author: WILLIAMS, Judge.

text:
    Curtis JOHNSON v. John DOE, an unidentified deputy Criminal Sheriff, Charles C. Foti, Jr., Frank Bouyelas, Police Superintendent Clarence Giarrusso, New Orleans Police Department, City of New Orleans and Travelers Insurance Company.
    No. 12543.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Freeman R. Matthews, Stephen G. Ritter-bush, Jr., New Orleans, for defendant-appellant.
    Walter F. Gemeinhardt, A Professional Law Corp., John P. Keegan, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment against the Orleans Parish Criminal Sheriff Charles Foti, the City of New Orleans, and the City’s insurer, the Travelers Insurance Company, awarding $25,000.00 to plaintiff Curtis Johnson for injuries he sustained while incarcerated in the Orleans Parish House of Detention.

On May 10, 1976, plaintiff was injured in the Orleans Parish House of Detention. Testimony at trial as to the nature and cause of the incident that resulted in the injury was conflicting. The testimony was uncontroverted that the plaintiff was being escorted to the elevator on the ninth floor of the House of Detention by Lieutenant Marino and Deputy Boyd and Boyd pushed the plaintiff. Johnson testified that the push was without provocation. Boyd testified that Johnson was elbowing him and that he simply was attempting to push him away; when he pushed plaintiff, plaintiff slipped on a wet, waxed floor falling forward and hitting a panel of indicator lights. Plaintiff sustained a cut above his right eyebrow. He then was taken to Charity Hospital in New Orleans where he received medical treatment for the injury.

Boyd testified that his pushing of Johnson did not cause plaintiff to strike his head, but rather plaintiff slipped on the wet, waxed floor of the House of Detention. Boyd and Marino testified that there was a broken window through which rainwater was coming near the place where the incident occurred and that the water had collected on the floor where Johnson fell.

Sheriff Foti has not appealed the determination of liability on the part of his office, but has appealed on the issue of quantum. The City and its insurer [hereinafter collectively referred to as the “City”] have appealed both determinations of liability and quantum.

LIABILITY

Liability on the part of the City was asserted on two bases: (1) the City has responsibility for the physical maintenance of the House of Detention, and through its negligence in not repairing the windows, the floor was wet, causing plaintiff to slip and strike his head; and (2) Deputy Boyd was a City Civil Service employee, and the City, therefore, is responsible for his action.

Maintenance of the House of Detention

The record clearly reflects that the City has responsibility for the physical maintenance of the House of Detention. Robert Richards, Public Buildings Administrator for the City, testified at trial that the City is responsible for repairing the windows in the House of Detention.

Although the evidence supporting a determination that Johnson struck his head as a result of slipping on a wet, waxed floor is not overwhelming, it nevertheless provides a basis on which a jury reasonably could find liability on the part of the City.

Employer of Boyd

Plaintiff has argued that Boyd was a City Civil Service employee and the City, therefore, was responsible for his actions.

It is unclear from the proceedings below whether Boyd was an employee of the State or of the City. In the final analysis, however, this is of little import. The law is well settled that a parish or municipality is not liable for the actions of a deputy sheriff. Foster v. Hampton, 352 So.2d 197 (La.1977); Whatley v. State, 369 So.2d 1125 (1st Cir. 1979). Even assuming, arguendo, that Boyd were a classified City Civil Service employee, the City would not be responsible for his actions.

Johnson had asserted that there were two bases on which the jury might find the City liable. Although it is clear that the City was not responsible for Boyd’s actions on a theory of respondeat superior, there is a basis on which a jury could reasonably find the City liable: negligence in failing to maintain the premises of the House of Detention by not replacing the broken window. The jury was not given interrogatories to determine the reason for their assessment of the City’s liability. Because there would be no manifest error in the jury’s decision finding the City negligent in maintaining the premises of the House of Detention, we affirm the trial court on this issue. See Canter v. Koehring Co., 283 So.2d 716 (La.1973).

QUANTUM

Johnson was awarded $25,000.00 for pain and suffering. Because he was incarcerated at the time of the incident and received free medical care, there was no award for lost wages or medical costs.

We find the trial court’s general damage award is unsupported by the evidence in the record. Reck v. Stevens, 373 So.2d 498 (La.1979).

Plaintiff testified that after he struck his head, he bled from the wound and was taken to Charity Hospital where the cut was sutured. Plaintiff consulted Dr. Kenneth Vogel, 2% years after the incident. From the information given him by plaintiff, Dr. Vogel diagnosed plaintiff as having suffered a Grade 1 concussion as a result of the blow to his head. Dr. Vogel testified that plaintiff suffered no residual disability or trauma as a result of the injury.

Plaintiff has complained of headaches lasting fifteen or twenty seconds, occurring several times a day. For a year after his injury, plaintiff suffered a blurriness of vision. This condition was not permanent, and he later obtained a Louisiana Chauffeur’s License. He currently is employed as a program coordinator for the St. Bernard Parish Drug Rehabilitation Center.

Based upon this evidence, we find that the highest award that the jury reasonably could have made was $7,500.00. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Cf. Bodi v. Gov. Emp. Ins. Co., 349 So.2d 1327 (La.App. 1st Cir. 1977) (award of $5,000.00 for concussion resulting in severe headaches and laceration); Wagner v. Hazelquist, 347 So.2d 1265 (La.App. 1st Cir. 1977) (award of $1,500.00 for forehead laceration).

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff and against defendants Orleans Parish Criminal ..Sheriff Charles Foti, the City of New Orleans, and the Travelers Insurance Company, for the sum of SEVEN THOUSAND FIVE HUNDRED AND no/100 ($7,500.00) DOLLARS. The judgment to carry legal interest from date of judicial demand until paid.

AMENDED AND AFFIRMED.

      . Plaintiff has alleged that a second deputy, Deputy McGee, was present when the incident took place. He did not testify at trial.

      . Richards testified that at the time of the underlying incident, the usual procedure for reporting broken windows in the House of Detention was for his office to receive a telephone call from the Sheriffs Department notifying his department of the need for repair. Richards did not testify that he received notice of that particular broken window, but was sure such a call had been made. Tr. at 12.

      . In Civil Service Commission of City of New Orleans v. Foti, 349 So.2d 305 (La.1977), the Louisiana Supreme Court held that employees of the Orleans Parish Sheriffs Department who had attained classified status with the City Civil Service prior to 12:00 a.m., December 31, 1974 would retain that status. If the employee were unclassified at that time, he or she would be a State unclassified employee. No evidence was presented at trial that was conclusive as to Boyd’s actual status.


source: Caselaw Access Project

license: Public Domain

text:
    JUDICE ARMATURE WORKS, INC. v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS.
    No. 12-463.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Harry A. Burglass, Metairie, for plaintiff-appellant.
    Moise W. Dennery, McCloskey, Dennery, Page & Hennesy, New Orleans, for defendant-appellee.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff Judice Armature Works, Inc. filed suit against defendant The Board of Commissioners of the Port of New Orleans to recover $29,995.00 for work performed on a fireboat owned by the defendant. The claim was based alternatively on breach of contract or on quantum meruit. The case was referred to a commissioner by the district court and was heard before the Honorable Charles L. Rivet, Commissioner and Judge ad hoc for Orleans Parish. A report by Commissioner Rivet was rendered on September 19,1978, recommending that the plaintiff’s suit be dismissed and was accompanied by a recommended judgment to that effect. The judgment was adopted by the trial court. Plaintiff has now filed an appeal from this decision.

On January 13, 1975, plaintiff submitted a bid proposal to perform all work necessary to repair the propulsion motor of the fireboat “DELUGE”. The boat was owned by The Board of Commissioners of The Port of New Orleans [hereinafter referred to as “Board”]. The $29,000.00 bid included all costs of material and labor. The work was to be completed within thirty-six (36) calendar days of the receipt of the motor in the shipyard. On January 15, the plaintiff advised the defendant by means of a letter that due to the current copper market, the completion date of the project would be thirty-six (36) days after receipt of the wire from the mill. In another letter sent to the defendant on the same day, the plaintiff supplemented the bid by listing charges to be made for extra work if it became necessary due to unforeseen circumstances. Plaintiff also guaranteed the work against all defective materials and the workmanship of the project for one (1) year. This warranty also extended to all rewinding components.

On January 24, defendant accepted plaintiff’s proposal by submitting a purchase order in the amount of $29,000.00. Defendant agreed to the basis for the charges for unforeseen extra work, but required that no extra work would be allowed unless it were approved in writing by the defendant’s engineer.

