author: MADDOX, Justice.

text:
    CITY OF PRICHARD, Alabama, a Municipal Corporation v. Thomas Lonnie KELLEY, Jr.
    78-420
    Supreme Court of Alabama.
    May 30, 1980.
    Rehearing Denied July 25, 1980.
    Ralph Kennamer, Mobile, for appellants.
    Benjamin H. Kilborn and Grey Redditt, Jr. of Kilborn & Redditt, Mobile, for appel-lee.'
   MADDOX, Justice.

What duty does a city owe to persons using its streets to maintain a traffic control sign at an intersection once a sign has been placed there by the city? That is the central issue on this appeal.

The facts necessary to decide the issue are not substantially controverted. On July 7, 1976, the plaintiff/appellee Thomas Lonnie Kelley, Jr., received serious injuries when a motorcycle he was riding collided with an automobile driven by one Ellarene Robinson at the intersection of Broadway Street and Main Boulevard in Prichard, Alabama. Plaintiff sued Mrs. Robinson and also sued the City of Prichard, claiming that the City was negligent in failing to maintain a stop sign or traffic signal at the intersection in question. The evidence clearly revealed that at one point in time there had been a stop sign at the intersection on Broadway Street. Unquestionably, there was no stop sign in place on the day of the accident.

The City of Prichard contends that it did not have any duty to the plaintiff to erect a stop sign at the intersection of Broadway Street and Main Boulevard, and argues that even if it had at some time erected a stop sign at the intersection, it was under no legal duty to maintain the sign indefinitely. The City contends that its responsibilities in erecting and maintaining traffic signs are entirely discretionary. In short, the City asks this question: Did the failure of the City to maintain the stop sign on Broadway at Main constitute a “failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council . or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council”? Code 1975, § 11-47-190.

In responding to the question posed by the City, we recognize that Code 1975, § 11-47-190, imposes upon corporate municipalities certain affirmative duties with regard to the maintenance of streets, alleys and public ways. The express language of that statute speaks in terms of a basic responsibility to act with reasonable diligence and due care in alleviating potential defects in public ways; however, the pragmatic application of that language has led to the expression of a much more generalized legal duty.

Prior to the enactment of § 11-47-190, the subject of responsibility for street maintenance was a matter governed almost exclusively by judicial decision. The courts of this state were led in their decisions on the subject by the compelling language of the United States Supreme Court in Chicago City v. Robbins, 2 Black 418, 17 L.Ed. 298 (1862). In Robbins, the court stated:

“It is well settled that a municipal corporation having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained. The corporation has, however, a remedy over against the party that is in fault, and has so used the streets as to produce the injury, unless it was also a wrong doer.”

On the basis of this holding, this Court came to hold that municipalities, by virtue of their exclusive authority to maintain streets, are laden with the responsibility of keeping their streets in repair and in a condition reasonably safe for their intended use. Albrittin v. Mayor & Aldermen of Huntsville, 60 Ala. 486 (1877); City Council of Montgomery v. Wright, 72 Ala. 411 (1882); Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981 (1895). It was the affirmative duty expressed in these cases which later formulated the basis and substance of § 11-47-190. Once incorporated into the statute, the responsibility, once attributed solely to the municipalities’ governmental authority, rose to the level of a legal duty. In addressing the provisions of Ala.Code, Tit. 37, § 502 (1940), the precursor to Code 1975, § 11-47-190, this Court stated:

“ * * * Prior to that enactment the upkeep of the streets was a governmental function and not a legal duty, except as otherwise provided by some special law. Albrittin v. Mayor & Aldermen of City of Huntsville, 60 Ala. 486. Thereafter it has been a legal duty, imposing responsibility upon the city for negligence in performing it. The power and authority to control streets was made the exclusive prerogative of the city, which created a corresponding and coextensive duty and therefore a civil liability for the consequences of a default therein. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841.”

Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 236-237, 73 So.2d 552, 553-554 (1954). It is now fully recognized that the duty imposed upon cities to keep their public ways free of defects is but the expression of a broader responsibility to exercise ordinary and reasonable care in keeping streets in a reasonably safe condition for travel. McCarroll v. City of Bessemer, 289 Ala. 449, 268 So.2d 731 (1972); City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324 (1963); Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793 (1954). The question then becomes one of whether the maintenance of traffic control signs is a part of the City’s respo: Ability to keep its streets safe for use by the public.

The City cites Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689 (1936), in support of the proposition that a city’s duty to keep its streets in a reasonably safe condition does not include any duty to maintain traffic control signs. In Dormi-ney, the court specifically confronted the issue of whether the City of Montgomery could be held liable for injuries resulting from an intersectional automobile collision allegedly caused by the defective operation of a traffic light. At 232 Ala. 49, 166 So. 690-691, the court stated:

“We have consistently held that a municipality is under the legal duty to keep its streets and sidewalks in a reasonably safe condition for the use of the public, and for the negligent failure to perform this duty it is liable in tort to a person thereby injured. This duty to keep its streets and sidewalks in a reasonably safe condition we have held to be a corporate, rather than a public, duty; that its officers or agents, while engaged in the performance of this duty, were engaged in a ministerial, rather than a governmental, function. City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Muller, 197 Ala. 554, 73 So. 30; Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; City of Selma v. Perkins, 68 Ala. 145, 148.
“We have also held that persons on streets of a municipality may assume that the ways are free from unlawful obstructions or dangerous defects, so long as ordinary care on their part does not disclose such defects. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797.
“However, we are of the opinion that the obstructions or defects relate to physical obstructions or defects.”

Since a defective traffic light could not realistically be categorized as a physical obstruction or defect in the street, the City could not be held liable for any negligence in failing to keep its streets in a reasonably safe condition. In the same way, a missing stop sign does not constitute any physical defect in the street; therefore, under the principles espoused in Dorminey, we must conclude that the City of Prichard has not been negligent in maintaining its streets. It, therefore, has not breached its responsibilities under Code 1975, § 11-47-190.

In reaching this holding, we fully recognize that courts in companion jurisdictions have reached different conclusions on the same point of law. See generally Annot. 34 A.L.R.3d 1008. Some jurisdictions have reasoned that traffic control devices, such as stop signs, are very real physical appurtenances to public ways and their negligent maintenance may constitute a defect in the street. Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). Numerous others hold that the responsibility of maintaining such devices is necessarily included within the municipality’s duty to keep streets in a reasonably safe condition. O’Hare v. City of Detroit, 362 Mich. 19, 106 N.W.2d 538 (1960); Arizona State Highway Department v. Bechtold, 105 Ariz. 125, 460 P.2d 179 (1969); Smith v. City of Preston, 97 Idaho 295, 543 P.2d 848 (1975). Thorpe v. City and County of Denver, 30 Colo.App. 284, 494 P.2d 129 (1972). Still others have held municipalities responsible for maintaining traffic control signs upon principles of nuisance. Fankhauser v. City of Mansfield, 19 Ohio St.2d 102, 249 N.E.2d 789 (1969); Town of Fort Ogelthorpe v. Phillips, 224 Ga. 834, 164 S.E.2d 141 (1968). Our conclusion is based solely upon our reading of the statute and how that statute has been interpreted by the courts of this state. On that limited ground, we must conclude that the City of Prichard is not liable for negligent maintenance of a street; however, that does not preclude liability on grounds falling outside the statute, liability which might be based entirely upon principles of ordinary negligence.

In determining whether the City might be liable outside the statute, we feel compelled to look again to the opinion of the court in Dorminey, supra. We find it significant that in that case the court categorized the city’s action in erecting traffic control devices as an entirely governmental function, founded upon the city’s authority to act for the public safety. At 232 Ala. 49, 166 So. 691, the court reasoned:

“Traffic signal lights serve the purpose, and were so designed, to regulate the use of the streets, where installed. There is no duty enjoined by statute upon a municipality to install such signals, and, if installed, it is done in the exercise of a discretionary power, possessed by the municipality to conserve the safety of the public using such streets.”

On the basis of this language, it is the opinion of this Court that in the immediate case, the City of Prichard was possessed of complete discretion so far as erecting a stop sign at the intersection of Broadway and Main was concerned. It chose to exercise that discretion and in doing so acted in a governmental capacity; but, having exercised discretion in erecting the sign, did it then have an obligation to maintain the sign in a reasonably safe condition? We believe so.

In Smith v. Godin, 61 Ill.App.3d 480, 18 Ill.Dec. 754, 755, 378 N.E.2d 218, 219 (1978), the court dealt with a fact situation quite similar to that presently involved. That case involved an action against the City of East St. Louis based upon allegations that the city’s negligence in failing to replace a missing stop sign at an intersection proximately caused an automobile accident. In responding to the defendant city’s arguments, the court proceeded as follows:

“Defendant argues that since no mention is made in the statute of a duty to maintain traffic regulatory devices once they are installed that none exists. Defendant is mistaken. The case law is plain that once having elected to erect devices to guide, direct or illuminate traffic, a city then has a duty to maintain those devices in a condition conducive to the safe flow of traffic.”

