered the security agreement, knowledge of that secured interest alone will not defeat a buyer in the ordinary course of business. “In order for such a security instrument to defeat a sale between merchant dealers, the buyer must have knowledge of facts that would put him on notice that the sale is in violation of some term of the security agreement.” General Electric Credit Corp. v. Humble, supra. (Emphasis added.)

No evidence was presented that would put a purchaser on notice. Frank Davis Buick, at the time of the purchase, was unaware of Schrader’s financial difficulties. The vehicle was not sold at a price that should make the dealership suspicious of the sale. We note that nothing contained in the security agreement drafted by the bank indicates that such a sale is unauthorized. In fact the agreement authorizes the sale of vehicles by spelling out that floor planned units are to be paid up immediately after the units are sold.

Frank Davis Buick took the vehicle free of the bank’s security interest. Therefore, the summary judgment rendered in favor of the bank is reversed and the cause is remanded for the entry of a summary judgment in favor of Frank Davis Buick. We also conclude that the judgment concerning the dealership’s counterclaim should be reversed. The bank in brief argues that since the dealership sold the vehicle it no longer has an interest in the vehicle and therefore cannot bring the counterclaim. However, our review of the record shows that the dealership had to post a bond for the automobile title when the jeep was sold to a customer. Since Frank Davis Buick is still under this bond it has an interest in the vehicle and can properly bring this counterclaim. Furthermore, since Frank Davis Buick, as a buyer in the ordinary course of business, took the vehicle free of the bank’s interest, the documents are due to be delivered to the dealership.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: HOLMES, Judge.

text:
    Odis BEST and Margaret Best v. STATE of Alabama, DEPARTMENT OF REVENUE.
    Civ. 3284-X.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1982.
    Rehearing Denied Dec. 8, 1982.

      Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Chief Counsel, and Bill Thompson, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This is an income tax case.

The Circuit Court of Montgomery County, after an ore tenus hearing, found that the taxpayer should have included as income in his 1976 state income tax return the gain from the sale of certain property. Additionally, the circuit court found that the statutory penalty assessed against the taxpayer by the State Department of Revenue was not justified.

The taxpayer appeals from the first finding and the state cross-appeals as to the penalty. We affirm.

The record viewed with the attendant presumptions reveals the following facts.

In May of 1976, the taxpayer and his wife purchased 100 acres of land from Mrs. Elsie Estes for $7,146.41. On August 26, 1976, the taxpayer and his wife sold twenty acres of this land using their son as a conduit to Ms. Lee Stephens for $8,100.

In November of 1976, the taxpayer and his wife were sued by Mrs. Estes, who charged the taxpayer, Odis Best, with fraud and misrepresentation in the initial sale of the 100 acres of land. In February of 1977, the taxpayer bought back the twenty acres of land from Ms. Stephens for $10,150.

On April 10, 1977, the taxpayer and his wife filed a joint 1976 Alabama income tax return which did not include the gain received from the sale of the twenty acres in 1976.

In December, 1979, the State Department of Revenue began an investigation and audit of the taxpayer and his wife. At the completion of the audit in April, 1981, the Revenue Department entered its final assessment against the taxpayer and his wife. In pertinent part, that assessment found the taxpayer and his wife had not reported the aforesaid gain on the 1976 sale of twenty acres. The Revenue Department also claimed a penalty for a false or fraudulent return. The taxpayer and his wife appealed to the Montgomery Circuit Court which entered an order finding the gain should have been included but that no penalty was justified.

I

The taxpayer argues he was not required to report the gain on the sale because in the year of the sale he recognized his liablity under an existing and fixed obligation to repay the amount received and made provisions for repayment.

The Alabama Code requires that all income should be included in a taxpayer’s gross income in the year it is received, although losses may later occur against such income. Ala.Code §§ 40-18-13 and 40-18-14 (1975). Alabama law, like its federal counterpart, requires that “each transaction must be reported in the year of occurrence.” Boswell v. First National Bank, 375 So.2d 469, 473 (Ala.Civ.App.1979). Generally, a gain such as the instant gain, should be reported on the tax return of the year in which the gain occurred, regardless of the fact that due to circumstances a “loss” may occur in a later year. See Hope v. Commissioner of Internal Revenue, 471 F.2d 738 (3rd Cir.1973); Boswell v. First National Bank, supra.