Much of the controversy in this case centers around whether the contract required the use of all new copper wire or a combination of old and new copper wiring for the rewinding of the armature of the propulsion motor of the boat. Plaintiff has contended that the original bid intended only the use of new copper magnet wire for the rewinding. Plaintiff claims that the new magnet wire was ordered but an amount sufficient to complete the project had not been received as of February 27, 1975. At that time, plaintiff claims that Mr. Leonard Spalutto, Chief of the Maintenance Division of the Board, told the plaintiff to proceed with the work, adhering to the specifications, and that plaintiff should use the new magnet wire it had as well as any used magnet wire that was available. Plaintiff proceeded to complete the work using a combination of old and new wire. Tests were made on the rewinding of the armature after the project was completed. Because of the marginal results of these tests, a meeting was held on May 7,1975, at the request of the plaintiff. The meeting was attended by Mr. Judice, a representative of the plaintiff, and a number of representatives of the defendant. Plaintiff contends that in this meeting he guaranteed the work that he had done using both old and new wire for one (1) year, but did state that the tests were marginal. He testified that at that time the Board authorized removal of the new and used wiring and replacement thereof with all new magnet wire. It is plaintiff’s contention that these additional costs and expenses would be paid by the Board.

The court below found that the bid was silent on the type of copper wiring to be used and that new and old wiring could be used as long as the final results were within the specifications of the bid. The evidence presented at trial clearly supports the trial court’s finding that the bid did not necessarily contemplate the use of all new wire. Furthermore, as the report of the Honorable Charles L. Rivet states:

“Had it been from instructions given by Mr. Spalluto on February 27, 1975, that new and used copper wire were used, as contended by plaintiff, it is then incumbent upon plaintiff, under such circumstances, to comply with paragraph 43 of the specifications, [requiring approval by defendant’s engineer in writing], by procuring approval thereof, in writing and signed by defendant’s engineer.” Commissioner’s Report at 4.

At the meeting held on May 7, Mr. Judice presented some extra work that needed to be done and these costs were approved by the Board. A discussion then centered around the tests run on the rewinding of the armature. Witnesses for the Board, testified that at the meeting the plaintiff could not warrant its rewinding work and that it wanted an extension of time so that it could obtain new wiring and rewind the armature. One of the witnesses for the Board, Mr. Frank Reed, made notes of the meeting held on May 7. These notes are consistent with the testimony of the Board’s witnesses, and were introduced into evidence at trial. Furthermore, it is clear that plaintiff knew that the tests made on the rewinding done with new and used copper wire were not only “marginal”, but also unsatisfactory. On the day before Mr. Ju-dice’s meeting with the Board, plaintiff had ordered new copper wiring. As the court below found, we find that the May 7 meeting was not held for the purpose of presenting the decision to rewind the armature to the defendant, but rather to seek an extension of time for the plaintiff because it could not warrant the job as required by the specifications and had already made the decision to redo the work.

There is further evidence to support the trial court’s conclusions. On May 13, 1975, the plaintiff sent a letter to the Board requesting additional time to complete the rewinding and also making reference to extra work (but, not the rewinding), but made no mention at that time of any expenses that were to be incurred in the rewinding of the armature. The trial court found equally significant the fact that a second rewinding resulted in a successful sea trial conducted on September 6, but it was not until November 5, 1975, that the plaintiff requested a change order to cover the invoice* which related to the cause of the second rewinding.

As the trial court found, we also find that the preponderance of evidence does not support the plaintiff’s claim that the original contract was amended verbally to authorize the second rewinding of the armature.

Plaintiff has attempted to. make an issue of the absence of Charles Drury, an engineer for the Board, who was present at the May 7 meeting, at trial. Drury was not called to be a witness at trial. The plaintiff claims that Drury’s testimony would have addressed the question of the contract’s requirement of the use of old and new wiring or all new copper wiring and questioned the results of the tests run on the armature. Because Drury was not called to testify at trial by the defendant, plaintiff contends that defendant’s unexplained failure to call him gives rise to the presumption that his testimony would be unfavorable to the defendant.

It is well settled in Louisiana law that the unexplained failure of a party to call a witness who possesses peculiar and material knowledge essential to that party’s case, when that witness is available to him, raises the presumption that the witness’s testimony would be unfavorable to that party. See Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App. 4th Cir. 1974). See also Perigoni v. McNiece, 262 So.2d 407 (La.App. 4th Cir. 1972). In the instant case, there has been no showing that Drury was in possession of any “particular” knowledge pertinent to the case or any material facts necessary for the defense. Drury was present at the meeting on May 7, along with several other witnesses, two of whom who testified at trial. Drury, therefore, was not in possession of any “peculiar” knowledge with reference to that meeting. His testimony as to the meeting would have been repetitive. Furthermore, although the plaintiff had claimed that Drury’s testimony would address the type of wiring to be used as contemplated by the bid and the meaning of the results of the tests run on the rewinding, there is no evidence in the record to demonstrate that Drury could or would have testified on this matter.

The trial court also held that the plaintiff could not recover under quantum meruit. The court below held:

“Plaintiff’s alternative plea for recovery, under a theory of quantum meruit is without merit. It entered into a contract to repair a propulsion motor. Tests made following the work indicated that it could not warrant its work. The job had to be redone in order to comply with the contract.”

Based upon the evidence presented below, the trial court clearly was within its discretion in refusing to award any damages to the plaintiff. The judgment below is well-reasoned and based firmly on the evidence presented at hearing. Canter v. Koehring Co., 283 So. 716 (La.1973). Accordingly, we affirm the decision of the trial court.

AFFIRMED.

      . The bid provided for $150.00 per contract day in late charges if the completion date were not met.

      . Even assuming that Drury’s testimony would have indicated that the original contract contemplated the use of all new copper wiring, as we have noted, supra, the plaintiff had the burden of obtaining the engineer’s consent of the change from all new copper wiring to the combination of new and used copper wiring in writing as required by the bid specifications. We also note that no evidence was introduced by the plaintiff that definitely would indicate that plaintiff’s industry standards required the use of all new copper magnet wiring in a rewinding. Mr. Drury’s anticipated testimony on this matter would have been unnecessary. See Paul v. Ford Motor Co., 392 So.2d 704 (La.App. 3d Cir. 1980).


text:
    Ann J. SLAGLE and Elmer C. Slagle, Jr. v. Natalie MORGAN and Rex R. Morgan.
    No. 12402.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Carl W. Cleveland & Associates, Barbara Treuting Casteix, New Orleans, for plaintiffs-appellees.
    Charles W. Nelson, Jr., Reynolds, Nelson & Theriot, New Orleans, for defendants-appellants.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment awarding the plaintiffs, Ann and Elmer Slagle, $3,701.15 for the cost of repairing a house that they purchased from the defendants, Natalie and Rex Morgan, and for attorneys’ fees.

On July 19,1975, the defendants transferred ownership of their home at 5741 Nor- and Avenue, New Orleans, Louisiana, to the plaintiffs. The transfer was accomplished through a sale to Dryades Savings and Loan Association [hereinafter referred to as “Dryades”] by the defendants and a resale to the plaintiffs by Dryades. On the following day, the plaintiffs began to move into their new home. It was raining at the time, and the plaintiffs noticed that the storeroom roof was leaking. The rain continued for several days during which time the plaintiffs discovered other leaks. More leaks were discovered in the house throughout the course of several months: the kitchen area, the upstairs stairwell, one of the bedrooms, the carport and the overhang above the front door.

After the plaintiffs discovered the leaks, they obtained estimates on roof repairs and eventually had the entire roof replaced. After discussing the situation with the defendants, the plaintiffs eventually filed suit against the Morgans based upon a breach of an express warranty and quanti minoris (redhibition). Judgment at trial was in favor of the plaintiffs, and the defendants have presented several issues on appeal.

BUYER-SELLER RELATIONSHIP

The defendants argued that a redhi-bitory action must be brought against a vendor, and the plaintiffs, therefore, are precluded from bringing an action against the defendants because the vendor in fact was Dryades.

This argument is totally without merit. In Russell v. Bartlett, 139 So.2d 770 (La.App. 4th Cir. 1961), this court held that an argument such as that presented by the defendants is “unrealistic”. Id. at 776, quoting from Overby v. Beach, 220 La. 77, 55 So.2d 873 (1951). The court specifically held that the vendee of a homestead has the right to bring an action in quanti minoris. Id.

Furthermore, the defendants contend that the act of sale whereby the plaintiffs purchased the house contained a specific provision in which the plaintiffs waived their right to bring a redhibitory action. The provision containing the waiver was part of the act of sale between the plaintiffs and Dryades. The waiver of right by the plaintiffs against Dryades in no way operates as a waiver of any right that the plaintiffs have against the defendants.

DEFECTIVE ROOF

The defendants argue that because the roof did not leak at the time of the act of sale it was not defective and that an action in quanti minoris, therefore, will not lie. The defendants contend that this argument is strengthened by the fact that some of the leaks did not appear for several weeks (and in one case, several months).

An action in quanti minoris, which is an action to reduce the purchase price, is governed by the same rules that govern an action in redhibition. La.C.C. arts. 2541 and 2544. In redhibition, a buyer must prove the defect existed prior to the sale. La.C.C. art. 2530. If the defect manifests itself within three (3) days, there is a presumption that it existed prior to the sale. Id. In the instant case, the roof began to leak at various times after the plaintiffs moved in: (a) the leak in the kitchen was discovered within three (3) days of the time that the plaintiffs moved in; (b) the leak in the upstairs stairwell manifested itself approximately one (1) week after the plaintiffs had moved in; (c) the leak in the bedroom became apparent within two or three weeks; and (d) the leak in the carport was discovered several months later.

