author: ALMON, Justice. EMBRY, Justice

text:
    Willie L. IRELAND and James F. Ireland v. LEACH PONTIAC-GMC, INC.
    81-247.
    Supreme Court of Alabama.
    Sept. 17, 1982.

      Stephen D. Heninger, of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    Dick D. Nave of Furner, Boyce & Nave, Bessemer, for appellee.
   ALMON, Justice.

The plaintiffs, Mr. and Mrs. Ireland, brought an action for negligence against Leach Pontiac-GMC, Inc., an automobile dealership in Montevallo. Leach Pontiac answered with a general denial and a defense of contributory negligence on the part of Mrs. Ireland.

The jury returned a verdict for the defendant. Motion for new trial was denied. The only question presented to this Court is whether the trial court erred in refusing to charge the jury on the law of subsequent negligence.

Mrs. Ireland went to Leaeh-Pontiac to get her daughter, who was having her car repaired. Mrs. Ireland parked her car in the service area and walked toward the showroom where her daughter was waiting. There is a sliding door between the showroom and the service area. This sliding door is large enough for an automobile to pass through. Built into the sliding door is a regular pedestrian sized door that can be used when the sliding door is in the down position. The regular sized door does not open entirely to the floor because of a 3V2 to 4 inch wooden strip or door sill which must be stepped over when using the small door. The small door has a large sign which reads “PLEASE WATCH YOUR STEP” followed by a red arrow pointing downward toward the bottom of the door.

As Mrs. Ireland reached this door, or placed her hand on the knob, the service manager called to her and asked how long her car would be in the service area. She answered him and proceeded through the door. As she did, she tripped on the wooden strip, fell, and was injured.

She contends that the action of the service manager in calling to her and diverting her attention as she approached the door was evidence of subsequent negligence, and that the trial court erroneously failed to charge the jury to that effect.

To predicate liability on subsequent negligence it must be shown that the plaintiff was in peril and that the defendant had actual knowledge of plaintiff’s peril and negligently failed to prevent the accident when he had the means available to do so. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978); Scotch Lumber Co. v. Baugh, 288 Ala. 34, 256 So.2d 869 (1972); Hulsey v. Illinois Central R. R. Co., 242 Ala. 136, 5 So.2d 403 (1942).

The service manager did not testify. After reading the record we can find no evidence to indicate that the service manager had actual knowledge that the plaintiff was in peril, if in fact the plaintiff was in peril. For that reason the plaintiff did not meet her burden of proof and therefore the trial judge did not err in refusing to charge the jury on subsequent negligence.

The facts simply do not give rise to a finding of negligence on the part of the service manager. The judgment is therefore affirmed.

AFFIRMED.

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

EMBRY, J., dissents, joined by FAULKNER, SHORES and ADAMS, JJ.

EMBRY, Justice

(dissenting):

Respectfully, I must disagree with the holding of the majority that the conduct of Leach Pontiac-GMC on the occasion that Mrs. Ireland was injured did not warrant instructing the jury regarding subsequent negligence.

Under the facts of this particular case, not only should the jury have been instructed about subsequent negligence, but more importantly, that jury should have been given realistic instructions about what constituted contributory negligence under the surrounding circumstances at the moment Mrs. Ireland was caused to fall and be injured. For many years this court has adherred to the rote definition of contributory negligence in this kind of case that simply states: (A) Knowledge of a defective or endangering condition; (B) Appreciation of the danger; and, (C) Failure to exercise reasonable care with regard to the surrounding conditions and circumstances.

It may be gleaned from examination of the many cases decided by this court over a very long period of time that the following would be an appropriate instruction:

“I charge you members of the jury that unless you are reasonably satisfied from the evidence in this case that Mrs. Ireland on the occasion when she fell, had or should have had a conscious appreciation of the danger, if any, to her person from the condition of the premises that existed at the time of her injury, you cannot find her guilty of contributory negligence even though you are further reasonably satisfied from the evidence in this case of the fact, if it be a fact, that she knew or should have known of the condition of the premises that existed at the point where she fell,” or a charge that would read like this:
“I charge you, members of the jury, that even if you become reasonably satisfied from the evidence in this case that Mrs. Ireland, on the occasion complained of in the complaint, had knowledge of the physical condition of the premises at the point where she fell, it does not necessarily follow that she was on that occasion guilty of contributory negligence, for I further charge you that you must be reasonably satisfied from the evidence that, with knowledge of such physical condition of the premises that existed there at the point where she fell on that occasion, she had a conscious appreciation or awareness of the danger to her person, or an opportunity to form such, and I further charge you that before you can find her guilty of contributory negligence, you must further find that she then, at that time, failed to exercise reasonable care for her own safety.”

Among the many cases that I find particularly enlightening in this regard are Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So.2d 825 (1956), and F. W. Woolworth v. Bradbury, 273 Ala. 392, 140 So.2d 824 (1962).

It is a well-settled rule that subsequent negligence is embraced within a complaint which charges simple negligence. For this reason, it is my opinion that Mrs. Ireland was entitled to have the jury instructed regarding subsequent negligence as well as to have it instructed more definitively about contributory negligence under the facts of this case.

In conclusion, it should be noted that the evidence of record shows Mrs. Ireland had never before been to Leach Pontiac-GMC at a time when the sliding door was closed; had never used the small door; was 72 years of age at the time of her injury; turned around away from the door when called to by the service manager; and saw neither the “Exit” sign nor the “Please Watch Your Step” sign.

FAULKNER, SHORES and ADAMS, JJ., concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Vera Gail STOLLENWERCK v. TALLADEGA COUNTY BOARD OF EDUCATION, et al.
    81-286.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    J. Victor Price, Jr., Montgomery, for appellant.
    Ralph D. Gaines, Jr. and William W. Goodrich of Gaines, Cleckler & Goodrich, Talladega, for appellees.
   SHORES, Justice.

Two issues are presented for our review in this case: First, whether this Court should overrule the trial court’s denial of appellant school teacher’s request for mandamus ordering appellee school board to reemploy appellant because of insufficient notice of termination; and, second, whether the trial court was proper in refusing to grant appellant’s motion to strike the decree prepared by counsel for appellee at the request of the trial court. We affirm the trial court’s ruling on both issues.

FACTS

Appellant Vera Gail Stollenwerck was a regularly employed non-tenured teacher in the Talladega County School System during the 1980-81 school term. The appellee school board passed a resolution on May 20, 1981, which reflected its decision not to renew her contract for the coming school year. The last day of the school term for the Talladega County School System was May 29, 1981.

Mrs. Stollenwerck testified, and the record shows, that she was absent from school on May 19 and 20 and was hospitalized on May 22 in Birmingham. She was released from the hospital on the morning of May 29, 1981. The notice of non-renewal was sent on May 22 to the principal of the school where Mrs. Stollenwerck was employed to be given to her upon her return. A certified letter containing the notice of non-renewal, postmarked May 25, 1981, was then sent to appellant’s home address in Birmingham. Mrs. Stollenwerck was not at home to receipt for the letter, and she testified that, although she knew that the letter was from the school board, she did not go to the post office and pick up the letter following her release from the hospital.

Mrs. Stollenwerck further testified that she received a call on May 29, 1981, from Mr. Ed Hall, a representative of the Tal-ladega County Board of Education, stating that he had a letter he wanted to deliver to her personally that day. Hall testified that Mrs. Stollenwerck advised him that she would be at the University of Alabama in Birmingham at the Sterne Library, involved with sorority activities. She also mentioned to Mr. Hall, as Hall testified, that she would be there all day and that it would be permissible to bring the letter of non-renewal to her at the library that afternoon. Hall testified that he and another school board representative arrived at the library at 12:00 noon. He did not find Mrs. Stollenwerck in' the library, and, although he did not inquire as to the whereabouts of Mrs. Stollenwerck by name, he asked if there was any sorority function being conducted that afternoon and learned there was no such activity taking place. Hall did not attempt to call the appellant’s home, although he stated he was unsuccessful in his search to locate her house. Mrs. Stol-lenwerck’s version conflicts with the testimony given by Mr. Hall. Mrs. Stollenwerck testified that the meeting was to be at Sterne Library at 8:30 that evening but that she did not go to the library at 8:30 because she was eating out with her sorority at the time she said Mr. Hall was to meet her at the library. She did not return to her home until 3:30 a.m. the next day.

Appellant returned to work on June 2, 1981, to finish her school work and to turn in her supplies and reports. Mr. Hall attempted to deliver the letter of non-renewal at that time, but she refused to accept or sign anything. Consequently, Mr. Hall read her the notice of non-renewal.

At the conclusion of evidence, the trial court indicated that it was the court’s decision that the peremptory writ of mandamus was due to be vacated and instructed the attorney for the school board to prepare a decree to that effect, which appellee’s attorney did. The appellant contended that the decree contained extensive findings of fact and made a motion to strike the judgment. The trial court never ruled on the motion to strike the judgment denying mandamus, and this appeal followed.

I.

