text:
    Raymond E. RAY and Jewel P. Ray v. Vester ROBINSON and Lucille P. Robinson.
    79-423.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      A. B. Foshee, Clanton, for appellants.
    William D. Latham, Clanton, for appel-lees.
   MADDOX, Justice.

This is an appeal from a judgment of the Circuit Court of Chilton County resolving boundary disputes between owners of coterminous lands. We affirm.

By warranty deed dated October 30,1954, Allen Waldrop conveyed to the plaintiffs/appellees, Vester Robinson and Lucille P. Robinson, inter alia, thirty-eight acres of land, more or less, located in the northeast quarter of the southeast quarter of Section 28, Township 23, Range 13. That property was described in the deed as follows:

The Northeast quarter of the Southeast quarter, less two acres on the South side along the old Randolph Road in Section 28, ... Township 23, Range 13 ....

The old Randolph Road referred to in this description is better known as the old Jemi-son-Randolph Public Road and the trier of fact could have found that it is now no more than an abandoned roadbed which runs approximately one thousand feet along the southern portion of the quarter-quarter. It enters the quarter-quarter on the east forty line approximately one hundred feet north of the southeastern corner of the quarter-quarter, and runs in a southwesterly direction until it intersects with the south forty line.

At the time the appellees purchased the above described property, the land described as “two acres on the South side along the old Randolph Road” was owned by Mr. and Mrs. Herbert Langston. That land was but a part of a larger twelve — acre tract, owned by Langstons, which extended into the southeast quarter of the southeast quarter of Section 28, Township 23, Range 13. The record shows that while the Langstons were -in possession of the property south of the old Jemison-Randolph Public Road, the ap-pellees recognized the old road as the northernmost boundary of the Langston property.

On June 8, 1957, the appellees conveyed to the defendants/appellants, Raymond E. Ray and Jeweldine P. Ray, sister of appel-lee Lucille P. Robinson, a two-acre tract of land located immediately north of the Langston property on the east forty line. The warranty deed by which this parcel was conveyed contained the following description:

Beginning at the corner of the Langston property running north along [the] Section line 2 acres deep thence West One acre thence South Two acre [sic] thence East One acre to the point of beginning, containing Two acres in the Northeast fourth of the Southeast fourth Sec. 28, T. 23, R. 13.

The record indicates that the “corner of the Langston property” was physically represented by appellee Vester Robinson to be that point at which the old Jemison-Ran-dolph Public Road intersected the east forty line.

Following this conveyance, appellee Ves-ter Robinson erected a barbed wire fence to mark the northern boundary of the appellants’ property. According to the terms of the deed, this fence should have started at a point on the east forty line “two acres” north of the “corner of the Langston property” and run in a westerly direction a distance of “one acre.” Instead, Mr. Robinson, in the presence of the appellants, estimated what he believed was “two acres” north of the Langston property; the fence began at a point on the east forty line approximately four hundred feet north of the Jemison-Randolph Public Road. From that point, the fence ran in a westerly direction until it intersected with paved county highway No. 25. Until the present suit was instituted, this fence was always recognized as the northern boundary of the appellants’ property.

On November 6, 1959, Mr. and Mrs. Herbert Langston, owners of the twelve-acre tract previously described, conveyed that property to the appellants. The deed by which this property was conveyed contained the following description:

Two (2) acres of land lying south of the Old Jemison-Randolph Public Road (which road is no longer in use), in the Northeast Fourth of the Southeast Fourth of Section 28, Township 23, Range 13; Also, all that part of the Southeast Fourth of the Southeast Fourth of Section 28, Township 23, Range 13 that lies north of the paved Jemison-Randolph Public Road running in a general east and west direction across said forty and containing ten (10) acres, more or less. All of the above described property containing twelve (12) acres, more or less.

With the execution of this deed, the appellants became the owners of a second tract lying in the northeast quarter of the southeast quarter of Section 28, Township 23, Range 13, this tract being composed entirely of lands lying south of the old Jemison-Randolph Public Road, and believed to contain two acres.

Approximately seven or eight years after the Langston deed was executed, appellee Vester Robinson hired a Mr. Carl Maddox for the purpose of digging a cattle watering hole along the abandoned roadbed. This water hole was dug with a backhoe and, according to a survey subsequently made on the property, lies partially on and partially south of the old roadbed, approximately seven hundred feet west of the east forty line. The testimony elicited at trial indicates that from the time this water hole was created until the present, the appellees have made exclusive use of it to water their cattle.

In May of 1966, the appellees sought to borrow money from the Federal Land Bank. In considering the appellees’ loan application, the federal bank conducted a thorough title search to determine whether the appellees held clear title. After this title search, Mr. Morgan Reynolds, an employee of the Federal Land Bank, informed the appellees that an error had been discovered in the 1957 deed wherein appellees had conveyed two acres of land to the appellants. Mr. Reynolds instructed them that they were required by law to correct that deed; therefore, on May 20,1966, the appel-lees filed a corrective deed amending the description contained in the 1957 deed to read as follows:

Beginning at the southeast corner of the Northeast Quarter of the Southeast Quarter, Section 28, Township 23, Range 13, and run thence north on and along the east line of said forty 420 feet, thence run west 210 feet, thence run south 420 feet, thence run east 210 feet, to the point of beginning.

This corrective deed is significant because it changes the designated “starting point” in the description of the property from the “corner of the Langston property” to the southeast corner of Section 28, Township 23, Range 13. As noted previously, the “corner of the Langston property” was recognized by the parties as that point at which the old Jemison-Randolph Public Road intersected the east forty line, a point one hundred feet north of the southeast corner of the quarter-quarter. As a result, the corrective deed described the property as lying south of the location that the parties originally agreed to. The appellants were never informed that this deed was being filed, nor were they apprised of its existence until after the present lawsuit was commenced.

It was not until the spring of 1978 that the events leading to the present suit transpired. In March or April of that year, the appellees hired a Mr. Bobby Seale, an unlicensed surveyor, to survey the land they conveyed to the appellants. In doing so, Mr. Seale discovered that there was, in fact, more than two acres (i. e., 3.19 acres) lying south of the old Jemison-Randolph Public Road and advised the appellees that they might own part of it. As a result, a dispute arose between the parties as to whether the old Jemison-Randolph Public Road was, in fact, the boundary between their respective properties. The appellees contended that they owned all the land lying south of the roadbed, less and except two acres specifically granted to the appellants. The appellants, on the other hand, claimed that the appellees had no claim to any of the property lying south of the old road. When the parties were unable to reach an amicable settlement, the present lawsuit was initiated.

On November 2, 1978, the appellees filed a petition in the Circuit Court of Chilton County alleging that the 1959 Langston deed was unclear and uncertain in its description of the property which was conveyed to the appellants. More specifically, appellees averred that this description caused confusion as to what portion of the land lying south of the old road belonged to the appellants and what portion belonged to the appellees. The appellees prayed that the court would enter an order clarifying the description of that conveyance and would ascertain a common boundary line and division between the properties. In addition, they requested the trial court to enter an order establishing that the appellants owned only two acres of land lying south of the old Jemison-Randolph Public Road and that the balance of the land lying south of the road belonged to the appellees.

In response to this petition, the appellants filed an answer denying that the Langston deed was ambiguous and denying that they owned only two acres of land lying south of the old road. To the contrary, they argued that the old Jemison-Randolph Public Road had been recognized as the permanent boundary between their properties for over twenty years. Beyond this, the appellants averred that they had been in open, notorious, exclusive, adverse, peaceful and hostile possession of all lands lying south of the old road since November 6, 1959, and that their predecessors in title had been in hostile possession of the land for more than forty years.

In addition to this answer, the appellants filed a counterclaim raising various contentions concerning the filing of the 1966 corrective deed and the boundaries of the ap-pellees’ property north of the old Jemison-Randolph Public Road. With regard to the corrective deed, the appellants averred that the deed had been filed without their knowledge, notice, approval or consent, and was not discovered by them until November 6, 1978, some four days after the commencement of this suit. They contended that the corrective deed constituted a cloud upon the title to their lands and was a malicious attempt by the appellees to retake a portion of the property they previously conveyed. The appellants requested $25,000 in punitive damages to punish ap-pellees for this conduct.

As concerns the boundaries of the appellants’ property north of the old road, the appellants contended that the fence erected by appellee Vester Robinson was located less than “two acres” north of the Langston property and, therefore, was not in conformity with the description contained in the 1957 deed. They contended that this action by the appellees had the effect of taking from the appellants a strip of land several feet in depth across the north side of their property. As a result, the appellants requested the trial court to enter an order requiring the appellees to relocate the fence after an accurate survey was made.

On the basis of these pleadings, the case proceeded to trial with the trial court hearing evidence ore tenus. After lengthy testimony was received the trial court rendered its final decree on November 7, 1979. The substance of that decree can be summarized as follows:

1. The trial court found that the appel-lees were not guilty of any malice, fraud, or intent to cloud the title to appellants’ land when they executed the 1966 corrective deed. As a result, the trial court specifically denied the appellants’ request for punitive damages. In addition, the trial court found that all the parties admitted that the corrective deed was in error; therefore, the court ordered, adjudged and decreed that the deed was null and void.