Evidence presented at trial supports the court’s finding that all of these defects existed prior to sale. The roofer who examined the roof testified that the carport roof had been leaking for four to six months. Furthermore, the plaintiffs testified that they were unable to obtain coverage for the damage occasioned by the leak in the bedroom because the leak was considered to be a defect that existed prior to the time that the plaintiffs purchased the home. There was also evidence to indicate that the leak in the upstairs stairwell was extant prior to the sale of the house. There is evidence in the record to support the trial court’s con-elusion that all of those leaks which manifested themselves after the three (3) day presumptive period as provided by La.C.C. art. 2530 were present at the time of the act of sale. We do not hold that an old roof is one containing a redhibitory defect, nor do we hold that a roof that begins to leak within a short time after sale is always defective. The facts in the instant case, however, indicate that the leaks in the roof existed prior to the sale.

The defendants equate defective with leaking and assert that the roof must be leaking at the time of the act of sale. Following the reasoning of the defendants, a purchaser must hope for rain on the day of the act of sale, or within three (3) days thereafter, because if a leak does not manifest itself at that time, then the buyer will be precluded from bringing an action in quanti minoris or redhibition at a later time. This is not the law in Louisiana. In Hunter v. Wilson, 355 So.2d 39 (La.App. 3d Cir. 1978), the plaintiffs were compensated for a leak that did not manifest itself until two or three weeks after the act of sale. In Buselener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975), the plaintiffs had been told that the roof on the house that they had purchased had leaked at one time, but a new roof had been installed. A year after the act of sale, new leaks manifested themselves and it was determined that the roof had not been replaced as had been promised. The plaintiffs were allowed to recover damages in redhibition.

It is clear that a leaky or defective roof is a redhibitory defect which entitled the purchaser to a reduction in price. See, e.g. Russell v. Bartley, supra. In the instant case, plaintiffs have presented evidence, both direct and circumstantial, from which the trial court could reasonably have drawn an inference that the defects existed at the time of the sale. See Womack & Adcock v. 3M Business Products Sales, Inc., 316 So.2d 795 (La.App. 1st Cir. 1975).

REPLACEMENT OF WHOLE ROOF

The trial court awarded the plaintiffs the cost of replacing the entire roof. Defendants argued that because the roof was a “split level” and there was no evidence that the main part of the roof was leaking, that replacement of the entire roof was unnecessary.

In support of their argument, the defendants refer to Goldberg v. Oliver, 212 So.2d 277 (La.App. 3d Cir. 1968). The facts in Goldberg are similar to the facts in the instant case: the plaintiff had purchased a home from the defendant; the roof on the home was in two levels; a leak was found in the roof; and the plaintiff filed suit. In Goldberg, the plaintiffs were only allowed to recover the cost of replacing one portion of the roof, because it was determined that the entire roof was not defective. In the instant case, although the roof was a “split level” as in Goldberg, there is evidence in the record to support the trial court’s determination that the entire roof was leaking at the time of the act of sale. There was also testimony by the expert witness on roofing, introduced at trial, that the entire roof was deteriorated to the point that it could not be repaired or replaced in part.

Although the trial court was not in error in considering the necessity of replacing the entire roof, it nevertheless was in error in awarding the total costs of a new roof, as it would result in an unjust enrichment of the plaintiffs.

UNJUST ENRICHMENT

The defendants contended that the trial court erred in awarding the plaintiffs $2,276.15, the entire cost of a new roof.

In Verlander v. Hoffer, 351 So.2d 229 (La.App. 4th Cir. 1977), this court addressed the same issue. The court noted that the general rule for the measurement for damages in quanti minoris action is the determination of the difference between the value of the thing sold in defective condition at the time of the sale, and the value as warranted by the seller. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959) (“[T]he allowable diminution is ‘the amount necessary to convert the unsound structure into a sound one.’ ” 112 So.2d at 438).

In Verlander, supra, as in the instant case, the plaintiffs had purchased a home with a defective roof. The court awarded damages, but noted that some deterioration in a roof on an old home is to be expected and, therefore, “to permit recovery or full replacement cost of a new roof where some deterioration was rightfully to be expected would be an unjust enrichment.” Id. at 233.

Because the roof on the home purchased by the plaintiffs was ten (10) years old, and evidence at trial indicated that the maximum life of such a roof is fifteen (15) years, plaintiffs were entitled to expect the roof to last, at most, five (5) more years, or one-third of the life of the roof. To award the plaintiffs the entire cost of replacing the roof would allow them to be unjustly enriched as the court held in Verlander, supra. Because the plaintiffs could expect that the roof would last one-third more of its useful life, the plaintiffs should be allowed to recover one-third of the cost of a new roof, or $758.72.

QUANTI MINORIS OR EXPRESS WARRANTY

Confusion has arisen in the instant case over categorization of the legal theory under which the plaintiffs recovered. In the purchase agreement, the defendants expressly warranted that the roof was in good condition. This warranty was given in addition to the implied warranties contained in any sale. La.C.C. arts. 2475-76. The plaintiffs sued the defendants under both theories. The trial court awarded attorneys’ fees and stated that there were obvious defects in the house, hidden from view from the plaintiffs. The trial court, however, found that there was no diminution in the value of the property.

It is clear from a reading of the record that the facts presented at trial support both the finding that the house contained redhibitory defects and that there was a breach of the express warranty.

Under an action brought under an express warranty, if the warranty or contract does not specifically provide for attorneys’ fees, a plaintiff cannot recover them. Delta Refrig. Co. v. Upjohn Co., 432 F.Supp. 124 (W.D.La.1977); Morein v. G. J. Deville Lumber Co., 215 So.2d 208 (3d Cir. 1968). It is clear from the evidence shown at trial that this action could have been brought either under a theory of breach of express warranty or quanti minoris. Because the evidence presented below supports a determination that a redhibitory defect of which the defendants were aware and failed to disclose existed in the house at the time of the act of sale, the plaintiffs should be allowed to recover for damages and attorneys’ fees. The warranty contained in the act of sale does not constitute an express warranty in lieu of redhibition. Furthermore, the plaintiffs have not expressly waived their rights to bring a redhibitory action. See Primeaux v. Bennett Homes, Inc., 339 So.2d 1251 (La.App. 1st Cir. 1976); see generally Guidry v. St. John Auto Exch., 379 So.2d 878 (La.App. 4th Cir. 1980); cf. Hunter v. Wilson, supra (defendant seller made oral assurances prior to the act of sale that the roof would not leak). In PPG Industries, Inc. v. Industrial Laminates Corp., 664 F.2d 1332 (5th Cir. 1982), the court held that “the presence of an express warranty does not convert an action for redhibition into an action for breach of contract”. Id. at 536. Accord Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311, 314 (La.App. 3d Cir. 1972).

To limit the plaintiffs’ damages to those available for breach of an express warranty, would be to penalize them for the lack of clarity in the reasons given for judgment by the trial court below. Cf. Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981) on rehearing (attorneys’ fees awarded in tort action, when facts indicated that a redhibitory action could also have been brought); see generally La.C.C.P. art. 2164. Accordingly, we hold that the plaintiffs should be awarded those amounts recoverable under an action in redhibition where the seller is in bad faith.

ATTORNEYS’ FEES AND DAMAGES

Attorneys’ fees are recoverable by a plaintiff in redhibition as well as other damages, if it is shown that the seller was aware of the defects at the time of the act of sale. La.C.C. arts. 2544-45. The plaintiffs were awarded $615.00 for repairing the door which was damaged by another leak.

In the instant case, there was evidence introduced at trial that the roof had been patched before. A neighbor also testified that she had seen the defendants repairing and painting over some of the damage caused by leaks over the front door. There was also testimony at trial that the damage caused by the leaks in the bedroom had been painted over so that it was not detectable at the time of the act of sale.

Based on evidence presented at trial, we cannot find that the trial court was in error in determining that the seller had actual or constructive knowledge of these defects. For these reasons, the plaintiffs can recover for damages and for attorneys’ fees. See Juneau v. Bob McKennon Chevrolet Co., 260 So.2d 919 (La.App. 4th Cir. 1972). AMOUNT OF ATTORNEYS’ FEES

The trial court awarded the plaintiffs $750.00 in attorneys’ fees. The court held that the evidence introduced at trial did not establish a basis for determining the amount of fees to be awarded. Although plaintiffs did file some evidence in the record regarding the legal fees incurred, we cannot say that the trial court did not take this evidence into account in determining that there was no basis for the awarding of attorneys’ fees. Therefore, we affirm the attorneys’ fees of $750.00 awarded by the trial court and award $400.00 in attorneys’ fees as cost of this appeal.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiffs and against the defendants for $758.72 for the costs of repairing the roof, and $675.00 for repairing the damage caused by the leaks, for a total of ONE THOUSAND FOUR HUNDRED THIRTY-THREE AND 72/100 ($1,433.72) DOLLARS. The judgment to carry legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiffs and against the defendants for the sum of ONE THOUSAND ONE HUNDRED FIFTY AND NO/100 ($1,150.00) DOLLARS representing attorneys’ fees.

