author: ADAMS, Justice.

text:
    RIVERBEND PARTNERSHIP v. CITY OF MOBILE, a Body Corporate and Politic; The Board of Adjustment of the City of Mobile; and the Planning Commission of the City of Mobile.
    82-1137.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    William M. Lyon, Jr. of McFadden, Riley & Parker, Mobile, for appellant.
    William R. Lauten, Mobile, for appellee.
   ADAMS, Justice.

Riverbend Partnership appeals from the final determination in a declaratory judgment action in which Riverbend sought to have a City of Mobile zoning ordinance declared invalid because it conflicted with the State statute authorizing zoning boards of adjustment. The Circuit Court of Mobile County held that the Mobile ordinance was constitutional and not in derogation of the State statute. We disagree and reverse.

The ease arose from these facts:

Appellant Riverbend owns an 8.26-acre parcel of land within the corporate limits of Mobile. The property is zoned by the city for single-family residences only. River-bend desires to build an apartment development on the land, which would require either a multi-family classification, or a variance allowing multi-family dwellings in spite of the existing zoning classification.

Riverbend initially filed an application for an amendment to the Mobile zoning ordinance in September of 1980. The Planning Commission recommended to the Board of Commissioners that the request be denied. The Commissioners subsequently took no action at all on the request, and, after 30 days, the application was denied by operation of law.

In December of 1980, Riverbend filed an application for a variance with the Board of Adjustment of Mobile. A variance would allow multi-family dwellings, while maintaining the original single-family zoning classification. The Board of Adjustment, however, denied Riverbend’s request for a variance in May of 1981.

Riverbend appealed the action of the Board of Adjustment by seeking a trial de novo in circuit court pursuant to § 11-52-81, Code of Alabama 1975. In that appeal, the City of Mobile set forth as an affirmative defense the fact that under Mobile’s zoning ordinance, the Board of Adjustment was not authorized to grant a variance to Riverbend.

Riverbend sought to challenge the validity of that zoning ordinance. Since the circuit court, in a de novo appeal, in effect sits as a Board of Adjustment, however, that court could not construe the validity of the ordinance authorizing the Mobile Board of Adjustment. Thus, Riverbend had to file a separate declaratory judgment action in order to challenge the constitutionality of the Mobile ordinance. In that second suit, the Circuit Court of Mobile County upheld the validity of the ordinance, and this appeal followed. The original trial de novo is still pending in circuit court, awaiting a determination of this matter. We need not discuss whether Riverbend is entitled to a variance in this case. The only issue to be decided is whether Mobile’s Ordinance 80-057, § 9, takes away the power of the Board of Adjustment in derogation of § 11-52-80, Code of Alabama 1975.

Mobile’s zoning ordinance recognizes that changes in zoning classifications may be necessary at times due to such things as changes in land conditions, industrial growth, and urban subdivision. Section 9 of the zoning ordinance authorizes amendments to the ordinance to allow such changes. Formerly, there were minimum acreage requirements for getting a tract of land rezoned for multi-family dwellings from an original single-family dwelling classification. The ordinance originally read as follows:

2. LIMITATIONS ON PROPOSED AMENDMENTS. All proposed amendments to this ordinance shall be subject to the following limitations:
a. Minimum Sizes for New Districts. No amendment changing the classification of an area shall be adopted unless the area meets the following requirements as to minimum size:
(1)R-2, R-3 [multi-family dwellings], R-B, B-3, B-4, l-l and 1-2 Districts. A proposed new R-2, R-3 [mul-ti-family dwellings], R-B, B-3, B-4,1-1 or 1-2 District shall contain at least four acres of gross area.

Mobile, Ala., Ordinance 80-057, § 8 (1967). Therefore, under the original unamended Mobile ordinance, an applicant such as Riv-erbend who sought a zoning reclassification from single-family dwelling status to multi-family dwelling status, had to have a tract of land of at least four acres. If the land did not measure four acres, a zoning change was not possible. The applicant had an alternative, however, in that he or she could seek a zoning variance from the Board of Adjustment.

Section 11-52-80, Code of Alabama 1975, authorizes, municipalities to provide such a “board of adjustment,” which

shall in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinance in harmony with its general purposes and interests and in accordance with general or specific rules [in the regulations and restrictions adopted pursuant to the authority of the statute].

§ ll-52-80(a), Code of Alabama 1975. The board of adjustment is given specific powers in the statute:

(d) The board of adjustment shall have the following powers:
(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto;
(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and
(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.

§ 11-52-80, Code of Alabama 1975. (Emphasis added.) Thus, if a landowner was prohibited by a zoning classification from desired construction or other land use, and if an application for rezoning had been denied by the city planning commission, the applicant could nevertheless seek relief by means of a variance from the board of adjustment. Unlike a zoning amendment, which in the case at hand would reclassify the tract of land for multi-family dwelling use, a variance would allow multi-family dwellings without rezoning. In effect, the variance excuses the land owner from the operation of the zoning ordinance.

Mobile has instituted such a board of adjustment. The ordinance which sets up the Mobile Board traces the language of the State enabling statute, but with some major additional language. The ordinance delineates the Board’s power to grant variances as follows:

4- Variances. To authorize, upon appeal in specific cases, such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to exceptional circumstances, literal enforcement of the provisions of this ordinance will result in unnecessary hardship. Variances shall be subject to such conditions and terms as may be fixed by the Board. No variance shall be authorized:
(a) Where the area of the property, the variance for which is sought, is sufficient to authorize the creation of a new district under the amendment procedures of this ordinance for the applicable use; [emphasis added].

Mobile, Ala., Ordinance 80-057, § 9 (1967). Mobile has thus created the Board of Adjustment, but has severely limited its power to grant variances. The ordinance clearly states that no variance can be granted by the Board if the tract of land in issue is large enough to be rezoned under the zoning amendment procedure aforementioned.

Thus, under the original rezoning procedure discussed supra, an applicant seeking a change from a single-family to a multifamily dwelling classification could seek only a variance and not a zoning amendment if the land in issue was less than four acres in size. On the other hand, if the land comprised four or more acres, the applicant could not seek a variance, but could only apply for a zoning change. By the language of the city ordinance addressing variances, the latter applicant could apparently not seek a variance even after being denied a rezoning request. This takes away the ability of the Board of Adjustment to act as an appeal board for Planning Commission denials. This anomalous result is contrary to the purpose of the State statute authorizing boards of adjustment.

Furthermore, in 1980, Mobile’s zoning ordinance was amended in regard to minimum acreage requirements for rezoning. This change causes further confusion. The rezoning or amendment provision, § 8 cited above, now reads as follows:

2. Sizes of New Districts. There are no minimum sizes for new districts created by amendment of this ordinance; provided, however, that the minimum sizes set out below shall serve as general guides. New districts of smaller size may be created where unusual conditions or circumstances justify them in the opinion of the Commission. [Emphasis added.]
a. R-2, R-S [multi-family dwellings], R-B, B-3, B-], H-B, 1-1 and 1-2 Districts. A proposed new R-2, R-3 [multi-family dwellings], R-B, B-3, B-4, H-B, I — 1, or 1-2 District should contain at least four acres of gross area;

Mobile, Ala., Ordinance 80-057, § 8 (1967). Under this revised provision, there is no longer a minimum acreage requirement on a tract of land for an applicant to seek a zoning change from single-family dwelling to multi-family dwelling. Whereas before, an applicant with a 3.9-acre tract of land seeking such a change could not ask the Planning Commission for a zoning amendment because a four-acre minimum was imposed, now such an applicant can seek a rezoning of the tract. The applicant does not need to go to the Board of Adjustment for a variance, because the Planning Commission will now review the request itself. The City, in effect, is saying that if multifamily housing is to be allowed in a case like this, the Planning Commission should grant a zoning amendment rather than allow the Board of Adjustment to “zone by variance.”

The change in Mobile’s ordinance doing away with minimum acreage requirements, however, has totally abrogated the Board of Adjustment’s power to grant variances. While the new provision makes it possible to rezone a tract of land of any size, it did not change the language of § 9, cited above. Therefore, it remains that a variance cannot be granted if the size of the tract of land in issue is large enough to form a new district under the amendment procedures of the ordinance. Since there is no longer a size requirement for rezoning (creating a new district), it follows that under the language of the ordinance, a variance can never be granted.

Mobile argues that its ordinance does not strip the Board of Adjustment of the power to grant variances. The City contends that while the ordinance insures that the Planning Commission now receives all rezoning requests first, if an application is denied, applicants can still appeal to the Board of Adjustment for a variance. The City states, and Riverbend in fact acknowledges, that such variances are presently granted by the Board. Notwithstanding the language of the zoning ordinance,- the City grants variances as if the Board of Adjustment had the powers enumerated in the State statute.

There is a problem which arises with this approach to the ordinance. While the Board of Adjustment sometimes will grant a requested variance, it will just as easily deny a requested variance if it deems that to be the proper action. If the applicant then appeals the denial to the circuit court, the City will defend by claiming that under the ordinance, the Board of Adjustment has no authority to grant a variance. In the instant case, Mobile used this argument as support for its motion to dismiss. The City in essence interprets the ordinance to allow Board of Adjustment variances when that is to the City’s advantage, and then claims the ordinance does not allow variances when that position is to its benefit. The City apparently seeks unfettered discretion in granting zoning amendments and variances.

Mobile has instituted a Board of Adjustment pursuant .to § 11-52-80, Code of Alabama 1975, and must operate the Board in accordance with that statute. In one case, this Court stated the following:

Since the board of adjustment is provided for in the ordinance, its powers stem directly from the statute and may not be circumscribed, altered or extended by the municipal governing body.

Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Mobile’s zoning ordinance purports to set up a Board of Adjustment, but the language authorizing the Board, construed together with the rezoning procedure language, denies the Board of Adjustment its most important power: the ability to grant variances. The language of the ordinance on its face circumscribes the State statute, and even if Mobile interprets the ordinance to allow variances anyway, this interpretation is discretionary and subject to uneven and unequal application, as discussed above.

When a municipal ordinance contravenes a state statute, the ordinance is invalid. Hall v. City of Tuscaloosa, 421 So.2d 1244 (Ala.1982). Section 9 of Mobile’s zoning ordinance is void because it contravenes and alters the intended purpose of § 11-52-80, Code of Alabama 1975. While the City is not bound to any particular course of action in remedying the ordinance, the simplest solution would be the elimination of any language which pre-eludes the granting of a variance when amendment procedures are applicable.

Based upon the foregoing, the judgment of the trial court is due to be, and the same hereby is, reversed, and the cause remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C.J., and JONES and BEAT-TY, JJ., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    FRANDER AND FRANDER, INC., a corp., and Theodore Day and Norma J. Day v. Dusty Lamar GRIFFEN and Ingrid K. Griffen, et al.
    82-1289.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      Robert P. Lane of Phillips & Funder-burk, Phenix City, for appellants.
    Robert T. Meadows III of Harper & Meadows, Auburn, for appellees.
    J. Fairley McDonald III of Jones, Murray, Stewart & Yarbrough, Montgomery, for amicus curiae The Alabama Manufactured Housing Institute.
   ADAMS, Justice.

This appeal is from the Lee County Circuit Court’s order enjoining appellants, Norma and Theodore Day, from failing to remove their home from Westwood Subdivision.

The facts of this case are as follows:

Westwood Subdivision is located in Lee County, Alabama. It was developed by West Phenix Land Company, Inc. (West Phenix). The plot thereof, together with restrictive covenants, was filed in the Office of the Judge of Probate of Lee County in May 1976.

Prior to the placing of the home in West-wood that is the subject of this action, all houses in the subdivision were “conventional stick-built” structures on slab foundations.

On or about April 21, 1982, appellant Frander and Frander, Inc., with the knowledge and consent of West Phenix and Norma and Theodore Day (also appellants), began assembling a premanufactured home on the Days’ lot in Westwood. The home was ready for occupancy within two weeks. However, on or about May 6, 1982, the residents of Westwood filed a complaint seeking declaratory and injunctive relief, or, in the alternative, damages against Frander and Frander, Inc., and West Phe-nix.

Two of the Westwood residents claimed that each had purchased a house and lot in the subdivision in reliance upon their realtor’s representations that West Phenix would not permit the construction of anything other than conventional stick-built houses therein. The developer, Howard Jefferson, did not remember making such statements. On the contrary, Kenneth Funderburk, a partner of Jefferson’s in West Phenix, testified that he and engineer Harry Ennis drafted the restrictive covenants in question, and that he was careful in what was said and not said in the covenants concerning modular homes like the Days’.

At the conclusion of the trial, during which extensive testimony was presented, the trial court concluded that the structure erected by the Days violated the restrictive covenants of Westwood Subdivision, and ordered the Days to remove the home within ninety days, with Frander and Frander’s assistance. After the trial court denied their motion for a new trial, the Days and Frander and Frander, Inc. filed this appeal.

The two issues presented for our review are:

(1) Whether First Federal Savings and Loan Association of Russell County (First Federal), the holder of a mortgage on the Days’ home and lot in Westwood Subdivision, was an indispensable party to the action, and

(2) Whether the structure erected by the Days violates the restrictive covenants of Westwood Subdivision, and, in particular, the covenant which reads:

No structure of a temporary character, trailer, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.

After reviewing the record, we are of the opinion that the judgment is not supported by the evidence; therefore, that judgment is due to be reversed.

I

Appellants contend that the failure of the Westwood residents to add mortgagee First Federal renders the trial court’s order void, because First Federal is a proper, necessary, and indispensable party to this action. Appellees respond that the mortgagee may be labeled a proper or necessary party, but that appellants have failed to show that it is an indispensable party. We agree with the appellees.

In his treatise Alabama Practice, Rules of Civil Procedure (1973), Champ Lyons addresses the difference between necessary parties and indispensable parties:

“Indispensable parties” are persons who not only have an interest in the controversy but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Bennie v. Pastor, C.A. N.M.1968, 393 F.2d 1 [10th Cir.1968].
“Necessary parties” are those affected by the judgment and against which in fact it will operate. West Coast Exploration Co. v. McKay, 1954, 93 U.S.App. D.C. 307, 213 F.2d 582, certiorari denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123.

1 Lyons, Alabama Practice, at 389.

We are unable to see how First Federal could be called an indispensable party in this instance. Even though not a party to the action, First Federal’s interests have been protected by the mortgagors, Norma and Theodore Day, since they are seeking the same result as First Federal. This would not make First Federal an indispensable party, but rather, at most, a necessary party, and thus an equitable judgment could be entered affecting First Federal. If, however, First Federal decides that its interests have not been adequately represented by the Days, it has the option of asserting any claims it may have in an independent action. See McClenney & Son v. Reimer, 435 So.2d 50 (Ala.1983). This being the case, we reject appellants’ contention that the order is void for failure to join an indispensable party, and proceed to a discussion of the main issue for our review on appeal.

II

At the outset, we wish to point out that restrictive covenants are not favorites of the law, and will be construed strictly by this Court. In Hines v. Heisler, 439 So.2d 4 (Ala.1983), we stated:

We are not unmindful of the well settled rule that in construing restrictive covenants, all doubts must be resolved against the restriction and in favor of free and unrestricted use of property.

439 So.2d at 5. Therefore, any doubt should be resolved in favor of allowing the Days to keep their home in Westwood Subdivision.

Although the trial court made no specific findings of fact, it apparently based its order on a violation of restrictive covenant “8. Temporary Structures.” More specifically, the court must have found that the Days’ home was either a “structure of a temporary character,” or a “trailer.”

The facts of this case, however, indicate that the Days’ home was not only in compliance with all of the covenants concerning Westwood Subdivision, but Federal housing standards as well. Griffen’s attorney stipulated that the house met the cost and size requirements of the covenants, thus leaving only the quality of materials and workmanship to be challenged.

The home meets requirements of the Federal Housing Administration (F.H.A.), and its walls are made up of two-by-fours, rather than the two-by-twos which are usually found in houses of lesser quality. The roofing is supported by roof rafters meeting requirements of the Department of Housing and Urban Development (H.U.D.). The exterior walls and flooring have insulation factors in excess of the Federally established minimum. The home was not designed to rest upon wheels and axles, but rather was anchored to the ground by “minute-man” anchors meeting requirements of the Veterans Administration (V.A.), and F.H.A. Howard Pennington, a home builder for over fifty years, testified that the quality of workmanship and materials in the Days’ home was the same as, if not better than, any conventional slab-built home he had seen. He testified that the Days’ pre-manufactured home was well constructed, well insulated, and was equal in value to pier-built homes.

The testimony at trial also showed that the pre-manufactured home was aesthetically in line with the other homes in the subdivision, and, having viewed the pictures of the houses in the subdivision, we agree with this conclusion. Kenneth Fun-derburk, one of the draftsmen of the restrictive covenants, personally inspected the Days’ home and its specifications, and testified that he could find no reason not to allow the Days’ home in Westwood Subdivision.

Funderburk’s testimony is important for another reason. Where the language of the covenants is found to be ambiguous, the intent of the developer is to be given great weight by the court in discerning whether the home should be allowed to remain in the subdivision. Fun-derburk testified that he drafted the restrictive covenants with homes like the Days’ in mind, and was careful what was said and not said in the covenants. This is evidenced by the use of the word “placed” in the covenants. In the cases cited by appellees for support, the covenants state that no building shall be “erected” on a lot, whereas here the Westwood restrictive covenants read: "... no building shall be ‘erected or placed’ on a lot....” This phrase “or placed” indicates that Funder-burk was contemplating allowing pre-man-ufactured homes in Westwood Subdivision, as those are the houses that are “placed,” rather than “erected.”

The type of financing also discredits appellees’ contention that the pre-manufac-tured home is either a “structure of a temporary character” or a “trailer.” First Federal inspected the home and agreed to grant a 30-year loan under the Alabama Housing Finance Authority Bond Program. The Days bought the house from Frander and Frander, Inc., and the lot from West Phenix, and at the same time executed the mortgage to First Federal. The mortgage form used by First Federal is commonly known as a “Fannie Mae 1 to 4,” and is the type used by savings and loan associations to finance homes, because the one document secures the land, building, and fixtures. The Alabama Housing Finance Authority must have concluded that the pre-manufactured home was of good quality and permanent, or else it would not have approved a 30-year mortgage on the home.

In an attempt to contradict appellants’ evidence, appellees offer the testimony of some Westwood residents and two realtors that the home is temporary because it can be moved. Appellants refute this testimony by showing that it would be no easier to move the Days’ home once it was anchored than it would be to move most conventional stick-built homes. In addition, Joseph Frander, of Frander and Frander, Inc., testified that the Days’ home is, as are all homes of this type, under a warranty which covers materials, labor, and any defects in materials or labor, for a period of one year and ten days. Frander also testified that this warranty automatically terminates if the home is relocated after being permanently placed on the lot.

By showing that this house is a permanent, well-built structure, and therefore not temporary, appellants have necessarily shown that it is also not a trailer. By definition, a trailer is something designed to be moved, and moved rather easily, and the evidence overwhelmingly shows that the Days’ home was not designed to be moved once placed on the lot. In fact, the evidence adduced at trial shows that the method to use to move the Days’ home now would be identical to that used in moving conventional-type homes.

