author: ALMON, Justice.

text:
    OSBORNE TRUCK LINES, INC., and Samuel Dale Cartee v. Reba Mae LANGSTON, a minor, etc. OSBORNE TRUCK LINES, INC., et al. v. James Samuel LANGSTON III, a minor, etc. OSBORNE TRUCK LINES, INC., et al. v. Tommy WHITTEN.
    82-764, 82-1177 and 82-1178.
    Supreme Court of Alabama.
    June 8, 1984.
    Rehearing Denied July 27, 1984.

      Ralph M. Young and Mary Anne West-brook of Gonce, Young, Howard & West-brook, Florence, for appellants.
    Henry H. Self, Jr., Florence, for appellee Rebá Mae Langston.
    Steve Gargis for Gargis & Gargis, for appellee James Samuel Langston.
    Charles D. Rosser, Tuscumbia, for appel-lee Tommy Whitten.
   ALMON, Justice.

These consolidated appeals come here after a trial of the personal injury actions of the three minors, who are the appellees. The jury awarded the children a total of over 2.5 million dollars compensatory and punitive damages for their injuries sustained in the collision between their vehicle and the truck driven by defendant Dale Cartee for defendant Osborne Truck Lines, Inc. The trial court entered judgments on the verdicts and denied defendants’ motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

Defendants raise numerous allegations of error relating to closing arguments of plaintiffs’ counsel, evidentiary rulings, instructions to the jury, and other matters.

The accident occurred in the following manner. Dale Cartee drove a tractor-trailer truck as an employee of Osborne Truck Lines. On the day of the accident, September 15, 1981, he arose at 4:00 a.m. after spending the night in Missouri. He drove to St. Louis, where he delivered his cargo and picked up another load. After delivering that cargo in O’Fallon, Missouri, Cartee began his return trip, arriving in Muscle Shoals, Alabama, around 8:00 p.m. He called his dispatcher, who instructed him to proceed to the Reynolds Metals plant in Sheffield, which was only a few miles away.

As he traveled east approaching the' Reynolds plant on 2nd Street in Sheffield, Cartee prepared to turn left to enter the plant gate. He testified that he turned on his left turn signal about 150 yards before he reached the turn. As he turned across the two westbound lanes of 2nd Street, he heard the crash of a vehicle hitting the side of his truck. He stopped the truck and walked around it, where he saw the plaintiffs’ Volkswagen van wrecked against the side of his trailer. Reba Langston was in the back seat, James Samuel (Sonny) Lang-ston III had been thrown out the door, and Tommy Whitten was pinned in the front seat.

Tommy suffered fairly minor injuries: scrapes, bruises, and a broken rib. Reba and Sonny suffered severe injuries, including numerous broken bones and lacerations. Reba and Sonny were both in body casts for several months, but eventually recovered with some permanent impairment. Reba has a disfiguring scar across her neck. The jury awarded $1,525,000.00 to Reba, $1,000,000.00 to Sonny, and $56,-000.00 to Tommy.

Closing Arguments

The defendants argue first that the trial court erred in overruling objections to portions of the plaintiffs’ closing arguments. The first of these matters concerns a question to the jury about how much it would take to punish defendant Osborne Truck Lines as a corporation. In support of the proposition that this was improper argument, defendants cite such cases as Liberty National Life Ins. Co. v. Kendrick, 282 Ala. 227, 210 So.2d 701 (1968); Alabama Fuel & Iron Co. v. Andrews, 212 Ala. 336, 102 So. 799 (1925); and Alabama Fuel & Iron Co. v. Williams, 207 Ala. 99, 91 So. 879 (1921).

While some of the argument may have been improper, the only ruling presented for our review is the overruling of an objection during rebuttal argument by one of plaintiffs’ attorneys. The same attorney had asked essentially the same question without objection during his initial closing argument. Cf. B & M Homes, Inc. v. Hogan, 376 So.2d 667, 673 (Ala.1979), applying the rule that prejudicial error may not be predicated upon the admission of evidence which has been admitted at some other stage of the trial without objection.

Moreover, defense counsel made statements in closing argument regarding the status of the defendants, including the following:

“If they talk to you about a corporation, and talk to you about a corporation as if it was some of — it’s people and a corporation can only be responsible and liable in a court of law like this if the people in the corporation did something wrong and therefore do not let your judgments of this be swayed by thinking that it’s something off over yonder separate and apart from the men and the women that make it up because it’s only that, it’s only the people who are part of the corporation.
"... We all have prejudices. I’m afraid that a lot of us have prejudices against trucking companies, truck drivers ....
“... But don’t let the fact that the defendants are a trucking company and a truck driver determine the way in which you rule in this case. I would ask you, under the pledge that you gave me for my clients, to decide this case as if it was — what stereotype do we have, a little old school teacher, that’s supposed to be driving my mother back here driving the car down there ....”