AMENDED AND AFFIRMED.

      . The plaintiffs also contended that other defects in the house existed: (1) the plumbing was defective in certain areas, and (2) the shutters had been painted and repaired so as to disguise their deteriorated conditions. The trial court found that these “defects” should have been detected by the plaintiffs prior to their purchase of the home and denied any damages for them. The plaintiffs did not appeal this determination.

      . We also note that this waiver operates as a matter of law even in the absence of an express written provision. La.R.S. 6:833(E).


text:
    C. I. T. FINANCIAL SERVICES v. Randy BRASWELL.
    No. 52997.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Rehearing Denied March 10, 1982.
    Reeves & Reeves, Robert S. Reeves, McComb, for appellant.
    Statham, Watkins, Mitchell & Brock, Thomas W. Brock, Magnolia, for appellee.
   Appeal from Chancery Court, Pike County; Bert H. Jones, Chancellor.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SUGG, P. J., and WALKER, BROOM, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Jerry Lee NORMAN v. STATE of Mississippi.
    No. 52853.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Rehearing Denied March 10, 1982.
    Edmund J. Phillips, Jr., Newton, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

AFFIRMED.

SMITH, P. J., SUGG, P. J., and WALKER, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    CALVARY BAPTIST CHURCH and Liberty Mutual Insurance Co. v. James BENNETT.
    No. 52994.
    Supreme Court of Mississippi.
    Feb. 17, 1982.
    Rehearing Denied March 10, 1982.
    Daniel, Coker, Horton & Bell, James F. Steel, Forrest Stringfellow, Jackson, for appellants.
    James W. Nobles, Jr., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


author: SUGG, Presiding Justice,

text:
    Linda Diane TRIBOU v. Clyde H. GUNN, Jr., M.D.
    No. 53014.
    Supreme Court of Mississippi.
    Feb. 24, 1982.
    William Roberts Wilson, Jr., Carol Ann Cross, Pascagoula, for appellant.
    Raymond L. Brown, Megehee, Brown, Williams & Mestayer, Pascagoula, Thomas L. Stennis, II, Bryant & Stennis, Gulfport, for appellee.
    Before SUGG, BROOM and HAWKINS, JJ.
   SUGG, Presiding Justice,

for the Court:

On March 19, 1980 Linda Tribou, plaintiff, filed an action for malpractice against the defendant, Clyde H. Gunn, Jr., M.D. Among other things, plaintiff alleged:

That the named defendant herein was negligent and guilty of medical malpractice ... in that he failed to take the necessary steps to establish the true condition of your plaintiff with respect to the lump in her breast, failed to adequately and accurately diagnose her condition consistent with her symptoms and complaints, and did not act in a manner that a reasonable and prudent doctor would have acted under the same or similar circumstances confronted with the situation he dealt with and he was negligent and his negligence was the proximate cause of the delayed diagnosis of your plaintiff, which delay allowed her cancerous condition to progress from a lump in her breast to a generalized cancer condition spread throughout her body, threatening her life, and subjecting her to great physical and mental pain and anguish, as she experiences the growth of the cancer through her body and contemplates her ultimate demise, and the serious consequences to her family and herself resulting therefrom.

The defendant answered and incorporated in his answer a plea in bar alleging that all or some of the acts complained of in the declaration were barred by the statute of limitations. Section 15-1-36 Mississippi Code Annotated (Supp.1981). The plea in bar was heard by the court on October 27, 1980. The court sustained the plea in bar so the question presented is whether plaintiff’s cause of action is barred by the statute of limitations.

Although evidence was not introduced at the hearing on the plea in bar, the trial court heard arguments and sustained the plea in bar stating that the entire record would be considered as having been introduced for purpose of appeal. From the interrogatories and depositions, the following facts appear.

The plaintiff first sought Dr. Gunn’s advice on January 7,1972 about a mass located in her right breast. A biopsy was performed January 10, 1972 indicating chronic cystic mastitis.

In October, 1976, the plaintiff, finding a pea-sized lump in her left breast, visited Dr. Gunn at which time he diagnosed her condition as mastitis and she was requested to return in three to four months.

Plaintiff was examined by Dr. Ruben-stein in December, 1976 for poison ivy. Dr. Rubenstein took a pap smear of drainage from her left breast. The report of the analysis of the smear stated, “Class 3 suspicious of malignant cells markedly atypical, suggest malignancy. Further study indicated.” Plaintiff took this pathology report to Dr. Gunn in January, 1977 at which time he took another pap smear. Dr. Gunn told the plaintiff that generally these tests were not very reliable and he would not entertain the thought that she had breast cancer based on this one determination. In May, 1977 Dr. Gunn informed plaintiff she still suffered from fibrocystic disease and advised her to return in six months.

On the advice of her friends plaintiff visited Dr. Dyer, a gynecologist in New Orleans, who took a pap smear and performed thermograms and mammograms. In September of 1977 Dr. Dyer recommended to plaintiff that she have all breast tissue removed and implants inserted. Believing she suffered only from mastitis because of defendant’s diagnosis, plaintiff did not have the surgery.

In February, 1978, Dr. Gunn performed a needle biopsy of the lump in plaintiff’s left breast and advised her to return within six weeks. The lump in plaintiff’s left breast increased in size, she again saw Dr. Gunn on April 13, 1978, at which time he recommended a biopsy. Plaintiff was admitted to the hospital May 11, 1978, and the biopsy was performed May 12, 1978. The biopsy revealed carcinoma of the left breast and a radical mastectomy of the left breast was performed on May 13, 1978.

Section 15-1-36 Mississippi Code Annotated (1981 Supp.) provides in part as follows:

(1) No claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist or podiatrist for injuries arising out of the course of medical or surgical treatment unless it is filed within two (2) years from the date the alleged act, omission or neglect shall dr with reasonable diligence might have been first known or discovered.

Plaintiff first learned that she had cancer on May 12, 1978 when defendant informed her of this fact based on the biopsy which revealed carcinoma of the left breast. Plaintiff’s suit was not based on a single negligent act or omission but upon a series of negligent acts or omissions which she alleged constituted medical malpractice by defendant. Defendant did not diagnose plaintiff’s cancer until May 12, 1978 and there is nothing in the record to indicate that plaintiff could have known or discovered her cancer by the exercise of reasonable diligence before that time. For example, the only suggestion made to plaintiff that she might have cancer before May 12, 1978 was the laboratory report on the pap smear taken by Dr. Rubenstein in 1976. Plaintiff carried this report to Dr. Gunn which indicated her diligence in following through on the suggestion for further study to determine the true nature of her physical condition, namely, whether she had cancer.

Under the facts disclosed by the present record, we hold that plaintiff’s suit was not barred. She filed her suit within two years after learning she had cancer so she is entitled to a trial on her declaration which charges a series of negligent acts or omissions beginning in 1976.

Plaintiff also argues that section 15-1-36 Mississippi Code Annotated (Supp. 1981) is unconstitutional. Having held plaintiff’s case is not barred by the statute, we do not pass on the constitutionality of the statute because constitutional questions are not reached unless necessary for a decision of a case.

REVERSED AND REMANDED FOR A TRIAL ON THE MERITS.

SMITH, P. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN LEE, JJ., concur.

PATTERSON, C. J., took no part.

      . Sources; Miss.General Laws, Chap. 473 (1976); Chap. 464 (1978); Chap. 347 (1979).


author: DAN M. LEE, Justice,

text:
    Richard KNOWLES v. STATE of Mississippi.
    No. 53217.
    Supreme Court of Mississippi.
    Feb. 24, 1982.
    Thomas D. Lee, Forest, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Scott County wherein Richard Knowles, defendant/appellant, was indicted, tried and convicted of the November 19, 1980, larceny of one black Angus heifer belonging to Douglas Turner. Upon conviction, Knowles was sentenced to serve a term of three years in the Mississippi State Penitentiary. We reverse.

On November 19,1980, appellant went to the home of Margaret Pope around 6:00 p. m. E. B. Sessums was already present at the Pope household when appellant arrived. Appellant remained at the Pope house for about forty-five minutes and after completing his visit, headed for home. E. B. Ses-sums left approximately twenty minutes prior to appellant’s departure. On his way home, a cow jumped in front of appellant’s pickup and after being struck thereby, fell onto the side of the road. Sessums, who was driving by, stopped to see what had occurred. When it was discovered the cow had broken its leg, Sessums shot the heifer to put it out of its misery. Neither Ses-sums nor the appellant knew who owned the cow.

