author: SHORES, Justice.

text:
    SOUTHERN RAILWAY COMPANY, a Corp. v. John H. ROBERTS et al.
    78-354.
    Supreme Court of Alabama.
    Dec. 21, 1979.
    Rehearing Denied Feb. 29, 1980.

      Charles E. Sharp and W. J. Sullivan, Jr., of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellant.
    Prank 0. Burge, Jr., Birmingham, for appellee John H. Roberts.
    J. Ross Forman, III, Birmingham, for ap-pellee United States Steel Corp.
   SHORES, Justice.

This is an FELA case. Plaintiff/appellee John H. Roberts, an engineer for Southern Railway Company, was injured on February 23, 1975, when the train he was operating derailed near Old Fort, North Carolina. The track slopes downhill at that point and curves sharply. It was super-elevated to a height of one inch. A seven-foot section of broken rail was found at the site of the accident. Whether the rail was cause or effect of the accident was an issue at trial. Evidence introduced at trial tended to establish that the train was exceeding the speed limit at the time the accident occurred.

A formal investigation of the accident resulted in Roberts’s discharge for operating the train in excess of the speed limit. His dismissal was upheld by the Railway Adjustment Board. He then filed this action against Southern Railway Company, alleging that his injuries had been caused in whole or in part by Southern’s negligence. Southern filed a third-party complaint against U. S. Steel, the manufacturer of the allegedly defective rail. U. S. Steel and Southern both moved for summary judgment. U. S. Steel’s motion was granted; Southern’s overruled. After a trial on the merits, a jury awarded Roberts $100,000. Southern filed a motion for a new trial, which was denied. This appeal followed.

Southern contends that it is entitled to a new trial for the following reasons: 1) The jury was prejudiced by the cumulative effect of statements made by Roberts’s counsel regarding Roberts’s poverty and the unfair treatment he received from the railroad, the destruction of the allegedly defective rail after testing by Southern, a request that the trial judge control the courtroom, and references to plaintiff’s decreased earning capacity; 2) the verdict was excessive and indicated bias, passion and prejudice against the defendant railroad on the part of the jury; 3) the trial court erred in admitting statements made by Roberts to an examining physician who later testified at trial; and 4) the trial court erred in admitting a statement made by Roberts to the secretary of his treating physician and recorded on Southern’s own injury reporting form. Southern also contends that the trial court erred in overruling Southern’s motion for a directed verdict because the plaintiff did not carry his burden of proving by substantial evidence that Southern was guilty of negligence, and that the trial court’s action in overruling Southern’s motion for summary judgment was inconsistent with its granting of U. S. Steel’s motion for summary judgment because both motions were based on the same proof. For the reasons discussed herein we affirm.

What constitutes negligence for the purposes of the Federal Employers Liability Act is a federal question, and federal decisional law formulating and applying the concept governs. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282, 1295 (1949). The “slight negligence” necessary to support an FELA action is defined as a failure to exercise great care and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions. Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969).

Where a jury verdict has been reached in an FELA case, the reviewing court’s role is limited to ascertaining whether

“. . . the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence. (Emphasis added.)” Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493, 499-500 (1957).

The congressional intent in enacting the FELA was to secure jury determinations in a larger proportion of cases than would be true of ordinary common-law actions. Boeing Company v. Shipman, supra, p. 371. Where a case under the FELA turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947).

The Act itself provides that:

“Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” Title 45 U.S.C. § 51.

An employee’s recovery is not barred by his or her own contributory negligence, but is reduced proportionately. Title 45 U.S.C. § 53.

A careful examination of the record reveals sufficient evidence of defendant’s negligence for the issue to go to the jury under the above principles. Although little evidence was produced supporting plaintiff’s theory that a defective rail caused the accident, he also alleged that the accident could have been caused by inadequate banking of the outside rail on the curve where the derailment occurred or, if the derailment was caused by excessive speed, that Southern pressured its employees to exceed the speed limit, and that Roberts’s fellow crew members failed to warn him that he was going too fast. These contentions are supported by the following evidence: Roberts’s crew members testified that it was their responsibility to warn the engineer if the train exceeded the speed limit, and to brake the train themselves if the engineer disregarded their warning. A considerable amount of expert testimony established that the train was exceeding the limit, yet the crew members testified that no one attempted to slow the train. Witnesses also testified that no one had ever been reprimanded for completing the train run in under the scheduled time, but several had been reprimanded for exceeding it. The track on which the accident occurred was described as descending sharply over a series of curves, and was superelevated (banked) to a height of one inch. Maximum safe speed is progressively higher as the superelevation increases. The train was overpowered, i. e., equipped with more locomotives than necessary to pull its weight, and made up of TTX cars loaded with two piggyback highway trailers each. These cars have a high center of gravity and tend to bounce and oscillate as they negotiate curves.

Faced with this evidence, we cannot say that, as a matter of law, Southern was not negligent, or that its negligence played no part at all in causing Roberts’s injury. The trial judge correctly ruled that a jury question was presented by the evidence.

As to the alleged inconsistency between the granting of U. S. Steel’s motion for summary judgment and the denial of Southern’s, we find there no basis for overruling the decision below. Southern argues that U. S. Steel was granted its motion for summary judgment because no evidence was presented of a defect in the broken rail found at the accident site. Because Southern’s motion for summary judgment against the plaintiff alleged that plaintiff’s complaint was based on the defective rail theory, and no evidence existed as to any defect in the rail, Southern contends that its motion should likewise have been granted. This argument ignores two facts: 1) Roberts proceeded against Southern on several theories of liability in addition to the defective rail hypothesis, and 2) U. S. Steel’s motion could have been granted on grounds other than lack of evidence that the rail was defective.

As discussed above, plaintiff’s complaint alleged that Southern was liable for the negligence of its employees for failing to provide a safe place to work, and for a defect or insufficiency in Southern’s roadbed, tracks and equipment. Southern could have been found liable under any of these theories without U. S. Steel being implicated. Even if the rail were found to be defective, U. S. Steel would be liable only for manufacturing defects, not those caused by improper installation, normal wear-and-tear, or other factors under Southern’s control. Thus, a ruling that U. S. Steel was not negligent would not preclude the possibility that Southern was negligent.

U. S. Steel’s motion alleged that it was entitled to summary judgment because 1) there was no evidence of any defect in the broken rail for which U. S. Steel would be held liable to Southern, and 2) Southern was barred from any remedy against U. S. Steel since it had delayed an unreasonably long time in giving any notice to U. S. Steel of a defective rail, and had discarded the rail prior to giving notice. U. S. Steel was not notified of a possible claim against it until seventeen months after the derailment, sixteén months after the investigation and over a year after the filing of Roberts’s FELA claim. Its motion for summary judgment was supported by the pleadings, by affidavits of its attorneys based on personal knowledge, by excerpts from the transcript of the investigatory hearing, on Southern’s report from its Research and Test Department and by the deposition of plaintiff Roberts. Neither Southern nor Roberts presented any affidavits or other evidence placing in issue any of the facts relied on by U. S. Steel. Southern merely filed its own motion for summary judgment against Roberts, alleging that no defect existed in the rail. ARCP 56(e) provides that “. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis Added) Southern having presented no evidence of any defect in the rail, summary judgment in favor of U. S. Steel was appropriate, but did not dictate a similar disposition of Southern’s motion for summary judgment against Roberts.

We also decline to disturb the jury’s award of damages. Jury verdicts are presumed to be correct, and the presumption is strengthened when the trial judge overrules a motion for a new trial. Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972). Where a jury awards damages, the reviewing court will not substitute its judgment for that of the jury, notwithstanding that it might opine that the jury gave too much. Metzger Bros., Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398 (1972).

As regards Southern’s numerous motions for a mistrial based on allegedly prejudicial statements made by counsel for Roberts during the course of trial and in closing argument, the record fails to show any incidents which warrant reversal. An appellate court is particularly ill-suited to gauge the effect of statements made during the course of trial. For that reason, such matters are left to the sound discretion of the trial judge. Osborn v. Brown, 361 So.2d 82 (Ala.1978); State Farm Mutual Auto. Ins. Co. v. Boyer, 357 So.2d 958 (Ala.1978).

Southern also argues that statements made by Roberts to one of his physicians, Dr. Langford, regarding pain and other subjective complaints experienced by him as the result of the accident were not admissible. Pointing out that plaintiff, who is a resident of North Carolina, was sent to Birmingham by his attorney to be examined by Dr. Langford, Southern contends that Langford was consulted for the sole purpose of qualifying him to testify at trial, rather than for diagnostic and treatment purposes. A medical opinion based solely upon the history and subjective symptoms related to a doctor solely for the purpose of enabling him to testify at trial is inadmissible. Petition of U. S. Steel Corp., 436 F.2d 1256 (6th Cir. 1970). See Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). However, plaintiff contends that Langford was consulted well over two years before trial and was requested to provide any treatment necessary to Roberts. He made recommendations to the plaintiff, and stated at trial that he considered him to be a patient. This is sufficient to uphold the trial judge’s ruling that the statements were admissible. A trial court’s ruling on the admissibility of expert testimony will not be disturbed except where clear abuse of discretion is present. Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972).

