author: PER CURIAM. MADDOX, Justice

text:
    Margaret Hardin BRINGHURST v. Billy J. HARDIN et al.
    79-254.
    Supreme Court of Alabama.
    Aug. 22, 1980.

      Robert E. Paden and Jake V. Bivona for Paden, Green & Paden, Bessemer, for appellant.
    Norman K. Brown, Bessemer, for appel-lees.
   PER CURIAM.

In January 1964, Mr. and Mrs. Hardin purchased residential property which was conveyed to them “. . . for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple . . . The couple divorced in April 1969, but the divorce decree made no provision for the property. Mrs. Bringhurst (the former Mrs. Hardin) brought suit for sale of the property and division of the proceeds. The trial court denied Mrs. Bringhurst relief and decreed that the property could not be sold for division without the consent of Mr. Hardin. Mrs. Bringhurst appeals.

The case must turn on application of principles set down in Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965); Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972); and Jackson v. Fillmore, 367 So.2d 948 (Ala.1979). We resolve the question of whether one tenant may successfully oppose destruction of a joint tenancy created before our decision in Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965).

Although Bernhard is now overruled, the appellee urges that we apply the Bernhard rule to the joint tenancy in question because the tenancy was created pre-Bern-hard. In short, appellee would have us rule that the tenancy is indestructible without consent of all cotenants. His argument is buttressed by our case of Jackson v. Fillmore, 367 So.2d 948 (Ala.1979), which finds that Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972) (overruling Bernhard and establishing common law joint tenancy in Alabama), should only be applied prospectively.

Careful study of Jackson, however, reveals that the tenancy there in question was created after Bernhard but before Nunn. Because the tenancy was created after Bernhard, the parties to the tenancy were certainly entitled to rely on the law as construed by the Bernhard Court. This Court expressly found the parties in the case relied on Bernhard, and the Court held that the law set down in Bernhard controlled.

In contrast, Mr. and (the then) Mrs. Hardin could not have relied on Bern-hard when they created the tenancy now in question, because Bernhard had not been decided. Furthermore, we will not give retrospective application to a case now overruled. The rule in Nunn, then, must control the case before us.

Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), holds that in Alabama a joint tenancy with right of survivorship retains the characteristics of common law joint tenancy (with exceptions not here important). Id. 289 Ala. at 524, 268 So.2d at 797. At common law a joint tenant could, by unilateral act, destroy the joint tenancy as to his share. See P. Powell & P. Rohan, Powell on Real Property § 618 (abr. ed. 1968). Although at common law a tenant could not compel partition, see 4 G. Thompson, Commentaries on the Modern Law of Property § 1828 (Grimes ed. 1979), this state has enacted a statutory procedure for partition or sale for division. See Code 1975, §§ 35-6-1 to 35-6-126. In view of the common law rule of destructibility of joint tenancies and the Alabama statutory procedure for partition or sale for division, we find no reason to require consent of coten-ants in a suit for division.

REVERSED AND REMANDED.

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

MADDOX, J., with whom SHORES, J., joins, concurs in the result.

BLOODWORTH, J., not sitting.

MADDOX, Justice

(concurring in the result).

I concur in the result, because it gives retrospective application to Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972). See my dissent in Jackson v. Fillmore, 367 So.2d 948 (1979).

SHORES, J., concurs.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Paul C. SMITH v. GAMMA CONSTRUCTION COMPANY, INC., a corporation.
    79-436.
    Supreme Court of Alabama.
    Aug. 22, 1980.
    Leo L. Crain, Mobile, for appellant.
    Jim H. Fernandez, of McFadden, Riley & Parker, Mobile, for appellee.
   EMBRY, Justice.

The dispositive issue in this case is whether the trial court erred by failing to set aside a default judgment entered against Paul C. Smith in behalf of Gamma Construction Company, Inc., a Corporation. Resolution of that issue turns on whether or not submitting to deposition on oral examination under order of court constitutes an appearance entitling Smith to the three days’ notice prior to the hearing on the application for default judgment and entry thereof as required by Rule 55(b)(2), ARCP.

We hold that submission to deposition upon oral examination does not constitute an appearance within the meaning of Rule 55(b)(2), ARCP; therefore, Smith was not entitled to the three days’ notice under that rule before entry of default judgment against him.

The judgment below is due to be and is hereby affirmed under the authority of Frazier v. Malone, 387 So.2d 145 (Ala. 1980).

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    BILL WHITE ROOFING AND SPECIALTY COMPANY, INC., et al. v. CEDRIC’S, INC., et al.
    78-850.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      Kenneth R. Watkins, Birmingham, for appellants.
    Foster Etheredge and J. Birch Bowdre, Jr. of Spain, Gillon, Riley, Tate & Ether-edge, Birmingham, for appellees.
   TORBERT, Chief Justice.

This case originated as a contract action brought by Dusseau Construction Company (“Dusseau”) against Cedric’s, Inc. (“Cedric’s”), and Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. (“Alabama Farm Bureau”), seeking to recover an alleged unpaid balance due under a construction contract and to enforce a mechanic’s lien for labor done and materials furnished. The contract, executed between Cedric’s and Dusseau, was for the construction of a Cedric’s Fish & Chips building in Birmingham, Alabama, by Dusseau on property owned by Alabama Farm Bureau, with whom Cedric’s had a contract to construct such a building. Subcontractors of Dusseau, appellants herein, intervened in this action as plaintiffs, seeking enforcement of their mechanic’s liens for labor and materials and for the recovery of payments allegedly due for their work, labor and materials. Upon these subcontractors’ motion, the trial court joined United States Fidelity and Guaranty Company (“USF&G”) as a party-defendant. USF&G was surety on a bond in which Dusseau was named as principal and Cedric’s and Alabama Farm Bureau were named as obligees.

The construction contract between Cedric’s and Dusseau required Dusseau to furnish Cedric’s with a bond, but the contract did not specify the type of bond required. The bond itself does not specify its type. An addendum to the Cedric’s-Dusseau construction contract, however, refers to the bond as a “performance bond.” Dispute as to the type of bond USF&G issued Dusseau is before this Court on appeal. The pertinent provisions of the bond in question are as follows:

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the said Principal shall well and truly perform and fulfill all and every the covenants, conditions, stipulations and agreements in said contract mentioned to be performed and fulfilled, and shall keep the said Obligee harmless and indemnified from and against all and every claim, demand, judgment, lien, cost and fee of every description incurred in suits or otherwise against the said Obligee, growing out of or incurred in, the prosecution of said work according to the terms of the said contract, and shall repay to the said Obligee all sums of money which the said Obligee may pay to other persons on account of work and labor done or materials furnished on or for said contract, and if the said Principal shall pay to the said Obligee all damages or forfeitures which may be sustained by reason of the non-performance or mal-performance on the part of the said Principal of any of the covenants, conditions, stipulations and agreements of said contract, then this obligation shall be void; otherwise the same shall remain in full force and virtue.

The trial court, hearing this case ore ten-us, found that this bond was not a payment bond. For this reason the trial court held that USF&G was not indebted to appellants. The trial court also denied appellants’ claims against Cedric’s and Alabama Farm Bureau, both under the Alabama lien statutes and upon appellants’ constructive trust claim, and held plaintiff Dusseau’s claim barred by the discharge of Cedric’s in bankruptcy. The only money award granted by the trial court was in favor of appellants against Dusseau. Dusseau has filed a petition in bankruptcy.

Appellants appeal the trial court’s holding that the bond in question was not a payment bond and that they could not recover against the surety, USF&G. Appellants do not contend that they are entitled to recover against Cedric’s or Alabama Farm Bureau under their liens, or that Cedric’s or Alabama Farm Bureau is legally obligated to them in any way. Rather, appellants concede their liens are unenforceable. No other parties appealed. USF&G is the only appellee.

The central question for our consideration is whether the bond in question entitles appellants, as subcontractors of the principal and third-party beneficiaries under the bond, to recover from the surety for their work and labor done and materials furnished under the construction contract. Stated differently, does the bond in question benefit the specified obligees, Cedric’s and Alabama Farm Bureau, alone, or does it benefit both these obligees and appellants as implied third-party beneficiaries?

The bond does not specifically refer to appellants, nor does the contract between Cedric’s and Dusseau, except the contract required that Dusseau’s employees and subcontractors be union members. Appellants then, as alleged third parties to the bond, may recover under the bond only if they can prove the bond was intended for their direct, as opposed to incidental, benefit. Ross v. Imperial Construction Company, 572 F.2d 518, 520 (5th Cir. 1978).

On its face, the benefits of the bond appear to flow only to the obligees, Cedric’s and Alabama Farm Bureau. Unlike the bond in Byram Lumber & Supply Co. v. Page, 109 Conn. 256, 146 A. 293 (1929), there is no promise that laborers and mate-rialmen be paid. Appellants cited Byram because it concerned, they alleged, a bond similar to the one at bar. The Connecticut Supreme Court of Errors, in construing the bond, held it entitled laborers and material-men to recover payment for their work and materials from the surety under the bond. The bond in Byram provided in pertinent part that “if the Principal . shall pay all persons who have contracts directly with the Principal for labor or materials, then this obligation shall be null and void; otherwise, it shall remain in full force and effect.” Id. at 258, 146 A. at 293. This same language was in a bond before this Court in Fidelity & Deposit Co. v. Rainer, 220 Ala. 262, 125 So. 55 (1929). Originally, this Court decided in Fidelity that material-men were not entitled to recover under the bond. Upon rehearing, however, this language was the deciding factor in this Court’s determining the bond did guarantee the materialmen payment for their materials. The language of the bond at issue guarantees performance by the principal and indemnification if the principal defaults to the specified obligees only. In this regard, the bond does not appear ambiguous.