The context of the argument to which defendants objected shows that it was a reply in kind to statements of the sort quoted above:

“Mr. Young and them have talked about sympathy. We don’t want your sympathy; we want y’all to do your duty, but at the same time we don’t want you to be held back by a fear that you’re going to be unfair to somebody. They say don’t be unfair to Osborne because it’s a Corporation. They say a corporation is made up of people and they're right. But we can’t sue those people, we have to sue the corporation. They say don’t be unfair and prejudiced just because it’s a corporation but at the same time you’ve got to consider in deciding on the question of punitive damages, what it would take to punish this corporation. Can you punish Osborne corporation with an amount of money that would punish one of us? Ten thousand dollars would punish me, but would that punish this corporation that they’re asking you to compare with? I told you in the beginning — [objection interposed].”

Arguments which are replies in kind or are provoked by arguments of opposing counsel do not amount to reversible error. Lawrence v. Alabama Power Co., 385 So.2d 986 (Ala.1980); Central of Georgia Ry. Co. v. Phillips, 286 Ala. 365, 240 So.2d 118 (1970); St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683 (1961). The remarks to which defendants objected come sufficiently within this rule that the overruling of the objection was not reversible error.

Defendants next argue that plaintiffs’ counsel improperly requested the jurors to consider how much they would take to have their children injured as these plaintiffs were, and that the trial court improperly overruled defendants’ objections. This colloquy went as follows:

“Mr. Young is probably going to say something about a suit for five million dollars. Well, let me talk about a family. Talk about a family and a man comes in and says I’m going to give you five million dollars family, but here’s what you got to do. You got to agree to let your two children be in a van that’s in a crash, like what these children were in. And you’ve got to agree—
“Mr. Young: Your Honor, we object to the argument that Mr. Self is making at this time. It’s an inappropriate argument to argue that before an accident a person could be offered any amount of money to have someone undergo injuries. It is an improper argument to use that as measure of damages for award of damages after an accident has occurred. It is an argument that Mr. Self knows is inappropriate. We again request the Court to request Mr. Self to argue things he knows is proper. That just simply is not an appropriate argument and Mr. Self knows that it isn’t.
“By the Court: Overruled.
“Mr. Self continues; And you’ve got to agree to have them both busted up, horribly injured, miserably twisted on the roadway. And you’ve got to agree that they go through all these operations and all this pain and all these body casts, and you’ve got to agree that they’re going to have some permanent problems the rest of their lives. You’ve got to agree that they face death. Would you take five million dollars?
“Mr. Young: Your Honor, at this time we renew our objection that he has completed it [sic]. That is an improper argument and we move for the Court to instruct the jury that it is not a proper argument, it is not a measure of damages in Alabama, nor a legal way to measure damages, what a person would take in anticipation in advance of an accident to go through an injury such as this.
“By the Court: Overruled.”
“Mr. Self continues: If they came to this family and said unless you pay me five million dollars this is going to happen, I know I’d mortgage my eternal soul to come up with that money to keep it from happening to my kids. And why is this any less important than property damage? If it was Osborne’s truck and they had a cargo and they had a trailer they’d want every cent. If they agree to haul for somebody and they don’t pay them, they want every cent. And see they get into it voluntarily.... These kids didn’t agree to do this voluntarily. Their claim is more sacred than a contract claim....”

A request that the jury put themselves in the place of the plaintiff, made as an appeal to the jurors’ feelings and passion, is improper argument. Estis Trucking Co. v. Hammond, 387 So.2d 768 (Ala.1980). But see Fountain v. Phillips, 439 So.2d 59 (Ala.1983), and Atkins v. Drake, 437 So.2d 469 (Ala.1983), finding no prejudice in closing remarks.

The context of the objected-to argument shows that it was an allegorical discussion of an imaginary family delivered to illustrate a point about damages. While the particular remark, “Would you take five million dollars?” has the appearance, at least in a printed record, of verging on an appeal to the sympathy of the jury, defendants did not object on this ground at trial. The objections never mentioned an appeal to the sympathy of the jury, but only stated that what “a person” would take in advance of an accident was not a proper measure of damages. When an objection is made on specific grounds, other grounds may not be raised on appeal. Stephens v. Central of Georgia R. Co., 367 So.2d 192 (Ala.1978), and eases cited therein.

