author: BEATTY, Justice.

text:
    FAMEX, INC., and American Automobile Insurance Company v. CENTURY INSURANCE SERVICES, INC., M. Glen Jackson, and Darwin W. Holt.
    81-132.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Rehearing Denied Jan. 21, 1983.
    William H. Mills of Redden, Mills & Clark, Birmingham, for appellant.
    J. Michael Rediker and W. Clark Goodwin of Ritchie & Rediker, and Thomas B. Huie of Huie, Fernambucq & Stewart, Birmingham, for appellees.
   BEATTY, Justice.

Plaintiffs appeal from the trial court’s order denying their application for a preliminary injunction. We reverse and remand.

Plaintiffs Famex, Inc. (Famex), and American Automobile Insurance Company (American) are subsidiaries of the Fireman’s Fund Insurance Company. American is an insurance company engaged in writing property and liability insurance. Famex is not an insurance company. Famex is engaged in the business of marketing insurance, including market consultation, development of group insurance programs and organization of a sales network for marketing group programs. Plaintiffs seek to enforce a non-competition agreement with the defendant Century Insurance Services, Inc. (Century), and the chief executive officers of the corporate defendant as individual defendants. Century is an independent insurance agency located in Birmingham, Alabama.

Century entered into an authorization agreement with Famex which designated Century as an appointed agent of Fireman’s Fund Insurance Company. Famex provided Century with written materials pertaining to the operation of the Famex plan, premium rates, and underwriting criteria as well as information concerning “leads.” In addition to the manuals containing instructions for Famex agents, Famex prepared and distributed a file or kit for each of its group programs. These kits included information about the particular industry and about the organizations which sponsored the group insurance programs for their members. Famex also conducted market, loss control and other research pertinent to the insurance business, and provided the results of these studies to its agents, including Century.

Century operated and did business as a Famex agent under the agreement until disputes arose in May of 1981. Century sold and wrote insurance coverages for five Famex insureds with insurance carriers not affiliated with Famex/Fireman’s Fund plans. This activity violated the authorization agreement. During July and August 1981, Century began soliciting and quoting coverages to other Famex insureds for insurance coverages with other companies not affiliated with Famex. Famex terminated its agreement with Century in writing on August 13,1981, effective after thirty days. Famex then sought to enforce the following noncompetition clause which was a part of the agreement between Century and Fa-mex:

“X. Agent’s Obligation Upon Termination
“(b) For a period of three (3) years following termination of this Agreement, Agent agrees not to solicit any insured written under a Network Insurance Program for coverages which were available under the Network Insurance Programs.”

The trial court found that the provision which the plaintiff seeks to enforce was void as a restraint of trade under Code 1975, § 8-1-1:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.
“(c) Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted.”

We disagree. A similar restraint was recently considered and upheld by this court in Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027 (Ala.1980). The Hib-bett case concerned an agreement between Hibbett, the lessee and Biembaum, the lessor of space in a shopping mall. In that case the lessor agreed not to lease space in the mall to another sporting goods store. Citing a well-established line of cases, we said:

“Tt is true that contracts in general restraint of trade violate the policy of the law and are therefore void, but as observed in Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 73 So. 889:
“ ‘ “... Every contract, however, which at all restrains or restricts trade, is not void; it must injuriously affect the public weal; that it may affect a few or several individuals engaged in a like business does not render it void. Every contract of purchase and sale to some extent injures other parties; that is, it necessarily prevents others from making the sale or sales consummated by such contract. ...
“ ‘ “Contracts in partial restraint of trade are always upheld, when properly restricted as to territory, time and persons, where they are supported by sufficient consideration.” ..

Id. at 1029. (Citations omitted.)

Under the agreement in the present case, the restraint lasts for three years, which is a reasonable time. Century is not prohibited from doing business, but only from soliciting Famex insureds. With all respect, we are convinced that the learned trial court misinterpreted the statute. In light of Hib-bett and the cases cited therein, the statute does not apply to partial restraints. The clause at issue in the case at bar obviously is in partial restraint of trade, it is reasonable and sufficiently limited, and therefore it is not void. The judgment denying the application for a preliminary injunction is due to be and is reversed and this cause is remanded for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Pauline SUMMERHILL and John Craft v. Iris CRAFT and the Estate of Ollie R. Craft.
    81-165.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Rehearing Denied Jan. 28, 1988.
    Ralph L. Brooks, Anniston, for appellants. ■

      C.E. Isom of Wilson, Bolt, Isom, Jackson & Bailey, Anniston, for appellees.
   ALMON, Justice.

Appellants contested the will offered for probate by appellee Iris Craft (Iris). The probate court failed to transfer the contest to circuit court upon appellants’ request. Because this failure to follow the statutory mandate tainted the further proceedings, we must reverse.

On February 25, 1980, Iris filed for probate a document purporting to be the last will and testament of her deceased aunt, Ollie R. Craft (Ollie), under which Iris was sole beneficiary and executrix.

On May 13, 1980, appellants, Pauline Summerhill and John Craft, sister and brother of Ollie, filed a contest of the will in the probate court, as provided in Code 1975, § 43-1-70. This pleading included a demand that the contest be transferred to circuit court, as provided in Code 1975, § 43-1-78. Nevertheless, the probate court proceeded with a hearing scheduled for May 15, 1980, to probate the will. After this hearing the probate court issued an order whereby the offered document was “declared to be duly proved as the genuine last will and testament of Ollie R. Craft, deceased, and, as such admitted to probate and record .... ”

On June 4, 1980, appellants filed a complaint in circuit court contesting the will. The complaint was amended to add two nephews of the deceased as contestants. The circuit court ordered the probate court to transfer the file of the case to the circuit court. After the probate court complied, the circuit court held a jury trial on the will contest. Iris’s initial method of proving the will was to introduce the probate file; the circuit court overruled appellants’ objections and admitted portions of the file. Iris rested her case, but reserved the right to present evidence in rebuttal.

When appellants filed, with their initial pleading, a demand in writing that their contest be transferred to circuit court, the probate court should have transferred the contest. “Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court .... ” Code 1975, § 43-1-78 (emphasis added).

This language is mandatory. Ex parte Stephens, 259 Ala. 361, 66 So.2d 901 (1953). “The jurisdiction of the probate court to entertain all proceedings contesting a will is a statutory and limited jurisdiction.” Id., at 363, 66 So.2d 901. Because the probate court was required to transfer the contest after the demand to transfer was made, it had no jurisdiction to hold a hearing to probate the will nor to issue its order that the will was duly proved. The order is therefore void.

In the subsequent circuit court proceeding, Iris offered the probate file into evidence in order to prove the will. Appellants objected on the grounds that irrelevant material was included, and the court sustained. Iris then offered the portions of the file including the petitions for probate and letters testamentary, the order signed by the probate judge determining the will to be valid, and documents signed by the witnesses identifying their signatures and verifying the execution of the will, pursuant to their testimony at the hearing. The circuit court overruled appellants’ objection that the hearing was void as being beyond the jurisdiction of the probate court, the proper petition for transfer having been filed.

The circuit court erred in admitting this order into evidence. The jury should not have had before it this order stating that the will had been duly proved as the genuine last will and testament of Ollie R. Craft. After Iris rested her case, the appellants proceeded to put on their case to contest the will. Their evidence raised a jury question on at least one of the grounds of their contest of the will. Therefore, admission of the probate order into evidence may have influenced the jury in weighing the evidence and prejudiced the appellants’ case.

The grounds alleged were (1) revocation, (2) undue influence, and (3) failure to meet the formal requirements of a will. The contestants based their revocation claim on the fact that no will was found among the deceased’s possessions. The two nephews added as contestants in the circuit court trial, W.T. Gable and Fred Craft, both testified that their Aunt Ollie had told them she did not have a will. Iris offered the document in question as a duplicate original and explained that her aunt had given it to her to keep about a year after its execution.

If a testatrix keeps one of two duplicate original wills and gives the other to another person, and no will is found in her possession at her death, “the presumption arises that [s]he destroyed it for the purpose of revocation.” Stiles v. Brown, 380 So.2d 792, 796 (Ala.1980). This presumption is rebuttable, but the mere fact that a will contestant had access to the will after the testatrix’s death is not enough to overcome the presumption. Id.; Lovell v. Lovell, 272 Ala. 409, 132 So.2d 382 (1961).

In Stiles v. Brown, supra, there was evidence that the testator’s attorney had told him twice that he would have to destroy both duplicate originals to effectively revoke the will. This evidence, added to the fact that the contestant had access to the will, sufficed to overcome the presumption that the testator had destroyed the will animo revocandi. In the case at bar, Iris put two witnesses on the stand who testified that Ollie had told them shortly before her death that she planned to leave everything to Iris. This, together with the fact that Pauline and John, the appellants, had access to Ollie’s safe after she died, would be enough to overcome the presumption of revocation were it not for the conflicting testimony of the two nephews. Their statements that Ollie had said she had no will pertained to about the same period of time as the contrary statements by Iris’s witnesses.

Thus, we cannot say as a matter of law that Iris overcame the presumption of revocation raised by the failure to find Ollie’s copy of the will. The evidence was certainly sufficient to support the jury verdict, but the contestants were prejudiced by the admission into evidence of the probate order and other portions of the probate record stemming from the hearing mentioned above.