The repurchase of the twenty acres in 1977 and its effect on the transaction did not change the taxpayer’s legal duty to report the gain he received on the sale of the twenty acres in 1976.

Furthermore, the “claim of right doctrine,” which the Revenue Department relies on in part, holds that “[i]f a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to [report], even though it may still be claimed he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.” North American Oil Consolidated v. Burnet, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197 (1932).

The taxpayer, through able counsel, contends he falls within an exception to “the claim of right doctrine” which provides the rule does not apply “when in the year of receipt a taxpayer recognizes his liability under an existing and fixed obligation to repay the amount received and makes provision for such repayment.” Hope v. Commissioner of Internal Revenue, supra, at 741.

However, such a claim by the taxpayer is not supported by the evidence. Although the taxpayer testified he made an agreement with Ms. Stephens in 1976 to repurchase the land, both Ms. Stephens and her attorney testified in depositions that no such understanding was reached, nor discussed, in 1976.

Where there are unreconcilable conflicts in the evidence, the function of believing one party and disbelieving the other is for the trier of facts. Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.), cert. denied, 380 So.2d 877 (Ala.1980). On disputed questions of fact, in an ore tenus hearing, it is the province of the trial court to make a decision. General Mutual Insurance Co. v. Dennis, 280 Ala. 434, 194 So.2d 838 (Ala.1967).

Therefore, the trial court’s finding that the taxpayer “should have included as income” the gain from the sale of property is affirmed, as clearly such a finding is supported by the evidence.

II

The state in its cross-appeal contends the taxpayer’s conduct and actions surrounding his failure to report the gain supported the imposition by the Revenue Department of a penalty for filing a false and fraudulent return under the relevant Alabama Code section, and the trial court erred in removing the penalty.

The relevant statute provides for a penalty against “any person ... rendering a willfully false or fraudulent list or return ... and in the case of a willfully false or fraudulent return or list.... ” Ala.Code § 40-18-49 (1975).

In this instance, whether the taxpayer filed a “willfully false or fraudulent return” within the provision of § 40-18-19 was a question of fact to be determined by the learned trial judge. See State v. Pollock, 251 Ala. 603, 38 So.2d 870 (1948).

If there is evidence to support the trial court’s finding, such finding must be affirmed. Jansen v. Fair Harbor Marina, Inc., 373 So.2d 325 (Ala.Civ.App.1979).

There was evidence before the trial court and legal theories presented to the trial court that would support a finding that the taxpayer’s action were not “willfully false or fraudulent,” to wit, as in Pollock, the taxpayer had a “right to have a disputed question judicially determined without the assessment of a penalty.” State v. Pollock, supra, 251 Ala. at 609, 38 So.2d at 875.

We therefore affirm.

We also note that the taxpayer contends the trial court abused its discretion in assessing costs against him since he prevailed on two of the issues before the trial court.

Rule 54(d), A.R.Civ.P., leaves the taxing of costs within the sound discretion of the trial judge. Bukley v. Carroll, 366 So.2d 1094 (Ala.1978).

“While it is true that costs are generally taxed as a matter of course to the losing party, rule 54(d) gives the judge the authority to allocate them otherwise.” Ex parte Osborn, 375 So.2d 467, 469 (Ala.1979). The court in Osborn specifically noted that the rule does not “require” that the trial judge “must state the reasons” for the taxation of costs to either party. Ex parte Osborn, supra, at 469.

We find no abuse of discretion in the taxing of costs against the taxpayer in this case, and affirm.

The actions of the trial court in this case are due to be affirmed.

AFFIRMED.

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

      . In a previous case, arising from the same transaction, we upheld the circuit court’s action denying the taxpayer a deduction for the loss incurred when he transferred the 100 acres back to Mrs. Estes. Interested parties should see Best v. State Department of Revenue, 417 So.2d 197 (Ala.Civ.App.1981).


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    John L. POPE v. Joe C. HARE.
    Civ. 3127.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.

      W. Kenneth Gibson of Taylor, Benton & Gibson, Fairhope, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil action upon a note. The defendant has appealed to this court. We affirm.

Through a July 1977 oral agreement, the parties entered into the trucking business as partners doing business as Brown Mule Freight Line. A Kenworth tractor was purchased in the defendant’s name. The plaintiff advanced to the defendant $5,000 for the defendant’s share. The actual check for that money was drawn upon a joint account of the plaintiff and his mother, who signed it since the plaintiff was at work and such fact was not controverted by the defendant’s evidence.

