author: PER CURIAM. JONES, Justice

text:
    Godfrey STROZIER v. Michael M. MARCHICH, Charles Harkins, J. C. Cooley, Roy Wingo, Guy Crump.
    78-756.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Robert B. Roden of Jones, Arnold & Ro-den, Birmingham, for appellant.
    John H. Morrow and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellees.
   PER CURIAM.

Affirmed on the authority of Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973).

AFFIRMED.

All the Justices concur, except JONES, J., who dissents.

JONES, Justice

(dissenting):

I respectfully dissent.

Plaintiff, alleging wanton injury, brought suit in 1978 against several of his co-employees arising out of a mining accident that occurred in 1975. Plaintiff alleges that his injury was proximately caused by Defendants’ wanton supervision of his work and wanton inspection of the miné. The trial Court dismissed the complaint, holding the action is barred by the one-year statute of limitations (§ 6-2-39(a)(5), Ala.Code 1975).

Plaintiff appeals, contending that the allegations of wanton conduct are sufficient to state a cause of action in trespass subject to the six-year limitation (§ 6-2-34(2), Ala. Code 1975). Defendants’ Appellees’ posi-. tion is that the complaint, alleging wanton supervision and inspection, merely alleges a failure to act, or an omission of a duty, and states a cause of action for trespass on the case — subject to the one-year limitation— rather than one for trespass — subject to the six-year limitation.

I believe the trial Court erred in applying the one-year, rather than the six-year, statute of limitations. Therefore, I would reverse and remand.

In the early English law, remedies for wrongs were dependent upon the issuance of writs to bring the defendant into court. Two writs were available for remedies purely tortious in character: One, for the action of trespass; and the other, for the action of trespass on the case. The action of trespass was directed at serious and forcible breaches of the King’s peace; and it was only in connection with criminal proceedings that damages were assessed incidentally in favor of the injured plaintiff. Prosser, Handbook on the Law of Torts (4th ed. 1971), § 7 at 28.

Thus, trespass was the remedy for all forcible, direct injuries, whether to person or to property. Trespass on the case developed later as a supplement to the parent action of trespass, designed to afford a remedy for obviously wrongful conduct resulting in injuries which were not forcible or not direct. The distinction between the two lay in the immediate application of force to the person or property of the plaintiff, as distinguished from injury through some obvious and secondary cause. Id., at 28-29. The distinction was not one between intentional and negligent conduct. The emphasis was upon the causal sequence rather than upon the character of defendant’s wrong. Trespass would lie for all direct injuries even though they were not intended; and the action of the case might be maintained for those which were intended but indirect. Id., at 29.

The procedural distinction between trespass and ease has long been antiquated. Modern law has almost completely abandoned the artificial classification of injuries as direct and indirect (as distinguished from remote), and looks instead to the intent of the wrongdoer, or to his negligence. Id., at 29. According to Prosser, the first step toward the modern concept of torts was taken when the action on the case was extended to include injuries which were not intended but were merely negligently inflicted, and were inflicted indirectly. Id., at 29.

The transition from the old English common law concept of torts (distinguishing between injury resulting from direct and indirect force) to the modern concept (distinguishing between injury resulting from intentional or wanton and negligent conduct) can be seen in the development of Alabama law from the early 19th century to modern times. In what, perhaps, is the earliest Alabama case treating the distinction between trespass and trespass on the case (Rhodes v. Roberts, 1 Stew. 145 (1827)), the original emphasis on causality, as opposed to intent, remained intact. In that case, the Court held that the master of a steamboat, from which a gun had been discharged injuring the plaintiff, was liable in trespass for punitive damages although the injury proceeded from want of due care merely. The Court stated the law as follows:

“As to the form of action for the injury charged, whenever the injury is direct and immediate, whether it proceed from design or negligence, trespass will lie. But where the injury is merely consequential, the remedy must be an action on the case.” 1 Stew., at 146.

Nevertheless, a shift to an emphasis upon the culpability of the actor’s conduct, as opposed to the causal relation of the conduct to the injury, can be seen as early as Bell’s Adm’r v. Troy, 35 Ala. 184 (1859):

“It results from these plain principles, that a count which charges that Pleas willfully burned the dwelling-house of plaintiff, and that said slave was instigated and persuaded thereto by the defendant, is, in form, a count in trespass, and charges the defendant with the commission of a felony.
“On the other hand, some of the counts, in both the original and amended complaints, charge on the defendant’s intestate no actual or intentional procuration of the arson, but seek to base his liability on his negligently permitting Pleas, his slave, and of known bad character, to run at large, contrary to law. These counts, if they have any legal validity, are in case, and should not have been joined with a count in trespass.” 35 Ala. at 202.

It is interesting to note, further, that the above case was decided only a few years after the first legislative enactment of the six-year statute of limitations for actions in trespass in Code 1852, § 2477. I find no legislative history to aid an inquiry whether the legislature, then or in subsequent enactments of the Statute, intended the original early English common law distinctions to apply to trespass and to trespass on the case. In any event, Alabama case law, while retaining the causal terminology of the English common law, continued to distinguish between the two primarily on the basis of whether the injury-producing conduct was intentional or merely negligent, as is demonstrated by the following cases spanning the period 1877 through 1921:

“For a tort committed with force and intentionally, the immediate consequence of which is injury, trespass is the appropriate remedy. If the injury proceeds from mere negligence, or is not the immediate consequence of the tort, case is the appropriate remedy.” Pruitt v. Ellington, 59 Ala. 454, 457 (1877).
“It is the general rule, well settled by the decisions of this court, that if a tort be intentionally committed with force, the immediate consequence of which is injury, trespass is the appropriate remedy; that trespass lies to recover damages for an injury which is the direct and primary and inevitable result of gross or reckless carelessness; but, if the injury proceeds from mere negligence, and is not the immediate consequence of the tort, and though proximate is secondary and consequential, and is not the necessary result of the negligence, an action on the case, and not trespass is the proper remedy. [Citations omitted.]” Alabama Midland Railway Co. v. Martin & Bro., 100 Ala. 511, 513, 14 So. 401, 402 (1893). “To commit a trespass, warranting an action for that cause as distinguished from the distinctive action of trespass on the case, the damnifying tort must have been ‘intentionally committed with force, the immediate consequence of which is injury,’ or the injury must have been the direct, primary, inevitable result of ‘gross or reckless carelessness.’ [Citations omitted.] Shook’s act in the premises, as described in the count, does not imply or import an intention to injure plaintiff’s intestate. It is not averred to have been characterized by any degree of wantonness, or even recklessness. ... By the introduction of the term ‘negligently’ in the phrase last quoted from the count, the pleader excluded intention and wanton or reckless disregard of consequences, in running the automobile upon or against intestate, as factors characterizing the tortious act — a measure of exclusion that operated to deprive the court (so far as the defendant Shook was concerned) of an effect to implead Shook in trespass as distinguished from case.” Aldrich v. Tyler Grocery Co., 206 Ala. 138, 139-40, 89 So. 289, 289-90 (1921).

Although, by this time, it was firmly established that injury arising from negligence may or may not be the result of direct force, these early cases appear to assume that the direct application of force always accompanies every intentional tort. It was not until Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906), and Disheroon v. Brock, 213 Ala. 637, 105 So. 899 (1925), that the Supreme Court confronted this issue and expressly rejected the notion that the direct application of physical force was a necessary element of trespass when the injury sued upon was in fact the result of intentional tortious conduct. In Engle v. Simmons, a woman, who miscarried as a result of verbal intimidation by the defendant, brought suit in trespass for damages. The Court upheld the action in trespass even though no physical violence had been done to her person:

“Nor is it important that no physical violence was done her person. The bodily pain and suffering which she endured was in direct line of causation from the alleged wrongful act of the defendant.” 148 Ala. at 95, 41 So. at 1023.

Engle v. Simmons was subsequently quoted with approval in the later case of Disheroon v. Brock, supra, in which an elderly woman brought an action in trespass to recover for fright and mental distress brought on by defendant’s illegal search and entry of her home. The Disheroon Court stated:

“In actions of trespass quare clausum fregit, ‘compensation may be recovered for resulting pain, fright, and mental suffering, shame and humiliation, inconvenience, and invasion of privacy. [Citation omitted.] As declared in Engle v. Simmons, [Citations omitted.].
“ ‘The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, which produced physical injury to her, whether by direct physical violence, or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover.’ ” 213 Ala. at 639-40, 105 So. at 901.

Despite Engle v. Simmons and Disheroon v. Brock, however, later cases, when faced with the trespass/trespass on the case issue, continued to mix the old terminology (distinguishing between direct and consequential force) with the new (distinguishing intentional and negligent conduct). Thus, the following from Crotwell v. Cowan, 240 Ala. 119, 198 So. 126 (1940):

“Under the common law, the foundation for civil liability for injuries to persons and property consequent upon the unintentional application of force, whether the act be affirmative or omissive, is negligence, and the appropriate common law action is case, speaking more correctly, trespass on the case. But when force is intentionally applied by direct affirmative act it is trespass and the appropriate action for the recovery of damages therefore is trespass.” 240 Ala. at 121,198 So. at 127.