Various other cases involving substantially similar facts reach this same conclusion. Wagshal v. District of Columbia, 216 A.2d 172 (D.C.1966); Johnston v. City of East Moline, 338 Ill.App. 220, 87 N.E.2d 22 (1949). See also 39 Am.Jur.2d, Highways, Streets and Bridges, § 400 (1968). We find the rationale in these cases compelling, and especially because of the recent decision of this court in Dailey v. City of Birmingham, 378 So.2d 728 (1979). In Dailey, the City of Birmingham was sued for the wrongful death of a minor child allegedly caused by the City’s failure to complete its construction of a fence or barrier along the bank of a storm sewer ditch. The lower court entered summary judgment in favor of the City. On appeal, this Court determined that the entry of summary judgment was improper because there existed a genuine issue of material fact on the question of whether the City volunteered to protect the public by erecting the fence. The City was clearly not under any duty to construct a fence; however, if it volunteered to do so, it was bound to do the work and complete construction with all due care. At 378 So.2d 729, the Court stated:

“Alabama clearly recognizes the doctrine that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith. See, e. g., Robinson v. Harris, 370 So.2d 961 (Ala.1979); United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 (Ala.1978); Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971).”

Applying this principle of law to the present case, we hold that in erecting the stop sign at Broadway and Main, the City of Prichard volunteered to act and was thereafter charged with the responsibility of acting with due care. We believe that maintenance of the sign was necessarily a part of that responsibility. We therefore, find that the City was under a duty to persons using its streets to maintain the traffic control sign erected by it in a reasonably safe condition.

After reviewing the evidence, it becomes abundantly clear that the City was negligent in carrying out the duty it voluntarily assumed. The City argues that it was never notified of the condition of the stop sign and cannot, therefore, be held liable for injuries resulting from its disrepair. We agree with the City that notice was required; however, we cannot agree that it was not received in this case. A review of similar cases reveals that notice of the disrepair of a traffic sign is a necessary prerequisite to liability. Wagshal v. District of Columbia, supra (stipulation of 6 days’ notice of a missing stop sign); Smith v. Godin, supra (sufficient evidence to support an inference that the City had knowledge of a missing stop sign); Grantham v. City of Topeka, supra (admission of the city that it had 20 hours’ notice of a missing stop); Arizona State Highway Department v. Bechtold, supra (finding that city had 6 hours’ actual notice of a defective traffic signal). We believe, however, that in the instant case there was more than sufficient evidence from which the jury could conclude that the City of Prichard had notice of the missing stop sign. The testimony of James D. McCrory, former building inspector for the City, reveals that an order had been made by him to replace the stop sign at the subject intersection some six months prior to the accident. The order was delayed, however, because the City would not pay for the sign. Additionally, the police chief of the City, Dan Davis, had been informed of the sign’s disrepair as early as 1973. Beyond this, the very duration of the disrepair is, in and of itself, sufficient to raise at least an inference of notice. Several witnesses were called on the subject, each of whom testified that the sign had been down for long and varying periods of time. Some testimony indicates that the sign may have been down for as much as seven years. We believe that the cumulative effect of this evidence reveals that the City was notified that the stop sign was missing. The evidence is also clear that the City did not act properly in replacing it. This failure to act responsibly is actionable.

In holding that the City was negligent, we reiterate that this negligence was involved in the performance of a governmental function. At one time, as in Dorminey, the characterization of the function as governmental would, in and of itself, shield a municipality from liability in negligently performing it; however, with the advent of Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), this is no longer true. By virtue of that case, the historical distinctions between governmental and proprietary functions are no longer important. Governmental immunity is no longer available to protect municipalities for the negligent performance of governmental acts. As a result, the City of Prichard can be held liable for negligently failing to maintain a stop sign. As can be observed in McQuillan, Municipal Corporations, 3d supp. § 43.42 (1979):

“In those jurisdictions which have effectively abolished the historical distinction between proprietary and governmental functions as the determining factor in establishing liability in cases where persons claim injury at the hands of a local governmental entity, the rule is that once having elected to erect devices to guide, direct or illuminate traffic where no duty exists to do so, a municipality then has a duty to maintain those devices in a condition conducive to the safe flow of traffic and will be liable for its negligence in failing so to do.”

Even though the City acted negligently, it still cannot be held liable absent a finding that such negligence was the proximate cause of the plaintiff’s injuries. The jury concluded that the evidence supported such a finding and, therefore, rendered a verdict in favor of the plaintiff. The City now attacks that verdict, arguing that there is insufficient evidence to support it. We disagree. The question of proximate causation in the present case was a matter properly submitted to the jury, Western Ry. of Alabama v. Still, 352 So.2d 1092 (Ala. 1977), and we will not overrule the jury's findings unless they are plainly erroneous or manifestly unjust. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). We hold that the findings made by the jury were not plainly erroneous. The judgment of the trial court which awarded plaintiff $75,000 pursuant to the jury verdict in his favor is, therefore, due to be affirmed.

Other issues raised by the parties need not be addressed for the purposes of this appeal.

AFFIRMED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Wyndell WILLIAMS v. Jackson B. WORTHINGTON.
    78-777.
    Supreme Court of Alabama.
    May 30, 1980.
    Rehearing Denied July 25, 1980.
    Richard L. Taylor, Birmingham, for appellant.
    Jasper P. Juliano and William J. McDaniel, of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellee.
   MADDOX, Justice.

Plaintiff sued defendant for damages due to injuries he allegedly sustained when their motor vehicles collided. Defendant requested the trial judge to instruct the jury on the “sudden emergency” doctrine of tort law. The trial judge gave the instruction, over objection, and the jury rendered a verdict for the defendant. Plaintiff appeals, claiming the court erred to reversal in giving the “sudden emergency” instruction. We affirm.

This case involves rear end collisions between three vehicles which were each headed north in relatively congested traffic, on 26th Street North in Birmingham (26th Street North is also part of U.S. Highway 31). The first vehicle suffered slight rear damage. The driver of that vehicle is not a party to this action. The second vehicle was driven by the plaintiff and the third by the defendant.

All three drivers stopped at the traffic signal at 34th Avenue North. After the light turned green, they began moving forward. They had proceeded a short distance when the first vehicle stopped. The second vehicle hit the first vehicle and was in turn hit by the third vehicle. The plaintiff claims he suffered back injuries as a result of the accident and sued the defendant driver of the third vehicle.

Plaintiff testified that the first vehicle came to a stop “fairly bluntly”; that he then stopped behind that vehicle; that the third vehicle first hit him, and then pushed his vehicle into the rear end of the first vehicle. Plaintiff also testified that it all happened “simultaneously.”

Defendant testified that as he moved through the intersection, he glanced off to the right, and then looked straight ahead and saw the second vehicle make a “sudden stop” in front of him.

The trial judge included the following in his oral charge to the jury:

“Now, ladies and gentlemen, if a person, a motorist, without fault of his own is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation. And the fact — if it be a fact — that he does not choose the best or safest way of escaping peril or preventing injury, it’s not necessarily negligence. But, the standard of care required in an emergency situation is that care which a reasonable and prudent motorist would have exercised under the same or similar circumstances.
“Back to our first definition, and it’s up to you ladies and gentlemen to say from a consideration of all of the evidence in the case whether the adoption of certain sudden emergency is or is not applicable from all the facts as you see and determine them from all of the evidence.”

We note, and the parties agree, that the instruction given on the “sudden emergency" doctrine is a correct statement of the law. The sole issue presented by this appeal is whether it was proper to give this charge in this case.

Counsel for the appellant is correct in citing to this Court the rule that one who has by his own conduct brought about the sudden peril may not invoke the benefits of the doctrine. Johnson v. Coker, 281 Ala. 14, 198 So.2d 299 (1967). We recognize this doctrine, but it is equally true that when the evidence presents a question of fact as to whether the defendant contributed to the emergency, the giving of the charge is proper and the jury must determine whether the defendant was faced with a “sudden emergency.” We find that the evidence here was sufficient to create a jury question on the matter of whether the defendant, by his own conduct, brought about the sudden emergency. The giving of the instruction was not error. Miller v. Dacovich, 355 So.2d 1109 (Ala.1978).

The judgment is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice. BEATTY, Justice. JONES, Justice

text:
    THOMPSON-WEINMAN AND COMPANY, a corporation v. James Douglas ROBINSON et al. James Douglas ROBINSON et al. v. THOMPSON-WEINMAN AND COMPANY.
    78-794, 78-845.
    Supreme Court of Alabama.
    May 30, 1980.
    Rehearing Denied July 25, 1980.