Finally, Southern argues that statements made by Roberts which were recorded by the secretary of Roberts’s treating physician on Southern’s own injury reporting form are inadmissible because “self-serving.” The statements complained of contradicted the doctor’s statement that Roberts had not informed him of any injury to his back or ribs. Southern contends that Roberts should have attempted to impeach the doctor with this document when taking his deposition during discovery. In response to this, we note only that if it were error to admit the report, Southern has not demonstrated that it was prejudiced thereby. Thus, the error, if any, in its admission, is harmless. . ARCP 61.

The judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TAYLOR COAL COMPANY, INC., et al. v. James Pugh PEARSON, Jr., et al. James Pugh PEARSON, Jr., et al. v. TAYLOR COAL COMPANY, INC., et al.
    Nos. 78-346, 78-415.
    Supreme Court of Alabama.
    Feb. 8, 1980.

      Charles W. Nolen, Fayette, of Tweedy, Jackson & Beech, Jasper, and Zeanah, Donald & Hust, Tuscaloosa, for appellant-appel-lee Taylor Coal Co., Inc.
    Sam M. Phelps and Barrie Balzli Stokes, Tuscaloosa, of Holder, Moore & Grocholski, Fayette, and Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees-ap-pellants James Pugh Pearson, Jr., et al.
   PER CURIAM.

These consolidated appeals concern two actions filed in the Fayette Circuit Court and the Tuscaloosa Circuit Court, respectively, in which both Pearson and Taylor Coal Company were parties. Both Courts dismissed the causes pending before them. Taylor Coal appeals the action taken by the Fayette Court upon Pearson’s motion, and Pearson appeals the order of the Tuscaloosa Court granting Taylor Coal Company’s motion to dismiss.

In November, 1976, Willis A. Crocker (not involved in these appeals) filed suit in the Circuit Court of Fayette County to quiet title to mineral rights in certain land in Fayette County, naming Pearson as one of the Defendants. In December, Brilliant Coal Company (also not involved in these appeals) was allowed to intervene by order of the Court; and in January, 1977, Taylor Coal Company was also given permission to intervene as a Plaintiff in the action.

After Taylor Coal Company’s intervention, the Fayette Court, by oral instruction given in the presence of all the parties at a hearing on January 17, 1977, determined that the action could not be maintained without the presence of certain necessary parties and ordered that these parties be added by amendment to the complaint. After several extensions of time, neither Plaintiff nor the Plaintiff Intervenors had complied with the Court’s order; and, on July 22, 1977, the Payette Court dismissed the cause for failure to prosecute.

More than a year later, on August 3, 1978, Pearson filed suit in Tuscaloosa County Circuit Court against Taylor Coal Company and others for intentional trespass and conversion of coal and mineral rights in land, most of which had also been involved in the Fayette quiet title action. Shortly thereafter, on August 15, Taylor sought to revive the Fayette action by filing an amendment joining the necessary parties whose absence had led to the Fayette Court’s dismissal order of July 22, 1977. Taylor Coal Company then moved the Tuscaloosa Court to dismiss the action therein filed by Pearson on the grounds that the Fayette action was a prior pending suit. Pearson, in turn, moved the Fayette Court to strike Taylor Coal Company’s amendment on the ground that Taylor Coal had been dismissed with prejudice by that Court’s order of July 22, 1976.

Some months later, on December 11, 1978, the Tuscaloosa Court granted Taylor Coal Company’s motion to dismiss Pearson’s action filed in that Court, and the following day, the Fayette Court granted Pearson’s motion to strike the amendment filed therein by Taylor Coal. Citing the action of the Fayette Court, Pearson then moved the Tuscaloosa Court to vacate its order dismissing the trespass and conversion action. Taylor Coal, similarly, moved the Fayette Court to set aside and vacate its order striking the attempted amendment to the quiet title action. Both motions were denied and the parties appeal.

The single dispositive issue on this appeal is whether the Fayette Circuit Court’s order of dismissal of July 22, 1977, applied to Intervenor Taylor Coal as well as to the original Plaintiff Crocker. It bears emphasizing at this point that we do not here address the merits of the dismissal order inasmuch as it is not the July 22, 1977, order that is being appealed; rather, this appeal challenges the Fayette Court’s order of December 12, 1978, which, strictly speaking, addresses only the efficacy of its previous order as it pertains to Taylor. If the dismissal order of July 22, 1977, did not in fact pertain to Taylor Coal, it is irrelevant whether under the law and the existing facts, the Fayette Court might have dismissed the Intervenor in addition to the original Plaintiff. On the other hand, if the dismissal did apply to Taylor Coal, the merits thereof are similarly irrelevant.

We look now to the order itself to determine its scope of operation. The first three paragraphs of the dismissal order read;

“ORDER
“The above styled cause was filed before this Court on the 12th day of November, 1976. A Motion to Dismiss was subsequently filed by the Defendant on January 17, 1977, and this Court ordered the Plaintiff to join other necessary parties to this action. The Plaintiff requested and received extensions of time on three separate occasions. On June 8, 1977, this Court extended the time to comply for another thirty (30) days and at that time informed the Plaintiff that if he failed to obey the Court’s order that this cause would be dismissed. It appearing to the Court that the thirty (30) day period has passed and it further appearing to this Court that the Plaintiff has failed to comply or make a good faith effort to comply with the Order of this Court, it is therefore,
“ORDERED, ADJUDGED, AND DECREED by this Court that the Defendant’s Motion to Dismiss be and the same is hereby granted. This cause is dismissed and the costs are taxed against the Plaintiff.
“The dismissal of this cause will not work prejudice to the intervenor, Brilliant Coal Company.”

Though referring to the original Plaintiff and to Intervenor Brilliant Coal Company, the Court’s order of July 22, 1977, does not refer specifically to Interve-nor Taylor Coal. Nevertheless, if it can be determined that the Court in fact intended to include Taylor Coal, and that such intent was adequately conveyed so that Taylor Coal either understood, the Court’s intent in fact, or should have .been aware of such intent, the omission by the Court to specifically address Taylor becomes immaterial. An order issued by a court does not, like the giving of notice under certain statutes, stand or fall depending upon whether the right words have been used in strict compliance with statutes. It is sufficient that a court has expressed itself in such a way that its intent is conveyed to the parties so that they either fully understand such intent or are put on notice to seek further clarification.

Pearson contends the Fayette Circuit Court’s intent, and the context in which it was given, is explained by the Court’s subsequent order of December 12, 1978, which, in relevant part, is set forth below:

“1. On July 22, 1977, for the reasons stated therein, this Court dismissed this cause which was pending at that time as Civil Action No. 8434. . . . Prior to such dismissal the Court had determined that certain non-joined parties were necessary to the proper determination of the issues before the Court and had directed that such parties be joined. Such parties were as necessary to the determination of the claims made by Taylor and Brilliant upon intervention as they were to the determination of the claim made by Crocker as the original plaintiff .
“2. On July 22, 1977, the Court dismissed the entire cause and the attorneys representing Taylor and Brilliant were present in the Court at the time of such dismissal and voiced no objection to the dismissal; Brilliant requested the Court to provide that the dismissal as to it be without prejudice and this right was granted by the Court, again indicating an understanding by such intervenor that the dismissal included its claims upon intervention. The order of July 22, 1977, was subsequently amended to strike the words ‘with prejudice’ as contained in the order to the Judge of Probate to make an appropriate entry upon the Lis Pendens Record. The direction to make the entry upon the Lis Pendens Record was consistent with the Court’s stated intent that the entire cause be dismissed. Taylor made no request to amend or modify the order of July 22, 1977. Following the dismissal of the cause the matter was placed upon the retired docket where it has remained until the filing of the attempted amendment by Taylor.”

Pearson asserts that the Court leaves little doubt here as to its intention when it issued its July 22, 1977, order, to dismiss both the original Plaintiff and Plaintiff Intervenor Taylor Coal for failure to diligently prosecute the case. If the Fayette Court’s dismissal order had ended with the third paragraph quoted above, unquestionably, Pearson’s argument, coupled with the December 12, 1978, order, would be highly persuasive if not conclusive. But the dismissal order contains two additional paragraphs:

“It is the further ORDER, JUDGMENT and DECREE of the Court that the Judge of Probate of Fayette County, Alabama, be and he is hereby directed and empowered to make the following entry in the Lis Pendens Record maintained in his office in Volume 2 at page 31, viz: ‘This complaint was on the 22nd day of July, 1977, dismissed with prejudice against the Plaintiff by the Circuit Court of Fayette County, Alabama, being Civil Action No. 8434’.
“Pursuant to Rule 54(b), the Alabama Rules of Civil Procedure, the Court directs the Clerk to enter final judgment in this cause, there being no just reason for a delay in the entry of said judgment.”