The circuit court granted Iris’s motion for directed verdict on the issue of undue influence. Although Iris admitted that she had a confidential relationship with Ollie and that she typed the will, there was no evidence that she exercised any dominance over her aunt. On the contrary, Pauline Summerhill testified when asked whether Iris had exercised undue influence on Ollie that “She couldn’t have done anything like that to [Ollie].” To successfully contest a will on the ground of undue influence, one must show dominance as well as a confidential relationship and activity in procuring the will. Smith v. Smith, 384 So.2d 1069 (Ala.1980). The circuit court committed no error in directing a verdict on this issue.

For the error in admitting the portions of the probate record pertaining to the hearing held after the contest and request for transfer were filed, however, the circuit court judgment must be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

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

      . These nephews are not named as appellants in this appeal.


author: PER CURIAM.

text:
    Earl W. CLEMENTS, et al. v. Robert WEBSTER, et al.
    81-206.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Rehearing Denied Jan. 28, 1983.

      John T. Roach, Jr., Birmingham, for appellants.
    James L. Martin of Houston & Martin, Eufaula, for appellees.
   PER CURIAM.

This appeal is from a judgment entered in a case brought under the third party provision of the Workmen’s Compensation Act (§ 25-5-11, Code 1975) against four co-employees. We affirm.

Plaintiff Earl Clements was employed by Louisiana Pacific Corporation in Barbour County as a press board operator. In 1979, Louisiana Pacific was in the process of converting the facility where Clements was employed from a particle board plant to a medium density fiberboard plant. This required the dismantling of all the old equipment and installing new equipment, thus forcing the facility to shut down. Louisiana Pacific used their own employees to aid in dismantling the old and installing the new equipment.

On 3 May 1979, Clements, along with three other employees, was assigned to dismantle what is called the surge bin at the plant. Clements was injured when a plywood board that he was walking on gave way under him, causing Clements to fall approximately twenty-one feet onto a concrete slab. As a result, Clements suffered multiple fractures and internal injuries.

Clements filed this action against the following: Robert Webster, the process consultant for the plant conversion; C.B. Wesson, the plant manager; and Rodney Bower sox, the plant superintendent. The complaint alleged negligent and/or wanton conduct by the defendants in the following areas: supervising of work performed by Clements; failure to provide proper equipment or safety apparatus; plant inspection; failure to warn of known dangers; failure to provide proper safeguards, machinery or procedures; allowing work to progress in a dangerous or hazardous manner; failure to provide equipment and a safe place to work; and providing faulty or defective plans for the work to be performed. Clements claimed damages of $750,000. The complaint was later amended to add as a defendant, Dennis Green, the maintenance superintendent.

We note that Clements’s wife Ann is also a plaintiff, claiming damages for loss of consortium.

The case was tried before a jury, and after all parties had rested, the trial judge granted a motion for a directed verdict in behalf of the defendant Webster. The jury returned a verdict in favor of the three remaining defendants; judgment was entered accordingly. Clements’s motion for a new trial was denied.

Clements contends that the trial court committed error directing a verdict in favor of Webster when there was sufficient evidence to submit the case against him to the jury. Webster’s job as process consultant required him to lay out equipment flow, purchase equipment, prepare drawings, and work out a time schedule for dismantling the old and installing the new equipment. Webster gave no personal instructions to anyone, including Clements, about dismantling the surge bin. Jack Sanders was directly in charge of the work crew who dismantled the surge bin and he received his instructions from R.B. Jones who worked directly under Green, the maintenance superintendent.

The test to determine if Webster is liable to Clements is whether or not Louisiana Pacific had delegated to Webster, as a part of his duties of employment, the duty to assure Clements a reasonably safe workplace. Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980). There is no evidence to establish a personal duty owed by Webster to Clements, nor was any evidence presented showing Webster owing Clements a duty to provide him with a reasonably safe workplace. A co-employee cannot be held liable merely because he has a general administrative responsibility; the fact that a person is in an administrative or supervisory position alone does not make that person liable. It is the burden of the injured party to prove, with specificity, the co-employee’s delegated or assumed duty, and the breach thereof, out of which the claim for recovery arises. This court addressed this issue in Carter v. Franklin, 234 Ala. 116, 173 So. 861 (1937):

“[I]t cannot be questioned that in tort actions all persons are jointly and severally liable for the proximate results of their negligence or wanton conduct. The relation of employer and employee excuses neither. In some jurisdictions a mere day laborer acting under superiors is not held liable for acts of mere nonfeasance. This court has not approved such distinction. Whether his failure of duty be one of commission or omission is unimportant. But he must be a wrongdoer in such sort that under the particular facts of the case his negligence or wrongful act was a proximate cause of an injury.... ”

In light of the evidence showing that Webster owed no duty to Clements to provide the latter with a reasonably safe workplace, we agree with the trial court that Webster was entitled to a directed verdict. Whether tested by the substantial evidence rule or the so-called scintilla rule, the record shows no evidence from which the jury could reasonably infer that Clements’s injuries were proximately caused by the negligence or wantonness of Webster. The law in this regard is aptly summarized in Coburn v. American Liberty Insurance Co., 341 So.2d 717 (Ala.1977):

“[T]he trial Court must exercise extreme caution not to usurp the fact finding function of the jury; but it is the office of a directed verdict motion (Rule 50(a)) to test the sufficiency of the opponent’s evidence. And where, as here, the strongest tendencies of all the evidence fall short of raising a reasonable inference of the movant’s alleged liability, the motion is due to be granted.. . . ”

Clements also asserts that the trial court committed reversible error by refusing to admit portions of Webster’s deposition concerning what could have been done to prevent the injury to Clements. Observations by Webster regarding that matter can only be made in retrospect. A Circuit Court of Appeals of the United States addressed this issue:

“... Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence.... ”

Carufel v. Chesapeake and Ohio Railway Co., 286 F.2d 193, 195 (6th Cir.1961). The trial court was correct in excluding those portions of the Webster deposition.

Clements maintains that error was committed when the trial court interrupted Clements’s counsel on redirect examination of the witness Willie Wellbern and asked questions from the bench, and, after objection, making statements in the presence of jury about the weight and sufficiency of the evidence. The trial court asked that witness the following questions:

“THE COURT: For my information how wide — In Mr. Green’s testimony yesterday he mentioned ‘catwalk’ and said that was a misnomer, it ought to be ‘work platform’, which would indicate to me a larger area than the catwalk.
“How big an area did you have up there that you call either the work area or the catwalk? How wide a place did you have?
“WITNESS: I wouldn’t know for sure. I would estimate, maybe, that—
“THE COURT: Was the top of the bin from here to someplace in the courtroom? Was it a round type bin?
“WITNESS: No, square.
“THE COURT: Square. Well, how square was it, from here to someplace in the courtroom — ?
“WITNESS: Maybe from here to that first bench.
“THE COURT: To the first bench. All right. It was that square?
“WITNESS: To the rail there — Maybe, from here to that rail. I would say, maybe, the rail.
“THE COURT: I believe I heard fifteen feet square—
“WITNESS: Yes.
“THE COURT: I thought I heard the other day fifteen or twenty feet square. But, anyway, it was approximately to the rail?
“WITNESS: (Nods head up and down.)
“THE COURT: Now, you say the work area was some six inches above it?
“WITNESS: Roughly.
“THE COURT: That was all metal. What type floor did it have? Expanded metal or what type floor?
“WITNESS: It was expanded, I believe.
“THE COURT: And was it built around the bin, sort of?
“WITNESS: Right.”

It is within the discretion of the trial court to propound questions and examine witnesses for the purpose of eliciting proper evidence bearing on the issues.

“. .. The primary limitation upon the trial judge’s right to question is the rule that he cannot so question as to create an impression that he favors a particular party. The trial judge’s examination of a witness will constitute error if his method of doing so improperly prejudices one of the parties by indicating the judge’s opinion as to the just outcome of the case.”

Gamble, McElroy’s Alabama Evidence, § 121.04 (3d Ed.1977). Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955).

There is nothing in the record indicating the trial court abused its discretion by questioning the witness, nor did it indicate to the jury its opinion of the merits of the case by that questioning.

Clements complains that the trial court commented on the weight and effect of the evidence by making the following statements in the presence of the jury:

“(THEREUPON, a short discussion was held at the bench between counsel and the Court out of the hearing of the jury and court reporter.)
“(The following proceedings were had at the bench out of the hearing of the jurors.)
“THE COURT: Andy, let the record show that they object to me asking these questions, but it is my duty to try to bring out facts if they have not been developed. And I don’t believe the jury has enough facts now to put in their minds where the accident happened. So, if you want to develop it further, I’ll be happy to let you.
“MR. ROACH: I haven’t rested yet, Judge.
“(THEREUPON, the following proceedings were had in the presence and hearing of the jury as follows:)
“THE COURT: Well, all right, we’ll stop here. And if you rest without doing it, then we will have to go into it further, because I think the jury needs more facts as to the location of the platform that the work is on, and all that.
“MR. ROACH: I agree with that, Judge.
“THE COURT: I don’t like to get in a case. When I first started I was a lawyer, and it is hard not to get into it; but, I learned a long time ago to hold my tongue and it will come out some other way; but, I didn’t think it was going to come out in this case, and — .”