But assuming the bond is ambiguous as appellants contend, they are not limited in their proof to the language appearing on the face of the contract. Ross v. Imperial Construction Co., 572 F.2d 518, 521 (5th Cir. 1978); see, Caldwell v. United States Fidelity & Guaranty Co., 205 Ala. 463, 88 So. 574 (1921). They may also include facts and surrounding circumstances connected with the execution of the bond to show the bond was intended to directly benefit them. Id.

Appellants have placed strong reliance on Pacific Insurance Company v. Wilbanks, 283 Ala. 1, 214 So.2d 279 (1968), to support their proposition that the parties to this bond intended the bond to benefit appellants and that this intent should control. In Wil-banks, this Court allowed third party laborers and materialmen to recover from a surety on a bond which specifically provided that no action should accrue under the bond “to or for the use of any person . other than the owner [obligee].” Id. at 4, 214 So.2d at 282. This provision, however, was in the exclusionary clause, could not be reconciled with prior provisions of the contract, and was, in light of the evidence and surrounding facts and circumstances connected with the execution of the bond, against the intention of the parties. The construction contract in Wilbanks, which was incorporated in the bond, specifically provided that the owner could require the contractor to furnish a bond covering both the performance of the contract and payment of all obligations arising thereunder. The surety’s representative testified at trial that the parties intended the bond to be the type specified in the contract. The testimony of the owner, builder, and architect all three evidenced that the bond was intended to benefit the laborers and materialmen as well as the owner-obligee. There was also evidence that the premium paid for the bond was the same in amount as that required by the surety for a payment and performance bond.

In the instant case, the construction contract, also incorporated in the bond in question, did not describe the bond and referred to it in an addendum merely as a “performance bond.” At trial, a representative of Alabama Farm Bureau, an obligee, testified the bond was intended to guarantee payment to the subcontractors, but the representative of USF&G, the surety, testified the parties intended only to execute a performance bond which would not guarantee such payment. There was also no evidence concerning the amount of the premium paid for the bond. Wilbanks is distinguishable on these grounds and does not control our decision here.

In conclusion, we hold that the trial court’s decision is not against the great weight of the evidence. The evidence having been given ore tenus, this Court will not reverse the trial court’s findings unless the findings are clearly erroneous and unjust. Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 176, 111 So.2d 906, 911 (1959). We acknowledge, without approving, the old principle cited by appellants that the ore tenus rule does not apply where the evidence is documentary or without practical dispute. Owensboro Banking Co. v. Buck, 16 Ala.App. 346, 77 So. 940, cert. denied, Ex Parte Buck, 202 Ala. 56, 79 So. 394 (1918). All of the evidence in this case, however, is not documentary; moreover, it is in dispute.

While it is unfortunate that the appellants are left only to seek recovery under a judgment against a bankrupt Dusseau, Alabama statutes on labor and materialmen's liens provide ways appellants could have been assured of payment for their labor and materials. See Code 1975, §§ 35-11-210 to -234; Berkowitz, The Materialman’s Lien in Alabama, 9 Cumberland L.Rev. 343 (1978).

We hold that the bond in question does not require the surety to guarantee payment to the subcontractors of the principal where there is no obligation of the obligees to these subcontractors.

AFFIRMED.

MADDOX, SHORES and BEATTY, JJ., concur.

JONES, J., concurs in the result.

      . A total of eight sub-contractors intervened in this action. Only five of these moved the trial court to have appellee USF&G joined as a defendant. These same five are appellants before this Court. They are: Bill White Roofing & Specialty Co., Inc., Young Heating & Air Conditioning of Alabaster, Alabama, Roebuck Electric Heating & Air Conditioning, Inc., Nelson Excavating & Paving Co., Inc., and Keller Plumbing Co., Inc. For convenience, reference to subcontractors or appellants throughout this opinion will refer only to these five intervenors.

      . We think that Dusseau’s claim to which the trial court refers in its final judgment is Dus-seau’s allegation that defendant Cedric’s maliciously interfered with a contract Dusseau had with various subcontractors, since the trial court rendered an earlier partial summary judgment as to Dusseau’s other claims and the court incorporated this summary judgment in its final judgment.

      . In construing the bond in question, we must look to the construction contract to which the bond refers and which refers to the bond. It is well settled that “two writings connected by reference one to the other . . . with respect to the same subject matter and proved to be parts of an entire transaction constitute but a single contract as if embodied in one instrument.” Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 226, 20 So.2d 105, 107 (1944).


author: PER CURIAM.

text:
    FIRST ALABAMA BANK OF MONTGOMERY, N. A. v. Thelma EUBANKS.
    79-19.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Walter R. Byars and James A. Byram, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
    Oakley Melton, Jr. for Melton & Espy, Montgomery, for appellee.
   PER CURIAM.

The bank appeals from a judgment entered on a jury verdict in favor of Eubanks, who was sued by the bank on a note. We affirm.

The note was executed on May 4,1976, by Thelma Eubanks, Melba Till Allen and Virginia Suggs. According to Miss Eubanks, she met Allen and Suggs at a lecture which they hosted at the Sheraton Motor Inn involving mind reading and psychic fortune telling. After her mind was read and her fortune told, Eubanks, who by her own description is an elderly single lady and an accountant, was approached by Allen and Suggs, and induced to co-sign a promissory note with them by their representations that she would be made a limited partner in “Bapsh Films Ltd.” She was told that Bapsh Films was producing films for distribution to Catholic schools in Florida, and was also building a huge amusement park in northern Alabama called “Stars over Alabama”; she was promised some accounting business from these various ventures.

Although Allen and Suggs represented that Bapsh Films was to be a valid limited partnership, a limited partnership was never formed in compliance with the statutory requirements. The bank issued a $25,000.00 loan to the so-called partnership and obtained personal financial statements from the three co-signers. Melba Till Allen was at that time Treasurer of the State of Alabama. Proceeds of this and other loans made by the bank to the account of Bapsh Films, Ltd. were used to discharge other financial obligations of Allen and Suggs. In November of 1976, when the first note matured, Miss Eubanks was informed by Mrs. Allen that “the note had been taken care of.” In fact, a renewal note had been executed on November 1, 1976, by Virginia Suggs. The note was renewed three more times by Suggs and Allen. Miss Eubanks was at no time contacted by the bank, or informed that she remained liable on this note. The note was finally “charged off” by the bank on May 12, 1978.

Miss Eubanks’s answer to the complaint filed against her by the bank (default judgments were obtained against Allen and Suggs) alleged that her signature to the note was obtained by fraud and misrepresentation, that she was not the maker of the note, that the maker was Bapsh Films Ltd., that she signed as a limited partner, that the note had been materially altered, and that it had been paid and satisfied by subsequent notes and transactions between the bank and Allen and Suggs.

On appeal, the bank raises only two issues. It argues that the trial court committed reversible error by failing to give written requested instruction # 1, which read: “A failure to comply with the statutory provisions governing the formation of limited partnerships precludes the formation of the firm as a limited partnership and renders the association a general partnership.” The court delivered the instruction, but omitted the underlined part.

We cannot agree with the bank that the failure of the court to give this charge requires reversal. In the first place, the charge is abstract. Secondly, it is not marked “refused.” Additionally, the court covered the point made in the requested charge in its oral charge. The record shows the following from the court’s oral charge:

“A failure to comply with statutory provisions governing the formation of a limited partnership precludes the formation of the limited partnership as a matter of the law. And a partnership creditor can sue any partner-can sue any partner individually for payment of all or part of a general partnership debt. Now, you’re entitled to consider all of those in determining whether or not there was a meeting of the minds and if there was what the meeting of the minds was between these people.”

The court commented on the bank’s requested charge number 1:

“The basis for the Court’s ruling, that, in and of itself, would not. And the Court concluded that this abstract charge would be misleading and confusing to the jury and I went at some length to tell them that they could consider all of the relations between these parties and I felt for me to charge them as a matter of law what the relations of the parties was would have been confusing and unwarranted under the facts of this case.”

We find no error to reverse based upon the refusal of the court to give the bank’s requested instruction numbered one. Gilmore Industries, Inc. v. Ridge Instrument Co., 288 Ala. 127, 258 So.2d 55 (1972).

The bank’s final argument is that the trial court erred in failing to direct a verdict in its favor. Again, we are unpersuaded by the bank’s argument. There was more than a scintilla of evidence on more than one of the defenses raised by Eubanks in this case. Thus, it was not error to allow the jury to pass on those defenses. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).

The judgment appealed from is affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation, v. Martha Faye CAIN and W. C. B. Cain.
    79-42.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    L. Merrill Shirley, Elba, for appellant.
    No brief for appellees.
   MADDOX, Justice.

There is one question involved in this appeal:

Was an unmarried daughter, who was living in an apartment separate from her parents, a “resident of the household” of her father, and, therefore, an “insured” under two automobile liability policies?

Farm Bureau issued two policies of insurance (A130756 and A208619), to W. C. B. Cain, agreeing to insure two automobiles, a 1959 Chevrolet Bel-Air, and a 1963 Chevrolet pickup owned by W. C. B. Cain. Martha Faye Cain, the daughter of W. C. B. Cain, was living with her parents when the policies were issued, but was living in an apartment when the accident, which is the subject of this controversy, occurred. Martha Faye Cain was driving her personal 1967 Chevrolet, which also was insured by Farm Bureau, but the question of coverage under that policy is not the issue which is presented here. Martha Faye made claims against Farm Bureau for medical payments and uninsured motorist coverage as an “insured” under the two policies of insurance on which her father, W. C. B. Cain, was the named insured. Martha Faye claimed that she was entitled to benefits under the two policies because she was injured when she was forced off the road by an unidentified motorist.

Farm Bureau denied coverage under the two policies on the ground that Martha Faye was not “a resident of the same household” and, therefore, was not an “insured,” under the terms of the policies.