The last quoted paragraph specifically invokes Rule 54(b), ARCP, whose office affords the trial Judge the means of rendering final an otherwise interlocutory order due to multiple parties or multiple claims. We have searched in vain for an explanation of Rule 54(b)’s field of operation in the context of the instant case apart from permitting the original Plaintiff to challenge on appeal the dismissal order notwithstanding the pendency of the cause as to Interve-nor Taylor Coal. If all parties plaintiff had been dismissed, as were the original Plaintiff and Brilliant Coal, the order of dismissal was a final judgment and Rule 54(b) was without operative effect.

We appreciate the trial Judge’s subsequent review of the rationale of his earlier dismissal order; but we are constrained to hold that this explanation cannot override and eviscerate the clear and unequivocal invocation of Rule 54(b) contained in its July 22, 1977, order. We conclude, therefore, by its plain language the dismissal order did not include Intervenor Taylor Coal, and that the Fayette Court erred in granting Pearson’s motion to strike Taylor Coal’s amendment of August 15, 1978. Accordingly, the judgment of the Fayette Court is due to be, and hereby is, reversed and the cause remanded.

This determination, however, does not compel our affirmance of the judgment of dismissal, of the Tuscaloosa Court. While the litigation of title in the Fayette Court may invoke the doctrine of estoppel by judgment, the identity of parties and issues in the two suits are sufficiently different to justify, in the interest of justice, a stay of proceedings in the Tuscaloosa Court as opposed to a dismissal. Therefore, the judgment of the Tuscaloosa Court is likewise reversed and the cause is remanded for the entry of an order of stay of the proceedings to await the final outcome of the Fayette County action.

REVERSED AND REMANDED AS TO TAYLOR COAL COMPANY, INC. V. PEARSON (FAYETTE COUNTY CIRCUIT COURT); AND REVERSED AND REMANDED AS TO PEARSON V. TAYLOR COAL COMPANY, INC. (TUSCALOOSA COUNTY CIRCUIT COURT).

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

BEATTY, J., concurs in the result.

      . Appellant Taylor Coal cites a number of cases which Pearson claims are irrelevant because they either pertain to the merits of the. interve-nor’s dismissal, e. g., Societe Internationale v. McGranery (D.D.C.1953) 111 F.Supp. 435 (an order of dismissal against the original plaintiff for its refusal to obey a discovery order, cannot apply to an intervening plaintiff who has no control over the discoverable documents) or concern the issue whether dismissal of the main action automatically requires dismissal of the complaints upon intervention; e. g., Wheeler v. American Home Products Corp., 563 F.2d 1233 (5th Cir. 1977); Seil v. Board of Supervisors, 93 Ill.App.2d 1, 234 N.E.2d 826 (1968); Farmer v. Union Oil Company, 75 Cal.App.3d 42, 141 Cal.Rptr. 848 (1977); Mayor of City of Carrollton v. Chambers, 215 Ga. 193, 109 S.E.2d 755 (1959); Magdoff v. Saphin Television and Appliance, 228 F.2d 214 (5th Cir. 1955); Hunt Tool Company v. Moore, Inc., 212 F.2d 685 (5th Cir. 1954). It is well established that under Rule 24, ARCP, the complaint upon intervention is no longer subordinate to the main proceedings, and that dismissal of the original plaintiff does not necessarily and automatically compel dismissal of the intervenor. See 3B Moore’s Federal Practice, 1124.16(6). The issue here is not whether the Fayette Court dismissed Intervenor as incidental to its dismissal of the original Plaintiff, but whether the Court intended to, and in fact did, dismiss In-tervenor Taylor Coal apart from its disposition of the main proceeding. As stated in McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1913), “The question ... is not, what judgment ought to have, or could have been entered, but what judgment was in law entered.”

      . For a further statement of the rule of construction of judgments, see 49 C.J.S. Judgments § 436. See, also, Reeder v. Reeder, 356 So.2d 202 (Ala.Civ.App.1978); and Wise v. Watson, 286 Ala. 22, 336 So.2d 681 (1970).

      . In point of fact, the original Plaintiff did appeal on September 2, 1977; and the appeal was dismissed by this Court on April 5, 1978, for failure of the Appellant to file briefs.


author: EMBRY, Justice.

text:
    Radford Eugene BROWN, Administrator of the Estate of Jimmy Grant Brown, Deceased v. AAA WOOD PRODUCTS, INCORPORATED, an Alabama Corporation, and Lee Grant Taylor, an Individual. Dorothy Mae BOATWRIGHT, Administratrix of the Estate of Alvin L. Lancaster, Deceased v. AAA WOOD PRODUCTS, INCORPORATED, an Alabama Corporation, and Lee Grant Taylor, an Individual.
    78-453, 78-454.
    Supreme Court of Alabama.
    Feb. 22, 1980.

      John Emory Waddell, Dothan, Sterling G. Culpepper, Jr., of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellants.
    William L. Lee, III, of Lee & Mclnish, Dothan, for appellees.
   EMBRY, Justice.

Radford E. Brown, administrator of the estate of Jimmy Grant Brown (Brown), deceased, and Dorothy Mae Boatwright, ad-ministratrix of the estate of Alvin Lancaster (Lancaster) deceased, each filed an action seeking damages for the wrongful death of the respective intestate children as the result of the negligence of defendant Lee Grant Taylor (Taylor) in the operation of a tractor-trailer truck while acting within the line and scope of his employment with defendant AAA Wood Products, Inc. (AAA). The two cases were consolidated for trial and the jury returned a verdict in favor of the defendants in each case. Judgments were entered accordingly. Plaintiffs appeal and we affirm.

Issues

(1) Did the trial court commit reversible error by: (a) permitting city policeman Wes Etheridge to testify as to the location of the point of impact of the collision and (b) permitting state trooper Charles Dukes to testify as an expert witness?

(2) Did the trial court commit reversible error by submitting to the jury the question of the contributory negligence of the passenger Brown under the facts of this particular case?

(3) Did the trial court deviate from its own pretrial order and thereby commit reversible error?

Facts

This case involves a collision between an AAA tractor-trailer driven by Taylor and a pickup truck driven by Lancaster in which Brown was a passenger.

Taylor testified the pickup truck was “all the way over” in his lane as his truck entered the curve where the accident occurred. He further testified the pickup attempted to swerve back into his proper lane when the occupants saw his truck; however, the two trucks collided before it could do so. He also testified the driver of the pickup appeared to be “ * * * looking off to the left, looking off down across the woods” when he first saw the pickup.

A second AAA tractor-trailer truck was following the one here involved. The driver of this second truck testified, inter alia : (1) the pickup truck was in the tractor-trailer’s lane of traffic, near the shoulder of the road, before the collision occurred; (2) he saw the two trucks collide; and (3) the collision occurred in the tractor-trailer’s lane of traffic.

An accident reconstruction expert who testified for plaintiffs said that, in his opinion, the collision occurred in the pickup truck’s lane of traffic. Three police officers, who went to the scene of the collision, testified, as defense witnesses, it was their opinion the impact occurred in the tractor-trailer’s lane. Various other witnesses also testified.

At the close of the evidence, the trial judge gave the jury the following instruction:

“ * * * What duty, if any, did the Plaintiff Jimmy Grant Brown have in this case? The person riding in an automobile driven by another, must exercise reasonable or ordinary care to avoid injury, that is to exercise such care as an ordinary prudent person would exercise under like circumstances. The law imposes no duty in the absence of facts suggesting to a reasonably prudent person that there is a necessity to keep a lookout. In the absence of facts suggesting to a reasonably prudent person the necessity of a rider in a vehicle to keep' watch, he is under no duty to do so. * * * >?

Plaintiffs objected to the above portion of the trial court’s oral charge by stating: “We also object to the charge, that portion of the Court’s oral charge regarding duty of a lookout, the duty of a passenger as a lookout, for the reason that no facts in this case suggests any such duty on the part of Jimmy Brown.”

After the jury returned verdicts in each case for defendants this appeal by plaintiffs ensued.

Decision

I

Plaintiffs contend the trial court erred to reversal by allowing Wes Ether-idge, a city police officer, to testify as to the point of impact. They contend there were no facts established upon-which Eth-eridge could properly base an opinion because: (1) he was not the investigating officer; (2) he, in fact, made no investigation; (3) he made no report regarding the accident; and (4) he only observed the situation at the scene of the accident to the extent any layman would. We do not agree with plaintiffs’ contentions.