After reviewing the evidence before the trial court, we cannot see how the Days’ home could be classified as either a “structure of a temporary character” or as a “trailer.” Therefore, for all of the above-stated reasons, the judgment of the trial court is reversed, and the cause remanded to the trial court for an order consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, AD MON and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    CARNIVAL CRUISE LINES, INC. v. Thomas H. SNODDY.
    83-10.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      Duncan Y. Manley of Rives & Peterson, Birmingham, for appellant.
    J. Gusty Yearout and William P. Traylor of Lorant, Harris & Yearout, Birmingham, for appellee.
   PER CURIAM.

This is an appeal by Carnival Cruise Lines from a judgment in an action brought by Thomas H. Snoddy for injuries he sustained while a passenger aboard a cruise ship owned by Carnival Cruise Lines.

Snoddy, a high school mathematics teacher, was a chaperone for a group of high school students aboard the cruise ship TSS Mardi Gras. Snoddy’s injury was the result of an early morning fall on March 15, 1978, from the upper bunk in his cabin, apparently while he was still asleep. As a result of his fall, Snoddy suffered an open fracture of the left leg. He was treated aboard the ship and subsequently transported to a San Juan hospital and then to Birmingham for additional medical treatment.

Medical testimony at trial indicated that Snoddy suffered permanent physical impairment. Snoddy’s physician prepared an impairment evaluation based upon the range of motion measurements of Snoddy’s leg and testified that the range of motion limitations in the left knee and ankle, combined with the discrepancy in leg lengths due to the accident, resulted in a 33% impairment to Snoddy’s lower extremity, or a 13-15% permanent impairment to his body' as a whole. Snoddy continues to experience intermittent pain, and he limps when walking.

As a result of his hospitalization and rehabilitation, Snoddy missed eleven weeks of school at Berry High School and two terms of summer school at Jefferson State Junior College. He returned to his teaching duties on July 16, 1978, and was reinstated at his previous salary level. He has received an average annual raise of 7.2% since that time. Snoddy’s duties as a mathematics teacher entail his standing on his feet and using the blackboard for much of his seven-hour work day. Since returning to work, Snoddy has not missed any work days due to his injuries.

The trial court instructed the jury as to various elements of tort liability and damages with respect to Snoddy’s claims against Carnival Cruise, including “loss of earnings,” but not including the element of “loss of future earning capacity.” The jury returned a general verdict for Snoddy, awarding him damages of $35,000. Carnival Cruise’s motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial were denied.

Appellant now claims error in the trial court’s 1) admitting the testimony and exhibits of plaintiff’s expert, and 2) denying appellant’s post-trial motions.

I. RULE OF EVIDENCE ISSUE

In a personal injury action, a plaintiff is entitled to recover both the value of the work time lost prior to trial (“lost earnings”) and the value of the reduction in his ability to earn a living (“impairment of earning capacity”). D. Corley and C. Gamble, Alabama Law of Damages § 36-4 (1982); see, also, 22 Am.Jur.2d Damages § 90 (1965). In order, however, for a jury to make a determination as to the compensation due an injured plaintiff for a reduction in his ability to work, there must be evidence introduced at trial from which the jury may reasonably draw an inference as to the existence of an impaired capacity to earn, resulting from the injuries complained of. That is to say, there must be evidence from which the factfinder may reasonably translate the evidence of plaintiff’s physical disability into a finding of plaintiff’s inability to perform his work in the same manner as before sustaining his injuries.

On' appeal, Carnival Cruise contends that the trial court- erred in admitting, over objections, the testimony of Snoddy’s economics expert, the overall purpose of which was to prove the present monetary value of plaintiff’s projected loss of earning capacity. Snoddy did not offer, through this witness, an expert opinion as to any loss of earning capacity; rather, the 13% impairment estimate, testified to by Snoddy’s doctor, was furnished, as one of the component elements of a hypothetical question from which the present value of such earnings could be calculated.

The continuing objections of counsel for Carnival Cruise to this proffered expert testimony led to an in camera discussion. We set out pertinent portions of that colloquy:

“THE COURT: ... Is it going to be your position that there is some demonstrated loss of earning capacity involved?
“MR. YEAROUT [for the plaintiff]: ... I’m going to ask her to measure what amount of dollars it would take to give him 13 percent of any future earnings that he might have lost as a result of this accident....
“MR. MANLEY [for the defendant]: Your Honor, we would object to that offer_ I don’t think there is any testimony that would indicate that just because he has a 13 percent permanent disability that that translates into a 13 percent loss of income.
“MR. YEAROUT: That’s not what we are offering it for. He is 13 percent disabled.
“THE COURT: ... [U]nless there is some testimony to show that he is not going to be able to continue his present employment. I don’t know of any testimony along those lines.
“MR. YEAROUT: But the testimony is that he is 13 percent disabled.
“THE COURT: The testimony is not that he is not able to work. He has [an impairment] of 13 percent of the body as a whole.... But there is no testimony that he is not going to be able to continue his present employment. And, consequently, I think your damages ... do not go to loss of earnings, insofar as his disability.
“MR. MANLEY: [H]e may not lose any earnings.
“THE COURT: That’s right.... What concerns me is I don’t think that saying that you have X percentage of disability to either a member of the body as a whole can be translated into saying that you have X percent loss of earning capacity.
“MR. MANLEY: We object to the offer on the grounds that there has been no testimony in this case that Mr. Snod-dy’s earning capacity has been affected by this accident at all. The only testimony is that he has a permanent impairment, and there is no testimony that connects the impairment to any decrease in his earning capacity.”

In spite of his misgivings, the trial judge conditionally permitted plaintiff’s expert to explain, by using a forecasting tool known as “trend analysis,” that she had projected Snoddy’s future earnings based upon an analysis of his earnings history, utilizing the 13% physiological impairment, as testified to by Snoddy’s doctor.

In evaluating whether expert evidence is required for submission of the loss-of-earning-capacity issue to the jury, or whether the nature and extent of the injury, when considered along with the totality of the circumstances, furnish a reasonable inference of such a loss, we need to delineate between the two situations conceptually. The loss of a hand may have no effect on the capacity of a theoretical physicist to earn a living, while the same injury may have devastating economic consequences for a neurosurgeon, a concert pianist, or a construction worker. The degree of physical impairment is the same in each case, but the resulting impairment of earning capacity is quite different for each worker.

This is not to imply that compensation is precluded for the value of the hand per se; other categories of damages, such as pain and suffering and disfigurement, are compensable even if there is no diminished capacity to earn a living. Alabama Great Southern R. Co. v. Flinn, 199 Ala. 177, 74 So. 246 (1917). These damages will perhaps be theoretically similar for each worker, but the element of damages known as impairment of earning capacity is conceptually distinct and will vary with the circumstances and with the person. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

It is this element of individual variation that precludes the universal inference of diminished earning capacity merely from evidence of physical disability, and nothing more. A jury, left to flounder without some evidence of a causal connection between the physical impairment and the reduced earning capacity, and without an evidentiary predicate upon which to assess the actual degree of impairment in earning capacity, engages in pure speculation and conjecture. Unlike an assessment of damages for pain and suffering or mental anguish, the correlation of physical disability with impaired earning capacity cannot be said, in every case, to fall within the purview of the average person’s common understanding and experience. Except in extreme and obvious cases, some direct evidence of the existence and extent of impaired earning capacity is necessary as the foundation upon which the jury may make an informed assessment of damages. See Norwood Hospital v. Jones, 214 Ala. 314, 107 So. 858 (1926); United States Cast Iron Pipe and Foundry Co. v. Eastham, 237 F. 185 (5th Cir.1916) (applying Alabama law); Alabama Pattern Jury Instructions: Civil, Damages §§ 11.10, 11.11.

The line between those cases requiring expert testimony to correlate physical impairment with impaired capacity to earn and those falling within the common knowledge and experience of lay persons is a fine one, and must be drawn on a case-by-case basis. But we are not without precedential guidance in our application of the test.

Essentially, we are dealing here with a rule of evidence, a rule not materially different from the rule that obtains in other contexts involving expert evidence vis-a-vis lay testimony. Where the fact sought to be proved is fairly and reasonably inferable from competent evidence adduced at trial, and that inference lies within the common knowledge of the factfinder, then that evidence is admissible without the aid of expert testimony. For cases that demonstrate the application of this rule, see Southern Railway Co. v. Stallings, 268 Ala. 463, 107 So.2d 873 (1958); Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1928); Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403 (1927).

A rule that would permit the inference of diminished earning capacity from the fact of permanent injury alone is far too narrow, for surely “a person may suffer some permanent injury which would not permanently affect his earning capacity.” Birmingham Electric Co. v. Cleveland, supra, 216 Ala. at 459, 113 So. at 405. For a ease not permitting the jury to consider loss of earning .capacity as an element of damages, based merely on the nature and extent of the injury, see Norwood Hospital v. Jones, supra, 214 Ala. at 316, 107 So. at 860.

Whether the lay testimony in the instant case is sufficient to authorize submission to the jury of the lost-capaeity-to-earn element of damages we need not decide. Arguably, the evidence meets the non-expert test; but, assuming, without deciding, that this issue would be resolved favorably to the injured party, his counsel’s question to the economics expert invaded the fact-finding prerogative of the jury. In this posture, the jury was not permitted to find the loss of earning power from the lay evidence adduced, nor was it furnished the benefit of proper expert evidence of this issue.