The reluctance to wholly discard the causal terminology led, not surprisingly, to some ambiguous holdings which gave the appearance of reinstating the early common law distinction between trespass and trespass on the case but which, in reality, were decided on the basis of the intentional/negligent dichotomy. Most notable among these cases is Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616 (1934), which was relied on and cited in Sasser v. Dixon, infra. In Pan American Petroleum Co., the plaintiff brought suit to recover damages for injury to land caused by leaking gasoline from defendant’s storage tanks. The plaintiff stated her cause of action in four counts — three sounding in trespass on the case and the fourth in trespass. On appeal, the Alabama Supreme Court upheld the defendant’s claim that the trial court had erred in refúsing the defendant’s written jury charge that there could be no recovery under the count for trespass. A careful reading of the court’s holding makes it clear that the court found no evidence sustaining intentional conduct by the defendant; however, this is obscured by language which appears to resurrect the former causal terminology:

“One count of the complaint was in trespass. There was no evidence in the case to sustain the count, and the court committed error in refusing defendant’s written charge instructing the jury that there could be no recovery under this count of the complaint. The true distinction between trespass and trespass on case lies in the directness or immediate character of the injury. An injury is to be regarded as immediate, and therefore a trespass, only when it is directly occasioned by, and is not merely a consequence resulting from, the act complained of. Thus,'it has been held that trespass is not the proper form of remedy, and case alone should be resorted to, when the defendant applies a running stream to such uses as to render it impure and fills it with a sediment which is deposited on the land of a lower proprietor . in the absence of anything to show intention in causing the injury. [Citations omitted.]” (Emphasis added.) 228 Ala. at 376, 153 So. at 619.

It was not, however, until Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973), that the old common law causal terminology distinguishing between trespass and trespass on the case was fully restored. In that case, the plaintiff brought an action in trespass against a fellow employee and others for injuries received by the plaintiff as a result of defendants’ conduct in wantonly failing to provide safe working conditions. The Supreme Court, in Sasser, quoted extensively from the Court of Civil Appeals in City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682 (1972), as follows:

“ ‘It seems to be commonly accepted among the bar that a count alleging a willful or wanton act is always a charge in trespass. Such is not literally true. To be a trespass there must be an act of direct force producing injury or damage. A wanton omission of duty to act is not a trespass. There is no direct force applied and the injury is not produced by application of force, but is consequential of an omission of a duty to act.
U < * * *
“ ‘ * * * We state again that it is not the descriptive words “willful or wanton” which determine an act to be in trespass, but whether the act producing injury was one of application of direct force. We comment that this construction is based upon well defined principles of common law and of the legislative designation of the applicable statute of limitations. We may not approve of it, but we are bound to so interpret and apply it until it is changed by proper authority.’ ” 290 Ala. at 20, 273 So.2d at 184, 185.

Both Sasser v. Dixon and City of Fairhope v. Raddcliffe were absolutely correct, of course, in stating that the historically accurate distinction between trespass and trespass on the case lies in whether the act producing injury was occasioned by direct or indirect force; and that the culpability of the actor’s conduct was wholly irrelevant to this determination as it first appeared in the early English common law. Although neither court was wholly comfortable with the result, as is evidenced from the last above-quoted sentence, both felt obliged to adhere to the English common law distinctions in deference to what they believed was the legislative intent in employing twin concepts — trespass and trespass on the case. In view of the development of these concepts in Alabama law, however, I am not at all certain that the legislature, even at time the of its earliest enactment of the statute, in fact intended the earlier distinction to apply. Indeed, the shift in emphasis from the causal relation of the conduct to the injury to the culpability of the conduct, as early as Bell’s Adm’r. v. Troy, decided in 1859, suggests that the legislature may not have intended the original English common law distinctions to apply.

One example will illustrate the fallacy of the direct/indirect application of force (immediate/consequential) test to distinguish between trespass and trespass on the case: Take the homeowner whose property has been damaged by a quarry owner’s blasting operations. From a single blast the house is virtually destroyed as a consequence of concussion and vibration. An examination of the wreckage reveals one golf ball size rock on the floor beneath a broken window pane. $30,000 in damages to the house was occasioned by the indirect force of concussion and vibration.. $3.10 in damages was caused by the direct force of a rock’s being hurled through the air by the blast.

Query: Does the Plaintiff have two separate causes of action — one claiming $30,000 damages for negligence (trespass on the case), governed by the one-year statute of limitations, and another claiming $3.10, plus punitive damages for trespass with six years to file suit? Or, does the one hurled rock transpose the otherwise negligent claim into a single cause of action for trespass in which Plaintiff may claim $30,-003.10, plus punitive damages in any action filed within six years? In this latter event, the problem is compounded by the further inquiry: Are the punitive damages to be measured in relation to the $30,000 damages or to the $3.10 damages and with or without regard for the degree of the Defendant’s culpable conduct?

The validity of the above example is not diminished by the use of a “trespass to real property” hypothesis. I discern no material difference between invasion or injury to person or property in the applicable test for determining the distinction between trespass and trespass on the case. In the case of injury to either person or property, the direct application of force may be accompanied with less culpability than that accompanying an indirect application of force. For example, the physician who injects a manufacturer’s mislabeled vaccine into the arm of his patient may be free of any culpable conduct, while the physician who prescribes the wrong drug may be guilty of the most extreme wanton act. Yet, the immediate/consequential test for distinguishing trespass and trespass on the case renders the faultless physician accountable to a claim in trespass for six years, and the blameworthy physician subject to suit for only one year following his wrongful act.

Whatever vestige of the outmoded direct/indirect distinction between trespass and trespass on the case still exists in Alabama, I would now abandon and adopt instead the more modern tort concept of measuring the cause of action in terms of the degree of culpability of the alleged wrongful conduct. Wanton conduct, as that term is traditionally used and understood in the jurisprudence of our State, signifies the intentional doing of, or failing to do, an act, or discharge a duty, with the likelihood of injury to the person or property of another as a reasonably foreseeable consequence. Such conduct, resulting in injury, is actionable in trespass and governed by the six-year statute of limitations, in my opinion.

The rationale for my view comports with the fundamental concepts of our fault-based system of tort law. One who injures another, or another’s property, as a result of conduct intentionally committed should be held to a higher degree of accountability than one who injures another through a simple lack of due care. Just as the former, because of its higher degree of culpability, carries a potential for punitive damages, so should it also carry a longer period within which to enforce accountability for such intentional wrong. One who knowingly sets into motion, by intentionally doing (or failing to do) an act, a sequence of events resulting in reasonably foreseeable injury to another, whether the resulting injury is immediate or consequential, in my opinion, has committed a trespass within the contemplation of the six-year statute of limitations.

Indeed, I have searched in vain for possible alternative policy considerations for limiting the period of accountability in certain tort cases to one year and in other cases to six years. I submit that the only logical, as well as the only defensible, basis for this difference is the extent of the wrong or the degree of culpability.

I,therefore, would reverse and remand.

      . Admittedly, this abbreviated historical account is an overly-simplified overview and is intended only as a backdrop for an analytical approach to the issue presented.

      . This confusion is dramatized in the earlier case of City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389 (1903), where the averment, “ ‘the defendant . . . negligently caused an ice wagon ... to run against and strike plaintiff with great force,’ ” was construed as an allegation that “the injury, being a resultant of negligence, and not of intentional causation, would be indirect, wanting in the application of force, and consequential within the doctrine which distinguishes cases from trespass.” Thus, attempting to accommodate the substantive law of torts to the traditional test for determination of the appropriate remedy, City Delivery created the nonsensical fiction of contrasting “unintentional” with “indirect.” The two terms are opposites to the same extent as “apples” are to “green.” In other words, apples may or may not be green. Similarly, negligent conduct may arise as the result of indirect force or direct force. City Delivery was consciously opting for the tort test of culpability, but it was unwilling to unshackle itself from the “direct/indirect” terminology.

      . For a recent case on the nuisance/indirect trespass dichotomy, see Borland v. Sanders Lead Co., 369 So.2d 523 (Ala. 1979).

      . This hypothetical example is used for illustrative purposes only. Physicians, in fact, are governed, with respect to their liability for professional malpractice, by a separate statute of limitations. See § 6-5-482, Ala.Code 1975.

      .See Sington v. Birmingham Ry., Light & Power Co., 200 Ala. 282, 76 So. 48 (1917).


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Jim CLARK et al. v. Jimmy C. WILSON et al.
    78-866.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    W. Ryan deGraffenried, Jr. and J. Foy Guin, III, of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellants.
    Michael E. Gurley, Centreville, for appel-lees.
   EMBRY, Justice.

Jim Clark and his wife, Vinnie Clark, appeal from an adverse final judgment which, among other things: (1) declared void, and rescinded, a deed they and Ellen and James Wooley had executed; (2) required Jim and Vinnie Clark to pay into court the purchase price received for the property transferred by the deed; (3) ordered the sale of the real property which was the subject of that deed; and (4) declared that Charlie Clark, the deceased owner of the property, had ten children, who, or their heirs if deceased, were entitled to receive the proceeds from the sale of the property. We reverse and remand with instructions.

Issue

The dispositive issue in this case is whether the trial court committed reversible error by ruling that the question of the legitimacy of Jack and Richard Clark, alleged to be the children of Charlie Clark, deceased, was irrelevant to the adjudication of this case.