Etheridge is a police officer with sufficient experience in accident investigation to qualify to give an expert opinion as to the location of the point of impact in a motor vehicle accident, He was the first police officer on the scene of the accident, was at the site for approximately two hours, and conducted his own investigation even though he was not the investigating officer. At trial, he identified various skid marks, debris, and other marks on the road where the accident occurred, before giving his opinion as to the point of impact.

In Sharp v. Argo-Collier Truck Lines Corp., 356 So.2d 147 at 149 (Ala.1978), this court stated that “ * * * the admissibility of the substance of his [an expert’s] opinion testimony is governed by the rule that opinion testimony as to the location of the point of impact of a collision is proper where the witness first details the facts upon which his conclusion is based.” Later in Dyer v. Traeger, 357 So.2d 328 (Ala.1978), we held the testimony of an expert witness is not binding upon a jury, unless uncontradicted and a subject exclusively within the knowledge of experts, and that an objection to his testimony on the grounds of inadequacy of facts, upon which to base that opinion, goes to the weight of the evidence rather than to its admissibility. In Dyer, a police officer was allowed to give his opinion about the point of impact based solely on the location of some glass fragments.

In this case Etheridge did predicate his opinion regarding the location of the point of impact with the facts upon which his opinion was based. We, therefore, find the trial court did not err in admitting that opinion testimony.

Plaintiffs also contend the trial court erred by permitting state trooper Charles Dukes to testify as an expert witness. We find this contention to be without merit.

Dukes testified: (1) he had been a state trooper for fifteen years; (2) he had the current rank of corporal; (3) he was a line supervisor with ten men under his supervision; (4) he had investigated approximately fifty accidents per year for the past ten years; and (5) he had undergone six weeks of accident investigation training. It is clearly the law in Alabama that the question of whether a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, and the exercise of that discretion will not be disturbed on appeal except for palpable abuse. Dyer, supra; Sharp, supra; Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). In this case, Dukes gave his opinion as to the point of impact with detail of the facts upon which his opinion was based; clearly this was not a palpable abuse of the trial court’s discretion.

II

Administrator for the Brown estate contends the trial court committed reversible error in that ease by giving the quoted jury charge which submitted the issue of Brown’s contributory negligence to the jury. We find no error in the giving of that charge.

Negligence of tlie driver of a motor vehicle cannot be imputed to a passenger unless the passenger has assumed control and direction of the vehicle or has some right to a voice in the control, management, or direction of the vehicle. Gardner v. Dorsey, 331 So.2d 634 (Ala.1976). It is also true, however, that a person riding in an automobile driven by another is not absolved from all personal care for his own safety, but has the duty of exercising reasonable or ordinary care to avoid injury. Williams v. Pope, 281 Ala. 382, 203 So.2d 105 (1967); Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530 (1952); King v. Brindley, 255 Ala. 425, 51 So.2d 870 (1951). The duty of the passenger is, therefore not original, with respect to the operation of the vehicle, but is resultant and is brought into effect by known and appreciated circumstances. King, supra. Moreover, no fixed rule can be formulated which will apply to all cases •that will determine when the duty arises, what particular circumstances will raise it, or what particular warning or protest will be sufficient to discharge the duty once it has arisen. Id.

It is clear that a mere opportunity to know the danger is not sufficient to invoke the duty in the absence of facts suggesting to the passenger, as a person of ordinary care, there was a necessity to keep watch. Hamilton, supra; King, supra; Proctor v. Coffey, 227 Ala. 318, 149 So. 838 (1933). The duty of the passenger, or guest is said to arise when he should have anticipated the driver of the vehicle will enter the sphere of danger, or omit to exercise due care, not when he has the opportunity to anticipate the danger without anything to direct his attention to a condition requiring him to anticipate the vehicle is about to enter the sphere of danger or requiring him, in the exercise of ordinary care, to keep a lookout. McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508 (1919). With respect to this duty, it can make no difference in principle whether the suit is against a third person, or against the driver who negligently operates the car in which the passenger is riding; the duty of the passenger is the same in either case. McGeever, supra.

In finding the trial court did not err by giving the charge plaintiff Brown complains of, we note the charge stated a correct principle of law regarding Brown’s duty of care. Under the facts of this case, we cannot say the charge was abstract. See, generally, Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971). There was evidence to show that both plaintiffs had planned to go hunting and at the time of the collision the truck in which they were riding was traveling on the wrong side of the road with the driver looking off into the woods. This evidence alone was sufficient to create a jury question as to whether the deceased passenger, Brown, had a duty to keep a watch or to give a warning. The issue- of contributory negligence is to be determined by the jury, as a general rule, and ordinarily should not be disposed of by the trial court in a peremptory manner. Patterson v. Seibenhener, 273 Ala. 204, 137 So.2d 758 (1962).

Ill

Plaintiffs contend the trial court committed reversible error by allowing defendants to violate the pretrial order. We find no error, as contended, present.

The pretrial order stated:

“ * * * If any party desires to use expert witnesses, said party shall furnish to the other party on or before 10 days before the trial, the names and addresses of said expert witnesses proposed to be used, together with the qualifications of said expert witnesses. * * * ”

The essence of plaintiffs’ contention is that they were not specifically notified the three police officers would be called as expert witnesses, nor were they given the qualifications of those officers; therefore, plaintiffs were prejudicially surprised at trial when the officers were called and testified as experts. Assuming, arguendo, the conditions of the pretrial order were violated, any possible error was harmless.

The record discloses that plaintiffs were informed by defendants that the three officers would be called to testify. In fact, plaintiffs notified defendants at one time prior to trial that they, the plaintiffs, would use the three officers as witnesses. Furthermore, plaintiffs did not strictly comply with the pretrial order regarding their own experts. In any event, it is clear plaintiffs were not prejudiced by defendants’ failing to strictly adhere to the pretrial order. As noted, any possible error was harmless and reversal would therefore be improper. See Rule 45, ARAP and Rule 61, ARCP.

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

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Roy ADAMS and Rufus Adams v. BETHANY CHURCH.
    78-466.
    Supreme Court of Alabama.
    Feb. 22, 1980.

      Alice L. Anderson, Chancellor, for appellants.
    S. Fleetwood Carnley, Elba, for appellee.
   FAULKNER, Justice.

This is the second appeal from a judgment quieting title in Bethany Church to certain real property located in Coffee County. We affirm.

Bethany Church, a Primitive Baptist church, initially filed suit against Roy Adams and Rufus Adams pursuant to Tit. 7, § 1109, Code of Ala. 1940 (§ 6-6-540, Code 1975) to quiet title to four acres of real property in Coffee County, described as follows:

“. . .to commence at the land line dividing EVfe and WV2 of NEVi, Section 9, Township 5, Range 19 and to commence at the Northeast corner of the 74 acres of land at the Elba and Andalusia road running South 93⅛ yards, thence West 210 yards, thence North 93⅛ yards to said Elba and Andalusia road, thence East 210 yards along said road to place of beginning.”

The Adamses filed a motion to strike the Church’s complaint, treated by the trial court as a motion to dismiss and denied. A default judgment was taken against the Adamses, and then set aside on the trial court’s determination that a guardian ad litem should be appointed for Rufus Adams, asserted to be non compos mentis. After a pre-trial hearing, the case was tried to a judge, who having heard the testimony ore tenus, determined that title should be quieted in the Church. He found that the Church had been in possession of the property in question for more than 100 years and was in peaceful possession of the property at the time the complaint was filed. The trial court further ordered that a survey be made of the property, and enjoined the Adamses from any interference with the Church’s possession. After the Adams-es’ motion for new trial was denied, they appealed.

This Court in the first appeal, Adams v. Bethany Church, 361 So.2d 510 (Ala.1978), reversed and remanded, holding that the Church itself, an unincorporated religious association, could not hold title, and thus could not bring suit to establish title to the property in question.

The Church was subsequently incorporated as Bethany Primitive Baptist Church on July 18, 1978, and it amended its 1975 complaint to reflect that. The Adamses’ motion to strike and dismiss the complaint was denied. The Adamses then answered and a counterclaim for damages for harassment and malicious prosecution was filed on behalf of Rufus Adams against’ the Church and its trustees. After a motion to strike the counterclaim was granted, and the counterclaim was refiled, the trial judge again conducted an ore tenus hearing. A judgment similar to the initial one was entered determining that the Church was the owner of the property in question.

Three issues are presented for decision on this appeal: (1) Whether the unincorporated religious association, Bethany Church, had any sort of title to the property in question that it could pass to the incorporated Church, Bethany Primitive Baptist Church, thus allowing the incorporated Church to bring this action; (2) whether the Church established peaceable possession of the property; and (3) whether Rufus Adams had the right to maintain the counterclaim.