In order to constitute reversible error, however, this illegal - evidence must have been submitted to the jury as a component of the basis for its finding of damages. Our careful search of the record reveals that the trial judge, apparently finding that the condition upon which he admitted the evidence in the first instance had not been properly met, restricted the jury in its consideration of the elements of damages, as follows:

“Now, as I told you, the burden is on the plaintiff to reasonably satisfy you from the evidence of the truthfulness of his claim. If you are reasonably satisfied [of] the truthfulness of that claim, then your verdict would be for the plaintiff. In that event, it is necessary to arrive at the amount to be awarded in the verdict form, which I am going to give to you a little later on. I am going to give you some rules of law to assist you in your deliberation in arriving at an amount, in - the event that you find for the plaintiff. Now, the damages asked for by the plaintiff in this particular case are what we call compensatory damages. And the purpose of awarding compensatory damages is to fairly and reasonably compensate the injured party for the loss or injury sustained. Compensatory damages are intended as money compensation to the party wronged to compensate him for his injuries and other damages which have been inflicted upon him as a proximate result of the wrong complained of.
“The plaintiff claims these elements in connection with his damages. He claims medical expense; he claims loss of earnings; he claims physical pain and suffering and mental anguish; he claims that there has been permanent injury and disability.
“Now, the law has no fixed monetary standard to compensate for physical pain and mental anguish. This element of damage is left to your good sound judgment and discretion as to what amount would reasonably and fairly compensate the plaintiff for such physical pain and mental anguish as you find from the evidence that the plaintiff did suffer.
“If you are reasonably satisfied from the evidence that the plaintiff has undergone or will undergo pain and suffering or mental anguish as a proximate result of the injuries in question, you should award a sum which will reasonably and fairly compensate him for such pain, suffering or mental anguish that has already been suffered by him and for any pain, suffering or mental anguish which you are reasonably satisfied from the evidence he is reasonably certain to suffer in the future.
“Now, it is for you to determine from the^ evidence the nature, extent and duration of the plaintiffs injuries. If you are reasonably satisfied from the evidence that the plaintiff has suffered permanent injuries and that such injuries proximately resulted from the wrongs complained of, then you should include in your verdict such sum as you determine to be reasonable compensation for such injuries.
“In connection with medical expenses, the measure of damages for medical expenses is all reasonable expenses necessarily incurred for doctors and medical bills which the plaintiff has paid or becomes obligated to pay, and the amount of any reasonable expenses for medical care, treatment or services reasonably certain to be required in the future. The reasonableness of and the necessity of such expenses are matters for your determination from the evidence.
“Now, in determining the amount of damages for loss of earnings, you should consider the evidence of — that has been introduced in connection with what the plaintiff ordinarily — what he missed in the way of lost wages and what he would have been entitled to during the period of time he was off.
“Now, in awarding damages in any case, your verdict must not be based on mere speculation or conjecture, but must be based on the evidence and reasonable inferences shown therefrom.” R 952-954.

The only mention of “earnings” as an element of damages, which is contained in the latter part of this above-quoted charge, related to “loss of earnings.” This portion of the charge was appropriate, because it was not disputed that Snoddy had a period of lost earnings before returning to work following the accident.

Because the trial judge corrected the error, if any, with respect to the admission of the 13% disability as a component of the loss of earning capacity formula, we find no reversible error as to the adverse ruling complained of.

II. DENIAL OF MOTIONS

Finally, appellant claims that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict.

The standard of review in analyzing this question is straightforward. As stated in Purcell Co. v. Spriggs Enterprises, Inc., 431 So.2d 515, 518 (Ala.1983), “A trial court will not be reversed for refusing to direct a verdict in favor of a movant if a scintilla of evidence exists in favor of the party opposing the motion.” In reviewing this case on appeal, we must examine the evidence in a light most favorable to the non-movant. Id. The question then becomes whether the evidence, viewed in its most favorable light, contains a scintilla of evidence that the defendant-appellant was negligent in failing to provide 1) an adequate leer ail for Mr. Snoddy’s bunk and 2) sufficient medical equipment and supplies on board ship.

There was no dispute at trial that the fall from the bunk caused Mr. Snoddy’s injury, although no one, including Mr. Snoddy, is quite sure how he fell. A marine safety expert testified that the leerail was not reasonable and adequate. The condition of the seas the morning of the fall is in dispute. There was no X-ray machine on board ship and the supply of an antibiotic used to cleanse wounds was exhausted during Mr. Snoddy’s treatment. There was further testimony that, without an X-ray machine, it was impossible to tell whether the fracture was correctly set. This testimony, coupled with a review of the record as a whole, provides at least a scintilla of evidence that defendant-appellant breached its duty of care, proximately causing the injuries sustained. Consequently, the trial court did not err in denying the motions.

AFFIRMED.

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

EMBRY and BEATTY, JJ., not sitting.


text:
    Mary Jane HARRIS, Michael Johnson, Virgil Davis, Johnny Gunn, Jimmy Gunn, as Trustees of North Birmingham Apostolic Overcoming Holy Church of God v. APOSTOLIC OVERCOMING HOLY CHURCH OF GOD, INC., an Alabama Religious Corporation.
    83-176.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      F.R. Ingram, Birmingham, for appellants.
    Douglas Corretti of Corretti & Newsom, Birmingham, for appellee.
   ADAMS, Justice.

Defendants appeal from the final order in a declaratory judgment action in which title to certain property in dispute was declared to rest with plaintiff/appellee Apostolic Overcoming Holy Church of God, Inc. (AOHCGI). We affirm the judgment of the lower court.

The case arose from these facts:

AOHCGI is an Alabama religious corporation structured hierarchically with individual local churches joined as affiliate members. Defendant appellants are trustees of the 35th Avenue Church of God, formerly known as the North Birmingham Apostolic Overcoming Holy Church of God, and formerly one of the aforementioned affiliates of AOHCGI.

The tract of land which is the subject of the dispute in this case was purchased in the name of the “Trustees of Apostolic Overcoming Holy Church of God” by defendants in 1978. Later, the congregation became known as the North Birmingham A.O.H. Church of God. This group had previously practiced its religion at a different location under the name Greenlee Heights A.O.H. Church of God. The purchase of the property in issue was necessitated when a tornado destroyed the Green-lee Heights Church building in 1977.

The Greenlee Heights A.O.H. Church of God was an affiliate of the plaintiff AOHCGI, and the congregation remained so affiliated at the time it purchased the property in question and changed its name to North Birmingham A.O.H. Church of God. In accord with this affiliation, prior to the closing of the purchase of the property the closing documents were first submitted to AOHCGI for approval.

The property was not purchased with AOHCGI funds, however. The total purchase price of the land was $45,000.00. The seller was given a purchase money mortgage for $25,000.00 and a $20,000.00 payment in cash. The mortgage designated the “Trustees of Apostolic Overcoming Holy Church of God” as “mortgagors,” and Michael Johnson, Virgil Davis, and John Hamilton signed on behalf of the mortgagors. AOHCGI had knowledge of this mortgage.

Most of the cash payment was provided by Rev. H.K. Harris and his wife, Mary J. Harris, one of the appellants herein. The Harrises acquired this cash by mortgaging their own home. The aforementioned Johnson, Davis, and Hamilton signed both a note and a mortgage agreement for $15,-778.83 each, listing the Harrises as prom-isees and mortgagees respectively. A similar note/mortgage combination was issued to the Harrises for the lesser amount of $5,000.00. There is no evidence that AOHCGI had knowledge of these notes and mortgages to the Harrises.

In 1982, the defendants had disagreements with AOHCGI and withdrew from affiliation with the central organization. The defendants changed the name of their church to “The 35th Avenue Church of God.” The present dispute arose over the ownership of the above-mentioned North Birmingham property purchased by the defendants in 1978. AOHCGI filed a declaratory judgment action seeking a determination of its ownership of the property. The case was presented in an oral hearing and the trial court made the following determinations: 1) The original deed acquired upon purchase of the North Birmingham property conveyed title to appellee AOHCGI; 2) the purchase money mortgage securing the original $25,000.00 debt is a binding obligation of AOHCGI; 3) the mortgages and notes given to the Harrises to secure the cash payment made by them are not the obligation of AOHCGI.

Our review of the judgment of the trial court is limited by the ore terms rule. Since the lower court heard oral testimony, this court must sustain the findings of fact produced below, unless they are clearly or palpably wrong or without supporting evidence, or are manifestly unjust. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

The trial court heard the testimony of twelve witnesses in this case. The record on appeal comprises seven volumes. The final judgment includes seven pages of findings of fact. After a review of the record, we cannot say that the trial court’s findings of fact are clearly or palpably wrong, without supporting evidence, or manifestly unjust. Therefore, we will not set aside these factual determinations.

Similarly, after analyzing the principles of law applicable to this case, we find that the lower court correctly applied these principles in reaching its decision.

It is established that the civil courts cannot adjudicate religious disputes concerning spiritual or ecclesiastical matters, but nevertheless, the courts can resolve disputes concerning property rights. Trinity Presbyterian Church of Montgomery v. Tankersley, 374 So.2d 861 (Ala.1979). The First Amendment to the U.S. Constitution prohibits the resolution of such property disputes on the basis of religious doctrine and practice, however. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). The Alabama civil courts must use “neutral principles of law” in adjudicating church property cases, Tankersley, supra, at 866, and proper subjects of consideration in this adjudication include the deeds, state statutes governing the holding of church property, the local church’s charter, and the general church’s constitution. Jones, supra.