2. With regard to the appellees’ specific prayers for relief, the trial court found that they did not own any right, claim, title or interest in and to any portion of the northeast quarter of the southeast quarter of Section 28, Township 23, Range 13, lying south of the south margin of the old Jemi-son-Randolph Public Road; however, the trial court found that the appellees had acquired title to those lands south of the road surrounding the water hole by virtue of adverse possession. The exact land in which the appellees had acquired title was described by the trial court as follows:

Begin at a point where the South line of the NE lA of the SE Vi of Section 28, Township 23-North,- Range 13-East, Chilton County, Alabama intersects the southerly margin of the old abandoned Jemison-Randolph public road and run thence Northeasterly along the meanderings of the South margin of said road to a point which is more or less northeasterly of the water hole dug by Plaintiff; said point being the point of intersection of the South margin of said road and a fence crossing said road from the north margin thereof; and from said point run thence Southerly along a line perpendicular to the South margin of said roadbed for a distance of 10 feet; thence run Southwesterly along the meanderings and parallel to the south line of said abandoned roadbed to a point where said line intersects the south quarter-quarter line; from said point run thence Westerly along the quarter — quarter line a distance of 10 feet, more or less, to the point of beginning. It being the intention of this description to describe a strip of land along the south of said old abandoned roadbed of uniform width and ten feet wide in which the Plaintiffs’ watering hole is presently located.

The trial court further decreed that the appellants owned all that land lying south of the south margin of the abandoned road, less and except that strip of land described above. All lands north of the south margin of the old abandoned road were decreed to be the property of the appellees, less and except the two-acre parcel they conveyed to the appellants in 1957. In this way the trial court specifically established the south margin of the old Jemison-Randolph Public Road and the specified line around the water hole as a permanent northern boundary of the appellants’ property lying south of the old road.

3. As concerns the appellants’ request that the trial court order the appellees to relocate their barbed wire fence, the trial court found that the appellants had accepted and acquiesced in the erection of that fence and had always recognized it as marking the northern boundary of their property. As a result, the trial court decreed that the barbed wire fence was, in fact, the northern boundary of the appellants’ property lying north of the old Jemi-son-Randolph Public Road. Moreover, the court clarified the description of that property to read as follows:

Beginning at the SE corner of the NE lA of the SE lU of Section 28, Township 23, Range 13, and run North along the East line of said quarter-quarter a distance of 100 feet, more or less, to a point on the North boundary of the old abandoned Jemison-Randolph public road and the point of- beginning of the parcel of land herein described. From the point of beginning continue to run North along said quarter-quarter line for a distance of 400 feet, more or less, and to an iron pin and to a barb wire fence where said fence runs in a westerly direction; thence run westerly along said barb wire fence a distance of 210 feet more or less to a point; from said point run thence South and parallel with the East quarter-quarter line a distance of 400 feet, more or less, said line crossing Chilton County public road No. 25 passing through the barn of Raymond E. Ray and Jeweldean P. Ray and said line intersecting the North line of the old abandoned Jemison-Randolph public road. From said point of intersection, run thence Easterly along the meanderings of the North line of said old abandoned road to the point of beginning.

On December 5,1979, the appellants filed a motion for new trial alleging that the trial court’s decree was contrary to the pleadings, law and evidence. When that motion was denied, the appellants pursued this appeal.

On appeal, the appellants raise substantially the same issues as they raised in their motion for new trial. They contend that the lower court decree is in error as being contrary to the pleadings and evidence adduced at trial. Additionally, they argue that the decree is not reasonably certain in establishing the location of boundary lines and is not definite enough to stand alone without the aid of extrinsic evidence. As to both of these contentions, we disagree.

In actions involving boundary disputes between owners of coterminous lands, it is improper to refer to any “burden of proof” in establishing a true boundary line. It is the responsibility of the trial court, not the parties, to establish the true location of the line. Edwards v. Farmer, 285 Ala. 118, 229 So.2d 507 (1969); Keith v. Milford, 270 Ala. 376, 119 So.2d 184 (1960). In doing so, the trial court must undertake an independent and thorough examination of all the evidence offered at trial. Both parties will necessarily proffer evidence on that ultimate issue; however, neither party carries the burden of proving the true location of the line by a preponderance of the evidence.

As noted by this Court in Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857 (1944):

The burden is not on either party as to the true location of the line in the sense that if the evidence is equally balanced he loses the controversy. While the bill sets out complainants’ contention as to the location of the true line, the primary burden which complainants carry is to sustain the allegations showing the controversy, and that a situation exists which invokes the equity power of the court to find and fix the location of the line in dispute.... If complainants do not satisfactorily show that their contention is correct as to the true line, the cause is not due to be dismissed, nor does it necessarily result in finding according to the contention of respondent; but the court will proceed to find the true line, whether it is as either party contends. They may both be wrong in respect to their contentions. See, Ford v. Beam, 241 Ala. 340, 2 So.2d 411; Edwards v. Smith, 240 Ala. 397, 199 So. 811; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558.

See also Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287 (1965). If, on the basis of the pleadings and evidence presented at trial, a trial court is convinced that a controversy exists concerning the location of a boundary line, it is empowered to evaluate the evidence and reach a conclusive determination on the true location of the line; however, in doing so, it shall not be constrained by the pleadings to establish only a boundary line that is requested by either party. To the contrary, the court must proceed to find the true line, whether it is as either party contends. Stansell v. Tharp, supra; Deese v. Odom, 283 Ala. 420, 219 So.2d 134 (1969).

In the present case, it is clear from the pleadings and evidence that a genuine controversy existed as to several boundaries of the appellants’ lands lying in the northeast quarter of the southeast quarter of Section 28, Township 23, Range 13. As a result, it became the responsibility of the trial court to establish the true location of those boundaries. The appellants contend that the decree establishing the boundaries was unresponsive to the pleadings in that it established lines which were not requested by the parties. Furthermore, they argue that the trial court’s location of the lines is contrary to and unsupported by the evidence. These arguments are untenable.

After examining the evidence, the trial court held that the south margin of the old Jemison-Randolph Public Road marked the northern boundary of the appellants’ property lying south of the road. In granting the appellees a portion of the land lying south of the road, the trial court determined that, although the appellees did not own any property lying south of the old road, they had acquired rights in and to the area surrounding the cattle watering hole by virtue of adverse possession. This finding of adverse possession was based upon testimony elicited at trial that the appellees had cleared the area around the water hole, dredged the water hole and exclusively used the water hole for watering their cattle for over fourteen years, a time period well in excess of the ten-year prescriptive period applicable to boundary dispute cases. Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975); Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964). Other contradictory testimony was heard on this issue which the trial court, hearing evidence ore tenus, resolved in favor of a finding of adverse possession.

As far as the appellants’ property north of the old road is concerned, the court recognized a barbed wire fence as the northern boundary of the property. This decision was based upon evidence that the parties had recognized that fence as the boundary between their properties for over twenty years. Beyond this, the trial court defined the boundaries of that property according to the terms contained in the deed by which it was conveyed.

In reviewing the judgment of the trial court in cases such as these, this Court shall not enter a reversal unless the judgment of the trial court is palpably erroneous or manifestly unjust. Jemison v. Belcher, 368 So.2d 849 (Ala.1979); Smith v. Nelson, 355 So.2d 359 (Ala.1978). Stated otherwise, the judgment of the trial court must be affirmed if, under any reasonable aspect of the case, its decree is supported by credible evidence. Kirby v. Jones, 370 So.2d 250 (Ala.1979); Buckley v. Carroll, 366 So.2d 1094 (Ala.1978). We find no such palpable error and, therefore, hold that the trial court did not commit error in establishing the true boundaries of the properties.

A second argument raised by the appellants attacks the trial court’s decree as being unclear and uncertain in its description of the northern boundary of the appellants’ property lying south of the old road. They argue that the words of the decree attempting to establish and locate that boundary line are vague in that they do not refer to any plat of lands nor adopt any plat by reference.

It is clear that decrees establishing boundaries between coterminous lands must be reasonably definite and certain in their descriptions. Ascertained boundary lines must be capable of being physically identified by an officer of the court, and their description must not leave room for the exercise of discretion in their location. In Limbaugh v. Comer, 265 Ala. 202, 90 So.2d 246 (1956); this Court held:

A decree establishing the .location of a boundary line between the lands of coterminous owners must be reasonably certain within itself or by reference to the pleadings, evidence or documents filed in the cause, and the decree must be so certain that the line may be located and marked by an officer of the court who may be appointed to so mark the line without reference to extrinsic evidence or the use of his own discretion or by drawing his own conclusions as to any fact determinant of the true location of the line.
Where a decree refers to a survey without more in undertaking to describe a boundary line, the decree is not sufficiently certain, but where permanent monuments, natural or artificial, are already on the ground and are shown in evidence and incorporated in the decree they will suffice to fix the boundary. (Emphasis added.)

The northern boundary of the appellants’ property lying south of the old road was described by the trial court as being the south margin of the old Jemison-Ran-dolph Public Road. That line is clearly definite and ascertainable. As far as the area around the water hole is concerned, the trial court’s decree (previously quoted), set forth an explicit metes and bounds description of the property in which the appel-lees had acquired rights, and, in doing so, specifically referred to physical monuments presently located on the property. That description left no room for discretion in locating the boundary line between the appellants’ and appellees’ property. We find no uncertainty in the trial court’s establishment of the true boundary lines, and, therefore, conclude that the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

      . While in this Court the case is styled under the names Raymond E. Ray and Jewel P. Ray, the record on appeal sometimes shows Mrs. Ray’s name as “Jeweldine” or “Jeweldean.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert B. PINSON, Jr. and wife Clarice Pinson v. Everett G. VEACH and wife Dorothy Veach.
    78-755.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      John S. Casey, Heflin, for appellants.
    James Allen Main, Anniston, for appel-lees.
   PER CURIAM.

This is an appeal from a judgment establishing a boundary line and refusing to reform certain deeds. We affirm.

