author: ALMON, Justice.

text:
    METROPOLITAN LIFE INSURANCE COMPANY, a Corporation v. Jefferson L. SULLEN, et al.
    80-279.
    Supreme Court of Alabama.
    April 30, 1982.

      W. Terry Bullard of Merrill & Harrison, Dothan, for appellant.
    Joseph P. Hughes, Geneva, for appellees.
   ALMON, Justice.

Metropolitan Life Insurance Company (Metropolitan), defendant below, appeals from a judgment awarding $13,090.30 to plaintiffs, beneficiaries under an accidental death policy issued by Metropolitan. Because the plaintiffs are children and grandchildren of the insured deceased, Roosevelt Sullen, Sr., we will refer to them as the Sullens. The basis of Metropolitan’s appeal is that the trial court erred in refusing to allow Metropolitan to amend its answer during trial and in denying several of its requested jury instructions. We find that the trial court committed no reversible error in these actions and affirm.

Mr. Sullen was sixty-four years old and a Civil Service employee at Fort Rucker at the time of his death. On August 26, 1977, Mr. Sullen was driving away from Fort Rucker at about 8:00 a. m. when he made a U-turn and drove his car into a bridge abutment. He died in this crash. Mr. Sullen had been in Flowers Hospital in Dothan the first week of June, 1977, for treatment of involutional depression.

When the Sullens filed this action to recover accidental death benefits, Metropolitan answered by denying that Mr. Sullen died by accidental means, pleading the general issue, and averring that Mr. Sullen’s death “was caused by or the result of an intentional self-destruction or intentionally self-inflicted injury and that hence Plaintiffs should take nothing by this suit.” The court held a pretrial conference and issued a pretrial order on November 8,1979, which gave the contested legal issue as “[wjhether or not the death of Roosevelt Sullen, Sr., was ‘caused by or the result of intentional self-destruction or intentionally self-inflicted injury, while sane or insane,’ within the meanings of the terms of the Policy of insurance insuring the life of Roosevelt Sullen, Sr., so as to exclude Plaintiffs’ claim for accidental death benefits under said policy.” We have added the internal quotation marks to point out that this is the exact language of an exception to accidental death coverage under the policy (the suicide exclusion).

After the jury was struck for trial on October 15, 1980, Metropolitan moved to amend the pretrial order by adding a contention that recovery would be barred by another exclusion in the policy against payment for death “caused wholly or partly, directly or indirectly, by disease or bodily or mental infirmity, or by medical or surgical treatment or diagnosis thereof” (the mental infirmity exclusion). Counsel for the Sul-lens objected, and the trial court ruled that the case would proceed on the pretrial order because the mental infirmity exclusion would involve a substantially different defense from the suicide exclusion.

Metropolitan moved for directed verdict at the close of the Sullens’ evidence and at the close of all the evidence. At a conference held prior to the court’s charging the jury, Metropolitan moved to amend the pleadings to conform to the evidence pursuant to Rule 15(b), Alabama Rules of Civil Procedure (ARCP), seeking to include the mental infirmity exclusion. It also requested four jury charges based on this exclusion. The trial court denied these motions and requests, and, subsequently, Metropolitan’s motion for a new trial.

We find no error in the trial court’s decisions. A pretrial order, when entered, “shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice,” Rule 16, ARCP. Although amendments are to be liberally allowed under Rule 15, trial judges have discretion to allow or refuse amendments, and should not allow them where the trial will be unduly delayed or the opposing party unduly prejudiced. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976). Although Rule 16 does not preclude amendments subsequent to the pretrial order, “the pre-trial procedure becomes ineffective unless the trial judge has the right to disallow amendments to pleadings filed subsequent to the pre-trial hearing,” Id., at 1278 — 79.

The reasoning of this Court in National Distillers and Chemical Corporation v. American Laubscher Corporation, 338 So.2d 1269 (Ala.1976), cited by Metropolitan, does not indicate a contrary result. In both this case and National Distillers, we affirm the trial court’s decision on amendment, a matter within its discretion. In National Distillers, the trial court found there was no unfair surprise or undue prejudice. The previous fraud counts on which appellant was already defending were more inclusive than the two fraud counts added at the close of the evidence. Here it was within the trial court’s discretion to find the amendment would cause undue prejudice.

Metropolitan contends that the mental infirmity exclusion should have come in under its general denial. We agree, however, with the Sullens that it was an affirmative defense which should have been set forth affirmatively. Rule 8(c), ARCP. The deposition of the psychiatrist (Dr. Lopez) upon which Metropolitan sought to base its mental infirmity defense was taken on February 4, 1980, eight months before trial. An amendment during the interim would have given the Sullens proper notice that Metropolitan intended to defend on mental infirmity grounds and not just on suicide grounds.

Metropolitan also argues that because the Sullens did not object to admission of the deposition of Dr. Lopez, the mental infirmity defense was tried by consent. The bulk of his testimony concerned suicidal tendencies and was properly admissible; that which went directly to Mr. Sullen’s mental condition, involutional depression, was also relevant to his suicidal tendencies and was admissible under the suicide exclusion, which was properly pleaded and at issue in the trial.

The Sullens introduced Mr. Sullen’s certificate of insurance into evidence. Metropolitan asserts that because this certificate contains the mental infirmity exclusion, the Sullens consented to try this issue by introducing the certificate. This contract, however, was a necessary element of the Sullens’ cause of action. Because these items on which Metropolitan seeks to base its amendment were properly admitted for other purposes, we hold that the Sullens’ explicit objections to trial of the mental infirmity exclusion negate the possibility that it was tried by implied consent.

For the reasons set out above, the judgment is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Terri J. MURRAY, as Administratrix of the Estate of Daniel Curtis Murray, Deceased v. ALABAMA POWER COMPANY.
    80-305.
    Supreme Court of Alabama.
    April 30, 1982.

      R. Timothy Morrison, of Emond & Vines, Birmingham, for appellant.
    S. Allen Baker, Jr. and James A. Bradford of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   TORBERT, Chief Justice.

This is a wrongful death action initiated by Terri J. Murray as administratrix of the estate of her husband, Daniel Curtis Murray. Plaintiff averred that the defendant, Alabama Power Company, negligently or wantonly failed to warn plaintiff’s decedent of the imminent and inherent dangers associated with high power electrical transmission lines that ran adjacent to plaintiff’s house and that this failure was the proximate cause of the death of plaintiff’s husband. After a trial by jury, a verdict was returned in favor of the defendant. Plaintiff appeals this decision and we affirm.

On March 31, 1976, appellant’s decedent, Daniel Curtis Murray, and two of his friends, James Porter and Roger May, were erecting a CB radio antenna at Murray’s house in Tuscaloosa County. The antenna was approximately fifty-three feet in height. It is disputed as to whether the men had completed the erection of the antenna when it fell. Around 9:30 p. m., however, the antenna fell and came into contact with high power electrical transmission lines which were adjacent to Murray’s property line. All three men were killed.

The transmission lines, owned and maintained by Alabama Power Company, were uninsulated and carried a current of 115,000 volts. The lines were located inside a 100 foot right of way, the view from the ground to the line was clear and unobstructed, and the lines were open and obvious. The antenna was burned where it contacted the lines, forty-three feet, four inches, from the base of the antenna. It is disputed as to whether Alabama Power Company had knowledge that area residents were erecting antennas adjacent to the transmission lines.

As stated above, at trial the jury returned a verdict in favor of Alabama Power Company. On appeal, the primary issue presented by the appellant is whether the trial court committed reversible error by allowing Alabama Power Company to introduce into evidence Tuscaloosa City Ordinance No. 1437 as evidence of contributory negligence. This ordinance provides in pertinent part:

“It shall be unlawful for any person to install, erect, or maintain, or for any person to permit to be installed, erected or maintained, on any property or premises under his charge or control, any radio or television antenna at any point unless the distance from the base of said antenna in a direct line to the nearest primary electrical distribution or transmission line or conductor carrying a potential of 600 volts or more of electricity is at least fifteen feet greater than the distance from the base of said antenna to the tip.”

Tuscaloosa City Ordinance No. 1437.

At the conclusion of the trial, the trial judge instructed the jury that a violation of this ordinance was prima facie negligence. The pertinent portions of that charge are as follows:

“The duty of the plaintiff’s intestate was to use ordinary care for his own safety, to do as a reasonable and prudent person would have done under the same or similar circumstances, or to refrain from doing what a reasonable and prudent person would have refrained from doing under the same or similar circumstances.
“Municipal ordinances extend to the police jurisdiction of a city. The police jurisdiction of the city is a three-mile extension of the corporate limits. The violation of certain state statutes or city ordinances is what is known as prima facie negligence. Prima facie negligence means that it is presumed to be negligence, but it is not under all circumstances, and it is a jury question whether such negligence — I am sorry, it is a jury question whether such a violation is negligence.
“Ordinance No. 1437 of the City of Tuscaloosa has been admitted into evidence. I am going to read you the pertinent parts of that ordinance. The fact that I read it to you is no indication that it has been violated or that any violation was the proximately contributing cause of any injury. You must determine whether or not such is negligence, whether or not such violation proximately contributed to the injury complained of, depending on what you find the facts to be.
“If you determine that the plaintiff’s intestate violated this ordinance and that such violation was negligence and that such negligence proximately contributed to his death, then the plaintiff would not be entitled to recovery. The pertinent parts of that ordinance read as follows: ‘It shall be unlawful for any person to install, erect or maintain or for any person to permit to be installed, erected or maintained on any property or premises under his charge or control, any radio or television antenna at any point unless the distance from the base of said antenna in a direct line to the nearest primary electrical distribution or transmission line or conductor carrying a potential of 600 volts or more electricity is at least fifteen feet greater than the distance from the base of said antenna to the tip thereof when fully extended.’ ”

On appeal, the appellant states that it is a general rule of law that a statute is applicable in the negligence context only where it is determined as a matter of law that the statute in question was enacted to protect the class of persons in which the party asserting the statute belongs from the risk of danger actually created by the violation. Appellant further contends that only where the statute was enacted for the benefit of the party seeking to assert its violation may that party assert that the violation constituted contributory negligence per se.