The plaintiff AOHCGI operates under rules and guidelines contained in a manual entitled “Discipline and Doctrine of the Apostolic Overcoming Holy Church of God, Inc.” In regard to ownership of property, the manual contains this provision:

7. All property acquired by all churches, whether local or otherwise, is owned by the Apostolic Overcoming Holy Church of God, Inc. and if same is not in the name of Apostolic Overcoming Holy Church of God, Inc., then same shall immediately and forthwith be placed in the name of the said property is held in trust by the party or parties in whom said property is in the name of for the Apostolic Overcoming Holy Church of God and its use and benefit until said property is conveyed to Apostolic Overcoming Holy Church of God, Inc. [sic]

The manual also contains the following provision which applies to members of an AOHCGI affiliate who terminate their membership:

13. If any members of the Apostolic Overcoming Holy Church of God, Inc. leave or cease to be members of the Apostolic Overcoming Holy Church of God, irrespective of the amount or number thereof, the fact that they leave or cease to be a member of the Apostolic Overcoming Holy Church of God shall not, in any manner, affect the property of the said church, and said party or parties or persons leaving the congregation or membership of the Apostolic Overcoming Holy Church of God, in any manner, cannot and shall not take any property of the Apostolic Overcoming Holy Church of God, in any manner, and all church property, irrespective, whether acquired by the local congregation, local church or otherwise, is the property of the Apostolic Overcoming Holy Church of God, Inc.

Therefore, under the guidelines of the central organization, the North Birmingham property purchased by the defendants is owned by AOHCGI if the defendants were affiliated with the plaintiff organization. Additionally, the severance of the defendants from affiliation with AOHCGI would have had no effect on the ownership of the property.

The trial court construed the deed obtained in the 1978 purchase of the North Birmingham property and found that it conveyed title to AOHCGI. Since AOHCGI had title to the property, the defendants could not gain title by breaking away from the central organization and becoming a separate church.

The trial court found that the AOHCGI rule! required approval by the central organization before a local affiliate could purchase or sell property. Based on this finding, the court held that AOHCGI is liable for the remaining debt secured by the original purchase money mortgage of $25,-000.00, because the central church had knowledge of this arrangement. AOHCGI had no knowledge, on the other hand, of the mortgages and notes issued by the defendants to the Harrises. The court held that AOHCGI was not responsible for these debts. These determinations of AOHCGI’s liability are in accord with the facts as found by the court and with the rules of AOHCGI.

We find that the circuit court was correct in holding that AOHCGI is the owner of the property in question. Defendants acquired the land as an affiliate of AOHCGI. They cannot now seek title to the property, having severed their relationship with AOHCGI.

For all of the above-stated reasons, the judgment of the Circuit Court of Jefferson County is affirmed.

AFFIRMED.

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


author: ADAMS, Justice. ■

text:
    Joe BROWN, Jr. v. David SCHULTZ, et al.
    83-216.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      Harold Howell of Howell, Sarto & Howell, Prattville, for appellant.
    Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellees David Schultz, Gloria A. Gurney, Lióla Bradshaw, Harriett Gurney Brown, Robert J. Gurney, Jr., James Crosby, The estate of Frank S. Pittman, Jr., John Bowen, Bruce Moore, Clifton Phillips and O.B. Cobb.
    Eugene P. Stutts of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee Aetna Life & Cas. Ins. Co.
   ADAMS, Justice. ■

This is an appeal from a summary judgment against the plaintiff in a co-employee lawsuit. Plaintiffs complaint contained three claims. Plaintiff’s first claim is that he was injured and rendered totally disabled while working for Gurney Industries, Inc., on June 15, 1980. He alleged that the individual defendants, who were employees of Gurney Industries, Inc., had wantonly or recklessly failed to furnish him with a reasonably safe place to work. This is true, according to the plaintiff, because of their failure to correct a defect in a concrete floor work area which would have been discoverable by the defendants in exercising reasonable care.

One of plaintiff’s responsibilities on his job was to push a tub loaded with wet cloth, weighing around 2,000 pounds or more, to a turntable. Plaintiff claims that there was a hole or depression in the concrete floor approximately ten inches across and four inches deep in the area where he pushed the tub. On the day he was injured, he inadvertently caused one of the wheels of the tub to move into the hole, causing the tub to tilt. In the process of straightening up the heavy tub, he injured his back. Plaintiff claimed that on numerous occasions, he had notified the defendants, as well as Gurney’s Safety Committee, concerning the danger involved in allowing this depression to exist.

Plaintiff was injured, according to his amended complaint, on June 23, 1980, but he did not file his complaint until June 14, 1982, approximately two years later.

Plaintiff’s second claim is that the individual co-employees had employment contracts with Gurney Industries, Inc., requiring each co-employee defendant to provide him a safe place to work. He further stated in his claim that each individual defendant breached an express or implied duty to him as a third party beneficiary of the aforesaid contracts in that they failed to discover and correct unsafe work areas and unsafe working procedures and unsafe equipment, and that this breach caused plaintiff’s injury.

Plaintiff’s third claim is that Aetna Life and Casualty Company entered into a contract with Gurney Industries, in which it agreed to inspect, at reasonable times, the work places, operations, machinery, and equipment covered by its policy with Gurney Industries. Plaintiff contends that that contract was for his direct benefit, and that as a third-party beneficiary of that contract, he had a legal right to sue on it if Aetna breached it.

The defendants dispute most of plaintiffs allegations of knowledge of the unsafe condition in his work area. Aetna denies that its contract with Gurney Industries was for the direct benefit of plaintiff and, furthermore, contends that it entered into the contract for its own benefit and that the contract is unambiguous in that it does not require Aetna to make inspections of work places, operations, machinery, equipment, and other aspects of the employer’s business. Because of these disputes, plaintiff contends that summary judgment was inappropriate because there were genuine issues of material fact.

Although appellant and appellees have framed the issues involved in this case differently, the sole issue for resolution is whether the trial judge erred in granting summary judgment as to all claims in plaintiffs complaint. He did not so err. The judgment is affirmed.

I.

As to Claim I, namely, the claim that the individual co-employees had a duty to furnish him with a reasonably safe place to work, and that they had wantonly and recklessly failed to do so, plaintiff claims that the trial court should not have granted summary judgment because there were disputed issues of fact concerning the knowledge of defendants of the unsafe condition. He also contends that a wantonness claim is not barred by the one-year statute of limitations contained in Code of Alabama (1975), § 6-2-39(a)(5). This section provides a one-year statute of limitations for all “actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.”

Plaintiff contends that his cause of action is governed by Code of Alabama (1975), § 6-2-34(2). This is the section dealing with trespass to realty and personalty, and it provides a limitation of six years.

We believe that plaintiff’s argument concerning the statute of limitations, insofar as his first claim is concerned, is clearly answered in this court’s decision in Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973), and the Court of Civil Appeals decision in City of Fairhope v. Raddcliffe, 48 Ala. App. 224, 263 So.2d 682, on which Sasser is based. In City of Fairhope v. Raddcliffe, the Court of Civil Appeals said:

It seems to be commonly accepted among the bar that a count alleging a willful or wanton act is always a charge in trespass. Such is not literally true. To be a trespass there must be an act of direct force producing injury or damage. A wanton omission of duty to act is not a trespass. There is no direct force applied and the injury is not produced by application of force, but is consequential of an omission of a duty to act.
Wantonness has tended to become synonymous with trespass because it is usually connected with a direct application of force as in automobile collisions. From its legal definition in Alabama it may readily be seen it does not always amount to a trespass.
“Wantonness has been defined as a conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. Barnes v. Haney, 280 Ala. 39, 189 So.2d 779; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448.” Water Works and Sanitary Sewer Board of City of Montgomery v. Norman, 282 Ala. 41, 46, 208 So.2d 788.

48 Ala.App. at 227, 263 So.2d 682.

The fact situation in Sasser was very similar to the fact situation here. Plaintiff there, as in this ease, filed suit more than one year after the injury occurred. The plaintiff claimed that the defendant had not taken the proper safety precautions with reference to fans in a dry kiln system, and that as a result of leaving these fans totally unguarded, plaintiff was injured. Plaintiff in that case also claimed that he had warned defendant of the dangerous condition. The court held in the Sasser case that because plaintiffs injury was a result of omission of a duty, rather than application of direct force, the applicable statute of limitations was a trespass-on-the-case statute rather than the trespass statute. Even though there is a dispute as to whether the defendants knew of the defective condition and failed to provide plaintiff relief, summary judgment against the plaintiff was appropriate because, assuming that plaintiff could prove all the-facts alleged in claim I, nevertheless, the claim was clearly filed beyond the time a court is allowed to consider such claims.

II.

Plaintiffs second claim is that he is a third-party beneficiary of an implied contract between Gurney Industries and the individual defendants to provide him a reasonably safe place to work. Because an implied contract is involved, plaintiff insists that the six-year statute of limitations governs. Unfortunately for the plaintiff, our cases do not support his contention. In a recent case, Eason v. Middleton, 398 So.2d 245 (Ala.1981), Justice Jones, in a special concurrence, said:

The breach of an implied agreement to provide due and reasonable care is a tort claim only and will not support an action sounding in contract....

398 So.2d at 248.

Such a position is not new. This court underscored this position in Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524 (1954). There, the court said:

When the contract does not in terms require reasonable care in doing the acts stipulated to be done, the law imposes a duty — but does not imply a contract — to exercise due care in doing the act; and, therefore, when negligence exists in doing that act, an action in tort only is available because there is no express or implied contract which is breached.

261 Ala. at 258, 73 So.2d 524.

Plaintiff clearly cannot get around the requirement that he file his complaint within one year by relying on a theory of implied third-party beneficiary contract.

III.