Clements contends that the court reporter incorrectly stated on the record that only the last two paragraphs of statements were made in the presence of the jury. However, the record shows that the first paragraph was held out of the hearing of the jury and the record does not show that any proceedings were had in an attempt to correct it. Blanton v. Blanton, 276 Ala. 681, 166 So.2d 409 (1964), states the rule in this regard:

“... The longstanding rule of this Court has been that the Supreme Court is remitted to the consideration of the record alone and absolute truth must be imputed to it, and if it is incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on hearing in the appellate court, by statements in brief, by affidavits, or by other evidence not appearing in the record.... ”

We find no impropriety in the questions to the witness, or the comments made after-wards, by the trial court.

During the course of the trial, Judge McCullough, an employee of Louisiana Pacific, was observed talking to one of the jurors during a recess. The juror was later identified as the foreperson of the jury. This was brought to the trial court’s attention in the motion for new trial and by an affidavit of Russell Irby, one of Clements’s lawyers.

Appellees assert that the issue of alleged improper jury contact is not properly before this court because it was raised only in the motion for new trial and Clements does not assert error in the denial of the motion for new trial. We do not agree. The scope of appellate review is not limited by the notice of appeal designation of the judgment or order appealed, whether such appeal is taken from the final judgment or from the order denying a motion for new trial. ARAP 3(c); McGough v. Slaughter, 395 So.2d 972 (Ala.1981).

However, there is nothing in the record to substantiate any alleged improper contact with a juror. There is no evidence that the trial court was given notice of such action until the motion for new trial was filed. Clements should have immediately brought this to the trial court’s attention, at which time all of the alleged participants could have been examined. As it stands, there is no evidence before this court to support a finding in favor of Clements in this regard.

Louisville & N.R.R. Co. v. Turney, 183 Ala. 398, 62 So. 885 (1913), stated in part:

“... But casual meetings and the interchange of casual and ordinary civilities between a party and a juror during the recesses of the court, no sinister design being apparent, will not ordinarily suffice to avoid the verdict, if the court can clearly see that it could not have had any effect on the mind or sentiment of the juror.... ”

This court is by no means approving the alleged improper contact with the juror. In fact, a conversation between a juror and the employee of the company who had a monetary interest in the case has an appearance of impropriety. But we do not know what, if anything, was discussed between McCullough and the foreperson. On questions of this kind, the ruling of the trial court is presumed correct and that court was within its sound discretion in not granting a new trial on that ground. Prestwood v. Ivey, 273 Ala. 281, 138 So.2d 713 (1962).

For the reasons assigned, the judgment is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    W. Graham WOOD v. John F. WILKINSON and Jerry L. Miller.
    80-923.
    Supreme Court of Alabama.
    Dec. 10, 1982.
    Rehearing Denied Jan. 28, 1983.

      Philip A. Geddes, Madison, for appellant.
    John W. Evans of Cleary, Lee, Evans, Rowe & Bailey, Huntsville, for appellees.
   ALMON, Justice.

This suit involves an agreement in which the buyer of an airplane was to pay the purchase price with a parcel of real estate. After finding that the buyer had breached the agreement, the trial court awarded the seller $50,000 in damages. We affirm.

John Wilkinson and his business partner, Jerry Miller, obtained a Piper airplane through foreclosure of a lien. Finding that they had no use for the plane, Wilkinson and Miller (hereinafter referred to as Wilkinson) had it listed for sale with Huntsville Aviation, a Piper dealer located in Huntsville, Alabama. As a result, Wilkinson was put in contact with Dr. Graham Wood, a prospective buyer.

On March 26, 1977, Wilkinson and Wood met in South Carolina to discuss a possible purchase agreement. At this meeting, which was held under the premise that Wood would not accept any type of cash transaction, it was agreed that Wilkinson would exchange the airplane for one of several condominiums which Wood owned. The details were as follows: Wilkinson would select one condominium out of a specified group; the property selected would have at least the $40,000 equity value which Wilkinson had in the airplane; Wilkinson would pay an additional sum to the extent that Wood’s equity in the property exceeded $40,000; both Wood and Wilkinson would assume the obligations on the property they received, including the April 1, 1977 payments.

Although it is undisputed that the airplane was delivered to Wood shortly after the South Carolina meeting, there are conflicting views as to whether or not Wilkinson ever made a choice as to which condominium he wanted. Wilkinson claims that within 30 to 40 days of the meeting, he had selected a Florida condominium which had previously been represented by Wood as having a fair market value of $115,000.

In June or July of 1977, a Mr. Compton, a prospective buyer and an acquaintance of Wilkinson, inspected the Florida property and reported to Wilkinson that the fair market value was in the $80,000 to $90,000 range. A May 1978 appraisal made at Wilkinson’s request confirmed this report and placed the fair market value at $80,000.

Since the Florida property was subject to mortgages totaling $70,000, Wilkinson viewed the $80,000 appraisal as conclusive proof that the property did not have an equity value of $40,000. Accordingly, Wilkinson sought to have Wood sell the property and pay to him $40,000 from the proceeds. Wood refused to do so.

After all attempts to compromise were unsuccessful, Wilkinson sued for breach of contract and was awarded the judgment from which Wood now appeals.

Wood asserts that Wilkinson’s claim is barred by the 3-year statute of limitations contained in Code 1975, § 6-2-37. The three-year limitation applies to money due by open account, which is what Wood claims was the relationship that existed between him and Wilkinson. Both parties have spent the majority of their efforts in brief on the definition of an “open account” and whether or not that is what was involved in this case. However, we do not think that the determination of whether an open account existed between the parties is determinative. Rather, we believe a different limitations period applies.

Code 1975, § 7-2-102 states:

“Unless the context otherwise requires, this article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.” (emphasis added)

In the present case the airplane was a good within the meaning of “goods” in Code 1975, § 7-2-105, and therefore the transaction should be covered by the provisions of article 2, of title 7, Code 1975, or more appropriately, the “Sales” article of the Uniform Commercial Code.

The applicable statute of limitations for transactions covered by the sales article is four years (§ 7-2-725), measured from the date the cause of action accrued. Even assuming the period began to run from the date of agreement, which was completed on. March 26, 1977, and this suit was filed August 22, 1980, the suit would clearly not be barred by the four-year limitation period.

The Uniform Commercial Code specifically provides that the provisions of article 2 apply to transactions where the price is payable in realty:

“(1) The price can be made payable in money or otherwise. If it is payable in whole or in part in goods, each party is a seller of the goods which he is to transfer.
“(2) Even though all or part of the price is payable in an interest in realty, the transfer of the goods and the seller’s obligations with reference to them are subject to this article, but not the transfer of the interest in realty or the trans-feror’s obligations in connection therewith.”

Code 1975, § 7-2-304.

As indicated in subsection (2) above, article 2 applies only to the transfer of the goods and the seller’s obligations as to the goods. We interpret that to mean in this case that the seller would have an action for the price of the goods but no entitlement, under article 2, to affect in any way, the real estate promised as the purchase price. Whether the seller could resort to remedies outside article 2 we do not and need not now decide.

As the above reasoning indicates, Wilkinson’s claim was not barred by the appropriate statute of limitations.

Wood next asserts that Wilkinson failed to plead or prove performance of all conditions precedent. Specifically, he says that the duty to select and assume the outstanding debt on one of the condominiums was an unspoken condition which was essential to a finding that Wilkinson should recover damages.

A review of the record, however, indicates that this defense was not raised by the pleadings. Rule 9(c) of the Alabama Rules of Civil Procedure requires that denial of performance or occurrence of a condition precedent shall be made specifically and with particularity.

Moreover, the evidence on this issue, if indeed it was asserted below, was in considerable conflict and resolved adversely to Wood by the trial judge. Consequently, the issue must be resolved against Wood under the ore tenus rule.

We have examined the remaining errors asserted by Wood and find none of them to have merit. Therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

ON APPLICATION FOR REHEARING

Wood asserts on application for rehearing that his counterclaim raised the issue of failure of performance or occurrence of a condition precedent sufficiently to come under the provision of Rule 8(c), A.R.C.P., which allows the court to consider matter raised in a counterclaim as being raised as an affirmative defense. Wood argues that he has satisfied the requirement of Rule 9(c), which provides that failure of conditions precedent must be specially pleaded, by raising the failure of condition precedent in his counterclaim. We reserve the question of whether the matters required to be specially pleaded under Rule 9(c) can thus be brought in under the provision of Rule 8(c), because this case is decided on the ore tenus rule and Wood’s assertion, even if correct, does not affect the result. The statement in the opinion that Wood failed to raise the failure of conditions precedent should not be taken as authority on the issue raised in the application for rehearing.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: MADDOX, Justice.

text:
    Melinda J. BOWLIN HORN v. CITIZENS HOSPITAL, et al.
    81-581.
    Supreme Court of Alabama.
    Dec. 30, 1982.
    Rehearing Denied Jan. 21, 1983.

      Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    R. Blake Lazenby and B. Clark Carpenter, Jr. of Dixon, Wooten, Boyett, Thornton, Carpenter & O’Brien, Talladega, for appel-lee Citizens Hosp.
    W. Michael Atchison and Carol A. Smith of Starnes & Atchison, Birmingham, for appellee Dr. E.H. Roberts.
   MADDOX, Justice.

Plaintiff below appeals the granting of summary judgment for the defendants by the trial court on the ground the recovery was barred by the four-year statute of limitations of the Medical Liability Act. The dispositive issue here is whether fraudulent concealment tolls the operation of the Medical Liability Act thereby permitting an action otherwise permitted by the statute to be brought more than four years after the alleged act of malpractice.

