author: CIACCIO, Judge.

text:
    Lionel SMITH v. George ALEXANDER and Government Employees Insurance Company.
    No. 12951.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Darken M. Jacobs, A Professional Law Corp., New Orleans, for plaintiff-appellant.
    Joseph R. McMahon, Jr., Young, McMahon, & Levert, A Professional Law Corp., New Orleans, for defendants-appellees.
    Before KLEES, BYRNES and CIACCIO, JJ.
   CIACCIO, Judge.

This is an action to recover damages for personal injuries sustained in an automobile accident that occurred in St. Bernard Parish on November 13, 1977, on Louisiana Highway 46 (hereinafter referred to as St. Bernard Highway). After a trial on the merits, the district court rendered judgment in favor of the defendants, George Alexander and his insurer, dismissing the plaintiff’s suit. The plaintiff appeals the judgment.

On November 13,1977, George Alexander was driving his pickup truck in a westerly direction on St. Bernard Highway. His vehicle had two guest passengers, Danny Hin-gle, who was seated on the passenger’s side of the truck, and Sidney Hingle, who was seated in the middle of the truck. The defendant’s truck was being followed by a small automobile which was owned and operated by the plaintiff, Lionel Smith. At the location of the accident, St. Bernard Highway is a two lane road divided by a narrow median.

The defendant, while proceeding down St. Bernard Highway, in a westerly direction, passed the intersection of Colonial Drive and St. Bernard Highway, and while attempting to negotiate a left turn at an opening in the median, his vehicle was struck by the plaintiff’s vehicle. The impact resulted in damage to the bumper and the rear left panel of the defendant’s truck. The plaintiff’s car sustained damage to the right front area. The plaintiff suffered injuries to the head and upper torso as a result of the accident. He was treated by Dr. Lucas DiLeo.

There is a conflict in the testimony regarding the events which immediately preceded the accident. The plaintiff testified that, shortly before the accident, the defendant’s vehicle veered to the right of the roadway on to the gravel shoulder, and then, in order to make a left turn, swung back on to the highway immediately in the path of plaintiff’s oncoming vehicle, causing a collision. The plaintiff further testified that the defendant’s turn indicator was not operating to signal a left turn before the accident. The testimony of Larry Jackson, the investigating officer, supports the plaintiff’s version of how the accident happened. He testified that the damage to the left rear of the defendant’s vehicle could only be explained if the defendant was in the center of the roadway at the time of the collision. Therefore, he reasoned deductively, that the defendant had swerved over to his right in order to make a wide left turn.

This testimony is contradicted by the defendant, George Alexander, and his two guest passengers. They testified that the defendant was traveling westerly on St. Bernard Highway and that he activated his turn indicator to signal a left turn and slowed his vehicle to make a u-turn at the opening in the median. He did not leave the highway. He could not proceed across the highway because of approaching traffic. One of the guest passengers warned of the plaintiff’s approach, but the time and conditions did not allow the defendant driver to respond to the warning. The initial impact caused the plaintiff’s vehicle to skid off the defendant’s bumper, damaging the defendant’s left rear panel.

The trial judge had to resolve this apparent conflict in the testimony in order to render a judgment. He made a credibility determination in favor of the defendants. The sole issue presented for review is whether or not this factual finding of the trial judge was manifestly erroneous.

The standard for appellate review is set forth in the Louisiana Supreme Court decision of Canter v. Koehring:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact: where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” 283 So.2d 716 at 724 (La., 1973).

This standard has been clarified and refined by the decision of Arceneaux v. Domingue, 365 So.2d 1330 (La., 1979). In that decision, the Louisiana Supreme Court made the following statement regarding the appellate standard of review: “ — the appellate court should not disturb such a finding of fact, unless it is clearly wrong.” Arceneaux v. Domingue, supra at 1333.

In the instant case, the trial judge did not give written reasons for judgment. However, we must conclude from his judgment, that he found that the defendant was free of negligence or that the plaintiff was negligent, and his negligence was either the sole proximate cause of the accident or was contributory negligence.

It is generally recognized that one who attempts to negotiate a left turn must signal his intentions to do so. Hollier v. Gilder, 306 So.2d 475 (La.App., 3rd Cir., 1975). The driver of a vehicle who desires to make a left turn also has a responsibility imposed by law to ascertain whether such a maneuver can be safely executed, without danger or undue delay to overtaking oncoming traffic. Natchitoches Motor Company v. Travelers Insurance Company, 372 So.2d 811 (La.App., 3rd Cir., 1979). It is, likewise, well established that in determining whether a left turn can be made safely, a motorist has every right to assume that following traffic will observe all of the duties imposed upon it. Songe v. Highland Insurance Company, 336 So.2d 243 (La.App., 1st Cir., 1976).

Generally, a following motorist must maintain a safe interval, so that in a sudden emergency he can bring his vehicle to a stop, without striking the car ahead. Layfield v. Altazan, 255 So.2d 363 (La.App., 1st Cir., 1971). A presumption of negligence will arise when a motorist strikes the rear of a preceding vehicle. Eubanks v. Brasseal, 310 So.2d 550 (La., 1975), on remand, 318 So.2d 79; Jones v. Meinke, 357 So.2d 838 (La.App., 4th Cir., 1978).

We have reviewed, in detail, the record in this matter, and we are convinced that the trial court was not clearly wrong in its findings on the issue of liability.

Defendant’s testimony, and that of his two guest passengers, is in direct conflict with the testimony of the plaintiff. The trial judge resolved this conflict in defendant’s favor and we find no manifest error in his finding.

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed against the plaintiff.

AFFIRMED.

      . The defendant testified that he is illiterate, having only a third grade education. His lack of formal education is at time reflected in his testimony with regard to the names of streets, full names of his guest passengers and his estimate of time. However, the defendant was unwavering in his testimony regarding the salient events leading up to and including the accident.


source: Caselaw Access Project

author: WARD, Judge. WILLIAMS, Judge,

license: Public Domain

text:
    Anthony J. CHAPPETTA and Yvonne Marie Chappetta v. BOWMAN TRANSPORTATION, INC., Roland L. Ridley, Jr., and ABC Insurance Company.
    No. 12991.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      E. Phelps Gay, Christovich & Kearney, New Orleans, for appellants.
    G. Patrick Hand, Jr., Hand & Markey, New Orleans, for appellees.
    Before BYRNES, WARD and WILLIAMS, JJ.
   WARD, Judge.

This is an appeal from a judgment of the Civil District Court in favor of plaintiffs Anthony Chappetta and his daughter, Yvonne Chappetta. Plaintiffs sued to recover damages they sustained when a truck driven by Roland Ridley, Jr., struck Mr. Chappetta’s automobile which his daughter, Yvonne, was driving. Trial was held before the District Judge, who found that Ridley was negligent and liable for damages to both plaintiffs. He also held that defendant Bowman Transportation, Inc. [Bowman] was liable to both plaintiffs because Ridley was employed by Bowman and was driving the truck in the course of his employment when the accident occurred.

Although defendants concede that Rid-ley’s negligence was proved, they contend the Trial Judge erred in his award of damages, and they have appealed. A brief description of the accident and the problems it created will aid in understanding some of the issues in this appeal.

Miss Chappetta was driving her father’s automobile, a brand new Camaro, travelling west on Old Gentilly Highway. As she approached the intersection of the highway and Downman Road, she noticed the tractor-trailer truck, driven by Ridley, travel-ling south on Downman Road. Ridley drove into the intersection without first stopping at the stop sign controlling Down-man Road traffic. Although she had the right of way, Miss Chappetta stopped the Camaro to let the truck pass. Ridley, however, abruptly made a left turn, and although the cab of the truck passed safely in front of the Camaro, the left rear wheels of the tractor-trailer came over the hood and on top of the roof directly over Miss Chap-petta. After the accident, she was unable to leave the vehicle from the driver’s side and had to be helped out of the passenger door. When her father arrived at the scene, she was hysterical, and he took her to Methodist Hospital, where she was examined. She was not physically injured, but she was later treated by her family physician for post-traumatic stress disorder.

Shortly after the accident, Mr. Chappet-ta’s automobile was towed to Banner Chevrolet for repairs. Mr. Chappetta and Bowman attempted to settle any claims, but negotiations were unsuccessful, and Mr. Chappetta paid Banner $1,941.79 for the repairs. He was reimbursed by his collision insurance carrier, Allstate, for the cost of the repairs less $250.00 as a deductible. Allstate was subrogated to Mr. Chappetta’s claim against Bowman, but after payment of the claim, Allstate immediately reassigned its subrogation right to Mr. Chappet-ta, and he agreed to pay Allstate when his claim against Bowman was settled.

PROPERTY DAMAGE

The Trial Judge awarded Mr. Chap-petta damages for the full cost of the repairs, which included both the amount he paid because of the deductible and the amount Allstate paid under the collision policy. Defendants argue that the Trial Judge erred when he permitted proof of property damages that exceeded the amount requested in the petition because Mr. Chappetta only sued for the deductible. During trial, however, defendants did not object to the presentation of evidence of repair costs that exceeded the deductible. We therefore believe the Trial Judge was correct because, in the absence of a timely objection, the evidence was admissible although it exceeded the amount claimed in the petition.

Defendants also contend that Allstate was subrogated to the remainder of the claim and that Mr. Chappétta did not have a right of action to recover it. During trial, Mr. Chappetta testified that Allstate assigned its subrogation right to him and he promised to return to Allstate any money recovered under it. This court has previously held that a subrogation right can be assigned to the insured, who then has a right of action to enforce it; moreover, the assignment may be made orally and may be proven like any other fact. Rond v. Sims, 355 So.2d 591 (La.App. 4th Cir. 1978), writ den. 357 So.2d 1164 (La.1978).