Appellant and Sessums then traveled in their respective pickups to Glenn Risher’s house. Risher, Sessums’ son-in-law, lived about ten to twelve miles from where the cow was struck, in a house on appellant’s property. Appellant told Risher he had hit a cow and needed some help, whereupon Risher, Sessums and the appellant left in appellant’s truck. After returning to the scene of the accident, Ernest Lewis arrived with a chain to help load the cow. The cow was subsequently loaded in appellant’s truck and taken to his shop where it was skinned.

On November 21, 1980, appellant and Lewis took the cow to Ezell’s Processing Plant in Union where it was cut, wrapped and divided four ways. Although the appellant admitted he knew the cow was not his when he took it, he asserted he did not intend to willfully steal the cow, did not know who owned it, and in fact never received any of the meat after the same was processed.

Since we have reached the conclusion that this case must be reversed, we confine our review to the propriety of appellant’s requested instructions Nos. 12 and 13.

Appellant was indicted pursuant to Mississippi Code Annotated section 97-17-53 (1972) which provides:

If any person shall feloniously take, steal and carry away any neat or horned cattle, or knowingly buy, trade or accept such stolen livestock, he shall be guilty of larceny, regardless of the value of the cattle, and in the case of a first offender, shall be punished by imprisonment in the county jail for not less than six (6) months or for not more than five (5) years in the state penitentiary or by a fine of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00), or both; and in the case of a second or subsequent offense, by imprisonment in the state penitentiary for not less than one (1) year nor more than twenty (20) years, or by a fine of not less than five hundred dollars ($500.00) nor more than five thousand dollars ($5,000.00) or both.

This statute has consistently been construed to mean that such animal was alive when stolen and when the proof shows the animal was dead when the larceny transpired, no conviction can be had thereunder. Davis v. State, 165 Miss. 693, 146 So. 598 (1933); Rainwater v. State, 155 Miss. 684, 124 So. 801 (1929); and Golden v. State, 63 Miss. 466 (1886). However, when the animal alleged to have been stolen is killed as a means of making its theft possible, the crime of cattle theft has been held committed, the same as if the animal was alive at the time of its asportation. See 52A C.J.S. Larceny § 3(2)b (1968).

Margaret Pope, with whom appellant visited on the night of the alleged larceny, asserted she heard two shots before appellant arrived at her home and then two more shots sometime after he left. She qualified her statement somewhat, testifying that gunshots in the area were not uncommon. Only one hole was found in the head of the cow and one empty shotgun shell was recovered from the area where the cow was shot.

Appellant sought Instructions D-12 and D-13 based on Mississippi Code Annotated section 97-17-61 (1972) which provides:

Any person who shall, without the consent of the owner or his agent, take away any horse, mare, gelding, mule, jack, jennet, sheep, cow, bull, ox, hog or other live stock or dog, or automobile, truck or other motor vehicle, where such taking and carrying away shall not amount to larceny, shall upon conviction, be fined not exceeding five hundred dollars, or be imprisoned not exceeding six months in the county jail, or both. A verdict of guilty of such taking and carrying away may be rendered under an indictment for larceny, if the evidence shall not warrant a verdict of guilty of larceny but shall warrant a conviction under this section. This section shall not apply to any one who takes such property believing, in good faith, that he has a right to it.

The appellant’s proof tended to establish that there was no intent to appropriate the cow at any time before the animal was shot. It was only after the animal was shot that appellant and his companion decided to load the vehicle and process the meat so the same would not spoil.

Aside from the refusal of appellant’s requested instruction, we feel inclined to comment on the weakness of the state’s case against appellant. In Matula v. State, 220 So.2d 833 (Miss.1969), this Court stated:

As Justice Griffith said in Westbrook v. State, 202 Miss. 426, 432-433, 32 So.2d 251, 252 (1947):
“It is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to that height which will exclude every reasonable doubt; that when in any essential respect the state relies on circumstantial evidence, it must be such as to exclude every other reasonable hypothesis than that the contention of the state is true, and that throughout the burden of proof is on the state. It is our duty here to maintain these principles.”
See also Boyd v. State, 204 So.2d 165 (Miss.1967); Moore v. State, 188 Miss. 546, 195 So. 695 (1940); Hogan v. State, 127 Miss. 407, 90 So. 99 (1921) and Algheri v. State, 25 Miss. 584, 1 Mor.St.Cas. 658 (1853). (220 So.2d at 836)

The evidence presented a factual question for jury resolution as to whether the animal was shot for mercy reasons or as a means to effectuate larceny.

By refusing Instruction D-13, the trial judge, in effect, peremptorily instructed the jury to disregard appellant’s defense. In doing so, the jury was faced with only two alternatives: to find appellant guilty of the crime charged or to acquit him. It is well settled that an instruction on a lesser-included offense should be given where justified by the evidence. In Re Jordan, 390 So.2d 584 (Miss.1980). In our opinion, appellant was entitled to Instruction D-13 in the case sub judice. The refusal of this instruction cut off appellant’s only defense.

Based on the foregoing, appellant’s conviction is reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.

ROY NOBLE LEE, J., took no part.

APPENDIX

INSTRUCTION D-13

The Court instructs the jury that if any person shall take without the consent of the ownér any cow where such taking and carrying away shall not amount to larceny, may be found guilty of the unauthorized taking and carrying away of said cow. If the jury believes from the evidence that the defendant did take and carry away a cow belonging to Douglas Turner without his consent and that said taking and carrying away did not amount to cattle theft or grand larceny as herein charged, then the jury shall return the following verdict:

“We the jury, find the defendant guilty of taking and carrying away a cow belonging to Douglas Turner not amounting to larceny.”

You may write your verdict on a clean separate sheet of paper.

      . See Appendix.


text:
    OPINION OF THE JUSTICES.
    No. 281.
    Supreme Court of Alabama.
    Aug. 18, 1981.
   Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

We are in receipt of Senate Resolution No. 42 requesting an advisory opinion of the Supreme Court relating to the following:

Does the House substitution providing for the budgetary process, the making of appropriations and time frame therefor by statute to pending House Bill 38 which proposed a constitutional amendment for the budgetary process, the making of appropriations and time frame therefor violate the provisions of Section 61 of the Constitution of 1901, which provides:
“No law shall be passed by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose.”?

We note that since the request for our opinion was made, House Bill 38 has become law and is, therefore, no longer a pending bill. Therefore, we are without authority to respond to this request. Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970); Opinion of the Justices, 294 Ala. 582, 319 So.2d 709 (1975).

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr. Justices


author: C. C. TORBERT, Jr., Chief Justice

text:
    OPINION OF THE JUSTICES.
    No. 283.
    Supreme Court of Alabama.
    Oct. 20, 1981.
   To the Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

Pursuant to Senate Resolution 25, you requested the Justices of the Supreme Court, or a majority of them, to give their written opinion as to whether pending Senate Bill 79 is in conflict with Article 4, Section 93, as amended, of the Constitution of Alabama.

I beg leave to advise that a majority of the Justices have been unable to decide the constitutionality in the absence of an adversary proceeding which would develop facts and be submitted on written briefs and oral argument before this Court.

Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice


author: JONES, Justice.

text:
    David R. RICH and Vivian M. Rich v. CITY OF MOBILE, A Municipal Corporation, et al.
    80-455.
    Supreme Court of Alabama.
    February 5, 1982.
    Michael S. McGlothren and Richard Bounds of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellants.
    Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellees.
    Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.
   JONES, Justice.

This appeal is from an order granting Defendant City’s motion to dismiss for failure to state a claim upon which relief could be granted.

Plaintiffs’ residence was connected to and served by the sewer and water systems of the City of Mobile. The elevation of the residence was lower than that of the sewer system; and, because an overflow trap had not been installed in the line leading to the residence, a sewer line back-up overflowed into Plaintiffs’ home.

Plaintiffs’ claim against the City was based upon the City’s alleged negligent failure to inspect or negligent inspection of the lines and the connection between Plaintiffs’ residence and the main system. Plaintiffs claim that the duty required of the City’s plumbing inspectors — to insure that proper materials are used in residential plumbing lines and connections, that no leaks exist, and that the lines and connections are installed according to the standard plumbing code — was breached when the inspectors: 1) during three preliminary inspections failed to discover the defect of the lack of an overflow trap; and 2) failed to make, a final inspection of the lines and connections.

Stated simply, Plaintiffs would have this Court hold: 1) the duty imposed upon the City plumbing inspectors is one which is owed, not to the public generally (as is the case of a public official), but to individual homeowners; and, 2) the breach of such duty will support the homeowner’s action for resultant damages. This we cannot do; we affirm the judgment.

Because this is an issue of first impression in Alabama, a summary of the treatment of this area of law in other jurisdictions is appropriate.

The question whether to impose liability upon the municipality for the damages resulting from its agent’s negligent inspection, or negligent failure to inspect, has given rise to two distinct lines of decisions. While reaching contrary conclusions, appellate courts of our sister states faced with this issue follow similar paths of reasoning in that all focus upon the nature of the duty of the inspector.