The appellees, plaintiffs below, are Everett Veach and his wife Dorothy Veach; the appellants are Robert Pinson and his wife Clarice Pinson. The parties are coterminous landowners, having acquired title to their respective properties from a common grantor, George Rush, who is an intervenor in this case. The controversy between the parties involves the ownership and right of maintenance and upkeep of a thirty-foot strip of land bounded on the east by appellant’s western property line, on the west by the center line of Bluff Road, and on the north by Ronna Ki Road.

In 1965 Rush divided his tract of land into two parcels. On August 26, 1970, he deeded to appellants the parcel lying in the northern half of the tract. The deed contained a reservation describing the thirty foot strip and retaining title in Rush but granting to appellants “an easement over, along, and across to be used in common with others. . . . ” According to Rush and the appellants, they contemporaneously entered into an oral agreement that if the, thirty foot strip was not subsequently needed for road purposes (i. e., in the event Bluff Road was not widened), Rush would convey the strip to the appellants. Until that time, Rush would have the right to improve, change or modify the strip; in fact, he maintained several permanent light fixtures, shrubbery and a rock garden in the strip of land.

In August of 1971, Rush sold the remainder of his property in the tract to the appellees. This property abutted that owned by appellants. The deed from Rush included a description of the thirty-foot strip over which the easement had been granted to appellants. Immediately prior to this conveyance, Rush, the appellees and appellants entered into an agreement whereby Rush agreed to sell all the property owned by him. The agreement stated that the appellants “shall continue to have an easement for ingress and egress over, along and across, in common with others, a 30 foot strip of land lying immediately west and adjacent to the property conveyed.” Soon thereafter, the appellants began construction of their house, which includes a U-shaped driveway which crosses the thirty foot strip at two places and enters onto Bluff Road. This is the only access to appellants’ residence.

The appellees’ residence is located on the tract of land lying to the south of the appellants’ land. The appellees maintained the strip of land in question by mowing the grass from the date they purchased their land in 1971 until April of 1978 when the appellants ordered them to cease cutting the grass on the strip. Appellees then brought suit to enjoin the appellants from interfering with their upkeep of the property and for a judicial determination establishing the boundary line between the two pieces of property.

A motion to intervene pursuant to Rule 24, ARCP, requesting a declaratory judgment as to any of his rights in the disputed tract, was granted to George Rush. The appellants then filed a counterclaim alleging that the deed from Rush to appellees did not reflect their true intentions and ’that it mistakenly transferred to appellees the thirty-foot strip. The counterclaim requested that the deeds and agreements between all parties be reformed to reflect the true intentions of Rush, appellants and ap-pellees.

The case was tried primarily on stipulations and documentary evidence, and partially on the testimony of the parties and a surveyor, Mr. Barry. Sitting without a jury, the trial court made findings of fact and decreed that: (1) appellants’ deed truly reflects Rush’s intentions at the time of the conveyance; (2) appellants are not the owners of the thirty-foot strip; (3) appellees are the owners in fee of the approximate forty-five foot strip west of and adjoining the appellants’ land, subject to certain easements and restrictions; (4) appellants have the right to use Bluff Road as a driveway to and from their property; (5) the thirty-foot strip between the center line of Bluff Road and appellants’ west line is subject to the restriction that it shall not be used or maintained differently from the way in which it was being used and maintained on August 26, 1970, except that Bluff Road may be widened or relocated eastward up to, but not to cross, the appellants’ west line; and (6) if Bluff Road is widened or relocated, the appellants will still have the right of access to and use of their driveway.

The appellants filed a motion to alter or amend the judgment or in the alternative for a new trial. This motion was denied.

Three issues are presented: Whether the trial court erred by refusing to reform the deeds; whether there was substantial conflict in the evidence to justify indulgence in the presumption favoring the trial court’s findings; and whether there was credible evidence to support the trial court’s ruling fixing the boundary line between the parties’ properties.

The general rule is that a court may exercise its equitable powers to reform a deed to make it conform to the intentions of the parties. Clipper v. Gordon, 253 Ala. 428, 44 So.2d 576 (1950). And where reformation is sought solely on the ground of mistake, with no fraud intervening, mutuality of mistake is essential. Original Church of God v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974); Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12 (1971). An error in drafting establishes mutuality of mistake. Williams v. Phillips Petroleum Co., 453 F.Supp. 967 (S.D.Ala.1978); Fidelity Service Ins. Co. v. A. B. Legg & Sons Burial Ins. Co., 274 Ala. 84, 145 So.2d 811 (1962). In such a case, the party opposing the instrument must produce evidence that is clear, convincing, and satisfactory, which proves that the deed does not truly express the intentions of the parties. Adams v. Adams, 346 So.2d 1146 (Ala.1977); Fidelity Service Ins. Co. v. A. B. Legg & Sons Burial Ins. Co., supra; Original Church of God v. Perkins, supra. Even if the plaintiff meets this burden of proof, he must also show that the reformation will not prejudice the rights of innocent third parties. Adams v. Adams, supra; Code 1975, § 8-1-2.

Appellants contend that Rush conveyed the thirty-foot strip to appellees by mistake and that their deed from Rush did not express their intentions which were that Rush would convey the strip to appellants when he was certain that Bluff Road would not have to be relocated.

Appellants further contend that, because there was no material conflict in the evidence, the presumption of correctness in favor of the trial court should not be applied in our review. State v. Kershaw Mfg. Co., 273 Ala. 215, 137 So.2d 740 (1962); Wright v. Price, 226 Ala. 591, 147 So. 886 (1933).

We conclude that the appellants failed to meet their burden of proof to support their counterclaim. The trial judge heard the evidence ore tenus and is due to be affirmed unless palpably wrong. Simpson v. First Alabama Bank of Montgomery, 364 So.2d 289 (Ala.1978); Adams v. Adams, 346 So.2d 1146 (Ala.1977). We are not convinced that the trial judge was plainly and palpably wrong in refusing to reform the deeds.

There is considerable conflict in the testimony on the issue of mutual mistake. Furthermore, Rush testified that he sold the appellants seven acres of land which included the land reaching all the way to Bluff Road but that he retained a right-of-way to the thirty — foot strip in himself. Yet Rush admitted that the property sold to appellants, measured by metes and bounds, only contained 6.38 aeres-seven acres minus the thirty-foot strip.

In contradiction to this, Rush testified that he did not deed the thirty-foot strip to the appellants; but that in a separate agreement, he granted the appellants an easement for access across the strip and orally agreed to sell them the strip in the future if Bluff Road did not have to be relocated east of its present location.

Similarly, testimony of the appellants contradicted itself regarding what they did and agreed to do at the time of the conveyance. Appellants concede, however, that if the deeds did reflect Rush’s intentions, then appellees are the owners of the'strip of land in question.

Less than one year after the conveyance to appellants, Rush agreed to sell the appel-lees all the land he still owned in the area. The deed to the appellants described the thirty-foot strip as being contained within the property conveyed to appellees. An agreement between Rush, the appellants and appellees executed prior to the date of appellees’ deed stated that the appellants would “continue to have an easement of ingress and egress” across the strip. Thus, in this agreement, Rush granted an easement to the appellants over a piece of land which he testified he had conveyed to them eleven months earlier.

Clearly then, the rule of review espoused by the appellants is not applicable here. Rather, the standard of review generally applied to cases heard ore tenus applies in this case. See Simpson v. First Alabama Bank of Montgomery, supra; Adams v. Adams, supra; Fidelity Service Ins. Co., supra.

Finally, we must determine whether the trial judge erred in establishing the boundary line between the two pieces of property. The standard of review for this issue was most recently restated in McKnight v. Price Farms, Inc., 382 So.2d 560 (Ala.1980), wherein it was stated:

The trial court specifically determined in its order, issued after the hearing on motion for new trial, that the surveyor had correctly placed the judicial markers in accordance with the instructions contained in its decree. In that decree, the trial court specifically established the boundary line between the two properties after hearing all the evidence ore tenus. Furthermore, the record reflects credible evidence supporting the trial court’s findings as to the location of the boundary line. In an appeal from a judgment establishing a boundary, such judgment will be affirmed if, under any reasonable aspect of the ease, the decree or judgment is supported by credible evidence; that is to say, the trial court will not be reversed unless there is a clear and decided preponderance of the evidence against its judgment. Kirby v. Jones, 370 So.2d 250 (Ala.1979); Francis v. Tucker, 341 So.2d 710 (Ala.1977). [Emphasis added.]

382 So.2d at 562.

The trial judge decided to leave the boundary at the point described in both the appellants’ and appellees’ deeds. He concluded that at the time of the deed to, and the agreement with, the appellants, Rush had every intention of retaining ownership and control of the land west of the boundary line subject only to the restriction upon himself that the strip would not be used in any fashion other than for the relocation of Bluff Road, and further subject to appellants’ right of ingress and egress. Thus, reformation of the deed was not appropriate.

The trial judge sat without a jury and had the advantage of observing the witnesses and their demeanor on the stand as well as their references to documentary evidence presented. Where testimony is taken ore tenus in a suit to fix a boundary line, the findings of fact entered by the trial judge will be sustained if there is any credible evidence to support them. This is especially true in cases such as the instant case where numerous exhibits were introduced and the record is replete with references to these exhibits, e. g., “indicating,” and where there was obvious animosity between the parties involved. See Terry v. Buttram, 368 So.2d 859 (Ala.1979); Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1976).

Because the decree fixing the boundary line was supported by credible evidence and the decision refusing to reform the deeds was not plainly wrong, the decision of the trial judge is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES, AL-MON and EMBRY, JJ., concur.


author: EMBRY, Justice. MADDOX, Justice

text:
    Lillian W. THOMAS v. FREEMAN WRECKING COMPANY, INC., et al.
    79-37.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      John M. Tyson, Jr., of Tyson & Tyson, Mobile, for appellant.
    Joseph 0. Kulakowski, Mobile, for appel-lee Freeman Wrecking Co., Inc.
    Otto E. Simon and J. Randall Crane of Simon & Wood, Mobile, for appellee City of Prichard.
   EMBRY, Justice.