An unincorporated religious association is capable of suing and being sued. Code 1975, § 6-7-80. However, it does not have the capacity to acquire or hold legal title to real property in its association name. Enterprise Lodge No. 352 of Knights of Pythias, Inc. v. First Baptist Church (Colored) of Evergreen, 288 Ala. 592, 264 So.2d 153 (1972), and cases cited therein. Title may be held by and through the Church’s trustees, who would then be the proper parties to bring the suit to quiet title. Hamner v. Carroll’s Creek Baptist Church, 255 Ala. 277, 51 So.2d 164 (1951).

Although attempts by an unincorporated religious association to hold title to property in its association name will be unsuccessful, when that association is incorporated the legal title will pass to the incorporated religious association. This is so regardless of whether the legal title is considered to have remained in the grantor or next of kin of the testator as trustee for the unincorporated church, in the individual members of the unincorporated church, or in the trustees of the church and passed to the church on incorporation. Murphy v. Traylor, 292 Ala. 78, 289 So.2d 584 (1974) (property obtained by devise); Johnson v. Sweeney’s Lane Church of God, 270 Ala. 260, 116 So.2d 899 (1959) (property obtained by deed).

Thus, while Bethany Church obtained no legal title in 1912 when John Lindsey and his wife S. L. Lindsey executed a conveyance to the Church involving some of the disputed property, in 1978 when the Bethany Primitive Baptist Church was incorporated, legal title to that property was vested in the Church allowing it to maintain the proceedings to quiet title.

The Adamses further assert that the Church was not in “peaceable possession” as required by the statute at the time the suit was filed. At best the Church had only “scrambling possession” which was insufficient to maintain the proceeding.

In an in personam proceeding to quiet title the plaintiff must have been in peaceable possession, either actual or constructive, of the property in question, as distinguished from scrambling possession. E. g. Cooper v. Adams, 295 Ala. 58, 322 So.2d 706 (1975); Hinds v. Slack, 293 Ala. 25, 299 So.2d 717 (1974); Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972). It is also established that the plaintiff must have been in peaceable possession at the time of the filing of the suit. City of Montgomery v. Brown, 285 Ala. 64, 228 So.2d 820 (1969); Davidson v. Blackwood, 250 Ala. 263, 34 So.2d 205 (1948). This Court in Hinds set out the distinction between peaceable possession and a hostile or scrambling possession: “In the former, an adverse party may be denying the complainant’s right to possession, but in the latter there is a denial of the fact of his actual possession. Both parties are claiming actual possession or are ‘scrambling’ for it.” (Citations omitted.) Merely going on the property which is at the time in the actual possession of someone else, and claiming title to it and warning others off it, does not constitute possession such as would defeat an action to quiet title. Family Land & Investment Co. v. Williams, 273 Ala. 273, 138 So.2d 696 (1962); Myers v. Moorer, 273 Ala. 18, 134 So.2d 168 (1961). Isolated acts by the defendant in a quiet title action indicating possession, but not in fact amounting to interference with plaintiff’s peaceable possession will not bar a determination of title in the plaintiff. Ford; Patronis v. West Dauphin Corporation, 280 Ala. 442, 194 So.2d 845 (1967). What constitutes peaceable possession will vary as it is a determination based on the facts in each case. Williams v. Romano, 289 Ala. 190, 266 So.2d 750 (1972); Ford.

In the present case the trial court heard testimony from several witnesses for the Church, who had lived in the Danley’s Crossroads area for a number of years and who stated that for as long as they could remember, in some instances 60 or more years, the Bethany Church had been located at its present site and was and had been in peaceable possession of the property it claimed. Two of John Lindsey’s granddaughters testified that their grandfather deeded the four acres that are claimed by the Church to it, that none of their relatives have ever claimed any part of the Church property, and that other property originally owned by John Lindsey had passed through a chain of conveyances, finally reaching the hands of Roy Adams. The Church established its chain of title to all property it claimed. A witness for the Church stated that on one occasion about two years prior to this suit, while he was mowing the grass on the Church property, Roy Adams ordered him to stop because the property was his. There was also testimony concerning two notes which were placed on the Church doors about five years earlier which indicated that Adams objected to the use of part of the property as a cemetery, and a no trespassing sign was posted on the property-

witnesses for the Adamses testified that Rufus Adams, prior to his conveyance to Roy Adams, had mortgaged property, including the property in question, on several occasions to the Federal Land Bank and to a local production credit association, both of which would have required evidence of good title before making the loans. An attorney who had done some title work for Roy Adams testified that he did not check title further back than Rufus Adams’ acquisition of the property from G. L. Wise in 1945, that he never visually inspected the property, that he did not make a certified abstract, and that he did not check for mortgages or encroachments. Roy Adams testified concerning his actions regarding the Church and asserted that he owned the property in question.

The trial judge, presented with this factual picture, determined that the Church’s possession of the four acres was peaceable. Roy Adams’ isolated actions did not defeat the Church’s possession. Under our established standard for the review of ore tenus cases — Williams v. Romano — we cannot say that the trial judge’s decision was plainly erroneous. The decision that the Church was the proper owner of the four acres was supported by creditable evidence.

Finally, the Adamses assert that the trial court should not have denied the motion to refile Rufus Adams’ further answer and counterclaim for malicious prosecution and harassment presented by his guardian ad litem. They contend that since he had not been in possession of the property for seven years prior to the commencement of this action in 1975 and had not interfered with the Church’s possession of the property, that he was being harassed by being included in the suit. This differs from his previous answers where he asserted through his guardian ad litem that he and his predecessors in title had been in possession of the property since 1887 and denied the Church was in peaceable possession of the property. We have reviewed the record in this case and cannot say that the trial court erred in granting the Church’s motion to strike this pleading which was inconsistent with the case as presented to that court.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Ernest L. STILES v. Eva S. BROWN, Susie S. Sharp, John W. Stiles and Ann S. White.
    78-567.
    Supreme Court of Alabama.
    Feb. 22, 1980.

      H. Kenan Timberlake of Timberlake & Gammons, Huntsville, for appellant.'
    Harold F. Herring and Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, .for appellees.
   TORBERT, Chief Justice.

This is an appeal from a will contest case in which the Circuit Court of Madison County held valid and admitted to probate and record an instrument purporting to be the last will and testament of Claude L. Stiles. The facts of this case, which were stipulated by the parties, are as follows:

Claude L. Stiles, a resident of Madison County, Alabama, died on March 7, 1978, leaving no surviving spouse, three surviving children, and three surviving grandchildren who are the children of a fourth child who predeceased Claude L. Stiles. The proponents of the document sought to be admitted as the last will and testament of Claude L. Stiles are Eva Stiles Brown and Susie Stiles Sharp, the daughters of Claude L. Stiles. On May 5, 1978, Eva Stiles Brown and Susie Stiles Sharp, having been appointed co-executrices in said document, petitioned the probate court to issue to them letters testamentary. The contestant of the will offered by Eva Brown and Susie Sharp is their brother, Ernest L. Stiles, who filed a contest to said will on May 8, 1978.

The will in question was prepared for Claude L. Stiles by Mr. James T. Tatum, Jr., a Huntsville Attorney, and was executed in Mr. Tatum’s office on January 12, 1967. On that date, two wills were prepared simultaneously, using carbon paper, and each will was simultaneously executed, thus creating two executed duplicate original wills. One of the duplicate originals was placed in Mr. Tatum’s safe and the other Claude L. Stiles took home with him after execution of the duplicates. At that time, and again on November 5, 1975, Mr. Tatum advised Mr. Stiles that if he desired to revoke the last will and testament, he would have to destroy both the duplicate original in his own possession and the one Mr. Tatum had in his possession. The duplicate original will which Claude L. Stiles had in his possession prior to his death was not found among Mr. Stiles’s possessions on his death on March 7, 1978. On or about March 24, 1978, Mr. Tatum learned of .the death of Claude L. Stiles, and delivered the executed duplicate original will of Claude L. Stiles, which he had in his possession, into the custody of the Probate Court of Madison County.

The appellants argue that the trial court erred in admitting to probate this document as the valid last will and testament of Claude L. Stiles because (1) the proponents fail to account for the duplicate original will which had been in the possession of Claude L. Stiles, (2) a presumption of revocation of the original duplicate will in Claude L. Stiles’s possession arises when the will is not found at the testator’s death, and (3) this revocation of an original copy of a will revokes all other executed copies of the will.

SCOPE OF REVIEW

When the trial court hears evidence ore tenus its judgment is presumed correct and will not be disturbed on appeal unless plainly and palpably erroneous. League v. McDonald, 355 So.2d 695 (Ala.1978). In the instant case the parties submitted an agreed statement of facts together with answers to interrogatories and affidavits, thus limiting the trial court’s task to an application of the law to those facts. Where the facts of a case are uncontradict-ed the rule of law which states that the appellate court must defer to the trial court in regard to findings of fact has no application.

