author: JONES, Justice.

text:
    ANCORA CORPORATION, a corporation v. MILLER OIL PURCHASING COMPANY, a corporation, Ancora-Citronelle Corporation, a corporation, et al. MILLER OIL PURCHASING COMPANY, a corporation v. ANGORA CORPORATION, a corporation.
    79-255, 79-293.
    Supreme Court of Alabama.
    Jan. 30, 1981.
    Rehearing Denied March 24, 1981.

      Robert E. Gibney of Kilborn & Gibney, Mobile, for appellant Ancora Corp.
    Irvin J. Langford and John L. Lawler of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee Miller Oil Purchasing Co.
    Albert W. Key of Hamilton, Butler, Rid-dick, Tarlton & Allen, Mobile, for appellee Gulf Oil Corp.
    Willis C. Darby, Jr. and Paul D. Myrick, Mobile, for appellee Ancora-Citronelle Corp.
    John A. Carey, Asst. Atty. Gen., for Ami-cus Curiae State Oil and Gas Board of Alabama.
   JONES, Justice.

On the first appeal of this case, we reversed and remanded the Mobile Circuit Court’s order granting motions for summary judgment. Ancora Corp. v. Miller Oil Purchasing Co., 361 So.2d 1008 (Ala.1978). Although the general background of this litigation is set forth in our initial opinion, a brief recital of the pertinent facts and the posture of the case may be helpful in understanding our treatment of the issues presented on the instant appeals.

In February of 1975, Miller Oil Purchasing Company initiated this litigation against (1) Ancora-Citronelle Corporation, (2) Ancora Corporation, and (3) numerous other parties who own an overriding royalty interest in certain wells situated in the East Citronelle Unit of the Citronelle Oil Field in Mobile County.

Miller, in its complaint, sought a declaratory judgment of its right to recover from one or more of the defendants monetary damages in the approximate amount of $83,000, representing an alleged overpayment for oil purchased by it from Ancora-Citronelle, as unit manager of the East Citronelle Unit, which had appropriated the oil from wells in which Ancora and the royalty owners owned an interest. Miller alleged different alternative theories of relief which it contended authorized recovery against at least one of the defendants.

In support of its position that Ancora-Ci-tronelle is liable for such overpayment, Miller alleged that § 9-17-83(7), Code 1975, is unconstitutional as being in violation of due process of law. (The essence of this challenge is this: While §§ 9-17-7(b) and 9-17— 83(4) provided for prior notice as a condition to a State Oil and Gas Board order approving unitization of oil and gas properties, no additional notice is required for appropriation pursuant to § 9-17-83(7).)

In the event the statute is found to be constitutional, Miller alleged that Ancora is responsible for the overpayment inasmuch as the funds paid by Miller to Ancora-Citro-nelle for the appropriated oil were applied to an indebtedness allegedly owed by An-cora to Ancora-Citronelle for ultimate credit to the overriding royalty owners; and thus Ancora should reimburse Miller for such payment.

Additionally, Miller alleged that, in the event neither Ancora-Citronelle nor Ancora is responsible, the overriding royalty owners should be liable, because Miller paid their interest when it was not legally obligated to do so.

Finally, Miller admits, and at all times during this litigation has admitted, owing to Ancora the approximate sum of $63,000 for oil purchased, unassociated with and not produced from the East Citronelle Unit; and, in the event the trial court determined Ancora not to be responsible to Miller, Miller offered to pay this sum to Ancora. In the event Ancora is found liable, Miller offers to offset its indebtedness to Ancora.

All the defendants who answered Miller’s complaint denied any liability. Ancora filed a counterclaim seeking to recover compensatory damages from Miller, including the monies Miller admitted it owed to An-cora. In an amended counterclaim, Ancora also sought the imposition of punitive damages. In its amended answer, Ancora joined with Miller in asserting that the appropriation statute was unconstitutional.

Miller, Ancora-Citronelle, and Ancora all filed motions for summary judgment seeking specific relief: Miller seeking to recover from Ancora; Ancora-Citronelle seeking to be dismissed from the litigation; and An-cora. seeking to recover its monies from Miller. No overriding royalty owner, individually or on behalf of all royalty owners, filed for summary judgment. The trial court’s initial ruling was based upon the pleadings, affidavits, and other documents of record at that time.

On June 23, 1977, the trial court entered an order (1) finding that the appropriation statute was constitutional on the basis that no “state action” was involved in the oil appropriation, and (2) granting summary judgment to Ancora-Citronelle and dismissing it from the litigation. In its order, the court reserved for future determination the claims between Miller and Ancora. Upon reconsideration of its June order, the trial court on August 3, 1977, entered its final judgment on Miller’s behalf against Ancora for the sum of $22,677.97, that being the difference between the alleged overpayment and the money owed by Miller to Ancora plus interest. We sustained An-cora’s challenge of the propriety of this summary judgment on the first appeal and the case was remanded.

Additionally, in the original cause before the trial court, Ancora-Citronelle and Miller attempted to set up the res judicata effect of a California judgment in an action between Ancora and Ancora-Citronelle to es-top Ancora from contesting the correctness of the charges arising from the appropriations. The trial court expressly held that both the correctness of the appropriation and the amount appropriated were settled in the California judgment. In reversing the trial court’s granting of summary judgment, we pretermitted further discussion of the claims of res judicata presented in the first appeal.

After reversal and remand, upon a detailed stipulation of facts and a nonjury evidentiary hearing, the trial court in its final decree concluded: (1) the actions of Ancora-Citronelle, as unit operator, in appropriating the oil interests of Ancora were “private action” and hence not subject to the constitutional requirements of due process; (2) Miller was in privity with Ancora-Citronelle as a formal party to the California judgment and hence Miller possessed all the rights and benefits of the doctrine of res judicata; (3) Ancora was indebted to Miller for its overpayment for oil in an amount of $19,720.42, after allowable credits, plus lawful interest; (4) the unitization statute was a constitutional exercise of the police power of the State and the action of the State Oil and Gas Board in 1964, ordering unitization of the East Citronelle Unit, afforded all interested persons full due process of law; and (5) under § 9-17-83(7), the royalty owners became subrogated to the rights of Ancora-Citronelle as unit operator against Ancora to the extent that the royalty owners’ interest were appropriated to pay the delinquent costs and expense of unit operations due from Ancora. When Miller paid the overriding royalty owners the full amount attributable to their interests, Miller obtained those subrogation rights.

Accordingly, the circuit court entered a final judgment against Miller in favor of Ancora-Citronelle and the royalty owners, and in favor of Miller against Ancora. An-cora appeals the judgment against it, while Miller cross-appeals against Ancora-Citro-nelle and the royalty owners. We affirm as to both the appeal and the cross appeal.

I. APPROPRIATION OF OIL WITHOUT NOTICE AND A HEARING.

Initially, Ancora contends that the trial court erred in holding that the actions of Ancora-Citronelle, as unit operator of the East Citronelle Unit, in appropriating seven-eighths of the oil attributable to An-cora’s tract, pursuant to § 9-17-83(7) (the provisions of which were incorporated in the pertinent article of the Unit Operating Agreement by order of the State Oil and Gas Board), did not constitute “state action,” and thus did not violate procedural due process under the United States and Alabama Constitutions. We agree with this holding of the trial court.

Twelve years after the East Citro-nelle Unit was approved by the State Oil and Gas Board, Ancora has attacked the constitutionality of § 9-17-83(7) of the unitization statute. Ancora argues that the procedure of unit operations established by the unitization statute is unconstitutional insofar as § 9-17-83 requires that the unit operators have the authority to appropriate oil for the payment of unit expenses. Ancora contends:

The [unitization] statute speaks in terms of “shall” and not “may” .... In 1964 ... the [State Oil and Gas] Board, an admitted state agency for the State of Alabama, ordered the formation of the East Citronelle'' Unit. In its order ..., the Board in following the requirements of the statute, ordered the unit operations and further ordered that a provision for appropriation of an interest owner’s oil as required by statute be included in the Unit Operating Agreement.

Clearly, the action of the Oil and Gas Board in 1964 was “state action” subject to the due process guarantees of the United States Constitution. The circuit court specifically found:

11. The taking of Ancora’s property [in the constitutional sense] occurred not at the time of the appropriation by Ancora-Citronelle as unit operator but rather in late 1964, when the State Oil and Gas Board approved the East Citronelle Unit Operating Agreement which contained the unit operator’s appropriation provision. As stated in Superior Oil Co. v. Humble Oil & Refining Co., 165 So.2d 905 (La.App.1964), a participant in a pooling agreement is “divested of sole and exclusive ownership and control of production from its well by operation of the unitization order ...” Id. at 907-08.
14. The only state action involved in forming the East Citronelle Unit, the action of the State Oil and Gas Board, was appropriately preceded by notice and full hearing .... Due process requirements were satisfied with respect to State Oil and Gas Board Action by proper notice and a full and fair hearing, as required by Code of Ala. 1975, § 9-17-83.

The unitization statute affords full due process protection at the time of unit-ization. Ancora initially petitioned the Oil and Gas Board for approval of the East Citronelle Unit. A Unit Operating Agreement containing the provisions of § 9-17-83(7) was executed by Ancora. Prior to unitization, the Oil and Gas Board conducted evidentiary hearings to consider whether unit operations would increase ultimate recovery of oil by secondary recovery methods, prevent waste, and avoid the drilling of unnecessary wells. § 9-17-81, Code 1975. After conducting a full evidentiary hearing, the Oil and Gas Board determined that unit operations were reasonably necessary to prevent waste, to increase the recovery of oil and to protect the correlative rights of interested parties. § 9-17-82, Code 1975.