At the time of the accident, January 24, 1974, Martha Faye was an employee of Kleinert’s. From the time she began work with Kleinert’s in 1971, until October, 1973, she lived with her father and mother. In October, 1973, she moved to Bullard’s Apartments in Elba. She testified, “I was 22 years old and wanted to move out . and be on my own for awhile.”

Initially, Martha Faye shared the apartment with Loretta Young, but Loretta married and moved out. At the time of the accident, Martha Faye was living alone. Before the accident, Martha Faye listed Bullard Apartments as her mailing address. She would visit her parents occasionally and spend the night. After moving into the apartment, she would call her parents and tell them where she was going if she was going out of state, but she did not believe she had to have their permission to go; she only wanted them to know where she was going.

The two policies of insurance issued to W. C. B. Cain pursuant to the uninsured motorist provision, provide as follows:

INSURING AGREEMENT III UNINSURED MOTORIST Coverage M-Damages for Bodily Injury Caused by Uninsured Automobiles.
The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages except punitive damages (other than for death) from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile provided for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration. .

Under Insuring Agreement III the following definition of insured reads:

DEFINITIONS-INSURING AGREEMENT III . . . (a) Insured. The unqualified word “Insured” means (1) the First Named Insured as stated in the policy and while residents of the same household, the spouse of any such Named Insured and relative of either; .

Martha Faye claimed medical payments protection and coverage under the policies of W. C. B. Cain. Those policies provide: COVERAGE C-MEDICAL PAYMENTS.

To pay the reasonable expense of necessary medical, dental, x-ray, eyeglasses, hearing aids, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident to or for:
(Division 1) each person who sustains bodily injury, sickness or a disease caused by accident while occupying:
(a) the automobile described in the declaration, if the injury arises out of the use thereof by the named insured or spouse if a resident of the same household, or with the express permission of either.
(Division 2) each insured who sustains bodily injury, sickness or disease caused by accident, while in or upon, or while entering into or alighting from, or through being struck by, an automobile. The word “automobile” as used in this paragraph means a four wheeled land motor vehicle, or a trailer, not operated on rails or crawler treads, but does not mean: ...

Each policy, as it applies to coverage C, Medical Payments, defines “owned automobile” as follows:

“owned automobile” means the motor vehicle or trailer described in the declarations.

Regarding medical payments coverage protection, the policies have the following exclusions:

EXCLUSIONS-INSURING AGREEMENTS I AND II
This insurance does not apply under: .
(h) Coverages C, C-l, and C-2, to bodily injury to any person: .
(2) while occupying or through being struck by any automobile, land motor vehicle or trailer if such vehicle is owned by the named insured or a relative and is not included in the definition of “automobile”; . . .

As already stated, Martha Faye, at the time of her accident was not operating either the 1959 Chevrolet Bel-Air or the 1963 Chevrolet pickup, the vehicles described on the declaration for policy A130756 and A208619, respectively.

After hearing testimony of three witnesses and considering Martha Faye’s deposition, the trial court declared that Martha Faye was covered under both policies as an “insured.” We reverse.

On review, we indulge all reasonable presumptions in favor of the findings made by the trial court, but after reviewing the facts of this case, we are convinced that the findings by the trial court are palpably wrong. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970).

Furthermore, this appeal involves a mixed question of law and fact. In such cases, we need not find that the trial court’s findings of fact are “plainly and palpably wrong”; we need only to say that we differ with the trial court, not on the facts, but on its application of the law to those facts. See Ex parte Shoaf, 186 Ala. 394, 64 So. 615 (1914), which is quoted in Ex parte Newbern, 286 Ala. 348, 239 So.2d 792 (1970).

This is not the first time Alabama appellate courts have been called upon to determine who is and who is not a “resident of the same household.” In State Farm Mutual Automobile Insurance Company v. Hanna, 277 Ala. 32, 166 So. 872 (1964), this Court, construing a similar definition of an insured as is present here, found that the named insured, a college student, was not living in the same household with his father, a claimed insured. In Crossett v. St. Louis Fire and Marine Insurance Company, 289 Ala. 598, 269 So.2d 869 (1972), this' Court, again construing the definition of an “insured,” but this time, in a case involving a homeowner’s policy, held that a college student, under the facts of that case, was an “insured.”

Hanna and Crossett have been criticized as being inconsistent. See special concurring opinion by Justice Somerville in Cros-sett. Hanna and Crossett do reach contrary results, but the factual settings are different. In Hanna, the named insured’s intention to remove himself from the household was clear, and in Crossett, under somewhat different facts, the intention of the claimed insured to remain a member of the named insured’s household was sufficiently shown by the evidence.

The most recent case coming to our attention is that of Gulf American Fire and Casualty Company v. Azar, 364 So.2d 332 (Ala.Civ.App.1978); cert. den. 364 So.2d 335 (Ala.1978), wherein the Court of Civil Appeals, citing both Hanna and Crossett, held:

We believe that appellees’ and the circuit court’s reliance on Hanna and Cros-sett was misplaced. While we have no quarrel with the general proposition stated in those cases, we are of the opinion that even a favorable construction of ambiguous terms for the insured requires a factual basis. Indeed, the necessity of providing facts in support of a party’s contention that he is or is not a resident of the same household as the named insured is clearly indicated by the opinions of former Justice Harwood in Hanna and Justice Blood worth in Crossett. See Nationwide Mutual Insurance Co. v. Herren, Ala.Civ.App., 362 So.2d 253 (1978). In the present case there were simply no facts presented to the circuit court which would demonstrate that Ben McGiffert resided in the same household as his father, the named insured.
When the automobile accident which resulted in this dispute occurred, Ben McGiffert was living with his mother, Mrs. Murchison. T. B. McGiffert, the named insured, resided at an entirely different location. And although Ben McGiffert visited his father at the father’s home, Mrs. Murchison testified by deposition that the visits did not include overnight stays. Furthermore, custody of Ben McGiffert had been awarded to Mrs. Murchison under the provisions contained in the decree divorcing her and her husband, and, consequently, Ben was a legal resident of his mother’s household. See Chapman v. Allstate Insurance Co., supra.
As these facts indicate, neither Ben McGiffert’s actual or legal residence was in his father’s household. Thus, the circuit court improperly awarded a summary judgment in favor of appellees on the ground that Ben McGiffert was a member of his father’s household.

Under the facts of this case, at the time of the accident, Martha Faye Cain was not living with her father. She was living in an apartment separate and apart from her parents. She was not an insured under the two policies of insurance owned by her father.

The judgment of the trial court holding otherwise is due to be reversed.

REVERSED AND REMANDED.

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


text:
    Dona SLY and Bobby Jones v. FIRST NATIONAL BANK OF SCOTTSBORO.
    79-361.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      Myron K. Allenstein, Gadsden, for appellants.
    Joe M. Dawson of Dawson & McGinty, Scottsboro, for appellee.
   TORBERT, Chief Justice.

The First National Bank of Scottsboro posted public notice of its intention to sell certain repossessed collateral. Sale was to be “at public outcry to the highest, best and last bidder.” Dona Sly attended the auction at the advertised time and location and, on behalf of himself and Bobby Jones, successfully bid on several automobiles. Mr. Sly also bid highest on a 1973 Chevrolet Monte Carlo, but the auctioneer, a bank employee, told Mr. Sly the bank might not accept the bid.

After the auction, Mr. Sly offered payment for the Monte Carlo, but was told the sale had to be approved by a bank superior. Dona Sly left the bank, and, when he returned to pick up the vehicles he purchased, the bank refused to sell the Monte Carlo.

Interrogatories answered by the defendant bank indicated the bank withdrew the Monte Carlo from the auction. In contrast, testimony at trial revealed the bank itself bid five dollars higher than Mr. Sly’s bid. According to the testimony, the bank bid occurred after Mr. Sly left and the public auction was completed.

Dona Sly and Bobby Jones brought suit against the First National Bank alleging fraud and breach of contract. From a directed verdict for defendant, plaintiffs appeal.

Plaintiffs charge defendant misrepresented the bank’s position by stating the bank would not participate in the auction. The complaint alleges: “Dona Sly specifically asked, ‘Is the bank making bids?’, to which defendant [auctioneer] replied, T don’t know.’ ”

We have ruled consistently that an actionable misrepresentation must be of present fact. See, e. g, Scholz Homes, Inc. v. Hooper, 287 Ala. 628, 254 So.2d 328 (1971), Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953), Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782 (1938). We find no evidence plaintiffs attempted to show, let alone proved, the auctioneer knew (or should have known) the bank would bid. Plaintiffs cannot recover under Code 1975, §§ 6-5-101, -103, or -104, because they failed to prove misrepresentation of an existing material fact.

Likewise, defendant is not liable under Code 1975, § 6-5-102, because no special relationship created on the part of the bank a duty to disclose its intent to bid. Code 1975, § 7-2-328(4), impliedly gives a foreclosing creditor the right to bid without notice at sale of its collateral. Since no affirmative duty to disclose exists, defendant is not liable under § 6-5-102.

Plaintiffs also complain that defendant misrepresented it would sell to the “highest, best and last bidder.” The phrase, however, cannot reasonably be construed to mean the defendant was obligated to sell under any circumstance. If plaintiffs relied on the notice and believed even unacceptable bids would be binding, their reliance was unreasonable.

Code 1975, § 7-2-328(3) states that all auctions are with reserve unless goods are explicitly put up without reserve. The rule reflects the logic that an auctioneer is not the offeror; instead, it is presumed the bidder is the offeror. A seller is not normally bound by bids unsatisfactory to him-a bidder may not impose a contract on the seller. The seller may reasonably be expected to withdraw the goods or to accept or reject any bid, unless he explicitly undertakes the auction without reserve.