We believe, as the Trial Judge believed, Allstate could assign its right of subrogation and the assignment was proven by a preponderance of the evidence. Mr. Chap-petta, therefore, may recover the full cost of repairs. The Trial Judge did not err.

In addition to the full cost of repairs, the Trial Judge also awarded Mr. Chappetta $1,000.00 for depreciation to his automobile. Defendants contend that the Trial Judge erred and argue that the automobile did not depreciate, and alternatively, if there was any depreciation, faulty repair work caused it. During trial both Mr. Chappetta and his daughter testified that the car rattled and handled poorly after the accident in spite of the repairs and in contrast to its performance before the accident. An expert testified for plaintiffs that when an automobile has been seriously damaged, although repaired, the tradein value of the car is less. Nevertheless, an expert testified for defendants that when a car damaged in an accident is properly repaired, the value is the same after the accident as it was before. The Trial Judge made a finding of fact; Mr. Chappetta’s automobile had depreciated and the depreciation was caused by the accident, not the faulty repairs.

There is no question but that “additional damages may be recovered for the diminution of value by virtue of the vehicle having been involved in an accident, provided proof of such value be made.” Traders & General Insurance Co. v. Robison, 289 So.2d 178 (La.App. 1st Cir. 1973). In this case, the only question is one of proof, and we believe, as the Trial Judge believed, there was proof by a preponderance of the evidence that Mr. Chappetta’s automobile depreciated in value as a result of the accident.

RENTAL CAR

The Trial Judge awarded to Mr. Chappet-ta $1,196.80 for the cost he incurred when he rented an automobile while his car was being repaired. Defendants claim this was excessive.

The owner of an automobile damaged in an accident may recover expenses of renting an automobile for a reasonable time, but he must exercise diligence to promptly repair or replace the damaged automobile. Nolan v. Liuzza, 301 So.2d 892 (La.App. 4th Cir. 1974). What is a reasonable time and whether the owner made diligent efforts to promptly repair or replace the damaged vehicle are questions of fact that must be decided by the Trial Judge (or jury) on a case by case basis.

In this case negotiations between Mr. Chappetta and Bowman delayed repairs; Mr. Chappetta had hoped to have his new Camaro replaced; Bowman was equivocal in its response. When Bowman finally refused to replace the automobile, Banner Chevrolet could not repair it immediately because Banner did not stock parts to repair brand new automobiles. The Trial Judge obviously believed that Mr. Chappetta made diligent efforts to repair or replace the automobile and the expenses were reasonable. That finding is supported by the record. It is not manifestly erroneous, and it will not be disturbed.

MENTAL ANGUISH

The Trial Judge also awarded to Yvonne Chappetta $1,000.00 for bodily injuries, fear, and worry. Defendants contend the Trial Judge erred. They argue that because Miss Chappetta was not physically injured she cannot recover damages for emotional injuries, and they rely on Chriss v. Manchester Insurance & Indemnity Co., 308 So.2d 803 (La.App. 4th Cir. 1975) for the rule that “[i]n negligence cases involving injury to property this court has limited recovery of damages for emotional stress (unaccompanied by physical injury) to those cases where the disturbance causes bodily harm or illness.” That case also quotes Prosser’s Handbook of the Law of Torts, Ch. 9, p. 329 (4th ed., 1971):

The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking. (Footnotes omitted)

Miss Chappetta did not sustain physical injury, but she contends that more recent cases permit recovery for mental anguish. She argues that courts have recently approved damages for mental anguish, although not accompanied by physical injury, “to persons who are present or nearby when the accident causing the damage occurred and [who] experienced a real psychic trauma in the nature of or similar to a physical injury as a result of the accident.” Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir. 1977), writ den. 350 So.2d 894 (La.1977). However, “[i]n order to recover for mental anguish, it must be proven that plaintiff suffered more than minimal worry and inconvenience over the consequences of the damage.” Meyers v. Basso, 381 So.2d 843 (La.App. 1st Cir. 1980), writ den. 384 So.2d 794 (La.1980).

In this case there was more than fright. Miss Chappetta was hysterical after the accident, and she was immediately taken to the hospital. Shortly thereafter she sought treatment from her family physician, Dr. Francis Lothschuetz. At that time she complained of headaches, anxiety, and recurring nightmares of the accident which caused difficulty sleeping. Dr. Lothschuetz diagnosed her symptoms as an acute severe anxiety complex secondary to the automobile accident and the associated emotional trauma, and he prescribed tranquilizers. One month later, Miss Chappetta returned to Dr. Lothschuetz and complained of continued headaches and tightness in the neck muscles. Dr. Lothschuetz diagnosed this as emotional problems that were related to the accident.

We believe, as the Trial Judge believed, that Miss Chappetta should be compensated for emotional injuries caused by the accident, although they were independent of any physical injuries. We base our opinion on this court’s decision in Hymel v. Tom Alexander Brokerage Co., supra, which supports our view that when emotional injuries are proven by a preponderance of the evidence to exist and to have been caused by a negligent act, damages should be awarded for those injuries, even when they are not accompanied by physical injuries. We believe there is no reason to distinguish between physical injuries and independent emotional injuries and to award compensation for one but not for the other.

We recognize the legitimate fear that frivolous claims may be made, but frivolous claims have been made for physical injuries. The problem, if any, is one of proof, and emotional injuries, like physical injuries, must be proven by a preponderance of the evidence. More difficult and quite unlike physical injuries is the question of whether they can be proven to be caused by the negligent act of another. Nevertheless, we believe the question is capable of answer by the trier of fact with the aid of competent expert witnesses. We also recognize that the extent of protection afforded to another’s interest in freedom from emotional injury, just as for physical injury, must have reasonable limitations, but duty/risk analysis and proximate cause concepts serve to limit liability to those emotional injuries that were foreseeable or that could have been reasonably anticipated to result from the negligent act.

Other states have awarded compensation for emotional injuries although unaccompanied by physical injury. Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (Cal.1980); Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Hawaii 1980). Although the majority of states have limited compensation to those injured within a zone of danger, we believe it is sufficient to require that the evidence prove that emotional injury exists which was caused by the negligent act of another, and when the particular emotional injury was foreseeable and could reasonably be anticipated, damages should be awarded.

In the instant ease, although we do not believe fright is an emotional injury, we believe there was sufficient proof of emotional injury, post-traumatic stress disorder, to support the Trial Judge’s award of damages. The circumstances of the accident and the expert testimony convince us that the emotional injuries were caused by the negligent act of Ridley and that these injuries could reasonably be anticipated to result from this act.

We therefore affirm and assess cost of trial and this appeal to defendants.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, Judge,

dissenting.

I respectfully dissent.

The facts presented by this case do not satisfy the requirements set forth by the court in Rond v. Sims, 355 So.2d 591 (La.App. 4th Cir. 1978): there is not sufficient evidence in the record to sustain a finding by the trial court that a valid assignment had taken place.


author: PATTERSON, Chief Justice,

text:
    ROYAL LINCOLN-MERCURY SALES, INC., et al v. Melvin WALLACE.
    No. 53084.
    Supreme Court of Mississippi.
    May 5, 1982.
    Rehearing Denied July 14, 1982.

      Watkins & Eager, Robert H. Pedersen, Hassell H. Whitworth, Jackson, for appellants.
    Graves, Terry & Sheely, Jerry 0. Terry, Gulfport, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

Melvin Wallace, the purchaser of a new Continental automobile, brought suit against Royal Lincoln-Mercury Sales, Inc., (Royal) and Ford Motor Company (Ford) for breach of an implied warranty of fitness and for breach of an express warranty of fitness by Ford. Additionally, there was charged a violation by both Royal and Ford of 15 U.S.C. § 2301 et seq. From a jury verdict of $13,812.50 for damages and a court award of $2,162.50 for attorneys fees in favor of the plaintiff, both Royal and Ford appeal.

Although there are numerous assignments of error for reversal by both defendants they were reduced to the following on oral argument:

1. Does the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., apply to this case?

2. Does the implied warranty of fitness, Miss.Code Ann. § 75-2-315 have present application?

3. Did the plaintiff effectively revoke acceptance of the vehicle as to both Royal and Ford?

4. Can Wallace recover the purchase price of the automobile from Ford?

On July 7,1978, Melvin Wallace, appellee, purchased a new 1978 Lincoln Continental automobile from Royal Lincoln-Mercury Sales, Inc., of Gulfport for $13,812.00. Royal delivered a manufacturer’s new car limited warranty from Ford to Wallace along with the car. Afterwards, there began an unusual series of events leading to this suit.

The first of numerous troubles occurred approximately two weeks after the automobile’s purchase when the engine hesitated, the chrome rattled and the vinyl roof peeled. The car was driven to Royal for repair and after four days was returned to Wallace and according to him, the engine still hesitated and the chrome still rattled.

Thereafter Wallace and his wife made a trip from Gulfport to Nashville, Tennessee, and while near Mobile, Alabama, the car’s air conditioning failed and although it was repaired by a Lincoln dealer in Nashville, it again failed on the return trip to Gulfport. Moreover, the car used approximately three quarts of oil during the trip.

The car was again taken to Royal for repairs. The complaints were the problems with the air conditioning, loose chrome, arm rests not being sewn, paint fading, oil leakage, and a wire protruding through the upholstery on one of the seats. Later, after being assured the problems had been corrected, the car was returned to Wallace who discovered it still leaked oil and that the air conditioning had failed again. Royal then replaced the compressor in the air conditioner.