Alabama law requires that a probationary teacher, a teacher who is not tenured, must be given notice by the employing school board of that board’s decision not to rehire for the succeeding school year, and the notification must be in writing and delivered on or before the last day of the term of the school in which the teacher is employed; otherwise, the teacher is deemed rehired for the next school year. Ala. Code 1975, § 16-24-12. This section requires that the employing school board show that written notice was given before the end of the school term. Strickland v. Berger, 336 So.2d 176, 177 (Ala.1976). The facts of this case indicate that the Talladega County School Board attempted but was unsuccessful in delivering to Mrs. Stollenwerck written notice of her termination on or before May 29, 1981, the last day of the school term. The record discloses that Mrs. Stol-lenwerck had reason to believe that she would not be reemployed for the forthcoming school year. “Actual knowledge” of a teacher that she will not be rehired is not sufficient; there must be written notification of termination on or before the last day of the school term. Athens City Bd. of Ed. v. Reeves, 388 So.2d 515, 516-618 (Ala.1980).

Whether Mrs. Stollenwerck’s actions evidence an intentional effort to avoid delivery of the notice of non-renewal is a question of fact. There are obvious conflicts in the testimony given by Mrs. Stol-lenwerck and Mr. Hall as to what transpired in their telephone conversation on the morning of May 29, 1981. His testimony supports a factual finding that she did deliberately avoid delivery of the letter. Because this Court as an appellate body is not afforded the advantage of observing the demeanor of the witnesses in the courtroom, believing one party and disbelieving the other is the function of the trier of fact, which is the trial court judge in this case. He believed the school board’s version. The Greater Friendship A.M.E. Church v. Spann, 336 So.2d 1087, 1091 (Ala.1976). In First Alabama Bank of Montgomery v. Coker, 408 So.2d 510 (Ala.1982), we concluded:

“It is the policy of this Court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. Knapp v. Knapp, 392 So.2d 527 (Ala.1981); Mayo v. Andress, 373 So.2d 620 (Ala.1979); League v. McDonald, 355 So.2d 695 (Ala.1978); Kjelstrom v. First National Bank of Montgomery, 335 So.2d 647 (Ala.1976).” (Footnote omitted.)

408 So.2d at 512. Based on the evidence, we cannot say that the findings of the trial court in this instance are “palpably wrong, manifestly unjust” and, therefore, we affirm the trial court’s judgment denying mandamus.

II.

The second issue concerns the order denying mandamus prepared by appellee’s attorney at the request of the trial court judge. Although the appellant’s motion to strike was never ruled on and, thus, the issue is not technically before us, counsel for appellant contends that “the defense counsel has overstepped the limited license granted him by the trial court, and presented an order containing extensive findings of fact,” and the court erred in accepting the order because Rule 52 of the Alabama Rules of Civil Procedure makes the findings of fact the responsibility of the trial court. We disagree. Rule 52(a) reads in toto:

“In all actions tried upon the facts without a jury or with an advisory jury, the court may upon written request and shall when required by statute, find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court may similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).”

We find no prohibition in the rule above which would forbid the delegation by a trial court to the prevailing attorney of the task of preparing a proposed order which includes findings of fact based upon the evidence in the case. Although this Court has never ruled on the propriety of the practice of trial judges’ allowing or requesting counsel for the prevailing party to prepare findings, the basic view by many jurisdictions which have considered the matter is that such practice is not improper. 54 A.L.R.3d 868 (1974). In fact, no reported case has been found in which the objection has met with actual success at the appellate level. Id. at 870. The practice of having the prevailing attorney draw up an order is not uncommon in federal courts. See, e.g., Miller v. Tilley, 178 F.2d 526 (8th Cir. 1949). Therefore, the decree prepared by the attorney, but adopted by the trial judge as the court’s decree, is due to be affirmed.

AFFIRMED.

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

ADAMS, J., not sitting.

      . One case was found indicating that the practice was reversible error, but the case was not reversed because error had not been preserved on that ground. Nashville, C. & S.L.R. Co. v. Price, 125 Tenn. 646, 148 S.W. 219 (1911).


author: BEATTY, Justice.

text:
    Colon H. BERRY v. Armour BERRY, et al.
    81-353.
    Supreme Court of Alabama.
    Sept. 17, 1982.

      Charlotte B. Mussafer and David B. Byrne, Jr., of Robison & Belser, Montgomery, for appellant.
    E. C. Orme of Orme & Faulk, Troy, for appellee Armour Berry.
    G. M. Harrison, Jr., of Merrill & Harrison, Dothan, for appellee Woodrow Berry.
    Bert W. Rice of Maxwell & Rice, Atmore, for appellees W. R. Berry, Rita Berry Sanders, Ronell Berry Garrett and Donna Berry Hadley.
   BEATTY, Justice.

This case is on appeal from a final judgment dismissing the intervention claim of the appellant, Colon Berry, to a one-sixth interest in certain real estate subject to sale for division of the proceeds. We reverse and remand.

The determination of this case depends upon the construction of the will of Louis Berry who died on October 31, 1959. The pertinent parts of the will are as follows:

“2. I own 240*4 (two hundred forty and one-fourth) acres of land in Pike County, Alabama, deeded to me by my father and mother as shown by Deed Book 72 at page 272 in the Office of the Judge of Probate of Pike County, Alabama;
“I will, devise, bequeath and convey the above property to my sisters, Addie and Alice, and my brothers, Armour, Worthy, Woodrow and Casey, share and share alike, or to their descendants per stirpes, in fee simple—
“Subject, however, that this bequest does not take effect until and at 21 years after my death (within the period not prohibited by perpetuities or otherwise)—
“During said period from my death and said 21 years the same shall be held in trust by my trustees, I herewith now name, Armour, Worthy, Woodrow and Casey, for themselves and for my above named two sisters — during said period they shall not sell, mortgage or in any way convey it or incumber it — they may rent it out and sell the timber except 21 pines, long leaf, known as Alvins pines about one-fourth mile from present residence, pay themselves a reasonable sum for their duties, upkeep, taxes and improvements and divide the remainder among the beneficiaries.”

On January 21, 1981, approximately 21 years after the testator’s death, Woodrow Berry filed a complaint in the Circuit Court of Pike County asking for a sale by division of the real estate bequeathed in the will. The complaint named the other beneficiaries as defendants, with the exception of Addie B. Senn, who died subsequent to the testator in 1969, leaving no descendants. On February 25,1981, Colon Berry, the sole beneficiary under the will of Addie B. Senn, filed a petition for intervention claiming a one-sixth interest in the subject property. After the trial court authorized the intervention, Colon Berry filed a memorandum brief supporting his position that the property of Louis Berry vested prior to the death of Addie B. Senn, thereby allowing her to pass her interest in the property under the terms of her will. The trial court held a hearing to determine the interest of Colon Berry in the subject property and proceeds and, thereafter, issued an order holding that (1) the will of Louis Berry expresses a clear intent to postpone the vesting of his estate until 21 years after his death; (2) the interest of Addie B. Senn in the property of Louis Berry did not vest prior to her death; and (3) Addie B. Senn, therefore, passed no interest in the property under the terms of her will to Colon Berry. The trial court also dismissed the intervention claim of Colon Berry and directed the entry of final judgment on that claim.

The dispositive issue on appeal is whether the interests of Addie B. Senn and the other beneficiaries under the Berry will vested at the time of the testator’s death or at the time specified for distribution, i.e., 21 years after the testator’s death.

In the will under consideration, the testator bequeathed the subject property to his named brothers and sisters in fee simple. That provision clearly imports an intention to give a vested interest. Furthermore, the testator used words of present gift. Under the language of the will the estate vests upon the death of the testator. The subsequent clause delayed the effect of the bequest until 21 years after the testator’s death. When words of futurity merely are connected to the time of enjoyment, payment or delivery of possession, the gift is vested and the postponement of possession does not render the estate contingent. Peck v. Green, 266 Ala. 321, 96 So.2d 169 (1957). Here, the words of futurity are connected to the time of enjoyment, not to the date of vesting. Furthermore, when an estate or interest is given in one clause of a will in clear and decisive terms, the interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965). In this case no intent to cut down or diminish the fee simple devise- can be found in the subsequent clause or in any other portion of the will.

Despite the words of present gift used by the testator, appellees contend that the clause deferring the effective date of the bequest made the gift contingent upon the beneficiaries’ surviving the 21-year period. Thus, according to appellees, the gift could not vest before the lapse of the intervening estate, the date when the survivors could be determined. It is true that “where a testator postpones the taking effect of a bequest or a devise qualified by words of survivorship until the expiration of an intervening estate, he or she intended that the bequest or devise be contingent on the beneficiary’s surviving the intervening estate.” Dean v. Stuckey, 380 So.2d 824, 826 (Ala.1980). (Emphasis added.) That rule, if applicable, would have prevented this estate from vesting until the lapse of the designated 21 years. However, the Berry will does not qualify the bequest by the necessary words of survivorship. Appellees’ argument, then, fails to overcome the favored presumption that the testator intended the estate to vest at the earliest possible moment, i.e., his death.

The vesting of the property interest in the beneficiaries at the testator’s death is also indicated by the fact that the testator made the same beneficiaries recipients of the income from the property during the 21-year deferral period. See Traverso v. Traverso, 99 N.J.Eq. 514, 133 A. 705 (1926), aff’d, 101 N.J.Eq. 308, 137 A. 919 (1927).

We must conclude, therefore, that the devise to the beneficiaries vested upon the testator’s death. Addie B. Senn passed her vested interest in that estate to Colon Berry. He, therefore, is entitled to her share in the division of the proceeds.