Defendants further argue that plaintiffs’ counsel improperly told the jury not to worry about awarding too large a verdict because the trial court or this Court would reduce the verdict if it was too large. The transcript reveals that the following took place:

“Mr. Rosser: One last thing, I don’t want you to worry about your verdict for punitive damages being too big. If you decide that in order to get the attention of the Osborne corporation you’ve got to return a verdict of punitive damages of one million dollars or whatever, of course, Tommy has only asked for two hundred and fifty thousand, whatever your verdict is, if some of you should say that’s too much, it’s unfair, the judge has the authority and I assure you will reduce it if it’s too much and if she doesn’t the Supreme Court of Alabama will reduce it. What we’re asking you for is your opinion—
“Mr. Young: Your Honor, just a minute, Mr. Rosser, we have got to object to Mr. Rosser arguing to the jury that they should award a verdict without respect of what is a reasonable verdict because if it’s too much that the Supreme Court or you will have something to say about it at that time. It’s an illegal argument to ask them to give a large verdict on the assumption that you or someone else would have an overview of it and that should be the basis of the award of damages, that is not the measure of damages, Your Honor.
“By the Court: Let me say this, ladies and gentlemen of the jury, your verdict must be based upon the evidence and the law in this case. That’s the instruction I’ve given you throughout this case and that’s the instruction I’m going to give you in a little while after lunch break, but your verdict in this case, as in any other case, must be based upon the evidence that you’ve heard in this case and the law as I give to you in this case.”

This instruction adequately cured any prejudice created by counsel’s remarks, and defendants requested no further action. There was no error to reversal here.

Defendants next take issue with the fact that plaintiffs’ counsel stated to the jury, “You didn’t hear his driving record; we couldn’t get that in over his objection.” Here again, the court sustained the objection and instructed the jury to disregard the remark. Moreover, defendants' counsel had opened the matter up, and the fact that this remark was reply-in-kind is manifest from the statement just prior to the one quoted: “[Cartee has been a] professional driver for sixteen years, who Mr. Young says has a perfect driving record.” Here again, there is nothing to review and no reversible error.

As their final assertion of prejudicial remarks during closing argument, defendants cite the following: “Just a slight—you put all our evidence on this side and their evidence on this side and all we’ve got to do is tip the scale just a little bit and we win_” The trial court overruled defendants’ objection that this argument misstated the burden of proof. This statement was merely an illustration of the concept of the burden of proof, implying that the preponderance of the evidence must balance in favor of the plaintiffs, which is the correct standard.

Defendants also argue that the trial court erred in allowing plaintiffs, in connection with their closing arguments, to display charts itemizing damages for Reba and Sonny, including future medical expenses and lost earning capacity. The evidence showed that Sonny suffered a slight permanent loss of motion in one ankle with the possibility that he might develop osteoarthritis in that ankle. His doctor testified that he would not need further treatment, other than aspirin for pain, and would be able to work normally unless he developed the osteoarthritis. Reba’s injuries were more serious, possibly requiring further surgery to increase flexion in one knee and to reduce the scar on her neck. Even with further surgery on the knee she would have a permanent loss of ability to fully bend the knee.

When defendants objected to the use of the charts, which included specific figures for future medical expenses and lost earning capacity, the trial court instructed the jury:

“I want to tell you that the attorneys on both sides have a right and a duty to argue to you the evidence and their inferences from the evidence at the end of the case, which is what we’re doing right now. However, I do want to instruct you, ladies and gentlemen of the jury, that what attorneys say to you during a trial is not evidence and you should disregard anything that is not supported by the evidence or by the law as it is given to you by the Court.”

This instruction cured any prejudicial effect which might have arisen by virtue of the fact that the charts included figures greater than what the evidence would support.

Federal Motor Carrier Safety Regulations

The court, in instructing the jury, read portions of the Federal Motor Carrier Safety Regulations, which plaintiffs alleged and offered proof that Cartee had violated with Osborne’s knowledge and approval. Defendants argue that the manner in which the court read these regulations in conjunction with the Alabama rules of the road could have misled the jury into believing that violation of the federal regulations constituted negligence per se.

The trial judge did not literally read the federal regulations as part of the Alabama rules of the road. The judge introduced a series of charges with the words, “I further charge you, ladies and gentlemen of the jury,” prior to and after the charges in question. The charges on which defendants predicate error are as follows: which is within the intersection or so close thereto as to constitute an immediate hazard.