Melinda Bowlin Horn, appellant, was at the time of her appendectomy on April 21, 1971, an unmarried 13-year-old. Her physician, Dr. E.H. Roberts, allowed a piece of a sweged needle that broke off during the operation to remain embedded in the thick wall of the girl’s abdomen. The “Report of Operation” describes the incident as follows: “In closing the initial oblique muscle, closing loosely to the internal oblique, a tiny bit of the sweged needle was lost in it and rather than losing time for this particular incident, the operation was continued.... ” Although Dr. Roberts’s “Progress Notes” as well as the “Report of Operation” indicated that the broken portion of the needle was left in the incision and that the mother and father had been informed of its presence, the appellant and her parents maintain that they were never informed about the needle, but instead were told that the operation was successful. Dr. Roberts stated in the interrogatories that he did not recall whether he had in fact informed the parents about the broken needle, because the operation had taken place more than nine years before.

About a year following surgery, the appellant began experiencing abdominal pains. She went to two different physicians on separate occasions for treatment. One physician diagnosed the persistent abdominal pain to be caused by nervousness, while the other physician informed her that the pain was caused by an ulcer. Appellant never informed Dr. Roberts of her persistent abdominal pain and in fact was never again treated by him after her discharge from the hospital following the appendectomy.

In February 1979, the appellant sought treatment from physicians in Birmingham. X-rays revealed the presence of the needle remnant at the site of the appendectomy. On March 9, 1979, a short time following surgery to remove the needle remnant, appellant filed a medical malpractice suit against Citizens Hospital and Dr. Roberts in the Circuit Court of Talladega County. The trial court granted the appellee’s motions for summary judgment on March 17, 1982, on the ground that the appellant’s claim for recovery was barred by the applicable statute of limitations for malpractice found in Code 1975, § 6-5-482. From this order, appellant appeals.

I

This Court has not previously addressed the issue of fraudulent concealment as it applies to the Medical Liability Act. See Code 1975, §§ 6-5-480 through 6-5-488. There is no dispute by any of the parties that the action made the basis of this appeal is governed by the Medical Liability Act. This act contains its own limitations as to the time for the commencement of an action. Section 6-5-482(a) of the act reads:

“All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23,1975, shall not in any event be barred until the expiration of one year from such date.”

In Street v. City of Anniston, 381 So.2d 26 (Ala.1980), we remarked with specific reference to this section that:

“[It] is similarly titled a statute of limitations, and commences the running of the statute from the time of the act or omission giving rise to the cause of action. It does not, however, act as a grant of immunity; our case law has established that, in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period. Garrett v. Raytheon [368 So.2d 516 (Ala.1979)], Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972). Thus, the Medical Liability Act contains a traditional statute of limitations, one which commences the running of the statute from the accrual of the cause of action, and is not subject to constitutional infirmity under § 45.”

381 So.2d at 31. See also Ramey v. Guyton, 394 So.2d 2 (Ala.1980).

The Court discussed the origin of the principle of fraudulent concealment in Porter v. Smith, 65 Ala. 169 (1880).

“... It is known to have been the long-settled doctrine of courts of equity, that if fraud has been concealed by a party, against whom there is a cause of action, the statute of limitations does not commence to run, until the fraud has been discovered, or until the party aggrieved shall have had reasonable opportunity afforded him for discovering it. —Angelí on Lim. § 183; Snodgrass v. Branch Bank at Decatur, 25 Ala. 161; Coster v. Murray, 5 John. (N.Y.) Ch. 522. The reason given by Lord Redesdale, in Hovenden v. Lord Annesley (2 Sch. & Lef. 634), was, that the conscience of the party being so affected, he ought not to be allowed to avail himself of the lapse of time. The first authoritative application of this principle to courts of law found encouragement, if not origin, in the apparent dictum of Lord Mansfield, uttered in Bree v. Holbreck, Doug. 654, that ‘there may be cases which fraud will take out of the statute of limitations.’ And while the soundness of the doctrine, as applicable to courts of law, has been denied in some of the States, including New York, Virginia, and North Carolina, we think the weight of authority in this country clearly supports the affirmative. —Angeli on Lim. § 186; Wear v. Skinner, 24 Amer.Rep. 517 (46 Md. 257).”

65 Ala. at 172. Section 6-2-3, as appellant suggests, is the embodiment of this equitable notion and it reads:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.”

Appellant notes that Garrett v. Raytheon Co., Inc., 368 So.2d 516, 521 (Ala.1979), is a reaffirmation by this Court that “fraudulent concealment by a defendant tolls the running of the statute until the tort injury is discovered or could have been discovered by due diligence.” Additionally, the appellant maintains that the facts of this case present a classic illustration of a confidential relationship and that where this sort of confidential relationship exists, as between a physician and the patient, the law imposes a strong duty on the physician to disclose facts of medical significance to the patient. Appellant cites the following cases as representing this obligation to disclose where confidential relations exist, Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d 485 (Ala.1977); Tonsmeire v. Tonsmeire, 285 Ala. 454, 233 So.2d 465 (1970); Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 191 So. 352 (1939); Brasher v. First National Bank of Birmingham, 232 Ala. 340,168 So. 42 (1936). Section 6-5-102 is likewise cited by appellant as imposing an obligation to disclose in this case. This section reads: “[Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” See Harrell v. Dodson, 398 So.2d 272, 276 (Ala.1981). Consequently, the appellant urges this Court to incorporate the principle of fraudulent concealment into the effects of § 6-5-482 by engrafting § 6-2-3 or § 6-5-102.

Some courts in other jurisdictions appear to have adopted the view that if a surgeon or other medical practitioner obtains actual knowledge that he has negligently left a foreign object in the body of a patient then the practitioner has a duty to disclose the object’s presence to the patient. These courts apparently treat the failure of the practitioner to disclose such a condition as a fraudulent concealment which tolls the limitations period until the patient discovers, or, by the use of reasonable diligence, should have discovered, the presence of the object. Annot., 70 A.L.R.3d 7 (1976).

The legislature first enacted a medical malpractice statute of limitations in 1953. Act of Sept. 17,1953, No. 766,1953 Ala.Acts 1027 (codified at Ala.Code Tit. 7 § 25(1) (1940)). Act No. 766 provided:

“Section 1. All actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action, and not after-wards. Provided that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further that in no event may the action be commenced more than six years after such act.
“Section 2. Section 1 of this act shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions; namely, Title 7, Sections 18, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 40, 42, 43, 44, 47, 48 of the Code of 1940.”

This act was the percursor to the statute of limitations provision enacted in the Medical Liability Act by the legislature in 1975. Act of Sept. 23, 1975, No. 513, § 4, 1975 Ala.Acts 1149, 1150 (codified at Ala.Code § 6-5-482 (1975)).

Prior to the enactment of Act No. 766, the issue of fraudulent concealment was raised in the case of Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940). The physician was sued by the plaintiff in the Hudson case for leaving a gauze sponge in the plaintiff’s body. The operation occurred in 1923 and the suit was brought in 1938. The sole inquiry by the Court in Hudson was whether the facts as set out by the plaintiff prevented the running of the statute until the discovery of the cause of action which was alleged to have been within 12 months before the suit was brought. In Hudson this Court noted:

“Fraudulent concealment implies knowledge of the facts concealed. This is settled in our decisions as elsewhere. Jordan & Sons v. Pickett, 78 Ala. 331; Southern Land Development Co. v. Meyer, 230 Ala. 40, 159 So. 245; Griel v. Lomax, 89 Ala. 420, 6 So. 741; Lovell v. Smith et al., 232 Ala. 626, 169 So. 280; Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 191 So. 352, 355....
“Our statute, Code [1923], 8966, postponing the running of the statute in cases of fraud, reads: ‘In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.’
“While the statute is usually applicable to cases wherein fraud is the basis of the cause of action, it is the settled construction that its purpose is to make available at law the rule theretofore prevailing in equity; and applies to a fraudulent concealment of the existence of a cause of action from the party in whose favor the cause of action exists. A party cannot profit by his own wrong in concealing a cause of action against himself until barred by limitation. The statute of limitations cannot be converted into an instrument of fraud. Moses et al. v. St. Paul, et al., 67 Ala. 168; Peters Mineral Land Co. v. Hooper, supra [208 Ala. 324, 94 So. 606]; Roquemore v. Sovereign Camp, W.O.W., 226 Ala. 279, 146 So. 619.
“Where confidential relations exist, as between physician and patient, the duty to disclose may render silence fraudulent, but knowledge of the facts is a necessary element of fraudulent concealment.
“In certain pleadings, designed to excuse delay in bringing the suit, plaintiff seeks to invoke actual fraudulent misrepresentation, defined by statute in these words: ‘Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.’ Code 1923, § 8049.”

239 Ala. at 132-133, 194 So. at 148-149. The trial court, in Hudson sustained the defendant’s demurrers and this Court affirmed on the ground that the plaintiff failed to aver the defendant-physician knew he left the sponge in the operation wound. Section 8966, Code 1940, is the forerunner to § 6-2-3, which the appellant urges the Court to apply to the facts in this case.