Appellant states that in this case, the instructions of the trial court, while referring to the violation of Ordinance 1437 as “prima facie negligence,” coupled with the closing arguments of the defendant, were misleading and tended to indicate to the jury that a violation of the ordinance would be a complete defense for the defendant. These contentions, however, are without merit.

The trial court charged the jury that they were to make the determination of (1) whether the ordinance was violated, (2) whether that violation would constitute negligence, and (3) whether that negligence proximately caused the death of Daniel Murray. It is quite apparent that the trial court’s charge did not invade the province of the jury.

The trial court stated that the violation of certain ordinances or statutes constituted prima facie negligence. Prima fa-cie negligence is only evidence to support a jury finding that a party was guilty of negligence that was, in turn, the proximate cause of his injuries. A prima facie case of negligence must be submitted to the jury only as evidence of that negligence and it is not decided against the party as a matter of law. Here, had the charge been on negligence per se, the jury would have been instructed to determine whether, as a matter of fact, the ordinance had been violated and whether that violation was the proximate cause of the injury. As stated above, the ordinance was submitted only as prima facie evidence of negligence, not as negligence per se.

The appellant contends that the trial court’s charge was misleading, yet it is the law in Alabama that an oral charge must be considered as a whole, and if the entire charge states the law correctly, then no reversible error has been committed even though when considered alone a single part of the charge might be considered erroneous. Salotti v. Seaboard Coast Line Railroad Co., 293 Ala. 1, 299 So.2d 695 (1974); Metzger Brothers, Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398 (1971). As stated, the trial court specifically instructed the members of the jury that they were to determine (1) if the ordinance had been violated, (2) whether any violation would constitute negligence, and (3) whether that negligence would be the proximate cause of decedent’s death. There was absolutely nothing in the charge that has been shown to injure the substantial rights of the appellant. At no time did the trial court either directly or indirectly instruct the jury that Ordinance No. 1437 had been violated. In fact, the learned trial judge specifically stated that “the fact that I read [the ordinance] to you is no indication that it has been violated or that any violation was the proximately contributing cause of any injury.” The ordinance was one factor that could be weighed by the jury to determine whether plaintiff’s decedent was negligent under the circumstances. When considered as a whole, there was no reversible error in the charge.

The ordinance is a safety ordinance passed by the City of Tuscaloosa, designed to prohibit the very conduct in which Daniel Murray and his two companions were engaged at the time of the accident. The breach of a statute or ordinance by a plaintiff can be asserted by a defendant as evidence of contributory negligence when that statute or ordinance fixes a standard of reasonable care for that plaintiff and/or members of the community. Industrial Tile, Inc. v. Stewart, 388 So.2d 171 (Ala.1980); Knight v. Burns, Kirkley & Williams Construction Co., 331 So.2d 651 (Ala.1976). See also, City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939). Such use of a statute or ordinance does not automatically label the plaintiff’s conduct as negligent. The determination, as in this case, of whether a violation of the statute or ordinance, if any, constitutes negligent conduct is left solely to the jury.

In Scott v. Schlosser, 401 So.2d 41 (Ala.1981), this Court held that the trial court was justified by the evidence, in connection with the defense of contributory negligence, in reading statutes to the jury regarding rules of the road. The focus was upon whether there was error by charging the jury that a violation of the laws was negligence per se, and then cautioning the jury that the reading of the statutes was “no indication that they had been violated or that such violation, if any violation there be, proximately caused or proximately contributed to the injuries complained of by the Plaintiffs.” In affirming the trial court, this Court concluded that such charges to the jury were not error. The present case, in turn, deals with an ordinance and a jury instruction which asserted that its violation, if any, was prima facie negligence. Thus, Murray’s violation of the ordinance was a proper factor to be considered by the jury in determining whether his conduct was negligent.

“A plaintiff’s violation of a statute cannot bar his recovery if the statute was enacted for a purpose wholly different from that of preventing the harm complained of, or from that of protecting individuals from the acts prohibited. Thus, where the statute or ordinance which the plaintiff violated had not been enacted for the benefit of the defendant, as a member of the public or otherwise, such violation, instead of being negligence per se, would be only some evidence of negligence if the enactment was deemed sufficiently relevant to be considered, and such a violation could not be invoked by the defendant as a defense to plaintiff’s claim.
“A causal violation of a statute puts the offender in the class of those who fail to obey legal rules for conduct, when he seeks to recover for the negligence of another, and there is authority to the effect that even though such violation does not amount to negligence as a matter of law, it may be considered by the jury in passing on the question whether the plaintiff was guilty of contributory negligence. One who has violated a safety statute laying down a rule of conduct cannot be heard to say that he exercised ordinary care, or that he could not have anticipated injury from its violation, unless compliance with the statute was impossible under the circumstances or would have subjected him to other imminent and apparent dangers.”

57 Am.Jur.2d Negligence § 315 (1971) (footnotes omitted). We hold that a safety statute or ordinance, such as Ordinance No. 1437, can be considered by a jury as going to the standard of care for the self-protection of the plaintiff. A violation of such statute or ordinance can, therefore, be evidence of negligence under certain circumstances. The decision of whether a violation occurred, whether such violation was negligence, and whether such negligence was the proximate cause of the injuries complained of will, as here, be left .entirely to the jury.

The appellant also contends that the trial court erred by refusing to allow her to introduce evidence of prior accidents involving injuries to members of the general public caused by contact with electrical conductors erected, owned, or maintained by Alabama Power Company, to show knowledge by or notice to the defendant that such incidents were occurring. This Court has consistently held, however, that for such evidence to be admissible, the prior accidents must not have been too remote in time, and the conditions and circumstances under which the prior accidents occurred must have been substantially the same as in the subject case. City of Birmingham v. Levens, 241 Ala. 47, 200 So. 888 (1941); Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237 (1927); Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794 (1918). It is within the discretion of the trial court to limit evidence of other accidents or safety history when such evidence will work to divert the attention of the jury to a greater extent than is the probative worth of such evidence. Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237 (1927). Here, there was no showing that the evidence proffered by the appellant came within the required guidelines. Thus, the trial court properly exercised its discretion in refusing to admit any evidence of prior accidents.

Appellant contends that the trial court erred by refusing to allow her to introduce into evidence Alabama Power Company Operating Bulletin 103. This bulletin provides in pertinent part:

“The purpose of this is to establish widths of rights-of-way to be purchased for future transmission lines and to define practices to be followed in the several phases of right-of-way clearing and line construction operation and maintenance to insure uniformity, satisfactory operation, and good public relations.” (Emphasis supplied.)

This bulletin is an internal operating guideline for Alabama Power Company and was promulgated in 1959, eleven years after the transmission lines in question were constructed. The operating bulletin, by its own terms, was to operate prospectively only. To admit such evidence would undoubtedly cause speculation by the jury and would greatly prejudice Alabama Power Company. We find no error in the trial court’s refusal to admit this operating bulletin into evidence.

Finally, the appellant contends that the trial court committed reversible error in allowing Alabama Power Company to make references to the appellant’s remarriage. The plaintiff presented a motion in limine to the trial court to prevent the mention of plaintiff’s remarriage, stating that it would be prejudicial and irrelevant to the lawsuit. This motion was denied. During voir dire examination of the jury, counsel asked the prospective jurors whether any of them were “personally acquainted with Mrs. Barrett’s present husband, Mr. Virgil Barrett.”

First, at the time this question was put to the jury, the appellant failed to raise any objection. Thus, the trial court was not called upon to make a ruling as to the propriety of the question and no question was preserved for review. Second, plaintiff’s counsel, during direct examination of the plaintiff, specifically asked if she had since remarried. It is the law in Alabama that a party cannot introduce evidence in a case and on appeal assert that the trial court committed reversible error by admitting that evidence. Peterson v. Jefferson County, 372 So.2d 839 (Ala.1979). Since the appellant asked virtually the same question of which she complained, no reversal can be predicated upon the admission of the evidence of her remarriage. Southeast Contractors, Inc., v. H. & R. Construction Co., 284 Ala. 712, 228 So.2d 463 (1967).

After a close review of all the issues presented by the appellant, we find no errors made by the trial court. For this reason, the decision of the trial court is due to be affirmed.

AFFIRMED.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Gary B. WRIGHT, et al. v. CYPRESS SHORES DEVELOPMENT CO., INC.
    80-307.
    Supreme Court of Alabama.
    April 30, 1982.

      Thomas A. Deas of McDermott, Deas & Boone, Mobile, for appellants.
    William M. Lyon, Jr. of McFadden, Riley & Parker, Mobile, for appellee Cypress Shores Dev. Co., Inc.
    Charles S. Street of Clay, Massey, Street & Gale, Mobile, for appellee Norman Clark.
   EMBRY, Justice.

Plaintiffs appeal in this action for a declaratory judgment and injunctive relief. The rights sought to be declared were that certain restrictive covenants, applicable to a subdivision in which plaintiffs owned lots and resided, prohibited the building and operation of a convenience store on any lot or lots within the subdivision. The injunc-tive relief concomitantly sought was to enjoin one of the defendants, who had purchased two lots in that subdivision, from excavating and constructing a convenience store on those lots, after the designated agent of the developer had annulled those restrictions as they applied to the two lots purchased.