Facts

Plaintiffs, Jimmy C. Wilson, Ethel Dean Clark Goree, Sarah McQueen, Jessie Mae Billingsley, and Deloris Dixon, filed suit to rescind a warranty deed executed by Jim and Vinnie Clark and the Wooleys to James and Margaret Suttle. The grantors had represented to the Suttles they were the sole owners of the parcel of real property in question, located in Bibb County, and purported to convey full title to that property to the Suttles for a consideration of $12,000. The evidence indicates that defendants did not intentionally misrepresent they were the sole owners of the property, but mistakenly believed they were.

The evidence shows the property in question was possessed by Charlie Clark from 1922 until his death, intestate, in 1958 and all taxes on it had been paid. There is no evidence that any person, or persons, had any right or title to the land, or any lien or encumbrance on it, other than Charlie Clark and his heirs.

At the close of the plaintiffs’ case, counsel for Jim and Vinnie Clark moved to exclude evidence offered by plaintiffs that two of the alleged ten children of Charlie Clark, Jack Clark and Richard Clark, were legitimate and legal sons and heirs of Charlie Clark. The trial court responded to that motion by stating:

“Number One, Mr. de Graffenreid, it’s no longer the law of this state that a bastard can’t inherit from his father. The Supreme Court has stricken that law down. I think that certainly there’s evidence before this Court that Jack and Richard Clark are children of Charlie Clark. Their legitimacy, not withstanding — so long as there is shown to this Court that Charlie Clark is deceased and his wife is deceased and he died intestate, and left these children, their legitimacy is no longer, as I can see it, a matter for adjudication by a court.”

The trial court thereupon overruled the motion.

Jim Clark then testified to the effect that Jack and Richard Clark were not the legitimate children of Charlie Clark; if, in fact, they were his children at all.

The trial court entered a final judgment granting the relief requested by the plaintiffs. This judgment ordered, among other things, that: (1) the property in question be sold to the Suttles; (2) Jim and Vinnie Clark pay into court $10,560, said sum representing the amount of money Jim and Vinnie Clark had received from the Suttles minus expenses they had incurred in improving the property as well as taxes they had paid; (3) the $10,560 constituted the purchase price to be paid by the Suttles for the property; and (4) $8,760.74, the $10,560 minus attorneys’ fees, be divided per stirpes among the ten children, or their heirs if deceased, of Charlie Clark.

This appeal ensued.

The Decision

The trial court erred in its interpretation of the law concerning intestate succession as applied to illegitimate children inheriting from their father. The law regarding this matter has been stated by this court in Everage v. Gibson, 372 So.2d 829 (Ala.1979) and followed in Cowart v. Wheeler, 378 So.2d 732 (Ala.1979) and Shelly v. Woodyard [Ms. February 22, 1980] (Ala. 1979). In Everage, this court held that a child born out of wedlock may inherit from his intestate father, short of having been adopted by that father, only when the child has been legitimated by one of the following procedures: (1) a marriage by the parents and a clear and unambiguous recognition of the child by the father as his own; (2) the father filing a declaration of legitimacy in the probate court, or (3) a judicial determination of paternity made within two years of the birth of the child, during the lifetime of the father.

In this case reversible error occurred when it was ruled that the legitimacy of Jack and Richard Clark was not a relevant issue to be determined by the trial court in this case. Everage, Cowart, and Shelly, clearly hold that only children legitimate at birth or children legitimated after birth may inherit from their deceased fathers by way of intestate succession. We, therefore, reverse and remand the case to the trial court for further proceedings to determine whether Jack and Richard Clark were: (1) legitimate at birth; (2) legitimated according to one of the three procedures set forth in Everage; or (3) were illegitimate and never legitimated according to one of the procedures delineated in Everage. After making this determination the trial court should enter its judgment according to the principles set out in Everage.

We also point out that the trial court's decree only required Jim and Vinnie Clark to pay into court the purchase money received from the Suttles in consideration for conveyance of the property. The effect of rescission is to extinguish the contract. Southern States Life Insurance Co. v. Allan, 38 Ala.App. 467, 87 So.2d 439 (1956). When that occurs the proper remedy is to restore all parties to the status quo ante, and each party should be placed in the position that party would have occupied had the conveyance not been made. See generally, 92 C.J.S. Vendor & Purchaser §§ 561-566 (1955). The evidence was undisputed that part of the purchase price was received, and used, by Ellen Wooley; therefore, the trial court erred by failing to order that the Wooleys pay into the court the portion of the purchase price which they had received. The trial court’s final decree on remand should contain such a requirement.

For the reasons assigned the judgment is reversed and the case is hereby remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BLOODWORTH, Justice.

text:
    Lois SHAW v. CITY OF LIPSCOMB.
    78-247.
    Supreme Court of Alabama.
    Feb. 29, 1980.

      E. L. Brobston of Brobston & Brobston, Bessemer, for appellant.
    James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellee.
   BLOODWORTH, Justice.

After a mistrial was declared in this slip and fall case, the court granted defendant’s motion for summary judgment. Plaintiff appeals.

The issue, as stated by the defendant is, “did the plaintiff, an invitee, present a scintilla of evidence tending to show that the defendant breached any duty owed to the plaintiff when plaintiff fell at 12 o’clock noon, July 3, 1976, in defendant’s municipal park in a grassy area under sweet gum trees and plaintiff claims she lost her footing [while descending a slight incline] when she stepped on something that rolled, maybe a sweet gum ball or a twig?” We hold that the answer is in the negative, that summary judgment was appropriate and affirm.

The facts are that on July 3, 1976, the plaintiff went to the city park in Lipscomb about 10:00 a. m. and purchased tickets for barbecue which was being sold by the city in connection with its Fourth of July and Bicentennial celebration. She returned around noon to pick up the barbecue and ascended a slight incline to an elevated area where the barbecue was being sold. She obtained five boxes of barbecue, and as she turned around and walked down the slight incline to return to her car, “something, under my right foot, I don’t know what it was, something just rolled and I hit the ground.” As a result of the fall, Mrs. Shaw suffered a compound fracture of her leg. At the time of the fall, Mrs. Shaw admitted she did not look at the ground to see where she was placing her feet and that she went up and down the incline in approximately the same place. She was wearing tennis shoes and bifocal glasses. The incline is not any higher than three feet. Later, on cross-examination, she stated, in answer to the question as to what she might have stepped on that caused her to fall, “No sir, I don’t know whether a twig or sweet gum or what all, I know it rolled.” Mrs. Shaw is 59 years of age, 5 feet 3 inches tall and weighed approximately 207 pounds at the time of the accident. Shortly after the accident, a witness saw some small limbs and sweet gum balls scattered over the area where Mrs. Shaw fell. The limbs were about half an inch in diameter and were broken up in small pieces. He testified the sweet gum balls were black and old looking. A Council person for the City of Lipscomb testified that the grassy area in the vicinity of Mrs. Shaw’s fall had been cleaned, the grass had been cut and it had been raked up and the trees whitewashed before the barbecue. There were pine, oak, wild cherry and sweet gum trees in. the area where Mrs. Shaw fell.

After a trial before a jury which lasted several days, the jury reported to the court that it was unable to agree and the court declared a mistrial. Thereafter, defendant’s motion for summary judgment contending that the plaintiff had failed to present a scintilla of evidence tending tó show that defendant had breached any duty owed to plaintiff was granted.

On this appeal the plaintiff’s contention is that the city did not exercise ordinary care to render and keep the premises in a reasonably safe condition for such business invitees as Mrs. Shaw. She contends she parked where she was expected to park, chose the most direct route from the parking place to pick up the items, the same route other customers used, that it was necessary to traverse a slight incline in order to pick up the barbecue previously purchased, that the incline was dangerous for persons carrying items and that the city should have foreseen that those expected to traverse the incline might fall on round objects such a sweet gum balls and small fragments of sticks. Therefore, plaintiff contends the city violated its duty to keep the premises in a reasonably safe condition and that at least there was a scintilla of evidence to go to the jury on that question. Plaintiff relies principally on Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968); and Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). Moreover, Mrs. Shaw contends that in cleaning up the area a few days before, the city voluntarily assumed the task of keeping the area in a reasonably safe condition under the rule of Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844, 846 (1971), and when Mrs. Shaw fell as a result of stepping on the sweet gum balls and twigs or something else, this made a case for the jury.

In sum, the defendant says that, as a matter of law, it is not negligent because there were sweet gum balls and twigs in a park, in a grassy area, under sweet gum trees. Defendant chiefly relies on the following cases, Tice v. Tice, 361 So.2d 1051 (Ala.1978); Vance v. Wayside Inn, Inc., 335 Mass. 617,141 N.E.2d 365 (1957); Byrnes v. National Casualty Co., 45 So.2d 408 (La.App.1950).

At the outset, we will restate some of our well-known rules regarding slip and fall cases. There is no question that the plaintiff, on the occasion in question, was a business invitee of the defendant and therefore the duty owed to her by defendant was the exercise of ordinary and reasonable care to keep the premises in a reasonably safe condition. Tice v. Tice, supra. Of course, the owner of the premises in such cases is not an insurer of the safety of his invitees and res ipsa loquitur is not applicable. Neither is there any presumption of negligence arising out of the mere fact of injury to an invitee.

As the defendant points out, in brief, “the law doesn’t say that for every injury there is a remedy. It says for every wrong there is a remedy." The owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee’s part. Tice v. Tice, supra.

