text:
    Cecil E. HARRIS et al. v. Katherine H. BERREY.
    79-727.
    Supreme Court of Alabama.
    Jan. 29, 1981.

      William W. Gobrecht and Thomas T. Gal-lion, III, Montgomery, for appellants.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   FAULKNER, Justice.

The Harrises filed suit against the Ber-reys, seeking damages as a result of a rear-end collision. Mr. Berrey was dismissed and the jury returned a verdict for Mrs. Berrey, and the trial judge entered a judgment for them in accordance with the verdict. We affirm.

On March 17, 1978, Mrs. Dianne Harris was driving her automobile in a westerly direction on the Southern Bypass, Montgomery, Alabama. She was following a line of automobiles. Mrs. Berrey was behind her. Suddenly, the automobile ahead of Mrs. Harris stopped. She stopped, but Mrs. Berrey failed to stop in time, and rear-ended Mrs. Harris. Mrs. Berrey was moving at 20-25 miles per hour just before the collision.

The evidence presented to the jury was conflicting. Mrs. Harris testified that after she had stopped (because the cars ahead of her had stopped) she saw Mrs. Berrey in her rear-view mirror traveling toward her. Realizing that Mrs. Berrey was going to hit her, she pressed her foot on the brake, and, as expected, Mrs. Berrey rear-ended her. On the other hand, Mrs. Berrey said that the car in front (Harris) stopped so suddenly without any signal that there was not any way for her to avoid the accident. An investigating officer testified that it appeared to him that Mrs. Berrey was following too closely behind.

The trial judge charged the jury specifically on the law applicable to a motorist following another too closely, as well as the issues of negligence and contributory negligence. There was no objection to the charge by either party.

The Harrises present three principal issues on appeal: (1) whether the verdict is sustained by the great preponderance of the evidence; (2) whether the trial judge erred by charging the jury on contributory negligence, Mrs. Harris’s failure to give a signal before stopping, and by failing to instruct the jury that following too closely constitutes negligence per se; and, (3) whether the trial judge erred by striking Mrs. Harris’s child’s claim for loss of parental services of his mother.

First, this Court stated in the recent case of Maffett v. Roberts, [Ms. October 3, 1980] 388 So.2d 972 (Ala.1980), that,

In reviewing the verdict, we must view the evidence that was before the jury in a light most favorable to the appellees, without regard to any view which we might have as to the weight of the evidence. We must also allow such reasonable inferences as can be drawn by a jury. Riley v. Banks, 289 Ala. 56, 205 So.2d 599 (1972). A jury verdict, presumptively correct, must not be set aside unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence is against the verdict and is so decidedly so as to clearly convince us that it is palpably wrong and manifestly injust. Kilcrease v. Harris, supra, Johnson v. Louisiana and N. R. Co., 240 Ala. 219, 198 So. 350 (1940).

After a review of the evidence, we opine that the preponderance of the evidence is not against the verdict. The most favorable evidence for the Harrises came from the policeman investigating the accident— that Mrs. Berrey was following too closely was his opinion. However, the physical facts surrounding the accident did not conclusively support his opinion. Moreover, the jury was fully and fairly instructed on this issue and was free to give whatever weight it desired to the officer’s opinion.

Second, the Harrises cannot now complain of anything stated by the trial judge in his charge to the jury. Rule 51, ARCP, provides that: “No party may assign as error the giving ... of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

Finally, because the principal case was decided against Mrs. Harris, the derivative actions must fail; otherwise there would be inconsistent verdicts. Lindsay v. Hackney, 283 Ala. 372, 217 So.2d 238 (1969).

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Bruce PRUITT and Karen Pruitt v. Randall R. MEADOWS and Patricia Meadows.
    79-839.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    Bob E. Allen, Montgomery, for appellants.
    John S. Bowman and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, for appellees.
   FAULKNER, Justice.

Summary judgment in favor of the Meadowses is affirmed.

The Meadowses, by warranty deed, conveyed Lot 22, Block D, according to Map of Regency Forest, Plat No. 2, to the Pruitts on September 22, 1978. The conveyance was specifically made “subject to any and all easements, rights of way, reservations and restrictions appearing of record and affecting the property.”

On July 10, 1979, the Pruitts filed a breach of warranty suit against the Mead-owses, based upon an easement to the Alabama Power Company. On June 3, 1980, the Meadowses moved for summary judgment, supporting their motion with an affidavit denying any warranty against encumbrances. The Pruitts neither filed any affidavits nor submitted any other evidence opposing the Meadowses’ motion.

On June 19, the Pruitts filed an amended complaint realleging breach of warranty, and adding another count alleging fraudulent misrepresentation. On June 26, the Court granted the Meadowses’ motion for summary judgment and denied the Pruitts’ amendment.

At the outset, we opine that this appeal borders on being frivolous. However, we will give the Pruitts the benefit of doubt in this case.

The issues here, of course, are: (1) whether summary judgment was proper, and (2) whether the amendment should have been permitted. The answer to the first is yes— to the second, no.

The Pruitts make the novel argument that the easement to Alabama Power Company appearing in the deed was not in the hands of the trial judge when he entered summary judgment. Yet, they neither disputed nor did they suggest that the easement was not of record. Their argument is without merit. Exceptions similar to the one appearing in the Pruitts’ deed are frequently made to limit warranties. Cf. Union Oil Company of California v. Colglazier, 360 So.2d 965 (Ala.1978). Moreover, a buyer of real estate is charged with notice of what appears on the face of the conveyance. Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330 (1929).

Next, the Pruitts did not produce any evidence opposing the Meadowses' motion for summary judgment. And, here the Meadowses clearly carried their burden of proving the nonexistence of any genuine issue of a material fact. Therefore, the trial judge correctly granted their motion. See Worley v. Worley, 388 So.2d 502 (Ala.1980), Rule 56(e), ARCP.

Finally, the amendment was properly disallowed by the trial court. Even though Rule 15(a), ARCP, expresses a liberal policy of permitting amendments, this court stated in Stead v. Blue Cross-Blue Shield of Alabama, 310 So.2d 469 (Ala.1975), that:

[I]f Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground. We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.

We cannot find anything in the record showing that the trial judge abused his discretion by disallowing the amendment.

AFFIRMED.

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


author: FAULKNER, Justice. EMBRY, Justice

text:
    Iven HARVILLE et al. v. J. W. GOZA.
    79-864.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    Robert B. French, Jr., Fort Payne, for appellants.
    Loma B. Beaty, Fort Payne, and Terry T. Bush, Rainsville, for appellee.
   FAULKNER, Justice.

In Harville’s brief this statement appears: “The outcome of this case before this Court turns on whether Alabama actually has a scintilla rule, or whether this state has the substantial evidence rule and calls it a scintilla rule.”

The scintilla rule permits a case on motion for a directed verdict, to go to the jury where there is a scintilla of evidence to support the theory of the complaint. Perdue v. Mitchell, 373 So.2d 650 (Ala.1979). But, when a motion for judgment notwithstanding the verdict is filed, the trial judge must determine whether there is sufficient evidence to support the jury verdict. The motion for JNOV preserves appellate review of the sufficiency of the evidence. The Great Atlanta and Pacific Tea Company, Inc. v. Sealy, 374 So.2d 877 (Ala.1979). For a party to be entitled to a JNOV, he must have made a motion for a directed verdict. A motion for JNOV without having moved for a directed verdict at the proper time will be denied. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2537 (1971). See also The Great Atlantic and Pacific Tea Company, Inc. v. Sealy.

In the case before us, Goza moved for a directed verdict at the close of the evidence. The motion was denied and the case went to the jury under the scintilla rule. After the jury’s verdict, Goza moved for a JNOV on the ground that the evidence was insufficient to support the verdict awarding plaintiffs $32,500.00 damages in a suit for an accounting.

We, without setting it out, have reviewed the evidence as to its sufficiency to support the verdict. We find it to be insufficient. So, returning to square-one of Har-ville’s statement, we have two standards of review, one for motions for directed verdict, the other for motions for JNOV.

The order of the trial court granting the motion for JNOV is affirmed.

AFFIRMED.

TORBERT, C. J., and ALMON and ADAMS, JJ., concur.

EMBRY, J., concurs specially.

EMBRY, Justice

(concurring specially):

A word or two regarding the amorphous scintilla rule.

To assume that this rule serves any useful purpose in the law is to engage in the most chimerical of suppositions. To at once require a case to be submitted to a jury’s consideration if there be a gleam, a spark, a glimmer, of evidence to support a theory of recovery, and then to require that the trial court set aside a verdict supported only by that scintilla, seems to me a gross anomaly and ridiculous dissipation of the time and energy of our judicial system.

In all the thirty-four years of my presence at the bar, never have I observed a claim meriting recovery supported merely by a scintilla of evidence and if, per chance, a jury mistakenly rendered an award, then, of course, it was duly set aside.

Would it not be far better, from every standpoint, to require there be sufficient evidence to support a verdict before submitting a case to a jury authorized to render one?


text:
    John A. GOFORTH, Jr. v. HALLMARK POOLS et al.
    80-89.
    Supreme Court of Alabama.
    Jan. 29, 1981.

      Howard B. Warren of Torbert, Turnbach & Warren, Gadsden, for appellant.
    James C. Inzer, III, and F. Michael Haney of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   FAULKNER, Justice.

Goforth appeals from an order denying his motion for new trial after the trial court granted Hallmark’s motion for a directed verdict. We affirm.

In May, 1976, John Goforth responded to a newspaper ad reading: “Hallmark Fiberglass Pools ... A. J. Gibbs — Dealer, 442-2119.” At Goforth’s request, Gibbs came to the Goforth home, bringing with him advertising materials, pool plans, and a Hallmark film narrated by a cassette tape. On May 31, after Goforth had examined some local pools installed by Gibbs, he entered into a contract with Gibbs to install a pool. The contract was executed on a Hallmark form. The contract price was $6,717.00. Goforth had paid $3,348.00 when Gibbs disappeared. After making several unsuccessful attempts to locate Gibbs, Goforth contacted Hallmark. It refused to help. On December 15, he sued Hallmark in a complaint alleging breach of contract and fraud. He subsequently amended by adding counts in negligence and agency by estoppel. The case went to trial before a jury, and at the conclusion of Goforth’s evidence, on motion, the trial court directed a verdict for Hallmark.