      Robert D. Norman and Courtney H. Mason, Jr. of Norman, Fitzpatrick & Wood, Birmingham, Robert J. Teel of Teel & Teel, Rockford, for appellants in No. 78-794 and cross appellees in No. 78-845.
    Douglas Burns and Gary F. Burns of Burns, Shumaker & Davis, Gadsden, James S. Hubbard, Anniston, for appellees in No. 78-794 and cross appellants in No. 78-845.
   BEATTY, Justice.

This appeal and cross-appeal are from judgments entered by the trial court after a jury returned a verdict in favor of the plaintiffs and against the defendant, Thompson-Weinman and Company, and from an order of remittitur reducing the amount of damages awarded by the jury. Thompson-Weinman alleges that the trial court committed numerous errors in the course of trial; the plaintiffs cross-appeal the order of remittitur. For the following reasons, we reverse and remand.

Thompson-Weinman conducted blasting operations in close proximity to James D. Robinson and numerous other named plaintiffs who filed suit against the company, alleging damages to real and personal property and also alleging mental anguish. Before the trial began the trial court, cautioning all prospective witnesses to avoid mentioning liability insurance during the course of their testimony, gave the following instructions:

Okay, let me state to each of the witnesses here. Do not use the word “insurance” unless it’s in answer to a direct question, and if you cannot answer a question without the word insurance make it known to the Court out of the hearing of the jury. Again, I will not rule upon this matter ahead of time, but I do not recall an instance where the word “insurance” came out unless it was on almost a direct question from Defendant’s counsel in response to a question that called for it that I’ve ever not granted a mistrial.

During the course of the trial Eddie Gid-dens, one of the several plaintiffs, was testifying on direct examination. He gave an unresponsive answer mentioning “insurance” contrary to the trial court’s instructions, viz.:

Q. What in your opinion was the value of that same automobile in its damaged condition in Talladega County, Alabama
A. Well, some insurance man—

The trial court sustained a timely objection and gave the following curative instruction:

THE COURT: I’ll exclude that. I’ll instruct the jury not to consider that in any way in reaching your verdict. Is there any one of you who cannot completely put that out of your mind? Can you, can you, can you, can you, can you, can you, can you, can you, can you, can you, can you, can you? Let the record reflect that each one said they could.

Notwithstanding this curative instruction, the trial court granted Thompson-Weinman’s motion for a mistrial as to the Giddenses. The trial continued and the case was submitted to the jury which found in favor of the .plaintiffs. The trial court granted Thompson-Weinman’s motion for new trial unless James D. Robinson and Vergie Robinson agreed to remittiturs, which they agreed to under protest.

On appeal Thompson-Weinman contends that the trial court erred in granting a partial mistrial as to the Giddenses, arguing that a mistrial as to all parties should have been granted. In their brief plaintiffs have argued only that the trial court properly exercised its discretion in granting the partial mistrial. We hold that the trial court erred in granting a partial mistrial and thus this cause must be reversed and remanded for a new trial.

The issue of whether to grant a mistrial generally rests within the sound discretion of the trial court. Record Data International, Inc. v. Nichols, Ala., 381 So.2d 1 (1979); McCart v. Devine, 51 Ala. App. 678, 288 So.2d 739 (1973). The reason for the rule is well advanced in Burnett v. Bledsoe, 276 Ala. 139, 159 So.2d 841 (1964), where the Court explained:

The cases where insurance is mentioned in civil actions during the trial are numerous but the determining factor is whether or not a remark concerning insurance is prejudicial. The governing rule with reference to all remarks of counsel before the jury is thus stated in Birmingham Electric Co. v. Perkins, 249 Ala. 426, 430, 31 So.2d 640, 642:
“The trial court was present and was an eyewitness to all of the proceedings and in overruling the defendant’s motions in effect found that the remarks were not prejudicial to the defendant. Therefore the action of the trial court in denying the motions for mistrial and in overruling the motions for new trials will not be disturbed by this court unless it affirmatively appears from the entire record that the statements involved were properly preju iicial *
Restated in Durham v. York, 269 Ala. 304, 112 So.2d 472, and British General Ins. Co. v. Simpson Sales Co., 265 Ala. 683, 93 So.2d 763. [276 Ala. at 141, 159 So.2d at 843.]

A review of the instances in which liability insurance was injected into a civil case discloses that the trial court’s focus is upon prejudice, i. e., was the defendant prejudiced to such an extent that the improper influence of the subject of insurance was ineradicable from the minds of the jurors? If so, then on the basis of the trial of the proceedings below, in all likelihood we would be persuaded to affirm the trial court’s decision. If the trial judge answers that question in the affirmative, he is duty bound to grant a mistrial. Ineradicable prejudice either is present or it is absent.

In the case at bar the trial court granted a mistrial only as to the Giddenses for it was Mr. Giddens who improperly injected the subject of insurance into the case. The trial court gave curative instruc-, tions to the jury. Had the court denied the motion for mistrial, in effect holding that the defendant was not prejudiced to the point of mistrial and that the influence of the improper mention of insurance was eradicable from the minds of the juror, we would, on the basis of the transcript of the proceedings below, in all likelihood be persuaded to affirm the trial court’s decision. The situation would be similar to that presented in Burnett, supra. However, that is not the situation in this case. Here, the trial court partially granted the defendant’s motion for mistrial, necessarily holding that the defendant was prejudiced and that the influence of the mention of insurance could not be eradicated from the minds of the jurors.

If the defendant was prejudiced as to the Giddenses, it was equally prejudiced as to all other parties, for while there were several named plaintiffs in the case, there was only one defendant, and the plaintiffs’ claims were all similar, each alleging damages resulting from defendant’s blasting operation. It is illogical to conclude that the jury would think about the defendant’s insurance when considering the claim made by the Giddenses against the defendant, but that on the other hand that same jury would not think about the defendant’s insurance when considering a similar claim made by any other plaintiff against the same defendant. Therefore the trial court should have either denied the motion for mistrial or granted the motion for mistrial as to all parties. Having failed to do either, having granted the mistrial only as to the Giddenses, the trial court erred.

Plaintiffs’ counsel, during oral argument, suggested that the trial court may have granted the mistrial as to the Giddenses as a disciplinary measure, since the court warned all witnesses at the beginning of trial not to mention insurance. The record does not reveal any such intent.

We pretermit discussion of the other issues raised by the defendant and the issue of remittitur. The judgment of the court below is due to be, and is hereby, reversed and remanded.

REVERSED AND REMANDED.

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

JONES, J., concurs in the result.

On Application For Rehearing

BEATTY, Justice.

In our original opinion we stated that the record did not reveal an intent by the trial court to use the “partial mistrial” as a disciplinary measure against the Giddenses for violating the court's opening instructions to the witnesses who were expected to testify. On rehearing the appellee correctly calls our attention to that part of the record which does reveal such an intent.

Under the facts of this case, we have held that the action of the trial court in granting the motion for mistrial as to Eddie Giddens because he improperly mentioned “insurance” in his testimony, was inappropriate if used as a disciplinary measure, for granting a mistrial in this instance, as we noted in our opinion, was the equivalent of holding that the defendant was prejudiced. Since there was only one defendant, that defendant was necessarily prejudiced as to all plaintiffs claiming against it in the same trial.

What the result would have been if the Giddenses’ claim had been against one defendant, while the other plaintiffs’ claims were against other, separate defendants, we cannot state because those facts are not presented to us on this appeal.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

The problem pointed up by Appellee’s application for rehearing is the reason, in part, for my vote to concur only in the result to reverse and remand. The extension of the opinion to correct this error dramatizes the problem. The opinion, as extended, acknowledges, on the one hand, that the judge used a “partial mistrial” as a disciplinary measure against the Giddenses. (Indeed, the record is clear that this was the only basis for the trial Court’s action.) Then, the opinion states, “[G]ranting a mistrial . . . was the equivalent of holding that the defendant was prejudiced.” In my opinion, this latter observation is both incorrect and incongruous with the posture of the record, which reflects a contrary intent on the part of the trial Judge.

If the trial Court was free to exercise its discretion in weighing the prejudicial effect of Mr. Giddens’s reference to insurance (which is the holding of the opinion), it necessarily follows that no reversible error has been committed which adversely affects the substantial rights of this Defendant. The propriety of the trial Court’s action in granting the partial mistrial as a disciplinary sanction upon the Giddenses is not here presented for review. (I would observe, incidentally, that I know of no authority that would preclude the inherent power of the trial court to impose such a sanction.)