In order for the plaintiff to recover she must prove that her fall resulted from a defect or instrumentality on the park premises which was the result of the defendant-city’s negligence of which the defendant-city had or should have had notice at the time of the accident. Tice v. Tice, supra. At one point in her testimony, the plaintiff asserted that she did not know what it was that caused her fall. At another point, she suggested that it may have been a twig or sweet gum ball.

Plaintiff argues that this evidence establishes a jury question under Folmar v. Montgomery Fair Co., Inc., supra. We think that case is distinguishable from the case at bar because there was evidence in that case from which a jury could find that Montgomery Fair breached its duty by obstructing aisles which were intended to be used by customers for walkways. The plaintiff here simply suggests that sweet gum balls or twigs may have been the cause of her fall. She admits that she was not looking down at the ground to see where she was putting her feet and that she did expect to find sweet gum balls under sweet gum trees. The plaintiff could not expect the city to keep the ground in a park area under sweet gum trees clean of all sweet gum balls all of the time. These are items normally expected to be found under these trees.

Slip and fall cases, arising out of falls in food stores, have generally involved snap-beans, lettuce leaves and the like, materials which are foreign objects on the floor. Twigs and sweet gum balls are not foreign objects on the ground under sweet gum trees. See Vance v. Wayside Inn, Inc., supra, and Byrnes v. National Casualty Co., supra. As the court in Louisiana pointed out in Byrnes v. National Casualty Co. in writing to a case where plaintiff fell in a parking lot surfaced with clam shells:

“. . . [W]e must take into consideration the nature of the establishment, and we must undertake to determine just what type of service the user would have a right to expect. A person walking through a store is justified in assuming that the floor is level and smooth. But where a person walks in a parking lot, surfaced with shells, it must be realized that [this] surface will have indentations and depressions, and the person using it must exercise such care as may be required in the use of such a surface, and we do not see that it can be said to be actionable negligence of the owner of such a surface to allow indentations such as that which is indicated by the evidence here to remain.”

Likewise, in the case at bar, the park appears to have been in a natural and normal condition with shade trees and grass and twigs and sweet gum balls. We cannot say that the city violated any duty in failing to clean up all of the sweet gum balls or twigs which may be found on the ground underneath the trees.

Nor, do we think that Foodtown Stores, Inc. v. Patterson, supra, militates against this result. There, plaintiff fell in a grocery store near the produce department. She was knocked unconscious by the fall, and testified that when she regained consciousness, she saw two snapbeans on the floor, although there was no evidence in the case as to the condition of the beans and she did not see them before her fall. An employee testified he had swept and straightened up the produce section just prior to her fall. This Court held that there was sufficient evidence to submit the case to the jury, and the judgment was affirmed on appeal. We do not consider that case to be pertinent to the issues in the case at bar because the snapbeans were foreign objects on the floor while twigs and sweet gum balls were not foreign objects on the ground in a public park under sweet gum trees. Neither does the rule of Beasley, supra, affect this case.

In sum, the plaintiff has simply not produced that scintilla of evidence which necessitates the case going to the jury so that the jury might conclude that the defendant has breached a duty owed to plaintiff. We find no error in the granting of the summary judgment for defendant.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Lewis CROFT et al. v. William BIDDLE et al.
    78-412.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Ralph Brooks of Brooks & Brooks, Anni-ston, Roger Killian, Fort Payne, for appellants.
    W. M. Beck, Sr. of Beck & Beck, Fort Payne, for appellees.
   MADDOX, Justice.

The issue presented is whether the grantees of deeds of land exercised undue influence over the grantor, their aged father, in the procurement of the subject deeds. Finding that the decree of the trial court, which heard the evidence ore tenus, is not palpably wrong or manifestly unjust, the decision is affirmed.

O. S. Croft owned two parcels of Sand Mountain farmland. He was the father of twelve children. On September 7, 1976, he executed a will that distributed all of his property equally among his children.

On September 4,1976, he executed a deed of a forty acre tract to his son Vero and Vero’s spouse. On September 7, 1976, he executed a deed of the balance of his real property, a seventy-nine acre tract, to his daughter Fannie and her spouse. The deeds were prepared by Mr. Croft’s attorney. On September 7, 1976, Mr. Croft also made a bill of sale of all of his personalty to his son Vero.

After Mr. Croft’s death, six of his children filed suit against Vero and Fannie and their spouses. They alleged inadequate consideration, undue influence, lack of mental capacity and forgery of the deeds.

The trial court heard all evidence orally, except that of Mr. Croft’s doctor. The court found that although Mr. Croft depended on the grantees during the last years of his life for many of his needs, there was no convincing evidence that the defendants took advantage of this dependency to unduly influence him. The trial court further found Mr. Croft mentally capable of transacting business at the time of execution of the instruments. Plaintiffs appeal, claiming the trial court incorrectly decided the question of undue influence.

The law concerning undue influence between parent and child was cogently discussed in Brothers v. Moore, 349 So.2d 1107 (Ala.1977), wherein this Court held:

“This relationship is considered confidential and it is presumed that in all transactions between parent and child, the parent is the dominant party. However, this presumption is not conclusive and where it is made to appear that the child rather than the parent is the dominant party then the law raises a presumption of undue influence and casts upon the child the burden of proving that the transaction was fair, just, and equitable in every respect. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970); Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (I960).”

A fair reading of the trial court’s decree indicates that the court found the grantor’s children to be the dominant parties in their relationship. It was noted that the grantor depended on them for many of his needs. Nevertheless, in arriving at his decision, the trial judge necessarily found that the presumption was overcome by the evidence which showed no undue influence was exercised in the procurement of the subject deeds. The record indicates adequate evidence was produced at trial to support such a finding. Mr. Croft first approached the grantees and asked them if they wished to purchase the land. Adequate consideration supported the transaction. Mr. Croft suggested that the parties go to the office of his long-time attorney and execute the subject deeds. Mr. Croft’s doctor testified he was capable of making a deed.

It is acknowledged that the claimants produced evidence that tended to support the applicable presumption of undue influence; however, the trial court, as trier of fact, had adequate evidence upon which to base this finding that no undue influence was exercised.

It is well established that, in cases such as this, the finding of the trial court will not be overturned unless clearly in error. Brothers v. Moore, 349 So.2d 1107 (Ala.1977); Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975).

The judgment is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Steve RADIOLA, Jr. v. Patricia Ann RADIOLA.
    78-545.
    Supreme Court of Alabama.
    Feb. 29, 1980.

      W. Kenneth Gibson of Taylor, Benton, Irby & Gibson, Pairhope, for appellant.
    Francis A. Poggi, Jr., Mobile, for appel-lee.
   JONES, Justice.

The parties are former husband and wife. Plaintiff/husband Drought suit for declaratory relief, seeking a declaration that the property settlement signed pursuant to divorce divested his ex-wife of her interest in certain property jointly acquired during their marriage. Husband makes no claim of misrepresentation or mutual mistake. His brief characterizes his action: “The instant proceedings involved the construction to be given to a divorce settlement agreement entered into between the [parties] . .” From the circuit court’s decree, holding that wife retained her interest, husband brings this appeal.

THE FACTS

After having once been married and divorced, the Radiolas entered into a second marriage in. 1971. In 1975, through two separate transactions, they purchased the property — the subject of this action— known as the Twin Beach Road property. In 1977, the Radiolas again separated and began divorce proceedings. Appellee/wife submitted two rough drafts of a property settlement agreement to her husband culminating in a final document signed by the parties and incorporated in the divorce decree.

The first draft, rejected by Appellant/husband, proposed that the Twin Beach Road property remain in the names of both parties and that upon its sale the proceeds would be divided equally between them. The second draft deleted the provision concerning the Twin Beach Road property and substituted instead a paragraph authorizing the wife’s use of her husband’s Colony property until such time as she purchased a new home. The second draft, which was accepted by the husband, and made a part of the final decree, also contained a provision declaring it to be a “full and complete property settlement between the parties.”

APPELLANT’S CONTENTIONS

The husband argues that the effect of the final settlement agreement together with the circumstances under which it arose is such as to have divested Appellee of her interest in the Twin Beach Road property. He points out that his specific rejection of his wife’s first proposal respecting the Twin Beach Road property resulted in the deletion of this provision and the substitution of the one pertaining to his wife’s use of the Colony property as contained in the final settlement agreement. Thus, he contends, his wife gave up her interest in the Twin Beach Road property in return for her use of the Colony property which constituted an “integrated bargain” such as is described in DuValle v. DuValle, 348 So.2d 1067 (Ala.Civ.App.1977).

APPELLEE’S CONTENTIONS

The divorce agreement nowhere addresses itself to a determination or disposition of the parties’ interest in the Twin Beach Road property. DuValle, cited by Appellant, is inapposite to the present case and pertains to the right of a wife to modify alimony payments established in a divorce agreement. The modes of conveyance of an interest in real property, says the wife, are well established in Alabama law. In the absence of a deed of conveyance or an assignment, she could not have divested herself of her interest in the property.