We are unable to conclude that the procedures heretofore pronounced failed to provide Ancora (as well as all other interested parties) with minimum due process guarantees; nor does the unitization per se, including the vesting of the unit operator with authority to appropriate a portion of the royalty owner’s oil to pay unit expenses, violate any constitutional guarantees. The circuit court concluded and we agree:

1.The State of Alabama “has constitutional power to regulate production of oil and gas so as to prevent waste and to secure equitable apportionment among landholders of the migratory gas and oil underlying their land, fairly disturbing among them the costs of production and of the apportionment.” Hunter Co. v. McHugh, 320 U.S. 222, 227, 64 S.Ct. 19, 21, 88 L.Ed. 5 (1943).

We further agree with the circuit court’s determination that the actions of Ancora-Citronelle in its appropriation of the oil and gas pursuant to the Board’s order do not constitute “state action”; thus, because the requirements of procedural due process were fully complied with in the first instance (i. e., in the Board’s due process hearings as mandated by the statute), no further notice or hearing is required.

II.MILLER’S PRIVITY WITH ANCORA-CITRONELLE.

Ancora asserts that the trial court erred in concluding, as a matter of law, that Miller was in privity with Ancora-Citro-nelle, and thereby entitled, by the application of the doctrine of res judicata, to the conclusive legal effect of the California settlement agreement, and the judgment entered thereon, between Ancora-Citronelle and Ancora. . We disagree.

The circuit court determined in its conclusions of law:

10. Miller obtained all rights to the oil that Ancora-Citronelle possessed when Miller purchased the oil appropriated by Ancora-Citronelle because Miller is in privity with Ancora-Citronelle under a long established principle of law. Mitchell v. Austin, 266 Ala. 128, 130, 94 So.2d 391, 392 (1957); Skelton v. Tyner, 247 Ala. 511, 513, 25 So.2d 160 (1946); Wilkey v. State, 238 Ala. 121, 127, 189 So. 198 (1939). Due to the privity that Miller possesses in relation to Ancora-Citronelle, Ancora is precluded from raising against Miller issues resolved in the earlier California decree involving Ancora and An-cora-Citronelle; i. e., the propriety of the appropriation and the amount of expenses chargeable to Ancora. It is well settled that the doctrine of res judicata binds not only the parties to the prior judgment, but also their privies. Alabama Farm Bureau Mutual Cas. Ins. Co. v. Moore, 349 So.2d 1113,1115 (Ala.1977); Dominey v. Mathison, 292 Ala. 293, 295, 293 So.2d 472 (1974); Suggs v. Alabama Power Co., 271 Ala. 168,170-71,123 So.2d 4 (1960); IB Moore’s Federal Practice, ¶ 0.411[12] at 1666-68.

Suffice it to say that the trial court’s conclusion of law No. 10, supported by the authorities enunciated, comports with what we believe to be the controlling legal principles governing the doctrine of res judicata under the facts before us. Therefore, we adopt such statement as our own.

III.MILLER’S RIGHT OF SUBROGATION AGAINST ANCORA.

Next, Ancora insists, alternatively, that the trial court committed reversible error in holding that Miller, pursuant to its right of subrogation, as provided under § 9-17-83(7), was entitled to a monetary judgment against Ancora; and this alleged error is predicated on the contention that all the rights and interests of the unit operator to which Miller was subrogated through its payment to the overriding royalty owners have been previously released and forever extinguished by the order and judgment of the Superior Court of the State of California. Stated another way, Ancora argues that the same legal principles that entitle Miller to the benefits of the California judgment should operate with equal effect to foreclose Miller from proceeding against Ancora in this issue.

We reject this argument and agree with the trial court’s holdings:

19. Under Code of A/a.1975, § 9-17-83(7), the overriding royalty owners of the Ancora tracts in the East Citronelle Unit became subrogated to the rights of Ancora-Citronelle as unit operator, against Ancora when the unit operator appropriated seven-eighths of the oil from the Ancora tracts.
20. Miller Oil Purchasing Company obtained the subrogation rights of the overriding royalty owners whose oil was appropriated when Miller voluntarily paid the overriding royalty owners for their appropriated oil. [Emphasis added.]

Miller made all of its payments, which gave it subrogation rights, prior to the California judgment in question; consequently, as to such limited interest, Miller and An-cora-Citronelle were not in a relationship of privity, and Miller’s right to seek reimbursement of its duplicate payments to the overriding royalty owners is not extinguished by the later California judgment in favor of Ancora-Citronelle against Ancora. To be sure, their respective interests with regard to these payments (for which Miller now seeks reimbursement) were antagonistic, although their interests with respect to the subject matter of the California litigation (the right of appropriation and the amount of operation expenses legally chargeable) were identical, and the adjudication of such issues was essential in apportioning the overriding royalty owners’ interests.

The mutuality of interests requisite to the application of res judicata, which is present in one aspect of the subject matter of the California litigation, is missing in one aspect of the subject matter in the Alabama litigation. That is to say, the subject matter of the California litigation was limited to issues in which Miller and Ancora-Citro-nelle had mutual interests, while the Alabama litigation involves issues that cast these same parties on opposite sides. Thus, the trial court did not err in holding that the California judgment, though binding on the parties and their privies, as to the matter there litigated, does not foreclose Miller, as subrogee, from litigating this claim for matters not included in the California litigation. . See, generally, 46 Am.Jur. Judgments §§ 418 and 420 (1969).

IV. MILLER’S “VOLUNTARY” PAYMENTS TO THE OVERRIDING ROYALTY OWNERS.

Lastly, Ancora submits that Miller was not entitled to a monetary judgment against it because payments by Miller to the overriding royalty owners were made with full knowledge and understanding of its act; thus, the voluntariness of its payment precludes any claim for reimbursement against Ancora. We reject this contention.

A close reading of the record reveals that nonpayment by Miller to the overriding royalty owners would have afforded such owners the option of continuing or cancelling their division orders with Miller. Any such cancellation would, no doubt, have presented adverse consequences to a party, such as Miller, in the business of purchasing oil.

A party compelled, in order to preserve his rights, to pay the debt of another, may recover the amount so paid from the person whose duty it was to pay the debt. Beard v. Horton, 86 Ala. 202, 5 So. 207, 208 (1889); Walker v. Smith, 28 Ala. 569 (1856).

The tendency of courts has been, and still is, to hold that payments made under what, for lack of a better term, we may call business compulsion, are involuntary payments; and that, where a person is called upon either to suffer a serious business loss or to make payment, he may recover that payment as having been made involuntarily. Duke v. Force, 120 Wash. 599, 208 P. 67 (1922). 66 Am.Jur.2d Restitution and Implied Contracts §§ 107-108 (1972).

For us to state that failure .by Miller in making its payments to the overriding royalty owners would not have resulted in a serious business loss would be closing our eyes to glaring realities of the commercial worlds. Likewise we cannot in good conscience say that Miller’s payments were simply voluntary. The evidence of record amply supports the trial court’s finding that, in order to insure a continued oil supply, these payments were mandated, in effect, by the circumstances.

We hold that the circuit court on remand of this cause committed no reversible error in its disposition of these proceedings. In light of our disposition of the issues presented in this appeal, the cross-appeal is rendered moot; thus, any discussion at this point of the issues presented on Miller’s cross-appeal would be superfluous.

AFFIRMED AS TO THE APPEAL AND THE CROSS-APPEAL.

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

      . Oil and Gas Board Order 64-32, approving unitization of the East Citronelle Unit, was issued in December of 1964. Miller filed this action challenging the constitutionality of the unitization statute in February of 1975; Ancora joined in the challenge by amended answer in March 1977.

      . § 9-17-83 and § 9-17-84, Code 1975, clearly require the inclusion of the provisions of § 9-17-83 in the orders of the Oil and Gas Board and the Unit Operating Agreement. What must be included, however, is a provision that permits but does not require appropriation by the unit operator for the payment of unit expenses. See § 9-17-83(7).

      . § 9-17-7(b) specifically provides that no order of the Oil and Gas Board shall be made except after a public hearing upon at least ten days’ notice. Any interested person is entitled to be heard.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Louise EDWARDS v. Dennis K. THORNBURGH and Buddy Bone Realty, Inc.
    79-629.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Rehearing Denied March 24, 1981.

      Frank W. Riggs, Montgomery, for appellant.
    Dana E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellee Dennis K. Thornburgh.
    John A. Henig, Jr., Montgomery, for ap-pellee Buddy Bone Realty, Inc.
   MADDOX, Justice.

This was a suit for specific performance of a written contract for the sale of real property. Plaintiff/appellee Dennis K. Thornburgh filed the suit against defendant/appellant Louise Edwards and asked the court to grant him specific performance of the contract and also asked that the court award damages against Edwards for fraud. After a non-jury trial, the court decreed specific performance of the contract, ordered that a real estate commission be paid to the realty company, but denied Thornburgh’s claim of fraud against Edwards. Appellant Edwards appealed and claims that specific performance of the contract was improper because the contract omitted material terms of the sale and left some material matters to be agreed upon.

To determine whether appellant is correct, we must examine the evidence presented in connection with each party’s claim. The evidence was conflicting on some issues, but there was evidence from which the trial court could have found, as follows:

Louise Edwards, the defendant below, entered into a listing agreement with Buddy Bone Realty, Inc., on September 21, 1978, for the sale of real property belonging to her, located in Elmore County, on Trotters Trail Road.

In early November, 1978, Dennis Thorn-burgh became aware that Edwards’s property in Elmore County was for sale and contacted her to inquire whether a real estate agent was involved. Thornburgh then contacted Dana Hall at Buddy Bone Realty, Inc., to determine the specifics on the property. He subsequently made some oral offers.