Because the construction placed upon the will is contrary to the principles expressed earlier, the decision of the trial court is reversed and this cause is remanded to allow that court to enter an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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

FAULKNER, J., dissents.


author: ALMON, Justice.

text:
    Susan C. HOWELL and William L. Howell v. D. H. HOLMES, LTD., et al.
    80-748.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      D. Richard Bounds and Michael S. McGlo-thren of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellants.
    Alton R. Brown, Jr. and E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   ALMON, Justice.

Susan C. Howell and William L. Howell appeal from a summary judgment rendered against them. The Howells did not oppose the motion for summary judgment, because they wished to challenge an earlier order of the trial court. This earlier order set aside a default judgment which had been entered in the Howells’ favor. Because we find that the trial court improperly granted relief from the default judgment, it follows that the case should not have proceeded to summary judgment; therefore, we reverse and remand.

On October 2, 1978, Susan Howell was shopping in the department store in Mobile operated by the D. H. Holmes Company, Ltd. (Holmes). Another customer informed Carla Ward, a security employee of Holmes, that Mrs. Howell had dropped a pair of slacks into her shopping bag. Mrs. Ward called another security employee, Lisa Willis, and the two watched Mrs. Howell until she left the store. They followed close behind her and, once outside, identified themselves and asked Mrs. Howell to come back inside. Mrs. Howell asked them for an explanation, but they insisted on going to the security office first. In the security office Mrs. Ward discovered that the slacks in Mrs. Howell’s shopping bag did not come from the Holmes store.

Mrs. Howell became very upset almost immediately upon her apprehension by the security employees. She called her husband from the security office and he came to get her. The record indicates that after this incident Mrs. Howell suffered from fears and anxieties requiring psychiatric treatment. She and her husband filed this .suit against Holmes and its security employees Carla Ward and Ted Arnette on November 27, 1978.

Each of the defendants received service on November 30, 1978. Holmes forwarded the complaint to its insurer, Aetna Life and Casualty Company (Aetna), on December 4. Aetna sent the complaint to its Mobile office, where its claims agent, Barry Bufkin, received it on December 8.

Bufkin was already aware of Mrs. Howell’s claim by virtue of informal contacts with Holmes and Mrs. Howell’s attorney (Mr. Bounds) which had begun in October. When Bufkin received the complaint and summons, he did not give it to Aetna’s attorney in Mobile for preparation of responsive pleadings. Instead, he dictated a letter to Mr. Bounds and tried to call him. He continued his efforts to negotiate directly with Mr. Bounds, blithely ignoring the thirty-day time limit for responding to a complaint, until Ted Arnette informed him on February 2, 1979, that a default judgment had been entered on January 4, 1979. At that time Bufkin took the suit papers to Aetna’s attorney.

Defendants filed a motion to set aside the default judgment on February 2,1979. The motion recited that it was filed pursuant to Rule 55(c) or Rule 60(b), Alabama Rules of Civil Procedure (A.R.C.P.). Because defendants secured no action on the motion within 30 days of default judgment, the Rule 55(c) argument dropped out. Wiggins v. Tuscaloosa Warehouse Groceries, Inc., 396 So.2d 91 (Ala.1981).

During the following months the parties conducted discovery, after which the trial court ruled on the motion on December 11, 1979. The court specifically negated the grounds set out in Rule 60(b)(l)-(5). For example, the court found no evidence of mistake or surprise, nor was it “reasonably satisfied from the evidence that the default was the result of excusable neglect [or] ‘inadvertence’ within the meaning of such term in Rule 60(b)(1).” Furthermore, the court was “not satisfied that the defendants properly pleaded or proved a meritorious defense, although the evidence presented by the Defendants might well operate to mitigate damages.” Nevertheless, the court set aside the default judgment based on its consideration of Rule 60(b)(6), “any other reason justifying relief from the operation of the judgment.” The grounds recited were the size of the judgment — $300,000— and an absence of prejudice to the plaintiff.

The Howells filed a motion for the court to reconsider the order, but the court denied the motion. The trial court granted the Howells a certificate of appealability of an order not otherwise appealable, but this court, in an unpublished order, denied permission to appeal on February 20, 1980. After the trial court denied two motions by the Howells to have the default judgment reinstated, the case was set for trial on June 8,1981. On that date defendants orally moved for summary judgment. The Howells did not object to the granting of this motion because they wanted a final judgment from which to appeal and raise the asserted error on the granting of the 60(b) motion.

Ordinarily, broad discretion is accorded trial courts on 60(b) motions, Has-kew v. Bradford, 370 So.2d 259 (Ala.1979), and the policy which favors determination of cases on the merits and disfavors default judgments. Cockrell v. World’s Finest Chocolate Co., Inc., 349 So.2d 1117 (Ala.1977). Another aspect of court treatment of 60(b) motions which could tip the scales against the Howells is the “attempt to balance the desire to remedy injustice against the need for finality of judgments.” Raine v. First Western Bank, 362 So.2d 846 (Ala.1978).

The Howells’ reliance on their assertions of error in the 60(b) order is justified, however, both by countervailing general principles and by the circumstances of this case. Although trial courts’ discretion in ruling on 60(b) motions is broad, that discretion is not unbridled. Giles v. Giles, 404 So.2d 649 (Ala.1981).

Relief under 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice. City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981); Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979); Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950).

With these general considerations in mind, we turn to matters more specific in this case. “In order for one to obtain 60(b) relief, he must allege and prove one of the grounds set out under the rules, together with a meritorious defense to the action.” Raine v. First Western Bank, supra, 362 So.2d at 848. See also, Whitehead v. Georgia Pacific Corporation, 352 So.2d 1342 (Ala.1977). The court below specifically found that the defendants had not satisfactorily pleaded or proved a meritorious defense; in light of this finding it was an abuse of discretion to grant the 60(b) motion.

Lest this decision seem inconsistent with the holdings of this Court in Wiggins v. Tuscaloosa Warehouse Groceries, Inc., 396 So.2d 91 (Ala.1981), and Wilkerson v. City Sales Company of Mobile, Inc., 374 So.2d 1333 (Ala.1979), we point out that proof of a meritorious defense was not at issue in those appeals. Even without this distinction going to the merits of the underlying claim, those cases are distinguishable on the facts leading to the default judgment. In both cases an insurance carrier failed to forward a complaint to an attorney within the thirty-day time limit, but this court affirmed 60(b) orders setting aside default judgments. In Wiggins, the insurance adjuster who received the complaint was new on the job and did not recognize the significance of a summons and complaint. In Wilkerson, this court indicated that the workload and other circumstances of the insurance claims office presented sufficient basis for a 60(b)(1) motion so that the trial court had not abused its discretion in granting the order.

Bufkin specifically stated in his deposition that he was aware of the thirty-day time limit for responding to a complaint. Negotiating with plaintiffs’ lawyers was his policy, apparently with approval of his supervisor. Indeed, the record shows another case against Holmes in which Bufkin held the complaint and summons until well after the time limit had run. Bufkin did testify that he had a heavy workload, and that absence of a secretary from Aetna’s Mobile office prevented one of Bufkin’s letters to Bounds from being typed promptly. These circumstances are distinguishable from those in Wilkerson; in that case the insurance adjusters had a rash of large claims all at once, a situation not indicated here. Moreover, they were working diligently on the claim and were delayed because they sent it to an independent investigator. Bufkin’s in-house difficulties only indicate to us that he should have sent the complaint promptly to an attorney who was capable of handling the matter.

Because the trial court’s order relies solely on the size of the judgment as grounds for setting aside the default, the possibility exists of finding error only in the setting aside of the judgment of liability and remanding for the court to enter an order setting aside the judgment only as to damages. The Court of Civil Appeals has twice affirmed orders granting 60(b)(6) motions only as to the damages in the original default judgment. Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978); Blackmon v. W. S. Badcock Corp., Inc., 342 So.2d 367 (Ala.Civ.App.1977). An inspection of those cases, however, reveals that specific errors were committed which resulted in awards disproportionate to specific, liquidated sums sought in the complaints. In Nunn, the trial court found that the judgment entered after default was excessive because a condition of the judgment for divorce, allowing reduction of child support payments from $400 to $200 per month, had been misconstrued. In Blackmon, inflammatory testimony irrelevant to the conversion damages had been admitted in a writ of inquiry proceeding, and a judgment was entered for 120 times the value of the converted property-

The trial court here found no specific error in the value entered in default. If mitigation of damages were sufficient reason for opening a default judgment, virtually any default judgment could be set aside for defendants to introduce mitigating evidence. The damages sought here were intangibles such as physical and mental anguish, damage to reputation, emotional distress, and loss of companionship. Our inspection of the record shows that Mrs. Howell’s claims of illness, fear, and anxiety arising from this incident were supported by her doctors’ testimony, and the defendants’ evidence does not show error amounting to a ground for 60(b)(6) relief.

Therefore the summary judgment is reversed and the cause is remanded for the court to reinstate the default judgment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: ADAMS, Justice.

text:
    William L. McELROY v. George T. FRITZ.
    80-858.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    William L. McElroy, pro se.
    Walter W. Furner of Furner, Boyce & Nave, Bessemer, for appellee.
   ADAMS, Justice.