Although this Court has not directly addressed the principle of fraudulent concealment as it applies to the Medical Liability Act, it was superficially raised in Miller v. Mobile County Board of Health, 409 So.2d 420 (Ala.1981). In Miller, the plaintiff alleged fraudulent concealment by the manufacturer of possible side effects and dangers of an intra-uterine device. With regard to that allegation, this Court observed:

"... The Board of Health contends that the statute of limitations applicable to actions against medical institutions can in no event be commenced more than four years after the injury occurs. See Code 1975, § 6-5-482. We do not need to address this issue since it is not essential to the resolution of this action. Even if § 6-2-3 extended the statute of limitations for actions against medical institutions, the complaint failed to allege fraudulent concealment sufficiently. Thus, even if the time for bringing an action under § 6-5-482 could be extended beyond four years, the complaint does not state sufficient grounds for such an extension under § 6-2-3.”

409 So.2d at 422. This statement by the Court as to the possible extension under § 6-2-3 of the four-year statute of limitations of the Medical Liability Act is merely illustrative, and is not indicative of this Court’s predisposition in cases involving alleged fraudulent concealment.

II

We turn now to the construction of § 6-5-482 and whether fraudulent concealment tolls the statute of limitations in medical malpractice suits, thereby making § 6-2-3 the appropriate limitations period, or whether § 6-5-482 creates an absolute bar to all medical malpractice claims which are brought more than four years after the cause of action accrues.

The construction of subsection (b) of § 6-5-482 is determinative of the outcome of this case. Section 6-5-482(b) reads:

“Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions, namely, sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30 and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action.”

The touchstone of legislative construction is to ascertain and effectuate the intent of the legislature as expressed in the statute. See, e.g., Darks Dairy, Inc. v. Alabama Dairy Commission, 367 So.2d 1378, 1380 (Ala.1979). Moreover, in determining legislative intent, courts may look to the history of the statute and the purpose sought to be accomplished. State v. T.R. Miller Mill Co., 272 Ala. 135, 139, 130 So.2d 185,-188 (1961). The forerunner of § 6-5 — 482(b), § 2 of Act No. 766, provided that actions for medical malpractice were “subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions; namely Title 7, Sections 18, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 40, 42, 43, 44, 47, 48 of the Code of 1940.” When the Medical Malpractice Act was enacted in 1975, the legislature specifically added the proviso stating “... that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission or failure complained of.... ” (Emphasis added.) The appropriate office of a proviso is to restrain or modify the enacting clause, or preceding matter, and should be so confined, unless it is apparent it should apply to some other matter. Touart v. American Cyanamid Co., 250 Ala. 551, 555, 35 So.2d 484, 486 (1948). While it is likely that fraudulent concealment would have tolled the operation of the statute of limitations under the terms of Act No. 766, thus making the one-year discovery rule the applicable period in which to commence an action (Title 7, § 42 being the predecessor to § 6-2-3), we construe § 6-5 — 482(b) and the proviso therein as barring recovery for all medical malpractice actions commenced more than four years after the wrongful act or omission producing the injury.

In shortening the statute of limitations and barring all medical malpractice actions after four years, the legislature, as did other state legislatures, responded to a nationwide medical malpractice crisis caused by proliferating malpractice claims and sizea-ble malpractice verdicts. The policy considerations of the Medical Liability Act are expressed in the legislation itself. Section 2 of Act No. 513 reads:

“It is hereby declared by the Legislature of the State of Alabama that the availability of medical liability insurance at reasonable rates for the medical profession, medical institutions, and other health care providers is essential to provide adequate health services to the people of Alabama, and without such insurance, medical services by the medical profession may be curtailed, and that while the need for such insurance is increasing, availability is limited and likely to become increasingly so, unless remedial legislation is enacted. The Legislature further finds and declares that by reason of complicated and highly technical medical concepts, and the existence of sophisticated medical techniques, decisions with respect to optional procedures of diagnosis and treatment have become increasingly complex and are necessarily made on the basis of professional judgment, on which opinions may and often will reasonably vary. It is the purpose of this act to insure that the citizens of the State of Alabama are able to receive necessary health services by providing an environment in which the medical profession can be assured of medical liability insurance coverage and be afforded reasonable protection against personal liability for consequences proximately resulting from decisions with respect to diagnosis and treatment arrived at in the bona fide exercise of professional judgment.”

1975 Ala.Acts 1149.

The prescription of a reasonable date and time for bringing a particular cause of action is within the inherent power of the legislature. The Court has held:

“It is the prerogative of the legislature to fix the time in which causes of action must be commenced. A plaintiff’s delay in asserting a right within the time prescribed by the legislature may be fatal to his suit, and no court will excuse his delay if the time provided is reasonable, reasonableness being primarily a legislative matter.”

Plant v. R.L. Reid, 294 Ala. 155, 160, 313 So.2d 518, 522 (1975). See also Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972).

In view of the policy expressed by the legislature as set out in the Medical Liability Act, and in view of the fact that the reasonableness of the period of time allowed a party to bring a suit is primarily a legislative matter, we determine that the four-year limitations period set out in the act is reasonable.

Furthermore, our research indicates that each of our bordering and several of our neighboring states have enacted statutes which control the commencement of malpractice actions. This research shows that of these eight states, all but two, Kentucky and Mississippi, have special provisions for either fraudulent concealment or foreign objects left in a patient’s body or a combination of both. The legislature, as it has the authority to do, could have determined that the four-year limitations period was reasonable because it believed an injury sustained by a patient caused by an allegedly negligent act of a physician, irrespective of fraudulent concealment, would generally become manifest within four years. Indeed, the facts of this case suggest that despite the two misdiagnoses by the two physicians as to the cause of appellant’s pain, the needle remnant’s presence was nevertheless manifest within the four-year period. Hence, we conclude that had the legislature intended fraudulent concealment or the act of leaving foreign objects in a patient’s body to lengthen the period of commencing medical malpractice actions, the legislature could have included a specific provision in the Medical Liability Act to accomplish that purpose.

As for appellant’s final contention that the Medical Liability Act is unconstitutional as an arbitrary classification, we note:

“A state is not prohibited upon constitutional grounds from making classifications of persons and objects, or from passing laws which apply only to persons within a designated class. Classification is an inherent power of the Legislature but it must not be arbitrary or unreasonable. In order to justify interference by the courts with the wide discretion which the Legislature has in such matters, it should appear that the interests of those generally affected by the act, as distinguished from those of a particular class, require such interference. In Re: Opinion of the Justices, 252 Ala. 559, 561, 42 So.2d 56 (1949).”

Sellers v. Edwards, 289 Ala. 2, 6, 265 So.2d 438, 440 (1972).

Appellant is likewise directed to our holding in Reese v. Rankin Fite Memorial Hospital, 403 So.2d 158 (Ala.1981), from which we take the following quotation:

“We note that a number of other states passed similar legislation during this period. While we might have drafted a different act, we cannot substitute our judgment for that of the legislative branch, whose enactments come to us clothed with a presumption of validity. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), stated this principle as follows:
“ ‘At the outset reference may be made, as is often done, to the principles by which courts are guided when it is sought to strike down as violative of the constitution a legislative act. Uniformly, the courts recognize that this power is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283.
“ ‘Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom.’

246 Ala. at 9-10, 18 So.2d 810.

“We hold that the Medical Liability Act does not offend either the due process or the equal protection provisions of the state or federal constitutions." (Emphasis added.)

403 So.2d at 161-162.

Therefore, summary judgment was properly granted by the trial court as to both appellants on the ground that this action is barred by the four-year provision of § 6-5-482.

AFFIRMED.

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

      . Arkansas, See Ark.Stat.Ann. § 34-2616 (1981 Supp.);
      Florida, See, West’s F.S.A. § 95.11(4)(b) (1982);
      Georgia, See, Ga.Code 9-3-71 and 9-3-72 (1981);
      Kentucky, See Ky.Rev.Stat. § 413.140(2) (1982 Supp.);
      Mississippi, See Miss.Code Ann. § 15-1-36 (1982 Supp.);
      North Carolina, See N.C.Gen.Stat. § l-15(c) (1981 Supp.);
      South Carolina, See S.C.Code Ann. § 15-3-545 (Law.Coop.1981 Supp.);
      Tennessee, See Tenn.Code Ann. § 29-26-116 (1955).


author: ALMON, Justice. BEATTY, Justice

text:
    Sylvia TUCKER, et al. v. ALABAMA POWER COMPANY.
    81-343.
    Supreme Court of Alabama.
    Jan. 7, 1983.
    R. Ben Hogan, III, of Hogan, Smith & Alspaugh, Birmingham, and Benny L. Roberts, Gadsden, for appellants.
    James H. Miller, III, of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   ALMON, Justice.

Summary judgment for defendant is affirmed on the authority of Simpson v. City of Montgomery, 282 Ala. 368, 211 So.2d 498 (1968).

The plaintiff, Sylvia Tucker, filed a complaint for damages alleging that defendant,Alabama Power Company, had negligently placed a power pole “in the median of Meighan Boulevard in dangerous proximity to motor vehicle traffic travelling on Meighan Boulevard and as a proximate cause of said negligence plaintiff [operating a motor vehicle] struck the power pole causing [specified injuries and damages].” Alabama Power Company filed an affidavit of its employee James D. Carlisle which included a map showing the pole to be approximately in the center of the median, six feet from one curb, seven feet three inches from the other, and forty-five feet from the end of the median. The map also shows a seven and one-half inch granite curb as the “typical curb layout.” These measurements are uncontested.