On November 8,1978, Thornburgh signed a contract to purchase Edwards’s property at a price of $26,584.50. This offer was submitted to Edwards by Dana Hall of Buddy Bone Realty, Inc. Edwards did not accept this original offer and made a counter-offer in the amount of $27,142.25, by crossing through the original amount listed on the contract, printing in the new figure of $27,142.25, and signing the contract. Upon being informed of Edwards’s counteroffer, Thornburgh rejected this offer and told Dana Hall that he was leaving open his original offer to let Edwards think about it while he looked at some more property. Upon being notified of Thornburgh’s position, Edwards then crossed out her counteroffer, wrote in the original figure of $26,-584.50 and initialed it. Edwards testified that when she wrote in the figure of $26,-584.50 (the original offer of Thornburgh), and put her initials by it, she intended this to be an offer and was willing to sell her property for this amount. Edwards further stated that this was an offer based on what the contract reflected at that time. At the time Edwards initialed the figure $26,-584.50, the down payment had been changed to fifty percent (50%), and was also initialed by her.

Thornburgh testified that Dana Hall contacted him after Edwards had initialed the original figure of $26,584.50, and he concurred that a contract had been made. Both Thornburgh and Hall testified that at that time there were no terms left open for discussion and no further negotiations were contemplated. Thornburgh testified that Edwards, in a telephone conversation which occurred a couple of days later, “pleaded with me to let her out of the contract.” Thornburgh testified that he had never revoked his original offer of $26,584.50, nor had he withdrawn it from Edwards’ consideration. Hall confirmed this fact and also stated that Edwards had not attempted to take her property off the market until days after Edwards had been told she had entered into a contract. Both Edwards and Thornburgh knew there was a contract for her property on Trotters Trail Road, prior to her attempt to take it off the market.

There was testimony at the trial which tended to show that Edwards was concerned about the tax consequences of the sale, but the court could have found that Thornburgh did not have knowledge of this concern until after the contract had been agreed upon. In any event, the court could have determined that Thornburgh was willing to meet whatever requirements Edwards wanted pertaining to any deferred payment of the balance of the purchase price.

The trial court found that the contract between Edwards and Thornburgh was “clear, concise and unambiguous, that Mrs. Edwards agreed to sell all the acreage owned by her located on Trotters Trail Road in Elmore County, Alabama, that it was agreed to by the parties that the sales price was $26,584.50, that the parties agreed Mrs. Edwards is entitled to fifty (50) percent payment at closing and the balance whenever she desired to receive it, without interest, that the Buddy Bone Realty, Inc. is entitled, pursuant to that contract, to a commission of $2,658.45 from the said sale; ...” The court then decreed specific performance of the contract, but found for the defendant, Edwards, on Thornburgh’s fraud count.

Two principles of law should be stated at the outset as they are applicable in the present case. First, the equitable remedy of specific performance rests largely in the discretion of the trial court and may be overturned only if shown to be palpably erroneous. Wray v. Harris, 350 So.2d 409 (Ala.1977), appeal after remand, 370 So.2d 974 (Ala.1979). Second, the findings of a trial court hearing a case ore ten-as, as in the present case, will not be overturned unless palpably erroneous. Smith v. McNaughton, 378 So.2d 703 (Ala.1979).

In order to authorize a decree of specific performance of an agreement to sell land, all the terms of the agreement must have been agreed upon, leaving nothing for negotiation. Murphree v. Henson, 289 Ala. 340, 267 So.2d 414 (1972); Tensaw Land & Timber Co. v. Covington, 278 Ala. 181, 176 So.2d 875 (1965). Appellant contends that the present contract is not subject to a decree of specific performance because there was left open the time for payment of the balance of the purchase price after the down payment was paid.

The trial court found that the parties agreed that the balance would be paid to Edwards whenever she decided to receive it. As previously stated, there was evidence that Edwards was concerned about the tax consequences of the sale and wanted to receive the balance of the purchase price in installments, in order to obtain favorable capital gains treatment. Furthermore, Thornburgh and the real estate agent, Dana Hall testified that the time for payment was discussed and that Edwards was uncertain as to when would be the most advantageous time for her to receive the balance. According to Thornburgh, he was not concerned when the balance was required because he had arranged financing and was assured of having the balance at any time it should be required of him. The determination by the trial court that the contract did not omit material terms of the sale and leave some material facts to be agreed upon is amply supported by the evidence. The finding of the trial court was not palpably erroneous, and there was sufficient certainty in the terms of the contract to support a decree of specific performance.

Appellant’s second argument is that no contract could have existed because she withdrew her counter-offer. We have already set out the facts, but a brief summary of the facts indicate the following sequence of events: (1) Thornburgh made an offer of $26,584.50 by the contract for sale dated November 8, 1978; (2) Edwards rejected that offer by crossing out that figure and made a counter-offer of $27,142.25 by writing in the new figure and signing the contract; (3) Thornburgh orally rejected the counter-offer and stated that his original offer was still open; and (4) Edwards accepted the “original offer” by crossing out her counter-offer, writing in the original figure and initialing the contract thereby*

This sequence of events was held sufficient to create a contract in J. R. Watkins Co. v. Stewart, 220 Ala. 43, 124 So. 86 (1929), where it was held that a contract could be formed on the basis of an original offer, even after a rejection and counter-offer, if the original offeror consented and the original offeree accepted the terms of the original offer.

The trial court apparently found that the above sequence of events occurred, and since there was evidence to support such a finding, we cannot disturb that finding unless it is palpably erroneous. That finding is not palpably wrong; therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    John R. ROBERTS and Marsha N. Roberts v. Jean ALVERSON, Ken Humphries, et al.
    79-749.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Rehearing Denied March 24, 1981.

      William H. Saliba, Mobile, for appellants.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellees.
   SHORES, Justice.

This appeal is from a boundary line dispute resolved in favor of the holder of record title after trial ore tenus and after the trial judge viewed the property. We affirm.

The Robertses own land bordered on the north side by a fifteen-foot alley. They claim the right to an easement over a forty-foot strip consisting of the fifteen-foot alley plus a twenty-five-foot strip to the north of the alley, record title to which is in the appellee Alverson. The Robertses brought this action for a temporary restraining order and permanent injunction after Alver-son erected a fence along the south boundary line of twenty-five-foot strip, the use of which the Robertses claim by prescription by usage over a twenty-year period.

Only one issue is raised on appeal. The Robertses contend reversible error occurred when the trial court sustained objection to the following question put to Mr. Roberts, the plaintiff below:

Q. Prior to that 15 foot stob being put down, while Mr. Malone [defendant Alverson’s predecessor in title] was alive, did you discuss the right-of-way line with him?
A. Yes I did.
Q. And what did he tell you about it?
MR. FRIEDLANDER:
Judge, I object to anything Mr. Malone may have told the gentleman. I don’t know Mr. Malone, Mr. Malone is dead.
THE COURT:
Sustained.

First of all, we observe from the record that the witness was allowed to testify about his conversation with Mr. Malone, including what Mr. Malone told him about the right-of-way, so that if it was error to exclude the quoted question, it was without injury. ARAP 45. It was not error, however, because no predicate was laid as required. In Sandlin v. Sanders, 360 So.2d 977 (Ala.1978), the trial court disallowed a question almost identical to the one here. This Court affirmed, saying:

We find no error in the court’s ruling because the offered testimony violates the hearsay rule. Sandlin failed to establish the necessary predicate that Johnson’s declarations were made while • he was in possession of the land and claiming as owner.
“The declarations of a former owner, since deceased, are admissible in evidence, but in order that they may be received, they must establish some fact, as a cornerstone or particular marked line, and they are not admissible when they are mere statements that certain lands lay within the boundary of such former owner, or that it was the same as had been conveyed in a certain deed, or merely as to facts which might tend to a general reputation as to the true boundary. Also, evidence of declarations by an owner, since deceased, as to boundaries, is inadmissible unless made while he was actually in possession and claiming the land as owner.” 12 Am. Jur.2d, Boundaries, § 107, p. 642 (Footnotes omitted).
Southern Iron Works v. Central of Georgia Railway Co., 131 Ala. 649, 31 So. 723 (1901).

360 So.2d at 984.

The decree of the trial court is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    A. B. McCullough v. L & N RAILROAD COMPANY.
    79-812.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Rehearing Denied March 24, 1981.

      James M. Prestwood, of Prestwood & Prestwood, Andalusia, for appellant.
    W. Harold Albritton of Albrittons & Givhan, Andalusia, for appellee.
   BEATTY, Justice.

This is an appeal by A. B. McCullough, plaintiff, from, a judgment rendered in favor of Louisville and Nashville Railroad Company, Inc. (L & N), defendant. We affirm.

The plaintiff brought this action for damages suffered when his log truck and trailer collided with the defendant’s train in the daytime at the intersection of the railroad with U. S. Highway 31 in Butler County. The evidence disclosed the presence at that crossing of flashing light signals with bells, and signs bearing the words “Railroad Crossing.” Up the highway in the direction of the plaintiff’s approach to the crossing a large cross, containing the letters “RR,” was painted on the highway. Still further back the highway bore warning strips, and a round-shaped sign bearing a cross and the letters “RR” stood beside the highway.

In his complaint the plaintiff alleged that:

At a point on said public highway the defendant operated a railroad train and a crossing. Said crossing was attended by signals to warn motorists of an approaching train.
On the date mentioned above, the warning signals were not operating due to the negligence of the defendant and as a proximate result of said negligence the defendant’s train collided with the plaintiff’s motor vehicle ....

These allegations were followed by allegations of injury to himself and his motor vehicle, and ad damnum claims of $6,000.00 for property damage and $75,000.00 for personal injuries.