This is an appeal from a judgment upholding the validity of a thirty-year lease. The lease was challenged in the Circuit Court of Jefferson County, Bessemer Division, on the grounds that the lessor had been incompetent at the time of the execution of the lease and that the lessee had exerted undue influence over him. The sole issue raised by the appellant is whether the trial court erred in refusing to cancel the lease. The trial court, on hearing the case ore tenas, found that the lessor had been competent at the time of execution of the lease and that there had been no undue influence exerted. The court, therefore, held that the lease was valid, only shortening its duration to twenty years in accordance with Code 1975, § 35 — 4-6, which states in part:

Leases for more than 20 years shall be void for the excess over said period unless acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated.

On reviewing the evidence and the entire record of this case, we affirm the trial court’s decision.

The facts of the case appear as follows: B. M. McElroy (“McElroy”), an eighty-year-old retired businessman, leased a five room house to George T. Fritz (“Fritz”), a much younger man, in 1973. The lease called for payment by the lessee of $20.00 per month, and was for a term of seven years. On June 1, 1977, the parties entered into another lease involving the same house. This was a thirty-year lease at $40.00 per month rent. The lease had a clause allowing for renegotiation of the rent in case of “sickness or unemployment,” but no allowance for upward adjustment of the rent. Testimony indicated that the house and land covered under the lease were valued in 1977 at approximately $70,500.00. McElroy died March 18, 1978. His death certificate showed the immediate cause of death to be “(a) Cardio-Respiratory Arrest (b) Probable C. Y. A. due to, or as a consequence of (c) Severe Atherosclerosis.” McElroy’s son and sole heir, William L. McElroy, filed this suit against Fritz to have the lease cancelled.

“[T]he factual findings of a trial court sitting ore tenas may not be disturbed unless the findings are palpably erroneous and without supporting evidence.” Dalrymple v. White, 402 So.2d 968 (Ala.1981); Gertz v. Allen, 376 So.2d 695 (Ala.1979). “[T]he trial court having tried the case ore ten us, this court will indulge all favorable presumptions to sustain that court’s conclusion and it will be disturbed on appeal only if shown to be plainly erroneous or manifestly unjust.” Roberts v. Peoples Bank and Trust Company of Sylacauga, 410 So.2d 393 (Ala.1982), at 395.

Evidence in the case before us indicates that McElroy had always been very strong-willed and hard to get along with, and that he did not like his family. It was disputed as to whether these characteristics became worse after he underwent a pacemaker implantation in August, 1976. The medical testimony regarding possible mental deterioration as a result of McElroy’s physical problems was based on hypothetical questions posed to a psychiatrist who had never met McElroy. There was conflicting evidence as to alleged incidents of “confusion” on the part of McElroy at various times during the last year of his life. There was testimony regarding a longstanding friendship between McElroy and Fritz, but none of undue influence, which is “so coercive as to destroy the grantor’s free agency so that the act could not be resisted,” as distinguished from “influence of affection, or attachment, or the desire to satisfy [the do-nee’s] wishes.” Crump v. Crump, 252 Ala. 164, at 165, 40 So.2d 94 (1949). See Terry v. Terry, 336 So.2d 159 (Ala.1976).

Uncontroverted evidence showed that McElroy prepared the lease himself, and while certain aspects of it may have been disadvantageous to him, it was quite detailed in its subject matter, describing the various parcels of land to be included, reserving timber rights, and requiring Fritz to keep a certain portion of the land cleared.

In viewing the whole of the evidence, and considering that the trial judge was in a position to observe the witnesses and judge the weight and credibility of their testimony, we find that there was ample evidence on which to base the trial court’s findings that McElroy was competent at the time of the execution of the lease, that there was no undue influence, and that the lease was valid. The trial court’s judgment is due to be affirmed.

AFFIRMED.

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


text:
    Richard E. PARKER, Doyle Reesor, Jerry D. Taylor, William Q. Morris and William R. Morris v. MOUNT OLIVE FIRE AND RESCUE DISTRICT.
    80-886.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      William Richmond Stephens, Birmingham, for appellants.
    Albert C. Hultquist, Birmingham, for ap-pellees.
   ALMON, Justice.

This appeal arises from a challenge to an election establishing a fire and rescue district in Jefferson County. The probate court denied appellants’ motion to alter, amend, or vacate its order establishing the district according to the election results. We affirm.

Act No. 79 of the Special Session of the Alabama Legislature, 1966, as amended (Act 79), provides the procedure for establishing fire and rescue districts in Jefferson County. Amendment No. 239 to the Alabama Constitution, ratified in 1965, allowed the legislature to provide for the formation of fire protection districts in Jefferson County. Amendment No. 369, ratified in 1977, added medical rescue services to the permissible district functions. Amendment No. 314 and numerous acts of the legislature have also modified Act No. 79.

On May 15,1981, a petition was presented in the Probate Court of Jefferson County requesting an election on the questions of whether to establish a fire and rescue district in the Mount Olive area, and to levy a service charge for the district as provided in the statutory scheme. The petition contained 435 signatures, of which the county board of registrars certified 265 as qualified voters in the Mount Olive area. The probate court ordered an election to be held on June 16. The election was held on that date, and the probate court entered an order establishing the Mount Olive Fire and Rescue District on June 23. The court found that 552 votes were cast to establish the district, 413 votes were cast against establishing the district; 497 votes were cast for establishing a service charge, and 393 were against the charge.

On July 16, 1981, the appellants herein, qualified electors of the district, filed a motion to alter, amend or vacate the order of June 23 and to have the election declared null and void. This motion alleged that persons not residing in the district voted in the election and that owners of property in the district and qualified electors residing in the district were denied the right to vote. The motion also alleged “a prior agreement and understanding by proponents of the proposed district to later exclude certain areas of the proposed district. Therefore, persons not actually to be served by the proposed district were allowed to vote concerning the proposed district.” This allegation apparently refers to an order entered on July 2 by the Equity Division of the Circuit Court for the Tenth Judicial Circuit of Alabama pursuant to a petition filed by the Board of Trustees of the Mount Olive Fire and Rescue District. That order corrected a “scrivener’s error” in the description of the district; this change seems to be the later exclusion of certain areas mentioned in appellants’ motion.

Appellants’ motion alleged further grounds, but the only other ones raised on appeal allege false and misleading statements published prior to the election by proponents of the district and unconstitutionality of Act 79, as amended.

The probate court held a hearing on the motion on August 14 and denied the motion on August 17, 1981. Appellants filed notice of appeal to this Court.

Appellants acknowledge that Act No. 79, as amended, is silent as to contests of elections provided for by the Act. They assert that because of this lack of specific authority, Rule 59, A.R.C.P., should apply and thus their motion to alter, amend or vacate is an appropriate challenge to the establishment of the district.

This argument overlooks the well-settled principle that “[ejection contests are not of common law origin, but are creatures of statutes which prescribe the terms and conditions of their exercise.” Cosby v, Moore, 259 Ala. 41, 46, 65 So.2d 178 (1953). “Elections belong to the political branch of the government, and, in absence of special constitutional or statutory provisions, are beyond the control of judicial power.” Longshore v. City of Homewood, 277 Ala. 444, 446, 171 So.2d 458 (1965) (quoting 29 C.J.S. Elections § 246). Statutes providing for election contests are to be strictly construed. See, e.g., the cases cited above and Perloff v. Edington, 293 Ala. 277, 302 So.2d 92 (1974).

The general law for election contests in this state is found at Code 1975, § 17-15-1, et seq. These provisions, howeyer, only relate to elections of persons to office. Section 17-15-1; Wakefield v. Town of Carbon Hill, 215 Ala. 22, 108 So. 855 (1926); Leigh v. State, 69 Ala. 261 (1881); Clarke & Daviney v. Jack, 60 Ala. 271 (1877). In Longshore v. City of Homewood, supra, this Court addressed a code section governing consolidation of municipalities by election of the voters of the municipality to be annexed. The section was silent as to election contests. The opinion distinguished similar code sections governing annexation of unincorporated territory, uniting contiguous municipalities, and excluding territory already included in a municipality, all by election of the affected voters. Each of these sections allowed contests of the election according to provisions in § 17-15-1, et seq. In the absence of any reference to contest of the election provided in the section at issue, this Court held that the probate court had no jurisdiction to hear a contest of the election.

As can be seen from the above discussion, the general laws of the state do not give appellants the right to contest the election and there are no provisions in Act 79, as amended, granting such a right. We must conclude, therefore, that the legislature has not granted the right to contest elections held under Act 79. We note that Act 79 does provide for a petition for an election to abolish the district, and this appears to be the remedy open to appellants. Regardless of the merits of appellants’ allegations, we find that the probate court correctly denied their motion. Compare the following recent statement by this Court:

“We cannot agree with plaintiffs that it is this Court’s duty to oversee elections and to prescribe the duties and obligations of election officials. However abhorrent the conditions described are to us personally, nevertheless those are clearly legislative matters. It is this Court’s duty to respect and preserve the separation of governmental powers, not to act unilaterally as self-appointed ombudsmen. Contests of elections are statutory creations, except insofar as we have noted, and the statutory requirements must be strictly complied with.”

Turner v. Cooper, 347 So.2d 1339, 1346 (Ala.1977).

The decision of the court below is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Charles E. CULVERHOUSE v. James S. CULVERHOUSE, Jr., et al.
    80-910.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      M. Wayne Wheeler of Wheeler, Christian & Roberts, Birmingham, for appellant.
    Carl E. Chamblee, Birmingham, for ap-pellees.
   PER CURIAM.