When the car was four months old with approximately 2,200 miles on it, Mr. Loovis, a Ford factory representative, came from New Orleans, to Royal in Gulfport to assess the problems Wallace was experiencing with his automobile. At this time Wallace, his wife, Loovis, a service manager at Royal, and Mr. Fargason, the President of Royal inspected the car. Wallace advised them the oil was still leaking and that the valve cover gasket installed by Royal had not stopped the leakage. He reported the vinyl top continued to peel and that the glue previously applied by Royal had not corrected the problem. After the inspection the parties gathered in Fargason’s office to discuss the difficulties with the car.

Loovis, the factory representative, offered to install a short block in the engine, repair the vinyl roof, and the loose chrome as well as repaint where needed. Wallace refused stating that he wanted everything replaced, a new car, or his money returned, adding that he did not want a repaired automobile. Fargason refused to return Wallace’s money because he thought the car could be repaired. Wallace then offered his car plus $500 for a new one but this offer was declined. Wallace next offered to trade “sticker price” for “sticker price” for a new car but this suggestion was also refused. Wallace then advised he would have to contact an attorney whereupon Fargason replied that he would see him in court.

Wallace retained possession of the car and when the starter failed in September 1978, he had it towed to Royal at his own expense for repair. Fargason again offered to install the short block but Wallace refused permitting only the repair to the starter. Thereafter Wallace moved to Bowling Green, Kentucky, where difficulties with the automobile continued. Mainly, the leakage of oil and the air conditioner again malfunctioning. Wallace later moved to Florida where the car was taken to a Lincoln dealer in Fort Walton Beach who advised him to take the car back to Royal. He did so and according to Wallace, Farga-son refused to trade or make satisfaction on the car.

On March 15, 1979, the car was again taken to the Lincoln dealer in Fort Walton Beach who was informed of all the previous problems he had with the car and additionally, that the electrical system was failing. These complaints led to the installation of a new valve cover gasket in the engine, the dealer ordered a new vinyl top and gained authority to repaint the entire car and install new rocker panel moldings. At this time the car had approximately 11,000 miles on it. After the parts arrived at the dealership in Florida, Wallace was unavailable so the repairs could not be made. During the interim Wallace had returned to Mississippi, parked the car permanently, and filed suit against Royal and Ford asking the court to make a determination as to the proper disposition of the car.

Without contradiction, all of the warranty repair work performed on the automobile was done at no charge to Wallace and all work offered to be done would not have cost him anything.

I. DOES THE MAGNUSON-MOSS WARRANTY ACT APPLY IN THIS CASE?

Ford and Royal agree that under the facts and in the context of the issues on appeal, the right of action created by the Magnuson-Moss Warranty Act for breach of implied and express warranties is co-extensive with the right of action created by Mississippi Uniform Commercial Code. They further agree that though the act does not create any new implied warranties, but merely incorporates and enforces existing state implied warranty law, the act nevertheless, creates a new federal cause of action for the breach of warranties. Thus an alleged breach of an implied warranty or of an express written warranty can be the basis of two separate and distinct claims. A claim can be asserted that a breach of warranty violated the applicable sections of the state’s Uniform Commercial Code or a claim can be made that the same breach gives rise to a cause of action under the federal act. The elements of proof are the same whether the claim is made under the act or under state law. The issue now in contention under the Magnuson-Moss Warranty Act is the award of attorneys fees which is authorized by the act under certain conditions but which is not authorized by the Uniform Commercial Code.

The condition precedent to the award of attorneys fees is that provided in 15 U.S.C. § 2310(e):

No action ... may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty ... unless the person obligated under the warranty ... is afforded a reasonable opportunity to cure such failure to comply.

The relevant issue, reasonable opportunity to cure, was factual and in our opinion was properly left for the jury’s determination under correct instructions. The issue was resolved in plaintiff’s favor by the jury as is evidenced by its verdict. Thereafter, upon proper motion, the court awarded attorneys fees. We are of the opinion the Magnuson-Moss Warranty Act did have application and that the issue presented under it was properly resolved.

II. DOES THE IMPLIED WARRANTY OF FITNESS, MISS.CODE ANN., § 75-2-314 HAVE APPLICATION?

Miss.Code Ann. § 75-2-315 in pertinent part provides:

Implied Warranty; fitness for particular purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose ....

There is no testimony that the plaintiff relied upon the seller’s skill or judgment in selecting the car that he purchased from Royal. Obviously, the purpose of the purchase from the authorized dealer was that of transportation. Although it can be envisioned that an automobile could be purchased for a particular purpose such as racing, towing a large trailer, or other specialized use, where the ordinary purchaser would need the seller’s skill or judgment in making a selection, this was not so in the present case. We, therefore, think that § 75-2-315 has no application. See Massey-Ferguson, Inc. v. Evans, 406 So.2d 15 (Miss.1981) and Ford Motor Company v. Fairley, 398 So.2d 216 (Miss.1981).

The above determination is not to be considered as foreclosing the question of liability of either Ford or Royal under a preceding section. Miss.Code Ann. § 75-2-314 (Repl.1981) provides in part as follows:

(1) A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as ...
(c) are fit for the ordinary purposes for which such goods are used; and ...

We are of the opinion that § 75-2-314 does have application to Royal, the seller, because an issue of fact was made by the pleadings and evidence for the jury’s resolution as to whether the Continental automobile was fit for the ordinary purpose for which it was purchased. Massey-Ferguson, supra. Such issue was presented to the jury under proper instruction and was resolved in Wallace’s favor. We think, therefore, that there was no error in this finding by the jury as to Royal.

A greater question arises concerning the liability of Ford under § 75-2-314. Ford contends that Wallace cannot recover the purchase price from it because Ford did not sell the vehicle to him, relying upon Miss.Code Ann. § 75-2-103(l)(d), wherein a seller is defined as, “a person who sells or contracts to sell goods.” From this premise Ford argues there is no evidence in the record that it either sold or contracted to sell anything to Wallace and therefore, the remedies provided in Miss.Code Ann. § 75-2-711 do not apply to it. Ford cites Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976), where one of the issues was, “whether the plaintiff, a purchaser of an automobile, can rescind or revoke acceptance of the automobile and recover the purchase price as to the defendant Ford Motor Company, the manufacturer of the automobile, when there was no evidence that Ford either sold or contracted to sell the automobile to the plaintiff.” The Connecticut Court ruled:

The statute allows revocation only against the person who sells or contracts to sell goods. Dwan was not the agent of Ford insofar as the sale of the automobile was concerned. To be entitled to the remedy of revocation, there must be a buyer-seller relationship, and that relationship was absent in this case. Ford’s contractual relationship was with Dwan. Id. at 125, 374 A.2d at 150.

See also Clark v. Ford Motor Co., 46 Or.App. 521, 612 P.2d 316 (1980), to the same effect.

We conclude, in the absence of any evidence that Ford either sold or contracted to sell the vehicle to the plaintiff, that no remedy of revocation was available to the plaintiff under the terms of § 75-2-314 against Ford as a “seller.” Again this does not mean that the plaintiff is precluded from recovering against Ford.

We are of the opinion that Ford’s liability to the buyer, if there was liability, emanates from its express warranty to Wallace, which was delivered to him by Royal for Ford at the time of the purchase. It then became a vital part of and merged into the purchase agreement. This warranty assures the purchaser that “the selling dealer will repair, replace or adjust free any parts, except tires, found to be defective in factory materials or workmanship within the earlier of 12 months or 12,000 miles from either first use or retail delivery.” By this warranty Ford expressly designated Royal, the dealer, to be their agent to repair, replace or adjust any parts, except tires, found to be defective to the end result that the vehicle purchased would conform to the seller’s implied warranty of merchantability.

Obviously, we think, this raises the question of whether the warranty had failed in its essential purpose of providing the purchaser with an automobile reasonably suitable for its intended use. Such repair and replacement warranty provides confidence and assurance to the buyer that he will secure goods conforming to the contract, and a limitation of liability to the seller. If it fails, however, as a remedy in its essential purpose, then its function as a limitation of liability also fails. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn.1978), and see Riley v. Ford Motor Company, 442 F.2d 670 (5th Cir. 1971).

The issue of whether the services of Royal, Ford’s agent for replacement and repairs, brought the automobile into conformity with the seller’s warranty of merchantability, was presented to the jury under proper instruction and was resolved adversely to Ford.

We, therefore, are of the opinion that liability was extended to Ford through its expressed warranty of merchantability, the same as it extended to Royal, the seller, through § 75-2-314.

III. DID THE PLAINTIFF EFFECTIVELY REVOKE ACCEPTANCE OF THE VEHICLE AS TO BOTH ROYAL AND FORD?

A reference to the facts above related reveals an intention to revoke by Wallace when he stated to Fargason that he was dissatisfied with the car and offered to trade for a new one. When this effort failed, Wallace advised Fargason that he would contact his lawyer. Fargason replied that he would meet Wallace in court. Although the issue is clouded by subsequent use of the automobile and additional efforts to have the defects corrected, Wallace’s pri- or intention of revocation was revitalized when he parked the automobile within the 12 month and 12,000 mile warranty period and filed suit. Again, the issue was factual and was resolved by the jury on conflicting evidence against both Ford and Royal. We think, therefore, that the plaintiff effectively revoked acceptance of the automobile.

IV. CAN WALLACE RECOVER THE PURCHASE PRICE OF THE AUTOMOBILE FROM FORD?

As we have previously stated, Ford is liable to Wallace through its warranty delivered at the time of the purchase, thus leaving the question of the extent of the liability. Section 75-2-719(2) of Miss.Code Ann. (Repl.1981), provides, “Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this code.” One of the remedies provided in the code is the return of the purchase price. See Miss. Code Ann. § 75-2-711(1) (Repl.1981), as well as Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976); Lanners v. Whitney, 247 Or. 223, 428 P.2d 398 (1967); Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga.App. 462, 188 S.E.2d 250 (1972); and Byrd v. Moore Ford Company, 116 Ga.App. 292, 157 S.E.2d 41 (1967). We conclude that Wallace was entitled to the recovery of the purchase price less the automobile’s depreciation.