A pre-trial hearing resulted in an order which contained this description of the plaintiff’s theory of this case:

2. It was agreed by all of the parties that the following are all of the issues in controversy in this cause:
Plaintiff claims damages of the Defendant ... and as a basis for said claim, alleges that at the time and place mentioned in the complaint, the Defendant operated a railroad train and crossing on U. S. Highway # 31 in Butler County, Alabama, and that said crossing was attended by signals to warn motorists of approaching trains and the Plaintiff alleges that fin the date mentioned in the complaint, the warning signals were not operating due to the negligence of the Defendant in maintaining said signals and, that as a proximate result of the negligence of the Defendant in maintaining said signals, the Defendant’s train collided with the Plaintiff’s motor vehicle

The case was tried to a jury which returned a verdict in favor of the defendant. In his appeal the plaintiff has raised several issues:

1. Whether the trial court erred in its charge to the jury on the measure of damages for injury to personal property;

2. Whether the trial court erred in sustaining the defendant’s objection to a certain portion of the plaintiff’s closing argument;

3. Whether the trial court erred in charging the jury on the “stop, look and listen” rule;

4. Whether it was error for the trial court to refuse the plaintiff’s requested written charges on subsequent negligence;

5. Whether the trial court erred in denying the plaintiff’s motion for a mistrial made in connection with defense counsel’s cross-examination of the plaintiff; and

6. Whether the trial court erred in denying the plaintiff’s motion for a new trial on the ground that plaintiff’s cross-examination of a witness was unduly curtailed.

Issue I.

In his oral charge to the jury the trial judge stated:

Now, I need to give you some of the general rules about damages in this State. The Plaintiff claims compensation in his complaint for his personal property. The measure of damages for injury to personal property is the difference in the reasonable market value of that property immediately before and immediately after the injury, not to exceed the reasonable cost of repair.

Although cost of repair is a factor which might be considered by a jury, it is not the measure of damages for injury to personal property. See Crump v. Geer Bros., Inc., Ala., 336 So.2d 1091 (1976). However, since this erroneous charge concerned the measure of damages, it was harmless because the jury’s verdict was in favor of the defendant. Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965); Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963); Rule 61, ARCP; Rule 45, ARAP.

Issue II.

During closing argument counsel for the plaintiff stated to the jury:

Now, there is no law, according to the rules of [the] road, if there is not a stop sign out there, you keep going.

To this statement the defendant’s counsel objected on the ground that it was an incorrect statement of the law. The trial court sustained that objection, stating “That is not evidence.”

It is not made clear to us why this argument should have been allowed. Although the plaintiff contends in brief that he should have been allowed to argue the point because (later) the court charged on the “stop, look and listen” rule, the.statement manifestly is one on counsel’s view of existing law and not an argument on the facts of the case. Thus the trial judge was well within his discretionary authority to control argument by sustaining this objection. As was stated in Harrison v. State, 78 Ala. 5, at 11 (1884):

Courts have a discretionary power ... to require all propositions of mere law to be argued as such to the presiding judge, and not to the jury. The jury are to receive the law from the court, and not from either the counsel, or from textbooks or adjudged cases. This is a part of the police-power, so to speak, of the court, often necessary to prevent confusion and insure the orderly administration of justice in the trial court.

Not infrequently counsel are permitted to argue legal propositions, even to read legal propositions to the jury. However, as stated in City of Anniston v. Oliver, 28 Ala. App. 390, 185 So. 187 (1938):

But such permission is discretionary with the trial judge, and his refusal to permit such reading is not reversible error. The reason for this is obvious. The duty of the jury is to try the facts and apply such facts to the law as given them in charge by the court. It is the duty of the court to declare the law, and it is the duty of the jury to follow the law as given them in charge by the court....

Perceiving no error in the trial judge’s action, we need not address the correctness of the counsel’s statement made in argument.

Issue III.

The trial court charged the jury on the “stop, look and listen” rule:

The Court charges you that it is the law in Alabama that a person in the process of approaching and attempting to cross a railroad track, with knowledge on his part of the location of the railroad track, is under a duty to stop, look and listen for approaching trains....

The plaintiff contends that this charge contains an erroneous statement of law because it asserts an absolute duty to stop, look and listen at a crossing controlled by an automatic signal device. The plaintiff argues that the law is otherwise, in that a traveler is warranted in giving some degree of reliance upon a signal, and thus to “slow down” in such situations is sufficient.

The charge complained of is taken from APJI 34.12, and is recommended when “there is evidence showing that the person involved knew of the location of the railroad track.” See Pocket Parts, APJI — Civil, Aug. 1980, at 258.

One of the defendant’s defenses was the contributory negligence of the plaintiff. The plaintiff himself had previous knowledge of the railroad crossing. Our decisions established that a railroad track is itself a warning of danger, Louisville & N. R. Co. v. Bailey, 245 Ala. 178, 16 So.2d 167 (1943), and that a person attempting to cross a railroad track on which cars and locomotives are liable to be moving must stop, look in both directions, and listen, before going on the track. Louisville & Nashville R. R. Co. v. Williams, 172 Ala. 560, 55 So. 218 (1911). This rule, though a correct one, does not place an absolute duty to stop, look and listen upon every traveler before he goes upon the crossing, Williams, supra. See also, Sloss-Sheffield Steel & Iron Co. v. Willingham, 240 Ala. 294, 199 So. 28 (1940), where it is observed that the traveler is bound to use ordinary care and prudence to discover the approach of trains, there being no hard and fast rule as to what constitutes contributory negligence. The evidence in this case conflicted. The plaintiff’s theory was that the automatic signal device was not operating until after the accident. This view was sharply disputed by numerous defense witnesses. The plaintiff himself testified that he slowed his truck to fourteen miles per hour but didn’t stop before he got to the track. The circumstances of the collision, the presence of warning signs on the highway, and the disputed evidence of lights flashing, bells ringing, and whistle blowing, made an issue of contributory negligence for the jury. The given charge, therefore, was not an erroneous charge but at most an incomplete one. It is noteworthy that the trial court did not grant the defendant’s motion for a directed verdict at the close of the evidence. Had the court intended to enforce an absolute duty to stop under the circumstances of the case, doubtless he would have granted that motion because the plaintiff’s own evidence affirmatively disclosed that he did not stop. Instead, however, the court submitted the case to the jury. If the plaintiff believed that the jury was misled by the instruction, which was a proper charge, the plaintiff should have requested an additional or explanatory charge, which was not done. McLemore v. Alabama Power Co., 289 Ala. 643, 270 So.2d 657 (1972). Under these circumstances we cannot conclude that the trial court erred in giving the “stop, look and listen” instruction.

Issue IV.

The plaintiff contends that the trial court erred in refusing to give these requested charges:

[Charge I]
The Court charges you that if the Flagman on the Defendant’s train saw the Plaintiff’s truck proceeding toward the crossing but wanted to make up his mind whether Plaintiff was going to stop, before warning the engineer to stop, brings into the case the question of subsequent negligence as I have defined that term to you, because a truck with a load of logs, or trees, could not stop in the distance required for an unloaded vehicle to stop. This rule of law is based on the old doctrine of “Last Clear Chance,” requiring a person to avoid injury to a person in a place of peril.
Charge II For Plaintiff
The Court charges you that subsequent negligence, as I have defined to you, is contained and included in a count of simple negligence.

Charge I was properly' ref used because it placed an undue emphasis on one phase of the evidence, Atlantic Coast Line R. Co. v. Glass, 255 Ala. 183, 50 So.2d 749 (1951), and was argumentative. Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897 (1939).

Charge II was properly refused also, because it merely stated an abstract proposition of law without instructing the jury on its effect upon the .issues in the case. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970).

Issue V.

Defendant’s counsel engaged in a sifting cross-examination of the plaintiff concerning plaintiff’s previous disabilities and periods of hospitalization and treatment. The plaintiff testified that he had not been required to stop work because of any permanent condition, and that except for one period of hospitalization for a lung operation in 1969, he had not been in the hospital or seen a physician within ten years of the accident (which occurred on February 5, 1975). He did not retire, he said, between 1969 and the time of this collision. Then the following occurred:

Q Well, let me ask you this then, Mr. McCullough. Isn’t it true that in 1972 and 1973 that you swore to the Social Security Administration that you were totally disabled and you got qualified for Medicare?
MR. PRESTWOOD: And, we object to that, if the Court please.
MR. ALBRITTON: That is certainly admissible Your Honor.
THE COURT: I would overrule that.
Q Isn’t that true?
A That what now?
Q That you swore to the Social Security Administration that you were disabled and you got a Medicare card for the hospital?
A I don’t remember ever swearing to anything. I may have.
Q In 1973, do you recall being in the hospital in the Mobile Infirmary for hyperthyroidism, emphysema and pulmonary fibrosis and several other things? Do you remember that?
A I remember being in there for thyroid, yes sir.
Q And, that is in 1973, wasn’t it?
A I don’t know what year.
Q Well, would you object to my saying it was 1973 or would you disagree?
A If you have it on the record, I wouldn’t.
Q Now, you told us just a minute ago, you swore to this jury, that you had never been in the hospital between ’69 and ’75, when this wreck happened. That is not true, is it?
A I thought you were referring to a major problem.
Q Oh, but you were in the hospital for about five days in Mobile in 1973, weren’t you?
A I don’t know what year it was.
Q And, when you'were down there, you told them that you were retired for disability and you showed them a Medicare card and it was number 423264674A, isn’t that true?
A If that is the number, yes, sir.
Q And, you had it in ’73?
A I can’t remember the years. I had written to them and asked them for that information, and I don’t know how you got it. I couldn’t get it.
Q Maybe I wanted it more than you did, Mr. McCullough.
THE COURT: Let’s don’t have any side remarks, Mr. Albritton.
Anything like that would be disregarded by the jury....
I tell you what, at this point and time, let’s knock off for lunch.
Ladies and gentlemen of the jury during the noon hour, do not discuss this case among yourselves and do not permit anyone to discuss it with you. And, let’s be back in the jury box at one o’clock.
MR. PRESTWOOD: May it please the Court, before we adjourn, at this time, Your Honor, we would like to make a motion—
THE COURT: We can put in any objection later, take it up when we come back.
MR. PRESTWOOD: I am going to move for a mistrial, based on what counsel said, standing, leaning on the jury rail over there, when he finished interrogating the witness.
THE COURT: And, what statement was that, Mr. Prestwood?
MR. PRESTWOOD: That maybe he wanted it — Your Honor heard it— worse than Mr. McCullough.
THE COURT: Ladies and gentlemen of the jury, I think, I excluded that from your consideration. Is there anyone of you that feels that from that comment, that you could not make up a fair and impartial verdict, based on the evidence in view of that comment? Anyone of you think that you could not make a fair verdict ....
If not, the motion is overruled.
MR. PRESTWOOD: And, we except to the ruling of the Court.