The finding of the trial court in a case submitted to it on an agreed statement of ultimate facts presents a question of law, and the appellate court, having the same means as the trial court had of reaching a correct conclusion of law on the facts will consider it as if trying the case originally in order to determine whether the facts warranted the judgment.

5A C.J.S. “Appeal and Error” § 1661 p. 580 (1958).

Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts. Kessler v. Stough, 361 So.2d 1048 (Ala.1978); Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); and McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).

ISSUE NUMBER ONE

Whether the executed duplicate original will which was retained by the testator’s attorney is admissible into evidence when the other duplicate original will which had been retained by the testator himself is not found at the testator’s death.

The appellant, relying on Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490 (1965), contends that the proponents of the duplicate executed will must show a search for the original will left in the testator’s possession or otherwise explain its absence before an executed copy in possession of the lawyer who prepared the will may be admitted to probate. We agree with the appellant. See also: Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901 (1960); Jaques v. Horton, 76 Ala. 238 (1884). However, the record is replete with evidence, including interrogatories, answers thereto, and affidavits, which indicates that a careful search was made of the business records of the testator as well as his safe deposit box and that the will was not discovered in the course of that search. We hold the evidence sufficient to support the trial court’s holding that the requirements of our case law for admission into evidence of a duplicate original will other than the one retained by the testator were met in the instant case. In Jaques v. Horton, supra, the Court held that the inability to find the copy of a will which had been in the testator’s possession prior to his death did not give rise to a question of the admissibility of another copy of that will but rather presented a completely separate question of whether the testator had destroyed his will with an intent to revoke it.

Sufficient search appears to have been made for the original will to let in secondary evidence of its contents after proof of its execution and existence; and whether the will was destroyed by the testator animo revocandi or by someone else without his consent or knowledge or lost by accident is a question not going to the admissibility of a verified copy but a fact to be determined by the jury if there is one and if not by the judge on a consideration of all the circumstances proved. Where the will is shown to have been in the possession of the testator and is not found at his death the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted and the burden of rebutting it. is on the proponent. The ascertainment of this fact will cast no light on the authentication of the copy and is not preliminary to its introduction. The question, in such case, is, whether the will of which the proposed paper is a copy was revoked or did the testator at the time of his death believe and intend it to be in existence as a valid will. [Citations omitted.]

76 Ala. at 245.

If a copy of an executed will is admissible into evidence after an adequate search, then there is all the more reason to admit a duplicate executed original will retained by a third party after an adequate search for the duplicate original retained by the testator.

ISSUE NUMBER TWO

Did Claude L. Stiles destroy his will ani-mo revocandi?

In Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975), this Court set forth the requirements for admitting to probate an allegedly lost or destroyed will and held that the burden is on the proponent of the will to establish: (1) the existence of a will, (2) the loss or destruction of the instrument, (3) the non-revocation of the instrument and (4) the contents of the will in substance and effect. In the instant case the appellant argues that the appellees have failed to establish element number 3, i. e., the nonrev-ocation of the instrument by the testator. The appellant relies upon the evidentiary presumption that a testator has revoked his will when a will left in his possession is not found in his possession at his death.

SUB-ISSUE A

Does the evidentiary presumption of revocation which arises when a will which had been left in the testator’s possession cannot be found after his death, apply in the instant ease?

The fact that the will left .in the testator’s possession cannot be found after his death creates a presumption that the will was destroyed by the testator animo revocandi, or with intent to revoke. Barks-dale v. Pendergrass, supra; Lovell v. Lo-vell, 272 Ala. 409, 132 So.2d 382 (1961); Vaughn v. Vaughn, 217 Ala. 364, 116 So. 427 (1928). The presumption referred to is not an irrebuttable conclusion of law; it is a mere inference of fact. Managle v. Parker, 75 N.H. 139, 71 A. 637 (1908). See also: Note, “Wills-Revocation-Loss of a Duplicate Will” 56 Mich.L.R. 1036 (1958). Our cases clearly hold that this presumption of revocation or inference of fact is rebut-table and the burden of rebutting the presumption is on the proponent of the will. Barksdale v. Pendergrass, supra; Lovell v. Lovell, 272 Ala. 409, 132 So.2d 382 (1961); Brooks v. Everett, 271 Ala. 354, 124 So.2d 105 (1960).

The appellees attempt to distinguish Lovell v. Lovell, Brooks v. Everett, and Barksdale v. Pendergrass, on the basis that these cases involved copies of wills as distinguished from duplicate original wills executed simultaneously. The court had occasion to address appellees’ contention almost one hundred years ago in the case of Snider v. Burks, 84 Ala. 53 at 58, 4 So. 225 at 228 (1887):

The general rule is that where the will of a testator is proved to have been in the testator’s possession, and can not after-wards be found, the prima facie presumption is that it was destroyed by the testator before his death animo revocandi. But this presumption may be rebutted by proper legal evidence. [Citation omitted.] But if the instrument is shown to have been out of his possession, the party asserting the fact of revocation “must show that it came again into his custody, or was actually destroyed by his direction.” [Citation omitted.]
Where the will is executed in duplicate, as in this case, a somewhat different rule obtains. If, in such case, the testator destroys one of the duplicates, and this is the only one in his possession, and intent to revoke is to be presumed . . . . [Italics omitted.]

We hold that where a duplicate original executed will is shown to have been in the possession of the testator and is not found at his death the presumption arises that he destroyed it for the purpose of revocation. See: 2 Bowe-Parker: Page on Wills, § 21.16 p. 371 (3rd ed. 1960), and cases cited therein.

SUB-ISSUE B

Whether the presumption of revocation which arises when a duplicate original executed will left in the testator’s possession is not found at his death, was overcome by evidence that the testator did not destroy his will with intent to revoke.

Careful search of the record reveals two pieces of evidence which suggest that the testator did not destroy his will animo revo-candi. First, Eva Brown’s answer to interrogatory number 10 of Ernest Stiles alleges that the contestant had access to the will and thus raises the inference that perhaps someone other than the testator destroyed the will:

My father kept a metal locked box in his closet by his bed. The key to this box was in Ernest Stiles’s possession from Tuesday until Saturday of the week my father died. When Ernest gave me the key to open the box in the presence of our family the will was not there. I have also looked through some old business records and papers but I did not find it.

We recognize that in Lovell v. Lovell, 272 Ala. 409, 132 So.2d 382 (1961), this Court held that the mere fact that a will contestant had access to the will after the testator’s death is not enough to overcome the presumption of revocation which arises when a will left in the testator’s possession prior to his death is not found at his death.

There is, however, other evidence suggesting that the testator did not destroy his will with intent to revoke in the stipulation of facts:

Mr. Tatum advised Mr. Stiles at that time [date of execution] and again on November 25, 1975 that if he, Mr. Stiles, desired to revoke his Last Will and Testament, he would have to destroy both the duplicate original in his own possession and the one Mr. Tatum had in his possession. At no time prior to his death did Mr. Stiles destroy or request that the signed duplicate original will in Mr. Tatum’s possession be destroyed. At no time before Claude Stiles’s death did said duplicate leave Mr. Tatum’s possession nor did Mr. Stiles, nor anyone on his behalf request that it be returned to the possession of Claude L. Stiles.

The general policy behind the law of wills in Alabama is to give effect as nearly as possible to the testator’s intentions as expressed in his will. City National Bank of Birmingham v. Andrews, 355 So.2d 341 (Ala.1978); Taylor v. Harwell, 65 Ala. 1 (1880). It is common practice to execute duplicate wills for the purpose of enabling the probate court to determine a testator’s intention when the duplicate left in the testator’s possession cannot be found on his death. If the presumption of revocation, which arises when a duplicate will left with the testator is not found at his death, is given insurmountable effect, then the purpose for executing duplicate wills would be thwarted.

We hold that the evidence of Mr. Tatum’s strict advice to Mr. Stiles that the duplicate in Tatum’s possession, as well as the one in Mr. Stiles’s possession, must be destroyed to effectively revoke the will, coupled with the fact that Mr. Stiles never attempted to destroy the duplicate retained by Tatum, together with the fact that the contestant had access to the will immediately after the testator’s death, is sufficient to rebut the presumption of revocation. To decide otherwise would destroy the efficacy of executing duplicate original wills.

AFFIRMED.

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

      . Snider, supra, the court held the presumption of revocation did not apply because in that case (unlike the instant case) the copy of the duplicate original executed will which had remained in the testator’s possession was found in his possession at his death, and the other copy of the duplicate original will, which had been given to a third party, could not be found at the testator’s death. It was on this distinction that the court based its decision not to apply the presumption of revocation in Snider.


text:
    Philip HALES et al. v. FIRST NATIONAL BANK OF MOBILE.
    78-673.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Roger Killian, Fort Payne, for appellants.
    F. Michael Haney, of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   PER CURIAM.