The determinative issue is whether the declarant of those restrictive covenants running with the land, acting through an agent established by it in the declaration, has a legal right to unilaterally abolish or modify those restrictions if such right is clearly preserved in the original declaratory document, even though lots and dwellings had been purchased in reliance upon those covenants.

The facts in this case were less than fully developed because of the manner in which the trial was conducted. A hearing was set upon the application of plaintiffs — Gary B. and Audrey J. Wright; Jerry D. and Betty J. Cornelius; and, Kenner and Stella Rodgers — for preliminary injunction against defendant, Norman H. Clark, purchaser of Lots 46 and 47 in Revised Cypress Shores (Subdivision) — Unit Four, which Clark had begun to excavate for the construction thereon of a convenience store. When this hearing commenced, the attorney for the Wrights, Corneliuses, and Rodgerses requested that the trial court hear the entire case, as well as the application for injunction, on the merits. Upon objection being made, this request was denied. At the conclusion of the hearing, the objection was withdrawn and it was agreed that the matters would be consolidated; that hearing, perforce, became a final one. However, when the hearing commenced, with the objection made, the trial court exerted a great deal of pressure on plaintiffs’ attorney to stipulate to facts expected to come from the testimony of readily available witnesses. As a result, it appears from the record that plaintiffs were effectively prevented from fully exposing the facts to the trial court as they wished to do. Nevertheless, the facts appearing in the record are sufficient for resolution of the controlling question of law.

The pertinent facts are that, during 1963, Cypress Shores Development Company, Inc., platted arid recorded a survey of Cypress Shores — Unit Four (Subdivision). A declaration of covenants, restrictions and limitations pertaining to that subdivision was also recorded. Those portions of that instrument pertinent to this case read:

“KNOW ALL MEN BY THESE PRESENTS, that CYPRESS SHORES DEVELOPMENT CO., INC., a corporation organized and existing under the laws of the State of Alabama (hereinafter called Declarant), does hereby make, publish and declare as follows:
“Declarant, the owner of all of the real property lying, being, and situate[d] in that certain subdivision known as ‘CYPRESS SHORES’ and being designated as UNIT NO. 4, according to the plat of survey thereof recorded in MAP BOOK 14, PAGE 82, of the records in the office of the Judge of Probate Court of Mobile County, Alabama, said plat being made a part hereof by reference thereto, does hereby covenant and agree with each and every future owner of any part of said property, and each and every such future owner shall, by virtue of becoming such an owner, accept and agree with Declar-ant and with each and every other owner or future owner of any of such property, that the following covenants, restrictions and limitations shall apply to said subdivisions; and
“Said covenants, restrictions and limitations shall run with the land and be binding on all parties and all persons claiming under them for a period of twenty-five (25) years from the date these covenants are recorded, unless prior to the expiration of such period said committee elects to extend same, whereupon same shall be extended for such period as the Committee shall determine. To so extend same, an instrument reciting such extension, signed and acknowledged by a majority of the then members of said Committee shall be recorded in the Office of the Judge of the Probate Court of said County prior to such expiration; and
“If the Declarant, or its successors or assigns, or any such future owner or owners, or the successors, heirs or assigns of any such future owner or owners, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any person or persons owning any real property situated in said subdivision, to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenants and, either to prevent such person or persons from so doing, or to recover damages for such violation; and
“Invalidation of any one of these covenants by judgment or court order shall in nowise affect any of the other provisions which shall remain in full force and effect.
“1. USE. All lots in said subdivision shall be known and designated as residential lots. No building or structure shall be erected, altered, placed or permitted to remain on any residential building lot other than one detached single-family dwelling not to exceed two (2) stories in height and a private garage for not more than three (3) cars or servants’ quarters and appropriate outbuildings. No building, temporary or otherwise, shall be erected or brought onto such property, for residence purposes, previous to the commencement of construction of the permanent residence on such lot.
“2. DWELLING REQUIREMENTS. No dwelling house or residence shall be erected on any lot, the ground floor area of which, exclusive of verandas, open porches (not having exterior walls), garages, breezeways, carports, and patios, shall not be less than 1200 square feet for a one (1) story dwelling, not less than 800 square feet for a dwelling of more than one (1) story.
“3. ARCHITECTURAL CONTROL. No building shall be erected, placed, or altered on any building plot in this subdivision until the building plans, specifications and plot plan showing the location of such building have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision, and as to location of the building with respect to topography and finished ground elevation, by a committee composed of Kenneth R. Giddins [sic], Arthur Tonsmeire, William Lyon, and Emmett McFadyen, and any officers of Cypress Shores Development Co., Inc. acting as such officers from time to time, or by a representative designated by a majority of the members of said Committee, nor until a copy of the building plans, specifications and plot plan shall be deposited with such committee, to be retained by such Committee until the building be completed. In the event of death or resignation of any member of said committee, the remaining member or members, shall have full authority to approve or disapprove such design and location, or to designate a representative with like authority.
“6. NUISANCES. No noxious or offensive trade or activity shall be carried on or maintained on any lot in said subdivision, nor shall anything be done thereon which may be or become an annoyance, or a nuisance in the neighborhood.
“8. SIGNS. No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one square foot, one sign of not more than 5 square feet advertising the property for sale or rent, or signs used by a builder to advertise the property during the construction and sales period.
“15. SIGHT DISTANCE AT INTERSECTIONS. No fence, wall, hedge, or shrub planting which obstructs sight lines at elevations between 2 and 6 feet above the roadways shall be placed or permitted to remain on any corner lot within the triangular area formed by the street property lines and a line connecting them at points 25 feet from the intersection of the street lines, or in the case of a rounded property corner from the intersection of the street property lines extended. The same sight-line limitations shall apply on any lot within 10 feet from the intersection of a street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distances of said intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.
“This instrument and any and all of the covenants, restrictions and limitations or requirements herein set forth may be annulled, cancelled, amended or modified at any time or times by an instrument signed and recorded in the Office of the Judge of the Probate Court of said County by said Architectural Control Committee as comprised from time to time, acting by and through a majority of its members; provided, however, no amendment shall place an additional restriction or limitation on any specific lot in said subdivision, unless the owner of such lot joins in said amending instrument. Said Committee, acting by and through a majority of its members, may waive any one or more of the covenants, restrictions, limitations or requirements herein specified by an instrument in writing signed and acknowledged by a majority of the members comprising such Committee from time to time.
“IN WITNESS WHEREOF, Declarant has caused this instrument to be executed in its name and on its behalf and its corporate seal to be hereunto affixed and duly attested by its officers thereunto duly authorized, on this 21 day of March, 1963.”

The Wrights, Corneliuses, and Rodgerses own lots and residences in the subdivision that are subject to the restrictive covenants. Defendant Norman H. Clark purchased lots 46 and 47 in the subdivision likewise subject to the restrictive covenants. However, it also appears that he purchased those lots for the purpose of erecting a convenience store thereon which would be operated under the name “Compac.” It further appears that before the lots were conveyed to him, defendants Kenneth R. Giddens, Arthur Tonsmeire, and William Lyon, acting as the Architectural Control Committee, annulled, canceled and modified the instrument of declaration and all the covenants, restrictions, limitations and requirements contained in it, insofar as they related to lots 46 and 47.

Additionally, the record reveals a salient fact to which the litigants seemingly attribute little significance. There had formerly been a Compac convenience store operating diagonally across the street from the Wrights’ residence at the time they purchased it. That store was destroyed by Hurricane Frederic in September 1979. There was conflicting evidence regarding the duration of the operation of that store but there is abundant evidence that, although it may not have been a nuisance subject to abatement or other legal action by plaintiffs, it was certainly, at least, an extreme annoyance to residents of Unit Four, including the Wrights. What indeed is significant, but not noted by the litigants, is the fact that the previous Compae operated diagonally across the street from the Wrights was in another subdivision than Unit Four. The proposed Compae, it is true, would be located across the street from the Wrights; however, it would be in the same subdivision: Unit Four.

The evidence shows that plaintiffs relied upon the original restrictions when they purchased their respective properties. There is abundant evidence regarding diminution in value of the properties of plaintiffs if the Compae is erected and operated, because of the nature of the business, traffic, noise, etc. Obviously, this evidence was presented in support of the application for injunctive relief and damages. However, resolution of the issue upon which the outcome of this case turns is largely a matter of law.

Able counsel for the opposing parties have filed excellent and exhaustive briefs supporting their respective theories regarding the rights and obligations of their clients under decisional law that each regards as controlling. This is also true for the well-prepared and well-presented oral arguments.