Typical of those cases recognizing the legal duty, and thus imposing liability, upon the city in appropriate cases, is the case of Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). There, the Wisconsin Court stated:

“. .. A building inspector must be held to have foreseen that his alleged negligence in performing the required inspection might have foreseeably resulted in harm to someone. Furthermore, under the rule of law stated in Restatement, 2 Torts 2d, p. 142, sec. 324A, ... the building inspector, once he did undertake to inspect the building had a duty to exercise reasonable care in so doing. That duty flowed to the plaintiffs herein.
“The ‘public duty’ — ‘special duty’ distinction espoused in the cases cited by the City of Milwaukee and LeGrand set up just the type of artificial distinction between ‘proprietary’ and ‘governmental’ functions which this court sought to dispose of in Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962). Any duty owed to the public generally is a duty owed to individual members of the public.” Coffey, 247 N.W.2d at 139.

For other cases reaching similar results, see Adams v. State, 555 P.2d 235 (Alaska 1976); and Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975).

On the other side of this “duty” issue is Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), in which the Minnesota Court reasoned:

“The purpose of a building code is to protect the public. This is well stated in 7 McQuillen, Municipal Corporations (3 ed.) § 24.507, p. 523:
‘... The enactment and enforcement of building codes and ordinances constitute a governmental function. The primary purpose of such codes and ordinances is to secure to the municipality as a whole the benefits of a well-ordered municipal government, or, as sometimes expressed, to protect the health and secure the safety of occupants of buildings, and not to protect the personal or property interests of individuals.’
“Building codes, the issuance of building permits, and building inspections are devices used by municipalities to make sure that construction within the corporate limits of the municipality meets the standards established. As such, they are designed to protect the public and are not meant to be an insurance policy by which the municipality guarantees that each building is built in compliance with the building codes and zoning codes....
“This court in Roerig v. Houghton, 144 Minn. 231, 235, 175 N.W. 542, 544 (1919), held that a building inspector acts exclusively for the benefit of the public. The act performed is only for public benefit, and an individual who is injured by any alleged negligent performance of the building inspector in issuing the permit does not have a cause of action [cites omitted].” Hoffert, 199 N.W.2d at 160.

For cases which have similarly rejected liability, see Besserman v. Town of Paradise Valley, Inc., 116 Ariz. 471, 569 P.2d 1369 (Ariz.App.1977); and Georges v. Tudor, 16 Wash.App. 407, 556 P.2d 564 (1976).

From the standpoint of pure logic, we concede that the reasoning of the Wisconsin Court is difficult to refute. There is, indeed, a sense in which the duty of the City’s employees, as inspectors, is a duty flowing to the individual homeowners. But to stop here and impose liability is to overlook what we perceive as overriding public policy reasons to hold to the contrary.

These policy considerations may be expressed in terms of the broader requirement of the City to provide for the public health, safety, and general welfare of its citizenry. While, as here, the individual homeowner is affected by the discharge of the City sewer inspector’s duty, the City’s larger obligation to the whole of its resident population is paramount; and the imposition of liability upon the City, particularly where the Plaintiffs’ reliance upon the public inspection is secondary and inferential to their reliance upon the building contractor, necessarily threatens the benefits of such services to the public-at-large.

A municipality, in contrast to the State, which has immunity under Ala.Const. 1901, § 14, is generally chargeable with the negligence of its employees acting within the line and scope of their employment. In Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), we interpreted § 11-47-190, Code 1975, as so mandating. We believe these public policy considerations, however, override the general rule and prevent the imposition of a legal duty, the breach of which imposes liability, in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide such public services.

We readily acknowledge both the difficulty and the risk of error of any attempt to articulate the rule with that degree of definiteness which is easily applicable to varying factual situations. But this phenomenon is no stranger to the Rule of Law generally. We believe the wiser course is to allow the rule to evolve through the judicial process of trial and review on a case by case basis.

We emphasize, however, that only the narrowest of constructions of our instant holding will avoid violence to § 11-47-190 and its Jackson interpretation; and that the substantive immunity rule of this case must be given operative effect only in the context of those public service activities of governmental entities (not to be confused with the pre-Jackson distinction between governmental and proprietary functions ) so laden with the public interest as to outweigh the incidental duty to individual citizens. Cf. DeStafney v. University of Alabama, 409 So.2d 1347 (Ala.1982). For two recent pronouncements of this Court that further illustrate the circumscription of the rule, see, also, City of Birmingham v. Thompson, 404 So.2d 589 (Ala.1981) (allowing a claim for assault and battery); and Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980) (rejecting a claim for malicious prosecution).

We further emphasize that this case neither presents, nor do we decide, the issue whether a city employee would be liable individually for simple negligence in the performance of his duties as a city building and improvements inspector; nor does our holding in DeStafney v. University of Alabama, supra, because of the dissimilar nature of the activities involved, necessarily resolve this issue. Judicial restraint compels us to await a more appropriate case for decision when this issue is presented, briefed, and argued by counsel.

Cognizant of the Restatement’s review of the historical development of municipal immunity, and the modern trend of the common law to liberalize its exceptions (Comment, § 895C), which we accept generally, we nonetheless reject the Restatement’s approval of a claim against the City under the facts of the instant case.

AFFIRMED.

FAULKNER, SHORES, EMBRY, BEAT-TY and ADAMS, JJ., concur.

MADDOX and ALMON, JJ., concur in the result.

TORBERT, C. J., not sitting.

      . In its Comment to § 895C (Immunities— Local Government Entities), the Restatement (Second) of Torts, contains these observations:

        “b. Nature of ¡ocal governmental entities

      “Because of the private-corporation aspect of its character, a local governmental entity has traditionally been subject to suit, and there has been no problem of finding an express or implied consent to be sued. But the problem of substantive immunity from tort liability has existed from the beginning.

      “e. Governmental and proprietary functions. The first limitation upon the immunity that developed was that the local government was liable in tort for what it did or omitted to do in its ‘proprietary’ function, as distinguished from its ‘governmental’ function. When it could be found to be acting in its capacity as a corporation, rather than as a government, it had no more immunity than a private corporation. The classification of particular functions as one or the other proved, however, to be so difficult and uncertain, and the subject of so much disagreement that there was little uniformity in the decisions. Continued criticism led to a definite trend in the direction of an extension or expansion of municipal tort liability either by finding that the particular activity that caused the harm should be characterized as proprietary rather than governmental, or by discovering special reasons to take it out of the rule conferring immunity on matters governmental.
      “Other exceptions have developed. A major one is that whenever, in the exercise of a governmental function, a municipality can be found to have created or maintained a nuisance, either public or private, there is no •immunity. In many jurisdictions, the' existence of liability insurance has been treated as a waiver of governmental immunity, at least to the extent of the insurance coverage. There have been cases holding a local government liable for active wrongdoing as distinguished from nonfeasance and for voluntary activities as distinguished from mandatory ones. Rules eliminating the immunity in certain types of activities, such as the maintenance of streets and sidewalks, have also developed. Courts often exercised considerable ingenuity in finding means of avoiding a traditional rule of immunity, especially when there was insurance involved. The broadening of the number and scope of exceptions suggests that they have been transitional to a position in which the immunity is the exception rather than the rule.”


text:
    OPINION OF THE JUSTICES.
    No. 289.
    Supreme Court of Alabama.
    Feb. 23, 1982.
   To the Members of the Senate and the House of Representatives

State Capitol

Montgomery, Alabama

Dear Senators and Representatives: .

We are in receipt of House Resolutions 20, 21 and 77, sponsored by Representative Gafford, House Resolution 119 sponsored by Representative Manley, and Senate Resolution 20 sponsored by Senator Cook. All of these resolutions request opinions of the Justices of the Supreme Court relating to legislative procedure regarding certain specified constitutional provisions. We can summarize these requested opinions as follows:

House Resolution 20 inquires whether the substitution of a proposed constitutional amendment to replace a statutory bill conflicts with Art. 4, Section 61, of the Constitution. House Resolution 21 poses the opposite question — whether the substitution of a statutory bill to replace a constitutional amendment conflicts with said Section 61 of the Constitution. House Resolution 77 relates to pending House Bill 414. House Bill 414 proposes to establish legislative procedure to make bills relating to crimes and offenses the paramount order of business, unless the House or Senate by resolution adopted by a three-fifths vote of the elected membership declares otherwise. House Resolution 77 poses the question whether the three-fifths voting requirement of House Bill 414 violates Sections 63 and 64 of our Constitution. House Resolution 119 also asks whether the three-fifths voting requirements of Act 81-953 contravene the provisions of Sections 63 and 64 of the Constitution. In addition, this resolution also requests our opinion whether Act 81-953 supersedes and relieves the Legislature from the restrictive procedural mandates of Code 1975, § 41-20-10(a) (provisions of the “Alabama Sunset Law”). Senate Resolution 20 refers to another Senate resolution which proposes to exempt legislative consideration of Senate Bill 41 from the restrictive provisions of Section 1(C) of Act 81-953, inquiring of the Justices whether the provisions of Section 1(C) violate Sections 63, 64 and 66 of the Constitution.