The foregoing also disposes of plaintiffs’ claim for breach of contract. Because under § 7-2-328(3), plaintiffs’ bid was the offer, defendant was free to accept or reject plaintiffs’ bid. No contract existed until defendant accepted, and at no time did the bank accept Dona Sly’s bid. There is no breach of contract unless there was previously an offer and acceptance.

Finally, plaintiffs argue that defendant is estopped to deny a contract with plaintiffs because defendant’s conduct of the sale was in bad faith and was prejudicial to the defaulting debtor. Certainly if defendant bank is always required to accept the last bid made, the debtor is prejudiced. Application of Code 1975, § 7-2-328(3), however, allows the bank to withdraw the goods or place a higher bid where the last bidder’s offer was inadequate, and by that procedure the debtor’s interest is advanced rather than prejudiced.

Code 1975, § 7-9-504(3), allows sale of repossessed collateral at public or private sale, and we will not restrict operation of the statute, especially at plaintiffs’ instance. When Mr. Sly realized the bank would not accept his bid, he had the opportunity to make a higher offer. An unsuccessful bidder will not be heard to complain, but, instead, if the debtor is prejudiced by the conduct of the sale, he may complain.

AFFIRMED.

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


author: JONES, Justice. TORBERT, Chief Justice

text:
    Evelyn A. DETHLEFS v. Robert C. ETNIRE and Joan Etnire.
    79-514.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    H. Merrill Vardaman of Vardaman & Vardaman, Anniston, for appellant.
    Arthur F. Fite, III of Merrill, Porch, Doster & Dillon, Anniston, for appellees.
   JONES, Justice.

The statement of the issues and the attendant argument in Appellant’s brief challenge no adverse ruling by the trial Court; therefore, we have no issue presented for review and no authority to review this case. Thus, we affirm the trial Court’s grant of a final injunction prohibiting the Defendant from foreclosing on the subject property on the authority of Abernathy v. Worthy, 221 Ala. 527, 129 So. 472 (1930).

Appellees have filed a motion for damages for frivolous appeal. Although we find no merit in the appeal, our study of the record and the briefs of counsel narrowly convinces us that this appeal does not fall within the frivolous appeal provisions of ARAP 38. We therefore deny the motion.

AFFIRMED.

BEATTY, J., concurs.

TORBERT, C. J., and MADDOX and SHORES, JJ., concur in the result.

TORBERT, Chief Justice

(concurring in the result):

I concur in the result, but would bottom affirmance on the merits of this case.

MADDOX and SHORES, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Doyle Ray HENDERSON v. Andy LESSLEY and Ruby Lessley.
    Civ. 2060.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied May 14, 1980.

      Joseph A. Fawal of Daniel, Fawal & Spi-na, Birmingham, for appellant.
    Frank R. Farish of Lewis & Farish, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

On October 12, 1978, appellees Andy and Ruby Lessley filed a petition to terminate the parental rights of appellant Doyle Ray Henderson and a petition to adopt appellant’s six-year-old daughter. Appellant filed a cross-petition for permanent custody. After hearing on February 13 and 15, 1979, the trial court denied all three petitions and awarded temporary custody of the child to the appellees with specified visitation rights in appellant.

On July 7, 1979, in response to a petition by appellees, the trial court modified the visitation provisions of the decree.

Appellant filed a motion to reconsider on July 18,1979. A hearing on the motion was had on August 27, 1979. The trial court’s order continued temporary custody in the appellees and specified new visitation rights to be reserved to the appellant.

Appellant argues that the trial court erred in continuing custody in the appellees because the natural parent has a prima facie right to custody and the evidence before the court did not show that he is unfit. We do not find the trial court’s order to be in error.

Although a natural parent has a pri-ma facie right to custody of his or her child, the primary consideration in a child custody case is that the determination be based on the best interest and welfare of the child. Strickland v. Osborn, 333 So.2d 582 (Ala.Civ.App.1976). That determination must come from the evidence and each case must be decided on its own facts. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).

The ore tenus hearing in this case revealed the following factual situation.

The child involved was born on January 27, 1972. The appellant was named by the child’s mother as the father of the child. At the time of the child’s birth appellant was in the custody of the United States marshal under a charge of conspiracy to import marijuana. He was convicted of the charge and sentenced to five years in the federal penitentiary.

In November 1972, after spending some time in Florida and Massachusetts, the mother and child moved to Birmingham, Alabama. The appellees agreed to babysit for the child. As this arrangement continued, the child’s mother began to leave her for increasingly longer periods of time. Eventually the appellees cared for the child full time. Between the fall of 1972 and spring of 1977, the child had only spasmodic contact with her mother and none with the appellant.

In 1977, upon petition by the appellees, the child was found to be a dependent child and custody was given to appellees. A subsequent modification of the custody order reserved visitation rights in the appellant.

Appellant was released from prison on June 1, 1978. He has expressed a determination to “go straight” and there is evidence that he has made a start toward that end.

While we find this fact and appellant’s desire for custody commendable, we agree with the trial court that a change of custody would not be in the best interests of the child.

The child has lived with the appellees for almost her entire life. Her natural mother is now deceased. There has been established a psychological child-parent relationship through daily companionship and shared experiences. J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child, Chap. 2 New Edition (1979). She has never known appellant as her father and it is clear from the evidence that she does not now view him as her father. The child is happy and comfortable in her present home and has expressed a desire to remain there. To remove her from the only home she has known to send her to an uncertain future with a stranger, even though he be the natural father, could not avoid being a traumatic experience.

The trial court heard and saw the witnesses. In view of the evidence before the trial court, we cannot say that it erred in its determination that the best interests of the child would be served by leaving her in the custody of appellees. The trial court’s decree is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    Ex parte Doyle Ray HENDERSON. (In re Doyle Ray HENDERSON v. Andy LESSLEY and Ruby Lessley).
    (Civ. 2060)
    79-656.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Joseph A. Fawal of Daniel, Fawal & Spi-na, Birmingham, for petitioner.
    Frank R. Farish of Lewis & Farish, Birmingham, for respondents.
   SHORES, Justice.

We do not, by denying the petition, agree with the rationale of the opinion of the Court of Civil Appeals, 387 So.2d 201.

Writ denied.

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


author: HOLMES, Judge.

text:
    Earlean FORDHAM v. SOUTHERN PHENIX TEXTILES, INC.
    Civ. 2076.
    Court of Civil Appeals of Alabama.
    April 2, 1980.
    Rehearing Denied April 30, 1980.
    Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellant.
    Buster Landreau of Faulk & Landreau at Law, P.C., Phenix City, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Russell County denied benefits to the employee and the employee, through able counsel, appeals. We affirm.

The dispositive issue on appeal is whether there is any legal evidence to support the finding of the trial court.

The following, as revealed by the record, is pertinent:

In October, 1977, the employee suffered a stroke which rendered her totally and permanently disabled. The attack occurred several minutes after the work shift had ended and while the employee was still on company property.

The employee had experienced high blood pressure for a number of years prior to the stroke and took medication for her condition. In addition, she was a rather corpulent woman being slight in stature and weighing in excess of two hundred pounds.

For approximately ten years the employee had worked in the employer-cotton mill. The employee regularly performed duties in the “draw-in” room and on occasion in the “weave” room. On the day of the stroke the employee worked in the weave room. This work consisted in part of starting up looms when they stopped by turning a wheel mechanism. This task was sometimes strenuous, but a male employee was available to perform the task when the wheels were especially difficult to turn.

After suffering the stroke the employee filed for workmen’s compensation benefits claiming total disability and claiming that her stroke was caused by her employment.

In its order the trial court found that the employee’s stroke was not caused by her employment. In making its determination of causation, the trial court relied upon Newman Brothers, Inc. v. McDowell, Ala.Civ.App., 354 So.2d 1138, cert. denied, 354 So.2d 1142 (Ala.1978); and City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). The standard of causation stated in the trial court’s decree was that the employee was not exposed to a danger or risk materially in excess of that to which people not so employed are exposed.

The trial court further stated in its order that the employment did not precipitate or contribute to the stroke. This determination was based upon a review of the evidence taken ore ten us and depositions of medical doctors.

On appeal, as we perceive it, the employee first contends that Howard, supra, is inapplicable in this instance and that Newman, supra, controls. Further, the employee contends that Newman, supra, should be read to mean that legal causation is satisfied in this instance if the employee while at work exerted or strained herself in the performance of her normal duties and that this work was a contributing factor in producing her injury. The employee concludes that the trial court applied an incorrect standard of causation and therefore reached an erroneous result. We do not agree.

We do not feel that Newman, supra, made any substantive change in the requirements for causation as set out in Howard, supra. That is, as Presiding Judge Wright stated in these cases, there are two distinct tests which must be met to establish causation: legal and medical.

To establish legal causation the employee must show that in the performance of her duties she was exposed to a danger or risk materially in excess of that to which people not so employed are exposed. Put another way, she must demonstrate that in the performance of her job she had to exert or strain herself or was exposed to conditions of risk or hazard and she would not have strained or exerted herself or been exposed to such conditions had she not been performing her job. To establish medical causation the employee must show that the exertion or strain or the exposure to conditions was, in fact, a contributing cause of her injury. Both of these tests must be satisfied before the employment can be said to have caused the injury. Newman, supra; Howard, supra.

We find the trial court correctly relied upon the controlling authority in this instance and did not commit reversible error in stating the standard to be applied.

Turning now to the dispositive issue, we note that the only method of review in workmen’s compensation cases is by certio-rari. § 25-5-81, Code of Ala.1975. Under this standard of review, this court does not look to the weight of the evidence as to any fact found by the trial court, but looks to see if there is any evidence to support the facts which the trial court found. Mobile Paint Mfg. Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975). If any reasonable view of the evidence supports the conclusion of fact made by the trial court and the correct law was applied to such facts, we will not disturb the trial court’s judgment. Howard, supra.