Appellants summarize their contentions in the following excerpts from their briefs:

“Appellees, Cypress Shores Development Company and Compae Owner state in [their] brief ... as follows:
‘In the instant case, the question of standing is not at issue. Rather, the issue presented is whether a developer/grantor having unqualifiedly reserved the power to cancel or annul restrictive covenants, may, acting through its designated representative pursuant to such power, remove restrictive. covenants.’
The thrust of Appellees’ argument is that Cypress Shores Development Company reserved the power to cancel residential use restrictions applicable to Lots 46 and 47 and this Court must uphold the cancellation regardless of the original development scheme and plan to insure the development of a residential subdivision in spite of the hardship caused adjoining property owners who purchased property in reliance upon the original restrictions. In effect, Appellees seem to argue, as predicted in our initial brief, that the Architectural Control Committee was formed as an alter ego for Cypress Shores Development Company and its function was to act solely on behalf of the development company. It is certainly obvious the Architectural Control Committee represented only the interest of the development company respecting the transaction with the Compae Owner leading to this appeal. However, it is abundantly clear the Architectural Control Committee was originally formed to protect all property owners and to act in a manner to insure that a uniform plan of development was followed in Cypress Shores.
“Based on the Appellees’ argument this Court may decide to address the broader question of the legal right of a developer/owner to cancel or amend restrictive covenants running with the land, based on Appellees’ assertion that the right is clearly preserved in the original document. With respect to the broader question this Court commented in the case [of] Schmidt v. Ladner Construction Co., Inc., 370 So.2d 970 (1979), as follows:
‘Indeed, our preliminary research . . . shows that this broader question is in a state of considerable confusion and far from settled where purchasers have acted in reliance upon the original restrictions.’ at 972 (citing Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451 [1973]).
“In point of fact, Cypress Shores Development Company did not specifically reserve the power to cancel the restrictive covenants applicable to the forty-seven lots in Unit 4 of the subdivision. Rather, the 1963 recorded ‘Covenants, Restrictions and Limitations’ instrument permits an Architectural Control Committee to cancel the residental use restrictions. A reading of the restrictions as a whole will lead to the conclusion that in 1963 Cypress Shores Development Company intended the residential use restrictions to be part of a uniform plan of development and were applicable to all forty-seven lots. In 1963 Cypress Shores Development Company desired to develop a high-class residential area. Original purchasers bought lots in reliance upon these restrictions. These same purchasers resold their properties to other purchasers who bought same in reliance on these restrictions. For approximately seventeen years additional protections were afforded all property owners because of the existence of an Architectural Control Committee. Clearly, all property owners of Cypress Shores depended upon the Architectural Control Committee to act in a reasonable manner consistent with the original plan of development. . . . ”

Appellants’ reply brief, pp. 1-4.

Appellants state in their initial brief, at p. 28:

“Clearly, the Architectural Control Committee has not only amended the Cypress Shores restrictions in an unreasonable manner; this Committee obliterated all restrictions insofar as they relate to the lots bought by the Compac owner. Justice requires this Court to hold as a matter of law that the Architectural Control Committee acted in an unreasonable, arbitrary manner contrary to the covenants placed on record and in a manner inconsistent with the general scheme or plan of development of Cypress Shores Subdivision. Otherwise, it is reasonable to expect the heart of other residential neighborhoods will be changed overnight simply by the stroke of a pen at the hand of committee members who decide the fate of restrictive covenants.”

Appellees summarize their position as follows:

“The appellees respectfully submit that the reservation of the right to cancel and annul the restrictive covenants, being clearly preserved in the original document whereby the covenants were imposed, the exercise thereby [of] the members of the Architectural Control Committee to remove the covenants as to Lots 46 and 47 pursuant to such reservation, constitute a valid reservation and use of the said right. . . . ”

Appellees’ brief, p. 13.

Authorities cited by the parties to support their respective positions include those of other jurisdictions as well as those of this court. The following propositions of law, paraphrasing the issues for review as presented in appellees’ brief, are correct general principles of law:

A DEVELOPER-DECLARANT MAY RESERVE THE RIGHT, IF CLEARLY EXPRESSED AND PRESERVED IN THE ORIGINAL DOCUMENT, TO ANNUL, CANCEL OR MODIFY RESTRICTIVE COVENANTS RUNNING WITH THE LAND, AND THE EXERCISE OF THAT RIGHT MAY BE DELEGATED TO ITS DESIGNATED REPRESENTATIVE.

RESERVATIONS AND RESTRICTIONS ARE TO BE CONSTRUED FREELY WITHIN THE INTENT OF THE PARTIES TO AVOID UNDUE HINDRANCE TO THE FREE USE OF REAL PROPERTY.

The following statement, paraphrasing the issues as presented by appellants for resolution by this court, is also a correct general principle of law:

THE LEGAL RIGHT OF AN OWNER DEVELOPER, CLEARLY PRESERVED IN THE ORIGINAL DOCUMENT AND DELEGATED TO A DESIGNATED REPRESENTATIVE, TO ANNUL, CANCEL OR MODIFY RESTRICTIVE COVENANTS RUNNING WITH THE LAND IS NOT UNLIMITED, AND WHERE PURCHASERS HAVE RELIED UPON THE ORIGINAL RESTRICTIONS, ACTIONS OF THE DESIGNATED REPRESENTATIVE MAKING ANY SUCH CHANGES MUST BE REASONABLE, NOT ARBITRARY OR CAPRICIOUS, AS WELL AS CONSISTENT WITH PERPETUATION OF THE ORIGINAL COMMON SCHEME OF DEVELOPMENT, AND THE RESTRICTIONS CREATE EQUITABLE EASEMENTS IN FAVOR OF THE OWNERS OF THE SEVERAL LOTS THAT MAY BE ENFORCED, IN EQUITY, BY ANY OF THOSE LOT OWNERS.

Appellees, in support of the action of the trial court, rely heavily upon three decisions of this court and one of the Maryland Court of Appeals: Schmidt v. Ladner Construction Co., Inc., 370 So.2d 970 (Ala.1979); Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974); Thrasher v. Bear, 239 Ala. 438, 195 So. 441 (1940); Matthews v. Kernewood, 184 Md. 297, 40 A.2d 522 (1945). The latest of these cases is Schmidt. In that case, in which the author of this opinion joined the dissent of Chief Justice Torbert, the majority stated: “. . . The broader question of the legal right of a declarant to modify restrictive covenants running with the land, if such is clearly preserved in the original document, is not the issue here presented (Emphasis added.) It was also stated: “... Nothing herein should be construed as an expression of an opinion upon any issue beyond the narrow question of ambiguity here presented.” (Emphasis added.) More importantly, however, the proposed modifications under scrutiny in that case neither annulled, nor were inconsistent with, the general scheme or plan of development for the subdivision or its residential use purpose.

As for Laney, that holding denied relief to an owner of several lots in a subdivision who sought to have restrictions for residential use only removed in order that he might construct buildings for commercial purposes. Relief from the restrictions was not sought on the basis of a reserved right to repeal or modify them, but rather was requested on the equitable theory that changed conditions in the neighborhood had impaired the benefits to the owners from the covenants and had rendered the restrictions inequitable. We therefore consider the facts and holding of Laney inapposite to the situation which we today appraise.

Turning to the older cases cited by appel-lees, Thrasher and Matthews, both of these decisions are noted in 4 A.L.R.3d 570 (1965) as authority for the traditional view with respect to a grantor’s reservation of the right to revoke or amend restrictive covenants, stated as follows:

“Contractual provisions relating to revocation or modification of covenants restricting the use of real property frequently give the power to amend or terminate the restrictions to the original owner or subdivider of a tract, occasionally with the ‘consent’ of the owner of the particular lots as to which the restrictions are to be revoked or altered. Various problems of interpretation arise in connection with such provisions, but it may be observed, generally, that agreements of this kind are usually regarded as personal covenants which can be exercised only by the one who imposed the restrictions originally and, in some instances, by his successors. The existence of this reserved right in the original owner has usually been regarded as negativing any suggestion that the restrictions were imposed with the intention of creating a general or neighborhood plan of develop- ' ment for the benefit of all of the owners in the area. Likewise, where the owner imposed the restrictions and reserved to himself the right to amend or nullify them, it has been held that he was under no obligation to restrict, in any manner, other lands owned by him in the area, irrespective of whether or not they were later sold.”

4 A.L.R.3d at 573-574.

It is important to note that this view is premised on the notion that restrictive covenants accompanied by the retained right in the grantor to revoke or amend them are personal in nature, as opposed to covenants running with the land. The rationale for considering these covenants personal in nature is that the reservation in the grantor of the power to revoke or amend destroys the mutuality or reciprocity of the restrictions. Gibney v. Stockdale Corp., 20 Del.Ch. 272, 174 A. 117 (1934); Suttle v. Bailey, 68 N.M. 283, 361 P.2d 325 (1961); Brighton by the Sea v. Rivkin, 201 A.D. 726, 195 N.Y.S. 198 (1922).

In the approximately 40 years since Thrasher and Matthews were decided, several courts, including this one, have adopted a more enlightened and realistic perspective when reviewing transactions between land developers and individual lot purchasers involving restrictive covenants. Most marked for our purposes is the following recitation from Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962):

“In Scheuer v. Britt, 218 Ala. 270, 118 So. 658, we quoted with approval the following from 4 Thompson on Real Prop., § 3398:
“ ‘ “Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots, and conveying these with uniform restrictions as to the purposes for which the lands may be used, such restrictions create equitable easements in favor of the owners of the several lots, which may be enforced in equity by any one of such owners. Such restrictions are not for the benefit of the grantor only, but for the benefit of all purchasers. The owner of each lot has as appurtenant to his lot a right in the nature of an easement upon the other lots, which he may enforce in equity.
“ ‘ “Whether such restriction creates a right which inures to the benefit of purchasers is a question of intention, and to create such right it must appear from the terms of the grant, or from the surrounding circumstances, that the grantor intended to create an easement in favor of the purchaser.” ’
“We further stated:
“ ‘In such cases the equitable right to enforce such mutual covenants is rested on the fact that the building scheme forms an inducement to buy, and becomes a part of the consideration. The buyer submits to a burden upon his lot because of the fact that a like burden is imposed on his neighbor’s lot, operating to the benefit of both, and carries a mutual burden resting on the seller and the purchasers.’ [Emphasis in original.]
“Quoting from an earlier case (McMahon v. Williams, 79 Ala. 288, p. 291) we again approved the above principal [sic] in the following language:
“ ‘ “One of the most practical tests, supported by common sense and common business experience, is, whether the restriction imposed by the grantor or proprietor upon the granted premises would naturally operate to enhance the value of his adjacent premises, whether retained by him or conveyed to another. If this be so, it is a strong circumstance to indicate that the restriction was not intended for the mere personal benefit of the grantor, but as a permanent servitude beneficial to the owner of the land, whoever he may be, and appendant to the premises. * * * The inquiry, in these cases, has generally been, whether the servitudes or restrictions imposed were of such a nature as to operate as an inducement to purchasers; and, if so, the inclination of the courts has been to construe them as appurtenant to the estate, and intended for its protection, rather than personal to the grantor. If appurtenant, it of course follows the land, being assignable with it, and each grantee can enforce it in equity against each other grantee having notice of it.” ’ Virgin v. Garrett, supra. [233 Ala. 34, 169 So. 711].
“Appellees contend that the reservation by the grantor of the right to change or modify the restrictions as to any lot in Redmont Park negates any intention to benefit the lands of other owners. We cannot agree with this contention. To do so would be to construe this language as indicative of his intention to the exclusion of all other language in the deed and all surrounding circumstances. We have in the past given effect to restrictions contained in deeds at the instance of grantees of lots in subdivisions where the grantor had expressly reserved the right to waive, release or annul the restrictions contained in the plot and conveyance. Thrasher v. Bear, 239 Ala. 438, 195 So. 441. It seems to us that the power to change the restrictions is only one factor to be considered in determining the intention of the grantor to give the right of enforcement of the restrictions. All language of the deed should be considered in arriving at the grantor’s intention.” (Emphasis added.)