In view of this disagreement with the opinion, why, then, do I concur in the result to reverse and remand rather than dissent? I do not agree that the circumstances under which the prejudicial injection of insurance was thrust into this case left any discretion in the trial Court. I do not reject outright the notion that, ordinarily, such matters, properly handled, are to be left to the sound discretion of the trial Judge. Here, however, the witness’s nonresponsive answer, “Well, some insurance man . . . ,” coming on the heels of the trial Judge’s express admonition not to inject insurance into the case, took the matter beyond the discretionary rule, and the trial Judge was legally bound to declare a mistrial (even without a motion) as to the entire cause.


author: JONES, Justice.

text:
    BEDWELL LUMBER COMPANY, INC. v. T & T CORPORATION et al.
    79-199.
    Supreme Court of Alabama.
    May 30, 1980.
    Rehearing Denied July 25, 1980.

      Robert F. Vargo of Brantley & Vargo, Bay Minette, for appellants.
    Thomas W. Underwood, Jr. of Chason & Underwood, Foley, for appellee T & T Corp.
    Charles C. Simpson, III of Owens & Simpson, Bay Minette, for appellee A. N. D., Inc., d/b/a Baldwin Real Estate Agency-
   JONES, Justice.

This appeal, from a judgment based on a jury verdict for the Plaintiff on a fraud claim, under § 6-5-101, Code 1975, presents a sufficiency of the evidence issue. We affirm.

That the evidence of record amply supports the verdict is demonstrated in the following brief evidentiary recitation supportive of Plaintiff’s claim: Plaintiff T & T Corporation, a land developer, through its president Harris C. Grant, offered to purchase 17 lots, plus certain undeveloped land, from Defendant Bedwell Lumber Company, dealing exclusively through Bedwell’s agent, Ms. White, of the Baldwin Real Estate Agency. The remaining lots within the subdivision had been sold previously and several of these purchasers had built homes thereon. Before the “closing,” Mr. Grant telephoned Ms. White and expressed his concern about the “percolation of the lots.” Ms. White replied that Mr. Bedwell at that very moment was in her office and she would ask him whether the lots would support septic tanks. Mr. Bedwell told her (and she, in turn, told Mr. Grant) that the platted lots had been approved for septic tanks, but he was not sure about the acreage.

Within a few days after the closing of the sale, Mr. Grant told Ms. White that several of the lots would not percolate. When Ms. White related this to Mr. Bedwell, he told her to have Mr. Grant contact Hand Engineering “to see what the problem was.” Pursuant thereto, Hand reaffirmed its earlier finding, made on behalf of Bedwell at the time the subdivision was platted, that 5 of the 17 lots here involved failed to meet percolation tests and recommended curative action.

Upon receipt of a claim letter from Mr. Grant, Mr. Bedwell asked Ms. White to request Hand “to do whatever was necessary,” which she did. Hand performed, or supervised the performance of, the corrective work, including tons of fill dirt and bulldozing, for a total cost of $17,081.04, which Bedwell refused to pay.

We have strained at the record and Appellant’s brief in an effort to discern a viable issue for appellate review. Appellant’s strongest position may be summarized as follows: Admitting that the evidence, though disputed, supports a finding of misrepresentation with respect to the percolation quality of the lots, Appellant insists:

“A party has no right to rely on representation as to the condition, quality, or character of property or as to its adaptability to certain uses, where the parties stand on an equal footing and have equal means of knowing the truth. [Citing 37 Am.Jur.2d, Section 273, Fraud and Deceit; Restatement, Torts, Section 538, Comment E, and Section 542, Comment A.]
“In the instant case, the evidence was uncontradicted that T & T Corporation had knowledge of such facts which ought to have excited inquiry regarding the percolation qualities of the subject lots and which, if pursued, would have led to knowledge of the fact that the lots had not been approved by the State of Alabama for septic tanks.”

We have no quarrel with the basic legal proposition that the representee’s reliance must be reasonable under the circumstances; and, where a party has reason to doubt the truth of the representation or is informed of the truth before he acts, he has no right to act thereon. Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476 (1974). We reaffirm the principle of the law of fraud that knowledge of such facts which ought to excite inquiry and which, if pursued, would lead to knowledge of other facts, operates as notice of these other facts. Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So.2d 431 (1971).

These legal propositions, however, do not operate, here, to bar recovery. Mr. Grant testified that he was induced to close the sales transaction on the strength of Mr. Bedwell’s representation that only the undeveloped property in question had percolation problems, and that the subdivided lots had been cleared for use of septic tanks. Ms. White verified Mr. Grant’s version of this conversation. Mr. Grant further testified that he first knew of the percolation problem several days after the closing. The evidence justifies a finding by the jury that Mr. Bedwell, at the time he made the representation, knew that 5 of the lots in question would not “perk,” and that Mr. Bed-well subsequently agreed to assume the cost of bringing these lots to the required percolation standards.

To accept Appellant’s contention in this regard would be tantamount to a holding that T & T Corporation,, despite Mr. Bed-well’s representation, was obligated, as a matter of law, to instigate an independent investigation which, if pursued, would have disclosed a public record, filed with the County Department of Health, that 5 of the purchased lots had been disapproved for septic tanks. For a case disavowing such an obligation and affirming a judgment fixing liability under similar circumstances, see Jackson Company v. Faulkner, 55 Ala. App. 354, 315 So.2d 591 (1975).

We have not overlooked argument of Appellant’s counsel alleging error relating to the trial Court’s order granting the third party defendant’s motion for new trial. We have not addressed this contention because the notice of appeal encompasses only the judgment denying Bedwell’s motion for a new trial.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Stanley Lee WILLIAMS and Johnny R. Null v. J. O. DAVIS, et al.
    79-636.
    Supreme Court of Alabama.
    June 27, 1980.
    Rehearing Denied July 25, 1980.

      George K. Elbrecht, Monroeville, for appellants.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellees.
   TORBERT, Chief Justice.

Petition of Stanley Lee Williams and Johnny R. Null for writs of habeas corpus (Count I) and injunctive and declaratory relief (Count II) was filed in the Circuit Court of Escambia County. The petition for writ of habeas corpus was denied and dismissed by the Escambia Circuit Court” on December 17, 1979. Motions for change of venue were granted on the same day and venue transferred to Montgomery County; thereafter, the Circuit Court of Montgomery County dismissed the claim (Count II) for injunctive and declaratory relief. Petitioners appealed from the orders of both courts to the Court of Civil Appeals, which appeals were transferred to this Court.

Neither the order of the Escambia Circuit Court nor the order of the Montgomery Circuit Court contained findings of facts. The only statement of facts before this Court is found in the allegations contained in the sworn pleadings of Stanley Lee Williams and Johnny R. Null.

Stanley Lee Williams alleges that he is an inmate in the G. K. Fountain Correctional Center in Atmore, Alabama. Petitioner Williams alleges that on or about June 22, 1979, his status as a prisoner was that of Community I (IGT). In this status he was receiving two days’ credit for every one day he actually served in the prison, the extra credit called “good time.” In this status, with “good time” credit, petitioner Williams was scheduled to be released from the prison system August 19, 1979. On June 22, 1979, petitioner Williams was charged with the violation of prison Rule II-B-7 of the Handbook of Rules and Information for Inmates. Prisoner alleges that he was deprived of his liberty without due process of law as the result of the disciplinary hearing in that he designated one Jerry Dugger as a witness he wanted to testify on his behalf at the disciplinary hearing and prison officials denied his request to call Mr. Dugger as a witness. Mr. Dugger was a civilian employer in the Loxley area who employed and supervised petitioner Williams and others located at the Loxley Work Release Center. Petitioner alleges that the attendance of Mr. Dugger at the disciplinary hearing would not have been unduly hazardous to institutional safety or correctional goals. As a result of the guilty finding, petitioner was removed from IGT status, certain “good time” was taken away from him, and petitioner was therefore not released on August 19, 1979 as scheduled.

Petitioner Johnny Null alleges that he is an inmate in the G. K. Fountain Correctional Center in Atmore, Alabama, and that on or about August 24, 1979, he was receiving IGT “good time” in his status as a Community I prisoner. Petitioner Null alleges that he had an IGT release date of June 11,1980. Petitioner alleges that he was charged with the violation of prison Rule II-B — lc of the Handbook of Rules and Information for Inmates. Petitioner Null alleges that he filed a timely written request for documentary evidence on August 13,1979, and again on August 24, 1979, and petitioner alleges that both requests were denied. Petitioner Null alleges that he designated as witnesses John Gardner (a correctional counselor) and Betty Carr (secretary for the director of the Work Release Center). Petitioner alleges that these witnesses could present relevant evidence which would aid the petitioner in his defense and that petitioner’s request for these two witnesses was denied. Petitioner alleges that the attendance of John Gardner and Betty Carr at petitioner’s disciplinary hearing would not have been unduly hazardous to the institutional safety or correctional goals. Petitioner Null alleges that as the result of the guilty finding at the disciplinary hearing, he was removed from his IGT status and therefore, petitioner Null would not be released on his IGT release date of June 11, 1980.