This appeal by Lillian W. Thomas is from a judgment entered upon a jury verdict in favor of Freeman Wrecking Company, Inc., which as a matter of law is a judgment in favor of the third party defendant, City of Prichard. Mrs. Thomas brought this action against Freeman Wrecking for compensatory and punitive damages for trespass after warning because it demolished a dwelling house belonging to her.

The City of Prichard sought to condemn Mrs. Thomas’s property under authority of Act 705, 1975 Acts of Alabama. That Act was adopted prior to this court’s decision in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), which presumably accounts for its not being challenged under the Peddycoart rationale. The provisions of the Act pertinent to this case read:

“Section 1. Any city of the State having a population of more than 41,000 and less than 45,000 inhabitants according to the most recent federal decennial census shall have authority after notice as provided herein, to move or demolish buildings and structures, or parts of buildings and structures, party walls and foundations when the same are found by the governing body of the city to be unsafe to the extent of being a public nuisance from any cause.
“Section 2. The term ‘appropriate city official’ as used in this Act shall mean any city official or city employee designated by the mayor or other chief executive officer of a city coming under the provisions of this Act as the person to exercise the authority and perform the duties delegated by this Act to the ‘appropriate city official’. Whenever the appropriate city official of such city shall find that any building, structure, part of building or structure, party wall or foundation situated in any such city is unsafe to the extent that it is a public nuisance, such official shall give the person or persons, firm, association or corporation last assessing the property for state taxes notice by personally serving upon such person, firm, association or corporation a copy of said notice to remedy the unsafe or dangerous condition of such building or structure, or to demolish the same, within a reasonable time set out in said notice, which time shall be not less than sixty days or suffer such building or structure to be demolished by such city and the cost thereof assessed against the property. In the event that such personal service is returned ‘Not Found’ after not less than two attempts, such notice may be given by registered or certified mail. The mailing of such registered mail notice, properly addressed and postage prepaid, shall constitute notice as required herein. Notice of such order, or a copy thereof, prior to the delivery or mailing of the same as required by the immediately preceding sentence, shall also be posted at or within three feet of an entrance to the building or structure, provided that if there is no entrance such notice may be posted at any location upon such building or structure.” (Emphasis added.)

Background events leading to this action began about 12 February 1976 when Ray-ford Summers of the City of Prichard’s Inspection Department inspected a vacant house located at 415 West Main Street and found it unsafe and unfit to live in, according to his judgment. He posted a condemnation notice on the building directed to Thomas Realty Company as owner of the property. That notice stated:

“YOU ARE HEREBY NOTIFIED THAT THE ABOVE DESCRIBED STRUCTURE, PARTY WALL OR FOUNDATION HAS BEEN FOUND TO BE UNSAFE TO THE EXTENT THAT IT IS A PUBLIC NUISANCE. YOU ARE ORDERED TO REMEDY SUCH UNSAFE CONDITION, OR TO DEMOLISH SUCH BUILDING OR STRUCTURE, WITHIN SIXTY (60) DAYS AFTER SERVICE OF THIS NOTICE, OTHERWISE SUCH BUILDING OR STRUCTURE WILL BE DEMOLISHED BY THE CITY OF PRICHARD AND THE COST OF SUCH DEMOLITION WILL BE ASSESSED AGAINST THE PROPERTY ON WHICH SUCH BUILDING OR STRUCTURE IS LOCATED IN ACCORDANCE WITH THE PROVISIONS OF ACT NO: [705], ACTS OF ALABAMA, REGULAR SESSION 1975.”

A similar notice was sent to Thomas Realty Company at 2559 Springhill Avenue, Mobile, Alabama, by certified mail.

There is no evidence in the record that there was any attempt to make personal service of the required notice on either Mrs. Thomas or Thomas Realty Company. Neither is there any evidence of what person, firm, association, or corporation last assessed the property for state taxes before the attempts were made to serve Thomas Realty by certified mail. However, there is evidence that Mrs. Thomas had actual knowledge the house was going to be demolished and that it was her property. Other provisions of Act No. 705, not crucial to a decision in this case, were complied with by the City. It contracted with Freeman Wrecking to demolish the house and the latter did so. Mrs. Thomas’s unsuccessful trespass action followed and this appeal ensued.

The issue upon which the outcome of this appeal depends is whether actual notice to, or knowledge of, Mrs. Thomas that her property was to be condemned and demolished is sufficient to invoke operation of the Act to empower the City to condemn the property absent compliance with those provisions of the Act regarding attempted personal service and proof of what person or entity was the last assessor of the property for state taxes. We hold that failure to strictly comply with those provisions of the Act rendered the actions of the City condemning Mrs. Thomas’s property nullities and the demolition of her house wrongful.

Where the giving of notice is relied on to sustain forfeiture or divestiture of one’s rights, statutory direction as to how such notice shall be given must be strictly complied with. Lewis v. Ehrlich, 20 Ariz. App. 363, 513 P.2d 153 (1973); Hepner v. Township Committee of Township of Lawrence, 115 N.J.Super. 155, 278 A.2d 513 (1971); Cowl v. Wentz, 107 N.W.2d 697 (N.D.1961).

Also, where a municipality without compensation destroys a building that is a menace to public health or safety under a statute providing various procedural and substantive restraints, those provisions are to be strictly construed, particularly the requirement that the proper owner be notified. Housemaster Corporation v. City of Kenner, 374 So.2d 1240 (La.1979).

“The term ‘personal service’ has a well defined meaning and is generally defined to mean what the words import, namely, notice personally given and where written notice is required, it would ordinarily mean that the written notice must be served personally upon one entitled to it.” Merrion v. Scorup-Somerville Cattle Co., 134 F.2d 473 (10th Cir. 1943), cert. denied 319 U.S. 760, 63 S.Ct. 1317, 87 L.Ed. 1712 (1943).

Under the Act in question in this case a copy of the notice must be personally served. The use of the word “copy” in the Act makes it clear that personal service of written notice is required or two unsuccessful attempts must be made before resort to certified mail service is authorized. By law, Acts of this nature are to be strictly construed and such construction mandates strict compliance with the notice requirements as well as those regarding assessment of state taxes.

The City is authorized to move or demolish buildings after notice as provided in the Act. Without giving notice strictly as prescribed by the Act the City could not acquire jurisdiction to empower it to do that which it would otherwise be authorized to do under that Act, and its proceedings in this case were void. McLean v. City of Ft. Smith, 185 Ark. 582, 48 S.W.2d 228 (1932).

“ * * * [Wjhere a jurisdictional notice is required to be given in a certain manner, any means other than that prescribed is ineffective. See Yuma County v. Arizona Edison Co., 65 Ariz. 332, 180 P.2d 868. This is so even though the intended recipient of that notice does in fact acquire knowledge contemplated by the law. Such a rule is no mere ‘legal technicality’, rather it is a fundamental safeguard assuring each citizen that he will be afforded due process of law. Nor may the requirement be relaxed merely because of a showing that certain complaining parties did have actual notice of the proceeding.” Hart v. Bayless Investment & Trading Company, 86 Ariz. 379, 346 P.2d 1101 (1959). See also McAnulty v. Snohomish School District No. 201, 9 Wash.App. 834, 515 P.2d 523 (1973).

The record is clear that Mrs. Thomas no doubt had actual knowledge that her building was to be demolished. However, it is less than clear that she was given adequate notice of any specific deficiencies and thus afforded a reasonable opportunity to remedy any such deficiencies.

Mrs. Thomas preserved error in this case in only one respect. In her motion for new trial, denied, she asserts the verdict is contrary to the evidence. Certainly, this is the case, as here, if there is an absence of evidence to support jurisdictional requirements of Act No. 705. The verdict therefore is manifestly unjust. Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979). The application of the rule of law requiring strict compliance with the procedural requirements of Act No. 705 to undisputed evidence in this case renders inescapable the conclusion that the jury’s verdict was palpably wrong and the judgment below entered thereon is due to be and is hereby reversed. REVERSED AND REMANDED.

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

TORBERT, C. J., concurs in result.

MADDOX and SHORES, JJ., dissent.

MADDOX, Justice

(dissenting).

The majority admits that “there is evidence that Mrs. Thomas had actual knowledge the house was going to be demolished and that it was her property” (emphasis added); nevertheless, the majority concludes that she did not have the “notice” required by statute. I believe the majority’s conclusion is much too technical.

This case was tried before a jury and the evidence concerning “notice” was controverted. At the landowner’s request, the court instructed the jury on the “notice” issue as follows:

I charge you members of the jury that in order to have a legal condemnation by the City of Prichard against the property of the Plaintiff, the City of Prichard must personally serve upon the Plaintiff a copy of the notice to remedy the unsafe or dangerous condition of such building or structure, or to demolish the same, and it is only in the event that personal service is returned “not found” after not less than two (2) attempts, that such notice may be given by registered or certified . mail.
* * * * * *
I charge you members of the jury that notice by mailing of registered or certified mail may only be used in giving notice of a condemnation by the City of Prichard after personal service is first attempted and returned “not found” after not less than two (2) attempts.

The jury, by returning a verdict for the defendant City, obviously found that the City complied with the requirements of law.

Having requested the court to submit the question of proper notice to the jury, the landowner should not be heard to complain, even if the court should not have submitted that issue to the jury under the evidence.