This is a contract case. The question presented is whether Charles E. Culver-house acted as a real estate broker within the meaning of Code 1975, § 34-27 — 2(a)(2). This section defines a real estate broker as:

“Any person who, for a fee, commission or other valuable consideration, or who, with the intention or expectation of receiving or collecting a fee, commission or other valuable consideration, lists, sells, purchases, exchanges, rents, provides rent lists for a fee, leases, options or auctions real estate or the improvements thereon, or negotiates or attempts to negotiate any real estate transaction, advertises or holds himself out as engaged in the real estate business.”

The court found that Mr. Culverhouse was an unlicensed real estate broker and, thus, not entitled to recovery on his complaint. The very thorough opinion of the trial court is as follows:

“This case has been submitted on the Motion for Summary Judgment filed by the defendant James S. Culverhouse, Jr. (hereafter ‘James’) and Culverhouse Construction, Inc., a corporation (hereinafter ‘Cul-verhouse Construction’).

“The Plaintiff, Charles E. Culverhouse (hereinafter ‘Charles’), makes a claim in this case against James and Culverhouse Construction based. on an alleged agreement whereby either or both of James and Cul-verhouse Construction agreed to pay Charles a 5% fee if Charles would introduce either or both of James and Culverhouse Construction to a buyer who would purchase certain apartments owned by Culver-house Construction which it wished to sell.

“In support of his Motion for Summary Judgment, James contends that while he was President of Culverhouse Construction, he had no individual interest in the apartments and that any and all contracts with Charles were made by him in his capacity as President of Culverhouse Construction.

“In addition, both James and Culverhouse Construction contend that they are entitled to judgment as a matter of law because it is undisputed that Charles was not a licensed réal estate broker at the time the agreement made the basis of his claim was allegedly entered into or at the time when he performed the services for which he now claims that he is entitled to be compensated. Relying on the decision of the United States Court of Appeals for the Fifth Circuit in Dorman v. Pan-American Investments, Inc., 625 F.2d 605 (5th Cir. 1980), the defendants, James and Culverhouse Construction argue that the services contemplated to be performed and performed by Charles come within the definition of the activities carried on by a real estate broker under § 34-27-2(a)(2) Ala. Code 1975, and that since Charles was not a licensed real estate broker, any agreement for the payment of compensation to him for such activities or services is void and unenforceable.

“Charles has also moved for summary judgment contending that there was an agreement to pay him a 5% finder’s fee for finding a purchaser for the Willow Tree Apartments; that he found such a purchaser and is now entitled to receive compensation for his services. Charles argues that he did not act as a real estate broker as that term is defined in § 34 — 27—2(a)(2), Ala. Code 1975 so that he is not barred from recovering the amount due him because of his failure to obtain a real estate broker’s license.

“The decisions of the Supreme Court of Alabama do distinguish between a person acting as a ‘real estate broker’ and a person acting as a finder.

“In Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930), Watson, wishing to sell certain lots located in the City of Gadsden and owned by him, entered into an agreement with Knight to sell them at $1,250, Knight to have what he could get above that price.

“Knight obtained a $100 earnest money deposit from a purchaser with an arrangement whereby Watson would meet in Gadsden the following day, execute the deed and receive the balance of the purchase price from the purchaser. Watson then refused to consummate the transaction and the purchaser’s check was returned. Knight then made claim against Watson for the amount he was due to receive under his agreement with Watson.

“Affirming the judgment of the trial court in favor of the defendant, the Supreme Court held that Knight was not entitled to recover because he had been acting as a real estate broker as defined by the Alabama Real Estate Commission Act without being licensed as such. Finding that the Act requiring real estate brokers to be licensed was designated to regulate the business of real estate brokers, to protect the public against fraud and imposition, and to require the license as evidence of qualification and fitness, the Supreme Court held that any contract for the payment of compensation to a person for services provided as a real estate broker when that person was not licensed to perform such services was illegal, void and unenforceable.

“In Rattray v. W. P. Brown & Sons Lumber Co., 29 Ala.App. 93, 192 So. 285 (1939), Rattray made claim against the lumber company for the recovery of a commission of 5% of the purchase price of all lands he brought to their attention pursuant to an agreement under which the lumber company agreed to allow him 5% commission on any tract it bought after he, Rattray, called the lumber company’s attention to it.

“Reversing the judgment rendered by the trial court in favor of the defendant, the [Court of Appeals] held that Rattray did not act as a real estate broker in performing the services for which he sought compensation and that he was therefore not barred by his failure to obtain a real estate license since he was not required to have a license in order to act as a finder. The [Court of Appeals] stated:

“ ‘... The definition of a broker as given in Webster’s New Standard Dictionary is: “One who for a commission or fee, brings parties together and assists in negotiating contracts between them.”
“ ‘The only service to be rendered by the plaintiff was to locate bodies of timber and report the same to the defendant. There was no obligation resting upon the defendant to buy this timber and no remuneration or compensation would be due to the plaintiff from the defendant, unless and until by negotiations between the defendant and the owners of the property the timber had been bought at a price satisfactory to the defendant.
“ ‘In the case of Knight v. Watson, supra, a very different state of facts existed. In that case, Watson made a contract with Knight, whereby Knight was to sell Watson’s property and to negotiate the sale of the property with such purchaser as he should find; in the instant case, there was no such contract, and the plaintiff was not in any manner to negotiate for the sale of the property or even to bring the parties together, as this was not part of his obligation ... . ’

“Following the decision in Knight v. Watson, supra, the Supreme Court of Alabama affirmed the judgment of the trial court in Waldrop v. Langham, 260 Ala. 82, 69 So.2d 440 (1953), holding that the plaintiff, Wal-drop, was barred from recovering compensation for his services when they entailed the cruising of timber and assistance in the negotiation of sale of a certain large tract of timber. The Supreme Court found that assistance in the negotiation of sale definitely required the plaintiff Waldrop to act as a real estate broker and he could not then recover compensation for his services as such without having had a real estate license.

“In Dillard v. Pan-American Investments, Inc., 347 So.2d 990 (Ala.1977), Dillard made claim against Pan-American for commission allegedly due him because of the purchase by Pan-American of ten tracts of land. A jury found in favor of Dillard. However, on Pan-American’s Motion for Judgment N.O.V., the trial judge set aside the verdict and granted judgment in favor of Pan-American on the ground that Dillard was barred from recovery because he had acted as an unlicensed real estate broker.

“On appeal, the Supreme Court of Alabama affirmed, finding that Dillard’s activities for which he claimed compensation came within the definition of real estate broker as defined by the statute and by Webster’s New Standard Dictionary. Dillard’s own testimony concerning his activities were [sic] that he found the properties were for sale and the price at which they were offered. If the terms were within the boundaries established by Pan-American, Dillard would make an introduction of the buyer to the seller.

“Distinguishing the decision of the [Court of Appeals] in Rattray, supra, the Supreme Court concluded:

“ ‘. . . There is no doubt that Dillard’s activities constituted more than merely finding and reporting, as was done in Rattray; he actually “negotiated” the preliminaries between the sellers and Pan-American.
“ ‘In Handley v. Shaffer, 177 Ala. 636, 59 So. 286 (1912) we said:
“* * * A real estate broker strictly speaking is but a middleman whose office it is to bring the principals together, with the understanding that they are to negotiate with each other, and trade upon such terms as may be mutually satisfactory. * * *” ’

“The testimony of Charles taken on oral deposition in this case on December 5, 1980 indicates that Charles testified as follows concerning the activities in which he engaged and the services which he rendered pursuant to the agreement which is the basis for his claim for compensation in this case:

‘Q. Okay. After you had that conversation with Wilson where he said in effect that he’d like more information about the apartments — -whatever you testified to a minute ago, what did you do with respect to your cousin, the defendant, and Mr. Wilson Dinsmore and your own affairs in this order; what did you next do?
‘A. I contacted Jim, and I don’t remember whether it was by phone or personally, but I think it was personally and not by phone, and I told him that this guy had shown interest and wanted to set up a meeting and I asked Jim whenever he would be available to meet the guy. And, I don’t remember exactly, but he said maybe a day, and I said, “okay,” and I got in touch with Wilson and set a date and a time, and we met at Wilson’s office — Jim and me and Wilson.
‘Q. So, it is a fact, then, that after you found out that Jim would go to meet him you then contacted Wilson and found out when Wilson would be available?
‘A. Yes.
‘Q. So, you coordinated the time?
‘A. Yes, sir.
‘Q. And you got him in there?
‘A. Yes, sir.
‘Q. All right. Did you go with your cousin, the defendant to Wilson Dins-more’s office when he first went to see Mr. Dinsmore?
‘A. I met him at Wilson’s office. I told him the address and met him at the office.
‘Q. All right. Were you present, then, when he first met Dinsmore; and if so, did you remain throughout the course of their meeting?
‘A. Yes, I introduced Jim and Wilson in Wilson’s office and made the introduction and that was about it, because at that point Wilson and Jim picked up on asking questions back and forth.
‘Q. You stayed in the room, then?
‘A. Yes.
‘Q. The whole time that your cousin, the defendant was in the room with Mr. Dins-more?
‘A. I think that meeting was about 15 minutes, or so; yes.
s}5 * !§! :{{ sf; s}:
‘Q. Now, what next transpired in this Willow Tree Apartments thing following that meeting, the first meeting with your cousin, the defendant, in Mr. Dinsmore’s office?
‘A. Jim and I were talking, and I guess this was a few days after that, and he said something about he’d worked out some of the figures and had some rough figures down on paper, and was I going to go with him down there to talk to Wilson on the second meeting. I said, “yes.” I don’t think that we travelled together, rode together, in particular, to that second meeting, but at the second meeting — I was at the second meeting with Jim and with Wilson, and was—
‘Q. Was anyone else there?
‘A. No, sir.
‘Q. Okay. Go ahead. What happened then at that second meeting?
‘A. It was kinda like a reintroductory thing where I said, “Wilson, you remember my cousin, Jim,” and, “Jim, you remember Wilson.” “Yes.” ... ’

“The testimony of Charles indicated that he did more than act as a finder. He arranged for the meeting between the buyer and the seller and was also present at the meeting at which time he introduced them to each other. When they met on a second occasion, Charles was also present at that time and reintroduced the buyer and seller to each other.