Count II of the complaint of petitioners Williams and Null is brought under 42 U.S.C. § 1983, alleging that Mr. J. 0. Davis; Governor Forrest “Fob” James; Mr. R. G. Britton, Commissioner, Board of Corrections; and Mr. Andrew Cooper, Deputy Commissioner, Board of Corrections, in their official capacities, deprived them of constitutional rights under color of state law.

I. THE § 1983 ACTION

Count II of the petitioners’ complaint is without merit because the United States Supreme Court has held that the duration of confinement cannot be challenged in a § 1983 action, but that the proper method by which a prisoner who claims to have been deprived of his “good time” credits without due process of law can challenge the results of such disciplinary hearings is a petition for a writ of habeas corpus.

In the case before us, the respondents’ suits in the District Court fell squarely within this traditional scope of habeas corpus. They alleged that the deprivation of their good-conduct-time credits was causing or would cause them to be in illegal physical confinement, i. e., that once their conditional-release date had passed, any further detention of them in prison was unlawful; and they sought restoration of those good-time credits, which, by the time the District Court ruled on their petitions, meant their immediate release from physical custody.
Even if the restoration of the respondents’ credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison, habeas corpus would have been their appropriate remedy. For recent cases have established that habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases.
So, even if restoration of respondents’ good-time credits had merely shortened the length of their confinement rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself.

Preiser v. Rodriguez, 411 U.S. 475 at 487, 93 S.Ct. 1827 at 1835, 36 L.Ed.2d 439 (1973).

Therefore, the judgment dismissing the claim based on § 1983 is affirmed.-

II. THE PETITION FOR WRIT OF HABEAS CORPUS

Respondents contend that “good time” is an administrative question which cannot be reviewed in a habeas corpus proceeding, relying on Cazalas v. State, 42 Ala.App. 72, 152 So.2d 444 (1963). Since the rendition of the Cazalas opinion, supra, the United States Supreme Court has held that a prisoner may not be stripped of “good time” credits without some modicum of due process being accorded to him at his disciplinary hearing. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a “retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060,92 L.Ed. 1356 (1948). But, though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. . . . Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Cf. CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Cf. Morrissey v. Brewer, 408 U.S. 471, at 488, 92 S.Ct. 2593, at 2603, 33 L.Ed.2d 484. In sum, there must be mutual accommodation between institutional needs and objectives and the . provisions of the Constitution that are of general application.
We also reject the assertion of the State that whatever may be true of the Due Process Clause in general or of other rights protected by that Clause against state infringement, the interest of prisoners in disciplinary procedures is not included in that “liberty” protected by the Fourteenth Amendment. .

Wolff v. McDonnell, 418 U.S. 539 at 555, 556, 557, 94 S.Ct. 2963 at 2974, 2975, 41 L.Ed.2d 935 (1974).

In Wolff, supra, the United States Supreme Court held that due process required that prisoners in a disciplinary hearing, the result of which could be the revocation of their “good time” benefits, must be given advance written notice of the charges against them and a written statement of the evidence relied upon by the disciplinary board and the reasons for their action. The Court held that because the opportunity to be heard was an essential part of due process, a prisoner should be allowed to call witnesses and present documentary evidence. The Court did not hold that due process always required allowing prisoners to call witnesses but rather established a flexible standard to be used by courts in determining whether due process required allowing a prisoner to call witnesses in his own behalf. That standard is a balancing test between the interests of the prisoner in retaining his “good time” and the interests of the prison in institutional safety and correctional goals.

Two of the procedures that the Court held should be extended to parolees facing revocation proceedings are not, but must be, provided to prisoners in the Nebraska Complex if the minimum requirements of procedural due process are to be satisfied. These are advance written notice of the claimed violation and a written statement of the fact-finders as to the evidence relied upon and the reasons for the disciplinary action taken.
Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact. See In re Gault, 387 U.S. 1, 33-34, and n. 54, 87 S.Ct. 1428, 1446-1447, and n. 54, 18 L.Ed.2d 527 (1967). . . .
We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. [H]ere we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison and some amount of flexibility and accommodation is required. . .

Wolff v. McDonnell, 418 U.S. 539 at 563, 564, 566, 94 S.Ct. 2963 at 2978-2979, 41 L.Ed.2d 935 (1974) (emphasis added).

The United States District Court for the Middle District of Alabama, Northern Division, held that loss of “good time” is a sufficient deprivation of liberty to warrant a prior due process hearing. Diamond v. Thompson, 364 F.Supp. 659 (M.D.Ala.1973). That Court also held:

[A]t a minimum, the prisoners transferred from Atmore to administrative segregation during the disturbance there were entitled to written notice of the charges against them, an opportunity to be heard and present witnesses and documentary evidence, if any, before an impartial board composed of persons who were not directly involved in the incident, the right to confront and cross-examine adverse witnesses, and a written statement of findings by the board. .

Diamond v. Thompson, 364 F.Supp. 659 at 665 (M.D.Ala.1973).

Surely, if the Due Process Clause requires at a minimum that prisoners have an opportunity to be heard, to present witnesses and documentary evidence, and to cross-examine and confront adverse witnesses before a change in the quality of their confinement, then likewise, prisoners should have the same rights before they are deprived of their “good time” credits.

We hold in accord with Wolff, supra, that due process requires that prisoners be allowed to produce documentary evidence and to introduce witnesses in their own behalf at a disciplinary hearing which may result in the revocation of their “good time” benefits, unless the production of such documentary evidence or the attendance of such witnesses would be unduly hazardous to institutional safety or correctional goals.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: SHORES, Justice.

text:
    BURBIC CONTRACTING COMPANY, INC. v. Charles H. WILLIS and James W. Wells.
    78-874.
    Supreme Court of Alabama.
    July 25, 1980.

      James W. May of Odom, May & De Buys, Birmingham, for appellant.
    Richard S. Manley, Demopolis, for appel-lee Charles H. Willis.
    Horace N. Lynn of Piel & Lynn, Montgomery, for appellee James W. Wells.
   SHORES, Justice.

Charles H. Willis filed suit against Burbic Contracting Company to recover damages for work and labor performed by Willis for the benefit of Burbic Contracting Company. Burbic then filed its answer denying any indebtedness to the plaintiff and, at the same time, filed a third-party complaint against James W. Wells claiming from him any amounts found to be due by it to plaintiff Willis.

Wells, the third-party defendant, filed an answer denying every allegation made by Burbic and denying liability on the ground that he was an employee of Burbic Contracting Company as a foreman with the authority to hire and fire, contract for labor and materials, and handle all matters necessary to complete a sewer contract awarded to Burbic by the City of Demopolis.

The case was tried before a judge who, after hearing all the evidence, entered a judgment including findings of fact and conclusions of law as follows:

(1) The Plaintiff, Charles H. Willis, performed work at the request of James W. Wells for the use and benefit of Bur-bic Contracting Company, Inc.
(2) The Third-Party Defendant, James W. Wells, was employed by Burbic Contracting Company, Inc. as foreman on the sewer construction contract in Demopolis, Alabama. Mr. Wells, as foreman and job superintendent, had the authority to hire individuals, contract for labor and material and perform all matters instant to the completion of the sewer contract in De-mopolis, Alabama.
(3) Mr. Charles W. Willis performed work and labor for the benefit of Burbic Construction Company, Inc., and there is presently a balance due and owing from Burbic in the principal amount of $11,-134.50 due from the 19th day of May, 1978. The work performed by Charles H. Willis was of a satisfactory and competent nature in all regards.
(4) The Defendants, Burbic Contracting Company, Inc. and James W. Wells, entered into an agreement on the 1st day of February, 1978, wherein Burbic was to pay Mr. Wells certain sums of money for the completion of the project in Demopo-lis, Alabama. The money paid pursuant to this agreement was to be a bonus to Mr. Wells upon the final completion of the project.
(5) Mr. Wells, while doing business as W. W. Construction Company, was due from Burbic on June 26, 1978, the sum of $2,928.75 as evidenced by their final estimate on that said date. Other sums of money expended by Burbic Contracting Company, Inc. to complete the project in Demopolis, Alabama have not been proven to the satisfaction of the Court that same were necessary and that same were due to be deducted from the total due Mr. Wells.
It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Plaintiff, Charles H. Willis, have and recover of the Defendant, Burbic Contracting Company, Inc., the sum of $11,134.50, together with legal interest from the 19th day of May, 1978 and all Court costs in this cause created for which execution may issue.
Burbic appealed.