The subject of inconsistent requests for instructions is discussed in Western Union Telegraph Co. v. Griffith, 161 Ala. 241, 50 So. 91 (1909), as follows:

The appellant (defendant) requested the court in writing to hold, and to instruct the jury, that it was an action ex contractu, and the court granted the request and instructed the jury accordingly. The defendant then requested the court in writing to instruct the jury that the action was ex delicto, which the court very properly declined to do. A party who has invoked a particular action or ruling on the part of the trial court will not be heard to complain in this court of such action or ruling, though it be erroneous. We express no opinion as to the ruling of the trial court in holding that the action was ex contractu and not ex delicto; but what we do decide is that the appellant, having invoked this ruling, will not be heard to complain.-Lucas v. State, 144 Ala. 67, 39 South. 821, 3 L.R.A. (N.S.) 412; Ex parte Winston, 52 Ala. 419; Vaughn v. Smith, 69 Ala. 92; L. & N. R. R. Co. v. Hurt, 101 Ala. 34, 13 South. 130.

The landowner, by requesting the instructions set out above, invoked a ruling of the court and should not, after suffering an adverse jury verdict, now be allowed to complain. I would affirm.

SHORES, J., concurs.


text:
    Ned C. MAFFETT, as Administrator, Etc. v. Danny Ray ROBERTS.
    79-110.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      Lewis H. Hamner and John A. Tinney, Roanoke, for appellant.
    Ray F. Robbins, II, of Gaines, Cleckler, Robbins & Goodrich, Talladega, for appel-lee.
   PER CURIAM.

This is an appeal from a trial court order denying plaintiff’s motion for a new trial. Plaintiff Ned C. Maffett, as administrator of the estate of his son, Albert Alonza Jordan, brought suit for his son’s wrongful death while a passenger in an automobile driven by defendant Danny Ray Roberts.

Danny Roberts and Albert Jordan were friends and had worked together reroofing a house on April 13, 1978. Around 3:30 in the afternoon, Roberts drove Jordan and another high school student to Georgia, and each bought a six-pack of beer. They rode around talking and drinking beer. Around 5:30 they had supper at Danny Roberts’s house. Roberts had a sandwich. By 7:30 they had finished the beer, but they continued to drive around and talk. Between midnight and 1:00 a. m. Roberts took the third boy home and started to drive to Jordan’s house. Roberts testified that at that time he was no longer intoxicated and was driving within the speed limit of 55 miles per hour. The car went off the side of the road, and Roberts lost control of it. It crossed a ditch, hit a cement post, flipped over and landed upside down against a telephone pole 400 feet from where it had left the road. Jordan was thrown from the car and killed. Roberts hit his head, had extensive and severe chemical burns from being soaked with gasoline and was temporarily hospitalized.

The accident was investigated by State Trooper Buford Bishop, who did not arrest Roberts for driving while intoxicated or for any other offense arising from his driving that evening. The next morning, Bishop requested Dr. John Campbell to take a blood sample from Roberts. Dr. Campbell asked for Roberts’s consent and received it.

In May of 1979, Jordan’s father, Ned Maffett, filed a complaint for wrongful death before Judge William Byrd in the Circuit Court of Randolph County, Alabama, alleging that Jordan died as a result of Roberts’s wanton misconduct in speeding his car while intoxicated and demanding judgment for $250,000. Defendant filed two motions to suppress the evidence of the blood sample and test results, which were denied. At the trial, the jury found for the defendant. The plaintiff filed a motion for a new trial. The judge, in denying the motion, stated that:

It is ordered that the motion for a new trial be and hereby is denied; however, in order that there be no presumption in favor of the trial court’s ruling the following comment seems appropriate.
Except for the scintilla rule, I would have directed a verdict on the liability for the plaintiff. It doesn’t seem right for the nisi prius judge to overrule the jury in this case after instructing them they could find for either party. Perhaps someone at a distance can determine what is right.

The plaintiff appealed from the order denying his motion. He asserts that the trial court applied an improper legal standard in denying the motion; that the verdict was contrary to the great weight of the evidence; that the court erred in refusing to allow the plaintiff to introduce into evidence photographs of the car or of the scene; and that the court erred in permitting testimony by Trooper Bishop that no charges were brought against the defendant. Wé affirm.

We do not agree with the appellant that the trial judge applied the wrong standard of review in denying the motion for a new trial. The judge did not apply the scintilla rule to the motion for a new trial. He merely stated in the past tense that he had applied the rule in submitting the case to the jury. He was entirely correct in doing so. By the scintilla rule, a fact question must go to the jury if the evidence, or any reasonable inference arising therefrom, furnished the merest gleam, glimmer, spark, the smallest trace, or a scintilla of evidence in support of the theory of the complaint. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). The trial judge in no way indicated that he was using the scintilla rule in denying the motion for a new trial. The rule is inapplicable when a court is ruling on a motion for a new trial. Hodges and Co. v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972). The appellant asserts that the trial court failed to perform its duty in reviewing the jury verdict. We disagree. The court reviewed the verdict and was unwilling to set it aside as against the great weight of the evidence.

We agree with the trial court’s actions. We do not find that the verdict was contrary to the great weight of the evidence. We cannot say that the jury went beyond its prerogative in returning a verdict for the appellee. Jury verdicts are presumed correct, and no ground for a new trial is more carefully scrutinized or more ' rigidly limited than that a jury verdict is against the weight of the evidence. Dean v. Mayes, 274 Ala. 88, 145 So.2d 439 (1962). When a trial court refuses to grant a motion for a new trial, the presumption that the jury verdict is correct is strengthened. Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453 (1972). When, as here, a trial court, by a clear statement in its denial of a motion for a new trial, denies any presumption in favor of its own ruling, it may diminish the traditional presumption in its favor, but it does not thereby abrogate the strong presumption in favor of the jury’s verdict. Although this anomalous denial of the motion cannot be considered to strengthen or substantiate the presumption that the jury’s verdict was correct, the underlying presumption in favor of the verdict remains strong.

In reviewing the verdict, we must view the evidence that was before the jury in a light most favorable to the appellees, without regard to any view which we might have as to the weight of the evidence. We must also allow such reasonable inferences as can be drawn by a jury. Riley v. Banks, 289 Ala. 56, 265 So.2d 599 (1972). A jury’s verdict, presumptively correct, must not be set aside unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence is against the verdict and is so decidedly so as to clearly convince us that it is palpably wrong and manifestly unjust. Kilcrease v. Harris, supra. Johnson v. Louisville & N. R. Co., 240 Ala. 219, 198 So. 350 (1940).

The issue of wantonness in this case was properly submitted to the jury. The jury was charged that, under the Alabama Guest Statute, Code of Ala.1975, § 32-1-2, the defendant could only be liable for wilful or wanton injury to his gratui-. tous guest, nor for mere negligence. It was also charged that:

Wantonness is the conscious doing of some act or omission of some duty under knowledge of the existing circumstances and conditions and conscious that from the doing of such act or omission of such duty an injury will likely or probably occur.
Before a party can be said to be guilty' of wanton conduct it must be shown that with reckless indifference to the consequences he either consciously or intentionally did some wrongful act or consciously omitted some known duty which produced the injury.
Now, an intent to injure is not necessary to constitute wantonness....
No person ... shall drive at such a speed as to endanger the life, limb or property of any person or at more than 55 miles per hour. It is unlawful for a person to drive while intoxicated. If there was .10 or more by weight of alcohol in a person’s blood, it shall be presumed that that person was intoxicated.

We are of the opinion that the evidence, and reasonable inferences therefrom, in this case are sufficient to substantiate the jury’s verdict. Taking the tendencies of the evidence most favorable to the defendant, the jury could conclude that: (1) Roberts had drunk no more than six beers six hours before the accident and was not intoxicated at the time of the accident; (2) that he was driving within the speed limit of 55 miles per hour; and (3) that the accident was the result of defendant’s negligence and not of his wanton misconduct. The motion for a new trial was properly denied.

The trial court did not err in refusing to allow plaintiff to introduce into evidence two photographs of the car and the scene of the accident. A photograph is relevant and admissible in order to explain and apply the evidence when it helps the jury to better understand the persons, objects, locale or conditions which are in issue. However, the application of this evidentiary rule is within the sound discretion of the trial court, both as to a photograph’s initial identification and reliability and to its probative or prejudicial qualities. This discretion is not reviewable in the absence of a gross abuse of that discretion. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975). The trial court’s refusal to permit these photographs is not an abuse of discretion. The plaintiff had introduced two other photographs of the car and four photographs of the scene. The court was within its discretion in disallowing additional photographs of the scene.

The trial court did not err in permitting Trooper Bishop to testify on cross-examination by the defendant that no charges were brought against the defendant as a result of the accident. The trial court had allowed the plaintiff to get into evidence the results of the blood test against the defendant’s assertions that it was inadmissible under the statute unless the defendant was under arrest. We hold that it was not error to allow this evidence in view of the uncontradicted evidence that the defendant consented to the test. In this context, however, the court properly allowed the defendant, by way of cross-examination of the plaintiff’s witness, Trooper Bishop, to elicit for the jury’s consideration the fact that the defendant was not charged with driving while intoxicated.

Under the. Alabama ■ Chemical Test for Intoxication Act, Code of Ala.1975, §§ 32-5-190 through -194, a driver who is “lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle ... while under the influence of intoxicating liquor,” has impliedly given his consent to a chemical test of his blood, breath or urine. An arrest for one of the enumerated offenses furnishes the implied consent under the statute. Where, as here, the driver actually consents to the test, his arrest is not a condition precedent to its admissibility. Under § 32-5-193, the results of a test which is “authorized by this division” are admissible at any civil or criminal trial arising out of the acts alleged to have been committed by that person at the time that the blood test was authorized. Under this section, if the results of the authorized test show that there was 0.10 per cent or more by weight of alcohol in the person’s blood, it is presumed that the person was intoxicated. This statutory presumption, however, is a rebuttable one, and a jury is not compelled to find that the person was intoxicated even though the results show an alcohol level in excess of 0.10 per cent.