“Under the decision of the Supreme Court of Alabama in Dillard, supra, and the decision of the United States Court of Appeals for the Fifth Circuit in Dorman, supra, the conduct and activities of Charles in introducing James to Dinsmore, the purchaser, is sufficient to bring him under the definition of real estate broker as defined in § 34 — 27—2(a)(2) Ala. Code 1975.

“Because Charles engaged in activities as a real estate broker without being licensed as a real estate broker, the agreement to pay him compensation for his services is void and unenforceable. Bickley v. Van Antwerp Realty Corp., 271 Ala. 117, 122 So.2d 275 (1959); Faulkner v. Stapleton Insurance & Realty Corp., 266 Ala. 437, 96 So.2d 761 (1957).”

We are in accord with the conclusion reached by the trial court and therefore affirm the judgment.

AFFIRMED.

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


text:
    Patsy GASKIN v. REPUBLIC STEEL CORPORATION.
    81-9.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Clarence F. Rhea and Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   ALMON, Justice.

Patsy Gaskin (Gaskin) appeals from a summary judgment on her action against Republic Steel Corporation (Republic).

Gaskin is an employee of Republic at its Gadsden, Alabama, plant. On October 4, 1979, after receiving permission to leave work early, Gaskin proceeded to the bathhouse on the premises of Republic’s plant. While she was proceeding to the bathhouse, another employee of Republic, Gerald Faulkner, saw her and followed her. Once she was in the shower he attacked her and attempted to rape her. Her screams frightened him away but other plant employees soon apprehended him while still on the plant premises.

Gaskin filed this action against her assailant Faulkner and against Republic. Republic’s motion for separate trials of the claims against it and of the claim against Faulkner was granted. Rule 42(b), A.R.C.P. Only the action against Republic is before this Court on this appeal.

Gaskin based her action against Republic upon the following paragraph of her complaint:

“5. The defendant corporation’s shower area for females is located adjacent to the showers provided for male employees and is in the immediate vicinity of plant facilities where male employees are working. Said shower area is not protected, not properly guarded, and no locks are available to secure the privacy of employees dressing or undressing or showering, the shower-stalls are without doors, and the said facilities are maintained and owned by the defendant corporation.”

She alleged physical and emotional injuries “all as a proximate consequence of the negligence and wanton misconduct of the defendant corporation for failure to provide a safe and adequate place for plaintiff to work and shower,” concurring with the misconduct of Faulkner.

Republic answered in part:

“3. The bathhouse facility provided by Defendant for use of female employees is located in the same general area of the bathhouse facilities provided for use of male employees, but the female bathhouse facility is properly identified and marked by signs for use by women. The entranceway to said female bathhouse facility is separate and distinct from the entranceway to the male bathhouse facilities and can only be used by persons having reason to enter the female bathhouse facility. There is a single doorway leading into the female bathhouse facility which door may or may not be closed as desired. Said female bathhouse facility may or may not be used at the option of the female employee, but is made available for use of all female employees of this Defendant free of charge. This Defendant has no duty or obligation to station guards at the entrance to said female bathhouse facility or to place locks on the door. This Defendant denies all other averments contained in Paragraph 5.”

After other pleadings and affidavits the court granted summary judgment for Republic and denied Gaskin’s motion to set aside the order granting summary judgment.

Gaskin bases her argument on appeal on Parham v. Taylor, 402 So.2d 884 (Ala.1981), and the case relied upon therein, Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355 (Ky.1972). In Parham this Court affirmed summary judgment for defendant employer, holding that the employer was not liable on the theory that he failed to adequately protect his employee from criminal assault. Gaskin seeks to distinguish Parham on the facts.

We find that the trial court correctly granted summary judgment for Republic. The test set out in Parham for imposing liability on an employer for assaults by third parties on his employees is

“that an action such as this will not lie except in the most extreme case where it is clearly shown that the employer in some manner, greatly and unreasonably, increased the risk to the employee without taking reasonable safety precautions.”

Parham v. Taylor, 402 So.2d 884, 887 (Ala.1981).

The shower maintained by Republic did not greatly and unreasonably increase the risk of harm to its female employees. These are not the extreme circumstances alluded to in Parham.

Republic states in its brief that Gaskin conceded that she had no cause of action under workmen’s compensation statutes, and no contention in that regard is presented to this Court.

The judgment of the trial court is affirmed.

AFFIRMED.

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

FAULKNER and ADAMS, JJ., concur in the result.


text:
    Roger HIPP and Glenda Hipp v. Sam J. MARSTON, Sr. and Sam J. Marston, Jr.
    81-50.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Barry A. Friedman of Hall & Friedman, Mobile, for appellants.
    John W. Parker of McFadden, Riley & Parker, Mobile, for appellees.
   ALMON, Justice.

This ease concerns an option to purchase land. The trial court granted summary judgment for the Marstons.

The Hipps owned land in Mobile County. In September 1976 they entered into what is termed a “purchase agreement” wherein the Hipps, as sellers, agreed to convey 13 acres to the Marstons. By the express terms of the purchase agreement the buyers were given an option to purchase additional land upon certain conditions. The language of the disputed option is as follows:

“As further consideration, the seller agrees to give buyers, their successors or assigns an option to purchase all the additional property owned by seller in Section 1 Township 5 South, Range 4 West excluding the existing office structure and land area presently surrounded by a board fence. Said area under fence to contain 1 acre of land, more or less. The purchase price of subject property included in this option is $2,500 per acre. Said option to run with the land or until such time as buyer releases seller from this obligation. Option to be exercised at the election of the seller by giving written notice to buyer that seller is ready to close. Buyer agrees to close sale within 60 days after seller notifies buyer in writing that he is ready to close. If seller fails to close as outlined above this option is cancelled and there shall be no further obligation on either buyer or seller.” (Emphasis added.)

Some three years later, the sellers, when attempting to secure a loan, using the remaining land as collateral, discovered that the land was encumbered with the option. The sellers brought this action to have the option declared invalid, contending that Code 1975, § 35-4-76, limits its duration to a two-year period.

Section 35-4-76(a) states:

“(a) No option to purchase any interest in land, .other than an option limited in favor of a lessee and exercisable at a time not later than the end of the term of a lease or any extension or renewal thereof, or an option to repurchase reserved by the grantor in a deed, shall be valid or enforceable for a period of more than 20 years. If any such option may, by the terms of the instrument creating it, continue to exist for longer than 20 years, it shall terminate and cease to be enforceable 20 years after the time of its creation. Where the instrument creating any such option shall place no limit upon the duration of the option or otherwise state the terms controlling the duration of the option, the option shall cease to be enforceable two years after the time of its creation. This section shall not apply to options created prior to January 31, 1972.” (Emphasis added.)

The facts are not in dispute and only a question of law is presented. The issue is whether the option contains sufficient limitations on its duration or otherwise states terms that control its duration so as to prevent the option from becoming void after the passage of two years.

As previously indicated, the trial court, by entering summary judgment for the buyers, concluded that the option remains valid and enforceable.

To say the least, the option is ambiguous, especially in view of the last sentence. It seems to give the sellers a way to defeat the option by failing to close the transaction after the sellers have given notice to the buyers that the sellers are ready to close. This is indeed a strange provision. While the record does not reflect who drafted the option language, it is fairly safe to conclude that the drafter was not an attorney. It appears that in some instances the word “seller” was inadvertently interchanged with the word “buyer.” But be that as it may, we are not called upon to decide all these matters, but merely to decide whether the duration of the option as is limited by its terms, so as to avoid the two-year limitation of § 35-4-76(a).

The buyers contend that the provision which allows the sellers to give notice to the buyers and thereby give the buyers 60 days to close the transaction, sufficiently controls the duration and thus renders the option valid. We disagree.

This reasoning would lead to the conclusion that the option does not come into being until notice is given by the sellers. We do not think this to be the case because the option, such as it is, came into being upon the signing of the purchase agreement. The sellers could merely determine, by giving notice to the buyers, when the time to exercise the option would begin to run. If the sellers did not elect to start the running of the time to exercise the option, then the option might well last indefinitely. In other words, the time for closing the sale after notice is certain, but the duration of the option is uncertain.

The purchase agreement was executed in September 1976, and § 35-4-76 would make the option enforceable through September 1978. This lawsuit was filed in July 1980, and, as a matter of law, the option was not enforceable at the time of the suit. Therefore, it was error to grant summary judgment in favor of the buyers. The sellers were entitled to summary judgment. We therefore enter judgment for the Hipps.

REVERSED AND RENDERED.