This action was initiated by plaintiff First National Bank of Mobile (the Bank) filing a two count complaint alleging a deficiency' arising from a foreclosure sale and the right to possession of certain personal property under a security agreement. Defendants Philip and Dorothy Hales appeal from the grant of summary judgment in favor of the Bank on their amended counterclaim which alleged, inter alia, fraud, misrepresentation, and breach of fiduciary duty by the Bank. We reverse.

Issue

Whether the trial court erred to reversal in converting, sua sponte, the Bank’s motion to dismiss pursuant to Rule 12(b)(6), ARCP, to a motion for summary judgment when the trial court gave no notice of the changed status of the motion to the Haleses prior to entry of summary judgment.

Facts

As mentioned earlier, this suit was initiated by the Bank. When it filed its complaint, the Bank also filed a motion for writ of seizure of certain equipment; the motion was granted after a hearing at which testimony and other evidence was taken. The only evidence contained in the record resulted from this hearing. At the hearing, the evidence was limited to the issue of whether the writ should be granted.

On 9 January 1979 the Haleses filed an answer and counterclaim to the Bank’s complaint. The Bank filed a Rule 12(b)(6), ARCP, motion to dismiss the counterclaim which was apparently granted. On 4 April 1979 the Haleses filed an amended counterclaim that alleged: (1) false representations were made by the Bank to the Haleses on 5 April 1978; (2) the Bank breached an agreement entered into on 5 April 1978 with the Haleses by permitting certain assigned contract rights to go in default; and (3) a breach of fiduciary duty owed by the Bank to the Haleses. The Bank filed a second motion to dismiss this amended counterclaim alleging Rule 12(b)(6) grounds together with the ground that the subject of the counterclaim was res judicata.

On 29 May 1979 a hearing was held concerning the Bank’s motion to dismiss the Haleses’ amended counterclaim. A notation dated 29 May 1979 was made by the trial court on the Bank’s motion which stated:

“May 29, 1979
Motion granted.
Counterclaim is dismissed.
W. G. Hawkins
Judge”

On 5 June 1979, without prior notice to the Haleses, a judgment was entered which reads as follows:

“This cause coming on to be heard on motion to dismiss filed by Plaintiff as to the counterclaim filed by the defendants, and same having been considered and treated by the Court as a motion for summary judgment in accordance with the Alabama Rules of Civil Procedure, and after due consideration of the pleadings, oral argument of counsel, documented evidence submitted by the parties, and the hearing in this cause on May 29, 1979, it is the opinion of this Court that the motion, is due to be granted.
“WHEREFORE, it is ORDERED, ADJUDGED AND DECREED that the motion to dismiss and treated by the Court as a motion for summary judgment of Plaintiff, First National Bank of Mobile, a national banking association, as to the counterclaim of Defendants, Philip Hales and wife, Dorothy Hales, be, and same is hereby granted. There appearing no just reason or cause for delay in the entry of such order, it is further ORDERED that final summary judgment be, and hereby is, granted in favor of the Plaintiff, First National Bank of Mobile, a national banking association, and against the counterclaim of Defendants, Philip Hales and wife, Dorothy Hales, and the aforesaid Plaintiff be, and it is hereby finally dismissed from the said counterclaim of the Defendants.
“DONE AND ORDERED this the 5th day of June, 1979.
“s/W. G. Hawkins, Circuit Judge”

This appeal followed.

Decision

The Haleses contend the trial court committed reversible error by converting, on its own initiative, the Bank’s motion for dismissal on Rule 12(b)(6) grounds to a motion for summary judgment, after the hearing on the motion had already been conducted, because it deprived them of an opportunity to present affidavits and other evidence in opposition.

Rule 12(b), ARCP, states in pertinent part:

“ * * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” (Emphasis added.)

Rule 56(c), ARCP, states in pertinent part:

“(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. * * * if

It is clear from the above quoted portions of Rules 12 and 56 that: if a motion under Rule 12(b)(6) is converted into a motion for summary judgment, both parties shall be given a reasonable opportunity to submit affidavits and other extraneous proofs to avoid a party being taken by surprise through conversion of the motion to dismiss to one for summary judgment. Davis v. Howard, 561 F.2d 565 (5th Cir. 1977); Moore’s Federal Practice, Vol. 2A, ¶ 12.09(3), N. 25. It is also clear that the spirit of Rule 56 requires the same notice and hearing where the court contemplates summary judgment on its own initiative as it does when a party moves for summary judgment; i. e., ten days notice. See Davis v. Howard, supra; Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F.2d 493 (5th Cir. 1967); Bowdidge v. Lehman, 252 F.2d 366 (6th Cir. 1958). The entry of summary judgment by a trial court, sua sponte, without giving to the party against whom such judgment is entered adequate and reasonable notice, as well as an opportunity to present evidence in opposition, is prejudicial error requiring reversal. Id.

We agree with the following statement made by the United States Court of Appeals for the Fifth Circuit in its per curiam opinion in Davis v. Howard, supra:

“We do not hold that a notice to convert a 12(b)(6) motion into a summary judgment must be by written order, but the record must adequately demonstrate that all counsel were aware of the intentions of the district judge to treat the motion as converted, together with a reasonable opportunity afforded to the non-moving party to present, by way of affidavit or otherwise, anything necessary to rebut the contention of the moving party. This does not appear in the instant case, although the district judge may have verbally advised counsel to this effect, all of which is not revealed in the record.
“Today we hold that where matters outside the pleadings are considered in disposition of a Rule 12(b)(6) motion, so as to automatically convert it to one for summary judgment pursuant to Rule 56, or as one made sua sponte, the Rule 56 strictures of notice, hearing and admissibility into' evidence are strictly required. As Judge Goldberg aptly observed of the notice requirement in Soley v. Star & Herald Co., 390 F.2d 364, 369-70 (5 Cir. 1968): ‘They [the litigants] cannot read over the judge’s shoulder, or penetrate his memory. Nor can we. From Shakespeare’s Hamlet to Albee’s Tiny Alice, soliloquies and asides have been shared with the audience.’ Where there is a motion to dismiss for failure to state a claim upon which relief may be granted, there can never be a wide overview by the trial court, beyond the pleadings to include matters outside, without affording all litigants the opportunity to offer their perspectives on the additional matter by way of admissible evidence.
“The bridling devices'at issue here sustain and insure the most elementary operation of our civil law. The concepts of notice, admissibility, and opportunity to be heard are ancient primaries. Independent from these notions in advocacy, there is the trial court’s duty to insure that its basis for judgment is without error. This duty of the trial court distinguishes the margin of allowances we have held in the instance of an original Rule 56 motion from summary disposition following a Rule 12(b)(6) motion. * * * However correct the conclusion below may be in the end, we cannot allow the shaving of principles for expediency when those precepts assure order and justice.” 561 F.2d at 571, 572.

In this case the Haleses were given no notice concerning the trial court’s decision to change the Bank’s motion to dismiss into a motion for summary judgment. In fact, it appears from the record the trial court made this change after the hearing on the motion to dismiss had been conducted and after indicating it would grant the motion to dismiss. This was clearly error which was prejudicial to the Haleses since affidavits and other evidence can and should, be introduced in opposition to a motion for summary judgment to demonstrate that issues of material fact exist, if that be the case; conversely, a 12(b)(6) motion to dismiss only encompasses the determination of whether the pleading states a claim upon which relief can be granted. Matters outside the pleadings should never be considered in deciding whether to grant a 12(b)(6) motion.

In reaching.our decision in this case, we are not deciding whether summary judgment would be proper as to the Haleses’ counterclaim. We are only deciding they were denied procedural rights afforded them under ARCP. The Bank is free to file a motion for summary judgment, and the trial court is free to conduct a proper hearing affording to all parties proper notice and the opportunity to present evidence as allowed by Rule 56, to determine whether any genuine issue of material fact is present in the case.

The judgment is hereby reversed, for the reasons set forth, and the case remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . The Bank asserted the granting of the prior motion to dismiss was res judicata since both counterclaims involved the same subject matter.

      . We refer to the motion to dismiss as a 12(b)(6) motion since 12(b)(6) grounds were alleged and the res judicata allegations were totally without merit.


text:
    George D. COUPOUNAS v. Joseph F. MORAD et al.
    78-724.
    Supreme Court of Alabama.
    Feb. 22, 1980.

      Michael L. Edwards and Thomas J. Gallo of Berkowitz, Lefkovits & Patrick, Birmingham, for appellant.
    Thomas H. Brown of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellees.
   PER CURIAM.

This is the second time this case has been here. Plaintiff George D. Coupounas appeals from the judgment entered after remand from this court, which imposed a constructive trust on the net profits of Med-Lab, Inc., an Alabama corporation, in favor of Bio-Lab, Inc., an Alabama corporation, and from a denial of his rule 59(e), ARCP, motion to amend that judgment. We affirm.