The trial court told the jury that the defendant had a right to argue that the lack of charges against him might have an inference as to whether or not he had committed a wrongful act. The court at the same time said that “they don’t have to bring an action for the defendant to be guilty.... [T]he fact that [Trooper Bishop] didn’t bring a charge doesn’t mean that he didn’t commit the crime.... Not the crime, the wrong.” The instruction above was not reversible, prejudicial error as it did not probably injuriously affect substantial rights of the parties. The trial court clearly explained the purpose for which the testimony was introduced, and that the lack of charges did not mean lack of liability by the defendant. The trial court did not commit reversible error in admitting the testimony.

We affirm the judgment of the trial court.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

JONES, J., concurs in the result.


author:
PER CURIAM.
      TORBERT, Chief Justice

text:
    ROLAND PUGH MINING COMPANY, et al. v. Louis Coleman SMITH, III. ROLAND PUGH MINING COMPANY, et al. v. Erick BARNES. ROLAND PUGH MINING COMPANY, et al. v. Albert HAMNER. ROLAND PUGH MINING COMPANY, et al. v. Alvin HAMNER.
    79-113 to 79-116.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      W. Stancil Starnes and James H. Starnes of Starnes & Atchison, Birmingham, for appellants.
    Claude Burns, Jr. and Robert V. Wool-dridge, Jr., Tuscaloosa, and Alex W. Newton and C. Terrell Wynn of Hare, Wynn & Newton, Birmingham, for appellees.
   PER CURIAM.

Plaintiffs, all residents of Tuscaloosa County, brought suit in Jefferson County against Ervin Earl Gray, an individual resident of Tuscaloosa County, Roland Pugh Construction Company and Roland Pugh Mining Company, domestic corporations doing business in Tuscaloosa County but not in Jefferson County and General Motors Corporation, a foreign corporation qualified to do business in Alabama and doing business both in Jefferson County and in Tuscaloosa County. The suits were for personal injuries which arose out of an automobile accident that occurred in Tuscaloosa County-

Defendants Ervin Earl Gray, Roland Pugh Construction Company and Roland Pugh Mining Company filed timely motions to transfer these cases to Tuscaloosa County. After a hearing on the motions, the Honorable Thomas E. Huey, Judge of the Jefferson County Circuit Court, entered interlocutory orders denying them. In its orders, the court recognized that the issue “involved a controlling question of law as to which there is a substantial ground for a difference of opinion.. .. ” Thereupon defendants Gray, Pugh Construction, and Pugh Mining filed a petition for permission to appeal all four interlocutory orders under ARAP 5, which we granted. We affirm.

Under ARCP 82(c), “[wjhenever an action has been commenced in a proper county, additional claims and parties may be joined, ... as ancillary thereto, without regard to whether that county would be proper venue for an independent action on such claims or against such parties.” This rule is subject to the limitation that a for eign corporation may not be sued in a county in which it does not do business, regardless of whether it is sued jointly with someone as to whom venue is good in that county. Alabama Warehousing Co. v. Hyatt, 26 Ala.App. 117, 154 So. 313 (1934). See also ARCP 82(c), Comment. The basis of this limitation is found in the Alabama Constitution, Ala.Const. art. XII, § 232. That section does not apply, however, to domestic corporations. Harris v. Elliott, 277 Ala. 421, 171 So.2d 237 (1965); Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917).

Code 1975, § 6-3-7, provides:

A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff’s residence.

The appellants argue that the proviso contained in this statute is mandatory and compels the conclusion that all actions for personal injury against a domestic corporation must be brought either in the county where the injury occurred, or where the plaintiff resides if the corporation does business by agent in the latter county. We agree that this is a correct interpretation of the statute where a domestic corporation is the sole defendant. In speaking to this issue in 1906, in Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663 (1906), this Court said:

The [domestic] corporation was sued jointly with Stewart [an individual], and in Marshall county, where Stewart resided, and under sections 4205 [now § 6-3-2, Code] and 3271 [later T. 7, § 185-the Branch Summons Statute, now Rule 4, ARCP] the question of venue was not open to the Eagle Iron Company so long as Stewart was a joint defendant; but, after the plaintiff eliminated Stewart from the suit, the corporation became the sole defendant, and had the right to then question the venue of the action. Section 4207 applies to suits against corporations when they are sole defendants, and does not conflict with sections 4205 and 3271 in reference to suits against two or more defendants. [Emphasis added.]

147 Ala. 613, at 617, 41 So. at 664.

Again, in Louisville & N.R. Co. v. Strickland, 219 Ala. 581, 122 So. 693 (1929):

Section 9418 of the Code [now Rule 4, ARCP], as heretofore pointed out, provides that any joint and several action may be brought in a county having jurisdiction of any one of the defendants, and be executed in any county in the state. ... This section of the Code has been held to justify suit against a domestic corporation not doing business in the county, when a codefendant is an individual residing therein. Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663. It is immaterial in this respect whether the joint defendant properly sued in the county is an individual or a corporation. ... There is no constitutional provision prohibiting a suit against a domestic corporation in a county where it is not doing business.

Rule 82(c), ARCP, simply restates the statutes as heretofore construed by this Court in providing:

Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.

In this case, venue as to General Motors is proper in Jefferson County. Therefore, venue is not improper there as to the other defendants. Ingram v. Omelet Shoppe, Inc. [1980] 388 So.2d 190 (Ala. 1980). Ex parte Cummings, Gazaway & Scott, Inc., 386 So.2d 732 (Ala. 1980).

The judgment of the trial court is affirmed.

AFFIRMED.

All the Justices concur, except TOR-BERT, C. J., who dissents.

TORBERT, Chief Justice

(dissenting).

As a general rule, venue good as to one defendant is good as to all, but that rule is not all encompassing, and it may be limited by statute or constitutional provision. Hodges v. General Shale Products Corp., 346 So.2d 416 (Ala. 1977). The legislature has by statute clearly limited this rule in the case of personal injury actions against domestic corporations, and Roland Pugh Construction Company and Roland Pugh Mining Company should therefore be subject to suit for personal injuries only in Tuscaloosa County, the site of the accident and the county of the plaintiffs’ residence.

The majority cites Louisville & N.R. Co. v. Strickland, 219 Ala. 581, 122 So. 693 (1929), and Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663 (1906), for the proposition that Code 1975, § 6-3-7, is not mandatory where a domestic corporation is sued jointly in a county where venue is good as to one or more of the other defendants but not as to the corporation. What the majority fails to recognize, however, is that those two cases deal with actions for breach of contract. The special proviso for domestic corporations in Code 1975, § 6-3-7, states that “all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff’s residence.” It is only in personal injury actions against domestic corporations that the legislature has limited venue to the county where the injury occurred or the county of the plaintiff’s residence if the corporation does business there. Eagle Iron and L & N Railroad, both breach of contract cases, are therefore not applicable in this case, since it falls within the proviso of Code 1975, § 6-3-7.

Code 1975, § 6-3-7, reflects a legitimate legislative intention that a civil action be situated in a county having a substantial interest in the litigation. Joinder of a corporation doing business in other counties should not constitute a basis for bootstrapping a case into the courts of a county that has, at best, a tenuous connection with the litigation. In the cases before us, the only connection between the actions and Jefferson County is that General Motors Corporation, a relatively nominal defendant, does business there. General Motors, however, does business in virtually every county in the state. The majority’s decision would allow suits brought by and against residents of a county, based on events taking place in that county, to be brought in any county in the state, merely by joining as a defendant a corporation doing business in more than one county, regardless of the added expense, delay, and inconvenience to the defendants. I do not believe the legislators intended such a result when they enacted Code 1975, § 6-3-7, as they clearly, by the use of unambiguous language, sought to limit the venue of personal injury actions. By using the word “must” as opposed to the word “may” in setting out the venue for personal injury actions against domestic corporations, the legislature evidenced this intention to place a mandatory limitation on the venue of such actions. When the legislature uses a mandatory word such as “must,” it should be given a mandatory meaning unless the legislature has clearly expressed a contrary intent. See, Prince v. Hunter, [1980] 388 So.2d 546 (Ala. 1980). The proviso of Code 1975, § 6-3-7, concerning personal injury suits against domestic corporations, contrasts sharply with the preceding portion of the statute, which states that “a domestic corporation may be sued in any county in which it does business.” Since the legislature made a clear exception for personal injury cases, and since it used the mandatory word “must” in stating that exception, the clearly expressed intent of the legislature should be given effect.


author: TORBERT, Chief Justice. EMBRY, Justice

text:
    Edward Charles FERGUSON, M. D. v. Leon C. HAMRICK, M. D., Chairman of the State of Alabama Board of Medical Examiners.
    79-160.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      J. Mark White of Smith, White & Hynds, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for appel-lee.
   TORBERT, Chief Justice.

This appeal is from an order of the Alabama State Board of Medical Examiners revoking Edward Charles Ferguson’s license to practice medicine.

Dr. Ferguson was charged with practicing medicine in such a manner as to unwar-rantedly endanger the health and safety of his patients with regard to: (1) the quantity of controlled substances prescribed, (2) the frequency of such prescriptions, and (3) the medical judgment exercised in prescribing controlled substances.