THE DECISION

We acknowledge that the husband’s argument is not without some force of persuasion. If, as the husband contends, he rejected the wife’s first proposal because it was unfairly “loaded” in the wife’s favor respecting the Twin Beach Road property, it is reasonable to assume that he would not have signed the second agreement giving her temporary use of his Colony property (not contained in the first proposal) and leaving the subject property unsettled — the same as initially proposed. Admittedly, there is an appreciable degree of logic in the husband’s position: If he would not execute the first settlement agreement to allow title in the subject property to remain in their joint ownership, why would he later agree to this same result and, in addition, grant her an interest in other property not mentioned in the first proposal? To accept the wife’s interpretation, says the husband, is to conclude that he knowingly and willingly executed an agreement less favorable to himself than a former proposal that he had earlier rejected.

Despite the persuasiveness of the husband’s argument, however, it is not without its difficulties. Perhaps no rule of law is more settled than the proposition that real property cannot be conveyed by implication. The rule is stated in Reynolds v. Trawick, 201 Ala. 449, 78 So. 827 (1918):

“Only through estoppel, adverse possession, or conveyance (will, deed, or mortgage), aside from the processes of government, can an unqualified title in fee, once vested, be divested.” 201 Ala., at 451, 78 So. at 829.

Moreover, the apparent logic of the husband’s contention bears an additional weakness. Notwithstanding the “full and complete property settlement” provision, the agreement’s total silence regarding the Beach Road property does not lend itself more favorably to one party than to the other. In other words, each of the parties entered the negotiations, which culminated in the final agreement, owning a one-half undivided interest in the property. When the executed agreement made no mention thereof, the legal title therein remained unchanged.

Indeed, the “complete property settlement” provision does not have the operative effect of aiding the husband’s position. The absence of any reference to a particular item or parcel of property does not render the settlement agreement incomplete; it merely leaves title to such property unaffected by the agreement.

We find no error in the trial Court’s order holding that Patricia Ann Radiola retained her one-half undivided interest in the property.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Margaret C. MOQUIN v. Jimmie W. COCHRAN and Caldwell Construction Company, Inc.
    78-558.
    Supreme Court of Alabama.
    Feb. 29, 1980.

      John M. Heacock, Jr. of Lanier, Shaver & Herring, Huntsville, for appellant.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee Jimmie W. Cochran.
    Paul L. Millirons of Stephens, Millirons, Harrison & Walker, Huntsville, for appellee Caldwell Const. Co., Inc.
   SHORES, Justice.

This breach of contract case involves a pre-fab A-frame shell, the component parts of which the plaintiff, Jimmie Cochran, bought from Margaret Moquin, who also contracted to construct the shell. Ms. Mo-quin, who has a B.S. degree in nursing, spent a brief period as a dealer for Southern Structures, Inc., the manufacturer of the A-frame, during which time she made this, her only sale, to Cochran.

Under the terms of the contract, the plaintiff, Cochran, was to lay the foundation and complete the interior of the shell, once erected. Once the foundation was completed, Ms. Moquin’s son, Steve, assisted in placing the anchor bolts. This was incorrectly done, necessitating subsequent adjustment, and allegedly causing numerous problems in construction. When Steve was unable to raise the beams of the A-frame, Ms.. Moquin contracted with Caldwell Construction Company (Caldwell) to complete the structure in accordance with plans and specifications to be provided by Southern Structures via Ms. Moquin. There was evidence that she transmitted the wrong set of plans, which fact was not discovered until after completion of the structure.

After many problems and complaints, the three parties met in August and jointly negotiated a second contract which recited prior agreements, set forth the respective duties of the three parties, including certain tasks to be completed by Cochran before Caldwell, which was not a party to the first agreement, would proceed, and provided that disputes which arose as to work accomplished would be resolved by two designated architects.

Disputes did arise, and the architects were called in, made recommendations for changes which were complied with by Caldwell, and finally pronounced the structure sound. Not satisfied, plaintiff contacted Southern Structures, which replaced certain components at no cost to the buyer. Still not satisfied, Cochran filed this action against Caldwell and Moquin, who filed a cross-claim against Caldwell. After a non-jury trial on the merits, the trial judge entered a final judgment of $11,000.00 against Moquin. She appealed and contends, inter alia:

Proper performance by the defendants under the three-party contract precludes the imposition of damages against her under the prior contract between her and Cochran. She argues that proper performance was demonstrated by the ruling of the trial court that Caldwell was not liable to Cochran;

The damages awarded were excessive, and clearly included damages for the delay in completion based on the time schedule in the first contract, which is irrelevant;

Moquin is entitled to recover the balance of the purchase price from Cochran.

We affirm.

This case was tried ore tenus by the trial court on conflicting evidence. The trial court could have found from the evidence that it was the intention of the parties that the three-party contract did not supersede the first, but was intended merely to modify or augment the first. On appeal, Ms. Moquin argues that the first contract was superseded by the second, thus necessarily arguing that by the second a novation was effected. However, to effect a novation, the parties must agree that the new agreement has that effect. 66 C.J.S. Novation § 11a. The evidence fully supports the court’s conclusion that Ms. Moquin remained liable on the first contract and that she was liable notwithstanding the fact that the court found that Caldwell had fully performed its part of the agreement.

We see no useful purpose to be served in detailing all of the evidence on the issue of damages. Suffice it to say that there is evidence to support the trial court’s finding in that regard. In fact, there was evidence to support an award in a greater amount. Therefore, we are not persuaded by Ms. Moquin’s argument that the judgment is due to be reversed because the court did not order Cochran to pay the balance of $3,000 agreed to be paid upon completion “as agreed to by . . . Mo-quin.” It could have given her credit for this amount in fixing Cochran’s damages or could have concluded that the structure was never completed “as agreed.” In either case, the judgment is due to be affirmed.

AFFIRMED.

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


text:
    Kennoth D. STEWART and Mary E. Stewart v. Don HAMILTON and Minnie M. Hamilton.
    78-560.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    David R. Coley, III, Mobile, for appellants.
    Norton Brooker, Jr. and Arthur J. Kear-ley, for Lyons, Pipes & Cook, Mobile, for appellees.
   SHORES, Justice.

This is an appeal by the defendants from a summary judgment granted in favor of the plaintiffs who filed an action in ejectment seeking to recover land in the possession of the defendants. The defendants, acknowledging possession, claimed title to the property based upon adverse possession for twenty years. The material facts are undisputed.

The defendants (Stewart) own two lots in the Pinehurst section of Mobile. Since at least 1953, a barbed wire fence has circumscribed an area larger than but including their property. They claim all lands contained within the fence which includes the parcels in dispute. They have no deed to the property claimed, nor have they assessed or paid ad valorem taxes on it.

Plaintiffs (Hamilton) acquired record title to the disputed land in 1977. They assert that the statutory twenty-year period began to run not from 1953, when the defendants originally took possession of the property, but from 1958, when the plaintiffs’ predecessor in title, Emory L. Dueitt, acquired a judicial decree establishing his rights in the land, following the filing of a Bill to Quiet Title in rem. Defendants assert that Dueitt had actual and constructive knowledge of their claim to the land by virtue of the enclosing fence and conversations had with defendants in 1956, but failed to make them parties to the quiet title proceeding. Service by publication was had on all unknown parties purporting to claim an interest in the realty. The verified bill of complaint contained the statutory allegations of “diligent search and inquiry” for the purpose of ascertaining the identity of any such parties.

On appeal, the Stewarts contend that the 1958 decree is void because they were not made parties to the in rem action and should have been because the plaintiff in that action had actual or constructive notice of their possession of the property. That action was brought under Title 7, Article 2, Chapter 32, Code of 1940, now Section 6-6-560, Code 1975. They concede that the complaint in that case contained the statutory averments that:

A bill under this article must be brought against the land. ... It must describe said land. ... It shall also make party or parties respondent to said bill all persons against whom complainant claims title to said lands . . . and if the names of such persons cannot be ascertained by complainant with certainty they may be designated and joined as unknown parties. Such bill shall also make party or parties respondent thereto all persons who are known to complainant to have had possession of said lands or any part thereof within 10 years next preceding the filing of the bill. .

The decree rendered on the complaint in 1958 quieting title to the land in complainant Dueitt contains the following recital:

[T]he complainant made diligent search and inquiry, to ascertain the names, ages and addresses of all persons, firms or corporations who claim or are reputed to claim any right, title, interest, lien or encumbrance upon the lands or any part thereof, and that all unknown parties or parties whose whereabouts are not known were served with notice by publication once a week for four consecutive weeks.

This Court’s decision in Merchants National Bank of Mobile v. Morris, 252 Ala. 566, 42 So.2d 240 (1949), is dispositive of this case. That case, like this one, involved an action of ejectment brought under the same statute under which the case resulting in the 1958 decree was brought, commonly referred to as the Grove Act, Article 2, Chapter 32, Title 7, Code 1940, §§ 1116-1132. The plaintiffs in that case, as in this one, relied upon a decree rendered in a prior in rem action in favor of their predecessor in title. The Court held the prior decree could not be collaterally impeached, saying:

[T]he recital in the decree as to the giving of such notice in a case in which the jurisdiction of the court over the subject matter was invoked by a petition sufficient to that end is conclusive on collateral attack of the giving of such notice unless contradicted by the primary record in the proceeding.
When a judgment rendered by a domestic court of general jurisdiction acting within the scope of that jurisdiction is assailed collaterally every presumption is made in its favor as regards jurisdiction of the subject matter and person of the parties unless the contrary affirmatively appears on the face of the record. .
. [Wjhen the jurisdiction of the court is invoked by a sufficient petition, and the record shows the giving of statutory notice, or the decree so recites, not disputed by other parts of the record, the decree is conclusive on collateral attack and cannot be so assailed by proving an absence of the matter on which jurisdiction depends. [Citations omitted.]