While we do not condone counsel’s remark to the witness, we must take note that the trial court acted immediately by excluding it from the jurors’ consideration, and then polled the jury upon any possible adverse effect it might have had upori their consideration of the evidence. None was shown. Our consideration of his action and of the record persuades us that the trial court’s action overruling the motion for a mistrial was not improper. Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858 (1969).

Issue VI.

The plaintiff’s final point is that the trial court erred in unduly limiting his cross-examination of an expert witness for the defense. We cannot agree.

'The witness, Mr. Moe, testified on direct examination with respect to an inspection of the electrical warning system which was placed by the defendant to control the intersection. During that interrogation Mr. Moe referred to the file of periodic inspection reports located within the signal box. On his cross-examination that subject was also explored:

Q Now, when you went into the signal box, did you take out the reports that Mr. Carpenter had filed in that box?
A No. I did not.
Q Did you look at them?
A Yes, I did.
Q You didn’t bring them with you?
A No. I looked at them, and I — While they were in the case.
Q Did you make a report with anybody about your investigation?
A No. I used it as an input in my own investigation to satisfy myself about the methods that the L & N utilized in maintaining that crossing.
Q What period of time did those reports cover?
A I don’t remember specifically, but it was from a substantial period before this crossing — this accident and a substantial period afterwards. Almost, I would say, from probably six months to a year before, at least, up until the present date or the then present date of December.
Q And, you didn’t take them out and make photocopies?
A No.
Q Or make an independent report to anyone in writing about what you found on those?
A No, I did not.
Q All right. Do you really remember what was on those reports?
A I remember the significance of the reports, rather than the specific times and dates. A system of that sort requires periodic inspection and maintenance and I wanted to satisfy myself that this had properly been done. The frequency of dates and of reports did, in fact, satisfy me that it had been properly done. And, it was a continuous maintenance record that showed that it was being properly taken care of.
Q How much are you paid for testifying in this case and making your inspections? What is your fee?
A What is my fee?
Q Yes. What is your fee?
A Twenty-five dollars ($25.00) an hour.
Q Would you know what it is now, what it was accumulated to, total?
A No. I don’t. I could estimate it, but I don’t know what it is. My fee is not that great a concern.
Q Well, I have the right to ask it?
THE COURT: He has answered it. Go ahead.
MR. PRESTWOOD: He volunteered that, Your Honor.
THE COURT: All right.
Q Did anyone tell you not to bring the Carpenter report in this courtroom?
A Oh, heaven’s no, not at all. There was .... Those reports there are basic things that appear in every single case and the results, as indicated on there, were just excellent. They showed—
Q You are saying that, but you don’t have the papers or the documents—
A I can assure you if I found anything wrong with those—
Q We don’t want any generalizations. I want to know if you had them here before the jury, if you could explain month by month, everything that went wrong with that signal; and that it was properly cared for?
A Why certainly, any problems that there were, were noted thereon.
The replacement of occasional burned out bulbs—
Q I am not asking you that?
A Everything is on there.
Q Mr. Moe, I am asking if you had brought them in here and showed them to me and to the court and to the jury, wouldn’t it have been simpler to go week by week, month by month to show the performance of that particular signal?
MR. ALBRITTON: Judge, Mr. Prest-wood is—
THE COURT: I sustain the objection to that question.
MR. PRESTWOOD: We except.
THE COURT: It is argumentative.
MR. PRESTWOOD: He had this witness testify for nearly thirty minutes on direct—
THE COURT: You have your exception in the record.
MR. PRESTWOOD: And, we would like to cross-examine him.
THE COURT: You may cross-examine him.
MR. PRESTWOOD: All right, sir. And, we intend to continue with our cross-examination.

Following that, the record discloses that the cross-examination continued. The objection to the question, “... wouldn’t it have been simpler to go week by week ... ?” was well taken and properly sustained on the ground that the question was argumentative. That ruling, however, did not in fact curtail the cross-examination on the contents of the reports in question, or upon other matters, as the record discloses. No abuse of the trial court’s discretion in controlling the scope and extent of cross-examination is shown. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

No reversible error having been shown, the judgment entered below must be, and is, affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Keith L. GROOM and wife, Betty S. Groom v. Jerrell REYNOLDS and wife, Omi Joyce Reynolds.
    79-623.
    Supreme Court of Alabama.
    March 26, 1981.
    J. E. Sawyer, Jr. of Rowe, Rowe & Sawyer, Enterprise, for appellants.
    Joe S. Pittman of Pittman, Whittaker & Hooks, Enterprise, for appellees.
   ADAMS, Justice.

This is a statutory ejectment action filed by Keith and Betty Groom against Jerrell and Omi Joyce Reynolds to recover a tract of land containing approximately three acres of farmland in Coffee County, Alabama. The action arises out of a boundary dispute between owners receiving their property from common grantors. The deeds from the common grantors contain conflicting property descriptions, one by plat and the other by natural monuments. The disputed three acres lies between a plat line and one of these natural monuments, the Alto McIntosh Road. The jury returned a verdict for the Grooms finding the plat description to contain the true boundary. The trial court granted the Reynolds-es’ motion for judgment notwithstanding the verdict, and, in the alternative, granted their motion for new trial as allowed under Rule 50, ARCP. The Grooms appeal, contending the jury verdict is supported by the evidence.

On November 22, 1976, John LeCompte and his wife, Martha, the common grantors, executed a deed conveying the following described property to the Reynoldses:

All that part of the SW V* of the NE Vi, Section 15, Township 3 North, Range 21 East lying east of the Alto McIntosh Road. Said property being bounded on the East by lands of Onyx LeCompte, on the North by James Kyser property, on the West by Alto McIntosh Road, and on the South by the LeCompte Road, a paved road. Less and except one acre heretofore conveyed by Grantors to Grantees in 1962, and one acre consisting of the dwelling house of the Grantors. Said tract containing in all 18 acres, more or less. [Emphasis added.]

Several years later the LeComptes conveyed the remainder of their farm property, which adjoined that conveyed to the Reyn-oldses, to the Grooms. Executed on July 2, 1979, this deed contained in part the following relevant property description:

N V2 of NE Vt, SE Vi of NE Vt, Section 16, S V2 of NW Vt, W k of SW Vi of NE Vi and the NW Vi of NW Vi less 10 acres on the east side thereof in Section 15, all in T3, R21, situated, lying and being in the County of Coffee and State of Alabama. LESS AND EXCEPT: All that part of the SW Vi of NE Vi, Section 15, Township 3 North, Range 21 East, lying east of the Alto McIntosh Road, and containing 18 acres, more or less. Said property being bounded on the East by lands of Onyx LeCompte, on the North by James Kyser property, on the West by Alto McIntosh Road, and on the South by the LeCompte Road, a paved road. Less and except one acre heretofore conveyed by Grantors to Grantees in 1962, and one acre consisting of the dwelling house of the Grantors. Said tract containing in all 18 acres, more or less. [Emphasis added.]

The “less and except” clause in the Groom deed simply restates the property description contained in the Reynolds deed.

The SW Vi of the NE Vt, Section 15 described in the Reynolds deed and the S V2 of the NW Vi, Section 15 described in the Groom deed are adjacent parcels of land separated by a straight plat line running North and South. The Alto McIntosh Road, described in both of the deeds, overlaps this plat line at its southern end, but it deviates from the plat line as it proceeds north, thereby cutting into the eastern portion of the Groom parcel. It is this severed portion that the Grooms seek to recover in this ejectment action. (See map, Appendix I.)

This Court recently held that, when a deed contains conflicting property descriptions, parol evidence is admissible to ascertain which description the parties intended to adopt. Campbell v. Carl, 395 So.2d 480 (Ala.1981). The parol evidence in this case is in conflict. One of the common grantors, Martha LeCompte, testified that she only intended to convey to the Reyn-oldses the property contained in the plat description. Yet, Wynelle Lassetter, an employee of the Department of Agriculture, testified to the opposite effect. She said that Jerrell Reynolds and John Le-Compte came to her office to record a change in property ownership as it affected crop quotas. She testified to the effect that her office records of this “farm reconstitution date” indicated that the parties intended the Alto McIntosh Road to be the line between them.

Finding that conflicting evidence was presented on the determinative issue of which boundary was intended by the parties, we hold that the trial court erred in granting the Reynoldses’ motion for judgment notwithstanding the verdict. As the controlling principles were stated in Hanson v. Couch, 360 So.2d 942, 944 (Ala.1978):

When reviewing the propriety of a trial court’s order granting a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party who secured the jury verdict. Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir. 1976); White v. Packer, 345 So.2d 312 (Ala.Civ.App. 1977). See Justice Maddox’s dissent in Bethune v. City of Mountain Brook, 336 So.2d 148, at p. 151 (Ala.1976). Such motion should be denied if there is any conflict in the evidence for the jury to resolve and the existence of such conflict is to be determined by the scintilla rule. White v. Packer, supra; McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975). [Emphasis added.]