The principal issue to be decided is whether there was a scintilla of evidence on the question of agency by estoppel that would provide a basis for submitting the case to the jury. Goforth contends that there was. We disagree. Even though the contract that Goforth signed specifies “a Hallmark Pool,” the named contractor was A. J. Gibbs. Nothing in the contract indicates that Gibbs signed the contract in an agency capacity. Second, the newspaper ad that Goforth answered clearly stated that Gibbs was a dealer. Moreover, the agreement that Gibbs signed with Hallmark Pool Corporation named him as a dealer. Third, the Hallmark Pool came in a so-called kit to be assembled and installed by Gibbs on the owner’s property. Fourth, Gibbs paid for the pool kit in cash when it was shipped to him by Hallmark. And finally, while the sales pitch was Hallmark’s, that is, the film, the cassette, and brochure, the narration describing the Hallmark pool said, “Hallmark Dealers are respected independent business people from your area.”

A party who invokes estoppel must have in good faith been ignorant of the true facts at the time the representation was made to him and at the time he acted on it. And, he must show that he acted with diligence to learn the truth. Pattillo v. Tucker, 216 Ala. 572, 113 So. 1 (1927). Moreover, this Court stated in Birmingham News Company v. Birmingham Printing Company, 209 Ala. 403, 96 So. 336 (1923):

“Estoppel,” by holding out another as the agent of the asserted principal, “is always a matter personal to the individual asserting it and he must therefore show that he was misled by the appearances relied upon. It is not enough that he might have been * * * so misled. It must also appear that he had reasonable cause to believe that the authority existed; mere belief without cause, or belief in the face of facts that should have put him on his guard is not enough.”

See also Union Oil Company of California v. Crane, 288 Ala. 173, 258 So.2d 882 (1972).

We are unable to find where Goforth was misled or where he had reasonable cause to believe that Gibbs was acting for Hallmark.

The order of the trial court denying Go-forth’s motion for new trial is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Harry SHERER and Olivia Sherer v. Craig BURTON and Ivous Burton.
    79-45.
    Supreme Court of Alabama.
    Jan. 30, 1981.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellants.
    James C. King of Wilson & King, Jasper, for appellees.
   TORBERT, Chief Justice.

Plaintiffs, Craig and Ivous Burton, and defendants Harry and Olivia Sherer own adjacent pieces of property in Jasper, Alabama. A dispute arose concerning the construction of an access road to the Burtons’ property across that of the Sherers, and the Burtons filed a suit for declaratory judgment.

Service was not perfected on defendants, Harry and Olivia Sherer, but a default judgment was rendered against them on December 21, 1978. When the Sherers learned of the default judgment, they made a motion to have it set aside. Judge Leon Beaird agreed to set aside the default, but he recused himself before doing so. Judge Horace Nation, unaware of these circumstances, heard the case ore tenus on the merits on August 14, 1979. When the failure to set aside the default was brought to the attention of the defendants, they made another motion to set aside the default. The default judgment was set aside and a supplemental record was certified on June 12, 1980.

Both the Sherers and the City of Jasper, the other defendant, demanded a jury trial in their answers. Judge Nation denied the jury trial demand both as a matter of law and as not timely filed. He ruled in favor of the plaintiffs on the merits on August 24, 1979, and defendants Harry and Olivia Sherer appealed to this Court.

Defendants assign as error four separate grounds. Since we find as dispositive one of these grounds, we do not reach the other three.

“[A] party to a bill seeking a declaratory judgment is entitled to a jury trial as a matter of right if he would have had such a right in the cause of action for which the declaratory relief may be considered a substitute.” Hanks v. Hanks, 281 Ala. 92, 97, 199 So.2d 169, 173 (1967); Reed v. Hill, 262 Ala. 662, 663, 80 So.2d 728, 729 (1955). See also, Code 1975, § 6-6-228. In the case before us, the underlying action is trespass, since, absent this action, the plaintiffs would have been liable to the defendants in trespass for building or for attempting to build a road on the defendant’s property. Trespass is both a legal action, McGill v. Varin, 213 Ala. 649, 106 So. 44 (1925), and an equitable action, Bailey v. Washington, 236 Ala. 674, 185 So. 172 (1939). The right to a jury trial in an action for declaratory judgment is not dependent on which party commences the lawsuit. Porter v. Alabama Farm Bureau Mutual Casualty Insurance Co., 279 Ala. 499, 187 So.2d 254 (1966). If there had been no suit for declaratory judgment filed, the defendants could have commenced an action against the plaintiffs for damages in trespass. See, Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979). Although the plaintiffs pre-empted this action by filing a suit for declaratory judgment, they are not thereby entitled to circumvent the defendants’ right to a jury trial. Defendants were entitled as a matter of law to a jury trial, assuming the demand for one was timely filed.

Under Rule 38 of the Alabama Rules of Civil Procedure, a demand for a jury trial must be made within “30 days after the service of the last pleading directed to such issue.” Here the demand was made in the defendants’ answer; thus, it was timely made. The trial judge erred in refusing to grant a jury trial, and the trial court decision is hereby reversed.

REVERSED and REMANDED.

FAULKNER, SHORES, EMBRY and ADAMS, JJ., concur.


author: ADAMS, Justice.

text:
    Clyde M. PATE et al. v. UNITED STATES STEEL CORPORATION.
    79-509.
    Supreme Court of Alabama.
    Jan. 30, 1981.

      M. Clay Alspaugh of Hogan, Smith & Alspaugh, Cooper, Mitch & Crawford and John C. Calhoun, Birmingham, for appellants.
    Robert G. Tate of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   ADAMS, Justice.

This is an appeal of the trial court’s granting of defendant's motion for directed verdict at the close of plaintiffs’ evidence. Plaintiffs Clyde Pate and William Carvey sued defendant United States Steel Corporation (USS) for personal injuries sustained while employed as carpenters by J. M. Foster, Inc., (Foster) a builder, on a construction project at the plant of defendant. Their wives filed derivative actions for loss of services. Foster was granted a conditional intervention as a party plaintiff to protect its interest as a workmen’s compensation carrier.

Both Pate and Carvey were employed to assist in the building of concrete pedestals upon which Q-BOP furnaces were to be installed in the steel-making facility of USS in Birmingham. Both carpenters had assisted in building cement forms from which one of the pedestals was built. At the time of their injury, they were in the process of wrecking or taking down the forms surrounding the pedestal. Pate was on top of the pedestal some thirty feet above the ground, and Carvey was on a scaffold some six feet below him. The scaffolding had no back rests or safety lines, and both men were aware of this unsafe condition; complaints had been made to Foster. In Pate’s attempt to wreck a form, it came loose, causing Pate to fall, striking Carvey and knocking both men to the ground. Each suffered serious injuries, including open depressed skull fractures.

Plaintiffs alleged in their complaint that defendant negligently failed to provide a safe place to work, i. e., adequate and safe scaffolding and personal protective devices, such as safety lines or nets. Their principal theory of recovery relies on a duty of care owed by USS arising out of an alleged prime contractor-subcontractor relationship with Foster. A prime contractor has the duty of providing the employees of its subcontractors a safe place to work.

Generally, the owner of premises, such as USS, owes no duty to the employees of an independent contractor with respect to conditions arising in the progress of work on the contract. Hughes v. Hughes, 367 So.2d 1384 (Ala.1979). The test for whether such an owner will be viewed as a prime contractor is whether the owner reserved the right of control over the contractor’s work. Hughes. Although actual exercise of control is not required, it is indicative of what control has been reserved.

More specifically, the issue presented here is whether USS retained the right to direct the manner in which Foster performed its work. Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970). The trial court found no evidence of such control and directed a verdict for USS on the authority of Hughes v. Hughes. We affirm.

Quoting Birmingham Post Company v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933), this Court recently observed:

It is not possible to lay down a hard and fast rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employee or independent contractor. Each case must depend on its own facts. Ordinarily, no one feature of the relation is determinative, but all must be considered together.

Burbic Contracting Company v. Willis, 386 So.2d 419 (Ala.1980).

The contractual relationship of USS and Foster must be determined from the written contract and the actions of the parties pursuant thereto. The contract in this case is clear and unambiguous. Its terms do not show the existence of any relationship other than that of owner and independent contractor. Thus, the trial court properly excluded parol evidence as to the effect of the contract. “This Court has often stated that when the terms of a contract are clear and unambiguous, it is incumbent upon the trial court to analyze and determine the force and effect of those terms, as a matter of law.” Hughes v. Hughes, 367 So.2d at 1386.

Furthermore, the contract clearly places the responsibility for the safety of employees at the work site on the contractor, Foster:

The safety of all persons employed by Contractor and his subcontractors on Owner’s premises, or any other person who enters upon Owner’s premises for reasons relating to this contract, shall be the sole responsibility of Contractor. . . .
Contractor shall take all reasonable measures and precautions at all times to prevent injuries to or the death of any of his employees or any other person who enters upon Owner’s premises....
It is understood that if employees of Owner shall perform any acts for the purpose of discharging the responsibility undertaken by the Contractor in this Article 16, whether requested to perform such acts by the Contractor or not, such employees of the Owner while performing such acts shall be considered the agents and servants of the Contractor subject to the exclusive control of the Contractor.