This case turns on the resolution of a question of law. The trial court, therefore, properly granted summary judgment in favor of the plaintiffs. Its judgment is, therefore, affirmed.

AFFIRMED.

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

      . This contention, standing alone, does not bring this case within the operative effect of Dominey v. Mathison, 292 Ala. 293, 293 So.2d 472 (1974), in which the omitted party in the in rem proceeding held record title, assessed and paid ad valorem taxes. Here, any claim of interest in the subject property by the Stewarts as early as 1956 was totally without factual or legal basis.


text:
    L. Hugh WHITE and Claudia White v. The FOUNDATION CORPORATION, a corporation, and City of Bay Minette, a Municipal Corporation.
    78-658.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    J. Connor Owens, Jr., Bay Minette, for appellants.
    Norborne C. Stone, Jr. of Stone & Partin, Bay Minette, for appellees.
   SHORES, Justice.

This is an appeal by L. Hugh White and Claudia White, plaintiffs, from a decree rendered in favor of the defendants, The Foundation Corporation and the City of Bay Minette. By their complaint, the plaintiffs sought a declaration that a certain strip of land on the east end of Lakeview Drive, adjoining the third unit of Forest Park, a subdivision developed by Foundation on lands owned by it and approved by the City of Bay Minette, was a “reserved strip” as contemplated by the regulations of the Bay Minette Planning Commission. The plaintiffs, who own land immediately east of the strip, asked the court to order the developer-owner to convey that strip of land to the City of Bay Minette. The trial court heard the evidence and held that the strip of land described in the complaint, and restated in the decree, was “not a reserved strip in violation of the regulations of Bay Minette Planning Commission.” The court then concluded that the plaintiffs were not entitled to a decree requiring Foundation to convey the strip of land to the city.

We affirm.

The trial court specifically found as a fact that the strip was not a “reserved strip” and there was evidence offered which supports this finding. Although the plaintiffs offered evidence to the contrary, the trial judge decided this fact question against them. In that circumstance, we must affirm his finding unless convinced that it is plainly and palpably wrong. Cowden v. Hughes, 353 So.2d 505 (Ala.1977). Casey v. Beck, 350 So.2d 429 (Ala.1977). The appellants have not met this burden.

AFFIRMED.

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


author: PER CURIAM.

text:
    Georgia DEAN et al. v. Irene Dean STUCKEY.
    78-677.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Everette A. Price, Jr., Brewton, for appellants.
    William D. Melton, Joseph B. Nix, Jr., Evergreen, for appellee.
    David T. Hyde, Jr., Evergreen, guardian ad litem.
   PER CURIAM.

This case is on appeal for determination of a single issue. We are required to construe the following clause of the will of Albert Dean, who died in 1959:

Upon the death of my brother, Howard Dean, and the termination of the life estate in my real estate bequeathed to him in this paragraph; I give, devise, and bequeath unto my beloved sisters, Mamie Dean and Georgia Dean, or to the surviv- or of them, all of my real estate absolutely and in fee simple. [Emphasis added.]

The life tenant, Howard Dean, died in 1977, and was predeceased by his sister, Mamie Dean. Georgia Dean yet survives as does another married sister. The question is this: Did Mamie Dean’s remainder interest vest at the time of the testator’s death, or was it contingent upon her surviving the life tenant, Howard Dean?

The trial court ruled that the phrase “to the survivor of them” refers to the time of the testator’s death, and that upon his death, the two sisters acquired vested remainders in the property described. The appellants, however, contend that the phrase refers to the time of distribution, i. e., the death of the life tenant, Howard, and that the sisters’ remainder interest did not vest until and unless they survived him.

In any question of will construction, our polestar is, of course, the intent of the testator, and where that can be ascertained from the words of the instrument, it will control. Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326 (1948). Where, as here, the words are susceptible of more than one meaning, we turn to established rules of construction.

Relevant treatises, and commentaries reveal that the jurisdictions are split on the issue of whether words of survivorship refer to the time of death of the testator, or the time of distribution, where an estate intervenes between the death of the testator and the taking in possession of a gift qualified by words of survivorship. 96 C.J.S. Wills § 733(c). Because of the presumption in favor of construing interests as vested, rather than contingent, early English decisions, and a few jurisdictions in this country, followed the rule that, in the absence of an indication of a contrary intention, words of survivorship refer to the death of the testator. 20 A.L.R.2d 830, 833 (1950). The position taken by the later English cases, the majority of American jurisdictions, and the Restatement of Property, however, is that words of survivorship presumptively refer to the time of distribution. 20 A.L.R.2d 830, 834 (1950), 2 L. Simes and A. Smith, The Law of Future Interests, § 577 (2d ed. 1956). The Restatement of Property § 251, is as follows:

In a limitation purporting to create a remainder or an executory interest, a description of the intended takers as persons ‘who survive,’ or who are ‘living,’ or by any other language of the same import, but which fails to designate the time to which such takers must survive, tends to establish the time of the termination of all preceding interests as the time to which survival is required.

This Court in the early case of Smith v. Smith, 157 Ala. 79, 47 So. 220 (1908), discusses the exact issue at some length, and concludes:

The rule is that survivorship between devisees never relates to the death of the testator, unless there is no other time to which it can be referred, and that it naturally relates to the death on which a previous estate terminates and on which the new estate is limited. (157 Ala. at 88, 47 So. at 223, 224.)

That opinion also cites with approval the principles relied upon by the Court in an earlier appeal of Smith v. Smith, 139 Ala. 406, 36 So. 616 (1903), although overruling their application to the facts of the case. The earlier opinion explained the rule stated as follows:

Where [a] gift is to take effect in possession immediately upon the testator’s decease, words of survivorship are regarded as intended to provide against the death of the objects of the gift in the lifetime of the testator, and prima facie refer to his death. Early English cases extended the rule to cases in which the gift was postponed to a prior life estate, or other particular interest carved out. The later English cases abandoned this position and adopted the rule that whether the gift be immediate or postponed, and whether the property be real or personal, words of survivorship prima facie refer to the period of division. If there is no previous interest given, the period of division is the death of the testator, and survivors at his death take the whole, but if a previous life estate be given, then the period of division is the death of the life tenant, and survivors at such death take the whole. (139 Ala. at 413, 36 So. at 618.)

We think this is a correct statement of the law, notwithstanding some language in later cases which can be construed otherwise. Smith has been cited in support of the proposition that words of survivorship will refer to the time of distribution where an intervening estate separates the testator’s death and the taking in possession of the gift. McGlathery v. Meeks, 219 Ala. 89, 121 So. 67 (1929). But it has also been cited as supporting the contention that words of survivorship refer to the time of death of the testator. Earlier cases properly applied this rule to situations in which no intervening estate separated the testator’s death and distribution of the gift. See Spira v. Frenkel, 210 Ala. 27, 97 So. 104 (1923), Alexander v. Alexander, 239 Ala. 76,193 So. 736 (1940), White v. Fowler, 245 Ala. 209,16 So.2d 399 (1944). However, the 1953 case of Springer v. Vickers, 259 Ala. 465, 66 So.2d 740, held that words of survivorship apply to the testator’s death even where a life tenancy separates the testator’s death and the taking in possession of the gift. The Vickers case did not expressly mention or overrule the Smith case, but based its holding on the general rule in favor of vested over contingent interests. Thus we have an apparent conflict between Smith and Vickers which is not materially distinguishable on the facts. However, the rationale of Vickers is not inconsistent with that of the Smith case. Smith itself recognizes the validity of the general presumption against contingent interests, but establishes the more particularized presumption that where a testator postpones the taking effect of a bequest or a devise qualified by words of survivorship until the expiration of an intervening estate, he or she intended that the bequest or devise be contingent on the beneficiary’s surviving the intervening estate. We, therefore, hold that the rule established by Smith, and followed by the majority of American jurisdictions, is still the law in Alabama.

The judgment of the trial court in this case, which is to the contrary, must be reversed.

REVERSED AND REMANDED.

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


text:
    BANK OF the SOUTHEAST v. Allen J. KOSLIN et al.
    78-683.
    Supreme Court of Alabama.
    Feb. 29, 1980.

      F. Timothy McAbee of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellant.
    James M. Tingle and Robert R. Sexton of Barnett, Tingle, Noble & Sexton, Birmingham, for appellees.
   MADDOX, Justice.

The primary issues presented by this appeal are:

(1) The propriety of the trial court’s granting of summary judgment;
(2) The correctness of the trial court’s exclusion of evidence under the dead man’s statute;
(3) The extent of liability of a guarantor to pay overdrafts of a corporation, when the overdrafts were caused by the bank’s honoring checks with only one signature, when a corporate resolution required at least two signatures.

The Bank of the Southeast filed suit against five individual guarantors, each a director and stockholder of Wilkline Industries, Inc., to collect Thirty-eight Thousand Seven Hundred Thirty-three and Ninety-four one-hundredths Dollars ($38,733.94) the Bank claimed was owed by Wilkline for overdrafts drawn on Wilkline’s checking account and honored by the bank.

The guarantors answered the Bank’s claim and denied liability on the ground that the Bank improperly honored checks containing only one signature, in direct violation of a corporate resolution on file with the Bank.