The holding of Hall v. Gulledge was noted with approval, as the modern view, by our sister state of Florida in Loch Haven Homeowners’ Ass’n, Inc. v. Nelle, 389 So.2d 697 (Fla.App.1980); wherein that court said:

“. . . Courts initially viewed the reservation of a power to amend restrictions as negating the existence of a general scheme or plan of development and, accordingly, held that restrictions subject to such a reserved power are not enforceable by one remote grantee against another. . . .
“The more modern judicial attitude— and the one we adopt — is that the reservation of the right to amend restrictions is only one factor to be considered in determining whether the grantor intended to establish a uniform plan of development, and that all language of the restrictions should be considered in arriving at the grantor’s intention. Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962). [Other citations omitted.]”

In another case from that jurisdiction, Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665 (Fla.App.1974), the Florida court was faced with a fact situation almost identical to that which we confront in this case. The successor to the original developer of a residential subdivision sought to amend restrictive covenants, initially imposed to insure “the development of the lands as a residential area of high standards,” to permit a portion of the property to be used for business purposes. Amendment of the restrictions was attempted by virtue of a clause in the conveying instruments which reserved to the developer the right to alter, amend, repeal or modify them at any time, in its sole discretion. On appeal, the court did not step as far as the trial court, which had declared the reservation of the right to amend null and void, but rather adopted a more reasonable and equitable position, which we approve. It is stated thus:

“In the case of Johnson v. Three Bays Properties #2, Inc., Fla.App.1964, 159 So.2d 924, at 925, 4 A.L.R.3d 565, the court, though not squarely faced with the issue, stated in a footnote:
“ ‘1. It is well recognized that where a grantor reserves the right to alter, modify or change restrictive covenants, he may do so without the consent of the grantee. 14 Am.Jur., Covenants, Conditions and Restrictions, § 292; 26 C.J.S. Deeds § 168. See also Matthews v. Kernewood, Inc., (1945), 184 Md. 297, 40 A.2d 522; Bright v. Forest Hill Park Development Co., (1943), 133 N.J. Eq. 170, 31 A.2d 190; Thrasher v. Bear, (1940), 239 Ala. 438, 195 So. 441.’
“In the cited case, the court also stated in its opinion, however, a recognized limitation on this right in the following language:
“ ‘Appellants are entitled to protection against an unreasonable diminution of the building requirements of the subdivision . . . . ’ [Emphasis supplied in Flamingo.]
“As stated in 7 Thompson, Real Property, Section 3171, at 188:
“ ‘A court of equity will not enforce restrictions where there are circumstances that render their enforcement inequitable . . . . ’
“In a sense, there is an inherent inconsistency between an elaborate set of restrictive covenants designed to provide for a general scheme or plan of development (generally considered to be for the benefit of the respective grantees), and a clause therein whereby the grantor reserves to itself the power at any time in its sole discretion to change or even arbitrarily abandon any such general scheme or plan of development (a power which is solely for the benefit of the grantor). When such occurs, as it has in this case, rules of construction require that clauses which are apparently inconsistent with or repugnant to each other be given such an interpretation and construction as will reconcile them, if possible. 7 Fla.Jur., Contracts, Section 91.
“In the instant case, this can be done by reading into the reservation clause a requirement of reasonableness, much as suggested by the court in Johnson v. Three Bays Property, supra. We hold, therefore, that the clause in the Declaration of Restrictions, which reserves to the owner ‘the right to alter, amend, repeal or modify these restrictions at any time in its sole discretion’ is a valid clause so long as it is exercised in a reasonable manner as not to destroy the general scheme or plan of development.” (Emphasis added.)

303 So.2d at 666.

The recorded declaration, in the case at hand, contained the provision that “[s]aid covenants, restrictions, and limitations shall run with the land and be binding on all parties and all persons claiming under them. . . . ” Although the technical language employed in the conveying instrument is not controlling in an equitable inquiry, as the one in which we are here engaged, the assertion in such an instrument that restrictive covenants are to run with the land has been cited as a significant factor in determining that a grantor intended a general scheme or plan of development, so that he could only amend the restrictions in a reasonable manner consistent with that scheme or plan, despite broad language in the clause reserving to the developer the right to amend, modify or repeal the restrictions. Golian v. Polhironakis, 390 So.2d 187 (Fla.App.1980). See also Hall v. Gulledge, supra.

Furthermore, the uncontroverted evidence advanced by plaintiffs was that they were induced by, and relied upon, the restrictive covenants when purchasing their respective lots in Cypress Shores, and construction of a convenience store on Lot 46 would result in a significant reduction in value of those lots.

Given these facts, we conclude that the declaration of “Covenants, Restrictions and Limitations” recorded by Cypress Shores Development Company, in light of the surrounding circumstances, was intended by the company to create a general scheme or plan of development with restrictions benefiting all owners of land within Cypress Shores.

We further note that the Architectural Control Committee, in which the right to annul, cancel, modify or amend is reserved, is comprised only of officers of the developing company, and will continue to be so constituted under the terms of the recorded declarations. Viewed realistically, the actions of the Committee are, no more or less, actions of the developer and are treated as such in this case. However, even where an architectural control committee is not the alter ego of the developer, the exercise of its powers has been held subject to a standard of reasonableness. In 4626 Corporation v. Merriam, 329 So.2d 885 (La.App.1976), the court stated:

“Since the subdivision’s founders did not choose to limit the power of the committee by setting forth guidelines or standards, the inference is that the validity of the committee’s enforcement of the restrictions must be judged by the reasonableness of its actions.”

Having determined from the recorded declaration of “Covenants, Restrictions and Limitations,” and from the surrounding circumstances, that Cypress Shores Development Company intended to create a general scheme or plan or development for Cypress Shores — Unit Four (Subdivision), we hold the reservation of the right to annul, cancel, amend or modify the restrictive covenants could only be exercised by the Architectural Control Committee in a reasonable manner consistent with that general scheme or plan of development. Amendment or cancellation of the restrictions so as to permit the construction of a convenience store on Lot 46 was, we hold, an unreasonable exercise of the Committee’s authority and highly inconsistent with the general scheme or plan of development upon which plaintiffs relied when purchasing their lots, and was therefore null and void. Accordingly, the judgment of the trial court is due to be and is hereby reversed and this case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

TORBERT, Chief Justice

(dissenting).

Appellants “by virtue of becoming [an] owner [‘in that certain subdivision known as ‘Cypress Shores’ and being designated as UNIT NO. 4’] ... agree[d] with Declarants [Appellees] . . . that the following covenants, restrictions and limitations shall apply to said subdivisions

“1. Use. All lots in said subdivision shall be known and designated as residential lots . . . [and the Architectural Control Committee] may waive any one or more of the covenants, restrictions, limitations or requirements herein specified by an instrument in writing signed and acknowledged by a majority of the members comprising such committee . . . . ”

This agreement by the parties bound both the appellants and appellees to the restrictive covenant and the waiver process. The majority opinion allows appellants to overrule a decision by the Architectural Control Committee, contrary to this agreement, because the majority believes that the committee’s actions were unreasonable. While the ambiguity of the clause establishing the waiver process was held to be a proper basis for judicial review in Schmidt v. Ladner Construction Co., 370 So.2d 970 (Ala.1979), it is my view that the “reasonableness” of the committee’s decision because of its contractual nature should not be the basis for review by a court:

“The grantor of parcels in a land development has the right, by appropriate provisions in conveyances, to reserve to himself the power to deal freely with restrictions in succeeding conveyances — to vary, modify or omit them altogether. Where a grantor does reserve such right to alter, modify, or change restrictive covenants, he may amend the covenants without the consent of the grantee, and under a provision authorizing a subdivider, in its sole discretion, to modify, amend, or add to restrictive covenants, the subdivider can adopt new covenants that are either more or less restrictive than the original covenants. A grantor’s retention of the right to make exceptions to the restrictions imposed is valid, and hence grantees who purchased with notice of such right cannot complain when exceptions are made pursuant to the powers retained; that is, after a waiver or modification of the restrictions by the grantor, they are no longer enforceable, or are no longer enforceable in their original form, as the case may be.”

20 Am.Jur.2d Covenants, Conditions, & Restrictions § 270 (1965) (footnotes omitted). See, Matthews v. Kernewood, Inc., 184 Md. 297, 40 A.2d 522 (1945).