Appellants claim that the actions of USS at the work site indicate its reserved right of control over the manner of performing the work, citing Alabama Power Co. v. Henderson, 342 So.2d 323 (Ala.1976). We disagree. In Henderson, Alabama Power contracted with Custodis Construction Company for the construction of a concrete smoke stack on its premises. An improper mixture of the concrete caused one of the forms to buckle, pouring concrete on an employee below. Finding the evidence tended to show Alabama Power’s control and supervision over the construction of the stack, this Court relied on the circumstance that Alabama Power “maintained employees at the concrete mixing plant to continuously check the mixture for suitability for use on this particular job; also maintained an employee at the construction site who supervised the pouring of the concrete at all times, and periodically checked the concrete for rate of hardening.” Henderson, at 325.

In the instant case, USS had nothing to do with the construction of the scaffolding from which plaintiffs fell. Foster provided its own materials for building the scaffolding and directed the manner of its construction. Unlike Henderson, there was no control of the particular activity which led to the injuries, i. e., the construction and maintenance of the scaffolding.

Appellants further argue that USS retained control of the construction activity as a whole, citing the following facts. USS maintained a team of engineers that daily visited the work site with blueprints and specifications in hand to point out deviations from the contract and have them corrected. Several contractors, including Foster, had been hired by USS to build the furnace; and, instead of hiring a construction manager, USS did that job itself. Consequently, USS engineers held weekly meetings with the contractors to review progress, plan work and coordinate the construction.

None of these activities of USS indicates its control over the manner of constructing the furnace, as contemplated in Henderson. USS’s actions merely indicate its concern that the results contemplated by the contract were achieved. This is a legitimate concern of the owner. In an analogous case, this Court noted, “The ‘superintendence’ provided for in the contract with Drew & Davis and exercised (if so) by the defendant was alone referable to the guarding of the interest of the owner to see that the ‘independent contractor’ did the work as the contract required.” Looker v. Gulf Coast Fair, 203 Ala. 42, 44, 81 So. 832 (1919). The complexity and size of the construction work in this case and the elaborate means available to this owner to ensure compliance with the contract do not alter the general rule, viz.:

The mere retention by the owner of the right to supervise or inspect work of an independent contractor as it progresses, for the purpose of determining whether it is completed according to plans and specifications, does not operate to create the relation of master and servant between the owner and those engaged in the work. This rule is not altered by the fact that the employer may stop work which is not properly done.

41 Am.Jur.2d Independent Contractor § 10 (1968) (footnotes omitted).

Appellants argue a second theory of recovery based on USS’s alleged undertaking to inspect the premises for safety and doing it negligently, citing several cases recognizing this tort of negligent inspection. Hughes v. Hughes, 367 So.2d 1384 (Ala.1979), and United States Fidelity and Guaranty Co. v. Jones, 356 So.2d 596 (Ala.1977). In Hughes, 367 So.2d at 1387, this Court stated, “In a suit of this type the complainant must prove that the defendant had (1) undertaken to inspect the construction site, particularly the area in which the injury-causing hazard is located, (2) performed such inspection negligently, and (3) that such negligence was the proximate cause of his injuries.” (Emphasis added.) By their own concession, appellants are barred from recovering on this theory; they recognize the trial court’s finding that USS made no safety inspections of the work site. Without an undertaking to inspect, no duty arises. The trial court properly acknowledged this in its granting of directed verdict to USS.

However, appellants argue on appeal that USS was negligent in its failure to inspect for safety in the first place. No authority is cited for this unique proposition. Yet, appellants argue that several factors in the instant case support such a theory. The contract and specifications required Foster to comply with the applicable safety regulations and a safety manual provided by USS. The contract allowed USS to make inspections to ensure compliance with the contract and its specifications. USS engineers testified that, if they saw an unsafe condition, they would point it out to Foster, which was part of their duties under the contract. Such evidence merely indicates that USS had the right, not the duty, to inspect the premises to ensure that Foster complied with its duties under the contract, including work safety. Without an undertaking to inspect for safety, this does not alter the relationship of owner-independent contractor. See Ex parte Board of School Com’rs, 235 Ala. 82, 178 So. 63 (1937).

Having found that appellants failed to present evidence establishing a duty owed by USS, we conclude that the trial court was correct in granting USS’s motion for a directed verdict.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, a Corporation v. Robert D. ERWIN, Jr. et al.
    79-594.
    Supreme Court of Alabama.
    Jan. 30, 1981.

      Thomas A. Woodall of Rives, Peterson, Puttus, Conway, Elliott & Small, Birmingham, for appellant.
    Charles W. Gorham of Gorham & King, Birmingham, for appellees.
    Neal C. Newell of Hare, Wynn, Newell & Newton, Birmingham, for appellee Charles Henry Brown.
   ADAMS, Justice.

State Farm Fire and Casualty Company appeals a declaratory judgment holding it obligated to defend a civil action against Robert D. Erwin, Jr., and to pay any judgments to the extent of its coverage. Erwin had boat owner’s liability insurance coverage on his boat and motor with State Farm. He brought the declaratory judgment action when State Farm refused to defend a suit for personal injuries against Erwin arising out of an automobile accident.

At the time of the accident, Erwin was towing his boat to a repair shop for maintenance. The boat was placed on a trailer hitched to the back of Erwin’s car. Instead of going directly to work that morning, Erwin had taken a different route to drop the boat off for repairs. At an intersection on this route, the front end of Erwin’s car struck a motorcycle driven by Charles Brown. Erwin claims he did not see the motorcycle in time to apply his brakes. Brown claims that Erwin ran a red light. Brown filed suit against Erwin, seeking $750,000.00 in damages.

Erwin had automobile liability insurance coverage with Alabama Farm Bureau Insurance Company, which agreed to defend him in Brown’s suit. State Farm refused to defend Erwin under the following clause of Erwin’s boat owner’s insurance policy:

To pay all sums which the Insured shall become legally obligated to pay as damages because of bodily injury sustained by other persons and property damage, arising out of the ownership, maintenance or use of owned watercraft, and this Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but this company may make such investigation and settlement of any claim or suit as it deems expedient. [Emphasis added.]

Thus, Erwin brought this separate declaratory judgment action to determine if Brown’s injuries arose “out of the ownership, maintenance or use” of his boat. The trial court found they did. We agree and affirm.

This appears to be a case of first impression with little authority from other jurisdictions to guide us. However, certain general principles control the construction of insurance contracts, viz.:

As a general rule of Alabama law, an insurance contract will be construed most strongly against the party who framed it. Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 531, 296 3o.2d 900, 905 (1974). The contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. Life Ins. Co. of Georgia v. Miller, supra; Southern Ins. Co. v. Wilson, 214 Ala. 373, 108 So. 5 (1926). Finally, ambiguous provisions of an insurance policy will be construed most strongly against the insurer and in favor of the insured. E.g., National Life & Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45 (1910). [Emphasis added.]

Tyler v. Insurance Company of North America, Inc., 331 So.2d 641, 644 (Ala.1976).

We agree with the trial court that the phrase “ownership, maintenance or use” is ambiguous and subject to different constructions. Ownership can be manifested in numerous and varied ways and appears to be an all-inelusive term. Furthermore, the term “maintenance” was found to be inherently ambiguous in Alabama Farm Bureau Mutual Casualty Insurance Company v. Tubbs, 293 Ala. 432, 434, 304 So.2d 589 (1974), which noted that “[t]he verb ‘maintain1 has a variety of meanings and connotations.” This court allowed coverage in Tubbs under disputed policy language similar to the instant case, stating: “We think that the word ‘maintenance,’ which is the act of maintaining, should be given one or more of the meanings that will give effect to the purpose of the insurance, which is to afford protection.” 293 Ala. at 434, 304 So.2d 589.

Towing one’s boat to be repaired is a necessary and foreseeable incident to its maintenance and a prerogative of ownership. If State Farm had meant to exclude such activity from its coverage, it could have avoided the broad language used or specifically excluded out-of-water use of boatcraft in drafting its policy. Quoting Aetna Casualty & Surety Company v. Chapman, 240 Ala. 599, 200 So. 425 (1941), this court has said:

Policies of insurance being carefully prepared by the insurer, when containing provisions reasonably subject to different constructions, one favorable to the insurer and one favorable to the insured, the construction favorable to the insured shall prevail. As- sometimes stated the insured is entitled to the protection which he may reasonably expect from the terms of the policy he purchases.

Tubbs, 293 Ala. at 434, 304 So.2d 589.

Appellant contends that Brown’s injuries did not “arise out of” the ownership, maintenance or use of Erwin’s boat, citing American Liberty Insurance Company v. Soules, 288 Ala. 163, 258 So.2d 872 (1972). In Soules, the insured and his girlfriend were sitting in the front seat of a car when a handgun held by the insured accidentally went off, injuring the girlfriend. The insured sought liability coverage under a policy with language similar to the disputed policy here, claiming the girlfriend’s injuries arose out of the use of the car. Borrowing a test for “arising out of” from a workmen’s compensation case, the Soules court stated:

[T]he phrase would denote the use of the insured’s automobile as the cause of the accident, and in order to satisfy this requisite the rational mind must be able to trace the resultant injury to a proximate cause set in motion by the use of the automobile and not otherwise. [Emphasis added.]

288 Ala. at 167, 258 So.2d 872.

In Soules, the car was found to be merely the situs of the accident and nothing more; coverage was denied. The instant case is distinguishable. Erwin was towing the boat to be repaired when the accident occurred.

The phrase “arising out of” has been broadly construed by other courts. See Annot. 89 A.L.R.2d 150 § 6 (1963). In Blue Bird Body Company v. Ryder Truck Rental, Inc., 583 F.2d 717, 726 (5th Cir. 1978), the federal appeals court observed:

“[A]rising out of,” as we said in Red Ball Motor Freight v. Employers Mut. Liability Ins. Co., 5th Cir., 1951, 189 F.2d 374, 378, “are words of much broader significance than ‘caused by.’ They are ordinarily understood to mean ‘originating from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from,’ or, in short, ‘incident to, or having connection with,’ the use of the car.” [Emphasis added.]