In order to terminate the partnership, the parties executed the following instrument on August 31, 1977:

“This agreement made between John L. Pope and Joe C. Hare. Whereby John L. Pope agrees to pay Joe C. Hare $500.00 after 60 days from this day and continue until he has paid him a total of $5000.00 dollars for his share of Brown Mule Freight Line. Payment shall be made between the 1st and the 5th of each month, beginning November 1st, 1977. Unless otherwise agreed to by both parties.”

Thereafter, the business was owned and operated by the defendant, the primary asset thereof being the tractor, which the defendant still had.

The defendant subsequently made payments totaling $2,000 upon that note, with each of the checks therefor being payable to the plaintiff’s mother.

The plaintiff sued the defendant for the balance due of $3,000. The defendant’s answer contained a general denial of the plaintiff’s complaint and the following defenses:

“2. The plaintiff has failed to join a party required by Rule 19 of the Alabama Rules of Civil Procedure.
“3. The plaintiff is estopped from any recovery.
“4. Want or failure of consideration.”

During the trial, there was evidence of the above summarized facts. The court asked defendant’s counsel as to how he expected to prove the defense of estoppel and the attorney made the following showing in that respect:

“I expect to show that on a number of occasions these two gentlemen had conversations with respect to the progress of the business; that on a number of occasions the plaintiff was specifically advised that certain things had occurred, specifically those would include several breakdowns with the rig, cancellation of the lease arrangement between Brown Mule Truck Line and the leasing authority so that moneys could not be earned, all of which the plaintiff was aware of and all of which the plaintiff understood, prohibited and prevented the payment to him of any moneys. Specifically the terms and conditions of the promissory note involved said unless otherwise agreed, the document says, ‘Unless otherwise agreed by the parties.’ Although the evidence may be in conflict my proffer would be that the conversations between this gentleman and the defendant during which he acknowledged the fact the vehicle could not make any moneys and no moneys could be made further that he was aware of the fact that the lease was cancelled because Mr. Pope could not operate the vehicle by himself. Mr. Hare, who had gone into this agreement initially could not live up to his bargain to drive the truck and Mr. Pope was required to hire additional drivers to operate the trucks because Mr. Hare could not perform his agreement.”

The end result was that the trial court stated that it did not “know what your theory of estoppel is.”

At the conclusion of all of the evidence, the trial court directed a verdict for the plaintiff for the amount of the note less the amount paid against it and the jury’s verdict was for the plaintiff for $3,000. Hence this appeal.

This is a suit upon a nonnegotiable note which was payable solely to the plaintiff. Neither party contended that the note needed to be reformed whereby the plaintiff’s mother would become a joint payee therein. The plaintiff was the only payee named in the note. His mother was not an indispensable party to this litigation.

If there was no consideration for the note or if the consideration failed, such would have been a good defense since the litigation was between the maker and the payee and, also, since the note was nonnegotiable in nature. However, the note itself recites consideration therefor. It states that the defendant agreed to pay to the plaintiff “a total of $5,000.00 dollars for his share of Brown Mule Freight Line.” (Emphasis supplied). After the note was executed, the defendant then totally owned and operated the freight line. We find no adequate specific argument in brief which is directed to a want of or failure of consideration. Neither can we ascertain any evidence, or proffered evidence, which was directed towards that particular affirmative defense.

By his evidence, the defendant contended that, before the note was signed, he and the plaintiff “discussed” that the note would be payable conditionally or contingently upon the trucking business being profitable. The defendant stated that such was the meaning of the words “Unless otherwise agreed to by both parties.” However, that is an attempt to vary or contradict the prior express language of the written note relative to its time or method of payment. Generally, such terms of a valid written note cannot be varied or contradicted by parol evidence. Slaton v. Shell, 398 So.2d 311 (Ala.Civ.App.1981). The language of the note was such that it would be payable in the manner as therein stated unless both parties reached a further agreement concerning it. Those words in the note have a clear enough meaning in and of themselves and, consequently, evidence to purportedly explain what they meant is not authorized. There was no evidence of any mutual contract regarding payment which both parties entered into after the note was executed.

Neither the introduced evidence nor the “offer to show” indicated that the elements of estoppel here existed. Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976). There was no evidence of a knowing holding out through the plaintiff’s words or conduct or of any reliance thereon by the defendant to his detriment. We concur with the trial court’s lack of understanding of the defendant’s plea of estoppel as factually offered.