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


author: MADDOX, Justice.

text:
    Russell Allan PLENKERS, et al. v. James H. CHAPPELLE, Jr.
    81-92.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Joseph M. Brown, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellants.
    John D. Richardson of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   MADDOX, Justice.

This case is before the Court on appeal from the trial court’s decree denying plaintiff’s motion for new trial. Plaintiff assigns as reversible error the trial court’s refusal to charge the jury on the doctrine of subsequent negligence; refusal to admit testimony concerning the position of the light switch in the plaintiff’s wrecked automobile and the effect of connecting the battery cable on the proper terminal; and the trial court’s allowance of defendant’s cross-examination of a state trooper regarding the accident report. For the reasons stated below, we affirm.

This action stems from a motor vehicle accident which occurred on the night of May 24, 1978, on Howell’s Ferry Road in Mobile County. At the time of the accident, the plaintiff’s automobile was stopped in the wrong lane of Howell’s Ferry Road and the plaintiff, Russell Allan Plenkers, was attempting to refasten his hood that had blown off. In his effort to secure the hood, the plaintiff, apparently standing in front of the only working headlight on his vehicle, was injured by the defendant, James H. Chappelle, Jr., who claimed that he noticed the plaintiff’s peril too late to avoid hitting the plaintiff’s car.

At the trial, Chappelle admitted that on the night of the accident, there was neither fog nor physical obstructions which would have obscured his vision; but he also testified that Howell’s Ferry Road was a very dark road without any traffic lights or street lights. At the time of the accident, approximately 11:45 p. m., the defendant was driving a 1970 Ford Maverick and traveling at a speed of approximately 45-50 miles per hour in a 55 mile-per-hour zone. He testified that both headlights on his car worked and that to the extent he knew, both headlights were properly aimed. He further testified that with his headlights on low beam, the illumination power, in his best judgment, was about 30 feet.

At the time of the accident, Chappelle testified that he was observing the roadway in front of him and that he was keeping a proper lookout but that he did not observe anything in the road before he suddenly saw the headlight. Moreover, the defendant denied that he was feeling or otherwise manifesting signs of being sleepy at any time during his drive home that night. The defendant did testify that at the time of the impact he thought he saw a silhouette of the plaintiff Plenkers standing just to the left of the headlight on the driver’s side of the plaintiff’s car, but he was not sure exactly where.

Plaintiff’s counsel attempted to elicit evidence at the trial from several witnesses concerning an experimentation with the working parts of Plenkers’s automobile on the day after the accident. The trial court judge refused to admit their testimony to the effect that the light switch inside Plenkers’s automobile was in the “on” position and that when the disconnected positive side battery cable was reconnected to the proper battery terminal, one of the headlights became operative.

One of plaintiff’s witnesses, Alabama state trooper Steve Silveira, testified that, based on his investigation of the accident, at the time of the accident, one of the headlights on plaintiff’s vehicle had not been operative for some period of time. On direct examination, plaintiff’s counsel questioned the state trooper extensively regarding the diagram portion of the witness’s accident report. On cross-examination of trooper Silveira, defense counsel, despite objection by plaintiff’s counsel, was allowed to question the state trooper regarding the entries made on his accident report during his investigation of the facts and circumstances surrounding the accident.

The Trial Court’s Refusal to Give the Written Jury Charge on Subsequent Negligence

At the close of all the evidence, fourteen written requested charges were submitted to the trial court by the appellant. Requested charge number four concerned the issue of subsequent negligence or “last clear chance.” The charge reads:

“In addition to simple negligence, the plaintiff claims that the defendant was also guilty of subsequent negligence.
“Under the doctrine of subsequent negligence, irrespective of the negligent acts of a plaintiff in putting himself in a position of danger, he may recover against a defendant who fails to use reasonable and ordinary care in avoiding the accident after such defendant discovered the perilous position of the plaintiff. A defendant is not liable where an emergency is so sudden that there is no time to avoid the accident or where a defendant did not have actual knowledge that the plaintiff was in a position of danger.
“In order for defendant to be liable for subsequent negligence, the plaintiff must reasonably satisfy you from the evidence:
“that the plaintiff was in a perilous position;
“that the defendant had actual knowledge that the plaintiff was in a position of danger;
“that the defendant with such knowledge negligently failed to use reasonable and ordinary care in avoiding the accident;
“that to have used such reasonable and ordinary care would have avoided the accident;
“and that the plaintiff was injured or damaged as a proximate result of the defendant’s subsequent negligence.”

With regard to subsequent negligence, the Court has held that “[ujnder our system of pleading, subsequent negligence can be the basis of recovery under a count charging simple negligence. However, there must be some evidence requiring an instruction on subsequent negligence. ” (Citations omitted.) (Emphasis added.) Owen v. McDonald, 291 Ala. 572, 574, 285 So.2d 79 (1973). Elements essential for a prima fa-cie showing of subsequent negligence were reiterated in Scotch Lumber Co. v. Baugh, 288 Ala. 34, 256 So.2d 869 (1972):

“It is well established in this jurisdiction that in order to predicate liability for subsequent negligence, the defendant must be shown to have had actual knowledge of the plaintiff in a perilous position, and thereafter negligently failed to use all the means at his command and known to skillful engineers, so circumstanced, to avert damage to the plaintiff, when to have promptly and duly used such means could have averted the accident. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223; Wood v. Northern Alabama Ry. Co., 22 Ala.App. 513, 117 So. 495; Emmett v. Alabama Great So. Ry. Co., 226 Ala. 310, 146 So. 811; Beavers v. Southern Ry. Co., 212 Ala. 600, 103 So. 887.”

288 Ala. at 40, 256 So.2d 869. Hence, both “actual knowledge of [a party] in a perilous position,” and the subsequent negligent failure of a driver “to use all the means at his command and known to skillful [drivers] ... to avert damage” are requisite to a prima facie showing of subsequent negligence.

The appellant does attempt to establish that appellee had knowledge of the appellant’s peril by inference, but appellant did not address the second element of subsequent negligence, nor did he introduce evidence at trial indicating that the appel-lee had reasonable opportunity and necessary time to avert the accident by use of due care. In Owen v. McDonald, 291 Ala. 572, 575, 285 So.2d 79 (1973), the Court held: “The doctrine of subsequent negligence on the part of the plaintiff or defendant is not to be applied in a case where the manifestation of peril and the catastrophe are so close in point of time as to leave no room for preventative effort.” In Owen, the plaintiff was not discovered to be in peril until the defendant, who was traveling approximately twenty-five (25) miles per hour, was approximately 20 feet from the point of impact. Similarly, the uncontradicted evidence in this case shows that, in appellee’s best judgment, his own headlights on low beam illuminated the roadway approximately thirty (30) feet ahead; he first saw appellant’s headlight approximately fifty to fifty-five (50-55) feet ahead, at which time he was traveling forty-five to fifty (45-50) miles per hour in a fifty-five (55) mile-per-hour speed zone. The Court, in Owen, found:

“There was no evidence introduced directly or indirectly from which an inference could be drawn that had McDonald attempted to swerve to his left, gone straight, or swerved in any other direction, he would have been able to avoid striking the child. No evidence was introduced that McDonald could have stopped the truck within a few feet after the child came into a position of peril discovered by McDonald.”

291 Ala. at 574, 285 So.2d 79.

The appellant in the instant case failed to introduce evidence even suggesting that the appellee could have swerved or stopped within the 55-foot span to avoid this mishap. Further, the record shows that appel-lee slammed on his brakes upon discovering the appellant’s peril, but the impact was virtually instantaneous. This Court has made it plain that “[w]hile it is the duty of the jury to try the facts and apply those facts to the law, it is the duty of the [c]ourt to determine questions of law, to declare the law, and to direct the application of the law to the facts.” McArdle v. State, 408 So.2d 491, 493 (Ala.1981). Therefore, since the appellant, as a matter of law, failed to establish a prima facie case of subsequent negligence, the trial court judge did not commit reversible error in refusing to charge the jury on the doctrine of subsequent negligence.

Testimony Concerning the Position of the Automobile Headlight Switch and the Battery Cable Experiment

The appellant contends that the trial court abused its discretion in refusing to admit testimony regarding the position of the headlight switch and an experiment regarding the effect of placing the battery cable on the proper terminal on the day following the accident.

The admissibility of out-of-court experiments is committed to the sound discretion of the trial court judge, and the exercise of such discretion will not be reversed except for gross abuse. Alonzo v. State ex rel. Booth, 283 Ala. 607, 610, 219 So.2d 858 (1969); Helton v. Easter, 41 Ala.App. 648, 654, 148 So.2d 486 (1962); Gamble, McElroy’s Alabama Evidence, § 81.01(3) (3d Ed. 1977). Moreover, before a trial court may consider the admissibility of an experiment, a predicate or test of “reasonable or substantial similarity” must be satisfied by the proponent of the experimental evidence. As the Alabama Court of Civil Appeals has expressed:

“There must be similarity of conditions and circumstances at the time of a test as compared to the time of the event charged for the results of such test to have sufficient probative value for admission into evidence. It is for the court to determine whether conditions are sufficiently similar to warrant admission of such evidence. Much is left to the discretion of the trial court.”

Burgess Mining & Const. Corp. v. State ex rel. Baxley, 55 Ala.App. 61, at 67, 312 So.2d 842 (Ala.Civ.App.1975).