The only issue presented for review in this Court is: Was there evidence from which the trial court could conclude that James Wells was employed by Burbic Contracting Company as a foreman and job superintendent with the authority to hire, contract for labor and materials, and to oversee other matters necessary to complete the contract involved? Stated differently, did the trial court err, under the evidence, in not finding that James Wells was acting as an independent contractor?

We affirm.

There is evidence in the record that shows that Mr. Wells was carried on the company payroll of Burbic and that he performed as a foreman on the job site and that, as foreman, he had certain authority, including running the project in Demopolis.

There was some evidence to the effect that Mr. Wells was carried on the company payroll for purposes of avoiding bureaucratic red tape, but there was also abundant evidence to support a conclusion that he was an employee of Burbic.

This Court has, for many years, followed the rule stated in Birmingham Post Company v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933):

“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.” 1 Honnold on Workmen’s Compensation, § 66.

Birmingham Post Company v. Sturgeon, 227 Ala. at 165, 149 So. at 76. Hodges and Company v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972).

As has so often been stated where a trial court decides a factual issue on conflicting evidence, this Court will not reverse unless there is no evidence to support the factual determination so made. This is not such a case.

AFFIRMED.

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


text:
    SPARTAN POOLS v. Kim ROYAL and Dorothy Royal.
    No. 79-241.
    Supreme Court of Alabama.
    July 25, 1980.

      Joseph M. Matranga, Mobile, for appellant.
    Barber (Bob) Sherling and Vaughan Drinkard, Jr. of Sherling, Drinkard & Moore, Mobile, for appellees.
   JONES, Justice.

This appeal involves an alleged misrepresentation by Spartan Pools to the Royals through its sales brochure, which contains this language:

“In order to help you, your Spartan dealer has everything you need for pool planning and design. He’s fully qualified and has installed (and helped design) scores of beautiful pools.”

Much of the evidence is i undisputed. Spartan Pools manufactures, and distributes through authorized dealers, components for the installation of vinyl-lined swimming pools. In February, 1977, Spartan Pools entered into a dealership contract with Pacesetter of Mobile, Incorporated, whereby it supplies Pacesetter with swimming pool kits and sales promotion material. In May, 1977, in response to Spartan Pools’ television advertisement, the Royals contacted Pacesetter and, by use of Spartan’s brochure, selected the “Gold Medal 18' X 36' Pool with Steps,” and contracted with Pacesetter for its installation.

At the time of execution of the distributorship contract between Spartan and Pacesetter, none of Pacesetter’s-personnel had any experience in the construction or installation of swimming pools. At the time of execution of the installation contract between Pacesetter and the Royals, Pacesetter was virtually inexperienced in this type of construction. The completion time specified in the contract was 10 days, but the installation was not actually completed until near the end of August — over three months. A detailed recital of the defective construction is unnecessary. Suffice it to say that Plaintiff’s expert evidence is to the effect that repairs would necessitate removal of the entire existing concrete deck in order to correct the alignment of the walls which would require about two weeks and exceed in cost the original contract price of $4,715.00.

We agree with the following analysis of the primary issue by Spartan’s counsel:

“The fraudulent acts that are made the basis of this suit are the statements in the brochure published by the Defendant that Spartan dealers are qualified and have installed scores of pools. The question is whether or not any evidence was introduced in the trial which would show that this statement was, in fact, false.”

Spartan’s secondary contention can be gleaned from its Statement of Issues I and II:

“ISSUE I:
“Whether or not a statement in a sales brochure, published by the defendant, who manufactures and sells component parts of a swimming pool kit that ‘Your Spartan Pool dealer has everything you need for pool planning and design. He is fully qualified . . .’ and that ‘Your Spartan Pool dealer . . . has installed (and helped design) scores of beautiful pools.’, constitutes sufficient evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross and that the statements were made with knowledge of their falsity [thus permitting punitive damages].
“ISSUE II:
“Whether or not the evidence established an intent to deceive and defraud, when that evidence consisted of statements in a sales brochure published by the defendant which regarded the qualifications of its authorized dealer to install a swimming pool, and that the dealer ‘had installed scores of beautiful pools.’ ”

We further agree that “[u]nless a seller’s fraud is malicious, oppressive or gross and the representations made with a knowledge of the falseness, or so recklessly made as to amount to the same thing, or with the purpose of injuring the buyer, there can be no recovery for punitive damages.” See Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975); Maring-Crawford Motor Company v. Smith, 285 Ala. 477, 233 So.2d 484 (1970); and § 6-5-101, Code of Alabama (1975).

Whether the trial Court erred in submitting the case, including the punitive damages issue, to the jury, then, must be resolved by a “sufficiency of the evidence” determination; and our review must proceed on the established premise that “[n]o ground for reversal is more carefully scrutinized or rigidly limited than one charging that the verdict is against the great weight of the evidence.” Rush v. Atomic Electric Company, 384 So.2d 1067 (Ala.1980).

That the evidence amply supports a finding that “this statement [in the brochure] was, in fact, false” is demonstrated by the testimony of Plaintiffs’ witnesses from which the jury could reasonably infer that the Spartan Pool dealer (Pacesetter) had, in fact, installed no pools at the time of Spartan’s representation to the effect that its dealer was “fully qualified.” The evidence justifies the jury’s finding that Spartan represented its dealer to be an experienced and qualified installer of its pool kits when, in fact, at the time Spartan contracted with Pacesetter to become its dealer, Pacesetter had neither the experience nor the qualifications represented in its brochure. Furthermore, the ineptness of Pacesetter in its attempt to perform the installment contract with the Royals could reasonably be viewed by the jury as showing Pacesetter’s lack of experience, and thus Spartan’s misrepresentation of Pacesetter’s qualifications as an installer of Spartan pools.

Even if the record discloses evidentiary support for the Royals’ claim of misrepresentation, says Spartan, the evidence falls short of justifying an award of punitive damages. We disagree.

Obviously, Spartan’s statement regarding its dealer’s experience and qualifications was intended to induce the buying public, including the Royals, to purchase its swimming pool kit and contract with its dealer for the installation of the pool. Although these kits were available for purchase from the dealer without contracting with the dealer for its installation, it was the dealer’s expertise in its installation that was held out by Spartan to the consuming public as an added inducement in the sales promotion of its product. The Royals’ reliance upon this representation to their detriment is essentially undisputed.

Evidence of Spartan’s knowledge of the falsity of its representations regarding its dealer’s installation expertise is found in the testimony of its own witnesses. Its investigation of Pacesetter, preparatory to its dealership contract, revealed that the closest contact Pacesetter or any of its personnel had had with the installation of swimming pools was the fact that the husband of one of Pacesetter’s officers was a previous Spartan dealer, but that she possessed no knowledge of the business and that her husband had no connection with Pacesetter. Moreover, Spartan’s investigation of Pacesetter was oriented totally toward the financial status of its prospective dealer with no emphasis on its construction experience or expertise.

Furthermore, the “with the purpose of injuring the buyer” element was reasonably inferable from the total circumstances of this case. Although Spartan’s staff includes a construction engineer (technical ad-visor), who was familiar with installation problems in Mobile, it made no effect to instruct or assist Pacesetter in dealing with the problems here encountered until after the fact of Pacesetter’s faulty installation. Given Spartan’s representation of a material fact with knowledge of its falsity, which was acted upon by the Royals to their damage, these circumstances authorized the jury to infer Spartan’s intent to deceive.

The Court of Civil Appeals, commenting upon § 6-5-101, Code of Alabama 1975, in Royal Chevrolet Co. v. Kirkwood, 373 So.2d 858, 861 (Ala.1979), correctly observed that punitive damages, in the jury’s discretion, may be awarded “if there is evidence from which [it] can conclude that the fraud was malicious, oppressive or gross and the representations were made intentionally and with knowledge of their falsity.” See, also, Randell v. Banzhoff, 375 So.2d 445 (Ala.1979), in which this Court stated, “[I]f the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly,” quoting from Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

We have carefully reviewed each of the remaining contentions of the parties, including the Plaintiffs’ motion to reinstate the jury verdict (reduced on order of remit-titur), and we find no basis for disturbing the judgment below.

AFFIRMED.

MADDOX, SHORES, EMBRY and BEATTY, JJ., concur.


author: BEATTY, Justice.

text:
    Ernest C. LOCKHART v. Robert William ROBBINS.
    79-276.
    Supreme Court of Alabama.
    July 25, 1980.
    E. Ray Large of Large & Donovan, Birmingham, for appellant.

      William N. Clark of Redden, Mills & Clark, Birmingham, for appellee.
   BEATTY, Justice.

The defendant, Ernest C. Lockhart, appeals from a judgment adverse to him in a declaratory judgment action brought by Robert W. Robbins. We affirm.