The only witness who testified in support of the Board of Medical Examiners’ complaint was Mr. Vick McClellan, an employee of the Alabama Department of Public Safety, Bureau of Investigation of Narcotics, who testified that he collected from pharmacists prescriptions which Dr. Ferguson had written between August 1978 and February 1979. Certain prescriptions for large quantities of controlled substances were admitted into evidence. Dr. Ferguson also testified, and various members of the Board of Medical Examiners questioned him regarding specific patients, specific habits, his personal life, and specific prescribing practices and procedures. At the conclusion he was advised that the Board would look into the situation and notify him of its decision. Subsequently, the Board entered the following order revoking Dr. Ferguson’s certificate to practice medicine:

The Alabama State Board of Medical Examiners met on October 17, 1979, with Edward Charles Ferguson, M.D., and heard extensive testimony concerning the prescribing of controlled substances by Dr. Ferguson for several of his patients. The Board heard testimony relating to the amount and frequency of controlled substances prescribed by Dr. Ferguson for a number of specific patients and questioned Dr. Ferguson concerning his exercise of medical judgment in deciding to issue the various prescriptions. It was the unanimous opinion of the Board that Dr. Ferguson improperly and excessively prescribed controlled substances to patients; that Dr. Ferguson prescribed Per-codan for patients complaining of headaches without properly evaluating the patients; that Dr. Ferguson improperly treated dysuria with Dyazide; that Dr. Ferguson improperly administered intravenous Lanoxin to a patient with tachycardia without ascertaining the amount of Digitalis that the patient had been taking; and that Dr. Ferguson treated patients with excessive doses of thyroid medication without first utilizing adequate screening and diagnostic procedures. It was further the unanimous opinion of the Board that Dr. Ferguson does not possess sufficient medical knowledge to practice medicine without endangering the health and safety of his patients.
The aforesaid considered, it is ORDERED, ADJUDGED, AND DECREED that the certificate of qualification to practice medicine in the State of Alabama previously issued to Edward Charles Ferguson, M.D., be and the same is hereby revoked.

Dr. Ferguson contends that the Board’s order should be reversed because (1) it was not supported by a preponderance of the evidence and is procedurally and legally insufficient, since there was no expert testimony produced at the hearing as to the propriety or impropriety of Dr. Ferguson’s prescribing practices and (2) the hearing did not comport with the requirements of procedural due process.

Section 34-24-90 of the Alabama Code provides that before a physician’s certificate to practice medicine is revoked, he shall have been found guilty of an offense specified therein by a preponderance of the evidence propounded before the board. Section 34-24-105 provides that on appeal of such cases to this court, the decision of the Board revoking a certificate shall not be reversed if it is “supported by the transcript of testimony.” Thus, on appeal, an order of the Board revoking a certificate is reviewed to determine if it is supported by a preponderance of the evidence, and if so, it must be affirmed.

There is no requirement that expert testimony be produced at a hearing before the Board of Medical Examiners. The Legislature, in creating the Board of Medical Examiners has vested the authority to judge the professional conduct of physicians in a body wholly composed of medical experts-the body best qualified by training and experience to exercise this authority. Accordingly, there is no prohibition against the members of the Board relying upon their own expertise in reaching a conclusion. Jaffe v. State Department of Mental Health, 135 Conn. 339, 64 A.2d 330 (1949). The existence or non-existence of expert testimony only goes to the evidentiary question of whether the Board’s order is supported by a preponderance of the evidence.

The evidence unquestionably establishes that Dr. Ferguson frequently prescribed high quantities of Class II controlled substances. It is common knowledge that many of these drugs lead to addiction or dependency or are otherwise harmful to one’s health. Prescriptions for Class II controlled substances were introduced for some forty-five patients of Dr. Ferguson. Many patients were prescribed Class II drugs on a regular basis and in combination with other drugs, including other Class II drugs, and in very large quantities. For instance, one patient was prescribed 620 tablets of vali-um, 245 of quaalude, 70 of norgesic forte, 1 ounce tincture of opium as well as other Class II drugs during the eight-month period from August 1978 to April 1979. Another patient was prescribed 665 quaalude and valium tablets over a forty-one day period. Three other patients were each prescribed an average of 147 percodan tablets a month for six months. One patient was prescribed, over a six and a half month period, 2 ounces tincture of opium, 30 tablets of valium, 195 of quaalude, 240 of percodan, and 216 of mephergan forte.

Of course, it may be necessary to prescribe high quantities of controlled substances despite the risks in some cases, such as terminal cases where the pain is intense; however, the record is silent as to any such situation in this case. Moreover, Dr. Ferguson himself admitted, “I recognize that I overprescribed for certain people,” although he did state that he has since corrected such prescribing practices.

We agree with Dr. Ferguson that the preponderance of the evidence does not support the Board’s specific findings that he improperly treated dysuria with Dyazide and, in fact, contradicts the finding that he administered Lanoxin without ascertaining the amount of digitalis taken by the patient. Furthermore, we do not find sufficient evidence to affirm the extraneous finding that Dr. Ferguson does not possess sufficient medical knowledge to practice medicine.

Nonetheless, these particular erroneous findings do not warrant reversal. The doctrine that error, in order to furnish a ground for reversal, must be prejudicial is generally applied to review of a decision by an administrative board. 2 Am.Jur.2d Administrative Law § 758 (1962). Moreover, by statute, the harmless error rule is made applicable to the review of a decision of the Board of Medical Examiners. See Code 1975, § 34-24-104; ARAP 45. We find that the erroneous findings are non-prejudicial since the Board’s finding that Dr. Ferguson endangered the health and safety of patients by improperly and excessively prescribing controlled substances is supported by a preponderance of the evidence, and serves without more, as á valid ground of revocation of Dr. Ferguson’s medical certificate.

Dr. Ferguson also argues that the hearing was conducted in a fashion which denied him due process of law: that it was conducted in “a fashion that was disorderly, unfair, and without any similarity of established rule or order.” It is true that members of the Board repeatedly interrupted the direct examination of Dr. Ferguson to ask questions. However, “[a]n appellate court should view with less strictness the procedural aspects of proceedings before an administrative body than when dealing with procedural aspects occurring in a lower court.” State v. Alabama Public Service Commission, 293 Ala. 553, 562-63, 307 So.2d 521, 528-29 (1975).

Dr. Ferguson was confronted with the charges against him and was afforded a hearing with representation by counsel. He was allowed to cross-examine the witness against him and to present his own evidence as well as to make closing statements. Furthermore, Dr. Ferguson was supplied with the written findings of the Board based on the evidence. We find from a review of the record that Dr. Ferguson was given notice and the opportunity to be heard, in compliance with the standards announced in Katz v. Alabama State Board of Medical Examiners, 351 So.2d 890 (Ala.1977). Thus, the hearing was not conducted in such a manner as to amount to a denial of due process.

Accordingly, the order of the Board of Medical Examiners revoking Dr. Ferguson’s certificate to practice medicine in Alabama must be affirmed.

AFFIRMED.

MADDOX, ALMON, SHORES and BEATTY, JJ., concur.

EMBRY, J., with whom FAULKNER and JONES, JJ., concur, dissents.

EMBRY, Justice

(dissenting):

As I see it, at issue in this appeal is not only whether the State Board of Medical Examiners’ revocation of Dr. Ferguson’s license to practice medicine was supported by a preponderance of the evidence but also whether the hearings before that Board were conducted so as to comport with the requirements of procedural due process of law. I find no suggestion in the record that any promulgated rules or regulations governing procedures similar to those conducted in this case exist or are in effect. Apparently, each hearing of this nature is conducted on an ad hoc basis and not in accord with established precedent to which reference may be made by one charged, or his or her counsel. As the record shows in this case, without established, orderly, and clear guidelines comporting with known precepts of trial procedures, chaos prevails, as it did in these proceedings.

No expert testimony was introduced which in any way reflected on the propriety or impropriety of Dr. Ferguson’s prescribing practices in general or with regard to any particular patient. The record is also devoid of expert testimony showing an unwarranted endangerment of the health and safety of any of his patients.

Before revoking any certificate of qualification to practice medicine the Board of Medical Examiners is required to find a person guilty by a preponderance of the evidence propounded before the Board of any of the acts, offenses, or conditions which § 34-24-90, Code 1975, lists as grounds for such revocation.

The evidence before the Board related only to the amount and frequency of controlled substances prescribed for certain patients and Dr. Ferguson’s testimony as to the basis of his decision to write certain prescriptions. From this evidence the Board concluded: (1) That Dr. Ferguson improperly and excessively prescribed controlled substances to patients; (2) That he used improper evaluation and diagnostic procedures; and (3) That he lacked sufficient medical knowledge to practice medicine. Clearly, the evidence before the Board affords no basis for finding Dr. Ferguson’s practices were improper or that his medical knowledge was insufficient relative to proper medical practices or the requisite knowledge of medicine. Therefore, the record does not contain sufficient evidence to support the Board’s order. The right to engage in the practice of medicine is a property right which may be denied by the State only if the requirements of due process are complied with., Greenfield v. Hamrick, 341 So.2d 136 (Ala.1976); Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So.2d 619 (1963).

In Katz v. Alabama State Board of Medical Examiners, 351 So.2d 890 (Ala.1977), the requirements of procedural due process in cases such as this one were stated:

“ ‘ * * * an orderly proceeding appropriate to the case or adapted to its nature, just to the parties affected, and adapted to the ends to be attained; one in which a person has an opportunity to be heard, and to defend, enforce, and protect his rights before a competent and impartial tribunal legally constituted to determine the right involved; representation by counsel; procedure at the hearing consistent with the essentials of a fair trial according to established rules which do not violate fundamental rights, and in conformity to statutes and rules, conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed; revelation of the evidence on which a disputed order is based and opportunity to explore that evidence, and a conclusion based on the evidence and reason. * * *

I would hold that these are minimum requirements of procedural due process which were not met in this case and which should be adhered to in every case. Absent an Administrative Procedures Act, I would have this'court set the rules by which the Board would conduct proceedings of this nature.