After reviewing the record and facts of this case, we cannot hold that the trial judge’s ruling to exclude this evidence was an abuse of his discretion. The trial judge ruled that the appellant would be allowed to introduce testimony regarding collision damage to appellant’s automobile observed by witnesses the day following the accident. The trial court judge properly sustained appellee’s objections to testimony regarding matters not involved with the collision damage, and for which no proper predicate had been laid, specifically, the position of the headlight switch and the effect of placing the battery cable on the proper terminal on the day following the accident. Consequently, in view of the discretion afforded the trial court in determining the probative value and admissibility of appellant’s evidence, this Court finds that the trial court judge did not commit reversible error; he acted within the bounds of sound discretion in refusing to admit testimony of appellant’s witnesses concerning the position of the headlight switch and the working condition of onp of appellant’s headlights.

Testimony Concerning the Accident Report

The final issue to be addressed is whether the trial court in permitting cross-examination of state trooper Steve Silveira concerning matters contained in his accident investigation report, committed reversible error.

The automobile accident report of an investigating officer is not admissible into evidence because it does not come under the business records exception to the hearsay rule. Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963); Gamble, McElroy’s Alabama Evidence, § 254.01(8) (3d Ed. 1977). The record in this ease discloses that appellant’s attorney asked the witness several questions regarding a diagram drawn by him and included in his accident report. The same diagram was admitted into evidence at the trial as plaintiff’s exhibit # 19. Since appellant initially introduced this portion of trooper Silveira’s report, counsel for appellee was entitled and justified, by virtue of the doctrine of curative admissibility, to cross-examine trooper Sil-veira about matters relevant to the diagram portion of his accident report. See Nellis v. Allen, 268 Ala. 259, 261, 105 So.2d 659 (1958); Wilkinson v. Duncan, 294 Ala. 509, 512, 319 So.2d 253 (1975); Kroger Company v. Puckett, 351 So.2d 582, 588 (Ala.Civ.App.1977); See generally Gamble, McElroy’s Alabama Evidence § 15.01 (3d Ed. 1977). The rule of curative admissibility is nonetheless applicable even though appellee failed to object to the appellant’s initial questioning of the trooper and the introduction of the accident diagram. See Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709 (1970); Gamble, McElroy’s Alabama Evidence, § 14.01 (3d Ed. 1977).

For the reasons stated above, we affirm the judgment of the trial court.

AFFIRMED.

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


text:
    Ola G. BRIGGS, Guardian of Mazie Glass, a non compos mentis v. Hugh Braxton GLASS, as Executor of the Last Will and Testament of Almon W. Glass, Ind. and Frances Jeanette Spruell, Ind.
    81-179.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Francis W. Speaks, Clanton, for appellant.
    William D. Latham, Clanton, for appel-lees.
   MADDOX, Justice.

This appeal involves an effort by Ola G. Briggs, as guardian of Mazie Glass, to set aside a deed executed by Mazie Glass to Almon W. Glass on the ground that the deed was forged. The dual issues presented for review are whether in acknowledging a deed, the failure of a notary public to ascertain the identity of the signatory invalidates the instrument and whether the evidence presented in this case was sufficient to overcome the presumptive validity of an acknowledged deed. We affirm the decision of the trial court.

On August 29, 1973, Almon W. Glass, father of defendants below, and brother of Mazie Glass, plaintiff below, entered the office of attorney L. F. Gerald, Jr., with a lady he introduced as Mazie Glass. The lady requested Mr. Gerald to prepare a deed conveying 63 acres of land in Chilton County to Almon Glass. Mr. Gerald knew Mr. Glass and had represented him on several occasions; however, he did not know Mr. Almon W. Glass’s sister. Although the notary public who acknowledged the deed did not request any identification of the lady signing the deed, the lady was introduced by Almon Glass as being Mazie Glass, his sister. The deed was signed on August 29, 1973, and recorded in the Chilton County probate office the same day.

Mazie Glass, suing through her guardian, Ola Briggs, maintained that she was unable to sign the deed in 1973, because of an operation she had in 1970. While there was no dispute that she was physically incapacitated for a period of time, there was testimony that within three years after the operation, she was able to speak, walk, garden and attend to household affairs. Although it was disputed as to whether Mazie Glass could write at some point following her operation, it was undisputed that an adequate sample of her signature either before or after the operation could not be obtained in order for a handwriting expert to determine if the signature on the deed was the signature of Mazie Glass. The handwriting expert reported at the trial that he could not give any statement as to whether the signature was or was not the appellant’s signature.

The appellees, as defendants, stipulated that the property was not assessed in the name of Almon Glass during his lifetime, but was assessed by the appellees following the death of their father in 1977 (the deed had been found among the personal effects of the deceased). Mazie Glass remained in possession of the property until the date of this suit and no previous effort was made by Almon Glass or any person claiming under him to dispossess her.

Several witnesses appeared in behalf of the parties; however, the evidence presented in support of their positions, though credible, was contradictory. The trial court, which heard the case ore tenus, denied relief. This appeal followed.

The appellees deny that the signature of the grantor on this deed is forged and rely heavily on the presumption accorded a deed which appears to be properly signed and acknowledged and recorded. This Court has ruled previously that acknowledgment and prompt recordation of a deed is prima facie evidence of its due execution. Jordan v. Conservation and Land Company, 273 Ala. 99, 102, 134 So.2d 777 (1961); Thompson v. Mitchell, 337 So.2d 1317, 1318 (Ala.1976). The appellant argues convincingly, however, that acknowledgment raises no presumption where the evidence shows that the notary “did not personally know or identify” the party executing the deed.

In the early case of East Tennessee, Va. & Ga. Ry. Co. v. Davis, 91 Ala. 615, 8 So. 349 (1890), the Court, with regard to the acknowledgment of written instruments, held:

“The statute, § 1802, [Code 1886], furnishes the form of the certificate of acknowledgment. That form is as follows: T,-, hereby certify that_, whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day, that being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date.’
“It will be observed that, in this certificate, the officer certifies certain things as facts within his knowledge. Thus, he certifies as facts that he knows the person whose name is signed to the conveyance, and that that person was before him on the day mentioned in the certificate.” (Emphasis supplied.)

91 Ala. at 622, 8 So. 349. Fifty years later, the Court ruled:

“[T]wo elements are essential to the validity of a certificate to a conveyance of land, or a mortgage against land: (1) it must clearly identify the person who executed the conveyance; and (2) it must show the person making the acknowledgment appeared in person before the officer taking the acknowledgement and was personally known to him or was identified to him, as the statute directs, as the individual who executed the instrument.” (Citations omitted.) (Emphasis supplied.)

Thomas v. Davis, 241 Ala. 271 at 275-276, 2 So.2d 616 (1941). More recently, the Alabama Court of Criminal Appeals addressed this issue in Ardis v. State, 380 So.2d 301 (Ala.Cr.App.1979), observing that:

“The forms by which ‘conveyances and instruments of every description admitted to record’ are to be acknowledged are found in § 35 — 1-29, Code of Alabama 1975. The statute clearly requires the notary to certify that the person seeking the acknowledgment ‘is known to me.’ (Emphasis supplied.) Moreover, Alabama cases have held that, where the form of an acknowledgment did not state that the person who executed the conveyance was personally known or identified to the officer taking the acknowledgment, the conveyance was invalid as evidence. Thomas v. Davis, 241 Ala. 271, 2 So.2d 616 (1941); Davidson v. Alabama Iron & Steel Co., 109 Ala. 383, 19 So. 390 (1896); East Tennessee V. & G. Ry. Co. v. Davis, 91 Ala. 615, 8 So. 349 (1890). Cf. Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966) (Notary has duty not to negligently acknowledge).” (Emphasis supplied.)

380 So.2d at 304.

After reviewing the facts in this case, we hold that the identification provided the notary taking the acknowledgment was sufficient to make it a valid one. The person who signed the deed was identified to the notary by Almon Glass as Mazie Glass, his sister. Furthermore, the notary was the secretary of the attorney who prepared the deed and he testified that he was acquainted with Almon Glass.

The next issue is the purported forgery of the deed. Where a deed is attacked as a forgery, the Court requires the attacking party to “show that it was a forgery by clear and convincing evidence, reaching a high degree of certainty, leaving no doubt of the truthfulness of such fact.” Thompson v. Mitchell, 337 So.2d 1317, 1318 (Ala.1976). Moreover, this Court has held that:

“[W]here the record shows that a case is tried by the court, without a jury, and judgment rendered absent special findings of fact, or a request therefor, the conclusion of the trial judge will be affirmed unless clearly erroneous, or manifestly unjust, if fairly supported by credible evidence under any reasonable aspect.”

Hill v. Delchamps Food Stores, 294 Ala. 14, 16, 310 So.2d 871 (1975); See San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 473, 305 So.2d 374 (1975). The presumption of correctness afforded the trial court in these instances, however, is not an irrebuttable one, See Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979), and appellants urge that the verdict of the trial court here is clearly erroneous and must be reversed. We are convinced, after reviewing the testimony of all the witnesses and other evidence contained in the record, that the judgment of the trial court is supported by competent evidence. The evidence offered by the appellants that the deed was a forgery fails to achieve the “high degree of certainty, leaving no doubt of the truthfulness of such fact” standard that is required to invalidate an acknowledged instrument. Thompson v. Mitchell, 337 So.2d at 1318.

Therefore, we conclude that the judgment of the trial court is due to be affirmed.

AFFIRMED.

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