Towing a boat for repairs is a necessary incident to its maintenance, satisfying the “arising out of” requirement of liability coverage.

Finally, appellant argues the requisite causation was absent in this case, since the boat itself did not physically contribute to the accident, pointing to the fact that only Erwin’s car collided with Brown’s car. The only evidence presented toward this issue is the following testimony of Erwin:

Q. Did the boat or motor play any part in causing this accident?
A. I don’t know how it could have, other than it was the added weight on the car.

This evidence is inconclusive, yet we find it unnecessary to consider it. Although this court has never addressed the issue of causation in accidents with a vehicle towing another vehicle, other courts have, and we adopt their sound approach. See State Automobile Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company, 456 F.2d 238 (6th Cir. 1972); American Fire and Casualty Company v. Allstate Insurance Company, 214 F.2d 523 (4th Cir. 1954); Hall v. United States Fidelity and Guaranty Company, 107 Ohio App. 13, 155 N.E.2d 462 (1957).

In State Automobile Mutual Insurance Company, a van was towing a Jeep on a highway when the van veered across the center line and collided head-on with a tractor-trailer. Liability insurance coverage similar to that of the instant case had been taken out on both vehicles. The Jeep insurer argued, as in this case, that the proof did not establish that the Jeep caused or contributed to the accident. Rejecting this argument, the federal court of appeals reasoned:

The coverage in both policies, “arising out of the ownership, maintenance, or use ... of the owned automobile” is about as general and broad as could be written. In our opinion, the accident arose out of the insured’s use of both vehicles. It is immaterial that the Ford, rather than the Jeep, collided with the tractor-trailer. The Ford and the Jeep constituted a unit which the insured of both companies operated on the wrong side of the road, and caused the accident. [Emphasis added.]

456 F.2d at 239.

In this case, Erwin’s car and the towed boat, both under Erwin’s control, were being operated as a single unit. The operation of both caused the accident.

Having examined the record and having found the issues raised on appeal without merit, we hold the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: ADAMS, Justice. EMBRY, Justice

text:
    EMPLOYERS CASUALTY COMPANY, etc. v. John G. HAGENDORFER et al.
    79-608.
    Supreme Court of Alabama.
    Jan. 30, 1981.

      Young Dempsey, Spanish Fort, for appellant.
    Thomas P. Ollinger, Jr., of Wilkins, Dru-han & Wermuth, Mobile, for appellees.
   ADAMS, Justice.

This is a suit for wrongful death against John Hagendorfer, the driver of a car involved in a wreck with a motorcycle. Pauline Luckett, a passenger on the motorcycle, was killed in that wreck. Plaintiff insurance company is the subrogee of the administrator of Luckett’s estate.

Hagendorfer was driving alone, at night, to a Veterans of Foreign Wars Club, when the accident occurred. He had had one alcoholic drink about three hours before. As he proceeded down the two lane highway, he caught sight of the club, slowed down and proceeded to make a left turn into the club’s parking lot. As he made his turn, an oncoming motorcycle, driven by Thomas Spivey, struck the right rear wheel of his car. The point of impact was several feet from the center line in the lane of the oncoming motorcycle. Luckett, riding behind Spivey on the motorcycle’s seat, was thrown and killed.

Hagendorfer testified he did not see the oncoming motorcycle and no cars obstructed his view. His testimony indicated the highway rose over a hill in front of the club. Other testimony, including that of a land surveyor, pointed out a slight incline was there, but the view was unobstructed.

A state trooper, who investigated the scene of the accident, testified he had determined the following to be the factors contributing to the wreck. Hagendorfer’s inattention and failure to yield the right of way, and Spivey’s intoxication. He further testified it was his opinion that Spivey was driving within the legal speed limit of 55 m. p. h.

A blood test taken shortly after the accident indicated that Spivey had .20% ethyl alcohol in his bloodstream. A similar test taken of Hagendorfer indicated that defendant had .04% ethyl alcohol in his bloodstream. Using a standard alcohol absorption rate, a toxicologist computed that the alcoholic content in Hagendorfer’s blood at the time of the accident would have been between .05% and .07%.

Plaintiff filed a complaint alleging negligence and wantonness on the part of Ha-gendorfer in driving his car. Hagendorfer’s answer denied these allegations, alleging that Spivey was contributorily negligent and his negligence was imputed to the passenger, Luckett. This affirmative defense did not reach the jury. Two days before trial, Hagendorfer moved to amend his answer to add another affirmative defense designated “assumption of the risk”; this motion was denied by Circuit Judge Wilson Hays. However, after opening arguments at trial, the presiding circuit judge, Honorable Harry J. Wilters, allowed the amended answer. From a jury verdict for defendant, plaintiff appeals.

Plaintiff raises several alleged errors on appeal, primarily taking objection to the giving of jury charges. We find no reversible error and affirm.

Plaintiff contends the trial court erred by not instructing the jury that Luck-ett must have assumed the risk of Hagen-dorfer’s negligence rather than Spivey’s negligence for the defense of assumption of risk to apply. In other words, that it was not enough that Luekett was aware of Spi-vey’s intoxication, but she must also have been aware of Hagendorfer’s careless driving. We have no doubt that a plaintiff must assume the risk created by the defendant for that defendant to have a valid defense of assumption of risk. This is an essential element of that defense. See W. Prosser, Handbook on the Law of Torts, § 68 (4th ed. 1971). However, despite the assumption of risk label used in Hagendor-fer’s amended answer and the trial court’s jury charge, it is clear that the elements of Hagendorfer’s affirmative defense comprise a form of contributory negligence closely akin to assumption of risk. Such contributory negligence runs to third persons, e. g., Hagendorfer, regardless of plaintiff’s knowledge of the incompetence of those third persons. See Walker v. Bowling, 261 Ala. 46, 72 So.2d 841 (1954); Crouch v. DeLuxe Cab Co., 261 Ala. 239, 73 So.2d 743 (1954). Thus, plaintiff’s objection in this regard is without merit.

This variety of contributory negligence arises out of a duty recently described in Brown v. AAA Wood Products, Inc., 380 So.2d 784, 787 (Ala.1980), viz.:

It is also true, however, that a person riding in an automobile driven by another is not absolved from all personal care for his own safety, but has the duty of exercising reasonable or ordinary care to avoid injury. Williams v. Pope, 281 Ala. 382, 203 So.2d 105 (1967); Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530 (1952); King v. Brindley, 255 Ala. 425, 51 So.2d 870 (1951). The duty of the passenger is, therefore not original, with respect to the operation of the vehicle, but is resultant and is brought into effect by known and appreciated circumstances. [Emphasis added.]

The element of “known and appreciated circumstances” that gives rise to the duty of personal care is also a criterion for the assumption of risk defense. That defense requires proof of two essential elements: (1) knowledge and appreciation of the risk, and (2) voluntary exposure to that risk. Kemp v. Jackson, 274 Ala. 29, 145 So.2d 187 (1962). This Court has often recognized the overlapping of these two affirmative defenses in certain fact situations. See Kemp v. Jackson, 274 Ala. 29,145 So.2d 187 (1962); McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508 (1919). The distinguishing factor in this case, however, is the telltale standard for negligence — failure to exercise reasonable care. The amended answer tracks the essential elements of this form of contributory negligence, viz.:

1. For Defendant’s fourth, separate and distinct defense to Counts 1 and 2 of the said Complaint, Defendant alleges that Elaine Pauline Luekett, deceased, subrogor of the Plaintiff, is guilty of assumption of the risk with respect to the proximate cause of her death and is thereby barred from recovery from the said Defendant.
The decedent had knowledge of a dangerous condition, and with appreciation of such danger, failed to exercise care for her own safety by putting herself in the way of such known danger. [Emphasis added.]

Furthermore, the trial court’s jury instruction on this defense incorporates the elements of this variety of contributory negligence, viz.:

The three elements, essential elements to assumption of risk in a case of this kind is that the party charged with assumption of risk had knowledge of the dangerous condition and with appreciation of such danger ... failed to exercise care for her own safety by putting herself in the way of such known danger. [Emphasis added.]

It is apparent from the pleadings, the evidence and the jury instructions that, despite misleading labels applied by the parties and the trial court, the defense of contributory negligence was being tried in this case. The known and appreciated circumstance that gave rise to Luckett’s duty of personal care was the intoxication of Spivey, her driver. Such incompetence on the part of the driver gave rise to an identical duty of care in McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508 (1919). As this Court noted in Brown v. AAA Wood Products, Inc., 380 So.2d 784, 787 (Ala.1980), “With respect to this duty, it can make no difference in principle whether the suit is against a third person, or against the driver who negligently operates the car in which the passenger is riding; the duty of the passenger is the same in either case.”

Plaintiff asserts other errors in the trial court’s instruction on “assumption of risk,” basically contending the trial court confused the defenses of contributory negligence and assumption of risk and interchanged their elements. We have already noted the overlapping of these two defenses, from which confusion often arises. No doubt the trial court could have instructed more clearly on this matter. In any event, these errors were not preserved for our review. Rule 51, ARCP, requires a party to state to the trial court the grounds for his objection to a jury instruction. This offers the trial judge an opportunity to correct any error he may have committed. Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976). The failure to do so is fatal to appellate review of the alleged error. Louisville & Nashville Railroad Co. v. Garrett, 378 So.2d 668 (Ala.1979). In the instant case, no objection was made to the trial court on the grounds that plaintiff now asserts as error.

Furthermore, this case does not come within the exception to the grounds requirement where the party makes a specific objection to a charge that misstates substantive law. See Louisville & Nashville Railroad Co. v. Garrett. Plaintiff’s objection to the charge was a general one, failing to cite which portions of the charge misstated the law. Cf. Gardner v. Dorsey, 331 So.2d 634 (Ala.1976) (Although no grounds were given, plaintiff’s objection to the charge specifically cited the portion of the charge objected to, thus putting the trial court on notice as to possible misstatements of the law).