In Simpson, supra, plaintiff’s

“... automobile collided with an unlighted utility pole situated on the median separating East bound and West bound lanes for vehicular travel on said Highland Avenue, which said pole was located approximately 2 feet 7 inches from the East curb line of a four inch high granite curb of said median and approximately 4 feet 3 inches from the North curb line of said four inch high granite curb of said median and approximately 19 feet from the South curb line of said four inch high granite curb of said median ... . ”

282 Ala. at 370, 211 So.2d 498.

It is clear under the facts of this case that Alabama Power Company is not guilty of negligence. Therefore, there is no need to reconsider the Simpson case.

The judgment of the circuit court is therefore affirmed.

AFFIRMED.

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

BEATTY, J., dissents, joined by FAULKNER, EMBRY and ADAMS, JJ.

BEATTY, Justice

(dissenting):

It is difficult to rationalize the majority’s upholding of Simpson. To say that a power company cannot as a matter of law be negligent for its placement of a power pole in the median of a traveled highway flies in the face of reality. Had this same pole been placed on the shoulder of the highway the question of negligence would have been a question for the jury, and clearly both the “shoulder” and the “median” pose the same hazards and dangers for the traveler. Ordinarily, a plaintiff may recover for injuries proximately caused by the negligent placement or maintenance of a power pole, if the pole is located in close proximity to a public way or highway so as to be dangerous to the public in the legitimate use of the highway. Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659 (1940); City of Prichard v. Alabama Power Co., 234 Ala. 339, 175 So. 294 (1937); Gilbert v. Southern Bell Telephone & Telegraph Co., 200 Ala. 3, 75 So. 315 (1917).

The dissent in the Simpson case was directly on point in stating the following:

“In Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659, the Court upheld a jury verdict for the plaintiff where a pole was located approximately the same distance from the traveled portion of the road as was the pole in the instant case. The only difference is that one pole was on a shoulder and the other on a median.
“The majority opinion, when stripped, says that from this day forward there can be negligence on the part of one placing a pole in Alabama, if that pole is placed on a shoulder; but there cannot be negligence on the part of one placing a pole in Alabama, if that pole is placed on a median — no matter where.
“Medians do not necessarily have curbs, and poles can be located around blind corners within medians. Medians are constructed in many different ways and shapes. Medians will continue to be constructed in new and different ways in the future. The mind can fashion hundreds of future happenings where a pole, carelessly placed in a median, will cause injury and death to the innocent. The majority opinion grants free license to the pole placer within a median but restricts him to the scrutiny of a jury on a shoulder. I fail to see the difference....’’ Simpson, 282 Ala. at 374-75, 211 So.2d at 503.

Finally, the Court in Simpson as well as this Court should have considered the case of Alabama Power Co. v. Jackson, 24 Ala. App. 86, 131 So. 244, cert. denied, 222 Ala. 143, 131 So. 246 (1930). In that case plaintiff was allowed to recover for personal injuries resulting from the power company’s negligent placement of a power pole and power lines in the vicinity of a known dead tree next to the roadway. The dead tree was blown down onto the wires thereby causing them and a power pole to fall onto the highway and against plaintiff’s car. The court stated:

“We are of the opinion that the right of the power company to erect and operate towers, poles, and wire lines across, along and on public roads, did not excuse it from the exercise of ordinary care to prevent injury to others rightfully using the highway, and it was for the jury to determine from all the evidence whether the defendant exercised ordinary care in locating its said line or transmission wires on the side of the road where it was placed. If the defendant in the exercise of ordinary care should have placed its poles and wires on the opposite side of the highway, and it failed to do so, it would be guilty of negligence....” (Emphasis added.) Alabama Power Co., 24 Ala.App. at 88, 131 So. at 245.

I believe that the issue of negligence should reach the jury; therefore, for the reasons enumerated, I respectfully dissent.

FAULKNER, EMBRY and ADAMS, JJ., join in the above.


text:
    GENERAL TELEPHONE COMPANY OF THE SOUTHEAST v. ALABAMA PUBLIC SERVICE COMMISSION.
    81-450.
    Supreme Court of Alabama.
    Jan. 7, 1983.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Wayne L. Goodrum, Durham, N.C., for appellant.
    Euel A. Screws, Jr., and James M. Edwards of Copeland, Franco, Screws & Gill, Montgomery, for Alabama Public Service Com’n.
    Deborah Hill Biggers and Mark D. Wilkerson, Montgomery, for public staff of Alabama Public Service Com’n.
    Charles A. Graddick, Atty. Gen., and Charles A. Guyton, Wendell Cauley and Thomas F. Parker, IV, Asst. Attys. Gen., for State of Ala. and the other affected customers of General Tel. Co. of the Southeast.
   PER CURIAM.

This case is remanded to the Alabama Public Service Commission for reconsideration of its zero order in light of this Court’s opinion and order in General Telephone Co. of the Southeast v. Alabama Public Service Commission, 424 So.2d 1288 (Ala.1982) (rehearing overruled this date).

The Commission is hereby directed to make and file in this Court within 28 days from the date of this opinion a report concerning its reconsideration on remand of this ease, and the application for supersede-as is hereby continued subject to that report.

REMANDED WITH INSTRUCTIONS.

All the Justices concur.


author: SHORES, Justice.

text:
    COURTESY FORD SALES, INC. v. George W. CLARK, Jr., and Louise H. Clark.
    81-42.
    Supreme Court of Alabama.
    Jan. 21, 1983.

      Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    J. Paul Lowery, Montgomery, for appel-lees.
   SHORES, Justice.

This is an appeal by defendant Courtesy Ford Sales, Inc., from a judgment rendered on a jury verdict against it for alleged tortious or fraudulent misrepresentation in connection with the sale to the Clarks of a 1978 Winnebago.

The Clarks purchased the 1978 Elanden II Winnebago from Courtesy Ford Sales for an agreed price of $36,179.00. The purchase price was made up of the trade-in of an older recreational vehicle, some cash, some borrowed funds, and the payoff by Courtesy Ford Sales of the remaining financed balance of the old trade-in vehicle. The persons primarily involved in the sale were Pete Perry, salesman, and Glenn Cook, credit manager.

The vehicle had been received by Courtesy Ford Sales a few months earlier from the manufacturer. While it was being brought from the RV (recreational vehicle) sales lot to the main service garage for routine preparation, a driver/employee turned too sharply entering the garage and scraped the lower right rear side of the vehicle against the door frame of the building.

The exact extent of the damage caused by the collision was disputed, but it is undisputed that a fiberglas panel was replaced with a new panel. Other repair work, including touch-up paint work, was also performed, all at Courtesy Ford’s service shop. The work was done at the direction of William Cochran, the general manager of Courtesy Ford Sales, by Dave Daniels, the recreational vehicle service manager. The vehicle was then sold as a new unit to the Clarks, who were not informed of the damage to the vehicle.

The Clarks experienced problems with the vehicle over a two-year period. After about two years, the Clarks were informed of the damage to the vehicle by Dave Daniels, who had since left the employment of Courtesy Ford Sales.

The Clarks then brought this action against Courtesy Ford Sales; Pete Perry, the salesman; and Glenn Cook, the credit manager. The case was tried only upon a fraud count. The jury returned a verdict of $4,000 compensatory and $50,000 punitive damages against Courtesy Ford Sales, but returned a verdict in favor of the two employees.

After denial of the defendant’s motions for new trial, JNOV, and remittitur, Courtesy Ford Sales filed this appeal. We reverse.

Courtesy Ford first argues that the. verdict, being in favor of the two individual defendants but against their corporate employer, is inconsistent and due to be set aside. Appellant cites as authority for this argument this Court’s opinion in Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613 (Ala.1981), wherein we held:

“ ‘The rule that prevails is that, when the principal and his agent are sued in joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.’ ”

404 So.2d at 614, quoting Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938). In Larry Terry Contractors, however, the case was tried solely upon a theory of respondeat superior. The Court recognized in that case that, in a case properly grounded on theories other than vicarious liability, a principal may be liable where the agent is exonerated (citing Otts v. Gray, 287 Ala. 685, 255 So.2d 26 (1971)). Such a case exists where the principal participated in the tort to such an extent that he may be considered a joint tortfeasor. Liability in such a case, whether grounded in negligence or for willful conduct, is joint and several. Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966).

A judgment in favor of one of the tortfeasors operates as no defense to liability on the part of the other tortfeasors unless such others are liable only through the doctrine of respondeat superior. Brooks v. City of Birmingham, 239 Ala. 172, 194 So. 525 (1940). In other words, on appeal our review is whether there exists any evidence from which the jury could infer concurrent participation by the corporate employer to render it a joint tortfeasor, and whether the case was given to the jury on the possibility of such a finding.

Both exist in the instant case. The record discloses testimony that the damage to the vehicle was known to several of the employees of Courtesy Ford Sales, including Dave Daniels and William Cochran, the general manager. Affirmative misrepresentation is not the only basis for fraud, which can also exist in the concealment of material facts for which there is a duty to disclose. Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83 (Ala.1980); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

Mr. Cochran’s testimony that he thought the damage was minor and the replacement of parts at Courtesy Ford was done as skillfully as it could have been at the factory goes to the question of the materiality of the facts concealed and not the duty to disclose those facts. The materiality of the facts is a question for the jury, and we can only infer that the jury found the concealment of the damage to be material.

There is also evidence in the form of Mr. Cochran’s testimony that Dave Daniels took part in the sale. Mr. Cochran testified that:

“He [Daniels] on two different occasions came up to my office to tell me that he — and this is prior to actually consummating the sale — that he had convinced Mr. Clark to buy the motor home.”