As indicated above, the trial court found that the employee’s job did not cause her stroke. To establish legal causation the employee testified that on the day of the stroke she was required to work strenuously in pulling on the loom wheels a number of times, that the weave room was hot which caused her to perspire, and that she was told that she would be automatically fired if she missed any more work which made her nervous and upset. However, there is other evidence in the record to indicate the contrary. That is, there is evidence that the job performed by the employee on the date in question was not strenuous, that the weave room was centrally air-conditioned, and that the employee’s emotional stress and strain was not work-related, and that she had not in any way been singled out by her supervisors for harassment.

In order to establish medical causation, the employee presented depositions of medical doctors who stated that the employee’s job could have contributed to her stroke. These same depositions also indicated that other factors such as high blood pressure, obesity and heredity were most likely causes of the stroke. That is, some of the medical evidence indicated that the employee’s job was not necessarily a cause of her stroke.

Thus, as seen from the above, there is competent evidence to sustain the trial court’s finding that the employment did not precipitate or contribute to the employee’s stroke.

This court should not be understood as necessarily finding that there is no evidence to support a contrary result. Only that under the appropriate standard of review there is evidence to support the trial court’s conclusion.

The employee next contends that the trial court failed to set out a sufficient statement of the facts as required by § 25-5-88, Code of Ala.1975. We do not find merit in this contention.

It is the duty of the trial court to make sufficiently detailed findings of fact so that the appellate court can determine whether the judgment is supported by the facts. Reynolds v. Kirby, 273 Ala. 252, 139 So.2d 341 (1962). Substantial compliance with this section will suffice. Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969).

In this instance, our review of the record reveals substantial compliance with § 25-5-88 and, hence, no reversible error.

This case is due to be affirmed.

AFFIRMED.

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

ON REHEARING

In her application for rehearing, employee, through able counsel, has called to this court’s attention the following statement contained in our opinion: “These same depositions also indicated that other factors such as high blood pressure, obesity and heredity were most likely causes of the stroke.”

Upon reflection, this court is of the opinion the above could be misleading. Therefore, in lieu of the quoted section of the opinion, the following is substituted: “These same depositions also indicated that high blood pressure, obesity, and heredity could have been contributing factors in causing the stroke.”

ORIGINAL OPINION EXTENDED AND APPELLANT’S APPLICATION FOR REHEARING OVERRULED.

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


text:
    Ex parte Earlean FORDHAM. (In re: Earlean FORDHAM v. SOUTHERN PHENIX TEXTILES, INC.).
    No. 79-603.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   MADDOX, Justice.

Writ denied. No opinion.

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


text:
    Lacy HICKS v. Lillian Dean HICKS.
    Civ. 2085.
    Court of Civil Appeals of Alabama.
    May 14, 1980.
    Rehearing Denied July 2, 1980.
    Cecil M. Matthews, Columbiana, for appellant.
    Walter Joe James, Jr. of James, Lowe & McNamee, Haleyville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case where the controversy now centers upon the following issues: (1) The division of property; (2) Whether the trial court had a legal or constitutional basis for granting periodic alimony to the plaintiff wife; and (3) Whether the alimony award violates the “involuntary servitude” prohibitions of the thirteenth amendment to the Constitution of the United States.

After a two-day ore tenus trial before the court, the wife was awarded four adjoining real estate lots in Lynn, Alabama, upon which were located the home of the parties, a rental house which was in a poor state of repair, and a garage or workshop. The defendant was ordered to pay the balance due upon the home mortgage which exceeded $8,800. Of the real estate, the husband received a lot in Lynn, which was separate from the wife’s lots, and upon which existed an almost worthless garage.

As to personal property, the wife received the household goods, furniture and appliances together with her clothing, jewelry personal effects and her vehicle, a 1977 Ford Thunderbird, with the wife to pay the remaining debt against her car. The residue of the personal property was awarded to the defendant, including, but not being limited to, five Mack tractor trucks and coal hauling trailers, a Dodge van, a service truck, an old school bus, truck tires, equipment, tools, welders, an air compressor and a drag race car which had considerable value. He also received a certain mortgage owed to the parties in the amount of around $2,800. The evidence was to the effect that the defendant owed considerable sums of indebtedness upon his commercial vehicles which were utilized to haul coal for his employer. The net earnings from the use of these vehicles was very substantial over the years.

While the award to the wife was disproportionate to the property granted to the husband, we have read, studied and considered the lengthy record herein and cannot hold that the trial judge was clearly and palpably wrong in such division of property between the parties. Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979).

In Orr v. Orr, 440 U.S 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which was decided on March 5, 1979, prior to the trial of this case and prior to the rendition of the judgment herein on June 22, 1979, the Supreme Court of the United States declared Alabama’s alimony statutes to be unconstitutional. The defendant argues that there was no alimony statute in effect from March 5, 1979, until our present statutes became effective on July 27, 1979, and that the trial court, therefore, had no authority to grant alimony in this case. Such argument overlooks the subsequent decision of this court in Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.1979), which was decided on May 30, 1979, and which extended alimony benefits to husbands as well as wives, thus overcoming the equal protection objections to the statutes. Here the alimony award was based upon statutes which have been declared to be valid under the fourteenth amendment. Lindsey v. Lindsey, 380 So.2d 880 (Ala.Civ.App.1980); Hocutt v. Hocutt, 379 So.2d 619 (Ala.Civ.App.1980); Thompson v. Thompson, supra.

The husband further contends that he and the plaintiff, after the divorce, are now strangers as nearly so as if they had never been married, especially since both children of the marriage have reached their majority, and to require him to pay alimony is calling upon him to support a person standing in no relationship to him and having no moral claim upon him. According to the defendant, this award of alimony of $750 per month places him in the shoes of an indentured servant in involuntary servitude in violation of the thirteenth amendment. We disagree. While the marital relationship is dissolved by a divorce, certain duties or obligations may continue such as an award of periodic alimony pursuant to a valid alimony statute. A court order in a divorce judgment directing one party to pay alimony to the other party does not impose involuntary servitude upon the payor. Clark v. Clark, 152 Tenn. 431, 278 S.W. 65 (1925).

The amount of alimony ordered to be paid monthly by the defendant to the plaintiff was not overly liberal in view of the defendant’s prior earnings record. His adjusted gross income as reported on his federal income tax returns was around $32,-000 in 1976, over $69,000 in 1977 and exceeded $37,000 in 1978.

The judgment of the trial court is due to be affirmed.

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

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte Lacy HICKS. (Re: Lacy HICKS v. Lillian Dean HICKS).
    79-831.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Guy HUNT v. Oscar DAVIS.
    Civ. 2122.
    Court of Civil Appeals of Alabama.
    May 14, 1980.
    Rehearing Denied June 11, 1980.

      William M. Acker, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, P. A., Birmingham, for appellant.
    James P. Smith of Harrison, Burwell, Smith & Sutherlin, Huntsville, for appellee.
   HOLMES, Judge.

The Circuit Court of Madison County entered judgment in favor of the plaintiff in the amount of $3,114.01. The defendant appeals and we affirm.

The dispositive issue on appeal is whether there is evidence to support the trial court’s judgment.

Viewing the record with the attendant presumption, the following is found:

The defendant, Guy Hunt, was the Republican gubernatorial candidate in the general election of November, 1978. Prior to the election, a fund-raising plan was devised which consisted of mass mailing of campaign literature requesting contributions. The contributions were to be used in a media campaign several weeks before election day. The defendant initially rejected the fund raising plan because over $20,000 was needed to get the plan underway.

Jim Hooley, who served at various times as campaign manager and as consultant for defendant, and Greg Sullivan, from a retained public relations firm, came back with a second proposal whereby they would solicit “loans” to obtain the money necessary to begin the fund raising drive.

Hooley and Sullivan met with Hunt and discussed the idea. Hunt told Hooley and Sullivan to go ahead with the plan. Hooley and Sullivan were to raise $15,000 from “loans.” This money would be used to pay for printing, mailing lists, and postage. Any contributions received were to be used to pay back the people who “loaned” money for the venture. The excess was to be used in the media campaign.

Hooley and Sullivan traveled extensively both out-of-state and in-state trying to raise money. The Hunt campaign paid for the travel expenses incurred in these efforts with campaign funds. Eventually, the necessary money was raised. A checking account was opened in the name of “Guy Hunt Campaign Committee Special Account.” Hooley was listed as the only person authorized to sign checks on this account. Apparently, the separate account was set up to satisfy “Citizens for the Republic,” a national organization which provided $5,000 to get the plan underway.

Next, Hooley sent his ideas to a firm which designed the brochures to be mailed out. The campaign paid for the expense of having this material designed with campaign funds. Proofs of the brochures were shown to Hunt, who testified he read and approved them. At the bottom of the brochures, the following appeared: “Pd. Pol. Adv. by Guy Hunt Campaign, Cullman, A1 Carl Woodard, Chmn. printed by 0. Davis Enterprises, Huntsville, Al.”.

Hooley and Sullivan then contacted the plaintiff, telling him Hooley represented the Guy Hunt campaign. Plaintiff, who had previously done printing for the campaign, prepared copies of the different brochures. The materials were then mass printed and were mailed to approximately 60,000 individuals. However, the plan did not produce the expected contributions and only a few thousand dollars were raised. During this period, a partial payment was made to the plaintiff with a check signed by Hooley and drawn on the “special account.”

Approximately $1,400 remained in the “special account” after the election. This money was redeposited in Hunt’s regular campaign account and was used to pay back one of the individuals who had provided money to initiate the fund-raising plan.

Subsequent to the election, the plaintiff ultimately presented a bill to the Hunt campaign for an unpaid balance of $3,686.30. Hunt refused to pay. As indicated above, the trial court entered judgment in favor of the plaintiff.