This Court has previously upheld the modification of a restrictive covenant where the grantor expressly reserved all of his rights and those of his personal representatives to waive, release or annul the restrictions contained in the conveyance. Thrasher v. Bear, 239 Ala. 438, 195 So. 441 (1940). While the majority relies on Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962), to support its decision, a careful reading of Hall reveals that this Court was discounting the argument by the grantor that the grantees had no standing to enforce restrictive covenants. There was no evidence presented that the grantors followed any modification or alteration of the restrictive covenants procedure as set out in the original conveyance. The only issue was the standing of the grantees to enforce restrictive covenants against subsequent grantors; thus, reliance on the case to support the majority opinion is misplaced.

In Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451 (1973), the successor to the grant- or relinquished its right to waive, modify or annul restrictive covenants contained in deeds theretofore conveying lots. Thus, when the grantor’s successor tried to erect a condominium when buildings of this type were restricted by deed, this Court allowed the grantees to enforce the restriction. The relinquishment of the rights by the grant- or’s successor was the focal point of the Court’s decision; there was no indication that the same result would have been reached if the successor’s rights had not been waived.

None of our cases supports the “reasonableness test” implemented by the majority. Instead, our cases support the proposition that if a grantor waives a restriction pursuant to a reservation of this power in the deed, this waiver is valid and binding on the parties. Because the majority departs from upholding a valid exercise of contractual power, I must dissent.

MADDOX, J., concurs.


author: ADAMS, Justice.

text:
    Khomer BEATY, et al. v. HEAD SPRINGS CEMETERY ASSOCIATION, INC.
    80-452.
    Supreme Court of Alabama.
    April 30, 1982.
    Carleton P. Ketcham, Jr. and J. Fred Wood, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellants.
    Charles M. Scott, Fort Payne, for appel-lee.
   ADAMS, Justice.

This appeal comes to us from the Circuit Court for DeKalb County. Head Springs Cemetery Association, Incorporated (plaintiff), commenced an action on August 31, 1979, against Khomer. Beaty, Betty Jean Beaty, and members of the Head Springs Primitive Baptist Church of Christ (collectively we will refer to the Beatys and members of their church as “defendants”). Plaintiff sought a declaratory judgment decreeing that defendants had no interest in certain disputed property, an injunction prohibiting defendants from using the property, and an award of damages against them. The trial court, sitting without a jury, heard the testimony and held that plaintiff was the record title holder to all the property except the church and one acre upon which it is located. As to the church and its one acre, the trial court found that defendants had better title than did plaintiff. Defendants timely sought post-judgment relief under Rule 60(b)(2), Alabama Rules of Civil Procedure, alleging newly discovered evidence. The trial court denied defendants their requested relief. This appeal then followed.

The dispositive issue on this appeal is whether the trial court abused its discretion in denying defendants’ Rule 60(b)(2) motion. We hold that it did not, and we, therefore, affirm.

Khomer Beaty is the pastor and moderator of the Head Springs Primitive Baptist Church of Christ (church). His wife, Betty Jean Beaty, is the clerk. Reverend Beaty testified that he began the church in 1977, with a membership consisting of his wife, their two daughters and him. At trial, Rev. and Mrs. Beaty represented themselves and the church. An attorney did not appear for the defendants until after the Beatys filed their Rule 60(b)(2) motion.

Plaintiff is a non-profit corporation. Witnesses on behalf of plaintiff testified that it and its predecessor is an organization that cares for the cemetery and church building located on the disputed property. Plaintiff contends that its title to the property derives from the trustees of a cemetery organized about 1900, and also by prescription and adverse possession. At trial plaintiff introduced into evidence a deed in support of its claim. The deed was executed on October 21, 1908, by Fred G. Lockwood and Lora Lockwood to trustees for the cemetery. It was not recorded until June 9, 1931. Apparently, the description in the deed encompassed part of the disputed property.

After judgment was entered, defendants found a deed which they contend vests title in them to a larger part of the property. The newly discovered deed was also executed by the Lockwoods on October 21, 1908, and also recorded on June 9, 1931. This deed conveyed part of the property in dispute to trustees for the Head Springs Primitive Baptist Church (a different entity from Head Springs Cemetery Association, Incorporated). The newly discovered deed was recorded in the DeKalb County Probate Court in book 69, page 577, just one page before the Lockwood deed relied upon by plaintiff at trial. In preparation for trial the Beatys had conducted their own title search in spite of the fact that they were unfamiliar with the procedure for searching titles. At the hearing on the Rule 60(b)(2) motion, Rev. Beaty acknowledged on cross-examination that prior to trial he was aware of the deed relied upon by plaintiff.

Q. And, getting back to this last deed that your attorney mentioned, the deed from Fred Lockwood and his wife to some people, purporting to be trustees, as you said, of the cemetery, or for cemetery purposes. Now, that particular deed, I believe you said, was on the next page to the one you offered as Exhibit A today, is that right?
A. Yes.
Q. And, that deed, then, or a copy of it, you had been furnished in the preliminaries leading up to the trial?
A. Yes, sir.
Q. When you all, as defendants, requested that me and my clients furnish you with whatever we were going to use, is that correct?
A. Yes, sir.
Q. And, you had in possession, well before trial, a deed, or a copy of a deed from the Lockwoods to the cemetery, showing not only when the deed was made, but who signed it, and when and where it was recorded?
A. Yes, sir.
Q. And, did you following that, following the time that you were given that deed, did you then go and search the records to see if the Lockwoods had made any other deed?
A. I had no reason to believe the Lock-woods had.
Q. Did you do that?
A. Subsequent to the trial I did.
Q. But, you didn’t do it before the trial?
A. No, sir.
Q. But, you learned at that time that the Lockwoods did own the property, or some property in the neighborhood where the church and cemetery is that is in controversy?
A. No, sir, not — I learned that the Lock-woods had their name on this deed, but I had no reason to believe they owned any other land.

On this appeal defendants argue that their Rule 60(b)(2) motion was due to be granted because the newly discovered deed established title in them to part of the disputed property. Defendants also argue, in effect, that their title search was diligent and that they should be excused for their inability to find a deed not recorded until 23 years after its execution. Assuming, without deciding, that the newly discovered deed would vest title to part of the property in defendants which was held by the trial court to belong to plaintiffs, we cannot agree that defendants were diligent in discovering the deed upon which they rely. In pertinent part, Rule 60(b) provides:

Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ....

It has been said that “the burden is on the moving party to show that he has such ‘newly discovered’ evidence and why through due diligence it was not discovered in time to seek a new trial under Rule 59, ARCP.” Gallups v. United States Steel Corporation, 353 So.2d 1169 at 1172 (Ala.Civ.App.1978), citing Plisco v. Union R.R., 379 F.2d 15 (3d Cir. 1967). “Motions to set aside judgments on the basis of newly discovered evidence are not favored.” Garland v. Garland, 406 So.2d 415 (Ala.Civ.App.1981); Hudson v. Hudson, 404 So.2d 82 (Ala.Civ.App.1981); Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.1978). The grant or denial of a motion under Rule 60(b), A.R.C.P., is discretionary with the trial court and we will not disturb its judgment on appeal absent an abuse of that discretion. City of Daphne v. Caffey, 410 So.2d 8 (Ala.1981); Pierson v. Pierson, 347 So.2d 985 (Ala.1977); Garland v. Garland, supra; Hudson v. Hudson, supra.

The instant facts lack a showing of diligence by the Beatys. Although the deed upon which they rely was recorded 23 years after its execution, that fact alone would not excuse them for failing to find it before trial. Had they searched the direct (grant- or) index, they would have located it. But a more compelling reason establishing their lack of diligence is the fact that they were aware the Lockwoods executed at the same time another deed (relied upon by plaintiff) affecting a part of the disputed property, which was not recorded until 23 years later in 1931. In fact, as noted above, the two Lockwood deeds were recorded on consecutive pages in the same book. Under the circumstances, we cannot say that the trial court abused its discretion in denying defendants’ motion. We affirm its judgment.

Next, we observe that plaintiff purports to appeal from that part of the trial court’s judgment encompassing the finding that defendants had a better right to possession of the church and its acre. Our review of the record reveals that plaintiff never perfected an appeal. Therefore, it cannot argue for relief from that part of the trial court’s judgment which is adverse to it. In the absence of taking an appeal, an appellee may not cross-assign error. Mutual Savings Life Ins. Co. v. Montgom ery, 347 So.2d 1327 (Ala.1977); Boswell v. Samson Banking Company, 368 So.2d 547 (Ala.Civ.App.1978), cert. denied, 368 So.2d 552 (Ala.1979).

Similarly, we decline to consider defendants’ arguments concerning the trial court’s judgment of April 21, 1980, in which it rendered a decision on the merits of the case. Defendants did not appeal until March 31, 1981. That was beyond the 42 day time limit for perfecting an appeal under Rule 4, Alabama Rules of Appellate Procedure. Their appeal was timely only as to the trial court’s judgment on the Rule 60(b)(2) motion. That judgment was rendered on February 17, 1981. An appeal from the denial of a Rule 60(b) motion does not bring up for review the correctness of the underlying judgment. City of Daphne v. Caffey, supra; American Home Assurance Company v. Hardy, 378 So.2d 710 (Ala.1979); McNutt v. Beaty, 370 So.2d 995 (Ala.Civ.App.1978), rev’d on other grounds, 370 So.2d 998 (Ala.1979); Marsh v. Marsh, 338 So.2d 442 (Ala.Civ.App.1976).

AFFIRMED.

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


author: PER CURIAM.

text:
    James OTT v. Jack W. SMITH, et al.
    80-598.
    Supreme Court of Alabama.
    April 30, 1982.

      Allen W. Howell, Montgomery, for appellant.
    Thomas H. Keene of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellees.
   PER CURIAM.