We think from this evidence that the jury could conclude that Courtesy Ford’s involvement in the fraud went beyond the two individual defendants, Perry and Cook, so as to make the corporate employer a joint tortfeasor in the misrepresentation.

Further, the jury was properly instructed on this issue. The trial judge instructed the jury that they “may find against only one or two or three of the Defendants and you may find in favor of one or two or three of the Defendants.”

For these reasons, the jury verdict against Courtesy Ford Sales but in favor of Perry and Cook is not inconsistent.

Courtesy Ford next argues that there was no evidence from which the jury could award punitive damages. Also, it says, if there was any such evidence, it was improper and inadmissible and constitutes reversible error. We agree.

In this jurisdiction, punitive damages are recoverable if the evidence establishes an intent to deceive or defraud. Big Three Motors, Inc. v. Smith, 412 So.2d 1222 (Ala.1982). When a claim is made for punitive damages, proof of similar misrepresentations may be offered to show intent to deceive. Cooper & Sons Motor Co. v. Klepsig, 24 Ala.App. 297, 135 So. 427 (1930). The other fraudulent transactions, however, must be established by admissible evidence; mere rumor of fraud on the part of the party is not admissible evidence and cannot serve as a basis for finding fraud in a later transaction. Shelby Mutual Insurance Co. v. Ralston, 369 So.2d 285 (Ala.Civ.App.1979).

In this case, Dave Daniels was allowed to testify concerning three other recreational vehicles that were damaged on the lot and repaired by him. The testimony of each instance was detailed and over proper objection of Courtesy Ford Sales. From this evidence the jury was asked to infer fraud in the sale of the vehicle to the Clarks, based upon other instances of similar frauds.

Mr. Daniels testified only that he had repaired other vehicles, but expressly stated that in each of these three other transactions, he knew nothing of the circumstances of the sale. Specifically, he testified:

“Q. Mr. Daniels, they also, Courtesy Ford sells used units?
“A. Yes, sir.
“Q. And you know absolutely nothing about the circumstances of the sales of these three other units, do you?
“A. I had nothing to do with sales at all.
“Q. And so you are not even here, under all of this, trying to tell the jury that you know one thing about the sales of those units or whether the price was reduced or the customer said that’s fine with me or anything else, do you?
“A. I don’t know anything about them.”

Mr. Daniels could not testify whether the damaged units were sold as new or used or whether the customers in each instance were informed of the damage to the vehicles. This evidence falls short of establishing fraud in similar transactions which is admissible to prove intent to defraud in the present transaction. It merely established that Courtesy Ford had sold repaired vehicles in the past. Whether it misrepresented to the purchasers that they were new is, at best, mere speculation.

That is not to say that there is no evidence in the record which would have supported the jury’s award of punitive damages; neither can we say that the jury would have awarded punitive damages in the absence of the inadmissible evidence. We simply hold that the admission of this particular evidence was so tainted as to constitute reversible error.

Having found reversible error, we hold that the appellant is entitled to a new trial. So holding, we need not address the error vel non in the admission of certain other evidence. We, therefore, reverse and remand the cause for a new trial.

REVERSED AND REMANDED.

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


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    Brent Michael GALLAGHER v. STATE.
    81-310.
    Supreme Court of Alabama.
    Jan. 21, 1983.
    Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

Brent Michael Gallagher, a juvenile, appeals an order issued by the Juvenile Court of Mobile County following a transfer hearing. The question presented for review is whether Gallagher was denied an adjudication hearing as to his guilt or innocence for the crime of murder. We reverse and remand.

On Halloween night 1981 appellant, along with two other juveniles, was involved in the shooting death of Melvin Price. On November 2, 1981, Brent Gallagher was charged with being a delinquent in relation to that incident and on the following day a motion to transfer Gallagher for criminal prosecution as an adult, pursuant to Code of Ala.1975, § 12-15-34, was filed by the Mobile County prosecutor. On December 8, following a hearing on the motion to transfer, a written order was issued by the trial court (1) denying the motion to transfer, (2) finding a true complaint as to the allegations of the petition, and (3) scheduling the matter for a dispositional hearing to be held on December 30, 1981. On December 30 Gallagher’s attorney made a timely objection to the court’s sentencing his client under the finding of a true complaint on the ground that the December 8, 1981, hearing was on a motion to transfer filed by the state and that at that time no hearing or trial was held on the merits of the petition against his client. Further, as stated in the record, the attorney argued:

“that at said Motion to Transfer hearing, no testimony was taken inquiring into the habits, surroundings or conditions of Brent Gallagher’s life style or home life, in order to enable the Court to determine whether Brent Gallagher is delinquent, and in order for the court to determine what order or judgment would best conserve the welfare of Brent Gallagher. In addition, at the said hearing to transfer no order was entered finding a true complaint on the Petition JU-81-802-.01, and that due to the nature of the transfer hearing, Brent Gallagher did not present evidence in his behalf addressing the merits of said petition, Number JU-81-802.-01, especially in light of the fact that said motion to transfer was denied.... ” (Emphasis added.)

The court at the close of the transfer hearing stated: “As to Case Number JU-81-802.01, involving Brent Michael Gallagher, the Court denies the Motion to Transfer and determines he can be handled as a juvenile; sets the matter down for a dispo-sitional hearing on December 30, 1981, at— give you morning or afternoon, Mr. Haas.” Following the transfer hearing, the trial court’s written order added “and does find a true complaint as to the allegations of the petition charging the offense of homicide.”

The dispositive issue on appeal is whether the trial court erred in finding a true complaint as to the allegations of the petition in the written order issued following the hearing held on the motion to transfer.

The State has not joined issue on this point. Instead, by letter brief, they contend along with Gallagher that there is no justification in the statutes, rules or case law for the short cut taken in dispensing with a hearing or trial on the merits of the petition. The evidence presented at the December 8 hearing was solely to determine whether juvenile court jurisdiction should be retained or whether Gallagher should be transferred. The purpose of a transfer hearing has been stated by this court as being to establish whether there is probable cause for a child to be transferred from juvenile court for criminal prosecution as an adult. It is not a hearing to adjudicate the guilt or innocence of a child. Brown v. State, 353 So.2d 1384 (Ala.1978); Gulledge v. State, 419 So.2d 219 (Ala.1982).

Rule 25, Alabama Rules of Juvenile Procedure, states in pertinent part:

“(A) At any hearing other than to transfer to another court, the court may handle all matters at one time or in phases.” (Emphasis added.)

Further, Code of Ala.1975, § 12-15-65, specifies the requirements that must be met in conducting hearings and in the disposition of juvenile cases. The parties must be advised of their rights, informed of the specific allegations in the petition, and given an opportunity to admit or deny such allegations. Following a presentation of competent, material, and relevant evidence the court must find that this evidence proved beyond a reasonable doubt that the child committed the acts alleged in the petition. It is only then that the court can proceed to make proper disposition of the case.

After a review of the record we conclude that the evidence presented at the December 8, 1981, transfer hearing was presented to defend the motion to transfer and to prevent the appellant from being transferred to the circuit court. This is a separate issue from whether or not there is a true complaint as to the allegations of murder in the petition. Appellant was not afforded an opportunity to present evidence in his own behalf upon which the trial court could properly determine his guilt or innocence. This case is therefore due to be reversed and remanded for an adjudication hearing to be held on the merits of the petition. It is so ordered.

REVERSED AND REMANDED.

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


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    Martha S. DUNN v. Bama F. SYRING, as Executrix of the Last Will and Testament of Calvin P. Syring.
    81-421.
    Supreme Court of Alabama.
    Jan. 21, 1983.
    Perry Hubbard and Jay Guin of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellant.
    Nathan G. Watkins, Jr., of Pruitt, Pruitt, Watkins & Robinson, Livingston, for appel-lee.
   MADDOX, Justice.

The issue before this Court is whether sending into the jury room a written instruction, which represented only a portion of the trial court’s entire charge, violated ARCP 51, and, thereby constituted reversible error.

This controversy arose out of a will contest in Sumter County. The appellant, Martha S. Dunn, challenged the validity of her father’s last will and testament. The appellee, Bama F. Syring, is the widow of the decedent, Calvin P. Syring. On September 9, 1980, she filed in the Probate Court of Sumter County the purported last will and testament of the decedent. Martha Dunn filed a contest of that will on October 22, 1980, citing as grounds for the challenge the decedent’s alleged incapacity and the appellee’s alleged exercise of undue influence upon the decedent.

The case was tried before a jury. After retiring to the jury room, the forewoman requested that the trial judge answer a question regarding undue influence. The court responded by sending into the jury room a handwritten copy of Alabama Pattern Jury Instruction 38.309. During the oral charge, the court had read this instruction to the jury. Counsel for the appellant made a timely objection to the court’s action and the record indicates the following discussion occurred:

“MR. UPCHURCH: We object to the giving the charge in writing to the jury on the grounds that it tends to single out and give too much weight to one portion of the Judge’s charge, and on the further ground that the charge as written out is only part of the charge and is unduly restrictive.
“THE COURT: Let the record show that the jury requested a definition of undue influence and I wrote out Alabama Pattern Jury Instruction 38.309 and gave that to the jury and this is the objection that Mr. Upchurch makes to me giving that written instruction to the jury. Deny your objection.”