Plaintiff also asserts as error the trial court’s allowance of the amended answer after opening arguments. Rule 15(a), ARCP, states, “[S]uch amendments shall be freely allowed when justice so requires.” The grant or denial of leave to amend is a matter within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979). We find that the trial court did not abuse its discretion, since plaintiff failed to prove it was prejudiced by the allowance of the amendment. Both Hagendorfer’s initial defense of Spivey’s contributory negligence imputed to Luckett and his amended defense of Luckett’s contributory negligence are based upon the same determinative facts, primarily that of Spivey’s intoxication. As this Court recently stated in Bracy v. Sippial Electric Co., 379 So.2d 582, 584 (Ala.1980):

Where an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party.

Having examined the record and having found the issues raised on appeal without merit, we hold the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

EMBRY, J., concurs specially.

EMBRY, Justice

(concurring specially):

This case affords an opportunity for me to express views held for thirty-three years duration, concerning what is labeled “assumption of risk.” This so-called doctrine or rule is nothing more or less than a mythical device contrived many years ago to deprive. industrial workers, and others, from recovery of damages suffered at the hands of others, more often than not in employment on-the-job situations.

It is axiomatic that one does not assume the risk of another’s negligence. That being true, then if another be negligent and one is injured as the proximate result of that negligence but nonetheless is barred from recovery because with knowledge of a risk or danger he proceeds to act in the face of it, what indeed bars recovery? Contributory negligence is that which bars recovery, not assumption of risk.

The immediate riposte no doubt will be the ball park hypothetical. The answer: One does not assume the risk of the flying baseballs because one knows that the balls are apt to come in contact with the cranium; it is because the ball park owes no duty to protect against the risks inherent in the nature of the activity taking place at that time, on that occasion.

      . In McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508 (1919), a factually similar case, this Court ignored labels of “assumption of risk” and applied a contributory negligence analysis, noting:
      So “as the practical equivalent of the term ‘contributory negligence’ one frequently finds in the cases the expression ‘assumption of risk.’ It is said that one who knows and appreciates a danger ‘assumes the risk’ thereof.” 20 R.C.L. 109, § 95.
      Practically there can be no serious objection to these uses of the phrase, and “it is often a question of little importance whether a given plea be called one of assumption of risk or a plea of contributory negligence. The more important inquiry is: Are the facts stated in the plea a defense to the cause or causes of action stated in the complaint or declaration?”
      203 Ala. at 269, 82 So. 508.
      Courts of other jurisdictions have recognized a dual meaning of the term “assumption of risk.” See Annot. 82 A.L.R.2d 1218 (1962). In its primary meaning, plaintiff acts reasonably in assuming the risk; this constitutes a denial of defendant’s negligence. In its secondary meaning, plaintiff acts un reasonably in assuming the risk; this coincides with the contributory negligence defense. As in McGeever, we find that the term “assumption of risk” was used in this case in its secondary meaning.


text:
    Paul J. SPAIN v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    79-639.
    Supreme Court of Alabama.
    Jan. 30, 1981.

      J. N. Powell and Kenneth Shelton, Decatur, for appellant.
    Donald A. Edwards, Birmingham, and Norman W. Harris, Decatur, for appellee.
   ADAMS, Justice.

Plaintiff appeals the trial court’s denial of his motion to set aside and vacate findings of fact and conclusions of law in this nonjury trial and his motion in the alternative for a new trial. Plaintiff had sought reinstatement of payments under a noncontributory company pension plan. These payments had been terminated by defendant on the ground that they were set off by plaintiff’s workmen’s compensation benefits. The trial court denied plaintiff relief.

Paul J. Spain was a lineman working for South Central Bell, when he injured his back on the job, permanently disabling himself. Since then, he has not worked at all except for a short period following the injury. Before the present action, Spain had filed suit to recover workmen’s compensation benefits against South Central Bell. In that case, the trial court found Spain to be entitled to 38 weeks of temporary total disability and 277 weeks of permanent partial disability that decreased his earning capacity by 65 per cent. The court further found Spain to be entitled to workmen’s compensation payments of $60.00 per week or $261.00 per month. Spain had averaged a weekly wage of $201.86 before the injury.

At the time of Spain’s injury, there was in effect a non-contributory pension and disability plan, under which South Central Bell began paying Spain benefits of $186.00 per month, which were subsequently raised to $240.00 per month. In reference to these disability payments, the trial court's judgment in the workmen’s compensation action said:

After hearing the additional testimony and argument relative to Ground 4, the Court is of the opinion that the pension and disability plan was not intended by the Company to be an advance payment of compensation due under the Workmen’s Compensation Law. Bell v. General American Transportation, 52 Ala.App. 123, 290 S.2d 184; March v. City of Huntsville, 45 Ala.App. 480, 232 S.2d 662; Beatrice Foods Co. v. Clemons, [54 Ala.App. 150] 306 S.2d 18; Southwestern Bell Telephone Co. v. Siegler, [240 Ark. 132] 398 S.W.2d 531 (1966).
It is, therefore,
CONSIDERED AND ADJUDGED that the defendant be allowed no credit for payments under the company pension and disability plan toward satisfaction of the compensation payments adjudged to be due in connection with the injury of July 16, 1973.

Upon the ruling of the trial court in the workmen’s compensation case, South Central Bell immediately paid the accrued compensation and medical expense to Spain; and then, during the next 65 weeks, it made monthly payments of the future installments at the converted monthly rate of $261.00. About a month after this judgment, South Central Bell suspended payments under its pension and disability plan for the duration of the 65-week period of unaccrued workmen’s compensation installments. The Employee’s Benefit Committee suspended the payments pursuant to Paragraph 27 of Section 8 of the pension plan, viz.:

In case any benefit or pension, which the Committee shall determine to be of the same general character as a payment provided by the Plan, shall be payable under any law now in force or hereafter enacted to any employee of the Company, to his beneficiaries or to his annuitant under such law, the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan .... [Emphasis added.]

The committee computed that the workmen’s compensation payments for the 65-week period exceeded what would have been due as disability pension under the plan by about $300.00. South Central Bell claims the committee had conclusive authority to determine payments from the pension plan under Section 3 of the plan, which reads in part: “It [the committee] shall determine conclusively for all parties all questions arising in the administration of the Plan.” We agree and affirm the trial court’s judgment.

Spain contends that the trial court judgment in the prior workmen’s compensation action is res judicata to the present action. Addressing this doctrine recently, this Court said:

It is a well settled principle of our law that matters once adjudicated are settled and determined. This principle is embodied in the doctrine of res judicata. The essential elements of res judicata are: (1) a prior judgment rendered by a court of competent jurisdiction; (2) substantial identity of the parties in the two suits; (3) identity of issues in the two suits, and (4) prior judgment rendered on the merits.

Ozley v. Guthrie, 372 So.2d 860, 861 (Ala.1979).

Noticeably missing from the instant case is the requirement of an identity of issues in the two suits. The issue in the prior workmen’s compensation suit was whether payments made by South Central Bell under its pension and disability plan should be credited against amounts due by defendant under the Workmen’s Compensation Act. The issue in the present suit is the converse of this, i. e., whether payments made by South Central Bell under the Workmen’s Compensation Act can be set off against what it owes under a private pension and disability plan. Additionally, the plan specifically provides for such a set off, and the appropriate committee declared the set off as provided by the plan. Finding no identity of the issues in the two suits, we find the doctrine of res judicata inapplicable.

By the same token, the cases cited by Spain in support of his demand for relief are inapposite. These cases address the issue of crediting an employer’s liability under the Workmen’s Compensation Act with payments made by the employer under a private pension and disability plan, once again the converse of the issue at hand. See, e. g., Beatrice Foods Company v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (Civ.App.1975).

Nevertheless, the authorities are uniform in upholding the validity of a provision of a pension plan making the determination of a committee or trustees conclusive, subject to the qualification that the determination was not fraudulent, made in bad faith, or arbitrary and capricious. See, e. g., Marsh v. Greyhound Lines, Inc., 488 F.2d 278 (5th Cir. 1974); 60 Am.Jur.2d Pensions & Retirement Funds § 77 (1972). In the instant case, Spain produced no evidence of such conduct on the part of the Employee’s Benefit Committee.

Several cases have addressed this exact fact situation, upholding a committee’s decision to suspend disability payments pursuant to a pension plan’s offset clause. See Paterson v. Southwestern Bell Telephone Co., 411 F.Supp. 79 (E.D.Okla.1976); Parsons v. Granite City Steel Co., 41 Ill.App.2d 396, 190 N.E.2d 644 (1963); Renshaw v. United States Pipe and Foundry Co., 30 N.J. 458, 153 A.2d 673 (1959). Explaining the purpose of an offset provision in a pension plan identical to the instant one, the Paterson court said, “What it does do is prevent a claimant from recovering from the defendant twice for the same injury— under the law [Workmen’s Compensation Act] and under the Plan.” 411 F.Supp. at 86.

Having examined the record and having found the issues raised on appeal without merit, we hold the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte Dr. Charles E. MAY and/or Wesley M. Foster, Jr., and/or Mutual Assurance Society of Alabama. (In re John A. MOORE, Jr., etc. et al. v. Dr. Charles E. MAY et al.)
    80-26.
    Supreme Court of Alabama.
    Jan. 30, 1981.
    James J. Duffy, Jr., and Carroll H. Sullivan of Inge, Twitty, Duffy & Prince, Mobile, and Edward P. Turner, Jr., Chatom, for petitioners.
    Roscoe B. Hogan and James R. Pratt, III, of Hogan, Smith & Alspaugh, Birmingham, and Joseph C. McCorquodale, III, of McCor-quodale & McCorquodale, Jackson, for respondents.
   PER CURIAM.

Petition for writ of mandamus denied; order of this Court staying circuit court orders dated 9/8/80, 9/19/80, 10/3/80 and 10/8/80 dissolved; and order of this Court staying trial in Case No. CV. 78-265 in Clark County Circuit Court dissolved.