The issue was presented to the jury with an appropriate instruction and its verdict coincided with the purchase price. We observe that the defendants had every opportunity to diminish the purchase price by offering evidence of diminished value but did not do so. The burden is on the party relying on the matter in mitigation or reduction of damages to make proof of the facts which will operate to bring the mitigation into effect. Tennessee Valley Sand & Gravel Co. v. M/V Delta, 598 F.2d 930 (5th Cir. 1979); Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112 (1949); and Mengel Co. v. Parker, 192 Miss. 634, 7 So.2d 521 (1942). There being no evidence before it by which the jury could have reduced the amount of the purchase price, we think that they correctly responded to the evidence before them.

We, therefore, affirm as to both damages and the award of attorneys fees.

AFFIRMED.

SUGG, P. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DARDEN, JJ., concur.

DAN M. LEE, J., concurs in result only.


author: BROOM, Justice, for the Court.

text:
    ROSS CATTLE COMPANY v. Bryant LEWIS, Cow Palace, Inc., Charles DeLony and Jim Reeves.
    No. 53094.
    Supreme Court of Mississippi.
    May 19, 1982.

      Powell & Thrash, Roy D. Powell, Jackson, Reeves & Reeves, Robert S. Reeves, McComb, for appellant.
    Mounger, Mounger & Mord, Tylertown, Roach, McMillan, Welch & Ott, T. Patrick Welch, McComb, Keith Starrett, Magnolia, for appellees.
    Before SUGG, BROOM and BOWLING, JJ.
   BROOM, Justice, for the Court.

Obligations pursuant to the special property interest provision of our Uniform Commercial Code as applied to a written contract whereby defendant/appellee Bryant Lewis was to sell to plaintiff/appellant Ross Cattle Company (Ross herein) four hundred animals (cattle) at $47.50 per hundred weight form the background of this suit appealed from the Circuit Court of Pike County, Mississippi, Judge Joe Pigott, presiding. Another defendant/appellee is Cow Palace, Inc., an auction sales corporation through which Lewis sold the animals under contract. Individual defendant/appel-lees are Charles Delony, Cow Palace’s president, and its vice president, Jim Reeves. After Lewis sold some of the animals through Cow Palace’s auction business for sums in excess of that provided in his contract with Ross, Ross sued for the difference between the contract price and the sum which the animals brought at the sale, plus the average weight of 113 animals unaccounted for under the contract, and $8,000 which Ross paid Lewis when the contract was executed. Directed verdicts were entered by the court exonerating Cow Palace, Delony and Reeves, and the jury found for defendant Lewis. Ross moved for a judgment notwithstanding the jury verdict or in the alternative, an additur, which the court sustained to the extent of $8,000 in which sum the court entered judgment for Ross. On its appeal, Ross argues that: it should have been granted a peremptory instruction below; the jury verdict is not supported by the evidence; and under Mississippi Code Annotated § 75-2-501 (1972), it had a special property interest in the cattle. We reverse.

Date of the contract between defendant Lewis and plaintiff/appellant Ross was February 10, 1978. It provided for delivery of the animals at the sale barn in Brookha-ven between May 15 and May 30, 1978. According to the - contract (a copy is attached as Appendix “A”), the animals were to be weighed and sorted at the sale barn, giving Ross the option of rejecting up to 5% for crippled, deformed, etc. Subsequent to the contract’s execution, point of delivery was changed from Brookhaven to Tyler-town. When the contract was signed, Ross paid Lewis $8,000 as a down payment leaving the balance payable upon delivery following weighing of the animals. On Sunday, May 20, 1978, delivery of the animals was discussed by Lewis and Ross’s agent. As stated in Lewis’s brief, he required payment “before the cattle were moved as he had been told by the agents of Ross Cattle Company that the cattle would be moved out of the State on out of State trucks.”

According to Lewis, he had consulted his banker and attorney and they both insisted on payment before the animals were moved.

Appellee Lewis in his brief states that he “offered to take the cattle to the sale barn in Tylertown and have them weighed and wait two days for Ross Cattle Company to get the money together and at that time the cattle could be moved.” He states that this quoted testimony is at page 27 in the abstract, but we find no such testimony there. We have taken it upon ourselves to sift through the actual record of Lewis’s testimony to see if it shows that he offered to take the animals to the agreed place in Tylertown and hold them there two days in which time Ross could get up the money. The portion of his testimony most nearly matching that quoted above taken from his brief is the following:

Q. Did you ever tell Ross Cattle Company that you were canceling the contract?
A. You mean telling them straight out that I was canceling it?
Q. Yes?
A. Not if they offered to pay for the cattle, they could have got the cattle on Monday. I told them twice on Monday they could get the cattle.
Q. Did you tell them before that?
A. Yes, sir. On two occasions.
Q. When?
A. One time was on Sunday, the 20th of May, Van Tucker called my house and I told him he could get the cattle but they would have to pay for the cattle, and they would have to let them stay in the sale barn two days, and if they didn't want the cattle, and I didn’t get the money, I’d carry the cattle back home. There was no confusion with the cattle. One thing, the bank demanded the money be paid for the cattle because they had a deed of trust on my cattle and on my property and I had a chance of losing everything I had if the cattle left without being paid for.

It is to be noted that the quoted testimony makes no mention of delivery at “Tyler-town”, which the contract (as modified) provided. Lewis’s defense (that he offered delivery as required by the contract) was affirmative in nature requiring proof with clarity. The quoted passage does not state with clarity that Lewis offered to make delivery to Tylertown as required by the contract. None of this testimony can be taken to constitute a refusal of Ross to perform according to the contract. If anything, both Mr. Lewis’s and Mrs. Lewis’s testimony shows that they were not in an attitude of delivering the animals where contracted (at Tylertown) until Ross tendered the money. This is not according to the contractual terms. On May 29, Lewis took some of the animals to the Cow Palace sales barn in Fernwood and placed them in line for sale. When Ross’s employees learned that the animals were at the Cow Palace, telephone calls were made to Cow Palace’s president, defendant Delony, advising Delony that Ross had the cattle under contract. As to whether Delony actually saw the contract that day, his testimony is uncertain. Ross then employed counsel who filed a replevin suit seeking to stop the sale and gain possession of the animals for Ross, resulting in service of process upon Lewis, at which time Reeves admittedly looked at the papers the lawyer brought and was told it was a contract. Nevertheless, the cattle were sold for an amount in excess of that provided in the contract except that 113 were not sold or ever accounted for. Other facts will be stated where appropriate in this opinion.

First argument made is that the verdict was against the overwhelming weight of the evidence. In addition to the facts stated above, other significant facts are the following: Tylertown Bank had a lien against the cattle in the amount of $10,000 and the existence of it was unknown to Ross. After signing the contract, Lewis heard “rumors” that Ross was not in good financial shape. Arthur Van Tucker, a buyer for Ross, according to Lewis’s testimony, called him early in the year demanding delivery, but he refused because the contract stated the delivery date to be between May 15 and May 30. Tucker denied this, and further testified that he talked to Lewis twice, once when Lewis called him to change the delivery point and another time around May 14 to see when he could take delivery. Lewis testified that during the conversation Tucker said Ross could not pay for the cattle upon delivery and that they were taking the cattle out of state for resale. This was denied by Tucker who contends he didn’t even know where the cows were going.

Around May 25, 1978, Reeves, Cow Palace’s vice president, contacted Lewis about consigning his cattle to the Cow Palace for sale on the following Monday. With Lewis’s agreement the cows were moved from his farm to the Fernwood auction with Cow Palace trucks without Ross being advised about movement of the cows or the plans of Lewis to sell them through the Cow Palace. The auction sale was on Monday, May 28. Cow Palace’s representatives denied knowing anything about the contract between Lewis and Ross until they received a call from Ross’s office manager the morning of the auction inquiring whether the animals were there and telling Cow Palace officials that the animals were under a contract with Ross. The phone call set in motion inquiries between Reeves of the Cow Palace and Lewis. Reeves said Lewis told him the contract was “no longer good” and had been broken. Delony called Ross back and told him the animals were at the auction. Delo-ny agreed to delay sale of Lewis’s animals until the issue was settled. During this time, Lewis said he talked to the bank’s attorney, who told him to go ahead with the sale at the auction.

In the meantime, Ross’s agent Herbert MeMulian arrived at the Cow Palace around 1 p. m. to keep the animals from being sold. MeMulian took Magnolia attorney Bob Reeves with him. A confrontation between all three parties took place in an office at the auction. Lewis and his wife, MeMulian, attorney Reeves, and Delony were present.

MeMulian testified that he told Lewis that Ross had the animals under contract and would like to receive them. He said Lewis told him he had been advised to go ahead and sell the animals. Further testimony of MeMulian was that he didn’t bring any cash with him to pay Lewis, but he said he offered to go back to Jackson and get a cashier’s check to pay, which offer Lewis refused. MeMulian further testified that he explained to Delony and Reeves that the animals were under contract to Ross and asked them not to sell them, but Delony told him he was in the auction business and was going to sell them. His version was that he talked to the bank’s attorney by phone from the auction, and the attorney said he told MeMulian that he would not allow Ross to load the animals and carry them to another sales point unless they were paid first. The bank’s attorney’s testimony was that MeMulian told him they could not pay for the animals. Two hundred and forty-eight of the animals were sold that day and a check for $82,479 was issued to Lewis and to the bank’s attorney as trustee for the bank. The Cow Palace was paid a $4,340 commission. Thirty-nine additional cows were sold through the auction on June 4, 1978 for $9,645. The Cow Palace received a $570 commission on this sale. As a result of selling the cows at the auction, Lewis received approximately $15 per hundred pounds more than he would have under the Ross contract ($47.50 per hundred per Ross contract versus $62.31 per hundred at the auction).