The grounds the appellant stated are in essence an application of ARCP 51. In part the rule states, “Neither the pleadings nor ‘given’ written instructions shall go into the jury room.” ARCP 51. The reason for this prohibition is explained in the commentary following the rule:

“This rule does not preserve the former requirement that instructions be taken by the jurors to the jury room. If the written charges requested by the parties deal only with certain portions of the law, as indeed they would, they should not be submitted to the jury when the court’s oral charge cannot likewise be submitted to the jury. If the court’s oral charge is to be given as much weight and consideration by the jury as the written charges, only a part of the overall charge should not go to the jury. The rule also bars pleadings from the jury room.”

ARCP 51, Committee Comments.

Permitting the written answer to the jury's question is reversible error, per se, under ARCP 51. Caron v. Teagle, 408 So.2d 494, 496 (Ala.1981).

This case is due to be reversed and a new trial ordered.

REVERSED AND REMANDED.

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


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    Earl J. DOUGHERTY v. Doris Ann HOVATER.
    81-568.
    Supreme Court of Alabama.
    Jan. 21, 1983.

      Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellant.
    H. Neil Taylor, Russellville, for appellee.
   BEATTY, Justice.

Plaintiff appeals from a decree dividing certain property between himself and his late wife’s daughter. We reverse in part and remand.

The plaintiff, Earl J. Dougherty, married Annie Lee Dougherty (“decedent”) in 1966. She had a daughter by a previous marriage, the defendant, Doris Ann Hovater. At the time of her second marriage, the decedent owned a house. In 1970 she conveyed this house to herself and her husband, the plaintiff, as joint tenants with right of survivor-ship. In 1973 the plaintiff’s aunt died and left a will by which the plaintiff and his wife received certain corporate stock. On September 13, 1976, the decedent executed her own will, leaving all of her property to her daughter, the defendant.

On August 7, 1979, the plaintiff and his wife entered into a real estate sales contract to buy a house and lot. Subsequently the plaintiff borrowed $9,000 and paid approximately $10,000 for the purchase price of the property under the contract. At this time the decedent entered the hospital. While there she gave her daughter a general power of attorney for her to complete the real estate sales transaction. The loan was closed and the deed delivered on October 4, 1979. The conveyance was made by an ordinary warranty deed, not by a survivor-ship deed, contrary to what the plaintiff says was his understanding. On October 16,1979, the decedent died, leaving her 1976 will.

The plaintiff then rented the house he had bought, apparently having spent $242.80 on maintenance before his wife’s death. He paid the mortgage, taxes and insurance and borrowed $1,500 for a home insulation loan. This amount he is repaying by $21 monthly payments on his utility bill.

In March 1981 the plaintiff filed the present action seeking (1) a declaration that the defendant has no title to the property acquired in 1979 and reformation of the 1979 deed to be a survivorship deed or (2) an order that the defendant reimburse the plaintiff for 50% of the purchase price and expenses incurred for the property. The defendant counterclaimed seeking (1) an order setting aside the 1970 deed as induced by undue influence and (2) a sale for division of the 1979 property and an accounting for rents. (Other claims concerning personal property are not relevant here.) The pleadings made no mention of the corporate stock bequeathed in 1973 by the plaintiff’s aunt. However, at trial there was testimony concerning the stock.

The trial court denied the plaintiff’s request for reformation of the 1979 deed, denied defendant’s request to have the 1970 deed set aside, ordered the 1979 property sold and the equity divided between the parties and ordered sale of the corporate stock for equal division of the proceeds. The trial court also ordered that the plaintiff was entitled to the rents he had collected as compensation for “taxes, insurance and upkeep and mortgage payments on the said property.”

The plaintiff does not appeal the denial of reformation of the 1979 deed. With respect to that conveyance the only claim the plaintiff raises on appeal is that he did not receive reimbursement for one-half the purchase price and expenses he paid. The plaintiff also claims that the trial court erred in ordering sale of the corporate stock and in ordering a partition sale of the 1979 property.

The plaintiff claims reimbursement for the purchase price of the property acquired in 1979. Assuming arguendo that the entire purchase price came from the separate funds of the plaintiff, we do not find that the plaintiff has any claim to reimbursement. Under the 1979 deed he and the decedent took as tenants in common with no right of survivorship. Thus, what passed to her devisee, the defendant, was an undivided one-half interest, unencumbered by any debt to the plaintiff. What the plaintiff did not require in compensation from his wife he cannot require of his wife’s devisee. As the defendant argues, to require her to compensate the plaintiff for one-half of the purchase price would in effect convert the 1979 deed to a survivorship deed by which the plaintiff acquired a fee simple interest in the property upon his wife’s death. The plaintiff has not appealed the refusal to reform the deed to make it a survivorship deed, and thus there is no basis for seeking reimbursement for one-half the purchase price.

The cost of maintenance and improvements is a different matter. The parties agree on the applicable rule of law: “[Compensation for improvements erected on land will be allowed the improving co-tenant only when he was without knowledge of any outstanding interest and, bona fide, believed himself to be the owner of the property.” Smith v. Persons, 285 Ala. 48, 56, 228 So.2d 806 (1968). The trial court did not explicitly apply this standard but simply ruled that the plaintiff was entitled to retain the rents he had collected as compensation for taxes, insurance, mortgage payments and upkeep. This finding presupposes that under Smith v. Persons, supra, the plaintiff incurred the expenses in the bona fide belief that he owned the property.

The error claimed by the plaintiff in this ruling is that the court did not allow compensation for the $1,500 home insulation loan. He testified that the rents he had collected approximately offset the amounts he had spent for taxes, insurance, maintenance and the mortgage payments. Clearly, if the plaintiff was entitled to reimbursement for these expenses then he was also entitled to reimbursement for the home insulation loan, which was an expense for an improvement on the property. The figures given in the record seem to support the plaintiff’s contention, and the defendant does not demonstrate otherwise. We agree with the defendant that the trial court’s ruling must be sustained on appeal if any good ground is presented for its support, whether or not such ground is stated in the decree, e.g., Pizitz v. Ryan, 403 So.2d 222 (Ala.1981). However, we can see no good ground supporting this aspect of the trial court’s decision, which appears internally inconsistent. Therefore, the action must be remanded for the plaintiff to receive compensation for his allowable expenses out of the proceeds of the sale to the extent that such expenses were not satisfied by the rents he collected. See Staples v. Pearson, 230 Ala. 62, 159 So. 488, 491 (1935) (rents collected by co-tenant were not due to other co-tenants until he had received enough rent to reimburse himself for lawful charges).

The plaintiff argues that the trial court erred in ordering sale of the corporate stock. As noted above, this matter was not raised in the pleadings. At trial the plaintiff was cross-examined concerning the following provision in his aunt’s will of 1973: “I give and bequeath all of my United Fund Stock, all of my Consumers Power Company common stock and all of my Consumers Power Company preferred stock to my nephew, Earl J. Dougherty and his wife, Annie Lee Dougherty, or to the survivor of them. If neither survives me, then this bequest shall lapse and this property shall be distributed under the residuary clause of this Will.” On cross-examination the plaintiff. testified that there was no United Fund stock; “after it was cleared up there was none available.” He testified that he had not offered to deliver any of the stock to the defendant and had not called it to her attention since his wife’s death. The record contains a letter stating that the Consumers Power Company stock is registered as follows: “Earl J. Dougherty & Annie Lee Dougherty TEN ENT.” From this the plaintiff states that it is undisputed that the Consumers Power Company stock was held by Mr. and Mrs. Dougherty as tenants by the entirety and that they never received any United Fund stock.

The plaintiff’s threshold argument on the trial court’s ruling concerning the stock is that this issue was not properly raised at trial. The defendant responds that the issue was tried by the consent of the parties under Rule Í5(b), ARCP, which provides: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The plaintiff disagrees that the issue was tried by consent, stating that he “was prejudiced by its inclusion, quite unexpectedly, in the court’s final decree.” Apparently what the plaintiff would have argued to the trial court was that the entire interest in the corporate stock passed to him under the survivorship characteristic of tenancy by the entireties. The defendant points out that Alabama does not recognize that estate. See Donegan v. Donegan, 103 Ala. 488, 15 So. 823 (1894).

From review of the record it does not appear that the plaintiff impliedly or expressly assented to litigating this issue or that he argued the merits of his position of ownership of the stock to the trial court. Although it is true that Alabama does not recognize the estate of tenancy by the en-tireties, the plaintiff may have had some basis for arguing that the stock was surviv-orship property. The defendant gives us no indication that the trial judge considered this argument. The transcript reveals that only a few minutes of the somewhat lengthy trial were devoted to this issue. In these circumstances the trial court erred when it rendered a decision on this issue without notice to the parties that it was going to do so. Although we recognize that determining when issues have been tried by implied or express consent of the parties under Rule 15(b) is largely within the discretion of the trial court, it does not appear that the court exercised that discretion in an informed manner. For example, he evidently overlooked the testimony that there was no United Fund stock. Although it may have been appropriate to make a disposition of the corporate stock along with the other property, that should not have been done without being clear that the parties understood so that they could apprise the court of their positions. Accordingly, we must remand for the trial court to determine whether or not the corporate stock was survivorship property.

Finally, the plaintiff contends that the trial court should not have ordered sale for division of the 1979 property in the absence of proof that it could not be equitably divided in kind. However, the court could reasonably have made this decision in view of the evidence that the property consisted of a house used for rental purposes.

Accordingly, the action must be affirmed in part, reversed in part and remanded for determination of the matters discussed above. It is so ordered.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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