Robbins, Lockhart and William D. Hayes were partners in a business operated as R. L. & H. Septic Tank Company. In March, 1979 Robbins brought this suit seeking an injunction against the other partners, an accounting between the partners, and a determination of the rights of the partners under their partnership agreement. Following an ore tenus hearing the trial court ordered the partnership dissolved and appointed a special master to conduct an accounting.

The only question presented for review arises from the report of this special master. The defendant questions the propriety of certain evidence which the master received and considered in arriving at the respective liabilities of the partners. After he had conducted hearings during which oral testimony and documentary evidence were received, the master filed his report. Lockhart filed certain objections to the report. These were overruled by the trial court, whose final judgment accepted the report in toto. Lockhart’s motion for a new trial was denied and he appealed.

In his report the special master expressly stated that the parties did not desire a court reporter or a transcription of the testimony. Accordingly, no transcript of the evidence exists. Furthermore, the defendant has not sought to avail himself of the remedial provisions of Rule 10(d) or (e), ARAP (dealing with the rights of parties to prepare statements of the evidence). The defendant, on the other hand, bases his objection on the contents of a “summary” of the testimony prepared by the master containing “pertinent and material” evidence of the witnesses, but which obviously did not contain all of the evidence before him. In that connection we note also that upon the hearing conducted by the trial court on the objections to the master’s report, the trial court heard the special master’s testimony, the statements and objections of counsel, and considered the entire report as well. Some of this evidence (none of it having been recorded) may have influenced the decision of the trial court in its own findings. The principle is well established that this Court will not disturb factual findings and conclusions of the trial court when it affirmatively appears that there was evidence before the trial court which is not in the record on appeal. Smith v. Haynes, Ala., 364 So.2d 1168 (1978); Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971). In this case that principle applies through the special master’s role under the powers granted him, as well as to the findings made by the trial court itself. See Rule 53(e), ARCP; cf. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962).

For the purposes of this appeal apparently the defendant has considered that the special master’s “summary” equated a transcription of the evidence. Although we cannot agree with that position, as explained above, in an excess of caution we have examined the defendant’s objection. It deals with the reception into evidence of testimony of a certified public accountant concerning responses he received from letters of inquiry he directed to customers of R. L. & H., and exhibits on that subject, in order to establish the gross receipts of the partnership. The master also found as a fact that the defendant himself had later introduced evidence detailing the same facts and circumstances contained in the evidence objected to earlier, and he concluded that the defendant had waived his objection. Because the trial court adopted the master’s report, his action was tantamount to the same ruling, which we deem correct. Cf. Bailey v. Tennessee Coal, Iron & Railroad Company, 261 Ala. 526, 75 So.2d 117 (1954); McElroy, Alabama Evidence, 3rd ed. § 426.01(20).

Under this state of the record we cannot conclude that the judgment of the trial court refusing to grant a new trial was plainly erroneous and unjust. Nix v. Wells, Ala., 355 So.2d 337 (1978). Therefore, the trial court’s order denying the motion for a new trial cannot be reversed.

Let the judgment be affirmed.

AFFIRMED.

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


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    STATE of Alabama v. Dempsey Lee WILLIAMS et al.
    79-326.
    Supreme Court of Alabama.
    July 25, 1980.
    J. G. Speake, of Speake, Speake & Reich, Moulton, for appellant.
    Kenneth Shelton, Decatur, for appellees.
   JONES, Justice.

This is a condemnation case in which the State acquired 7.2 acres from a 48-acre tract on which the landowner lived and operated a farm. Because of our decision to reverse and remand, the issue presented will be discussed more or less abstractly. The landowner was permitted to testify over proper objection, that, because of a pre-existing lung condition, he would be forced to leave his home due to the increased fumes caused by the diesel-powered truck traffic upon the newly constructed road. We hold that this testimony was inadmissible as going to an element of personal injury and not to mere conditions of increased traffic which may be an element affecting the before and after valuation of the property.

The general rule is stated in Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 177 So. 332 (1937):

“We think the proper rule is, that just compensation must be made by [the condemnor] when, by the construction or enlargement of ‘its’ works, highways, or improvements, there will be occasioned some direct physical disturbance of a right, either public or private, which the owner enjoys in connection with his property, and which gives it an additional value, and that by reason of such disturbance he has sustained some special damage with respect to his property in excess of that sustained by the general public.”

While we find no Alabama case directly in point, nor has one been cited by counsel, it naturally flows from the general rule that damages going to recovery for personal injury are impermissible in an eminent domain setting. The object of the taking is the real property; and, thus, evidence of damages is limited to those factors that reasonably and directly affect market value of the parcel taken, with due regard for the damage or enhancement in value of any remaining parcel. See, Alabama Pattern Jury Instructions 14.16 at 228.

This is not to say that evidence of change of access, flow of traffic, noise, fumes, and like elements of damage may not be admissible under any condemnation circumstances. Such special damages may be considered where shown to reduce or interfere with the usefulness of the land; are unique to the claimant (i. e., not common to other landowners generally); are not purely conjectural, or speculative; and where the jury is properly instructed not to recognize such factors as special items of compensation but as elements for their consideration in arriving at the difference between the “before” and “after” valuation in the calculation of severance damages. State v. Moore, 382 So.2d 543 (Ala.1980); Mississippi State Highway Commission v. Colonial Inn, Inc., 149 So.2d 851 (1963). See, also, Selected Studies in Highway Law, V. I, pp. 70-71.

In the instant case, it is clear from the tenor of the questions asked by con-demnee’s counsel and the answers thereto that the evidence sought thereby went to the proof of injury to condemnee of a personal nature, and not to those permissible elements for appropriate consideration by the jury in assessing damages for the taking of the property in question.

REVERSED AND REMANDED.

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


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    Fred D. WILLS and Diane C. Wills v. Harrelson L. BLACKWELL, David Ross Blackwell and Wanda Carol Blackwell.
    No. 79-362.
    Supreme Court of Alabama.
    July 25, 1980.

      D. C. Martinson, of Martinson & Beason, Huntsville, for appellants.
    Joe B. Smith, Huntsville, for appellees.
   BEATTY, Justice.

This appeal is from a final judgment establishing the true and correct boundary line between plaintiffs’ and defendants’ land. We affirm.

This dispute arose when plaintiffs Fred and Diane Wills discovered that a survey, performed in August of 1976 by Gilbert Engineering Company, revealed that a fence constructed between the contiguous tracts of real estate owned by plaintiffs and defendants was not on the boundary line indicated by their respective deeds of conveyance. Plaintiffs filed suit against defendants Harrelson Blackwell, David Blackwell, and Wanda Blackwell, seeking to establish the common boundary line as described in the deeds and Gilbert survey. The trial court, however, found the true and correct common boundary line to be the line described in an earlier survey taken in 1961 by G. W. Jones & Sons.

The single dispositive issue presented on this appeal is whether the findings made by the trial court were clearly erroneous or manifestly unjust. A court may not, of course, arbitrarily choose a boundary line between two parcels of property. Vasko v. Jardine, Ala., 374 So.2d 868, 870 (1979). In the case at bar, however, we do not find that the court fixed the boundary line based on speculations, as plaintiffs claim. Although the trial judge did not set forth his reasons for choosing the Jones survey as the basis for the boundary line, his findings are well supported by the record on this appeal.

George Gillespie was the original common owner of all the real estate owned by plaintiffs and defendants. He sold the property defendants now claim to defendant Harrel-son Blackwell in 1961. As a condition to purchasing the property, Blackwell required that a survey first be performed. Gillespie employed the Jones firm to make the survey upon which the trial court predicated the boundaries. After the sale, by using the survey and pins established by Jones, Gillespie worked with Blackwell in erecting the fence that plaintiffs allege encroach upon their land. Seventeen years later, plaintiffs took title to their property from a successor of Gillespie.

The trial judge necessarily must have considered the fact that Blackwell and Gillespie were coterminous owners of all the land in question for more than ten years. Blackwell and Gillespie apparently recognized the fence as “the line” during that period of time, despite plaintiffs’ argument that the date on Blackwell’s deed was two days earlier than the date on the Jones survey and, hence, the deed should control. Evidence indicates, however, that Jones surveyed the property before Gillespie conveyed it to Blackwell.

Even assuming arguendo that Gillespie intended the deed to control the boundary line or that the Jones survey was inaccurate, the fence could still be recognized as the boundary line based on adverse possession. In Alabama, the rule of adverse possession is that “if a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line.” (Emphasis added.) Barnett v. Mills, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971).

In summary, the trial judge specifically established the boundary line between the tracts of land after hearing all the evidence ore tenus. The record reflects credible evidence supporting the trial court’s findings as to the location of the boundary. Thus, the trial court, will be affirmed unless there is a preponderance of the evidence illustrating that the judgment is clearly erroneous and manifestly unjust. McKnight v. Price Farms, Inc., Ala., 382 So.2d 560, 562 (1980). After review of the transcript, exhibits, and briefs of the parties, we do not find such overwhelming evidence. The judgment is affirmed.