Considering all of the resolutions and the various questions posed therein, it is apparent that both Houses of our Legislature are concerned with the proper application of the provisions of Act 81-953, First Special Session, 1981 (commonly referred to as the “budget isolation bill”), as those provisions purport to control and restrict the business of the Legislature now in process in its 1982 Regular Session. Act 81-953 is a general law which in summary establishes a paramount duty on the Legislature to consider and pass bills making “basic appropriations” and to present such bills to the Governor before any other bill can be “signed by either the presiding officer of the House or Senate and transmitted to the other House....” Act No. 81-953, § 1(C), Acts of Alabama, 1981. The Legislature in its wisdom also provided an exception to said paragraph (C) of section 1 as follows:

“[A]nd provided further, that following adoption, by vote of either house of not less than three-fifths of the members elected to that house, of a resolution declaring that the provisions of this paragraph (C) shall not be applicable in that house to a particular bill, which shall be specified in said resolution by number and title, the bill so specified may proceed to final passage therein.”

One of the central issues addressed by these several resolutions concerns Art. 4, Section 61, of the Alabama Constitution of 1901, which provides:

“No law shall be passed except by bill, and no law shall be so altered or amended on its passage through either house as to change its original purpose.”

House Resolutions 20 and 21 specifically request our opinion as to whether a bill proposing a statute may be substituted for a bill proposing a constitutional amendment, and conversely, whether a bill proposing a constitutional amendment may be substituted for a bill proposing a statute without violating the provisions of § 61.

It is interesting to observe that this same issue was presented to the Justices of the Supreme Court by Senate Resolution 42 in the First Special Session, 1981, while the Senate was considering House Bill 38 (the bill which proposed and resulted in the enactment of Act 81-953). Senate Resolution 42 was adopted by the Senate on August 13, 1981; however, on the same day the Senate took final action on House Bill 38, and accordingly, we were without authority to answer the request for an advisory opinion since this legislation was not then a matter “pending” before that legislative body. Opinion of the Justices, No. 281, 410 So.2d 384 (Ala.1981). See, Code 1975, § 12-2-10; Opinion of the Justices, No. 281, 410 So.2d 1055 (Ala.1980); Opinion of the Justices, 294 Ala. 582, 319 So.2d 709 (1975); Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970).

The statute authorizing the Justices of this Court to render advisory opinions was enacted into law in 1923. Code 1975, § 12-2-10 [see, Act No. 43, Acts of Alabama, 1923], In response to the first request for an advisory opinion, the Justices of this Court carefully considered the constitutionality of that act, and in an opinion by Justice McClellan, concurred in by Chief Justice Anderson and Associate Justices Somerville, Gardner and Thomas, determined that such a procedure was constitutionally appropriate. See, Opinions of the Justices, 209 Ala. 593, 96 So. 487 (1923). In that opinion, the majority opined the following:

“Interpreting the act according to its manifest effects, these conclusions must, of necessity, prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not of the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.”

209 Ala. at 594, 96 So. 487.

A strong and well reasoned dissent by Associate Justices Sayre and Miller pointed out that the legislation authorizing advisory opinions was not for the purpose of helping the Legislature overcome constitutional deficiencies in legislation pending before the Alabama Senate and House of Representatives, but instead the substance of the requests would be: If the Legislature should pass this act, is it your opinion that the Supreme Court will uphold its constitutionality? They felt this would, in effect, constitute a constitutional ruling on a legislative enactment prior to its passage without the benefit of allowing the matter to proceed through the adversarial process envisioned by the separation of powers safeguards included in our Constitution. See, Opinions of the Justices, 209 Ala. 593, 602-05, 96 So. 487 (1923). The minority further stated that “Each branch [of government] has the legal and moral right to decide such questions for itself.” 209 Ala. at 603, 96 So. 487.

Since that first opinion, the Justices of this Court have conscientiously responded to requests of the Legislature, as well as the Governor, for advisory opinions.

“These opinions are usually given in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties and to protect the officers and departments of the state in the performance of their duties under enacted legislation or under stipulation of proposed bond issues, etc.”

Opinion of the Justices, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957). See also, Opinion of the Justices, 394 So.2d 957, 959-60 (Ala.1981). However, as has been pointed out many times, the procedure, as well as the advisability, of rendering advisory opinions is not without difficulty, particularly in view of the fact that the questions are presented outside the normal adversary system wherein pertinent facts from the record of a trial court would be presented, and the issues would be briefed by attorneys and most times orally argued before the Court.

“There are several reasons why the practice of invoking the merely advisory opinions of the Justices, in their individual capacities, cannot and will not operate to invite the Justices to prejudge concrete causes or proceedings that may later come to the Supreme Court for decision: First. Such merely advisory opinions must often pertain to important constitutional questions that never can or will come to the Supreme Court’s consideration and decision; this, to illustrate, in all cases where the Legislature or the Executive does no act projecting or raising the constitutional inquiry upon which an advisory opinion or opinions have been requested and given. Second. Since only one prejudiced by official act or action can invoke the courts to judicially determine a constitutional question, it cannot be at all certain that the subject of such advisory opinion will be presented for judicial determination in a cause or proceeding in the courts. Third. The decision by the Supreme Court upon the constitutional validity of a legislative enactment or of an act by the Executive always contains this important factor that is wholly absent in a response by the Justices to a request for a merely advisory opinion on the question, pending legislative or executive action, namely, that in judicially testing and determining the constitutionality of legislative or executive action the Supreme Court — in the discharge of its high and concluding judicial function — always enters upon such an inquiry with the presumption, suggested by the deference due from one department to another, that the other department has not ignored or violated the Constitution; and this judicial presumption requires the sustaining of legislative or executive act, unless its invalidity appears beyond a reasonable doubt. In the observance of the practice, this act establishes, responses by the Justices would not at all involve recourse to or recognition of the stated presumption pending action by the interrogator on the subject of the advice sought. In these circumstances, no evoking of the judgment of the Justices in advance of contestation of any constitutional question in the Supreme Court itself is or would be effected by the practice the act establishes.”

209 Ala. at 598, 96 So. 487.

It is also instructive to note that advisory opinions are not binding precedents as are decisions on appeal to • this Court. See, Alabama Education Association v. James, 373 So.2d 1076 (Ala.1979). Therefore, it is possible that this Court could render an advisory opinion offering its belief that a bill does not violate the Alabama Constitution but later declare the same act unconstitutional if a case presented on appeal so warranted. Once an advisory opinion is rendered, however, officers of this government acting on the basis of it' are shielded from liability, to the same extent as are those who act pursuant to opinions of the attorney general. Code 1975, § 12-2-12. See, Opinion of the Justices, 254 Ala. 177, 47 So.2d 655 (1950). Additionally, if a request for an advisory opinion is presented to this Court concerning a bill that is almost identical in substance or form to previously enacted legislation, this Court must refuse to render the advisory opinion because the possibility of actual judicial involvement, i.e., hearing a case on the merits, exists. See, Opinion of the Justices, 272 Ala. 480, 132 So.2d 381 (1961); Opinion of the Justices, 269 Ala. 658, 115 So.2d 524 (1959); Opinion of the Justices, 266 Ala. 370, 96 So.2d 752 (1957).

As to one of the central issues raised by the several resolutions requesting advisory opinions, we take judicial notice from our own records that the issue respecting § 61 of the Constitution has been raised in the case of Robert Gafford v. John W. Pemberton, Clerk of the House of Representatives of the State of Alabama, et al., which was filed in the Circuit Court of Montgomery County, and which is now pending on appeal in this Court as Case No. 81-354. Additionally, Senate Resolution 20 was amended to add the following:

“BE IT RESOLVED FURTHER, that if the Justices should, in their wisdom, not address any or all questions propounded above, then, in that event, the Senate respectfully request that the Court, if possible, expedite their consideration of the case of Robert Gafford, Plaintiff v. John Pemberton, Clerk of the House of Representatives of the State of Alabama, et a 1. Defendants, Supreme Court No. 81-354.” .

While the questions propounded in Senate Resolution No. 20 and House Resolution No. 119, as well as in House Resolution No. 77, sponsored by Representative Gafford, who is the appellant in Case No. 81-354, are not identical with the issues presented in that case, it is apparent to the Justices of this Court that members of the Legislature are concerned about the operative effect of the provisions of Act No. 81-953 on the business of the Legislature currently being conducted at the 1982 Regular Session, and that a central issue is the constitutionality of Act No. 81-953. The basic constitutionality of that Act is raised in the case on appeal.

Accordingly, after carefully considering the several requests for advisory opinions contained in the four pending resolutions of the House and the Senate, it is our considered judgment and opinion that the best, wisest and most appropriate action for this Court to take would be to expedite the appeal in the pending Case No. 81-354 before this Court and to respectfully decline to address the inquiries made in the various resolutions.