Counsel for the Bank and counsel for the guarantors took the depositions of all named defendants, including Paul C. Burke, who died during the pendency of the action. Barbara Wade Burke, executrix of the estate of Paul C. Burke, deceased, was substituted as a party-defendant. Counsel for the parties also took the deposition of Whit Walter, a former employee of the Bank who had been charged with the responsibility of handling all of the Bank’s dealings with Wilkline and the guarantors.

The guarantors filed a Motion for Summary Judgment and offered in support of their motion the affidavits of James T. Johnson, III and Edward P. Gregg, the deposition of Whit Walter and a resolution adopted by the stockholders and directors of Wilkline on July 1, 1976, which required that all checks drawn on the account of Wilkline be signed by at least two of the following named persons: Dean Wilkerson, Wilkline’s president, Paul C. Burke or James T. Johnson, Jr. In opposition to the motion, the Bank offered the depositions of Whit Walter and Paul C. Burke. At the hearing, counsel for the guarantors argued that a resolution passed by the stockholders and officers of Wilkline, and delivered to the Bank immediately after its passage, dictated that the Bank not honor any Wilkline check with less than two authorized signatures; that following delivery of the resolution, the Bank disregarded the resolution and honored checks with only one signature; that the money the Bank was seeking to recover resulted from the unauthorized honoring by the Bank of Wilkline checks with only one signature; and that since the Bank had acted without authorization, the guarantors could not be held responsible for repayment of the overdraft. Counsel for the Bank argued that following delivery of the resolution to the Bank, Whit Walter had been advised by Paul- C. Burke, the secretary-treasurer, as well as a stockholder and director of Wilkline, to disregard the resolution and accept checks with only one signature. The testimony of Walter and Burke regarding the alleged transaction is in direct conflict.

Following the hearing on the Motion for Summary Judgment, the trial court granted summary judgment in favor of each defendant. The trial judge determined:

“The matter has been duly argued by the attorneys and the Court is of the opinion that all of the evidence is to the effect that the checks involved in this litigation cleared the bank subsequent to the delivery of the resolution to the bank and, therefore, the bank honored the checks with only one signature which was contrary to the resolution which had been passed and delivered to the bank.
The plaintiff contends that Whit Walters (sic) made some statements pertaining to a conversation allegedly had with Paul C. Burke contending that Mr. Burke waived the effectiveness of the resolution. The Court doubts that this testimony is sufficient to make a jury issue if it is admissible, but Mr. Burke is now deceased and his estate is interested in the outcome of the case and, therefore, this testimony would not be admitted and it is not proper for the Court to consider it on the motion for summary judgment since it violates the dead man’s statute. Insofar as the Court can determine this is the only evidence that could conceivably establish a jury issue and since the Court holds, as a matter of law, that it is not admissible, the Court finds that there is no genuine dispute as to any material issue in the case and that the defendants are entitled to a judgment as a matter of law.”

Did the trial judge err in holding that the testimony of Whit Walter was inadmissible to defend against the guarantors’ Motion for Summary Judgment because of the dead man’s statute? We think the learned trial judge did err because under the facts of this case, Whit Walter had no pecuniary interest in the result of the action or proceeding, and assuming arguendo that Whit Walter did have a pecuniary interest in the outcome of the suit, the guarantors waived the incompetency of Whit Walter to testify by offering or introducing in evidence Walter’s entire deposition in support of their Motion for Summary Judgment.

In order for a witness to be incompetent to testify concerning transactions with or statements made by a deceased person, the dead man’s statute requires that such witness have “. . .a pecuniary interest in the result of the action or proceeding . . . .” Code 1975, § 12-21-163. An officer or employee of a party who resigns his employment before trial or a deposition hearing does not have a pecuniary interest in the outcome of the suit that will disqualify him from testifying about a transaction with or statement made by a deceased person. Sheppard v. T. R. Miller Mill Company, Inc., 332 So.2d 374 (Ala.1976).

In order for the dead man’s statute to disqualify a witness from testifying about his dealings with a deceased individual, three criteria must be met: (1) the estate of the deceased must be interested in the outcome of the suit; (2) the witness must have a pecuniary interest in the result of the proceedings; and (3) the testimony of the witness must relate to a personal transaction with the decedent. Taylor v. First National Bank of Tuskaloosa, 279 Ala. 624, 189 So.2d 141 (1966). Under the facts of the instant case, there is no question but that the estate of Paul C. Burke has an interest in the outcome of the present suit since his estate has been substituted as the party-defendant in lieu of the deceased and any judgment rendered in favor of the Bank will be charged against the estate to the extent of its liability under the guaranty agreement. Likewise, it is clear that testimony of Whit Walter related to a personal transaction Whit Walter had with the deceased, Paul C. Burke. With respect to the other criterion, however, Whit Walter was not an officer or employee of the Bank at the time he gave his testimony; therefore, he did not have a pecuniary interest in the outcome of the action. Consequently, the dead man’s statute does not render him incompetent to testify regarding his dealings with Burke. The trial court’s holding that the dead man’s statute made Whit Walter’s deposition testimony inadmissible was erroneous.

The trial court’s ruling that Whit Walter’s deposition testimony was inadmissible under the dead man’s statute was also erroneous because the guarantors offered Whit Walter’s entire deposition in support of their Motion for Summary Judgment. Alabama’s dead man’s statute specifically provides that the incompetency of a witness to testify may be waived where the witness is called to testify concerning his dealings with the deceased by the party whose interest is opposed to that of the witness. Code 1975, § 12-21-163. A waiver occurs when a party actually calls an incompetent witness to testify at trial, and it has been held that a waiver occurs when the party whose interest is opposed to that of the witness introduces in evidence answers to interrogatories propounded to the incompetent witness. See McCary v. McMorris, 265 Ala. 493, 92 So.2d 319 (1957); Brett v. Dean, 239 Ala. 675, 196 So. 881 (1940).

This Court has never dealt with the question whether taking the deposition of, or serving interrogatories upon, one who would otherwise be incompetent as a witness in a particular civil action will effect a waiver of that incompetency. We now hold that the voluntary act of taking the deposition of, or serving interrogatories upon, one who would otherwise be incompetent as a witness in a particular civil action does not waive the incompetency of the witness unless the deposition or answers to the interrogatories are offered or introduced into evidence in the cause. See Annotation: Deposition — Waiver of Incompetency, 23 A.L.R.3d 389.

In view of our holding, the question now is whether, upon a consideration of all the evidence, there was a genuine issue of a material fact remaining. Admittedly, the record clearly shows that there was a conflict in the evidence regarding the withdrawal of the corporate resolution which required two signatures on the checks. Whit Walter’s testimony was that Paul Burke withdrew the resolution requiring two signatures and authorized the Bank to accept checks with only one signature. Paul Burke’s testimony was to the effect that no such transaction took place. This dispute in the testimony, nevertheless, does not present a genuine issue of a material fact. It is a general rule that a bank may not honor checks on a corporation’s checking account which do not fully comply with a corporate resolution requiring checks to be signed by a certain number of individuals. Movie Films, Inc. v. First Security Bank of Utah, N.A., 22 Utah 2d 1, 447 P.2d 38 (1968); Maley v. Eastside Bank of Chicago, 234 F.Supp. 395 (N.D.Ill.1964). Furthermore, a bank is not entitled to rely on representations of a corporate officer which are in direct conflict with the provisions of a corporate resolution specifying the mode and manner of paying corporate checks. Rudisill Soil Pipe Co. v. First National Bank of Anniston, 224 Ala. 436, 140 So. 569 (1932). Consequently, even assuming that Burke instructed the Bank to disregard the corporate resolution, the Bank was not entitled to rely on Burke’s representation and by doing so, the Bank acted at its own risk in honoring checks containing less than two signatures.

The Bank concedes that the above-stated general rules of law are applicable. The Bank argues, however, that there is an exception to these general rules and that this exception is applicable in the present case.

The Bank directs this Court’s attention to a line of authority holding that where a corporation’s checks have been improperly cashed by a bank without the requisite number of signatures, but the proceeds of the checks have been used to discharge a liability of the corporation, the bank is entitled to recover an amount equal to the extent of the indebtedness discharged, citing B. Liggett, (Liverpool), Ltd. v. Barclays Bank, Ltd. [1928] 1 K.B. 48; 10 Am.Jur.2d, Banks § 548. See Movie Films, Inc. v. First Security Bank of Utah, N.A., supra. We find the cases cited by the Bank are not persuasive under the facts of this case. The corporation, Wilkline, was not sued here, only the guarantors.

We need not decide whether the so-called “unjust enrichment exception” applies, because the corporation, to which the benefit allegedly accrued, is not a party. We do hold that under the terms of the guaranty agreement, the individual guarantors were not liable for any alleged “indebtedness” of the corporation which may have been created by the Bank’s honoring checks without the requisite number of signatures, as was specified by corporate resolution.

The ultimate decision of the trial court to grant summary judgment was not improper, even though it was based on a reason other than the one which we have discussed in this opinion. It is a settled principle that if the ultimate decision of a trial court is correct, that judgment will be upheld on appeal even though the trial court gave a wrong or insufficient reason therefor. City of Birmingham v. Community Fire District, 336 So.2d 502 (Ala.1976).

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

AFFIRMED.

JONES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., concurs in result.