In denying the petition, we offer the following observations as guidance to the trial court: .

There is no doubt that a party may discover any relevant matter which is not privileged. ARCP 26(b)(1). While a party’s general right of discovery extends to materials his adverse party has prepared in anticipation of trial, that party may obtain such material only upon showing that he has substantial need of the materials and that he is unable without undue hardship to obtain their substantial equivalent. ARCP 26(b)(3). Upon the proper showing, the trial court may order revelation of the information sought, but the court must take care not to allow disclosure of the “work product” of the adverse party’s attorney or other representative. Of course, the adverse party’s “representative” may include his insurance adjuster. See Ex parte State Farm Mutual Automobile Insurance Co., 386 So.2d 1133 (Ala.1980).

It is apparent that whether material is “work product” or “privileged” may not be left to the discretion of the party against whom discovery is sought. For this reason, the judge must ultimately decide whether the information or material sought is discoverable. If tangible material is sought, in camera examination of the material may be required. By this procedure, the party seeking discovery may obtain information he legitimately needs, while at the same time his adverse party’s confidences and work product are preserved.

We hold that the conditional order of discovery here under review is an appropriate exercise of the trial court’s discretion in the missing records context of this case. We believe the above-stated guidelines will assist the trial court in its further handling and control of its production and discovery orders and of the parties’ compliance therewith.

The petition is dismissed as to that aspect relating to the trial court’s denial of Petitioner’s third-party complaint because of lack of jurisdiction. The interested party, Jackson Hospital, was not made a party respondent to the petition for mandamus pursuant to Rule 21, ARCP.

WRIT DISMISSED AS TO THE ASPECT DISMISSING THE THIRD-PARTY COMPLAINT; WRIT DENIED AS TO ALL OTHER ASPECTS.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    Joe A. SAXON v. Tucker JOHNSON and Audrey Johnson.
    Civ. 2213.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    As Corrected on Denial of Rehearing Sept. 24, 1980.

      Richard L. Taylor and J. Sherrill Hancock, Birmingham, for appellant.
    Richard W. Bell, Pelham, for appellees.
   HOLMES, Judge.

The plaintiffs sued the defendant, claiming damages for waste allegedly committed upon plaintiffs property. Defendant appeals from the denial of his motion for directed verdict. We reverse and remand.

The dispositive issue is whether a restrictive provision in the deed from plaintiffs to the grantors of defendant operated as a condition subsequent or as a personal covenant.

The record reveals the following: On June 25, 1974, the plaintiffs, Tucker and Audrey Johnson, entered into an agreement with Morris and Kathryn Honeycutt, calling for the sale of certain property to the Ho-neycutts. Under the agreement, the Ho-neycutts were to immediately begin making monthly payments on the mortgage encumbering the property and were also to pay the Johnsons $10,000 prior to January 1, 1975.

The agreement further provided that, should the Honeycutts either fail to pay any monthly mortgage notes or fail to pay the $10,000 prior to the execution of the deed conveying the property, the Johnsons would have the right to re-enter the property.

On January 3,1975, the above referenced deed was executed. It provided in pertinent part:

That in consideration of One ($1.00) Dollar and other good and valuable considerations, and the assumption of the mortgage to Shelby County Savings & Loan Association of Columbiana, ... we, Tucker Johnson and wife, Audrey Johnson (herein referred to as grantors, do grant, bargain, sell and convey unto Morris Honeycutt and Kathryn Honeycutt (herein referred to as Grantees) for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion, the following described real estate situated in Shelby County, Alabama, to-wit:
The Grantees shall not sell, mortgage or encumber the within property until the mortgage herein assumed is paid and satisfied in full, and any conveyance without written approval of Grantors shall automatically mature the entire debt and must be paid forthwith, or the said Grantors shall have the right to demand immediate full payment, and if not paid, shall have the right to purchase said mortgage and foreclose on said property.
TO HAVE AND TO HOLD, to the said grantees for and during their joint lives and upon the death of either of them then to the survivor of them in fee simple, and to the heirs and assigns of such survivor forever, together with every contingent remainder and right of reversion.

Apparently, the provision concerning the mortgage was inserted because the mortgage covered not only the property conveyed but also other property owned by the Johnsons.

On August 21, 1975, the Honeycutts executed a quitclaim deed to defendant, Saxon, conveying the property in question. Saxon knew of the restriction in the Johnson to Honeycutt deed and the parties attempted to reach a settlement. However, difficulties arose, and in April of 1977, a dwelling house on the property was returned by Saxon to the Johnsons. Later that year, a service station on the property was also turned over to the Johnsons.

The Johnsons subsequently filed suit against Saxon, seeking to recover for waste to the dwelling house allegedly committed between August 21, 1975, the date of the Honeycutt to Saxon quitclaim deed, and April 1, 1977, the date Saxon relinquished the right to possession of the house. The Johnsons also brought an equitable action seeking to hold void the deed from the Honeycutts to Saxon. The equitable action, consolidated at trial, was subsequently dismissed, apparently being settled before the case went to the jury. The record does not disclose the terms of this settlement.

The learned and distinguished trial judge entered a pre-trial order in which it was agreed that the court was to decide certain issues. Among these was the following:

(a) whether the deed conveying the interest from Morris Honeycutt and Kathryn Honeycutt to Joseph Saxon is binding and valid or that it is null and void due to the restrictions contained in the language of the deed from the Plaintiffs to Kathryn and Morris Honeycutt;

At the conclusion of the evidence, Saxon moved for a directed verdict on the grounds that the evidence did not establish liability. This motion was overruled, as was a subsequent motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial.

Defendant appeals, contending, inter alia, the trial judge committed reversible error in not granting the motion for directed verdict.

At the outset, we note that the motion for directed verdict is not a paragon of clarity. Rule 50(a), ARCP, states that in support of such a motion, specific grounds must be stated. As indicated, the relevant portion of the instant motion merely states the evidence did not establish liability. Such pleading is not favored, and in some instances, would not be sufficient to invoke appellate review. See, Ott v. Fox, Ala., 362 So.2d 836 (1978).

However, here the pre-trial order clearly made the effect of the restrictive provision in the Johnson-Honeycutt deed a material issue to be decided by the trial judge. Under such circumstances, it has been said, “[Technical precision is not necessary in stating grounds for the motion so long as the trial court is aware of the movant’s position.” Pruitt v. Pruitt, Ala., 343 So.2d 495, 500 (1976); United States v. Fenix and Scisson, Inc., 360 F.2d 260, 266 (10th Cir. 1966). Therefore, we proceed to review Saxon’s contention, stressing that we do so only because the record discloses the trial judge was adequately apprised of the issue involved.

On Appeal, Saxon contends that the Johnson-Honeycutt deed conveyed a fee simple absolute, and, that in taking a quitclaim deed from the Honeycutts, he likewise acquired a fee simple in the property. He argues the restrictive provision in the Johnson-Honeycutt deed merely imposed a personal obligation upon the Honeycutts. That is to say, Saxon contends the provision did not operate as a condition subsequent, so that a breach thereof would result in a divestiture and reversion in the Johnsons. We agree.

We first note that it is now established that the true inquiry in construing a deed is to ascertain the intention of the parties, especially the grantor. If the intention can be ascertained from the entire instrument, resort to arbitrary rules of construction is not required. Schaefers v. Apel, 295 Ala. 277, 328 So.2d 274 (1976); Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975).

Thus, courts no longer automatically apply the rule of construction found in such cases as Henry v. White, 257 Ala. 549, 60 So.2d 149 (1952), which requires that the first clause in the deed, granting an absolute fee simple and containing words of inheritance, prevail over reservations or restrictions in a subsequent clause. That is to say, such subsequent clauses are not necessarily void. Therefore, if the grantor does intend to solicit some promise in consideration for the conveyance, and the provision manifests that intention, the provision is to be given effect. Schaefers v. Apel, supra.

However, the question remains as to whether the provision is to be treated as a condition subsequent or as a personal covenant which does not run with the land. If the provision is a condition subsequent, the grantor can have a subsequent conveyance in violation thereof set aside, as it creates a right of entry which may be exercised for the condition broken. Schaefers, supra.

However, the policy in Alabama is to disfavor conditions subsequent. Thus, where the intention of the grantor is not clear, the courts prefer to construe the provision in question as a personal covenant, not as a condition. Hanners v. Hanners, 262 Ala. 143, 77 So.2d 484 (1955).

Furthermore, the intention to create a fee simple subject to condition subsequent must be clearly and unequivocally expressed. Lowery v. May, 213 Ala. 66, 104 So. 5 (1925). Therefore, although the absence of a divestiture and re-entry clause on breach of condition is not decisive, its absence is worthy of consideration. Libby v. Winston, 207 Ala. 681, 93 So. 631 (1922).

We would also note that where consideration moves to the grantor in the form of payment of money, the above referenced conservative rules of construction apply. Schaefers v. Apel, supra; Hanners v. Hanners, supra. Put another way, only when the restrictive provision itself expresses the consideration for the conveyance, i. e., the consideration is the grantee’s promise to support and maintain the grantor, are the courts more likely to find a condition subsequent. See, First National Bank v. McIntosh, 201 Ala. 649, 79 So. 121 (1918).

Here, the Johnsons received $10,000 in consideration for the conveyance. Also, the Honeycutts assumed the outstanding mortgage. There is no divestiture and reentry clause, much less a clearly expressed intent to create a condition subsequent. Additionally, the granting clause clearly conveyed to the Honeycutts all contingent remainders and rights of reversion. To this court, based upon the above, it is clear the provision was not a condition subsequent.

As indicated, this does not mean the restriction is necessarily void. Rather, it is a covenant by the Honeycutts wherein they agree not to sell without prior written consent. It further spells out remedies available to the Johnsons against the Honeycutts. Such a covenant is not enforceable against Saxon or subsequent grantees as it does not “touch and concern” the land in question. Cribbett, Principles of Real Property at 353 (1975). See, Schaefers v. Apel, supra.