Throughout his testimony Lewis never denied that he didn’t deliver the animals as required by the contract. According to him, he offered to deliver the animals if Ross would pay beforehand. Lewis said he thought the animals were going to be hauled out of state and he would never be paid. Also, he agreed that he never gave Ross written notice that he was cancelling the contract. Testimony of Cow Palace officials Reeves and Delony indicates in effect that they decided to go ahead and sell the animals after conferring with Lewis and the bank’s attorney.

On the other hand, Ross denied that his company was in shaky financial condition, but he made no denial that he never tendered the remaining money on the contract to Lewis. Instead, he said he would have paid if the animals had been delivered as per the contract.

In granting a directed verdict in favor of defendants Cow Palace, Reeves and Delony, the trial judge stated the three defendants had been placed “in a position of being on the triple horns of a dilemma.” The judge said that he could not see that the three had done anything other than what a reasonably prudent man should have done under the circumstances and he found that there was no contract between the three and Ross. Therefore, he ruled that no liability in contract or tort was established against the three by the evidence. Thus, the action as against the three was dismissed. The case went forward as to Lewis and the jury found for him. A judgment notwithstanding the verdict was granted by the trial judge in the amount of $8,000, that amount being for the partial payment Lewis had received under the contract.

Without doubt there was a contract between Lewis and Ross. In fact, Lewis concedes the point in his brief, and also concedes that he received $8,000 partial payment under the contract. Apparently Lewis defends his actions by arguing that Ross breached the contract first by not offering to pay prior to delivery and therefore he should be allowed to treat the contract as breached and not performed as required.

Inasmuch as the contract involved a proposed sale of goods (animals), various sections of the Mississippi Uniform Commercial Code are germane to the resolution of the issue before us. The obligation of the seller (Lewis) was to transfer and deliver; the obligation of the buyer (Ross) was to accept the goods (animals) and pay in accordance with the contract. Miss.Code Ann. § 75-2-301 (1972). Tender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery. Miss.Code Ann. § 75-2-503(1) (1972). Tender of delivery must be made by the seller to activate the buyer’s duty to accept and pay for the goods unless otherwise agreed. Tender on the part of the seller entitles him to then expect from the buyer acceptance of the goods and payment according to the contract. Miss.Code Ann. § 75-2-507(1) (1972). Where payment is due on delivery, the buyer’s rights as against the seller to retain and dispose of the goods is conditioned upon the buyer making the payment due. Miss.Code Ann. § 75-2-507(2) (1972).

Thus, in accordance with these provisions the obligations of the parties became as follows: Lewis, the seller, was obligated to transfer and deliver the animals to buyer/Ross who was obligated to accept and pay for them according to the contract terms. Seller/Lewis was required to put and hold the animals at Ross’s disposition and give Ross reasonable opportunity to take delivery. Ross’s duty to accept and pay for the animals was conditioned upon Lewis’s tender of delivery. Inasmuch as payment was due on delivery, Lewis was entitled to payment from Ross only when he (Lewis) tendered delivery of the animals as contracted. The written contract specifically called for the animals to be weighed upon delivery, and the total price computed (upon the per pound price) and paid. Also, the contract specifically stated that the balance of the price of the contract was due upon completion of the contract.

The record is clear that Lewis never tendered delivery of the animals to Ross at Tylertown as the contract required. In fact, prior to the expiration date of the contract, Lewis consigned the animals for sale to the Cow Palace without giving Ross a genuine opportunity to perform under the contract. Lewis repeatedly testified that he wanted his money before delivery because he had heard rumors that Ross was in poor financial shape and that Ross planned to move the animals out of the state; Lewis had lost money before when other animals (other transactions) were going to be moved out of state. According to Lewis, he had been instructed by the bank’s attorney not to let the collateral be moved without receiving payment. The UCC of this state specifically addresses the procedures to be followed in such a situation. Mississippi Code Annotated § 75-2-609 (1972) provides:

(1) A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.
(2) Between merchants the reasonableness of ground for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.
(3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party’s right to demand adequate assurance of future performance.
(4) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty (30) days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.

According to § 75-2-609(1), when either party has “reasonable grounds for insecurity” with respect to the other party’s performance, the insecure party may demand in writing adequate assurances of the other party’s performance and until he receives such assurance, he may suspend his own performance.

Purpose of the demand for assurances of performance by the insecure party is to gain advance knowledge of a forthcoming breach so that he may take steps to lessen his injury, or mitigate damages. If no assurance is given upon demand, or if the assurance given is inadequate, then the aggrieved party can treat the contract as repudiated. 1 A. Squillante and J. Fonseca, The Law of Modern Commercial Practices § 3:77 (1980).

Our view is that § 75-2-609 provides the course of action Lewis should have pursued if he doubted that Ross would pay under the contract. He should have requested assurances of Ross’s performance and while awaiting such he could have suspended his obligation of delivery. Instead, after Lewis felt insecure he elected to treat the contract as broken and sell the animals covered by the contract to a third party. Instead of following the course delineated by § 75-2-609, Lewis accepted advice from an attorney who represented the bank which had a lien on the cattle. Obviously the bank’s interest did not precisely coincide with Ross’s interest.

In order to logically find that Lewis’s actions (sale to a third party) were other than a contractual breach, there would have to be a finding that Ross had first repudiated the contract. Mississippi Code Annotated § 75-2-610 (1972) provides that when either party repudiates the contract with respect to a performance not yet due so as to substantially impair the contract, the aggrieved party has several options available. Such party may cancel the contract and properly bring suit for damages, or may suspend his own performance and for a commercially reasonable time await performance by the repudiating party or he may resort to any of the remedies for breach in accordance with Mississippi Code Annotated § 75-2-703 (1972), that is, withhold delivery, resell the goods, or cancel the contract.

Careful study of the record causes us to conclude that the verdict of the jury in favor of defendant Lewis is against the overwhelming weight of the evidence. Without any substantial dispute the evidence establishes that Lewis never tendered the animals as required by the statute, but instead he sold them to a third party. It cannot be fairly said that the evidence shows an anticipatory repudiation of the contract by Ross such as would have reasonably allowed Lewis to treat the contract as cancelled. In fact, the evidence establishes that Ross tried to keep the cattle under contract as evidenced by his sending a representative with an attorney to the auction to plead with Lewis not to sell the cattle.

Another argument of appellant Ross is that the lower court erred in granting for the defendant Lewis instructions numbered DL-8 and DL-17. Reversal will not be ordered on this argument pertaining to the instructions because the record does not show that Ross objected to the instructions at trial. Miss.Sup.Ct.Rules R. 42 (1976).

Next argument is that the lower court erred in dismissing the suit against Cow Palace, Delony and Reeves. As to these three defendants, the suit of Ross was based on Mississippi Code Annotated § 75-2-722 (1972), which states:

Where a third party so deals with goods which have been identified to a contract for sale as to cause actionable injury to a party to that contract
(a) a right of action against the third party is in either party to the contract for sale who has title to or a security interest or a special property or an insurable interest in the goods; and if the goods have been destroyed or converted a right of action is also in the party who either bore the risk of loss under the contract for sale or has since the injury assumed that risk as against the other;
(b) if at the time of the injury the party plaintiff did not bear the risk of loss as against the other party to the contract for sale and there is no arrangement between them for disposition of the recovery, his suit or settlement is, subject to his own interest, as a fiduciary for the other party to the contract;
(c) either party may with the consent of the other sue for the benefit of whom it may concern.

In substance, § 75-2-722, supra, provides for a cause of action against a third person who deals with goods that have been identified to a contract in such a way as to cause an actionable injury to a party to the contract. The right of action is given to either the seller or the buyer who has title to or a security interest in, or a special property or insurable interest in the goods. 67 Am.Jur.2d, Sales § 236 (1973). The effect of § 75-2-722 is that third parties will be liable for conversion, physical damage to goods, or interference with the buyer’s rights in goods. Draper v. Minneapolis-Moline, Inc., 100 Ill.App.2d 324, 241 N.E.2d 342 (1968). Mississippi Code Annotated § 75-2-103 (1972) defines a buyer as a person who buys or contracts to buy the goods.

Upon the evidence we think Ross had a right of action under this section against Cow Palace, Delony, and Jim Reeves. There can be no doubt that Ross had a special property interest in the animals because the company had contracted to buy them and the animals had been identified to the contract.

In their brief, appellees Cow Palace, Delony and Jim Reeves concede, arguendo, that Ross had a special property interest and an insurable interest in the animals pursuant to Mississippi Code Annotated § 75-2-501(1) (1972). These appellees take the position that inasmuch as actual title remained in the seller (Lewis), the buyer (Ross) can sue only for breach of contract “and not for conversion.” Further, the position of appellees Cow Palace, Delony, and Jim Reeves seems to be that, since Ross did not have legal title to the animals or the right to the immediate possession of them, and because the cattle were bound by Tyl-ertown Bank’s existing perfected security agreement, no action for conversion lies against Cow Palace, Delony, and Jim Reeves. We think that if the law in this jurisdiction has ever been as stated by these appellees, the law changed with the enactment of § 75-2-722, supra. The uncontra-dicted proof is that when Lewis contracted for the sale of the cattle to Ross and identified them, Ross became vested with a special property interest. Miss.Code Ann. § 75-2-501. From that time on, Lewis was bound to deal with the animals without impairing or defeating the rights of Ross.