In short, the evidence did not support the defendant’s defenses and the trial court correctly directed a verdict for the plaintiff. We affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


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    Ginger HAGGARD v. UNIROYAL, INC.
    Civ. 3278.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.
    J. Michael Williams, Sr., Auburn, for appellant.
    W.F. Horsley of Samford, Denson, Hors-ley, Pettey, Martin & Barrett, Opelika, for appellee.
   BRADLEY, Judge.

This is an appeal in a workmen’s compensation case.

On July 6, 1977 Ginger Haggard injured her left knee in a covered accident while working at Uniroyal, Inc., an employer subject to the Alabama Workmen’s Compensation Act. The injury occurred when Ms. Haggard was in the process of emptying a pan of grease from a machine and caught the leg of her overalls on an obstruction, causing her to fall to the floor. After her injury, she was initially treated by a company physician who referred her to Dr. Harold Gerald Goldsmith, an orthopedic surgeon. Dr. Goldsmith performed surgery on Ms. Haggard’s knee and followed up the procedure with medication and office consultations. He eventually decided that she had recovered to the point that she could return to work and dismissed her as a patient. Because she continued to experience pain, Ms. Haggard consulted with a second orthopedic surgeon, Dr. Steven Hunter. His recommendation was that she undergo further surgery. A hearing was held on November 20, 1979 in the Lee County Circuit Court to determine whether she required the prescribed surgery. In an order dated October 6, 1980 the court found that Ms. Haggard should undergo the surgery and also stated:

“The Court finds that the plaintiff will be temporarily totally disabled for an indeterminable period of time following such surgical procedure and that temporary total disability benefits shall be due during such period of recovery. The period of recovery shall be monitored and reported by the treating physician, who, at the time that plaintiff obtains optimum recovery, shall report plaintiff’s percentage of permanent partial disability, if any there be, and this Court retains jurisdiction of this cause pending such report.”

Claiming that Ms. Haggard had reached optimum recovery, Uniroyal, Inc., moved for a final judgment on November 30,1981. On April 6, 1982 the court entered an order stating that an ambiguity existed in its October 6, 1980 order as to whether both temporary total disability benefits and permanent partial disability benefits would be awarded. The court stated that it had retained jurisdiction to award temporary total benefits inuring to claimant as a result of the second operation. Jurisdiction was not retained to award any permanent partial disability benefits. The court’s final order, dated April 22, 1982, stated that Ms. Haggard had been fully compensated for her injury and that no further benefits were due her. Ms. Haggard has appealed to this court from that order.

Our review in a workmen’s compensation case, so far as the evidence is concerned, is limited to a determination of whether there is any legal evidence, or reasonable inference therefrom, to support the judgment. Big “B” Discount Drugs, Inc. v. Parker, 401 So.2d 115 (Ala.Civ.App.1981). In the case at bar the trial court’s denial of permanent partial disability benefits to the claimant is supported by the evidence and, thus, is due to be upheld. In his deposition, Dr. Goldsmith stated that the claimant had fully recovered, could return to full-time work, and had no permanent disability.

Ms. Haggard contends that the purpose of the Alabama Workmen’s Compensation Act is to allow full and complete benefits for a covered, job-related injury and that its provisions are to be liberally construed toward that end. She says that the court’s refusal to grant permanent partial disability benefits denies her a full statutory recovery.

It is true that an employee covered under the workmen’s compensation law is entitled to be fully compensated for a job-related injury and that the provisions of that law should be liberally construed to accomplish just such a result. Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So.2d 87 (1965). The trial court heard and saw the witnesses testify, considered the other evidence submitted to it, and concluded that claimant was not permanently disabled and thus was not entitled to permanent partial disability benefits. Also, the evidence supports such a finding. In this posture of the case, Ms. Haggard has received all the benefits of the workmen’s compensation law which she is due to receive under the law.

Ms. Haggard argues that she presented a letter to the court from Dr. Hunter, the orthopedist who performed the last operation on her knee, wherein he stated that she had a sixty percent physical disability. However, this letter was not introduced into evidence and did not become a part of the record on appeal. This court can consider only matters contained in the record. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (Ala.Civ.App.1973). For this reason we cannot consider it in deciding this case. Had the letter been introduced into evidence and made a part of the record on appeal, the outcome of this appeal would not be any different for the reason that there is legal evidence in the record to support the trial court’s conclusion that claimant was not due to receive any permanent partial disability benefits.