In plaintiffs third claim, he alleged that he is a third-party beneficiary of defendant Aetna Life and Casualty Insurance Company’s contract with Gurney concerning workmen’s compensation. But plaintiff cannot lengthen the statute of limitations by relying on a contract between the employer and the workmen’s compensation carrier. In fact, the provision of the contract would lead one to believe that there was no obligation at all on the insurance company to make inspections. The insurance policy contract stated:

CONDITIONS — Section 3 Inspection and Audit. The company and any rating authority having jurisdiction by law each shall be permitted but not obligated to inspect at any reasonable time the work places, operations, machinery and equipment covered by this policy. Neither the right to make inspections, nor the making thereof, nor any report thereon shall constitute an undertaking on behalf or for the benefit of the insured or others, to determine or warrant that such work places, operations, machinery or equipment are safe .... [Emphasis added.]

Unless there was some contract between the workmen’s compensation carrier and the employer to provide some specific services beneficial to the plaintiff, plaintiff’s claim, at best, would be a suit in tort rather than in contract; and such a suit in tort would be barred by the one-year statute of limitations.

For all of the above reasons the trial court’s entry of summary judgment against plaintiff is due to be affirmed.

AFFIRMED.

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

ALMON, J., concurs in the result.

      . See Shipman, "Handbook of Common Law Pleading,” 3d ed., Chapter 4, Section 39.


text:
    BANK OF GORDO v. BANK OF REFORM & First National Bank of Aliceville.
    83-343.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    John A. Owens and Alyce Manley Spruell of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellant.
    W.O. Kirk, Jr. of Curry & Kirk, Carroll-ton, for appellees.
   ADAMS, Justice.

This is an appeal from the Pickens County Circuit Court’s summary judgment in favor of the Bank of Reform and the First National Bank of Aliceville and against the Bank of Gordo.

The facts of this case are as follows:

A bill was introduced in the Legislature on May 10, 1983, to allow branch banking in Pickens County, Alabama. The bill was passed by the House and Senate, signed by the Governor, and on July 19, 1983, became part of the permanent records of the Secretary of State. The bill was enacted as Act No. 83-550.

In August 1983, the Bank of Reform applied for consent to establish a branch bank in Gordo, Alabama. Notice of such application was sent to the appellant, Bank of Gordo. Thereafter, First National Bank of Aliceville filed notice of intent to open a branch bank in Gordo. This prompted the Bank of Gordo to file an action in the Pickens County Circuit Court seeking to have Act No. 83-550 declared unconstitutional as violative of § 106 of the Constitution of Alabama, 1901.

The complaint stated that the Act should be declared unconstitutional because it was not properly advertised according to Alabama Constitution § 106. Named in the complaint as defendants were the Bank of Reform; the First National Bank of Alice-ville; Kenneth R. McCartha, the Superintendent of Banking, the State of Alabama Bank Department; and Don Siegelman, the Secretary of State.

A hearing was held on October 18, 1983, by the Circuit Court on all motions, at which time the State Department of Banking and Kenneth R. McCartha were dismissed from the case, and a preliminary injunction was entered against all defendants. Each side filed a motion for summary judgment, and a hearing was set for November 17, 1983. Following the hearing, the Circuit Court entered judgment in favor of the defendants, finding Act No. 83-550 constitutional and simultaneously dissolving the preliminary injunction. This appeal followed.

The single issue presented for our review is whether Act No. 83-550 is unconstitutional for noncompliance with § 106 of the Alabama Constitution of 1901. The trial court found that it was not, and we find no reason to reverse its judgment.

Section 106 of the Constitution of Alabama, 1901, states:

No special, private, or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefore shall have been published, without cost to the state, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties or if there is no newspaper published therein, then by posting the said notice for two consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof that said notice has been given shall be exhibited to each house of the legislature through a certification by the Clerk of the House or Secretary of the Senate that notice and proof was attached to the subject local legislation and the notice and proof shall be attached to the original copy of the subject bill and shall be filed in the Department of Archives and History where it shall constitute a public record. The courts shall pronounce void every special, private, or local law which the journals do not affirmatively show was passed in accordance with the provisions of this section_ [Emphasis added.]

This section requires the courts to invalidate any local law which the journals show was passed without being published for four consecutive weeks in the county to be affected by its passage. It has long been an established principle in Alabama that when a court is reviewing whether an Act has complied with Constitution 1901, § 106, that court is limited to searching the journals of the House and Senate. Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223, 228 (1924). The journals here show that the proposed Bill was advertised once a week for four consecutive weeks on April 14, April 21, April 28, and May 7, 1983. According to Byrd, the recitations contained in the journals are determinative. In Weeks v. State, 39 Ala.App. 231, 97 So.2d 161 (1957), the Court of Appeals was faced with a fact situation substantially similar to the case at bar, and, quoting from Byrd, stated:

“Courts cannot go behind the Journals of the Legislature to determine whether publication was in fact made on the dates shown by the proof entered on the Journals.
“It is for the Legislature to ascertain whether the proof made as required by the Constitution is true or false. The Journals import absolute verity on matters duly shown therein.”

39 Ala.App. at 233, 97 So.2d at 163. (Emphasis added.)

In Weeks, as here, there was evidence that the notice was in fact only published three times, but the journals contained proof that there was publication for the required number of times; therefore, the Court of Appeals was bound to uphold the Act. We can find no reason in this case to depart from the longstanding rule that it is the Legislature’s duty to verify compliance with the Constitution, and we are bound by its decision as found in the House and Senate Journals.

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

AFFIRMED.

MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.'

TORBERT, C.J., not sitting.


author: ALMON, Justice.

text:
    Charles E. STRAIN & George L. Morris III v. Eugenia B. Vail HINKLE & E.V. Hinkle.
    83-473.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      John F. DeBuys, Jr. of Corley, Moncus, Bynum & DeBuys, Birmingham, for appellants.
    J. Clewis Trucks of Trucks, Parsons & Guyton, Fairfield, for appellees.
   ALMON, Justice.

This is an appeal from an order granting a motion to dismiss. Because the order did not adjudicate the rights of all parties to the action, the trial court certified the order as final pursuant to the provision of Rule 54(b), A.R.Civ.P.

The dispute concerns an easement for a driveway over two adjoining parcels of land. The easement was created in 1955 by deeds between the owners of the lots. Terry L. Burchfield and Cathy W. Burch-field purchased Lot 41 on February 25, 1980, and mortgaged the lot to Engel Mortgage Company, Inc., on that date. E.Y. Hinkle and Eugenia B. Yail Hinkle acquired Lot 40 from Mrs. Hinkle’s father, who was one of the parties creating the easement in 1955. The driveway runs along the border of the lots, partially on one lot and partially on the other, and then forks to reach separate parking areas in the rear of the two lots.

On September 5, 1982, the Burchfields contracted with Strain Construction Company to build a new house for them elsewhere. The contract provided that if the Burchfields could not sell their house on Lot 41 on the open market, Strain Construction Company would purchase it for $2,600 equity and assume the mortgage. On or about February 21,.1983, Charles B. Strain and George L. Morris III agreed to take Strain Construction Company’s position and purchase the house and Lot 41, which had not sold on the market. A closing took place on April 19, 1983, at which the Burchfields purchased the new house built by Strain Construction Company and Strain and Morris purchased the Lot 41 property.

Meanwhile, on January 27, 1983, the Hin-kles and the Burchfields executed deeds terminating the driveway easement. The Burchfields “release[d], quit claim[ed], grant[ed], [sold], and convey[ed] ... all their right, title, interest and claim in or to ... Lot 40 ..., particularly that part of the joint driveway lying between said Lots 40 and 41 but lying in and being a part of said Lot 40.” The Hinkles similarly conveyed their interest in Lot 41. These deeds were recorded on February 2, 1983.

Strain, Morris, and Engel Mortgage Company filed a complaint on July 29, 1983, against the Burchfields and the Hin-kles. The complaint alleged that the Hin-kles had erected a fence along the property line approximately two weeks after Strain and Morris purchased the property, thereby obstructing the use of the driveway and preventing access to the rear of the lot and the garage located there. The complaint further alleged that Engel Mortgage Company neither was aware of nor joined in the conveyance of the driveway easement, and that the conveyances were not communicated to nor mentioned to Strain and Morris until after the erection of the fence.

Strain, Morris, and Engel sought declaratory relief determining “the respective rights of the parties with respect to the use of the driveway together with the rights and obligations between Plaintiff, Engel Mortgage Company, and Defendants regarding title to the driveway.” Strain and Morris included additional prayers for relief, seeking, in one prayer, rescission of the deed and contract between them and the Burchfields, or, in the other prayer, compensatory damages for obstruction of the driveway by the actions of the Burch-fields and the Hinkles and punitive damages for intentional fraud by the Burch-fields.

The Burchfields and the Hinkles filed separate motions to dismiss the complaint. The trial court granted the Hinkles’ motion, allowing plaintiffs 21 days to amend. Strain, Morris, and Engel filed an amended complaint, alleging that the purported conveyances were defective and did not terminate the rights of the owners to use the joint driveway, and that the Hinkles were causing damage to the plaintiffs by the erection of the fence. The amended complaint requested that the Hinkles be required to remove the fence and to pay damages.

The Hinkles filed a motion to dismiss the amended complaint for failure to state “a cause of action against the said Defendants upon which relief may be granted.” See Rule 12(b)(6), A.R.Civ.P. The trial court granted this motion as to Strain and Morris, giving them 21 days to amend, but denied it as to Engel.

Strain, Morris, and Engel filed a second amendment to the complaint, realleging the averments of the original complaint and the prior amendment. This second amended complaint included, as exhibits, documents setting forth the pertinent chains of title to Lots 40 and 41. This complaint averred that

“the paragraph of the [1955] joint driveway agreement that addresses any modification of same is as follows:
“ ‘It is understood and agreed that the existing joint driveway shall not be changed or moved except by the consent of the parties hereto or their assigns.’ ”

It then alleged that the quitclaim deeds did not terminate the driveway easement, because, inter alia, “not all necessary assigns have executed or joined in any agreement to change or modify the original joint driveway agreement.” The second amended complaint asked the court to “declare that the joint driveway agreement be in full force and effect subject only to the Defendants’ being estopped from asserting any rights to the joint drive by virtue of the quitclaim deeds which they executed to each other.”