No case is cited in the briefs before us, and we have found none, interpreting § 75-2 — 722 upon facts like those established in the record. The plain black letter language of § 75-2-722 means that Ross having a “special property” interest in the animals has a right of action against the third parties (Cow Palace, Delony, and Jim Reeves) because they were “converting” the animals after they were shown or given knowledge of Ross’s contract vesting in Ross the special property interest in the animals. These three defendants/appellees, with full knowledge of Ross’s claim against the animals, actively and knowingly aided and abetted Lewis in disposing of the animals contrary to his contract with Ross. Their argument that Delony delayed the sale for a time to give Ross and Lewis an opportunity to work things out does not in reality support their claim of no wrongdoing, but instead shows that they recognized Ross’s claim and then sold the animals in spite of Ross’s claim against them. It follows that the argument of Delony and Reeves that they made a decision to proceed with the auction sale of the animals as any reasonable business man would have done cannot be accepted and is without merit upon this record.

These appellees make the argument that the auctioneer is not liable for conversion in selling property for one who either had no title to the property or had no authorization to sell “where it is proved that the auctioneer was innocent of any intentional wrongdoing, having no knowledge, actual or constructive, of anything that would cause him to question the right of one presenting the property for sale to contract for its sale.” Annot., 96 ALR 2d 208 (1964). The cited authority refers to Dixie Stock Yard, Inc. v. Ferguson, 192 Miss. 166, 4 So.2d 724 (1941). Language, appropriate here, excerpted from Dixie Stock Yard, is:

If the proof sufficiently establishes that the appellant participated in the conversion of the cattle and in defeating the purchase-money lien thereon, with notice thereof, then such proof should be sufficient to sustain a verdict rendered on a count of the declaration charging that the appellant itself received and converted the same to its own use with notice of the lien.
******
And, as heretofore stated, we are of the opinion that proof of participation in a conversion, with notice of an existing lien on the property converted, is sufficient to establish liability under a count of the declaration charging the defendant itself with the conversion thereof.

Id. at 179, 4 So.2d at 728.

Here Ross’s special property interest is comparable to the existing lien in Dixie Stock Yard. There can be no doubt that Ross had a special property interest in the animals and that auctioneers Cow Palace and its officers Delony and Jim Reeves, having full knowledge of Ross’s interest, sold the animals.

They make the further argument that for Ross to maintain his action for conversion against them he had the burden of proof to show he had “title or ownership in the property involved.” The explicit language of § 75 — 2—722, supra, does not require that one bringing an action such as that asserted here by Ross must have legal title to or the right to possession of the property, because the statute allows such an action to be based upon a “special property or an insurable interest” which admittedly Ross had in the present case. Cases relied upon by these appellees in their brief predate the enactment into law of § 75-2-722, and thus would not be controlling should it be conceded that they might have supported the argument prior to enactment of our Uniform Commercial Code.

The amended declaration of Ross alleged that he had a “special property interest” in the animals, and that a copy of the contract creating the special property interest was shown to Delony and Jim Reeves. Further the declaration charged that Cow Palace, Delony, and Jim Reeves disregarded “this notice ... of special property interest” and sold the animals at auction thereby converting them and damaging Ross. The charges were adequately supported by evidence, and barely contradicted, if at all, as to the crucial issues.

Petitioners Cow Palace, Delony and Reeves argue in their petition for rehearing that this Court was in error in holding that Ross was entitled to a peremptory instruction against them. Petitioners correctly point out that Ross did not make a motion for a directed verdict against them; nor did he ask for a peremptory instruction at the conclusion of all the evidence because at that juncture these three petitioners had been let out by the directed verdict when Ross rested its case in chief. As to defendant Lewis, Ross properly requested and was entitled to, and was erroneously denied, a peremptory instruction. Petitioners Cow Palace, Delony and Reeves argue that under such circumstances our prior decision holding that Ross was entitled to a peremptory instruction against them should be withdrawn and that they should be allowed to fully defend the lawsuit in the lower court. With this argument we agree.

It is true that as to Cow Palace, Delony and Reeves (who were let out by directed verdict) Ross asked for neither a directed verdict nor a peremptory instruction and did not mention the granting of the directed verdict in his motion for a new trial. However, we are not precluded from reviewing the actions of the trial court in granting the directed verdict in favor of the three defendants. In Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356 (1911) we held that error in directing a verdict is reviewable on appeal even though such error was not assigned as a ground in a motion for a new trial. (For an excellent explanation of what is required to be set out in a motion for a new trial in order to take advantage of the error on appeal see Colson v. Sims, 220 So.2d 345 (Miss.1969) at footnote (1) on page 346.)

Therefore as to defendants Cow Palace, Delony and Reeves we hold that Ross made out a case against them sufficient to go to the jury. Thus in accordance with the applicable Uniform Commercial Code statutes, supra, which unfortunately are not yet well known in Mississippi, the case must be reversed and judgment and liability rendered as to only the defendant Lewis, and remanded for retrial against him on the issue of damages only. See Mississippi Code Annotated § 75-2-711 (1972), pertaining to “Buyer’s remedies.” As to defendants Cow Palace, Delony and Reeves, the case must be reversed for a jury trial on all issues raised against them as to those animals under the contract sold at Cow Palace’s auction.

REVERSED AND REMANDED FOR ASSESSING DAMAGES AS AGAINST BRYANT LEWIS; REVERSED AND REMANDED FOR RETRIAL OF ALL ISSUES AS TO DEFENDANTS COW PALACE, DELONY AND REEVES.

PATTERSON, C. J., SMITH and SUGG, P. JJ., WALKER, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.

DAN M. LEE, J., takes no part.

      . At oral argument, Lewis’s counsel was asked by the Court to refer the Court to testimony in the record supporting the assertion that Lewis tendered or offered to tender the animals to Ross at the Tylertown sale bam. Counsel then referred the Court to pages 361-364 of the record. Those pages contain testimony of what Mrs. Lewis heard her husband state to another person (Tucker) on the telephone. She did not testify that Mr. Lewis tendered or offered to tender the animals at Tylertown.

      . Comment 1 to the “Official Text” approved by the Code’s sponsoring organizations, the National Conference of Commissioners on Uniform State Laws and the American Law Institute, states that this section “rests on the recognition of the fact that the essential purpose of a contract between commercial men is actual performance and they do not bargain merely for a promise, or for a promise plus the right to win a lawsuit and that a continuing sense of reliance and security that the promised performance will be forthcoming when due, is an important feature of the bargain.”

      . Repudiation envisioned by this section is explained in Comment 1 to the “Official Text” as “an overt communication of intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance.” Comment 2 states that “[rjepudiation can result from action which reasonably indicates a rejection of the continuing obligation.” The jury was not instructed about this anticipatory repudiation.

      . Under Miss.Code Ann. § 75-2-501 identification of goods occurs when existing goods are designated or agreed upon as the goods to which the contract refers, which happened in the instant case at the time the contract was signed.

      . Ross claims in its rebuttal brief that it requested such a peremptory instruction, but our examination of the record shows that such request was only by “proposed” instructions filed before trial commenced. In fact, the record shows that the peremptory instruction as to those three defendants was marked “withdrawn.”


author: TORBERT, Chief Justice.

text:
    Alvin C. MISSILDINE v. AVONDALE MILLS, INC., a Corporation.
    80-417.
    Supreme Court of Alabama.
    Dec. 18, 1981.
    Russell L. Irby, Eufaula, for appellant.

      Richard A. Ball, Jr., Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   TORBERT, Chief Justice.

This appeal is from a summary judgment granted in favor of defendant Avondale Mills in an action for damages for injury to the plaintiff’s lungs caused by over thirty years’ work in a cotton mill operated by a subsidiary of that defendant. For the reasons set out herein, we affirm.

This suit was brought by Alvin C. Missil-dine, appellant, against Avondale Mills, Inc. (Avondale), and Curtis-Marble Machine Company, Inc., alleging that Avondale owned and operated a textile mill, Cowikee Mills, Inc. (Cowikee), and that both defendants “negligently failed to provide Missil-dine with a reasonably safe place to work and safety equipment or appliances with which to do his job.” As a proximate result of this negligence, appellant alleged, he was exposed to hazardous working conditions and unsafe machinery, and thereby forced to breath large amounts of cotton dust and fibers, which in turn caused him to become afflicted with byssinosis (brown lung).

Missildine was employed at Cowikee, a cotton textile mill in Eufaula, for over thirty years. The vast majority of his service was spent working in the cloth room, a finishing area in the production process. His employment with Cowikee officially ended on October 25,1976, though that date was the only day he had worked since September 11 of that year. In a prior case against Cowikee, Missildine testified that due to his respiratory illness, he was forced to discontinue his employment at that time.

After this suit was filed, Missildine settled with Curtis-Marble Machine Company, Inc., and it is not a party to this appeal. Missildine also amended his complaint against Avondale, claiming that its negligence or wantonness caused him to contract byssinosis, adult onset asthma, or some other respiratory disease.

Shortly thereafter, Avondale moved for summary judgment, setting forth in support thereof an affidavit and several depositions. The affidavit of Mr. Donald Comer III, president and treasurer of Avondale, stated that Avondale did not own or operate the Cowikee mill, but merely acquired its stock in 1975 and thereafter operated the mill as a separate corporation, therefore owing no duty to the plaintiff, Missildine.

In order to show that a duty did exist, Missildine attempted to show that Avondale and Cowikee were one and the same. Appellant pleaded that Cowikee was the alter ego of Avondale and introduced check stubs and insurance payments to support that theory. In a letter brief to the trial court, plaintiff stated that only one legal entity was involved and that Avondale was thus liable to him for the acts of its subsidiary, Cowikee.