On appeal, Hunt through able counsel contends that he is not personally liable for the costs of printing the campaign literature because Hooley did not have the authority to obtain credit in his name. Hunt further contends that he expressly told Hooley that the “loans” and/or proceeds from the fund-raising would have to cover all of the expenses connected with the plan because the campaign could not afford it. Thus, Hunt seeks to avoid personal liability on account of the acts of Hooley.

At the outset, we note that we have not previously dealt with the question of a candidate’s personal liability for campaign debts when a campaign organization such as the one at hand is involved. However, other jurisdictions treat such organizations as unincorporated political associations, not designed for purposes of trade or profit, fastening pecuniary liability on individual members, here the candidate, only by reason of the acts of such individuals or of their agents. Agency must be shown, not being implied from the mere act of association, and only those members who authorize or ratify the transaction are liable. American Art Works, Inc. v. Republican State Committee, 177 Okl. 420, 60 P.2d 786 (1936). Alabama also follows the rules of agency when nonprofit unincorporated associations are involved. See, Dinsmore v. J. H. Calvin Co., 214 Ala. 666, 108 So. 583 (1926). This court has likewise applied agency principles in a recent case involving a more informally run campaign, there finding the candidate-principal liable on a theory of apparent authority. Perry v. Meredith, Ala.Civ.App., 381 So.2d 649 (1980).

As seen from the above, it is this court’s determination that the law regarding agency is applicable to the instant appeal. At the outset, we note that whether any agency relationship exists is a question of fact for the trial court and, as such, is subject to the ore tenus rule. Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., Ala., 366 So.2d 251 (1978). Under these circumstances this court will not disturb the trial court’s decree unless plainly erroneous or manifestly unjust and against the great weight of the evidence. Alabama So., Crip. C. & A., Inc. v. Still Const. Co., Inc., 54 Ala.App. 390, 309 So.2d 102 (1975).

Hunt contends the evidence did not support a finding that Hooley was his agent. Hunt argues that, at the time when the agreement with plaintiff was reached, Hoo-ley was an independent contractor serving merely as a consultant to the campaign.

We do not agree. An agent, as representative of his principal, acts in the place of his principal and must be subject to a right of control. Wood Chevrolet Co., Inc. v. Bank of the Southeast, Ala., 352 So.2d 1350 (1977).

The record reveals that Hooley worked as “acting campaign director” and later as a consultant for the Hunt campaign. He was at all times paid a salary by the Hunt campaign of approximately $1,000 per month from which taxes and Social Security were withheld. During the period in question, his immediate supervisor was Hunt’s campaign director who had the authority to call Hooley and tell him where to go and what to do. In addition, as indicated above, Hunt personally had initially rejected the fund-raising plan and later approved it telling Hooley to go ahead and make preparations. Hunt’s campaign also paid Hooley’s expenses incurred in the fund-raising plan. It also appears that Hooley regularly reported the progress being made on the project to Hunt himself. Thus, there is evidence to indicate that Hunt exercised sufficient control over Hooley to create an agency relationship. Wood Chevrolet, Inc., supra.

Since there is evidence to establish that an agency relationship existed, it is necessary to determine whether Hooley was authorized to bind the defendant personally on the printing contract.

We conclude that Hooley had at least apparent authority to bind Hunt. As was said in Pearson v. Agricultural Ins. Co., 247 Ala. 485, 488, 25 So.2d 164, 167 (1946):

As between the principal'and third persons, mutual rights and liabilities are governed by the apparent scope of the agent’s authority which the principal has held out the agent as possessing, or which he has permitted the agent to represent that he possesses . . . . (Emphasis supplied.) (Citation omitted.)

Furthermore, a principal may vest his agent with apparent authority to perform an act by omission as well as commission, and such authority is implied where the principal passively permits the agent to appear to a third person to have authority to act on his behalf. Assured Growth Corp. v. Tomberlin, Ala.Civ.App., 334 So.2d 918 (1976). Although the principal may limit the agent’s authority through secret instructions and restrictions, third persons ignorant of the restricted extent of the agent’s authority may rely on the apparent scope of the agent’s authority and their rights will not be affected so long as they deal in good faith. Blue Cross-Blue Shield of Alabama v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975).

Here, there was evidence plaintiff had printed other material for the Hunt campaign. Indeed, there was even a plan, never implemented, to use plaintiff in advertisements as a representative black businessman who supported Hunt’s candidacy. Hunt knew of this plan. Plaintiff was approached by Hooley concerning the printing job at issue. Hooley was introduced to plaintiff by Sullivan, who plaintiff knew to be connected with Hunt. The brochures, approved by Hunt, indicated they were to be paid for by the Hunt campaign and furthermore, that plaintiff was the printer.

Based upon such facts, we are not prepared to say that plaintiff did not exhibit good faith in relying upon the apparent scope of Hooley’s authority. Likewise, the evidence permits a finding of apparent authority because Hunt knowingly or passively permitted Hooley to act on his behalf.

In other words, in approving the printing, Hunt allowed it to appear to plaintiff that he personally authorized the project. Davis’s name clearly appeared thereon, thus indicating Hunt approved of the selection of plaintiff as printer. This being so, if Hunt desired to avoid liability, he should have made this clear to plaintiff. See, Hafenbraedl v. LeTendre for Congress Committee, 61 Wis.2d 665, 213 N.W.2d 353 (1974).

This conclusion is buttressed by the other dealing between the parties. If this particular venture was to be separate and apart from the campaign as Hunt contends, under these facts, it was incumbent upon him to communicate this fact to plaintiff. By his inaction, Hunt, the principal, “placed the agent ‘in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business’ was justified in assuming that the agent had authority . . . .” Pearson v. Agricultural Ins. Co., supra, 247 Ala. at 488, 25 So.2d at 167 (citation omitted). Apparent authority thus existing, any secret limitations, uncommunicated to plaintiff, were ineffectual in limiting Hooley’s authority as relates to plaintiff. Blue Cross-Blue Shield of Alabama v. Thornton, supra.

Finally, the defendant contends that the evidence does not support the amount of the verdict. We do not agree.

The plaintiff’s complaint alleged that over $3,600 was due and owing. Plaintiff testified that this amount was owed and was reasonable. However, this amount included some work done after the printing in issue. The original bill sent to the Hunt campaign was for $2,951.67. Adding proper interest to the $2,951.67, the amount awarded, to wit, $3,114.01, is supported by the evidence. Put another way, our review of the record indicates there is evidence to support the amount of the judgment.

This case is due to be affirmed.

AFFIRMED.

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

ON REHEARING

The appellant’s counsel in brief in support of his application for rehearing points out that this court misstated a fact in our original opinion. He is technically correct. On page 9 of the original opinion the following is found: “The original bill sent to the Hunt campaign was for $2,951.67.”

This sentence should read as follows: “The bill regarding the services in question, which was initially sent to Sullivan’s public relations firm, was for $2,951.67.”

Opinion extended. Appellant’s application for rehearing overruled.

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


author: BEATTY, Justice.

text:
    Ex parte Guy HUNT. (In re: Guy HUNT v. Oscar DAVIS).
    79-706.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   BEATTY, Justice.

Writ denied. No opinion.

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


text:
    G. Daniel EVANS v. James B. MORTON.
    Civ. 2132.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    Rehearing Denied June 25, 1980.

      J. Massey Relfe, Jr., Birmingham, for appellant.
    James B. Morton and Eugene D. Marten-son, of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee.
   HOLMES, Judge.

The plaintiff and defendant practiced law together. After a period of approximately eighteen months they severed their association. The plaintiff sued the defendant, claiming that under their working agreement the defendant owed plaintiff certain fees which had been collected from clients.

After an ore tenus hearing the trial court entered a judgment in favor of the plaintiff in the amount of $2,554.90. The defendant appeals and this court affirms.

This court does not deem it necessary or prudent to set out in detail the evidence as contained in the record. Suffice it to say that reviewing the record with the attendant presumption, the following is revealed.

The plaintiff was engaged in the practice of law. The defendant after discussion with the plaintiff entered the private practice of law with the plaintiff. The plaintiff was to pay the office overhead. The defendant was to receive as remuneration 50% of the fees generated by those cases he brought into the practice of law and 50% of the fees generated from cases assigned by plaintiff to defendant. This agreement was oral. As indicated above, after approximately one and one-half years, the parties terminated their association. Certain cases that defendant was working on were retained by defendant when the association was terminated. The fees on these cases had not been paid or, at least, not paid in full at the time the parties terminated their agreement. They were paid to defendant thereafter. It is these fees that are in dispute. The trial court determined that defendant owed plaintiff a portion of these fees.

As we perceive defendant’s argument as contained in brief, it is his contention that the parties settled their fee arrangement each month and therefore no portion of the fees was due plaintiff after the termination of the parties’ arrangement. Defendant does not favor this court with any citation or authority to support his contentions.

A judgment or decree entered by the trial court after a hearing ore tenus is presumed correct and will be reversed on appeal only, if, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, an appellate court concludes that it was plainly and palpably wrong. 2A Ala. Digest Appeal & Error «=1009(1). Here, in this instance, we cannot say the agreement as effectuated by the trial court and the resulting judgment was plainly and palpably wrong. The testimony of the plaintiff supports the trial court’s interpretation of the parties’ agreement.

For this court to place a different interpretation on the agreement would be to substitute our judgment for that of the trial court. This the law in this instance does not permit. See Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975); Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972).

This case is due to be affirmed.

AFFIRMED.

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

      . Judge Holmes, although not sitting at oral argument, listened to the tapes of oral argument.


text:
    Ex parte G. Daniel EVANS. (Re: G. Daniel EVANS v. James B. MORTON).
    79-767.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   MADDOX, Justice.