Plaintiff, James Ott, filed an action for legal malpractice against his former attorneys, Jack and Earl Smith. A jury found in favor of the defendants and plaintiff appeals. This action arises from a previous action filed by Phyllis Fox against Ott for the wrongful repossession and conversion of a night club, the corporate stock of the night club, and the furniture and fixtures on the premises of the night club, and for the wrongful eviction of Fox from the premises, in which action she recovered a judgment for $103,346.00. That judgment was affirmed by this Court in Ott v. Fox, 362 So.2d 836 (Ala.1978). Subsequently, Ott filed suit against these defendants, his former attorneys. We affirm.

The initial action followed a sale of the Flamingo Club by James Ott to Phyllis Fox and Phyllis Schidler. The sale involved a lease-purchase agreement covering furniture and fixtures and a lease on the building itself. These agreements included cross-default provisions to allow Ott to reclaim possession of the premises if payments were not timely made. Fox later bought Schidler’s interest in the night club, but she became delinquent in the payments due Ott. Ott accepted the late payments for some time, but in one month when the payments were later than usual, Ott evicted Fox and repossessed the fixtures, furniture, stock, and night club. Fox then sued Ott and obtained the $103,346.00 judgment previously mentioned.

Ott brought this action against his attorneys, Jack Smith and Earl Smith, alleging:

(1) the attorneys failed to disclose a serious conflict of interest in that Jack Smith was allegedly sexually involved with Phyllis Fox; (2) the attorneys failed to show that Fox did not own the furniture and fixtures allegedly converted, but that they had been owned by a corporation, thus depriving Fox of standing to sue for their conversion, and that any attorney exercising ordinary care and skill would have found existing authority to support this contention; (3) the attorneys negligently failed to show that the corporation had no value and thus no damages should have been awarded for its wrongful conversion; and (4) the Smiths failed to present and prosecute a compulsory counterclaim against Fox for deficiencies under the lease and security agreement.

On appeal, appellant presents a multiplicity of issues. The first issue to be decided is whether the trial court erred in granting the defendants’ motion for a directed verdict as to the wanton misconduct count. Plaintiff charged that the defendants were guilty of wanton conduct in their professional duties by failing to inform the plaintiff of Jack Smith’s “intimate involvement” with Phyllis Fox, which, plaintiff says, prevented the defendants from faithfully representing the interests of James Ott in the initial court action. At the present trial, Jack Smith vehemently denied any involvement with Fox and at the conclusion of testimony moved for a directed verdict. The defendants’ motion stated in pertinent part:

“Comes now the Defendant SMITH AND SMITH, a partnership, and moves this Court to direct a verdict in their favor, and as grounds, therefor states the following:
“2. There is no evidence of reckless or wanton misconduct which proximately caused the verdict to be returned against Mr. Ott in the Fox vs, Ott trial.”

At trial the court initially denied the motion for a directed verdict, but when asked by defendants’ counsel whether this denial included both the negligence and wantonness counts, the court replied that this was only for the negligence count and that the court believed there was no evidence as to wantonness, and the court granted a directed verdict on that issue. Appellant now contends that this was error, alleging that the defendants did not specifically move for a directed verdict on the wanton counts in any of their motions as required by Housing Authority of the City of Prichard v. Malloy, 341 So.2d 708 (Ala.1977). In that case, this Court stated:

“[A] general motion for a directed verdict, pursuant to Rule 50, can only go to the case in its entirety, and not to individual subdivisions; and, to preserve individual issues, a motion must be made for a verdict directing instruction on each of the individual issues.”

341 So.2d at 709-10. As shown above, however, the defendants’ motion for directed verdict specifically states in ground number two that no evidence of wantonness exists and requests a directed verdict for that reason. All other grounds listed dealt with the plaintiff’s negligence count. Likewise, the request was orally made in open court for a directed verdict on the wantonness count. We believe that these factors in combination were sufficient requests for a directed verdict. Furthermore, at the time the motion was granted, the attorney for the appellant did not interpose a proper objection to the adverse ruling. It is a well settled rule that a party who fails to object to alleged errors at the trial level may not raise these alleged errors for the first time as the basis for an appeal. Holt v. Davidson, 388 So.2d 548 (Ala.1980); Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979). An objection must be made and a ground stated therefor, or the objection and alleged error are deemed to have been waived. Thus, we cannot say that the trial court erred in respect to this issue.

Appellant also alleges as error that the trial court erred in refusing to allow the reading into evidence of the deposition of Bonnie Pass. The appellant’s complaint alleged that Jack Smith engaged in illicit and immoral activities during the evening between the two days of the Fox v. Ott trial. The deposition of Bonnie Pass, which was appellant’s only evidence on that issue, was found by the trial court to be irrelevant. In the deposition, Bonnie Pass stated that she and Jack Smith had spent two to three hours together the night between the first and second day of the Fox v. Ott trial, that they had gone to a motel room, had a couple of drinks, and had sex. On cross-examination, however, this testimony was severely weakened by the fact that she did not know what motel was involved, what time of night the alleged rendezvous occurred, what day it took place, or any of the details of the meeting. Finally, when questioned about her whereabouts around Thanksgiving, 1977, the time of the Fox v. Ott trial, she stated that she was in North Carolina with a' boy friend.

It is the rule in Alabama that the trial court may exclude evidence, even though it is relevant, when it would serve little or no purpose except to arouse the passion, prejudice, or sympathy of the jury. Whether such evidence should be excluded is largely within the trial court’s discretion. Valley Mining Corp. v. Metro Bank, 383 So.2d 158 (Ala.1980); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961). In addition to the fact that the testimony was questionable, plaintiff offered absolutely no evidence to show that these alleged acts affected Jack Smith’s performance at trial the following day. The trial judge properly exercised his discretion and we cannot say that to exclude this testimony was an abuse of discretion.

Appellant further alleges that in instructing the jury the trial court erred in giving three of defendants’ requested charges and in refusing five of plaintiff’s charges. Defendants’ charges thirteen and twenty-two related to contributory negligence. Appellant contends that contributory negligence did not apply in this situation, yet the plaintiff likewise requested a similar charge on contributory negligence. We find no error in these charges.

Defendants’ requested charge seventeen dealt with the right of conversion upon interference with mere possession of chattels, as embodied in Code 1975, § 6-5-261. This charge stated:

“I charge you that an action for conversion such as that brought by Phyllis Fox against James Ott can be brought by the owner of personal property or by one who is in the mere possession of personal property even if that person in possession of personal property does not have title to the property. If you are reasonably satisfied from the evidence in this case that Phyllis Fox was a proper party to maintain the conversion action against James Ott and to recover for the items sued for, then I charge you that no motion or other action by Jack and Earl Smith would have been successful in the case filed by Phyllis Fox against James Ott.”

Appellant contends, however, that the charge ignores the conflict of interest alleged in plaintiff’s ease and fails to take into account defendants’ failure to set up and prosecute a compulsory counterclaim for the plaintiff in Fox v. Ott. This contention is without merit. The charge was accurate, predicated upon the jury’s believing in Fox v. Ott that either Fox owned the property or was in possession of the property-

Plaintiff Ott also contends that it was error to refuse to give plaintiff’s requested charge thirty-two, which stated that an attorney is liable for the consequences of ignorance or non-observance of the rules of practice of the courts in which he practices. This charge, however, was adequately covered by plaintiff’s charge thirty-three. Refusal to give a requested jury charge is not error where the refused charge was fairly and fully covered by another given charge. Jefferson Standard Life Insurance Co. v. Pate, 290 Ala. 110, 274 So.2d 291 (1973).

Plaintiff’s requested charge thirty-six was also denied by the trial court. Appellant contends that this charge covered an important part of his case: That the defendants failed to prosecute the compulsory counterclaim until the case reached court so as to preclude any possible recovery on that claim. This charge provided:

“Plaintiff, Mr. Ott, also claims that the Defendants failed to file on his behalf a counterclaim against Mrs. Fox for the unpaid sums of money due under the lease and the security agreement. It is clear that no such counterclaim was ever filed. The Defendants, however contend that Mr. Ott told them that Mrs. Fox owed him nothing or that they in their judgment decided that it would not be wise to file such a counterclaim. If you decide that the Defendants did not exercise their judgment in good faith in not filing such a counterclaim or that they disregarded the instructions of Mr. Ott in not filing such a counterclaim, you must then go to the question of whether or not Mr. Ott would have won on his counterclaim. If you decide both of these issues in favor of Mr. Ott, you should then determine how much Mr. Ott would have been able to recover and collect and assess that sum against the Defendants as damages, in addition to any other damages, if any, that you may find Mr. Ott is entitled to under the evidence of the case.” [Emphasis supplied.]

This charge is defective in that it does not properly set out the elements of a legal malpractice claim. In Herston v. Whitesell, 348 So.2d 1054 (Ala.1977), an action for legal malpractice was defined as a negligence case. To recover in an action against an attorney in his professional capacity for negligence, a plaintiff must prove a duty, a breach of the duty, that the breach was the proximate cause of the injury, and damages. 348 So.2d at 1057. The duty an attorney owes his client is to use “reasonable care and skill” in managing the business of his client. Goodman v. Walker, 30 Ala. 482 (1857). This applies to the manner in which the attorney pursues the case and the law he applies to the case. The charge proposed here does not follow the law as it has been set out by this Court in the above cases and, therefore, the proposed charge was properly refused.

Appellant’s requested charges forty and forty-one dealt with conversion. They were both long and confusing, as well as contrary to the law in Alabama. Refusal of a written charge is proper when it is abstract, misleading, confusing, or when not all facts hypothesized in the charge could be inferred from the facts proven. Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968); Harris v. Martin, 271 Ala. 52, 122 So.2d 116 (1960).