Prior to filing this suit against Avondale, however, Missildine had also filed a workmen’s compensation claim against Cowikee. The trial court in that action held in favor of Cowikee and denied recovery of workmen’s compensation benefits, holding that Missildine “at no time pertinent, had or has a compensable occupational disease within the meaning of the Workmen’s Compensation Act of Alabama.”

A party moving for summary judgment has the burden of clearly showing that the non-moving party cannot recover under any discernible set of circumstances and that there is no genuine issue as to any material fact. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Ragland v. Alabama Power Co., 366 So.2d 1097 (Ala.1978). The moving party must be entitled to the summary judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). All reasonable inferences concerning issues of material fact are to be drawn in favor of the non-movant. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

The burden for sustaining a motion for summary judgment is substantially increased by the scintilla of evidence rule. This rule requires that no summary judgment be granted if there is a scintilla of evidence to support the non-movant’s position. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Browning v. Birmingham News, 348 So.2d 455 (Ala.1977). The scintilla of evidence rule requires merely a gleam, glimmer, spark, the least bit, or the smallest trace in support of the non-moving party. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979).

Applying the law to these facts, it is quite clear that Avondale met its burden of showing no genuine issue as to a material fact. The motion for summary judgment was submitted to the trial court on the theory, as presented by the plaintiff, that Avondale and Cowikee were one legal entity and, as a result, Avondale should be liable through its duty to Missildine for the acts of its subsidiary. Yet, if this is the case, then Avondale would be entitled to the immunity provided by the Workmen’s Compensation Act, unless it fits within the exception of the dual capacity doctrine. Under the holding of Stone v. United States Steel Corp., 384 So.2d 17 (Ala.1980), however, it is clear that Avondale undertook no special independent relationship toward Missildine other than that of employee-employer, thus keeping it outside of the dual capacity doctrine. Therefore, any claim against Avondale would have to proceed under the Workmen’s Compensation Act. See, Code 1975, § 25-5-110.

As stated above, Missildine has already been denied recovery under the Workmen’s Compensation Act. For this reason, the doctrine of res judicata would bar any subsequent action against Avondale if Cowikee is the same entity or in privity therewith. For res judicata to apply, there must be four elements present: (1) there must have been a prior judgment rendered by a court of competent jurisdiction; (2) that prior judgment must have been rendered on the merits; (3) the parties to both suits must be substantially identical; and (4) the same cause of action must be present in both suits. Russell v. Russell, 404 So.2d 662 (Ala.1981); Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978). If the facts as presented by Missildine at the trial court are accepted, that Avondale and Cowikee are one entity, then all the elements for res judicata to apply are present. The fact that Missildine amended his complaint would be of no consequence, since the former judgment is an absolute bar to any issue that was or could have been litigated in the prior action. Russell v. Russell, 404 So.2d 662 (Ala.1981); McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976).

In his brief, Missildine attempts to change his theory of recovery, stating:

Missildine now says that Cowikee and Avondale are two separate and distinct entities and that there is no immunity to the parent corporation by an employee of a subsidiary corporation for negligence on the part of the parent corporation.

Missildine cannot assert a theory to this Court that he did not present below. Whether a motion for summary judgment should have been granted must be tested by reviewing what the trial court had before it when it granted the motion. Mathis v. Jim Skinner Ford, Inc., 361 So.2d 113 (Ala.1978).

Even if this Court did accept Missildine’s present contention that Avondale and Cow-ikee are separate and distinct entities, the granting of the summary judgment would still be upheld. The Alabama Constitution states, in pertinent part, that “in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by him or her.” Ala.Const. art. XII, § 236. See also, Jefferson Pilot Broadcasting Co. v. Hilary & Hogan, Inc., 458 F.Supp. 310 (M.D.Ala.1978).

It appears that Missildine is attempting to proceed under the positive elements of two opposing theories. While it is clear that both theories asserted are deficient, Missildine tries to prove certain elements under one theory and certain elements under another inconsistent theory, and together to produce a single theory of liability. This he cannot do.

It therefore becomes clear that appellant Missildine could not have recovered under either theory set forth by him, under any discernible set of circumstances. This Court having found no genuine issue as to any material fact, the summary judgment by the trial court is due to be affirmed.

AFFIRMED.

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


author: MADDOX, Justice. TORBERT, Chief Justice

text:
    STATE of Alabama v. Catherine TAYLOR, et al.
    80-492.
    Supreme Court of Alabama.
    April 9, 1982.
    Rehearing Denied June 11, 1982.
    Lloyd Copeland, Mobile, for appellant.
    Daniel L. McCleave, Mobile, and Priscilla Ruth MacDougall, Madison, Wis., for appel-lees.
   MADDOX, Justice.

The main issue on this appeal involves the constitutional question of a married woman’s right to register to vote in her maiden name.

A secondary issue is whether plaintiffs’ failure to comply with statutory provisions governing appeals concerning voter registration barred them from filing suit. Also presented is a question of whether the State of Alabama was made a party to the action as a necessary party.

The facts are not disputed. On October 23, 1980, Catherine Taylor and Georgia M. Theriot, who are married women, filed a complaint with the circuit court in which they claimed that the Board of Registrars of Mobile County had refused to allow them to register to vote in their maiden surnames. They further alleged that the Board’s policy of requiring a married woman to register to vote in the surname of her husband was contrary to statutory law and the common law, and that irreparable injury would result to them unless they were allowed to register “under the names they use and are known by.” They prayed for a temporary restraining order and general relief.

The trial judge held a hearing on the request for a temporary restraining order on October 24,1980, and afterwards entered an order granting the temporary restraining order as prayed for. The order directed the board to register Taylor and Theriot in their maiden surnames. A final hearing was set for a later date.

The Board of Registrars filed an answer to plaintiffs’ complaint in which they stated the policy of the board was to register persons to vote in their legal names, and that the legal name of a married woman is her husband’s surname. In its answer, the Board also raised, as an affirmative defense, that it was not the proper party defendant in the action. The board had previously raised, at the commencement of the hearing on plaintiffs’ application for a temporary restraining order, that it was not the proper defendant.

The State of Alabama contemporaneously filed a motion to intervene and to be substituted as party defendant in the matter. This motion was granted by the trial court. After being served with copies of the State’s motion to intervene and for substitution of parties defendant, the Attorney General waived any further notice of the proceedings. The State’s answer, filed with its motion to intervene, stated: that the policy of the board was to register all voters in their true, legal names, the legal name of a married female being the surname of her husband; that any alleged injury to plaintiffs would not be irreparable; that plaintiffs had failed to follow the procedure prescribed by law for challenging their denial of voter registration and were, therefore, barred from maintaining the instant action; that the relief sought was contrary to law and public policy as it relates to the orderly administration of the voting franchise and the prevention of fraud and collusion therein; and that the complaint failed to state a claim upon which relief could be granted.

The trial judge held a final hearing on December 15, 1980. The court, after denying the State’s motions for an involuntary dismissal of plaintiffs’ claim (Rule 41(b), ARCP), ordered that the injunctive relief granted on the application for a temporary restraining order be made permanent. The order entered by the trial court permanently restrained the State from refusing to allow plaintiffs or any other married woman from registering to vote “under the names by which they have chosen to be known and have used subsequent to this proceeding.”

The State filed a motion for a new trial, a motion to alter and amend the judgment, and on January 14,1981, a motion for leave to amend the foregoing motions. These motions, which raised numerous legal issues, were denied by operation of law, because of their pendency in the trial court for over ninety days without a ruling being made. The State appealed.

I

The State argues that Alabama’s statutory scheme for voter registration provides a method of appeal by any person who is denied registration, as plaintiffs were, and that plaintiffs’ failure to appeal as required by law should bar the action they filed.

Code 1975, § 17 — 4-124, provides:

“Any person to whom registration is denied shall have the right of appeal, without giving security for costs, within 30 days after such denial, by filing a petition in the circuit court in the county in which he or she seeks to register, alleging that he or she is a citizen of the United States over the age of 18 years having the qualifications as to residence prescribed by law and entitled to register to vote under the provisions of the Constitution of Alabama, as amended. Upon the filing of the petition, the clerk of the court shall give notice thereof to the district attorney authorized to represent the state in said county, who shall appear and defend against the petition on behalf of the state. The issues shall be tried in the same manner and under the same rules that other cases are tried in such court and by a jury, if the petitioner demands it. The registrars shall not be made parties and shall not be liable for costs. An appeal will lie to the supreme court in favor of the petitioner if taken within 42 days from the date of the judgment. Final judgment in favor of the petitioner shall entitle him or her to registration as of the date of his or her application to the registrars.”

The evidence clearly shows that neither of the plaintiffs appealed to the circuit court within 30 days after the board refused to register them in their maiden names. Did this failure to appeal pursuant to § 17-4-124 bar them from filing an action in which they seek to vindicate not only their own alleged right to register in their maiden names, but the rights of other married women who may wish to register to vote in their maiden names?

The crucial legal question presented is whether the existence of a legal remedy to seek redress from a denial of voter registration bars any other remedy, legal or equitable. We do not believe that the legal remedy of an appeal given to an individual applicant who has been denied registration would allow a circuit court jurisdiction to decide such a crucial issue of constitutional law as was raised by the plaintiffs in their complaint.