WRIT DENIED - NO OPINION.

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


text:
    In re the Matter of Hobart Houston PALMER, IV and Dick Horton Palmer. Hobart H. PALMER and Diane Palmer v. James E. PIERCE and Kayren Pierce.
    Civ. 2111, 2112.
    Court of Civil Appeals of Alabama.
    June 4, 1980.

      Albert D. Lipscomb of Lipscomb & Lipscomb, Bessemer, for appellant.
    William Dowsing Davis, III, Birmingham, for appellee.
    John C. Fox, Birmingham, Guardian ad Litem, amicus curiae.
   WRIGHT, Presiding Judge.

This is a child custody case.

On December 11,1978, James and Kayren Pierce filed two petitions in Jefferson County Juvenile Court seeking to terminate the parental rights of the natural parents of Hobart Houston Palmer, IV and Dick Horton Palmer and to obtain permanent custody of the children.

The two petitions were consolidated for hearing. After a hearing, the trial court terminated the parental rights of the natural parents, Hobart H. Palmer and Diane Palmer, and gave permanent custody to the petitioners, the Pierces. The Palmers appeal.

The Palmers contend that the trial court’s findings are not supported by the evidence and that the court misapplied the applicable law to the facts of this case. They argue that the trial court failed to apply the legal presumption of fitness which the law indulges in favor of the natural parents.

While it is true that a natural parent has a prima facie right under the law to custody of his or her child, the primary consideration in a child custody case is that the determination be based on the best interest and welfare of the child. Strickland v. Osborn, 333 So.2d 582 (Ala.Civ.App.1976). That determination must come from the evidence and each case must be decided on its own facts. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).

The record in this case shows a sharp conflict in the evidence. The trial court heard the testimony ore tenus. It had an opportunity to observe the parties on the stand and in the courtroom. Where this is the case, the trial court’s judgment will not be disturbed on appeal unless found to be so unsupported by the evidence and contrary to law as to be plainly and palpably wrong and unjust. Lawson v. Jennings, 52 Ala.App. 582, 296 So.2d 176 (1974).

We have carefully considered the record in this case and we cannot say that the evidence fails to support the trial court’s judgment.

Testimony from several witnesses indicates that the children were neglected while in the custody of their parents. The testimony was that the children were constantly dirty and that the trailer in which they lived was in deplorable condition. There was evidence that when removed from the custody of their mother by their paternal grandfather and Mr. Pierce the boys were undernourished and underweight, their teeth were rotting and dirty and they had difficulty in relating to other people.

The father has been diagnosed as suffering from chronic schizophrenia. He has been hospitalized for treatment of this condition and for deep depression several times. He has served sentences in prison for manslaughter, carnal knowledge and violation of parole. He first impregnated the mother and then married her when she was only fourteen. He was thirty-eight. There is an older child whose custody is now in the Department of Pensions and Security. The mother entered a bigamous marriage with another man while the father was in prison. That marriage was annulled after the parties lived together for several months. There was testimony that the mother had said she was now living with the father only to get the children back.

In view of this and other evidence in the record, we cannot say that the trial court erred in its determination that the best interest of the children will be served by maintaining custody in the Pierces.

The Palmers next argue that the trial court’s order violated their constitutional right to custody of their children. The right to maintain family integrity is a fundamental right protected by the due process standards of the Constitution. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). That right is recognized by Alabama courts in their application of the presumption that parental custody will better serve the best interest of a child. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973). However, where it is shown that parental custody would be contrary to the best interests of the child the presumption is overcome. Smith v. Jones, 275 Ala. 148, 153 So.2d 226 (1963).

The Palmers have raised no specific violations of their due process rights. Having found that the evidence in the record supports the trial court’s order, we find no merit in the argument that the order violates their constitutional rights.

The Palmers’ final issue is whether the trial court erred in admitting a report prepared by the Jefferson County Department of Pensions and Security.

In Kelley v. State Department of Pensions and Security, 366 So.2d 736 (Ala.Civ.App.1979), this court held that § 12-15-65(f), Code of Alabama (1975) specifically provides that the court in disposition hearings may receive oral and written reports and rely upon them to the extent of their probative value. The record shows that counsel for the Palmers was allowed an opportunity to examine the report before it was introduced into evidence. The author of the report was in court and available for cross-examination. We find no error in the trial court’s admission and consideration of the report.

The order of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Billy Jack JONES v. Jo Ellen JONES.
    Civ. 2234.
    Court of Civil Appeals of Alabama.
    June 18, 1980.
    Rehearing Denied July 16, 1980.

      George M. Higginbotham, Jr., Bessemer, for appellant.
    Robert C. Boyce, III of Furner, Boyce & Nave, Bessemer, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

After a trial before the judge, the circuit court refused to terminate the plaintiff’s alimony from the defendant and made a finding of fact in the judgment that the plaintiff, at no time since the divorce of August 23, 1974, has been guilty of living openly or cohabiting with a member of the opposite sex as such terms are used in § 30-2-55, Code of Ala.1975, as amended. The defendant appeals.

In 1975, the plaintiff and her present man-friend first met and began dating each other. They made two trips to out of state football games in 1975 and went to races in Florida and Mobile. Generally, they shared the same bed on those occasions. They have had sexual intercourse in motels in Jefferson County; but, while he has spent the night at the plaintiff’s home on many occasions, they did not occupy the same bed, for he always slept on a couch in the den. As a rule, his staying overnight was caused by the lateness of their arrival at her home or in order to prevent his having to drive while under the influence of intoxicants a considerable distance to his mother’s home, where he lived. They would sometimes frequent restaurants and bars together and he would drive her car. He is a carpenter and infrequently adjusted doors or performed other odd jobs for her in and about her home. He did not have a wardrobe nor receive his mail at the plaintiff’s home. Neither did he make any contribution towards her household expenses or groceries. One of the plaintiff’s adult sons always lived with her except for a three month period.

Under such facts, did the trial court err in failing to find that the plaintiff cohabited with or lived openly with a member of the opposite sex?

Section 30-2-55, Code of Ala.1975, provides for the termination of periodic alimony which is authorized in a divorce proceeding “upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

The circuit judge did not abuse his discretion in finding that the plaintiff’s conduct did not bar her right to receive alimony. The question of whether the defendant met his burden of proof is ultimately a question of fact. We cannot substitute our judgment for that of the trial judge unless he was clearly and palpably wrong. Ivey v. Ivey, Ala.Civ.App., 378 So.2d 1151 (1979); Parish v. Parish, Ala.Civ.App., 374 So.2d 348, cert. denied, Ala., 374 So.2d 351 (1979); Atkinson v. Atkinson, Ala.Civ.App., 372 So.2d 1106 (1979).

The following from Parish, 374 So.2d at 349, 350 applies especially to the case at bar:

[W]e find the legislature intended to strike a balance between the occasional brief sojourn and the common-law marriage. Thus, while not every occurrence of postmarital unchastity by a former spouse will bar the right to alimony, . a petitioner need not prove the former spouse is habitually living with another and that the couple consider themselves married. (Citations omitted.) . . .
It is well settled in Alabama that a judgment or decree entered by a trial court after the hearing of testimony is presumed correct and will be reversed on appeal only if, after consideration of all the evidence and the reasonable inferences drawn therefrom, the appellate court concludes that it is plainly and palpably wrong. .

Here, the circuit judge was not plainly and palpably wrong. Therefore, the judgment of the circuit court must be affirmed.

Appellee requests an attorney’s fee and an attorney’s fee of $350 is hereby awarded.

The foregoing opinion was prepared by retired Circuit Judge Edward N. Scruggs, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code of Ala.1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Billy Jack JONES. (Re: Billy Jack Jones v. Jo Ellen Jones).
    79-832.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

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


author: BRADLEY, Judge.

text:
    STATE of Alabama v. One Ford XLT 100 Blue Pick-up Truck in Possession of Jim Trice HONDA.
    Civ. 2094.
    Court of Civil Appeals of Alabama.
    July 2, 1980.
    Rehearing Denied Aug. 6, 1980.

      Pat Gustin, Asst. Dist. Atty., for appellant.
    Hugh Beaird of Selman, Beaird & Sel-man, Jasper, for appellee.
   BRADLEY, Judge.

The State of Alabama filed a complaint seeking to declare a Ford truck in the possession of Jim Trice Honda to be contraband and, thus, subject to condemnation. The complaint alleged that the original vehicle identification number on the Ford truck had been removed and replaced with a falsified number. The State seized the vehicle pursuant to § 32-8-86(c) of the Alabama Certificate of Title and Antitheft Act, which provides:

(c) A person who buys, receives, possesses, sells or disposes of a vehicle or an engine for a vehicle, knowing that an identification number of the vehicle or engine has been removed or falsified, is guilty of a misdemeanor.

The State contends that it is illegal to possess a motor vehicle manufactured prior to or subsequent to 1975 on which the vehicle identification number has been falsified. Section 32-8-86(c). The State further asserts that such a vehicle is considered contraband per se and can be seized and condemned. Defendant’s main contention in reply is that the State failed to prove that he had violated § 32-8-86(c) and that the trial court’s finding to this effect should be upheld.

The dispositive issue then is whether the evidence adequately supports the trial court’s conclusion that the State failed to prove its case. Should we conclude that the evidence is sufficient to uphold the trial court’s finding, the other questions raised in brief by the parties will be pretermitted.

The statute in question is obviously penal in nature, for a violation thereof is made a misdemeanor. Penal statutes are to be strictly construed and all doubts concerning their interpretation are to be resolved in favor of the accused. Clements v. State, Ala., 370 So.2d 723 (1979).