The above considered, the Johnsons had no vested interest in either remainder or reversion during the years 1975 through 1977. It is axiomatic that the existence of such an interest is vital to the maintenance of an action for waste. See, Simms v. Greer, 83 Ala. 263, 3 So. 423 (1888); 93 C.J.S. Waste § 12. It only follows the motion for directed verdict was due to be granted.

In light of our resolution of this point, further issues raised by the parties need not be considered.

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.

ON REHEARING

HOLMES, Judge.

Appellee, in brief in support of his application for rehearing, pointed out to this court that certain portions of the original record had been omitted. This omission has been appropriately corrected.

This court has carefully reviewed the corrected record. Furthermore, we have, with the corrected record in mind, perused our original opinion. We do not find the omitted portion of the record altered in any pertinent aspect what we held in the original opinion. However, the sentence in our original opinion which reads as follows: “The record does not disclose the terms of this settlement.”, is deleted.

Appellee’s application for rehearing is due to be and is denied.

OPINION CORRECTED; APPLICATION FOR REHEARING OVERRULED.

WRIGHT P. J., and BRADLEY, J., concur.


text:
    Ex parte Tucker JOHNSON and Audrey Johnson. (In re Joe A. SAXON v. Tucker JOHNSON and Audrey Johnson).
    80-24.
    Supreme Court of Alabama.
    Jan. 30, 1981.
    Richard W. Bell, Pelham, for petitioners.
    Richard L. Taylor, Birmingham, for respondent.
   PER CURIAM.

The petition for certiorari is insufficient to invoke the jurisdiction of this Court. Rule 39, ARAP.

WRIT DENIED.

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


text:
    The TRAVELERS INDEMNITY COMPANY, a corporation v. CAPITOL CITY HAULERS, INC., a corporation.
    Civ. 2376.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1980.

      W. Stancil Starnes of Starnes & Atchison, Birmingham, and Charles B. Paterson of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Thomas T. Gallion, III, of Gallion & Gal-lion, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This civil action by Capitol City Haulers (C.C.H. or plaintiff) was upon a public works bond issued by Travelers Indemnity Company (Travelers or defendant) pursuant to § 39-1-1 of the Code of Alabama (1975).

The plaintiff, a trucking firm, sought to recover $9,217.73 as the balance due on charges for delivering sand to Southeast Contractors (Southeast) in the first quarter of 1979 at the rate of $3.50 per ton for its hauling. Southeast ordered the sand in question for use in manufacturing asphalt, and it was delivered by C.C.H. to one of the two Southeast asphalt plants and placed into a stock pile where it was intermingled with other sand. Southeast mixed the sand with proper raw materials and produced asphalt, sometimes called plant mix. Sand comprised from 25% to not more than 30% of the mixture here involved.

The Southeast asphalt plants were not bonded operations. Asphalt produced at those plants was used by Southeast on its bonded construction jobs, employed in its unbonded contracts, sold to the State of Alabama under purchase orders and sold at private sales. On the various bonded jobs of Southeast, a payment bond was posted to secure payment for those who furnished materials, supplies or services for the prosecution of the bonded work; otherwise, no payment bonds were posted by Southeast for other types of its asphalt business.

Southeast was the road contractor with the State of Alabama for a project on Highway 78, which was a bonded job. It carried a payment bond and a performance bond, both of which were issued by Travelers as surety. Southeast executed a “General Agreement of Indemnity” to Travelers on July 14,1978, which included certain assignments to Travelers in the event of a default of Southeast on the contract.

In its highway maintenance program, the Highway Department of the State of Alabama bought asphalt from Southeast by purchase order, and state employees utilized the plant mix in making repairs to Highway 31. There was no bond required nor posted in connection with asphalt obtained under these purchase orders.

On February 1, 1979, Southeast notified the State that they could not complete the work on projects then under contract, including the Highway 78 job. Travelers was called upon by the State, as Southeast’s surety, to complete the Highway 78 contract under its performance bond. By means of a security agreement dated February 1,1979, which in many respects duplicated the provisions of the “General Agreement of Indemnity” previously executed, Southeast granted a security interest to Travelers as to all of Southeast’s accounts, contract rights, accounts receivable and a few other assets; and, in consideration therefor, Travelers furnished funds totaling over $200,000 to Southeast until February 23, 1979, for Southeast’s payroll, machinery rentals and repairs, utilities and some additional expenses in order to prevent Southeast’s bankruptcy and to allow adequate time for Travelers to make detailed analysis of Southeast’s status and finances. This was done so as to enable Travelers to determine whether to finance the existing bonded contract operations by Southeast or whether to relet the existing work on a public bid basis. Travelers decided to contract with another construction company to complete the work upon Highway 78. Because of Southeast’s inability to perform its contracts, Travelers lost approximately $11,000,000.

At no time did Travelers operate the asphalt plant nor any of Southeast’s operations, but Travelers did supply funds to enable Southeast to temporarily continue its operations. The State of Alabama paid to Southeast about $104,000 for asphalt bought under purchase orders, and, pursuant to the security agreement, the check was endorsed by Southeast to Travelers.

One issue is whether the sand delivered by C.C.H. was utilized in a bonded job, specifically if it was used upon the Highway 78 project.

The president of C.C.H. testified that he did not know what happened to the sand after it was placed in the Southeast stock pile, that he did not know the identity of the job on which the sand was used, and that he was not familiar with the fact that Southeast was bonded on the Highway 78 contract.

The president of Southeast testified that, while it was virtually impossible to designate which sand went into each job, in his judgment the majority of the sand in question was utilized upon Highway 31 and Highway 78 after it was manufactured into plant mix. He had no opinion as to how much sand was used on either highway. However, he stated that the Highway Department’s records would reveal the amount of asphalt laid on Highway 78 during the relevant period of time, and that the amount of sand which went into Highway 78 could be determined by taking 30% of the amount of asphalt.

State records disclosed that the only asphalt placed upon Highway 78 during the first quarter of 1979 was between January 15 and February 15 for a total of 417 tons. Thus, under the only evidence in the case as to sand utilized on the Highway 78 bonded project, Travelers was indebted to C.C.H. under the bond for $437.85 (417 X 30% X $3.50).

The jury found in favor of C.C.H. and against Travelers and Southeast for $9,217.73, which was the exact amount of the total account of C.C.H. for hauling the sand. Southeast did not contest the case, and the default judgment against them is now final in the amount of the jury’s verdict.

The learned trial judge overruled Travelers’ various motions for a directed verdict, its motion for a judgment notwithstanding the verdict and the motion for a new trial.

Travelers now appeals, complaining that the verdict was excessive and also that the verdict of the jury was in direct contradiction to the trial court’s oral instructions to the jury.

While many of the jury instructions were of like tenor, an example of Travelers’ argument is presented by the following portion of the oral charge of the court:

The court charges the Jury the Plaintiff is not entitled to recover for the hauling or transportation of any sand or other materials which were not used for or in the prosecution of the work for which a payment bond had been issued by the defendant, Travelers Company as surety.

The charge to the jury made it plain and mandatory, under the evidence, that C.C.H. could not be awarded any sum for sand which was based on any job other than the Highway 78 project.

C.C.H. contends that, even though the entire pleadings (including an amendment to its complaint which was filed on the day of the trial) were based upon an effort to recover under Travelers’ public works bond on the Highway 78 project, the case falls under the provisions of ARCP rule 15(b) since the parties, by implied consent, tried the case under another issue. C.C.H. states in its brief that its “theory at trial sounded in equity, the theory being that Plaintiff Capitol City did indeed deliver sand to Southeast Contractors,” and that Travelers refused to pay the plaintiff. It seeks to invoke the clean hands doctrine but opines that the jury was probably influenced by the fact that Travelers received the $104,-000. “The situation set before the jury in this case somehow did not seem right to them and they came back resoundingly in favor of what was ‘right.’ ”

The circuit court, in overruling Travelers’ combined motion for a judgment N.O.V. and for a new trial, in substance, stated in the judgment entry that, by consent of the parties, the case was tried and argued to the jury upon a theory of law other than that expressed in the pleadings and that the jury verdict appeared to be based in part upon such theory. The “theory” is not set forth nor labeled anywhere in the record.

After reviewing all of the evidence and intently studying the briefs and oral argument of counsel, we confess that any legal or equitable cause of action outside of the pleadings upon which to peg the verdict has escaped us. Usually, the decision as to whether the issue has been tried by express or implied consent under Rule 15(b) is a matter for the trial court’s discretion, which will not be altered on appeal absent an abuse thereof. However, a decision as to whether there was an abuse of discretion is not necessary in this case.

The jury charge was solely concerned with issues raised only by the pleadings. There was no jury charge upon any theory of recovery not covered by the amended complaint; it was not even mentioned. If we assume, without deciding, that, in addition to the amended complaint, a valid theory of liability was tried by consent, the trial court erred in overruling the motion for a new trial. In Atlantic Coast Line Railroad Co. v. Darden, 216 F.2d 125 (5th Cir. 1954), the following applicable language appears:

[Wjhile Rule 15(b) does make provision for enlarging the issues when an issue not raised by the pleadings is tried by express or implied consent, this does not mean that the jury may be left, as it were, without direction or control to determine for themselves whether and what issues were so presented.... [I]n such a situation the pleadings should be amended, ... or the district judge, by an appropriate instruction, should frame the issue or issues for the jury.

Argument of counsel to a jury does not replace the court’s charge to the jury. If a new theory of recovery or defense outside of the pleading is presented, the interested attorney has a duty to the court to call it to the court’s attention with sufficient particularity and clarity to enable the court to amply define the issue to the jury. The jury cannot be left without a rudder as to what they are called upon to decide and as to the law applicable thereto. Since nothing is contained in the jury charge upon the new theory of recovery, if they did return the verdict upon such theory, it was not authorized under the law. What we have said in this regard presupposes that there was a valid new theory and that it was within the province of a jury to decide after being properly instructed upon the law; but, if it was not a jury question, it was an issue for the court’s determination. ARCP, Rules 38 and 39.