The trial court granted the Hinkles’ ensuing motion to dismiss the second amended complaint as to Strain and Morris and denied it as to Engel. Strain and Morris thereupon brought this appeal.

In one manner of viewing the action, the question this appeal presents is whether Strain and Morris, who purchased Lot 41 and the house thereon with record notice that their vendors had relinquished any claim to the driveway easement over Lot 40, may maintain . an action against the Hinkles, who, for all the pleadings show, entered in good faith into the cross-conveyance of the driveway easement. Any such right of Strain and Morris to proceed against the Hinkles would appear to depend upon the right of Engel Mortgage Company, as holder of legal title to Lot 41, to set aside the deed purporting to terminate the easement over Lot 40 which benefited Lot 41.

Another perspective which we deem essential to the action arises from the equitable maxim “Equity delights to do justice, and not by halves.” Owens v. Owens, 281 Ala. 239, 243, 201 So.2d 396, 399 (1967); Local Union No. 57 v. Boyd, 245 Ala. 227, 16 So.2d 705 (1944); Grooms v. Brown-Marx Co., 239 Ala. 284, 195 So. 215 (1940). Under the claims which remain pending, it is quite conceivable that the court, if it grants relief, will need to adjust the equities as between Strain and Morris and the Hinkles.

In the first place, Engel has at least a colorable claim for the relief of having the Burchfields’ deed relinquishing the easement over Lot 40 set aside and held void. Engel, as mortgagee, owns legal title to Lot 41. Trauner v. Lowrey, 369 So.2d 531 (Ala.1979). Because the exhibits indicate that Lot 41 is not wide enough for a driveway to reach the garage at the rear, En-gel’s interest in the property has been adversely affected. The trial court might grant the relief which Engel has sought of holding the easement conveyance void and requiring the Hinkles to remove the fence. As a practical matter, this relief might benefit Strain and Morris, so the trial court might wish to adjudge the respective rights between the Hinkles and Strain and Morris in such event.

The pleadings show that Strain and Morris purchased Lot 41 with record notice of the easement conveyances. Nevertheless, a motion to dismiss is not to be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6), A.R.Civ.P. Williams v. Kasai, 429 So.2d 1008 (Ala.1983); Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979); Dunson v. Friedlander Realty, 369 So.2d 792 (Ala.1979). At least two possible sets of facts inferable from the pleadings might persuade a court in equity to grant relief to Strain and Morris against the Hinkles.

First, although the complaint alleges fraud only against the Burchfields, facts might develop at trial which could impute at least constructive fraud to the Hinkles. They must have been aware that the Burchfields were trying to sell their house, and they may have been aware of the contract by which Strain Construction agreed to purchase the house if it did not otherwise sell. Mrs. Hinkle and her family had lived on Lot 40 for nearly 30 years since the recordation of the easement agreement, and they may have seized upon a perceived opportunity to easily terminate the easement.

Second, the possibility appears that Strain and Morris might not be held to record notice. The Burchfields moved for, and the court granted, permission to add American Title Insurance Company as a defendant (and, incidentally, as a counter-defendant to the Burchfields’ counterclaim against Strain and Morris). This motion alleged that American Title, while acting pursuant to the agreement between the Burchfields and Strain Construction, “failed to properly investigate the title” to Lot 41. If it appears at trial that American Title searched the Burchfields’ title at any time between their September 5, 1982, agreement with Strain Construction and the February 2, 1983, recordation of the easement deed, the force of the notice statutes, e.g., Code 1975, § 35-4-51, might be diminished as to the equitable claim of Strain and Morris against the Burchfields’ grantees, the Hinkles.

Even with the granting of the Hin-kles’ motion to dismiss as to Strain and Morris, Strain and Morris remain in the action as plaintiffs against the Burchfields and the Hinkles remain as defendants because of Engel’s presence in the action. In view of the disfavor in which motions to dismiss are held, see cases cited above and other cases construing Rule 12(b)(6), and in view of the possibility that the adjustment of all the equities in this case might affect the interests of the Hinkles and Strain and Morris vis-a-vis each other, we find that it was error to dismiss this aspect of the complaint.

For the reasons stated above, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Kimberly A. THOMASSON v. Arnold G. DIETHELM, M.D. and Bill Marshall, M.D.
    83-571.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      I. Drayton Pruitt, Jr., Livingston, and William W. Smith of Hogan, Smith, Als-paugh, Samples & Pratt, Birmingham, for appellant.
    Robert L. Williams and Gary A. Parker of Norman, Fitzpatrick & Wood, Birmingham, for appellees.
   ALMON, Justice.

This is an appeal from a summary judgment for defendants in a suit which plaintiff is attempting to bring under the Alabama Medical Liability Act. The case presents the question of whether the Act affects an action brought against a physician by a person who was not the physician’s patient.

On September 12, 1979, Kimberly Thom-asson was a respiratory therapist in the respiratory therapy department at University Hospital in Birmingham, Alabama. In the line and scope of her employment, she was called to provide treatment for a patient who had hepatitis and was in the care of Dr. Arnold G. Diethelm and Dr. Bill Marshall. She alleges that as a result of that contact, she contracted serum hepatitis-B.

Thomasson brought suit on March 31, 1981, against Drs. Diethelm and Marshall, alleging that they had a duty as physicians to warn her that the patient had hepatitis.

Defendants filed a motion to dismiss, based in part on the statute of limitations. The court received affidavits, held a hearing on the motion, and thereafter properly treated it as a motion for summary judgment. Rules 12(b) and 56, A.R.Civ.P. The court entered a final judgment which included the following:

“On March 31, 1981, plaintiff filed this action against the defendants who are physicians. There is no claim that the plaintiff was anywise acting as an agent, servant or employee of the defendants.
“The legal question presented by this motion for summary judgment is whether or not Code of Alabama, Title 6-2-39 statute of limitations applies or whether Code of Alabama, Title 6-5-482 statute of limitations applies to this action.
“The court finds that Title 6-5-482 would apply only where there is the relationship of patient and physician and is not, therefore, applicable to the present case.
“The court further finds that Title 6-2-39, does apply in this action and therefore, the claim of the party plaintiff is barred by the one year statute of limitations.”

Code 1975, § 6-2-39, provides a one-year statute of limitations for personal injury actions not otherwise enumerated. Section 6-5-482 provides the statute of limitations for actions arising under the Alabama Medical Liability Act, §§ 6-5-480 through -488.

We must look to the statute to determine legislative intent. Section 6-5-481(9) defines “medical liability”:

“MEDICAL LIABILITY. A finding by a judge, jury or arbitration panel that a physician, dentist, medical institution or other health care provider did not meet the applicable standard of care, and that such failure was the proximate cause of the injury complained of, resulting in damage to the patient.” (Emphasis added.)

Section 6-5-484(a) of the Act, entitled “Degree of care owed to patient,” reads:

“In performing professional services for a patient, a physician’s, surgeon’s or dentist’s duty to the patient shall be to exercise such reasonable care ....” (Emphasis added.)
Section 6-5-485(a) provides:
“After a physician, dentist, medical institution or other health care provider has rendered services, or failed to render services, to a patient out of which a claim has arisen, the parties thereto may agree to settle such dispute by arbitration....” (Emphasis added.)

When the entire statute is considered, particularly the section defining “medical liability,” it seems clear that the legislature was addressing liability of medical professionals in the context of patient-doctor and patient-hospital relationships. This is true even though § 6-5-482 uses the phrase “all actions against physicians.” This phrase, nevertheless, is consistent with our interpretation, because persons may bring different types of actions against health care providers, viz., tort or contract actions, and still be within the patient class of plaintiffs.

The appellant, in an excellent brief, has cited several cases which tend to support her position. Hedlund v. Superior Court of Orange Cty., 34 Cal.3d 695, 194 Cal.Rptr. 805, 669 P.2d 41 (1983); Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976); Merchants National Bank v. Morriss, 269 F.2d 363 (1st Cir.1959); North American Co. for Life & Health v. Berger, G48 F.2d 305 (5th Cir.1981). These cases, however, do not interpret statutes worded as ours is. For example, the Hedlund case was concerned with the meaning of “professional negligence,” a term much broader than “performing professional services for a patient.”

Admittedly, the above cited cases stand for the proposition that doctors and other medical professionals may be professionally liable, under certain circumstances, to third parties who are not patients; however, that proposition of law does not change the wording of our statute nor provide binding precedent on the statute of limitations question.

For these reasons the judgment is due to be affirmed.

AFFIRMED.

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


text:
    Billie Ruth WARREN v. Wayne B. RASCO, as Executor of the Estate of Elmer H. Davis, deceased.
    83-587.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      Tom R. Roper of Bell & Johnson, Pel-ham, for appellant.
    William R. Justice of Harrison, Conwell, Harrison & Justice, Columbiana, for appel-lee.
   ADAMS, Justice.