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    Ex parte Gregory RICHARDSON and Edward Chapman. In re Criminal Contempt Prosecution against Gregory RICHARDSON and Edward Chapman, arising out of The Water Works Board of the City of Birmingham, a public corporation v. LOCAL UNION NO. 1317, LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, etc.
    78-810.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Ronald Edward Jackson, Birmingham, for petitioners.
    Sydney F. Frazier, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for respondent.
   BLOODWORTH, Justice.

Petitioners were convicted of criminal contempt for violation of a temporary restraining order. They then filed petitions for writs of habeas corpus which, after their release from jail, they asked to be treated as petitions for writs of certiorari..

The contempt citations were collateral to a civil action brought by the Water Works Board to enjoin a strike against it. On the morning of Thursday, August 2, 1979, the union and a number of Water Works Board employees commenced a strike and picketing of the Board’s main office and other facilities in Birmingham, Alabama. The court entered a temporary restraining order against the strike the afternoon of August 2, 1979. On Monday, August 6, a show cause order was issued against Mr. Richardson and Mr. Chapman for violating the TRO. Two separate findings of criminal contempt were entered for alleged violations on Friday August 3, 1979, against both Mr. Richardson and Mr. Chapman. Each petitioner was found guilty of violating the TRO, based upon picket line participation and breaking windows on vehicles occupied by non-striking employees who were attempting to enter the Board’s parking lot. Petitioners filed petitions for writs of habeas corpus for stays of their jail sentences pending review. Following oral argument before this court, the requests were denied on August 24,1979. Later, a motion was made to consider the actions as petitions for writs of certiorari, and they have been so treated.

This case is identical in all respects to Ex parte Purvis [MS. February 22, 1980] (Ala.1980), which is dispositive of all issues except for the issue of notice.

On that issue, Walker v. City of Birmingham, 279 Ala. 53, 181 So.2d 493, affirmed, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), states the general rule that one who violates an injunction is guilty of contempt, although he is not a party to the injunction suit, if he has notice or knowledge of the injunction order, and is within the class of persons whose conduct is intended to be restrained, or if he acts in concert with such persons. The trial court found, on the basis of substantial evidence, that both petitioners had notice of the temporary restraining order issued by the court.

Mr. Chapman was handed a copy of the court order on Thursday, August 2, 1979.

Mr. Richardson was found to have had notice in the following manner. Notice was given to the union lawyer, Mr. William Dawson. A pre-strike letter was mailed to Mr. Richardson on August 1 advising him that an injunction would be sought if the threatened strike materialized. Moreover, on August 2, when the strike started, counsel for the Water Works personally telephoned Mr. Richardson’s residence and left word as to the time a TRO would be sought from the court. Mr. Richardson was seen on the morning of Friday, August 3, 1979, with a Mr. James R. Purvis, who testified he knew they were enjoined at that point. Evidence in the form of a motion picture film was also introduced showing Mr. Richardson was in contact with Mr. Chapman and Mr. Latham, both of whom were served in person with a copy of the restraining order. Mr. Richardson was named as a defendant in the suit since he was a union committee member. Although circumstantial, the evidence showing Mr. Richardson had notice of the order is substantial enough to support the trial court’s finding of notice to him. We hold that notice was sufficient.

This case is therefore affirmed on the authority of Ex parte Purvis, supra.

AFFIRMED.

TORBERT, C. J., FAULKNER and EM-BRY, JJ., and TYNER, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


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    Leon Clyde SMITH et al. v. Cecil T. ROBINSON.
    78-823.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Kenneth W. Quattlebaum of Brogden & Quattlebaum, Ozark, for appellants.
    Edward Jackson, Dothan, for appellee.
   PER CURIAM.

Affirmed upon the authority of Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974).

AFFIRMED.

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


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    ZIPPY MART OF ALABAMA, INC., a corp. v. A & B COFFEE SERVICE, INC., a corp.
    78-844.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    George B. Azar of Azar, Campbell & Azar, Montgomery, for appellant.
    Richard M. Jordan of Jordan & Heard, Montgomery, for appellee.
   MADDOX, Justice.

A & B Coffee Service entered into a contract to provide coffee to sell in Zippy Mart convenience stores throughout Alabama for a period of eighteen months. After the contract was in force for approximately a year, Zippy Mart notified A & B that it was terminating the agreement. A & B sued Zippy Mart for breach of contract and was awarded a judgment of $19,846.25. Zippy Mart appeals. We reverse and remand.

The crucial issue presented on this appeal is whether the damages awarded are supported by the law and evidence proffered at trial. Zippy Mart contends that A & B failed to prove it was damaged because of the alleged breach.

The evidence tended to show that A & B contracted with Zippy Mart for A & B to place a coffee dispensing machine in each of 89 Zippy Mart stores. Zippy Mart desired a system whereby the customer would be able to obtain a freshly brewed cup of coffee upon purchase. V. L. Beck, Sr., president of A & B, suggested a machine designed so that when the customer pressed a button, the machine would dispense one cup of coffee made from freeze-dried coffee granules. The parties agreed that A & B would provide, install, service, and own the machines. The written contract stated that, “Zippy Mart of Alabama Inc. agrees to purchase all coffee, individual kream, individual sugar, and wrapped stir stix, (cups and lids optional) from A & B Coffee Service Inc. that will be used through said equipment.” Zippy Mart was not obligated to purchase the coffee machines at any time. After the machines had been installed one year, an agent of Zippy Mart notified an agent for A & B by telephone that the contract was terminated and A & B should remove the machines.

A & B filed suit alleging Zippy Mart arbitrarily breached the contract, that A & B suffered damages in that it went to great expense in purchasing and installing 89 machines of a special design, that it had purchased supplies for the machines for 18 months, and that Zippy Mart was permitting others to provide the services A & B had contracted to provide.

The trial court, as trier of fact and pursuant to Rule 52, ARCP, found that the freeze-dried coffee system was a very specialized process; that the parties understood that a full eighteen-month contract was necessary in order for A & B to earn a return on its investment; that the machines were installed at substantial expense; that the contract was breached without justification; and that A & B mitigated the damages as best it could.

The court awarded damages based on the loss in value of the specially fitted machines, the cost to A & B of picking up the machines, the special fittings used in the installation of the machines, the specially ordered “stir stix” which were ordered for Zippy Mart and the one hundred and fifty cases of freeze-dried coffee that A & B had purchased and placed in inventory for the expected use by Zippy Mart during the final six months of the contract. The court found that “[tjhese costs, expenses and damages were reasonably contemplated by the parties at the time the contract was entered into.”

The finding that Zippy Mart breached its contract with A & B is amply supported by the evidence. Unquestionably, the parties agreed that A & B would have the right to place its machines in the Zippy Mart stores and the coffee and other materials used to produce a cup of coffee were to be purchased only from A & B. The contract was to run for eighteen months. After twelve months, A & B was told to remove its equipment and a competitor was given the right to sell coffee in Zippy Mart stores.

Zippy Mart contends, however, that even if there was a breach, A & B failed to prove that it was damaged.

It is axiomatic that in contract law the primary duty of the court is to put the injured party in the same position he would have been in had the terms of the contract not been violated. Coastal States Life Insurance Company v. Gass, 278 Ala. 656, 180 So.2d 255 (1965); Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973).

The evidence is clear that the agreement was designed so that A & B would make its profit by selling the coffee and other supplies to Zippy Mart. The evidence also clearly indicates that A & B believed it would make a profit from its investment in the specially ordered machines if it had the opportunity to supply the coffee-making materials for a period of eighteen months, a period bargained for and agreed upon by the parties. Zippy Mart breached the contract by indicating its desire that A & B remove its machines after only twelve months and permitting the installation of a competitor’s equipment in the stores. If Zippy Mart had continued to purchase coffee and supplies from A & B, and use them in the A & B machines for the final six months of the contract, it would have fully performed under the terms of the contract; therefore, the only loss to A & B by the breach was the loss of the sale of the coffee and supplies for the final six months of the term of the contract.

The award of damages for the cost of the specially ordered machines is plain error necessitating reversal. Tanner v. Winfield, 365 So.2d 651 (Ala.1978). The machines remained at all times the property of A & B. A & B claimed it would have to hire someone to travel throughout the state to pick up machines at 89 stores; however, Beck admitted in his deposition, which was introduced as evidence, that A & B intended to have Zippy Mart discard the machines at the end of the eighteen-month period. If Zippy Mart had purchased coffee and supplies necessary for the final six months, Zippy Mart would have fully performed under the contract, and the machines would have been discarded. In short, Zippy Mart promised to purchase coffee and supplies for eighteen months, but only purchased for twelve months. The only damage that flowed from the breach is the loss of the sale by A & B of six months worth of coffee and supplies. Because the judgment entered awards damages in excess of this amount, it is due to be reversed, and the matter remanded for a redetermination of the amount of damages.

Certain principles of law are controlling in the calculation of damages on remand. First, the court must determine the amount of coffee and supplies that Zippy Mart should have purchased during the final six months of the term of the contract. Then, the court must determine whether A & B could have mitigated the damages by reselling the goods. If so, A & B is only entitled to its lost profits. Code 1975, § 7-2-708(2). If not, A & B may recover the price Zippy Mart was due to pay. Code 1975, § 7-2-709.

REVERSED AND REMANDED, WITH DIRECTIONS.

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