We hold, therefore, that the court should have granted Travelers’ motion for a new trial on the ground that the awarded damages were excessive. Additionally, it appears that the verdict was clearly contrary to the charge of the court.

There was no objection by either party to the charge on damages. This instruction to the jury, to which both parties assented by their silence, became the law of the case by which the jury was bound. Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 (1949).

Liberty Truck Sales v. Fountain, Inc., 381 So.2d 646 (Ala.Civ.App.1980)

As previously stated, the evidence shows that C.C.H. was entitled, at most, to recover from Travelers under the bond the sum of $437.85, plus a stipulated attorney’s fee of one-third thereof and interest at the rate of six percent per annum from the earliest possible date that the work could have been done, January 15, 1979. A judgment will accordingly be entered that, unless the plaintiff files a remittitur with the clerk of this court within thirty days reducing the judgment to $583.80 ($437.85 plus such attorney’s fee) and interest upon the amount of $437.85 as above stated, the judgment of the trial court shall stand reversed and the case shall be remanded. If, however, such remittitur is filed, a judgment for $583.80, with said interest thereon, will stand affirmed. Liberty Truck Sales, Inc. v. Fountain, supra.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama (1975). His opinion is hereby adopted as that of the court.

AFFIRMED CONDITIONALLY.

All the Judges concur.

       No remittitur having been filed, the Court of Civil Appeals, on January 8, 1981, issued an order reversing and remanding this case.


author: BRADLEY, Judge.

text:
    Ocie COOK, Jr. v. Charles G. BROWN, Jr.
    Civ. 2351-X.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1981.

      Carl E. Johnson, Jr. of Bishop, Sweeney, Colvin & Johnson, Birmingham, for appellant.
    John F. DeBuys, Jr. of Odom, May & DeBuys, Birmingham, for appellee.
   BRADLEY, Judge.

On December 25, 1978 While attending a party at Charles G. Brown’s house, Doug Cook, who co-owned some property in Jefferson County with his brother Ocie Cook, Jr., asked Brown’s wife, Margie, a real estate sales agent, if she would be interested in selling some property that he and his brother owned. She indicated an interest in handling the sale of this property.

Later Doug Cook, Brown, and Brown’s wife walked over Cook’s property. During this inspection Brown asked Cook if the creek flowing through the property overflowed and caused flooding problems. Doug Cook replied either that he had no knowledge of the stream overflowing or that the property was not subject to any such problem. Brown indicated an interest in buying the property.

In late February or early March 1979 Ocie Cook, Doug Cook’s brother, Brown and Mr. James Adams, an architect employed by Brown to evaluate the property for him, walked over the property and, during their walk, Brown or Adams asked Ocie Cook if the creek running through the property created flooding problems. Ocie Cook replied either that there were no flooding problems or that he had no knowledge of any such problems.

Sometime during March 1979 Brown and Ocie Cook entered into a contract prepared by Brown’s wife in which Brown agreed to buy the property from Cook for $123,000. Brown gave Cook a check for $10,000 as earnest money. The contract specifically provided (1) that it was subject to the property being rezoned to light industrial within ninety days from its acceptance, and (2) that if Brown failed to fulfill his remaining obligations under the contract Cook might, at his option, retain Brown’s earnest money as liquidated damages provided that Cook also cancelled the contract.

In April 1979 Brown advised Cook that he wished to rescind the contract and recover his earnest money because Cook had misrepresented to Brown that the property had no flooding problems when in fact it did have such problems. Cook refused Brown’s request.

In July 1979 Brown filed suit against Cook alleging in Count One that prior to entering into the contract Cook represented to him that the property he proposed to buy from Cook had no flood or water problems and that after the execution of the contract he learned that the property was subject to flooding and a large portion of it was located in a floodplain. In Count Two plaintiff averred that the contract should be rescinded and his earnest money refunded because the property had not been rezoned to light industrial within ninety days of the acceptance of the contract.

The case was tried before the court sitting without a jury. A pertinent part of the judgment rendered by the court is as follows:

The court is not reasonably satisfied from the evidence that plaintiff should recover under Count One of his complaint, being for mistaken misrepresentation. The court, with respect to Count Two claim, is a mixed question of law and fact, that the provisions of the contract between the parties are ambiguous, uncertain, and incomplete, and that the provision in said alleged contract for the forfeiture of all earnest money as liquidated damages is unconscionable and should not be enforced ....

Defendant, Cook, appeals from that part of the judgment holding that the liquidated damages provision of the contract is unconscionable and awarding plaintiff one-half of the $10,000 earnest money. Plaintiff, Brown, cross-appeals from that part of the judgment holding that the court was not satisfied from the evidence that plaintiff had proved that defendant made misrepresentations amounting to fraud and that part of the judgment awarding him only $5,000 of the $10,000 earnest money paid by him to Cook at the execution of the contract.

At the outset we note that the trial court specifically found that the terms of the contract were “ambiguous, uncertain, and incomplete.” Generally speaking, our courts have not favored the destruction of contracts on the grounds that they are ambiguous, uncertain, or incomplete, see Alabama National Life Insurance Co. v. National Union Life Insurance Co., 275 Ala. 28, 151 So.2d 762 (1963); Smith v. Chickamauga Cedar Co., 263 Ala. 245, 82 So.2d 200 (1955), and “will, if feasible, so construe [a] contract as to carry into effect the reasonable intention of the [contracting] parties if that can be ascertained.” McIntyre Lumber & Export Co. v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767 (1910). Nevertheless, a trial court should not attempt to enforce a contract whose terms are so indefinite, uncertain, and incomplete that the reasonable intentions of the contracting parties cannot be fairly and reasonably distilled from them. Alabama National Life Insurance Co. v. National Union Life Insurance Co., supra; see also Smith v. Chickamauga Cedar Co., supra. It follows that if the circuit court in the case at bar believed that the terms of the land sales contract were so ambiguous, uncertain and incomplete that the reasonable intentions of plaintiff and defendant could not be fairly and reasonably gleaned therefrom, it should have declined to enforce any or all of the provisions of the contract and should have ordered defendant to return Brown’s $10,-000 earnest money payment to him. This the court did not do. Instead, it in effect found that the contract’s liquidated damages provision was tantamount to a penalty and awarded defendant one-half of plaintiff’s earnest money as damages for the latter’s breach of the contract. Obviously, if the contract was unenforceable, Cook could not have recovered any damages from Brown for its breach, be they liquidated or not.

On the other hand, if the court concluded that the contract was enforceable, it could still find that that portion of the contract respecting liquidated damages was void as a penalty and proceed to determine the amount of damages, if any, to which defendant might be entitled by plaintiff’s breach of the contract or that the liquidated damages provision was valid and award defendant all of plaintiff’s earnest money for breach of the contract. See Federal Land Bank of New Orleans v. Bridgeforth, 233 Ala. 679, 173 So. 66 (1937); Keeble v. Feeble, 85 Ala. 552, 5 So. 149 (1888); Lobman v. Sawyer, 37 Ala.App. 582, 74 So.2d 502 (1954); McCormick, Handbook on the Law of Damages § 152 (1935).

In no event, however, could the court have properly determined, as it apparently did in the instant case, that the contract was unenforceable and then say that defendant was entitled to damages for its breach. Such a judgment is obviously inconsistent and, therefore, defective. See also Jim Walter Homes, Inc. v. Holman, Ala.Civ.App., 373 So.2d 869 (1979). Consequently, we reverse this aspect of the judgment and remand to the trial court for proceedings not inconsistent with this opinion.

We now take up Brown’s cross-appeal from that part of the judgment wherein the trial court held that it was not satisfied from the evidence that plaintiff should recover his earnest money for the misrepresentations of the defendant.

Section 6-5-101, Code of Alabama 1975 is, in pertinent part, as follows:

Misrepresentations of a material fact ... if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.

Thus:

[U]nder the statute, even though a misrepresentation be made by mistake and innocent of any intent to deceive, if it is a material fact and is acted upon with belief in its truth by the one to whom it is made, it may constitute legal fraud.

Mid-State Homes, Inc. v. Startley, Ala.Civ. App., 366 So.2d 734 (1979). A material fact is one likely “to induce action on the part of the complaining party.” Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975). Although a plaintiff alleged to have been injured by a defendant’s misrepresentation must have in fact acted upon it to his injury believing it to be true to maintain his action for fraud against the defendant, if he had prior knowledge of its falsity or if the circumstances surrounding the pronouncement of same would have aroused suspicion as to its validity in the mind of a reasonable person, he cannot be said to have reasonably relied upon the misrepresentation and, therefore, cannot obtain damages or other relief from defendant. See Shahan v. Brown, 167 Ala. 534, 52 So. 737 (1910); Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476 (1974). Furthermore, “where the evidence has been taken ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” Raidt v. Crane, Ala., 342 So.2d 358 (1977). Applying these well established legal principles to the case before us, we believe that the trial court’s ore tenus conclusion that defendant had not practiced an actionable fraud upon plaintiff is not contrary to the great weight of the evidence and is supported by some credible evidence.

The evidence shows that the parties to this agreement walked over the subject property prior to the execution of the contract and the Cooks were asked if the property was subject to water problems, and one version of the evidence is that they replied that they had no knowledge of any flooding problems. Furthermore there is evidence in the record that after two heavy rains the creek did not go beyond its banks to flood the surrounding property. However, there is also evidence in the record that part of the property lies in a floodplain and is subject to flooding.

Whether the property is indeed subject to flooding presents a question of fact for the trier of fact to resolve. The trial court resolved the issue in favor of Cook, and we find no error in that decision. This aspect of the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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