Plaintiffs contend that § 17-4-124 applies only when an applicant has been denied registration because the applicant was found to be unqualified The State considers this argument by plaintiffs to be without merit. The State argues, in its brief:

“The entire chapter speaks in numerous places of ‘qualified’ and ‘unqualified’ electors and of electors’ ‘qualifications.’ Qualifications, as defined in § 17-3-9, refers to the traditional criteria of residence, age, and conviction of crime. The question therefore immediately arises as to why the legislature used the specific term ‘any person to whom registration is denied,’ amidst all the accompanying provisions about qualifications, if it did not mean precisely what it said. In point of fact, the specific term ‘to whom registration is denied’ appears in one place in the statutory setup, and that is in the section governing appeals. It would have been a simple matter indeed to state ‘any person who is deemed unqualified,’ the precise language used in the preceding section on refusing to register unqualified applicants. The fact that this specific language appears only once, rather than being mingled in various places throughout those portions of the statute dealing with qualification, militates [against a finding] that it is not an interchangeable term with ‘deemed unqualified.’ ”

We hold that the plaintiffs’ interpretation of § 17-4-124, relating to appeal from a denial of registration, comports more with what the legislature actually intended. It should be noted that in § 17 — 4-124, the legislature provides that:

“The issues shall be tried in the same manner and under the same rules that other cases are tried in such court and by a jury, if the petitioner demands it.” (Emphasis added.)

What issues were to be tried? It would seem that the most logical “issues” would be those factual issues involving qualifications, as defined in § 17-3-9, such as residence, age, and conviction of crime. It would appear that the legislature intended that, on appeal, the factfinder, whether the judge or jury, would decide only factual issues. We do not suggest, however, that the plaintiffs could not have appealed and raised the legal issue they later raised in this action, but only that their failure to appeal within 30 days did not bar their subsequent action.

There is another reason why this action was not barred. While § 17-4-124 does provide that “[f]inal judgment in favor of the petitioner shall entitle him or her to registration as of the date of his or her application to the registrars,” we do not believe that this relation back provision is of any legal significance here, because the injunctive relief granted was prospective, and it is not denied that the Board’s policy on refusing to register married women in their maiden names had not changed, and the State still seeks to sustain its constitutional validity.

While the statutory scheme for voter registration differs somewhat from other administrative schemes, the principles of law applicable to review of administrative proceedings are instructive. In Simpson v. Van Ryzin, 289 Ala. 22, 265 So.2d 569 (1972), the Court held:

“Although administrative remedies must generally be exhausted before resort can be had to the courts, such exhaustion will not be required where the issue to be decided is solely a matter of law, not dependent upon disputed facts. Borough of Matawan v. Monmouth County Bd. of Taxation, 51 N.J. 291, 240 A.2d 8 (1968); Louisville & Jefferson County Planning & Zoning Comm. v. Stoker, 259 S.W.2d 443 (Ky.Ct.App.1953). Among the specific instances in which exhaustion has been held not necessary are the following: where a statute, ordinance, or regulation is charged to be void on its face, or where there is a question of its applicability, Diggs v. State Bd. of Embalmers & Funeral Directors, 321 Mich. 508, 32 N.W.2d 728 (1948); Fischer v. Bedminster Tp., Somerset County, 5 N.J. 534, 76 A.2d 673 (1950), where there is a defect in the power of the agency to act in any respect, State ex rel. Barbuto v. Ohio Edison Co., 16 Ohio App.2d 55 [45 O.O.2d 159], 241 N.E.2d 783 (1968), affirmed [16 Ohio St.2d 54], 242 N.E.2d 562 [ (1968) ], where administrative review procedures are legally inadequate, Ryan v. Hofstra University, 67 Misc.2d 651, 324 N.Y.S.2d 964 (1971).”

In this case the issue to be decided was solely a matter of law, not dependent upon disputed facts; therefore, the court did not err in refusing to dismiss plaintiffs’ action because they failed to appeal as provided by § 17-4-124.

The State’s claim that the proper parties were not before the court must be dismissed almost summarily. The State intervened in the action, vigorously sought to sustain the Board’s policy of refusing to register married women in their maiden names, and vigorously prosecutes its appeal in this Court. The provisions of Rule 1, A.R.C.P., and Rule 1, A.R.A.P. that our procedural rules should be construed to assure the just, speedy and inexpensive determination of every proceeding on its merits are too plain for us to agree with the State in this case.

II

We now consider the merits of the case. Did the trial court err in ordering the State to register married women to vote “under the names by which they have chosen to be known and have used”? We hold that the trial court did not err.

The law of Alabama, as it relates to names, is stated succinctly in Ingram v. Watson, 211 Ala. 410, 100 So. 557 (1924):

“In Milbra v. S.S.S. & I. Co., 182 Ala. 630, 62 South. 179, 46 L.R.A.(N.S.) 274, this court wrote:
“ ‘A person may adopt what name he pleases, and if he deals with others, or goes to court in a name, no matter what, no harm is done.’
“In 29 Cyc. p. 270, we find this general text:
“ ‘Without abandoning his real name a person may adopt any name, style or signature wholly different from his own name by which he may transact business, execute contracts, issue negotiable paper and sue and be sued.’
“This is supported by Carlisle v. People’s Bank, 122 Ala. 446, 26 South. 115.”

In Alabama Clay Products v. Mathews, 220 Ala. 549, 126 So. 869 (1930), this Court quoted with approval the following from 45 C.J. at page 381:

“ ‘Where it is not done for a fraudulent purpose and in the absence of statutory restriction, one may lawfully change his name without resort to legal proceedings, and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth.’ ”

We are not aware of any statutory restriction which requires that married women not be permitted to register to vote, if otherwise qualified, under the names by which they have chosen to be known and have used; provided, of course, it is not done for a fraudulent purpose.

Alabama has adopted the common law of England (Code 1975, § 1-3-1), and in view of the fact that the common law regarding “names” has not been altered by the legislature as far as we know, we adopt the common law of England in resolving this dispute.

What was the common law of England regarding “names”? The State cites Forbush v. Wallace, 341 F.Supp. 217, 221 (M.D.Ala.1971), aff’d per curiam, 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246 (1972), which does state:

“We may commence our analysis of the merits of the controversy by noting that Alabama has adopted the common law rule that upon marriage the wife by operation of law takes the husband’s surname. Roberts v. Grayson, 233 Ala. 658, 660, 173 So. 38 (1937); Bentley v. State, 37 Ala.App. 463, 465, 70 So.2d 430 (1954).”

It appears that at the time Forbush was decided, there was no procedure whereby the federal court could certify a question of state law to this Court for instructions such as we now have. Rule 18, A.R.A.P. It also appears that both sides in the Forbush case conceded that the rule set out in Forbush was the common law rule.

In brief, the plaintiffs, through their counsel, have set out what they contend to be the common law of England, that is, that all persons have the right, irrespective of marriage, to use the name or names of their choice so long as the name is not used for a fraudulent purpose. They have also argued that Forbush inaccurately stated the common law rule, and should not be followed.

Our research has convinced us that For-bush v. Wallace does not accurately state the common law on names, and that the case of Kruzel v. Podell, 67 Wis.2d 138, 226 N.W.2d 458 (1975), 67 A.L.R.3d 1249, correctly holds that the common law of England could be summarized as follows:

“‘When a woman on her marriage assumes, as she usually does in England ... the surname of her husband in substitution for her father’s name, it may be said that she acquires a new name by repute. . . . The change of name is in fact, rather than in law, a consequence of the marriage.’ ”

The right of women to use their maiden surnames has received considerable attention recently in commentaries and court decisions. See 67 A.L.R.3d 1249; Comment, The Right of Women to Use Their Maiden Names, 38 Albany L.Rev. 105 (1973); Comment, Married Woman’s Right to Her Maiden Name: The Possibilities for Change, 23 Buffalo L.Rev. 243 (1973); Bysiewicz and MacDonnell, Married Women’s Surnames, 5 Conn.L.Rev. 598 (1973); Hughes, And Then There Were Two, 23 Hastings L.J. 233 (1972); Comment, The Right of a Married Woman To Use Her Birth-Given Surname for Voter Registration, 32 Md.L.Rev. 409 (1973); Carlsson, Surnames of Married Women and Legitimate Children, 17 NYLF 552 (1971); Comment, A Woman’s Right to Her Name, 21 UCLA L.Rev. 665 (1973); Lamber, A Married Woman’s Surname: Is Custom Law? 1973 Wash.ULQ 779 (1973).

The State argues that the common law of Alabama could be different from the common law of other states, and suggests that because of that fact, the Forbush result should be upheld. The State further argues:

“Even if the adoption by married women of their husband’s surnames is held by this Court to be a matter of custom and fact, not law, the Board’s policy should still prevail. This Court can judicially notice that the overwhelming majority of married women use their husband’s surnames. This is not to derogate those women who use their birth surnames, but to point out a fact of great importance in the government’s identification of voters. The husband’s surname is an identification label which has the virtue of keeping administrative affairs orderly. Since most married female voters, by far, use the husband’s surname, that is the name to use if you want to maintain a one-name identity check on voters. If, for voting purposes, any voter is conceded more than one ‘legal’ name, the potential for confusion is merely apparent. Admittedly, the plaintiffs have used their birth surnames their entire lives, but permitting them to vote thereunder will have to mean that any married woman who desires to resume using her birth surname, or adopt a hyphenated name, or use a totally assumed name, must be permitted to vote thereunder. This is the crux of the argument. As noted above, the For-bush decision validated State policy in this respect.”

Even though the State is correct in stating that most married women customarily assume the surnames of their husbands, and register to vote in the surnames of their husbands, we hold that they are not legally required to do so. While the State suggests that allowing married women to register in their maiden surnames will create confusion, we believe that the legitimate interests of the State in preventing fraud in the election process can be satisfied without undue cost or harm.

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

AFFIRMED.

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

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur in the decision of this Court; however, it would appear that the Legislature in its wisdom and power could enact legislation dealing with the use of surnames in voter registration as long as the rational purpose of the legislation was to prevent confusion and fraud in the election process.