AFFIRMED.

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


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    Janice Marie WHITE v. Kenneth WHITE.
    Civ. 3281.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.
    Samuel J. Clenney, III, Abbeville, for appellant.
    C.R. Lewis of Lewis & Brackin, Dothan, for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

The parties to this proceeding were divorced in March 1980 and, by agreement, the primary custody of the two minor children of the parties was awarded to the father. On May 12,1980 the mother sought to modify the custody arrangement by having the custody of the children awarded to her. This effort failed. The mother again sought custody by modification petition filed on January 22, 1982. After a hearing the court denied her request for custody. She appeals.

The pertinent facts show that the two children, ages five and three, reside with their father and have so resided since 1980. The children are enrolled in a Kinder-Care Learning Center. It appears that the children are well cared for and love their father and are loved by their father. The father farms, and when he is working and the children are not in school, they are cared for by his mother and sister. The oldest child, a boy, attends speech therapy classes. His progress has been steady.

The evidence shows that the mother has suffered from emotional problems in the past and, although she is much better, apparently still continues to be so afflicted.

In Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981), we said:

“The question of modification of a child custody decree is vested in the sound discretion of the trial court. Rogers v. Rogers, 345 So.2d 1368 (Ala.Civ.App.1977). The party seeking modification has the burden of showing a material change in circumstances which will warrant modification. Cheatham v. Cheatham, 344 So.2d 525 (Ala.Civ.App.1977); 8 Ala. Digest, Divorce, Key Nos. 303(2)-(6). As in all cases where the trial court has heard evidence ore tenus, its judgment is presumed correct and will not be disturbed unless so unsupported by or contrary to the evidence as to amount to an abuse of discretion. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979).”

The record reflects that the trial court heard several witnesses, including the father and mother, and concluded that the children’s best interests would be served by leaving their primary custody in the father. The record evidence supports such a conclusion.

Although the court did not change the primary custody of the children from the father to the mother, it did give the mother liberal visitation rights.

As noted above, the person seeking a modification of a child custody decree has the burden of showing a material change in circumstances that would be in the best interests of the children. At most, the mother showed that she had gained more emotional stability and that she had a job and was working regularly. Granted such an improvement in plaintiff’s behavior is good; yet such a change in her circumstances does not require a change in the children’s custody. The evidence was substantial that the children’s best interests would be served by having their primary custody remain with the father. We, therefore, conclude that the mother has failed to sustain the burden of proof cast upon her. Hence, the trial court’s judgment is affirmed.

AFFIRMED.

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


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    Guy JOHNSON v. Billy Joe MARTIN.
    Civ. 3287.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.

      C.B. Caine, Jr., Moulton, for appellant.
    Stephen V. Hammond of Chenault, Che-nault & Hammond, Decatur, for appellee.
    Isaac P. Espy of Gray & Espy, Tuscaloosa, for amicus curiae Ala. Soc. of Professional Land Surveyors.
   BRADLEY, Judge.

The appeal is from a judgment for damages in a trespass action.

Billy Joe Martin sued Guy Johnson, a surveyor, for damages in a three count complaint. The first count was for a negligent survey; the second count was for wantonness in conducting the survey; and the third count was for trespass. The case went to the jury on the trespass count. A verdict was returned for the plaintiff and damages were awarded to him in the amount of $713. Johnson appeals, claiming that the trial court erroneously charged the jury on the measure of damages for this trespass action and that the trial court erred in refusing to give those written requested charges that related to the measure of damages in this trespass action.

The evidence shows that Guy Johnson, a private, licensed surveyor, was employed by an attorney to establish the boundary lines to the property adjoining that owned by Martin. This property owner planned to sell his parcel of property.

Johnson stated that he had never surveyed in that area before, but that he did have a copy of Martin’s deed and copies of three previous surveys of this identical property at the time his survey crew made the survey. His survey conformed to these surveys.

Johnson conceded that his surveyor probably stepped over the line he was running onto Martin’s property. The disputed strip of land was fourteen feet by eighty feet and had nothing on it. There was no fence or any other visible markers to establish a boundary line.