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr. Justices

      . Act No. 81-953, Acts of Alabama, 1981, reads as follows:
      “BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

        “Section 1. (A) The following words and phrases, whenever used in this act, shall have the following respective meanings:
      “ ‘Basic Appropriations’ means, with respect to any regular session of the Legislature, such appropriations as the Legislature may deem appropriate for the expenditures by the State during the ensuing Budget Period for the ordinary expenses of the executive, legislative and judicial departments of the State, for payment of the public debt, and for education (excluding, however, any item within the scope of the foregoing that is at the time provided for by a continuing appropriation or otherwise).

        “ ‘Budget Period" means a fiscal year of the State or such period other than fiscal year as may hereafter be fixed by law as the period with respect to which State budgets are prepared and State appropriations are made.
      “(B) On or before the second legislative day of each regular session of the Legislature, beginning with the first regular session after January 1, 1982, the Governor shall transmit to the Legislature for its consideration a proposed budget for the then next ensuing Budget Period.
      “(C) The duty of the Legislature at any regular session to make the Basic Appropriations for any Budget Period that will commence before the first day of any succeeding regular session shall be paramount; and, accordingly, beginning with the first regular session held after January 1, 1982, no bill (other than a bill making any of the Basic Appropriations) shall be signed by either the presiding officer of the House or Senate and transmitted to the other house until bills making the Basic Appropriations for the then ensuing Budget Period shall have been signed by the presiding officer of each House of the Legislature in accordance with Section 66 of the Alabama Constitution and presented to the Governor in accordance with Section 125 of the Constitution; provided, that this paragraph (C) shall not affect the adoption of resolutions or the conduct of any other legislative functions that do not require a third reading; and provided further, that following adoption, by vote of either house of not less than three-fifths of the members elected to that house, of a resolution declaring that the provisions of this paragraph (C) shall not be applicable in that house to a particular bill, which shall be specified in said resolution by number and title, the bill so specified may proceed to final passage therein.
      “(D) Upon the signing and presentation to the Governor in accordance with the said Sections 66 and 125 of bills making the Basic Appropriations, the provisions of the foregoing paragraph (C) prohibiting the final passage of bills in the House and Senate (other than bills making any part of the Basic Appropriations) shall cease to be effective and shall not be revived or become again effective as a result of (i) the subsequent legislative history of any bill so signed and presented, including any veto, return with executive amendment, or any other action, or failure to act, by either the Governor or the Legislature under the provisions of the said Section 125; or (ii) a determination, by either judicial decree or opinion of the Justices of the Alabama Supreme Court, that any bill so signed and presented is wholly or in part invalid.
      “(E) The Legislature may, by statute or rule, make such further provisions for the timely passage of bills making the Basic Appropriations.
      “(F) Nothing contained herein shall be construed as requiring the Legislature to make any appropriation not otherwise required to be made.

        “Section 2. All laws or parts of laws which conflict with this act are hereby repealed.

        “Section 3. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

        “Section 4. This act shall become effective on January 1, 1982 and shall self-terminate on July 1, 1982.”

      . Opinion of the Justices, 272 Ala. 480, 132 So.2d 381 (1961); Opinion of the Justices, 269 Ala. 658, 115 So.2d 524 (1959); Opinion of the Justices, 266 Ala. 370, 96 So.2d 752 (1957). The case of Gafford v. Pemberton, Ala., 409 So.2d 1367, was submitted on briefs to this Court on February 9, 1982.


author: EMBRY, Justice.

text:
    Dollie W. ROBERTS v. PEOPLES BANK AND TRUST COMPANY OF SYLACAUGA, a Corporation.
    80-735.
    Supreme Court of Alabama.
    Feb. 26, 1982.

      Lewis W. Page, Jr. of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    Robert J. Teel of Teel & Teel, Rockford, and Huel M. Love of Love, Love, Lawrence & Wood, Talladega, for appellee.
   EMBRY, Justice.

This is an appeal by Dollie W. Roberts from a decree rendered in behalf of Peoples Bank and Trust Company of Sylacauga, after an ore tenus trial, in its declaratory judgment action. The decree denied relief that Roberts asserted in her counterclaim.

The Bank alleged it had purchased property from the defendants, Dollie Roberts and others, by general warranty deed on 15 December 1977, and had prior to that, on 18 August 1977, procured a contract of sale and purchase that contained a provision Roberts claimed prevented it from using the property for any purpose other than the erection thereon of a bank building. The Bank further alleged it had purchased the property for the purpose of erecting a bank building thereon but later it became impractical to do so. The relief sought was a declaration that the Bank, as owner of the property in fee simple, had the right to sell or use the property for any lawful purpose.

Roberts’s defense was that the Bank had fraudulently represented that its intention in purchasing the property was solely for the purpose of erecting a bank building and this representation was relied upon.

Prior to trial, default judgment was rendered against all defendants other than Mrs. Roberts.

The record in this cause reveals the following: In the early summer of 1977, Peoples Bank, through a real estate agent, Mrs. Lettye Byrum, approached the defendant, Dollie Roberts, about the sale of a lot owned by the Robertses and located in Syla-cauga, Alabama. During a conversation, Mrs. Roberts was told by Mrs. Byrum that the Bank’s purpose in purchasing the property was to build a bank on it.

On 18 August 1977, the parties executed a contract for the sale of the property. The contract provided:

The purpose of the purchase of the above land by grantee [Bank] is for the construction of a bank building.

On 15 December 1977, Mrs. Roberts executed a deed to plaintiff, Peoples Bank and Trust Company, conveying the property in question. The deed was prepared by Mrs. Roberts’s attorney and examined by her before she signed it. The deed did not contain the provision quoted above from the sales contract.

The record shows that one Whitman was president of the Bank at the time of negotiations for the purchase of the property. During this time, Whitman represented to the Board of Directors of the Bank that the appropriate bank regulatory authorities had approved the construction of the bank building and arrangements had been made for the necessary financing. Whitman also represented to the Board that all necessary applications had been secured for the construction of the bank building.

In response to Whitman’s representations, the Bank spent substantial amounts of money pursuing this endeavor, including money paid to an architectural firm, payment of real estate commissions, payment for a survey, as well as the sum of $125,000 for purchase of the lot.

Approximately 20 November 1977, Whitman resigned as president of the Bank and was replaced by Bill B. James. At trial, James testified that after conferring with the appropriate bank regulatory agencies in Atlanta sometime after the first of the year, he determined the financing for the new bank building was not feasible and would not be approved. James also discovered that Whitman had misrepresented to those agencies the Bank’s ability to purchase the Robertses’s property. James further testified that upon finding construction of the new bank building infeasible, the Bank offered to convey the property back to the Robertses at the purchase price but that no reply was made to this offer.

The portion of the decree pertinent to this decision is:

After hearing said testimony, the Court finds that the words “The purpose of the purchase of the above land by grantee is for the construction of a bank building” contained in the contract of sale and purchase involved herein were not intended by the parties to said contract as a covenant; the Court further finds that even if so intended, the Defendants executed and delivered to the Plaintiff a general warranty deed making no mention of such sentence, and, the Court therefore holds, pursuant to the doctrine of merger set forth in Alger-Sullivan Lumber Co. v. Union Trust Co., 207 Ala. 138, 92 So. 254, that the Defendants’ rights under said contract merged into the said deed.

See also, Ridley v. Moyer, 230 Ala. 517, 161 So. 526 (1935). We agree and will affirm.

Roberts contends the trial court erred in not recognizing the fraud exception to the doctrine of merger.

It is well-settled Alabama law that, where the record shows a case was tried by the court without a jury and judgment was rendered absent special findings of fact, on review it will be assumed that the trial court made those findings necessary to support its judgment, and the conclusion of the trial court will be affirmed unless clearly erroneous or manifestly unjust, if fairly supported by credible evidence under any reasonable aspect of that evidence. J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); Hill v. Delchamps Food Stores, 294 Ala. 14, 310 So.2d 871 (1975); Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974). There was sufficient evidence upon which the trial court could conclude as it did in this case.

The presence or absence of fraud is a question to be determined by the trier of fact. To the extent fraud is a factual question, the trial court having tried the case ore tenus, this court will indulge all favorable presumptions to sustain that court’s conclusion and it will be disturbed on appeal only if shown to be plainly erroneous or manifestly unjust. Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So.2d 7 (Ala.1980); Krieger v. Krieger, 276 Ala. 466, 163 So.2d 623 (1964). The record adequately supports the finding that no fraud infected the transaction. The only fraud perpetrated was upon the Bank by an officer of that Bank.

The judgment below is therefore affirmed.

AFFIRMED.

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


text:
    James NORRED and Doris Norred v. Gladys WALL.
    81-33.
    Supreme Court of Alabama.
    Feb. 26, 1982.
    Thomas L. Rountree, Oneonta, for appellants.
    B. J. McPherson, Oneonta, for appellee.
   EMBRY, Justice.

Affirmed on the authority of Raburn v. Rice, 404 So.2d 648 (Ala.1981).

AFFIRMED.

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