On the other hand, the trial court did properly grant the Reynoldses’ motion for new trial. Quoting Hubbard Bros. Construction Co., Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975), this Court recently summarized the rules governing appellate review of rulings on motion for new trial, viz.:

1. Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness.
2. When the trial court grants a new trial motion, without specifying the grounds therefor, the ruling must be sustained on appeal if any good ground is presented by the motion.
3. When the trial court grants a new trial, without specifying the grounds therefor, and one of the grounds is that the verdict is contrary to the evidence, the appellate court presumes that it was because the trial court concluded the verdict was contrary to the great preponderance of the evidence or the verdict was unjust in the light of the evidence.
4. In such circumstances as 3, the appellate court will not reverse the order granting a new trial unless it appears that the great weight of the evidence plainly and palpably shows the trial court was in error.
5. In such circumstances as 3, and where the evidence is in conflict and when, upon review thereof, the appellate court cannot say that the great weight of the evidence plainly and palpably supports the jury’s verdict or it is not convinced that the evidence plainly and palpably shows the trial court to be in error, then the order granting a new trial should not be disturbed.

Little v. Pate, 388 So.2d 941, 942 (Ala.1980).

We cannot find from the facts that the trial court abused its discretion in granting, in the alternative, the Reynoldses’ motion for new trial. Considering the conflict in evidence over the determinative issue of which boundary line the parties intended, we are not convinced that the evidence plainly and palpably shows the trial court to be in error. Though the trial court erred in granting the motion for judgment notwithstanding the verdict, the alternative judgment granting a new trial is due to be affirmed.

REVERSED IN PART, AFFIRMED IN PART.

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

APPENDIX I


author: TORBERT, Chief Justice.

text:
    CITY OF BIRMINGHAM, a municipal corporation v. CITY OF FAIRFIELD, a municipal corporation and Maurice R. Watkins et al.
    79-473.
    Supreme Court of Alabama.
    March 27, 1981.

      James K. Baker, L. H. Warren, and Herbert Jenkins, Jr., Birmingham, for appellant.
    Norman K. Brown, Bessemer, for appel-lees.
   TORBERT, Chief Justice.

This appeal is from an amended final judgment which, in addition to rendering judgment in favor of appellant, City of Birmingham (Birmingham), taxed costs one-half to each party. Appellant Birmingham now challenges the cost allocation. We affirm.

In a prior appeal by Birmingham, this case was reversed and remanded to the circuit court by our ruling of August 31, 1979 (reported at 375 So.2d 438). Upon remand, Birmingham filed a motion to re-tax costs and sought additional relief. The trial judge granted the motion, and in the final judgment he taxed all costs against the City of Fairfield (Fairfield). Fairfield then filed what was denominated as a Rule 60 Motion for Relief from Final Judgment, requesting that the judge reconsider his allocation of costs. The judge granted Fairfield’s motion and amended the final judgment to tax costs one-half to each party. From the amended final judgment, Birmingham appealed.

In response to Birmingham’s appeal, Fairfield filed a motion to dismiss. As grounds for the motion, Fairfield argues several points; however, the issue meriting examination is whether an appeal will lie from a judgment, entered after remand, which only renders judgment in accordance with the appellate opinion and taxes costs.

The strength of Fairfield’s argument on the motion lies in general statements taken from legal encyclopedias. Typical is the rule discussed in Corpus Juris Secundum: “The court will not hear an appeal merely to determine the right to costs.” 4 C.J.S. Appeal and Error § 40(f) (1957). See also, 4 Am.Jur.2d, Appeal and Error, §§ 128, 129 (1962); C. Wright and A. Miller, Federal Practice and Procedure, Civil § 2668 (1973). However, as examined in Annot., 54 ALR 2d 927' (1957), the rule is not uniformly followed, and in jurisdictions in which the rule exists, there are exceptions. Although most recent Alabama cases support the view that the award of costs is appealable, see e. g., Dozier v. Payne, 244 Ala. 476, 14 So.2d 376 (1943); Ex parte Crawford, 244 Ala. 493, 14 So.2d 379 (1943); Watson v. Spinks, 240 Ala. 291, 199 So. 1 (1940), those cases were decided under a statute allowing appeal from the grant or denial of a motion to retax costs. That statute has no counterpart in our current code, at least with regard to proceedings in district or circuit courts.

Fairfield asserts that the order in question is not an appealable “final order” within the meaning of Code 1975, § 12-22-2. We have previously defined “final judgment” as a decree which “ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated or necessarily involved in the litigation.” Morton v. Chrysler Motors Corp., 353 So.2d 505 (Ala. 1977). But an order is no less a final judgment because it is entered pursuant to appellate dictate, even though taxation of costs is embraced in the decretal order.

In the case of Morton v. Chrysler Motors Corp., 353 So.2d 505 (Ala. 1977), the question was whether the time of entry of summary judgment or the subsequent taxation of costs was the time from which the deadline for appeal was computed. We applied the test for finality quoted above and found that entry of summary judgment rather than entry of the award of costs was entry of final judgment. In contrast to the situation in Morton, here there is no question that the taxation of costs was embraced in the final judgment.

Since the ruling on costs was included in the amended final judgment, this Court has jurisdiction of the appeal. See Code 1975, § 12-22-2. Where, as here, the only issue decided on final judgment is allocation of costs, the merits having been resolved on a previous appeal, our review is necessarily confined to the costs issue. Whether we address the merits of Birmingham’s appeal, then, is not a question of jurisdiction — it is a question of judicial policy.

The general rule of non-appealability of a costs award is founded on the rationale that judicial time should not be spent on the costs issue when there are no issues from the principal controversy to be decided. While we appreciate the policy behind the rule, we also recognize the countervailing interest which favors appellate review of decisions by the lower court. Since “costs [are] allowed to the prevailing party, unless the court otherwise directs,” ARCP 54(d), the award of costs is a discretionary ruling by the trial judge. Absent a right of appeal, there can be no review of the costs allocation, even though abuse of the trial judge’s discretion is claimed.

Our ruling today should not be viewed as overruling cases such as Jim Walter Corp. v. Green, 285 Ala. 176, 230 So.2d 234 (1970), and City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545 (1965). In those cases the appeal was dismissed because circumstances or events intervening while the appeal was pending rendered the principal controversy moot. Since all issues were resolved other than the costs issue, we dismissed the appeals. Unlike the instant case, the Jim Walter and City of Mobile cases did not involve original appeals brought on the basis that the trial judge abused his discretion in the allocation of costs. We hold that Birmingham’s appeal is properly before us, and Fairfield’s motion to dismiss is denied.

Birmingham contends that Fairfield’s Rule 60(b) motion to reconsider the taxing of costs was improper, because the motion was used merely as a substitute for appeal. See, Burton v. Burton, 379 So.2d 617 (Ala. Civ.App.1980); Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.), cert. den., 348 So.2d 1065 (Ala. 1977); Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976). While we give credence to the rule urged by Birmingham, we do not believe it can properly be applied to Fairfield’s motion, because the motion is not in substance a 60(b) motion.

A 60(b) motion can request relief from a judgment on any one of six enumerated grounds. Here, Fairfield’s motion requested reconsideration of the legal conclusions on which the judgment was based. Of the possible grounds for relief, only grounds (1) and (6) could conceivably be the basis for the relief sought.

Rule 60(b)(6) permits a court to relieve a party from a judgment for “any other reason justifying relief from the operation of the judgment.” ARCP 60(b)(6). Federal case law, which we take to be persuasive here, see, Assured Investor’s Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala. 1978), holds that 60(b)(6) motions are available only in cases not within 60(b)(l)-(5), are reserved for extraordinary circumstances, and are available only in cases of extreme hardship or injustice. C. Wright and A. Miller, Federal Practice and Procedure § 2864 at 219-20 (1973); 7 J. Moore Federal Practice ¶60.27[1] (2d ed. 1979). A simple request for the judge to review his legal conclusions cannot fall within the purview of subsection (6).

Whether Fairfield’s motion falls within Rule 60(b)(1) is a closer question. At issue is whether “mistake, inadvertence, surprise, or excusable neglect” as used in Rule 60(b)(1) encompasses “mistakes” of law by the trial judge. ARCP 60(b)(1) and FRCP 60(b)(1) are identical, and in the federal system the cases are divided as to whether relief can be had under the rule for an error of the court.

Former Chief Judge Aldrich of the First Circuit Court of Appeals expressed one view:

Professor Moore would construe a motion which . .. seeks reconsideration of a point of law [as within 60(b)(1)], 7 J. Moore, Federal Practice ¶ 60.22[3] (2d ed. 1970). His pronouncement has produced some converts. See Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750, 752; McDowell v. Celebrezze, 5 Cir., 1962, 310 F.2d 43; cf. Gila River Ranch, Inc. v. United States, 9 Cir., 1966 368 F.2d 354; but see Swam v. United States, 1966, 7 Cir., 1964, 327 F.2d 431, cert. denied 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55. It has also apparently given rise to some disquietude. Hoffman v. Celebrezze, 8 Cir., 1969, 405 F.2d 833; Schildhaus v. Moe, 2 Cir., 1964, 335 F.2d 529. We neither understand the basis for this interpretation), nor sympathize with it. If the court merely wrongly decides a point of law, that is not “inadvertence, surprise, or excusable neglect.” Moreover, these words, in the context of the rule, seem addressed to some special situations justifying extraordinary relief. Plaintiff’s motion is based on the broad ground that the court made an erroneous ruling, not that the mistake was attributable to special circumstances. We would apply the same equitable conception to “mistake” as seems implicit in the three accompanying grounds, under the principle of noscitur a sociis.
A contrary view, that “mistake” means any type of judicial error, makes relief under the rule for error of law as extensive as that available under Rule 59(e), which permits motions to “alter or amend judgments.” Obviously any such motion presupposes a mistake. Indeed, the argument advanced is that a broad construction of “mistake” beneficially extends the ten-day limit for motions under Rule 59(e). Calling this a benefit loses sight of the complementary interest in speedy disposition and finality, clearly intended by Rule 59.

Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.), cert. denied, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971).

Without discussing the merits of the view that would allow some types of judicial error to fall within 60(b)(1), we believe the alternative expressed by Judge Aldrich should prevail in Alabama, at least where the movant seeks reconsideration of pure points of law.

Although Fairfield’s motion cannot be viewed as a 60(b) motion, Fairfield’s motion is properly a 59(e) motion to alter or amend. The label placed on a motion does not bind our substantive review. Irrespective of Fairfield’s denomination of its motion, the motion was effective as a 59(e) motion to raise the costs issue to the trial judge.

Birmingham argues it was an abuse of discretion for the trial judge to grant Fair-field’s motion and to retax costs. The argument is two pronged. First, Birmingham argues that Fairfield did not meet its burden on the motion because it argued no additional facts or authority other than those initially argued on Birmingham’s original motion to retax costs. Birmingham also contends that it was an abuse of discretion for the judge to grant Fairfield’s motion and to retax costs one-half to each party, because Birmingham was the prevailing party in the litigation.

Since Fairfield’s motion was in substance a 59(e) motion, Birmingham’s argument that Fairfield did not meet its burden on the motion is not well taken. In a 60(b) motion the burden is on the movant to establish one of the six enumerated grounds entitling him to relief from the judgment. 7 J. Moore, Federal Practice ¶ 60.28 at 410 (2d ed. 1979). Because Fairfield’s motion simply reargued legal and factual propositions going to the costs issue, Fairfield would not have met the burden required on a 60(b) motion. But we have construed the motion herein involved to be within Rule 59(e). The motion here is what has been called a motion to reconsider or to rehear, and Fairfield’s reargument of germane legal propositions is sufficient to call attention to alleged legal error.

Finally, Birmingham argues that the judge abused his discretion by taxing costs one-half to each party. The Rules of Civil Procedure generally govern allocation of costs, and Rule 54(d) provides: “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” Birmingham urges that under the rule it is prima facie entitled to the cost award, but in his order the judge gave no reason for his decision otherwise. Birmingham believes it was an abuse of discretion for the judge to tax a portion of the costs to it, the prevailing party, because there was no showing to overcome the presumption created by Rule 54(d).

We have said that since the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when we are called upon to construe the Alabama Rules. Assured Investors Life Ins. Co. v. National Union Associates, 362 So.2d 228 (Ala. 1978). In the federal system there is strong authority that a court must supply a reason for its denial of costs to the prevailing party. The Fifth Circuit Court of Appeals has said:

The trial court has broad discretionary powers in taxing costs, but its decision may be overturned if it abuses that discretion. Harrington v. Texaco, Inc., 339 F.2d 814 (5th Cir. 1964), cert, denied, 381 U.S. 915, 85 S.Ct. 1538, 14 L.Ed.2d 435. While the rule [54(d)] does not prevent a trial court from requiring a prevailing party to bear its own costs, “the language of the rule reasonably bears the intendment that the prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome that presumption ... [since] denial of costs ... is in the nature of a penalty for some defection on his part in the course of the litigation.” Popeil Brothers v. Schick Electric, Inc., 516 F.2d 772, at 775 (7th Cir. 1975). Accordingly, when a trial court exacts such a penalty, it should state reasons for its decision.

Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977).

The committee comments to our own rules indicate that Rule 54(d) was meant as a retreat from the view that taxing of costs is entirely discretionary.

This subdivision, modelled on Federal Rule 54(d) adopts the law practice of costs to the prevailing party unless the court otherwise directs, Code of Ala., Tit. 11, § 65, in preference to the equity practice which commits the entire matter to the discretion of the court. Equity Rule 112.

ARCP 54(d) (comments).

We believe the reasoning in the federal cases is sound, and, unless the judge’s rationale for awarding costs other than to the prevailing party is otherwise manifest, we believe it should be expressed in his order.

However, as provided in Rule 54(d), the presumption of award to the prevailing party can be abrogated by statute. ARCP 54(d). In the case of Ex parte Osborn, 375 So.2d 467 (Ala. 1979), we affirmed the trial judge’s allocation of the costs in a declaratory judgment action. Under the Declaratory Judgment Act, the judge may award costs “as may seem equitable and just,” Code 1975, § 6-6-231, and since Osborn was a declaratory judgment action, the costs allocation was by statute entirely discretionary and not within Rule 54(d).

The case before us is also a declaratory judgment action. The judge’s cost ruling is entirely discretionary, and we will not reverse unless it appears from the record, after indulging all fair intendments in favor of the ruling, that the taxation of costs was unjust and unfair. Walden v. Walden, 277 Ala. 459, 171 So.2d 851 (1965). Upon consideration of the type of action, the issues resolved, and the nature of the costs involved (primarily master’s fees), we are unable to conclude that the trial judge abused his discretion.

AFFIRMED.

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

       For further discussion of the issue, see 7 J. Moore, Federal Practice ¶ 60.22[3] (2d ed. 1979), C. Wright and A. Miller, Federal Practice and Procedure § 2858 (1973).


author: WRIGHT, Presiding Judge.

text:
    Keith E. JOHNSON v. Dolores F. JOHNSON.
    Civ. 2337.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1980.
    Rehearing Denied Jan. 21, 1981.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    Kelby E. Strickland, Jr. of Strickland, Stoddard & Strickland, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1976. By agreement, the divorce decree awarded custody of the two minor children to the husband. No provision regarding child support was made. The wife was allowed reasonable rights of visitation.

In 1979 the wife filed a petition to modify, seeking custody of the parties’ children. The husband filed an answer and a cross-petition seeking child support and attorney fees from the wife and specific rather than reasonable visitation rights.

After hearing ore tenus, the trial court denied the wife custody but set specific visitation rights. The husband’s petition seeking child support and attorney’s fees from the wife was ' denied. He appeals.

The first issue is whether the trial court erred in failing to award child support to appellant-husband.

Husband argues in his brief that Alabama’s rule placing the primary responsibility for support of minor children on the father is unconstitutional as violative of the equal protection clause of the fourteenth amendment to the U.S. Constitution. It appears that appellant has presented this argument initially on appeal. We have examined the record carefully and found no evidence that such argument was put forth at trial. This court will not entertain for the first time on appeal an issue never raised in the proceedings below. Weeks v. Weeks, 373 So.2d 848 (Ala.Civ.App. 1979). However, we review the issue of child support in view of the facts as revealed by the record.

The award of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal except for palpable abuse. 8 Ala.Dig., Divorce, Key Nos. 296 and 312.6(4). The facts which led to the exercise of the court’s discretion in the present case reveal the following:

The husband earns about $29,800 annually, with about $1,462 take-home pay per month. The wife earns $12,069 per year or about $655 take-home pay per month. The wife keeps the children at least two weekends every month, one month during the summer and on alternate holidays and birthdays. She takes the children on trips occasionally and provides for their support and care while in her keeping. Although the husband introduced evidence that his total expenses including child care exceeded his net income, he also testified that he could support the children without his wife’s help.

Where the trial judge hears the evidence ore tenus, we will not disturb his decision as to child support unless that decision is so unsupported by the evidence as to be unjust and palpably wrong. Edison v. Edison, 384 So.2d 1118 (Ala.Civ.App.1980). The decision of the court denying the husband’s request for child support is sufficiently supported by the evidence to withstand the charge of abuse of discretion. There was no error in that decision.

The appellant also contends the trial court erred in failing to award attorney’s fees and costs to appellant. We disagree.

It is undisputed that a trial court may award attorney’s fees to a party in a case such as this if it deems such award proper. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). But the allowance of such fees rests in the sound judicial discretion of the trial court, which must consider such factors as labor and skill involved, results of the litigation and the earning capacities of the parties. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977). Here both parties sought an award of attorney’s fees at trial. The court awarded the requested fees to neither. We do not find that decision erroneous. Young v. Young, supra.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Keith E. JOHNSON (Re: Keith E. Johnson v. Dolores F. Johnson).
    No. 80-317.
    Supreme Court of Alabama.
    March 24, 1981.
    Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for petitioner.
   PER CURIAM.

The writ is denied.

In denying the writ, we also point out that, as noted by the Court of Civil Appeals, the constitutional issue was initially raised on appeal; hence, it was not timely raised.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    J. S. WALTON AND COMPANY v. Thomas E. REEVES.
    Civ. 2364.
    Court of Civil Appeals of Alabama.
    Feb. 25, 1981.
    Rehearing Denied March 18, 1981.

      Bert S. Nettles and J. F. Janecky, Mobile, for appellant.
    Steve Olen of Howell, Johnston, Lang-ford, Finkbohner & Lawler, Mobile, for ap-pellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The evidence reveals the following pertinent facts. Thomas E. Reeves was employed by J. S. Walton and Company as a carpenter-foreman and had been so employed for a number of years. He has an eighth grade education and no skills other than as a carpenter and carpenters’ foreman. These occupations have been his principal employment since adulthood. He was sixty years old at trial time.

On July 6, 1978, while standing in an excavation hole on a highway project being constructed by Walton and Company, Reeves was pinned to one bank of the hole by a front-end loader operated by another employee. His right leg was mangled and his left thigh was bruised and contused. Reeves was taken to a hospital where the right leg was amputated above the knee.

After being released from the hospital, Reeves’s right leg was fitted with a prosthesis by an amputee clinic in Mobile.