Martin had a survey made by a different surveyor, which survey did not match Johnson’s survey. Martin contended that Johnson’s survey established the boundary line fourteen feet over on his property. Martin filed a boundary line case against the former owner and the new owner of the property adjoining his property. Johnson did not testify in this lawsuit nor was his survey introduced in evidence. The court established the boundary line between the two parcels of property in conformity with the line established by Martin’s surveyor. This line was different from the one established by Johnson.

. Martin then filed suit against Johnson in a three count complaint as set out above. Martin sought damages, not only to his property, but also for the cost of the survey he had made, the costs of the attorney he hired to handle the boundary line dispute, for the time he lost from work during the time the boundary line case was being tried, and for the mental and emotional distress he suffered during the time he was waiting to have the boundary line case tried.

The court charged the jury that a trespass had been committed and that the only question for the jury would be whether Martin had suffered any damages and, if so, how much. The court then instructed the jury on the method to use in arriving at an amount for actual damage to the real and personal property. He further stated that in the absence of actual damages to the property, Martin could collect nominal damages. The court then instructed the jury that Martin could recover consequential damages for the trespass if they found that any had been suffered. The court then told the jury that they must decide if the expenses incurred by Martin to establish the boundary line between his property and the adjoining property resulted from Johnson’s trespass. The court further charged the jury that if they found that Johnson’s trespass caused Martin to suffer emotional or mental distress, they could award him damages for this suffering. In addition, the court told the jury that if they found that Johnson had trespassed in a rude or insulting manner, they could also award Martin punitive damages.

Johnson argues that the trial court erroneously charged the jury as to the various aspects of damages that they could consider in arriving at a verdict for Martin.

The measure of damage for injury to real property in a trespass action is the difference in the reasonable market value of the property immediately before the injury and the reasonable value of the property immediately after the injury. McCall v. Busey, 244 Ala. 162, 12 So.2d 401 (1943). In the absence of actual damage to property resulting from a trespass, the owner of the property is entitled to nominal damages. Foust v. Kinney, 202 Ala. 392, 80 So. 474 (1918). Damages to personal property may also be recovered in a trespass action. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). In the instant case there was no proof of actual damages to the land or any personal property. Nominal damages could then be awarded because the trespass was admitted.

Punitive damages may be awarded in a trespass action but only if the trespass has been attended with rudeness, wantonness, recklessness or an insulting manner or is accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence. Rushing v. Hooper-McDonald, Inc., supra. The record in this case is devoid of evidence that would support an award of punitive damages. To the contrary, the evidence shows that Johnson’s survey coincided with three previous surveys that had been made of the property in question. Further, Martin saw some people in the vicinity of the line in question but did not recognize them nor did he have any conversation with them. It was only later that he learned that Johnson’s survey team had been in the area.

It is settled that a plaintiff can recover for mental suffering which was the proximate consequence of a trespass to property if the trespass was committed under circumstances of insult and contumely. Rushing v. Hooper-McDonald, Inc., supra; Mattingly v. Houston, 167 Ala. 167, 52 So.2d 78 (1910). There is no evidence that the trespass was attended by any word or act of insult or contumely.

When a trespass is attended by such force as would support an action for trespass vi et armis, all damage suffered by plaintiff, direct or consequential, immediate or remote, may be recovered. Jackson v. Bohlin, 16 Ala.App. 105, 75 So. 697 (1917); Garrett v. Sewell, 108 Ala. 521, 18 So. 737 (1895). Plaintiff contends that as a result of defendant’s trespass, he was forced to file a boundary line case to have established the correct boundary between his property and the adjoining property. Defendant replies that only those damages that flow directly from the trespass and which are foreseeable can be correctly classified as consequential; and that in the present case no such damages were foreseeable as a result of the trespass.

It is, however, generally recognized that where the natural and proximate consequences of the defendant’s wrongful act cause the plaintiff to become involved in litigation with a third person, attorneys’ fees and other expenses incurred in such litigation may be recovered as damages. Highlands Underwriters Insurance v. Elegante Inns, 361 So.2d 1060 (Ala.1978). In order to recover attorneys’ fees in such action, these elements must be proved: (1) plaintiff must have incurred such fees in prosecution or defense of a prior action; (2) the litigation must have been against a third party and not against defendant in present action; and (3) plaintiff must have become involved in such litigation because of some tortious act of the defendant.