Section 32-8-86(c) of the 1975 Code is a penal statute because a violation of it is made a misdemeanor. Hence it must be given a strict construction and any doubt about its interpretation must be resolved in favor of the defendant,

A violation of § 32-8-86(c) occurs if a person buys, receives, possesses, sells or disposes of a vehicle knowing that the vehicle identification number has been removed or falsified.

In the case at bar the State seized and sought to condemn the vehicle in question because the vehicle identification number had been falsified. It, therefore, had the burden of proving not only that the vehicle identification number had been falsified, but also that the defendant knew the vehicle identification number had been falsified. Section 32-8-86(c); see also Greenway v. State, 8 Md.App. 194, 259 A.2d 89 (1969). Thus the State would have to show that the defendant knew that the vehicle identification number had been falsified at the time the vehicle was seized. (The defendant was not prosecuted criminally for a violation of the statute.)

In an attempt to meet its burden of proof, the State offered expert testimony that the vehicle identification number on the Ford truck had been falsified; it also offered proof to the effect that the defendant had attempted to sell the vehicle after obtaining it in a trade but the sale fell through because the would-be purchaser complained that there was some trouble with the “numbers.” The defendant took it back and said he would solve the problem. There is also testimony that the defendant was told by the police, after their assistance was sought to determine if the vehicle was stolen, that the vehicle identification number had been altered but the police were not able to place a particular model year on this Ford vehicle. The testimony as to the model year ranged from 1973 to 1976.

The State’s witnesses also testified that they were unable to talk to prior titleholders and were unable to say that the vehicle had been stolen.

The defendant testified that he took the vehicle in question as a 1974 Ford one-half ton pick-up in a trade with a Dora policeman. The vehicle had no tag on it because the previous owner had a National Guard tag on it and took it off when it was traded to defendant. He stated he did not know the vehicle identification number had been falsified. He said that he bought the truck as a 1974 model and he believed that to be the model year. He further stated that he had been in the automobile business for nineteen years and he could not say what significance the various numbers and letters in the serial number had nor was he concerned with the serial number, except to place it on the bill of sale or to verify the title. Nor did he check the frame for a serial number. He was told by a local policeman that the vehicle was probably stolen.

The finding of the trial court sitting without a jury has the effect of a jury verdict and, if supported by competent evidence, will not be disturbed unless plainly erroneous. San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374 (1974).

In the instant case the trial court found, in effect, that the State had failed to prove that the defendant received, bought or possessed the vehicle in question knowing that the vehicle identification number had been falsified. Such a finding is required, assuming the evidence supports it, in view of the State’s position that mere possession of the vehicle with a falsified vehicle identification number warrants its seizure and condemnation. The statute requires that the defendant possess the vehicle knowing that the vehicle identification number has been falsified. The evidence is sufficient to support the conclusion that the defendant had no knowledge that the vehicle identification number had been falsified. Under these circumstances, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    Lloyd R. GEESLIN v. MARTIN, GEESLIN, MARTIN, INC., a corporation; and James M. Martin, Donald R. Martin, and Robert M. Martin.
    Civ. 2390.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      William P. Boggs of Boggs & Mims, Clan-ton, for appellant.
    John Hollis Jackson, Jr., Clanton, for ap-pellees.
   WRIGHT, Presiding Judge.

This began as a stockholder action for an accounting and distribution of assets of a corporation after its dissolution by action of its directors and stockholders under authority of § 10-2-203, Code of Alabama (1975). Prom final judgment approving the sale and ordering distribution of corporate assets, plaintiff stockholder appeals. Pacts presented ore terms to the trial court as pertinent are as follows: In 1974, plaintiff Geeslin, and three Martins formed a corporation with the name of Martin, Geeslin, Martin, Inc. (hereafter called M.G.M.) Each subscribed to twenty-five percent of the stock. There is no indication that the capital was ever paid in.

The purpose of the corporation was to own and operate cemeteries, sell burial plots, monuments, vaults, inter bodies and provide other burial services. The Martin stockholders separately owned á funeral home, cemetery and monument company. M.G.M. purchased three cemeteries and began selling burial plots and monuments. Geeslin was the sales manager. A Martin was the secretary-treasurer. The funds for the purchase of the cemeteries came from the capital of Martin companies. The monuments sold came from the stock of Martin Monument Company. Funds deposited to the account of M.G.M. were derived from discounted sales of contracts for the purchase of cemetery plots to various banks. Many of the sales of plots, monuments, vaults and burial service were pre-need sales, i. e., the merchandise or service though paid for was not to be provided until future need. Thus, there were supposed to be trust accounts established to provide for the contingent liability. There was also to be established a trust account to be added to from each sale to provide for perpetual maintenance and care of the cemeteries. These trust accounts were never properly funded. A reserve was held by the banks purchasing the sales contracts to be drawn upon in the event of any default. Commissions were paid the salespersons who made the contract sales.

After a period of operation, dispute arose and plaintiff was requested to leave the employment of M.G.M. In March 1976 the majority stockholders of M.G.M. voted to dissolve the corporation. Thereafter, the Martins undertook to settle the affairs of the corporation as trustees under § 10-2-212. The Martin companies paid the liabilities and debts of M.G.M., including the payments for the land, from their own funds. Funds derived from sales after dissolution of M.G.M. were commingled with the funds of Martin Memorial Cemetery, Inc.

Plaintiff subsequently brought an action seeking an accounting of the Martins acting as trustees for M.G.M. and a determination of and distribution of corporate assets.

The court appointed a certified public accountant to prepare an accounting. Using materials and records delivered to him, he prepared and filed an accounting. The accounting noted that because of the inadequate records of the corporation, there was no audit possible. The accounting involved only discovered assets and liabilities. The listed assets were primarily the land and reserve bank accounts. The liabilities were shown to exceed assets by nearly $20,000.

The court subsequently took testimony ore tenus and entered judgment. One of its findings was that Martin Memorial Cemetery, Inc. was owed a net sum of $50,514.35 after charge for commingled funds. It was ordered that the assets of M.G.M. be sold at public sale and the proceeds distributed as specifically ordered. Included in the distribution in second order, after cost and payment of accountant’s fee, was payment of the debt owed Martin Memorial Cemetery, Inc.

After an amended judgment and published notice of sale, the real estate of the corporation was sold by the clerk of the court at public sale to the highest bidder on September 6, 1979. The highest bid was in the sum of $1.00, made by Martin Memorial Cemetery, Inc.

Plaintiff filed motion to set aside the sale as grossly inadequate and the motion was heard, denied and the sale was confirmed on October 19, 1979.

ON MERITS

I

Plaintiff first contends that the trial court erred in failing to find that the directors (Martins) of the dissolved corporation breached their duties as trustees in the operation of the corporate affairs after dissolution, § 10-2-212, Code of Alabama (1975). It is submitted that they failed to keep proper records, commingled corporate funds, and continued to do business after dissolution rather than winding down the business.

We have noted that the court heard testimony ore tenus and received the report of the court-appointed accountant. It is clear that the corporation was never operated in a businesslike manner, and the records were inadequate both before and after dissolution. There was much testimony, and exploration of the corporate operation was made in depth. After hearing all the testimony, the court made a determination of the issues presented. After consideration of the evidence with the attendant legal presumption of the correctness of the trial court’s findings, we cannot hold those findings palpably erroneous. Stinson v. Adams, 376 So.2d 1108 (Ala.Civ.App.1979); 2 A Ala.Dig., Appeal & Error, Key No. 931(1). There is clear evidence that during its short life, M.G.M. assumed heavy liabilities, and the cash assets, largely derived from the sale of lots and monuments, were consumed by commissions, reserves, discounts and other expenses. It is evident that if the Martin corporations had not provided financial support, M.G.M. could not have functioned and met the payments on its principal asset, the real estate. There is no real conflict in the evidence that the debt to Martin was substantially as found by the court.

The contention of plaintiff that there was no accounting made is not meritorious. All records available were reasonably examined. It became evident that records were so inadequate that an audit was not reasonably possible. However, there was evidence of the sales and receipts after dissolution and their deposit in the Martin Memorial Cemetery account. Due credit was given for such sums against the indebtedness owed Martin Memorial Cemetery, Inc. With the evidence adduced so limited in verity, we find the court not in error in the accounting.

II

Plaintiff further submits the trial court erred in confirming the sale of the assets for $1.00. We understand that perhaps the court considered the bid by Martin Memorial Cemetery to be in reality a setoff against the debt owed it. However, we consider it improper to approve a sale for $1.00 for that reason. Under the evidence presented, a bid of $1.00 clearly does not reflect a market value. Recognizing that many lots have been sold from some of the properties since their purchase for more than $60,000, it yet must follow that there are many lots remaining. There was some evidence that the property was valued as high as $500,000 for cemetery purposes.

There is nothing to indicate how much, if any, of the indebtedness to Martin was set off in the bid. It has been indicated that when the purchaser at a judicial sale is not a stranger to the proceedings, the price bid should be measurably adequate or not greatly less than its market value if the sale is to be confirmed. Hicks v. Hicks, 363 So.2d 861 (Ala.1978). There was no pre-sale appraisal as to the fair market value. However, in view of the evidence of cost and the price obtained upon sale of each burial plot, it is clear that the bid price is grossly inadequate and cannot stand. Martin v. Jones, 268 Ala. 286, 105 So. 860 (1958).

If it was intended to credit the debt owed Martin against a fair bid price, there should have been a bid in such an amount and setoff accepted by the court. As it stands, there is no indication of a reasonable bid. In addition, it is to be noted that Martin was directed to be second in order of payment from the proceeds of the sale. The cost of court and fee of the accountant were first in line before Martin was due any payment.

This court holds that under the state of the record, the sale to Martin must be set aside and the property resold at a public sale for a measurably adequate price, with the proceeds distributed or credited in accord with the judgment. Lankford v. Jackson, 21 Ala. 650 (1852).

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.