Reeves testified that he must use a walking cane to assist him in walking when outside the house. He says he cannot lift heavy objects, that he cannot stand for any length of time because this causes the left leg to swell and hurt and the stump to bleed and hurt, and that he cannot walk on uneven ground or in areas where there is a lot of debris without risking falling.

The medical testimony tended to show that Mr. Reeves could not bend or stoop to pick up objects, that walking would tire him and that after several hours of walking his back would hurt due to the physical effort involved in throwing his artificial leg around. Reeves is limited in the amount of turning and reaching he can do. He also cannot climb stairs or ladders. In addition there was medical evidence to the effect that Reeves, due to his age, education, training and occupation, was not employable or trainable. One of defendant’s rehabilitation counselors stated that vocational rehabilitation for Reeves was not practicable.

Reeves filed an action against J. S. Walton and Company alleging that as a result of his job-related injury he was permanently and totally disabled and was unemployable as a carpenter. Defendant answered that plaintiff was well able to resume his job as a'supervisor, that defendant would accept plaintiff as a carpenter supervisor with any reasonable medical restrictions but that plaintiff had refused its offer.

After an ore tenus hearing the trial court made several findings of fact. Included among them was a finding that plaintiff was permanently and totally incapacitated from working as a carpenters’ foreman and he could not be retrained or rehabilitated for gainful employment and that defendant’s offer to plaintiff of his old job at the same salary was properly rejected because plaintiff might be a hazard to himself and others if he resumed his old employment.

Defendant appeals and contends here that: (1) the trial court erred in finding that plaintiff was totally and permanently disabled and therefore unable to work when in fact defendant had offered him a job as a supervisor with any reasonable medical restrictions that might be imposed; (2) the trial court erred in refusing to suspend compensation payments to plaintiff for his refusal to undergo vocational rehabilitation; (3) the trial court erred in not restricting plaintiff’s compensation to that provided in § 25-5-57(a)(3)a for the loss of a leg; and (4) the trial court erred in not finding that plaintiff had taken an early retirement rather than engage in vocational rehabilitation. We will consider defendant’s arguments in the order in which we have listed them.

Section 25-5-57(a)(4)d of the 1975 Code of Alabama defines a permanent total disability as follows:

any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment ....

We have construed this section of the 1975 Code to mean that an employee who suffers a physical injury as a result of an accident arising out of and in the course of his employment which permanently and totally incapacitates him from both working at his pre-injury trade or profession and being retrained for gainful employment in a new trade or profession commensurate with his education and post-injury physical limitations may be considered permanently and totally disabled under our workmen’s compensation laws. See generally Den-Tal-Eze Manufacturing Co. v. Gosa, Ala.Civ.App., 388 So.2d 1006 (1980). However, an employee whose disability results from such injury and who has refused to undergo physical or vocational rehabilitation shall not be deemed permanently and totally disabled. § 25-5-57(a)(4)d, Code of Alabama 1975. Also, if an employee is receiving permanent total disability benefits and refuses to undergo vocational rehabilitation when requested by the employer, he shall lose his benefits during the period of refusal. § 25-5-77(c) and (d), Code of Alabama 1975; see also Scott v. Alabama Machinery & Supply Co., 52 Ala.App. 459, 294 So.2d 160 (1974).

As pointed out above, the trial court concluded that plaintiff was permanently and totally incapacitated from working as a carpenters’ foreman and that he could not be retrained for gainful employment. This conclusion must be upheld if there is any legal evidence to support it. See Hill v. J. P. Stevens & Co., Ala.Civ.App., 360 So.2d 1035 (1978).

There is evidence in the record to support the trial court’s conclusion that plaintiff could not work as a carpenters’ foreman or as a supervisor of such foreman and that because of his age, education, mental attitude, and limited mobility he could not be retrained for gainful employment. Defendant says, however, that Reeves is not being asked to return to his old job doing the same thing he did before his injury. It is urged that the employer is willing to accept any reasonable medical restrictions placed on plaintiff’s employment in order to obtain his services. The employer argues vigorously that, contrary to Reeves’s belief, the job offer is not a sympathy gesture but is, in fact, a genuine offer of employment.

Plaintiff responds by pointing out his physical limitations and noting that he could not inspect the work of the carpenters under his control who would be building wooden forms for culverts and drainage ditches on highway construction projects. He said that he could not be a foreman and supervise workers under him if he could not inspect their work. He contends that the requirements of the job that defendant wants done are the same as before his injury. He would still be required to supervise the work of the carpenters on the job and he cannot do the job as it should be done with his limitations. The other evidence supports his contentions.

Also the medical evidence shows that Reeves will not be able to bend or stoop, nor can he walk safely on uneven ground or in areas where the surface is not smooth and free of obstacles that might cause him to trip and fall.

Based on the evidence in the record, we cannot say that the trial court erred in concluding that plaintiff could not work as a carpenters’ foreman even under the relaxed working conditions that defendant suggested that it would be willing to accept.

Defendant’s next contention is that the trial court erred in not finding that plaintiff’s refusal to undergo vocational rehabilitation required suspension of the permanent total compensation benefits for each week of his refusal or deprived him of the right to be classified as permanently and totally disabled.

Section 25-5-57(a)(4)d of the 1975 Alabama Code provides that an employee who may otherwise be considered permanently and totally disabled shall not be deemed to be so disabled if he refuses to undergo physical or vocational rehabilitation. In addition:

If the employer so elects, the employee shall submit to and undergo vocational rehabilitation at the employer’s expense through a vocational rehabilitation facility or institution recommended by a vocational rehabilitation specialist, which facility or institution shall be qualified to render competent vocational rehabilitation service....
... Refusal of the employee to accept rehabilitation at the employer’s request shall result in loss of compensation for each week of the period of refusal.

Code of Alabama 1975, § 25-5-77(c) and (d).

In the case at bar the evidence shows that plaintiff did submit himself to a vocational rehabilitation counselor employed by defendant and that counselor reported to defendant that plaintiff was not able to pursue productive employment and that vocational rehabilitation was not feasible. Also one of plaintiff’s attending physicians testified that plaintiff was not trainable or employable considering his age, education, training and mobility and that to require him to submit to vocational rehabilitation would be demeaning and fruitless.

In Den-Tal-Eze Manufacturing Co. v. Gosa, supra, we said that the question whether an employee can be rehabilitated to another vocation is one of fact for the trial court. We believe the evidence is sufficient to support the finding of the trial court that plaintiff could not be rehabilitated for another job.

Defendant also says that plaintiff refused to cooperate with its rehabilitation efforts. The evidence is in conflict as to plaintiff’s efforts to be rehabilitated, and the weight of such evidence is not before us for resolution. See Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453 (1964). However there is evidence in the record that plaintiff did cooperate fully with defendant’s first rehabilitation expert and that person determined that rehabilitation for plaintiff would not be worthwhile. Furthermore, one of the doctors treating plaintiff said that to require plaintiff to undergo rehabilitation would be fruitless and demeaning. We find no error here.

Defendant’s next contention is that the trial court erred by not limiting plaintiff’s compensation to that provided in § 25-5-57(a)(3)a for the loss of a leg. Defendant says there is no proof that the effects of the loss of plaintiff’s right leg produced a greater or more prolonged incapacity than would normally have resulted from the amputation; hence the compensation payable to plaintiff should have been limited to those benefits payable for loss of a scheduled member of the body.

Section 25-5-57(a)(3)a provides that a permanent partial disability resulting from the loss of a leg shall be compensated by paying the employee sixty-six and two-thirds percent of his average weekly earnings for two hundred weeks. Section 25-5-57(a)(3)g provides that in all other cases of permanent partial disability not enumerated in § 25-5-57(a)(3)a the compensation shall be sixty-six and two-thirds percent of the difference between the average weekly earnings of the employee at the time of his injury and the average weekly earnings he is able to earn in his disabled condition. Our courts have held that even though there is an injury to a scheduled member, if the effects of that injury extend to other parts of the body and produce a greater or more prolonged incapacity than that which results from the specific injury, then the employee may recover the greater benefits allowed by subsection (a)(3)g for a permanent partial disability rather than be limited to the benefits allowed for a scheduled member. Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974).

In the case at bar the award of compensation was for a permanent total disability and the test therefor has consistently been not absolute helplessness or entire physical disability but inability to perform one’s trade or inability to obtain gainful employment. Den-Tal-Eze Manufacturing Co. v. Gosa, supra. Furthermore the legislature, in § 25-5-57(a)(4)d, has expanded the statutory definition of a permanent total disability to include “any physical injury . .. resulting from an accident, which injury . .. permanently and totally incapacitates the employee from working at and being retrained for gainful employment.”

The evidence fully supports the trial court’s finding that Reeves was permanently and totally disabled from working at his trade of carpenters’ foreman and being retrained for gainful employment. Moreover, the court was not limited in its finding to a permanent partial disability for the loss of a scheduled member in view of the evidence before it.

Defendant’s final contention is that the trial court committed error when it refused to find that plaintiff had chosen to forego vocational rehabilitation in favor of early retirement. We find no such error.

The only evidence in the record relating to retirement resulted from questions asked of plaintiff by defendant’s counsel about whether he had been planning to retire, and plaintiff replied, “Well, don't we all work for that?” Plaintiff mentioned that he might want to retire but never said when that would be. The trial court could have reasonably concluded from this evidence that plaintiff’s talk of retirement was no more than wishful thinking by a man who had worked most of his life and was approaching the age when he would be eligible for Social Security. It is clear from the evidence that plaintiff made no overt effort to retire. As the evidence further shows, plaintiff was a loyal employee who was very diligent in his work habits.

Based on the evidence we cannot say that the trial court committed reversible error by not finding that plaintiff had refused vocational rehabilitation in favor of retirement.

For the reasons above noted, the judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.