That nature of due process is not afforded where the Board relies on its own expertise rather than presenting expert testimony by witnesses subject to cross-examination. See Garney v. Anderson, 56 Ill.App.3d 677, 372 N.E.2d 151 (1978); Cleary, McCormick’s Handbook of the Law of Evidence, § 353 (2d Ed. 1972).

In this case, because no expert evidence was introduced, not only was Dr. Ferguson deprived of an opportunity to cross-examine, explore, or refute such evidence, but the record furnishes no factual standard for the Board’s conclusions and therefore no standard by which this court may determine whether his activities unwarrantedly endangered the health and safety of his patients. McKay v. State Board of Medical Examiners, 103 Colo. 305, 86 P.2d 232 (1938).

I would reverse the order of the Alabama State Board of Medical Examiners revoking Dr. Ferguson’s license and remand this matter to that Board for proceedings to accord with my expressed views.

FAULKNER and JONES, JJ., concur.


text:
    Elmer QUILLEN v. Lois QUILLEN.
    79-203.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellant.
    Steve A. Baccus of Almon, McAlister, Ashe & Baccus, Sheffield, for appellee.
   PER CURIAM.

The plaintiff, Elmer Quillen, appeals from a judgment granting a directed verdict in favor of the defendant, Lois Quillen. We affirm.

The facts of this case are based upon an incident which took place in September of 1977 when the plaintiff and his brothers, Lois Quillan and Mason Quillen, were installing a television antenna on the roof of the defendant’s home. On September 2, 1977, the defendant visited the plaintiff at his home and asked him if he would assist him the following day in erecting an antenna. The plaintiff acceded to his brother’s request and agreed to ask Mason Quillen to bring a ladder and help with the installation.

The plaintiff arrived at the defendant’s home early the next morning and immediately began cutting and assembling the various parts of the antenna pole. Sometime later, Mason Quillen arrived with an aluminum extension ladder. That ladder was placed against the overhang of the house and rested upon a metal gutter.

When the plaintiff completed the assembly of the antenna pole, the pole was erected and positioned against the side of the house where it could be raised to the roof for fastening. At that time, the plaintiff climbed the ladder to the roof and attached wires to a booster on the antenna, a skill he had acquired while in the business of television installation and repair. After completing that work, the plaintiff proceeded to come down from the roof, turning back and stepping on the ladder with his left foot. When he placed all of his weight on the ladder, the ladder slipped out from under him, causing him to fall some twelve or thirteen feet to the ground. As a result of the fall, plaintiff suffered a severe fracture of the left arm, a dislocated left elbow, six fractured ribs, a punctured lung and a fractured collar bone. He incurred medical expenses in excess of $16,000.00.

On May 28, 1978, the plaintiff filed a complaint seeking $65,000 in damages for. injuries proximately caused by the defendant’s negligence in allowing a ladder to be placed on his property in such a way as to injure the plaintiff. The case proceeded to trial before a jury; however, at the close of the plaintiff’s evidence, the trial court granted the defendant’s motion for a directed verdict.

On appeal, the plaintiff argues that the trial court committed reversible error in granting a directed verdict, because a jury question was presented as to whether the defendant exercised the degree of care required under the circumstances. It is the plaintiff’s contention that the defendant should have taken additional precautions to insure the stability of the ladder.

In responding to these arguments, we recognize that Rule 50(e), ARCP, expressly provides that the scintilla evidence rule is the standard by which a trial judge is to determine the propriety of granting a motion for directed verdict. As a result, issues and questions in civil cases must be submitted to the jury if the evidence, or any reasonable inference therefrom, produces the merest gleam, glimmer or spark in support of the theory of the complaint. Turner v. Peoples Bank of Pell City, 378 So.2d 706 (Ala.1979); Western Ry. of Alabama v. Still, 352 So.2d 1092 (Ala.1977). In cases involving questions of actionable negligence, this standard has often been translated to read as follows:

[W]here from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions as to negligence or contributory negligence, such questions are for the jury, and it is only when the facts are such that all reasonable men must draw the same conclusion that negligence or contributory negligence is ever a question of law for the Court. White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479, Tennessee Mill & Feed Co. v. Giles, 211 Ala. 44, 99 So. 84; Callaway v. Moseley, 131 F.2d 414 (Ala. C.C.A.); Reaves v. Maybank, 193 Ala. 614, 69 So. 137. In other words, where not only the facts constituting the conduct of the parties, but also the standard of care which they should have exercised, are to be determined the case is entirely one of fact to be decided by the jury. When the proof discloses such a state of facts, whether controverted or not, that, in essaying to fix responsibility for the injury or damage, different minds may arrive reasonably at different conclusions or may disagree reasonably as to the inferences to be drawn from the facts, the right of a party in a negligence action to have a jury pass upon the question of liability becomes absolute. Drew v. Western Steel Car & Mfg. Co., 172 Ala. 616, 56 So. 995, 40 L.R.A..N.S., 890.

Patterson v. Seibenhener, 273 Ala. 204, 206-207, 137 So.2d 758, 760 (1962). When a trial court in a negligence case is confronted with a motion for directed verdict it must apply this standard, and, in doing so, must view the evidence in a light most favorable to the party opposing the motion. If any reasonable inference drawn from the evidence proves to be adverse to the moving party, a motion for directed verdict is due to be denied. Turner v. Peoples Bank of Pell City, 378 So.2d 706 (Ala.1979). Alford v. City of Gadsden, 349 So.2d 1132 (Ala. 1977). These principles are applicable to the present case and govern our decision in determining the propriety of the trial court’s decision.

It is well settled that in every action grounded upon negligence there are three essential elements to a right of recovery. First, a duty owed by the defendant to the plaintiff; second, a breach of that duty; and third, an injury proximately caused by the breach. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). There is no question that in the present case the defendant, as a landowner, owed a duty of care to one coming upon his property by express invitation; however, the extent of that duty is necessarily dependent upon the plaintiff’s “status” on the defendant’s property. Was he a licensee, invitee or trespasser?

We hold that, on the day of the accident, the plaintiff was an invitee on his brother’s property. This determination is based, in part, upon the fact that the defendant extended to the plaintiff an express invitation to come upon his property to assist him in a specific work; however, as this Court held in Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969), an invitation to come upon another’s property, whether it be express or implied, does not, in itself, make one who accepts the invitation an invitee in the legal sense. See also 65 C.J.S. Negligence § 63(41) (1966). In Autry, the Court quoted as authority the following language from McCulty v. Hurley, 97 So.2d 185 (Fla.1957):

In order for such relationship [invitor-invi-tee] to arise the person entering onto the premises, i. e. the invitee, must have done so for purposes which would have benefited the owner or occupant of the premises, i. e. the invitor, or have been of mutual benefit to the invitee and the invitor. And as we view it this benefit must be of a material or commercial rather than of a spiritual, religious, or social nature. This same reasoning is followed in our cases which hold persons invited into one’s home as social quests to be licensees rather than invitees even though they are expressly invited to enter the premises of the host. Goldberg v. Straus, supra.

Thus, acquiring the status of an invitee depends upon the nature of the visit which brings a visitor on the premises rather than the acts of the owner which precede the visitor’s coming. Nelson v. Gatlin, 288 Ala. 151, 258 So.2d 730 (1972). The nature of the visit must bestow a material or commercial benefit upon the invitor.

It is clear in the present case that the defendant derived a material benefit in having his brother assist him in erecting the antenna. As was noted previously, the plaintiff had at one time been engaged in the business of television installation and repair and had acquired special skills in performing the work here under consideration. The assistance he rendered was, therefore, quite valuable to the defendant. Consequently the jury could have found that the defendant should have exercised that duty of care mandated by an invitor-invitee relationship.

In the definitive case of Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937), this Court discussed at length the duty owed by a landowner to an invitee. At 234 Ala. 63, 173 So. 391, the Court held:

This court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. Geis v. Tennessee Coal, Iron & R. R. Co., 143 Ala. 299, 39 So. 301.
This rule ... includes (a) the duty to warn an invitee of danger, of which he knows, or ought to know, and of which the invitee is ignorant; and (b) the duty to use reasonable care to have the premises to which he is invited in a reasonably safe condition for such contemplated uses, and within the contemplated invitation.

Therefore, as a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care. As stated by the Court in Lamson & Sessions Bolt Co., supra, at 234 Ala. 63, 173 So. 391:

In 45 C.J. § 244, p. 837, the rule is thus stated: “The duty to keep premise» safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.”

Accord, McRee v. Woodward Iron Co., 279 Ala. 88, 182 So.2d 209 (1966); Claybrooke v. Bently, 260 Ala. 678, 72 So.2d 412 (1954). The entire basis of an invitor’s liability rests upon his superior knowledge of the danger which causes the invitee’s injuries. Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384 (Ala.1979); Tice v. Tice, 361 So.2d 1051 (Ala.1978). Therefore, if that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.

We are of the opinion that an aluminum ladder leaning against a metal gutter constituted an open and obvious danger on the defendant’s property which the plaintiff, in the exercise of reasonable care, should have recognized. There was no defect in the ladder, and its placement and position on the premises were as obvious to the plaintiff as they were to the defendant. The defendant, therefore, cannot be held liable for injuries suffered by the plaintiff when the ladder fell.

The judgment of the circuit court is therefore affirmed.

AFFIRMED.

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

JONES, J., concurs in the result.