Appellant Billie Warren appeals from an order of the Circuit Court of Shelby County, Alabama, granting appellee Wayne Ras-co’s motion for judgment on the pleadings. The facts of this case are as follows:

On January 24, 1978, Elmer H. Davis and four of his nephews formed a limited partnership. One nephew was a general partner, and the others, along with Elmer Davis, were limited partners. The pertinent section of the limited partnership agreement, concerning transferability of partners’ interests, follows:

10. (a) Any limited partner shall have the right to assign his or her interest in the partnership upon 30 days’ written notice delivered to the general partner at the principal office of the partnership. Any such assignment shall be effective only to give the assignee the right to receive the share of profits to which his or her assignor would otherwise be entitled and shall not give the assignee the right to become a substituted limited partner.
(b) With the unanimous written consent of all the general and limited partners, any limited partner may substitute an assignee as a new limited partner in his or her place, either in whole or in part.
(c) Nothing contained in this paragraph, however, shall prevent the interest of any limited partner from being:
(1) Transferred or disposed of by will or intestacy to or for the benefit of the deceased partner’s immediate family, or transferred during his or her lifetime, by gift or inter vivos trust, to or for the benefit of the partner’s immediate family; but, in respect to transfers by way of testamentary or inter vivos trust, the trustee or trustees is or are to be a member or members of the partner’s immediate family;
(2) Sold, transferred, assigned, pledged, encumbered, or otherwise hy-pothecated to any other partner herein. For the purpose of this paragraph,
“immediate family” is defined as the husband, wife, adult child, father or mother, or adult sister or adult brother of a partner.

Elmer Davis executed a will on October 13, 1982, which disposed only of his limited partnership interest, to his four nephews. The will had no residuary clause. On May 8, 1983, Elmer Davis died, and the will was admitted to probate on May 31, 1983. Davis’s next-of-kin were Billie Warren, a great-niece, and Eunice Rasco. Rasco was Davis’ sister and the mother of the four nephews who were his co-partners in the limited partnership. On August 22, 1983, Warren filed a declaratory judgment action with the Circuit Court of Shelby County, seeking a declaration that the partnership interest of Elmer Davis should not be allowed to pass to the nephews, due to a limitation in the language of the partnership agreement. Appellee Rasco filed an answer to Warren’s complaint, along with a motion for judgment on the pleadings, on August 29, 1983. On December 6, 1983, the motion was granted by the court below. After a motion to reconsider was denied, plaintiff Warren appealed.

The dispositive issue on appeal is whether Rasco’s judgment on the pleadings is correct. We are of the opinion that it is not, and reverse that judgment.

A motion for judgment on the pleadings is designed to provoke a search of the pleadings for the purpose of determining whether there is an issue of fact presented by the pleadings which requires the introduction of proof. As sometimes stated, a motion for judgment on the pleadings presents two questions: whether there is any issue of material fact and, if no issue of material fact is presented by the pleadings, which party is entitled to judgment.

71 C.J.S. Pleading § 425(a) (1951) (Citations omitted).

There is an issue of material fact in this case to preclude the grant of appellee’s motion: the contracting parties’ intent at the time the limited partnership agreement was executed. Simply by considering the pleadings, and the section of the agreement dealing with transferability of partnership interests, the court below could not properly discern what the intent of the parties was when they formed the partnership.

Paragraph 10(c)(1) is the focus of our review. Appellant argues that this paragraph states that when a partner wants to transfer his interest by a will, he must do so to a member of his immediate family. Appellee contends that the language means that if a partner wishes to transfer his interest to a member of his immediate family, then he must do so by will, but that he can also transfer his interest by will to someone who was not a member of his immediate family. The court below found this language to be unambiguous. We disagree. According to Black’s Law Dictionary, language in a contract is “ambiguous” if it is “reasonably capable of being understood in more than one sense,” citing City of Sioux Falls v. Henry Carlson Company, Inc., 258 N.W.2d 676, 679 (S.D.1977). This is the very situation the court below was confronted with — a statement that could be read in either of two ways to produce two entirely different results. Clarification of the ambiguous language is needed, which would necessarily come from evidence as to the intent of the parties at the time the agreement was executed. This evidence not being before the court below, we cannot allow its decision on the issue to stand.

The operation of a motion for judgment on the pleadings is confined within rather narrow limits and should not be unduly extended, and the court will exercise great caution in rendering such a judgment. It is frequently said that the granting of a motion for judgment on the pleadings is not looked on with favor by the courts.

71 C.J.S. Pleading § 424 (1951) (citations omitted).

A motion for judgment oh the pleadings should only be granted when there is not even a scintilla of evidence supporting a claim of ambiguity. As we have previously stated, there are two possible interpretations of the language; therefore, the trial court should have denied the motion and proceeded with the trial of the case.

Rasco also argues that Warren does not have standing to sue in this case. The resolution of this issue is dependent upon the trial court’s decision as to what the parties intended when they drew up the agreement. If the language is construed as Warren contends it should be, then a direct benefit is conferred upon her, thus giving her standing.

For the above-stated reasons, we reverse the judgment of the trial court and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    June REEVES v. ORKIN EXTERMINATING CO., INC.
    83-704.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      John E. Rochester of Thompson & Rochester, Ashland, for appellant.
    Lewis H. Hamner, Jr., Roanoke, for ap-pellee.
   FAULKNER, Justice.

Mrs. Reeves brought this action against Orkin Exterminating Company for fraud and breach of contract. Her complaint alleged that Orkin had breached an agreement to rid her home of termites. The case was called and a jury impaneled. Last minute negotiations were commenced and a settlement was announced to the court by counsel for both parties. Upon being informed of the agreement, the trial court released the assembled witnesses and the jury-

Several days later, Mrs. Reeves contacted the court and informed it that she did not wish to be bound by the agreement entered into on her behalf. The court advised her that it would be necessary for her or her lawyer to file a motion in order for the court to consider granting her relief from the agreement. Mrs. Reeves asked her attorney to withdraw from the case. He filed a motion seeking to withdraw, which was granted.

When Orkin made a tender pursuant to the agreement, Mrs. Reeves refused to accept it and Orkin.filed a motion seeking to enforce the agreement against her. Or-kin’s motion was set for hearing. On the appointed day, Mrs. Reeves contacted the court and stated that the new lawyer she intended to hire was unable to attend the hearing due to a conflict. In order to accommodate Mrs. Reeves, the court continued the hearing for five days. At that time a hearing was held at which Mrs. Reeves appeared pro se.

Mrs. Reeves, the attorney who had previously represented her, and the attorney who had represented Orkin in the negotiations culminating in the agreement in question all testified at the hearing. Mrs. Reeves and the attorney who had represented her had a difference of opinion as to whether she had freely assented to the terms of the settlement. While her testimony at the hearing was somewhat confused, it appears to us from a reading of the transcript that she claimed to have been coerced into assenting to the agreement. She testified that her lawyer harassed her and that after she was “worn down” she told him to “go ahead, tell them anything you want.” The attorney who had represented Mrs. Reeves denied pressuring her into accepting the settlement offer and testified that she had freely assented to the terms of the agreement.

The judge and the two lawyers involved testified about the events leading up to the settlement. They related a lengthy discussion about the case which took place at a pre-trial conference, where the facts of the case and the applicable law were discussed. While it appeared that Mrs. Reeves would have been able to prove that termite damage had occurred, there was some question as to how much of the damage occurred after the agreement with Orkin was executed. There was also damage caused by other kinds of insects, for which Orkin was not responsible. Orkin had spent several thousand dollars making repairs to the property, and Mrs. Reeves had spent $1,700.00 on repairs. Because of a lack of evidence that Orkin entered into the extermination contract with the intention not to perform, and due to the problems associated with trying to separate the damage for which Orkin was responsible from that for which it was not, Mrs. Reeve’s attorney was of the opinion that he would be able to prove only $1,700.00 worth of damages at a trial of the case. Prior to the trial date, Orkin had offered Mrs. Reeves $2,000.00 to settle the case. On the morning that the case was to have gone to trial, Orkin authorized its attorney to increase its offer to $3,000.00 in order to avoid the expense of litigating the suit.

On September 27, 1983, the court granted Orkin’s motion and entered a final judgment based on the disputed agreement. On October 26 an attorney not previously involved in the case filed a motion on Mrs. Reeve’s behalf entitled “Motion For Reconsideration,” seeking relief from the judgment. That motion was denied. On January 12, 1984, Mrs. Reeves’s attorney filed a Rule 60(b), A.R.Civ.P., motion seeking relief from the judgment and as grounds for her motion alleged:

1. That the court’s final order, judgment, or decree was based upon a mistake and misunderstanding by and among the plaintiff, her attorney, and defendant’s attorney, and the court.

2. That the order, judgment or decree was not equitable in that the plaintiff was not adequately compensated for the damages she suffered.

The trial court denied the motion, and Mrs. Reeves appeals.

An attorney representing a party to a lawsuit has the authority to bind his client by any agreement made in relation to that proceeding which is either made in writing or “by an entry to be made on the minutes of the court.” Section 34-3-21, Code of Alabama, 1975. In this case, Mrs. Reeves’s attorney entered into an agreement on her behalf, and that agreement formed the basis of the judgment dated September 27, 1983. Mrs. Reeves can no longer attack the validity of the agreement, because she failed to appeal from the judgment enforcing the agreement against her.

It is clear that the trial court did not abuse its discretion in denying the Rule 60(b) motion. Appellant has cited no cases to us where a court has ruled that a judgment rendered under circumstances similar to those existing here constituted a “mistake” within the meaning of Rule 60(b)(1). See 7 J. Moore, Moore’s Federal Practice, fl 60.22[2] (2d ed., 1983). Moreover, there is no evidence in the record to support Mrs. Reeves’s allegations that she suffered any damages in excess of $3,000.00. To the contrary, there is considerable evidence to support her prior attorney’s opinion that, had the case gone to trial, Mrs. Reeves would have been able to prove only $1,700.00 of damages. Under these facts, Mrs. Reeves was not entitled to relief from the judgment for “any other reason justifying relief” under Rule 60(b)(6).

The denial of the plaintiff’s motion is hereby affirmed.

AFFIRMED.

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