Plaintiff’s boundary line action cannot be said to be the natural and proximate consequence of defendant’s trespass. An action to establish the actual boundary line between the plaintiff’s property and the adjoining property could have been the reasonably foreseen consequence of an incorrect survey made by defendant but not a simple trespass to plaintiff’s property where only nominal damages resulted therefrom. In view of the three previous surveys to which defendant’s survey conformed, plaintiff could have accepted defendant’s survey as the correct survey. He did not, however, accept defendant’s survey as being correct and proceeded to have the court establish the correct boundary. Although he did not accept defendant’s survey as being correct, nevertheless it cannot be said that the natural consequence of defendant’s trespass was the boundary line action. In that event the court erred in charging the jury that consequential damages were, depending on the evidence, recoverable by the plaintiff.

For the errors above enumerated, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

HOLMES, J., concurs.

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


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    J.T. JOHNSON, Sr. v. Dimple Lila JOHNSON.
    Civ. 3342.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.

      Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Rowan S. Bone, Gadsden, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court after an ore tenus hearing divorced the parties, awarded custody of the two minor children to the wife, required the husband to pay $60 a week in support plus other benefits, and ordered the home-place sold and the proceeds from the sale equally divided between the parties.

The husband, through able counsel, appeals, contending the trial court erred in requiring the homeplace sold and the proceeds equally divided. We disagree and affirm.

Viewing the record with the attendant presumptions, the following is revealed: The parties were married in December of 1968, and continued to live as husband and wife until they separated in August of 1981. Two children, a boy and a girl, were born of the marriage. The final order of divorce was entered in January of 1982.

The husband has worked at the Goodyear Tire and Rubber plant for about eighteen years. His current take home pay is $126.56 per week. The wife worked sporadically during the marriage at a variety of places.

There was evidence presented which indicated the misconduct of the husband, including both abusive treatment and sexual misconduct, contributed to the divorce.

The house was deeded to the husband about two years prior to the marriage. The husband made the payments on the house during the marriage, and was making payments at the time of the trial. Neither party was living in the house at the time of the trial, and the wife testified she did not intend to return to it because of “bad memories.”

The husband appeals, contending that Ala.Code § 30-2-52 (1982 Supp.) was not properly followed, and alternately that the trial court abused its discretion.

The pertinent provisions of § 30-2-51 prohibit the trial court from considering for the purpose of alimony and support any “property acquired prior to the marriage of the parties ... unless the trial judge finds from the evidence that such property, ..., has been used regularly for the common benefit of the parties during their marriage.” The evidence is uncontradicted that the parties and their children lived in the house for the duration of the marriage. Therefore, since the house was used for “the common benefit of the parties during their marriage,” the trial court properly applied § 30-2-51 to the case.

We also note that a division of property in a divorce is a matter within the sound discretion of the trial court, and need not be equal, but it must be equitable. Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980); 8 Ala.Digest, Divorce, Key No. 286(5). Considering all the facts in this case, particularly the wife’s custody of the two children, we find it equitable to include the husband’s house in the property division.

The husband, in next contending the trial court abused its discretion by ordering the proceeds divided equally, relies on Madden v. Madden, 399 So.2d 304 (Ala.Civ.App.1981). In that case, the wife and husband both owned houses when they married. Shortly after their marriage, they moved into her house, and he sold his. Upon divorce, the trial court awarded the husband $2,800 assessed against the wife’s title to the house. Upon appeal, this court held the $2,800 award was unjust and unfair as an attempt to repay the husband for his investment in a five year marriage. Madden v. Madden, supra. The husband, in the instant case, would cite Madden as a case in which § 30-2-51 was improperly applied by the trial court in a situation similar to the instant case. However, neither § 30-2-51 nor title to the house was at issue on appeal in Madden. Aside from the legal distinctions between Madden and the instant case, there were important factual differences, i.e., it was a short marriage, there were no children born of it, and both husband and wife were employed and with separate estates. We therefore conclude Madden has no application to the instant case.

A division of property made by a trial judge after an ore tenus hearing is presumed correct and will not be reversed except for a gross abuse of discretion. E.g., Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980). In exercising the discretion reposed in it, in making property divisions, the trial court should consider such factors as the earning ability of the parties, future prospects, age, health, duration of the marriage, standard of living, value and type of property and the conduct of the parties. Williams v. Williams, supra. After our review of the record in light of the aforementioned factors, we find the trial court did not abuse its discretion, and therefore affirm.

AFFIRMED.

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