The principal issues are: (1) whether the trial court erred to reversal by imposing a constructive trust for the benefit of Bio-Lab over the net income and profits of Med-Lab, the payment of such profits or income to be secured by the trial court’s maintenance of jurisdiction over the cause to impose a constructive trust on Med-Lab’s assets if necessary, instead of imposing a constructive trust for the benefit of Bio-Lab over the entire business and assets of Med-Lab, and;

(2) whether Coupounas’ Rule 59(e), ARCP, motion should have been granted and the final decree on remand amended to provide the trial court would maintain its continuing equitable jurisdiction over the cause for the purpose of considering an award of attorneys’ fees in favor of Cou-pounas based upon the alleged benefit conferred upon Bio-Lab by the institution and maintenance of this stockholder’s derivative action by Coupounas.

This action was commenced when Cou-pounas filed a stockholder’s derivative action on behalf of himself and for the benefit of Bio-Lab. Med-Lab; Bio-Lab; Joseph F. Morad, a stockholder director and president of Bio-Lab;- Joseph A. Thomason, a stockholder and director of Bio-Lab; and Pamela T. Morad, a director of Bio-Lab, are all defendants in this action. Coupounas alleged that the individual defendants breached their fiduciary duty to Bio-Lab by usurping a valuable corporate opportunity of Bio-Lab when they formed another corporation, Med-Lab, which competes with and damages Bio-Lab. Coupounas sought a constructive trust in favor of Bio-Lab to be imposed over the business and assets of Med-Lab, or, in the alternative, the defendants be required to offer Coupounas the same percentage ownership in Med-Lab as he owns in Bio-Lab.

The trial court found the individual defendants had usurped a valuable corporate opportunity belonging to Bio-Lab by their formation and operation of Med-Lab. As a result, in its original final decree, the trial court ordered the individual defendants to offer to Coupounas thirty percent of the stock of Med-Lab at the identical prices per share which they had paid for their stock in it. On the prior appeal of this case, this court affirmed the trial court’s finding that the individual defendants had usurped Bio-Lab’s corporate opportunity; however, this court also held the trial court’s remedy of requiring the defendants to offer one-third of Med-Lab to Coupounas to be improper. See Morad v. Coupounas, supra. The judgment was reversed and the case remanded for the trial court to impose a constructive trust in favor of Bio-Lab.

On remand the trial court conducted a hearing and entered a new final decree which imposed a constructive trust on Med-Lab. That decree reads in pertinent part as follows:

“It is manifest from a reading of the Supreme Court opinion that this court erred in ordering that Plaintiff be made a shareholder of Med-Lab. The Supreme Court stated that this order was not justified, and that courts ‘should not force individuals into business arrangements they clearly do not want.’
“Instead, the Court ordered that a constructive trust be imposed for the benefit of Bio-Lab. However, since the parties have been unable to agree on a Consent Order to be entered on the remand, it is necessary for this Court to delineate the constructive trust imposed by the Supreme Court.
“The position advanced on behalf of Plaintiff is that Med-Lab’s assets, business, property and stock should be transferred to Bio-Lab. The position of Defendant is that the constructive trust should be imposed on the net profits or income1 of Med-Lab, with the Court
“1 ‘Net profits or income’ as used herein is defined as the proceeds arising in Med-Lab, Inc., through its ordinary business operations, less ordinary and necessary business expenses. Reasonable corporate salaries of the Med-Lab officers, for example, are deducted in arriving at net profits or income. A. Scott, The Law of Trusts, Vol. I, Sec. 170.22 at 1377-79 (1967). Also, for example, neither the normal accretion in value of the Med-Lab business, nor the value of its property and assets, are included. See 76 Am.Jur.2d Trusts, Sec. 231. In addition, the discussion and opinion of the Supreme Court in McKinstry [v. Thomas, 258 Ala. 690, 64 So.2d 808 (1953)] indicate that Alabama follows the general rule that the constructive trust applies to the ordinary, net profits or income of the business, although the business itself may serve as security.” (This footnote appeared as footnote one in the “Final Decree on Remand.”)
maintaining equitable jurisdiction of the cause to insure that the constructive trust is complied with.
“The court finds, and so holds, that Plaintiff is not entitled to demand that Med-Lab’s assets, business, property, and stock be turned over to Bio-Lab. For the court to so order would be for it to do indirectly what the Supreme Court has ordered should not be done; that is, since Plaintiff is a thirty percent (30%) shareholder in Bio-Lab, if all the Med-Lab assets, business, property, and stock were transferred to Bio-Lab, Plaintiff would, in effect, own thirty percent (30%) of Med-Lab. The parties would be doing business together, and this result is exactly the contrary of what the Supreme Court has ordered. In addition, the constructive trust is imposed for the benefit of Bio-Lab — not George D. Coupounas. George D. Coupounas has proved no right or standing to demand any transfer of the Med-Lab assets, property, business, or stock.
“Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that a Constructive Trust is imposed on Med-Lab for the benefit of Bio-Lab as follows:
“ONE: The net profits or income of Med-Lab, Inc., are payable over to Bio-Lab, Inc., upon its demand.
“TWO: To insure the protection of Bio-Lab, Inc., and Plaintiff, Plaintiff shall have the right regularly to inspect the books and records of Med-Lab, Inc., to insure that all net profits or income are properly declared and paid over upon demand.
“THREE: A constructive trust is not imposed at this time on the assets, business, property, or stock of Med-Lab, Inc., for two reasons: (1) because such an imposition is not necessary to secure the net profits or income of Med-Lab; and (2) because there has been no demand by Bio-Lab, Inc., for such imposition, or any transfer, nor has it made any tender of the amount of their capital contribution to the Med-Lab stockholders.
“FOUR: However, the Court will maintain its continuing equitable jurisdiction over this cause to insure that the net profits or income of Med-Lab, Inc., properly inure to Bio-Lab’s benefit, and will impose a constructive trust on the assets, business, property, and stock of Med-Lab, Inc., or will order stock transfer to Bio-Lab, Inc., only if such becomes necessary at some point in the future to secure the net profits or income.”

Subsequent to entry of the new decree, Coupounas filed a Rule 59(e), ARCP, motion requesting the trial court to amend that decree to provide that the trial court would maintain continuing jurisdiction over the cause for the purpose of considering an award to the plaintiff of attorneys’ fees. The trial court denied the motion and this appeal followed.

Coupounas contends the trial court erred to reversal on remand by refusing to impose a constructive trust for the benefit of Bio-Lab over the entire business and assets of Med-Lab. We cannot agree.

A constructive trust is a creature of equity that operates to prevent unjust enrichment; such a trust will be imposed when a property interest has either been acquired by fraud or where, in the absence of fraud, it would be inequitable to allow the property interest to be retained by the person who holds it. Brothers v. Moore, 349 So.2d 1107 (Ala.1977); Sims v. Reinert, 285 Ala. 658, 235 So.2d 802 (1970); Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963). It is also clearly inherent in the very nature of equity proceedings that the trial court is authorized to mold its decree so as to adjust the equities of all parties and to meet the obvious necessities of each situation. BBC Investment Co. v. Ginsberg, 280 Ala. 148, 190 So.2d 702 (1966); Bouldin v. City of Homewood, 277 Ala. 665, 174 So.2d 306 (1965) (on rehearing).

In this case we find no error resulting from the method employed by the trial court in molding its decree. The evidence discloses that Bio-Lab’s funds were not used in setting up or operating Med-Lab; the trial court retained jurisdiction over the case to insure that Med-Lab did not circumvent the relief ordered by it; and Coupou-nas was given the right to inspect Med-Lab’s books to insure Med-Lab was obeying the trial court’s decree. We find the relief adequate under the facts of this case.

We must next address the issue of whether the trial court erred to reversal by denying Coupounas’ Rule 59(e), ARCP, motion. We find it did not; however, we hold that Coupounas has the right to petition the trial court for an award of attorneys’ fees.

It is an established rule of law that a minority stockholder is entitled to be awarded a reasonable attorney’s fee by the corporation in which he has an interest when a benefit has been conferred upon that corporation by the stockholder’s derivative action. See, e. g., Miles v. Bank of Heflin, 349 So.2d 1072 (Ala.1977); Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 21 So. 315 (1896). We do not agree, however, the trial court erred in denying Coupounas’ motion to amend or alter the judgment in that regard. The issue of attorneys’ fees had not been tried or put at issue in the prior proceedings before the trial court. However, because the trial court did retain jurisdiction over the action, Coupounas is free to petition it for such an award, and the trial court may award Coupounas a reasonable attorney’s fee for benefits conferred upon Bio-Lab as a result of his action.

For the reasons enumerated, the judgment is hereby affirmed.

AFFIRMED.

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

      . For a more detailed statement of facts concerning this case see Morad v. Coupounas, 361 So.2d 6 (Ala. 1978).