AFFIRMED.

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


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    Ex parte Jimmy MANESS and Wanda Maness. In re Jimmy MANESS and Wanda Maness v. WEOGUFKA VOLUNTEER FIRE DEPARTMENT, a corporation, et al.
    79-536.
    Supreme Court of Alabama.
    July 25, 1980.

      James M. Sizemore, Jr., Sylacauga, for petitioner.
    William W. Goodrich for Gaines, Cleckler, Robbins & Goodrich, Talladega, W. Lee Pittman for London, Yancey, Clark & Allen, Birmingham, for respondents.
   SHORES, Justice.

Petitioners Jimmy and Wanda Maness filed suit in the Circuit Court of Talladega County against Weogufka Volunteer Fire Department, a domestic corporation not doing business in Talladega County; Steve Dyess, Harold G. Moore, and C. B. Culver, all residents of Coosa County; and James Jacks, a resident of Talladega County at the time of the commencement of suit. Jacks subsequently received a summary judgment in his favor, and the remaining defendants filed a motion for change of venue to Coosa County. The motion was granted. Petitioners then brought this petition seeking a writ of mandamus to be directed to the circuit judge in Talladega County ordering that the transfer be set aside or a writ of prohibition preventing the transfer to Coosa County. For the reasons discussed herein, we grant the petition for writ of mandamus.

Under ARCP 82(b)(1)(A), actions against resident individuals of the State of Alabama must be brought in the county where “any material defendant resides at the commencement of the action.” Under ARCP 82(c), “[wjhenever an action has been commenced in a proper county, additional claims and parties may be joined . as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.” Rule 82(d) provides for transfer of actions where venue is improper, but the Committee Comments make it clear that this applies “only where the original venue was not proper.” The Comments to subdivision (c) state that “[t]he correct principle seems to be that once venue is properly laid, other claims and parties may be joined as ancillary to the original action regardless of venue requirements.”

Thus, a transfer is not authorized under the Rules unless venue was incorrect at the outset of the suit. If venue was proper as to defendant Jacks, a resident of Talladega County, then it would be proper as to the other defendants under the ancillary venue provisions of Rule 82. Respondents, however, contend that Jacks was not a “material defendant,” in the language of the Rule, but merely a nominal party joined for the purpose of defeating the operation of the venue statute. They contend that this is established by the trial court’s granting of Jacks’s motion for summary judgment. This is a misinterpretation of the term “material defendant.” For the purpose of establishing venue, a “material defendant” is one whose position is antagonistic to that of the plaintiffs because relief is sought against him. Alabama Youth Services Board v. Ellis, 350 So.2d 405 (Ala.1977).

Where there are several defendants and the residence of one is made determinative of the venue of the action, the complaint must state a cause of action against the said defendant; it must show that the resident defendant has an interest antagonistic to the plaintiff and the resident defendant must be a party against whom relief is sought. Ex parte Morton, 261 Ala. 581, 75 So.2d 500. The resident defendant must be a real and bona fide defendant whose interest in the result of the action is adverse to that of the plaintiff with respect to the cause of action against the other defendant. 56 Am.Jur., Venue, § 30; 92 C.J.S. Venue § 96.

Copeland v. Loeb, 269 Ala. 295, 297, 112 So.2d 475 (1959).

In this case, petitioners have filed a valid complaint stating a cause of action against Jacks; their interests are certainly antagonistic to his, whether or not they were able to produce sufficient evidence to prove their claim. There is no requirement that a plaintiff be successful in his quest for relief against a defendant for that defendant to be “material.” Thus, the dismissal from a lawsuit of a defendant as to whom venue was originally proper will not render venue improper as to the remaining defendants, who were brought in under the ancillary venue provision of Rule 82(c).

Further, we hold that the question of venue was not timely raised by respondents. Under ARCP 12(h)(1), improper venue is waived “if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.” Here, defendants’ motion for change of venue was not made until ten months after their pleadings. It was, therefore, waived.

The petition for writ of mandamus is granted.

WRIT GRANTED.

JONES and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur in the result.


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    Elijah Gene FRANKLIN, Jr. v. Norma Jewel WILSON and Michael Wilson, Minors, who come through their guardian ad litem, Boyd Whigham.
    79-544.
    Supreme Court of Alabama.
    July 25, 1980.
    E. H. Graves, Jr., Eufaula, for appellant.
    Boyd Whigham, Clayton, for appellees.
   SHORES, Justice.

Plaintiff/appellant (Franklin) filed his complaint on December 3, 1977, seeking to recover certain real property to which he claimed legal title by virtue of a deed.

The defendant (Rosa Mae Wilson) filed an answer with a general denial and alleged affirmatively that she had possessed the property since November, 1965, built a house on it, and held the property actually and openly “in opposition to all the world.”

Mrs. Wilson died during the pendency of this suit and her two minor children were substituted as defendants, who adopted the answer theretofore filed by their mother. Affidavits submitted in opposition to the plaintiff’s motion for summary judgment state affirmatively that Wilson had claimed the property as her own since she went into possession and built the house in 1965.

The controversy arose because the house was built upon the plaintiff’s lot instead of on Wilson’s adjacent lot.

At the conclusion of the evidence, the trial judge directed a verdict in favor of the plaintiff on the defendant’s claim of prescription. He also determined that the defendant could not, by virtue of paying taxes, prevail under the ten-year statute. He then instructed the jury, “I also give you a directed verdict telling you as a matter of law: From the evidence presented they have held it for three years adversely as the law requires,” and directed the jury to assess the value of the improvements made by Mrs. Wilson under Code 1975, § 6-6-286, which provides:

(a) When an action is commenced to recover land or the possession thereof, the defendant may, at any time before the trial, suggest upon the record that he, and those whose possession he has, have, for three years next before the commencement of the action, had adverse possession thereof, which must be construed to mean the same character of possession as will put in operation the statute of limitations. In such case, if the jury finds for the plaintiff, it must also ascertain by its verdict whether such suggestion is true or false. If the jury finds it to be false, it must return a verdict for the damages as in ordinary cases. If the jury finds it to be true, it must assess the value, at the time of trial, of the permanent improvements made by the defendant, or those whose estate he has, and also ascertain by its verdict the value of the lands and of the use and occupation thereof, not including the increased value by reason of such improvements.
(b) If the value of the use and occupation as assessed exceeds the value of the permanent improvements made, judgment must be entered against the defendant for the excess. If the value of the improvements exceeds the value of the use and occupation, no writ of possession shall issue for one year after the entry of the judgment unless the plaintiff or his legal representative pays the defendant, or deposits with the clerk for him, the excess of the assessed value of the improvements over the value of the use and occupation. If the plaintiff or his legal representative neglects for the term of one year to pay such excess, arid the defendant or his legal representative within three months after the expiration of the year pays to the plaintiff, or to the clerk for him, the value of the land and of the use and occupation thereof as assessed by the jury, the plaintiff is forever barred from his writ of possession and from commencing any action whatever against the defendant, his heirs or assigns to recover such land or the possession thereof. (Code 1852, §§ 2201-2204; Code 1867, §§ 2602-2605; Code 1876, §§ 2951-2954; Code 1886, §§ 2702-2705; Code 1896, §§ 1536-1539; Code 1907, §§ 3846-3849; Code 1923, §§ 7460-7463; Code 1940, T. 7, §§ 945-948.) [Emphasis supplied.]

The jury then returned a verdict which fixed the value of the house at $30,000.00, the value of the land at $250.00, and its rental value at $20.00 per year.

When the court denied his motion for new trial, plaintiff appealed.

He asserts that the defendant did not meet the requirements of § 6-6-286 in that she did not “suggest upon the record that [she] . . . [has] ... for three years . . . had adverse possession thereof . . . The plaintiff simply argues that nothing appears from the record to show that the defendants ever suggested on the record before the trial that they were holding by adverse possession, and the jury must decide whether the suggestion is true or false. He argues that this means that the defendant must file the suggestion in the nature of a plea.

It is quite true that before a defendant may invoke § 6-6-286, he must “suggest upon the record” that he claims the land sued for by adverse possession, Headley v. McCall, 205 Ala. 108, 87 So. 355 (1920), Singleton v. Jackson, 177 Ala. 123, 59 So. 45 (1923), but no particular form is required. Here, the suggestion was made in the first pleading filed by the defendant. By answer she asserted that she had held the land adversely to the plaintiff and all the world since 1965. We think this is a suggestion “upon the record” sufficient to comply with the statute. Inasmuch as that is so, and the facts of adverse possession were undisputed, it was not error to direct a verdict in favor of the defendants on this issue.

The judgment of the trial court is, therefore, affirmed.

AFFIRMED.

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