Finally, appellant’s requested charge forty-two would have charged the jury on how to fix the value of the stock of a closely held corporation. Appellant contends that the refusal to give this charge caused the jury to speculate as to the value of the corporate stock. The valuation of closely held corporate stock was, however, presented to the jury on several theories by six expert witnesses. The issue was a factual one for the jury to decide and appellant’s charge would have bound the jury to use the method propounded by plaintiff’s experts. Thus, refusal to give plaintiff’s requested charge forty-two was correct.

The next issue raised by the appellant is that Jack and Earl Smith should have been estopped from claiming that Phyllis Fox owned the furniture and fixtures seized by Ott in the initial action. In this case, appellees state that Fox owned the furniture and fixtures and thus had standing to sue in the first case. At trial, in the initial case, however, Fox made several statements tending to show that the corporation owned the property. As a result, appellant alleges, defendants should be estopped from claiming that Fox was the owner, under the theory that a party who has knowledge of the facts and has assumed a particular position in judicial proceedings, is estopped to assume a position inconsistent therewith in a subsequent suit. Hartley v. Alabama Nat. Bank of Montgomery, 247 Ala. 651, 25 So.2d 680 (1946). While counsel for the appellant sets forth a good argument for this proposition, we cannot agree. Much of the testimony of Phyllis Fox in the Fox v. Ott trial, now relied upon by appellant, actually involved the wording of questions by defendants to try to get Fox to admit that she did not own the furniture and fixtures. Other testimony by Fox clearly indicated her ownership. Furthermore, the jury, in Fox v. Ott, concluded that Fox did, in fact, own the furniture and fixtures, so as to have standing to sue. Irrespective of who owned the chattels, however, the law in Alabama is clear that to support an action for conversion, there must be a concurrence of the right of property, be it general or special, and possession or an immediate right of possession. Stathem v. Ferrell, 267 Ala. 333, 101 So.2d 546 (1958). See also, Code 1975, § 6-5-261 (giving a right of action for conversion to a person with mere possession). Therefore, outright ownership is not essential to support an action for conversion. According to the testimony given, both in Fox v. Ott and by the expert witnesses in this action, we believe that there was sufficient evidence for a jury to find that Phyllis Fox did have standing to sue for the conversion of the furniture and fixtures, and that no estoppel would work here against the defendants.

Appellant contends that the trial court also erred in submitting to the jury the issue of contributory negligence. Appellant states that it is rarely proper for such á defense to be allowed in an attorney malpractice case, because the relationship between the attorney and client is a fiduciary one and of a confidential nature. Appellant further contends that contributory negligence has been allowed only (1) where the client was also an attorney and/or otherwise insisted on active participation in the conduct of the case, (2) where the client failed to follow the attorney’s advice or-instructions, and (3) where the client fails to disclose all relevant facts to the attorney. Appellant states that none of these three instances applies here. We cannot agree with that contention. In this case, defendants contended that James Ott did not follow their advice, but rather acted on his own accord in repossessing the premises in most of the particulars involved. Defendants also contend that Ott denied under oath in Fox v. Ott, against their advice and instructions, that he had given prior sworn testimony, which denial severely prejudiced the jury’s impression of him and damaged his credibility. These allegations are sufficient to allow the defense of contributory negligence in this action.

In Theobald v. Byers, 193 Cal.App.2d 147, 13 Cal.Rptr. 864 (1961), the California Court of Appeals discussed in detail the rationale for permitting contributory negligence in attorney negligence cases. That court stated:

“The rule is well established that an attorney is liable to his client for negligence in rendering professional services. The courts have consistently held that liability will be imposed for want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise.... The lawyer can thus properly be classified with members of various other professions who are considered to possess knowledge, skill or even intelligence superior to that of an ordinary man and are, as a consequence, held to a higher minimum standard of conduct. . . . Doctors and dentists are held to this higher standard of care and their services can also be said to be of a fiduciary and confidential nature. Hence it would seem clear that similar rules of law would be applicable to all three professions. In actions against doctors and dentists for medical malpractice, courts have held the doctrine of contributory negligence to be a proper defense.... A patient will thus be barred from recovery for medical malpractice where the patient has disobeyed medical instructions given by a doctor or dentist or has administered home remedies to an injury without the aid of medical advice. There would seem to be no reason whatever why the same rule should not be applicable in a legal malpractice action where there is evidence that a client chose to disregard the legal advice of his attorney. In our opinion, any other rule would be grossly unfair.”

193 Cal.App.2d at 150, 13 Cal.Rptr. 864. In an action against an attorney for negligence in executing his professional duties, the elements are essentially no different from those of any other negligence suit. To recover, the party seeking damages must prove a duty owed, a breach of that duty, that the breach was the proximate cause of the injury, and damages. Malloy v. Sullivan, 387 So.2d 169 (Ala.1980); Herston v. Whitesell, 348 So.2d 1054 (Ala.1977). As stated by the California Court of Appeals in Theobald, we see no reason why contributory negligence should not be applicable in a legal malpractice action where the client has failed to follow the attorney’s advice or instructions.

We have carefully considered the remainder of appellant’s contentions and have found them all to be without merit. The trial court properly directed a verdict against the plaintiff on the wantonness count and properly submitted all other issues to the jury. Since we find no error in the decision of the trial court, this case is due to be affirmed.

AFFIRMED.

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

      . There was, in fact, a conflict in the evidence as to whether Ott had a valid counterclaim to assert. Defendants testified that in light of the great amount of money Ott had collected from Fox before repossession, Ott had agreed with the Smiths not to assert his possible claim for money owed on the sale of the night club, since such a claim might inflame the jury. Furthermore, in Fox v. Ott, Ott testified that in return for allowing him to repossess the club, he and Fox had “called it even.”


author: FAULKNER, Justice.

text:
    Donald Lawrence HENSON v. Ruth Angela McDONALD.
    80-664.
    Supreme Court of Alabama.
    April 30, 1982.

      Vanzetta Penn Durant, Montgomery, for appellant.
    R. Howell Dean, Montgomery, for appel-lee.
   FAULKNER, Justice.

Donald Lawrence Henson, defendant below, appeals from a judgment rendered in an ore tenus case against him for wrongful detention of property, in favor of Ruth Angela McDonald. Henson asserts here that Mrs. McDonald’s claim fails to state a cause of action; that the court erred in failing to join an allegedly indispensable party, and in admitting Mrs. McDonald’s property inventory into evidence; and that the judgment is not supported by the evidence. We find no merit in these contentions and affirm.

Dr. Zenas McDonald, Mrs. McDonald’s son, lived with Henson in Henson’s house in Montgomery for about six months. When he moved out he took some personal effects with him in his car, but left behind other property, including a bedroom suite, a refrigerator, a washer and dryer, at least one stereo, other furniture, china, crystal, etc. Henson rented a storage space and moved some of this property into it, but took a good deal of it with him when he moved from his house to another, also in Montgomery.

About a year after he left Henson’s house, Dr. McDonald died of a heart attack and Mrs. McDonald began trying to retrieve this property from Henson. She had loaned much of it to her son in 1971 and at that time made a detailed list of the items which he took from her home. Henson was elusive, neither taking nor returning her calls, and he was uncooperative, refusing to let her into his house. At one point he did meet her at the place where he had some of Dr. McDonald’s property stored, but Mrs. McDonald testified that she recovered only some medical books, an empty filing cabinet in which Dr. McDonald had stored valuables, and other inconsequential items. Some time after this she went to Henson’s house. Although she did not find him at home she saw through the windows that much of her furniture was in use.

Henson testified that he had never seen many of the items on the list; further, that Dr. McDonald had not paid him any rent; and that, to the contrary, he had loaned Dr. McDonald money and paid a total of $328.00 for the storage space, none of which was reimbursed to him. He introduced an affidavit by Ed Sanders, who also lived in Henson’s house while Dr. McDonald was there, to the effect that Dr. McDonald had transferred the washer, dryer, and refrigerator to Sanders in satisfaction of a debt and that Sanders had then sold them to Henson for $300.00. Nevertheless, the trial court awarded Mrs. McDonald $12,500.00 and costs, the entire amount sought in her complaint.

Henson’s first contention on appeal is that Mrs. McDonald’s complaint fails to state a claim upon which relief can be granted. He raised this issue at trial by motion to dismiss, which was denied, by his answer, and by his motion for reconsideration of the judgment, also denied. Henson argues that the complaint does not state that Mrs. McDonald has legal title to or the right to possession of the property and therefore is insufficient to state a claim in detinue. The complaint, however, precisely follows Form 23, ARCP, “Complaint for Recovery of Chattels in Specie.” Not only does this form meet the notice pleading requirements of Rule 8, ARCP, it has been specifically approved by this Court (see “Supreme Court Note” at the beginning of the forms). Therefore this argument has no merit.

Henson next contends that the court lacked jurisdiction for failure to join the estate of Dr. McDonald or his personal representative. Although some of the items on Mrs. McDonald’s list belonged to her son, her valuation of the items she claimed as her own was more than the amount she recovered. Her proof and the trial court’s judgment that the latter items belonged to her would protect Henson should the estate later claim them from him, so any error in the trial court’s refusal to join the estate is therefore harmless.

Henson objected at trial to the admission into evidence of the list of property prepared by Mrs. McDonald. He argues that it is no proof of what possessions Dr. McDonald brought to Henson’s house. Mrs. McDonald testified that she visited her son several times at his residence prior to his move into Henson’s house, and her son still had all the items on her list. This, coupled with specific identification of many of the larger items on the list as being in Henson’s possession, sufficed to make the list admissible.

The record shows that the trial court’s judgment is supported by the evidence and we therefore affirm under the ore tenus rule. Elmer Tallant Agency, Inc. v. Bailey Wood Products, Inc., 374 So.2d 1312 (Ala.1979).

AFFIRMED.

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