“I further charge you, ladies and gentlemen of the jury, that in Alabama we have certain statutes called the rules of the road. The Alabama rules of the road consist of a number of statutes enacted into law by your legislature regulating the flow of traffic upon the highways of this state. The violation of certain of these rules of the road by persons using the public highways is negligence as a matter of law. Such negligence, however, in order to be actionable on the part of the Plaintiff or a defense on the part of Defendants must proximately cause or proximately contribute to the injury complained of by the Plaintiff. I will now read to you certain of these rules of the road the violation of which is negligence as a matter of law. The fact that I read these statutes is no indication that any of these statutes has been violated or that any such violation proximately caused or proximately contributed to the injury complained of by the Plaintiffs. It is for you to decide whether or not any such violation proximately caused or proximately contributed to the injury complained of by the Plaintiffs depending on what you find the facts to be. Code of Alabama Section 32-5a-l.ll reads as follows: the driver of a vehicle intending to turn to the left within an intersection into an alley, private road, or a driveway, shall yield the right-of-way to any vehicle approaching from the opposite direction,

“I further charge you members of the jury, that the Federal Motor Carrier Safety Regulations in effect at the time of the occasions complained of reads [sic] as follows, Section 392.3: No driver shall operate a motor vehicle and a motor carrier shall not require or permit a driver to operate a motor vehicle while the driver’s ability or alertness is so impaired or so likely to become impaired through fatigue, illness or any other cause as to make it unsafe for him to begin or continue to operate the motor vehicle. Section 390.32 reads: whenever in parts 390 to 397 of this subchapter a duty is prescribed for a driver or a prohibition is imposed upon him, it shall be the duty of the motor carrier to require observance of such prescription or such prohibition and if the motor carrier is himself a driver he shall likewise be bound thereby. Section 395.3 reads: no motor carrier shall permit or require any driver used by it to drive, nor shall any such driver drive more than ten hours following eight consecutive hours off duty or drive for any period after having been on duty fifteen hours following eight consecutive off duty.”

These regulations were admitted into evidence and the one last quoted was the subject of much discussion during trial. Plaintiffs sought to prove that Cartee, with the approval of his dispatcher, had driven for twelve and a half hours on the day of the accident, and Cartee’s own testimony showed that he first went on duty more than sixteen hours before the accident happened.

Defendants’ objections to the court’s oral charge included, on this point: “The Defendant further cites [as] error the inclusion of the regulations set forth in the Motor Vehicle Safety Act as part of the rules of the road—

“By the Court: I didn’t.
“Miss Westbrook continues: It sounded like it.
“By the Court: O.K.
“Miss Westbrook continues: —which constituted negligence per se.
“Mr. Young: And that the violation of such regulation would constitute negligence per se.
“Miss Westbrook continues: No explanation was given as to any effect of it.
“By the Court: O.K.”

While it is true that the trial court read the federal regulations immediately after reading some of the Alabama rules of the road, the court did not in fact instruct that the regulations were part of the rules of the road or that violation would constitute negligence per se. The objections that it “sounded like” the regulations were included with the rules of the road, and that no charge was given as to the effect of the regulations, were not sufficient to put the trial court in error.

The court properly instructed the jury that violation of the Alabama statutory rules of the road may constitute negligence per se and then read a pertinent statute complete with Alabama Code citation. The court then identified the federal regulations as such and proceeded to read several of them. The court committed no error in these actions.

Regarding the objection that no explanation was given as to the effect of the regulations, it was incumbent upon the defendants to make a more specific request in order for the trial court to be put in error. The Motor Carriers Act, under which the regulations were promulgated, imposed upon the Interstate Commerce Commission the duty to make such regulations for safe operation, including “qualifications and maximum hours of service of employees.” 49 U.S.C. § 304(a). Violation of the regulations carried criminal penalties. Id., § 322(a). Thus, the charge as read was an accurate statement of applicable law.

While it is true that Rule 51, A.R.Civ.P., dispensed with the requirement of submitting additional explanatory charges, see, e.g., Feazell v. Campbell, 358 So.2d 1017 (Ala.1978), the trial court should not be put in error here, because the charge was otherwise correct and was not so incomplete as to mislead the jury. Cf. Odom v. Linsey, 365 So.2d 664 (Ala.1978). Defendants made no suggestion as to what the effect of the regulations might be and so did not present the trial court with any indication as to how the instruction was incomplete. We note the holdings in Industrial Tile, Inc. v. Stewart, 388 So.2d 171 (Ala.1980), and Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651 (Ala.1976), that OSHA standards were admissible regarding the standard of care to be followed. By analogy, an instruction that the jury could consider the Motor Carrier Safety Regulations in determining defendants’ standard of care would have been appropriate. Defendants made no such request, however, and had not objected to the introduction of the regulations into evidence, so they cannot complain here that the trial court committed error.

Wantonness

The trial court denied defendants’ motion for a directed verdict on the wantonness count. The court based its ruling on Cartee’s violation of the Motor Carrier Safety Regulations, and defendants argue that this was error. While we agree that the mere violation of these regulations would not support a claim of wantonness, cf. Tew v. Jones, 417 So.2d 146 (Ala.1982), we decline to reverse the trial court’s ruling because there was sufficient evidence of wantonness. Tommy Whitten testified that the truck turned in front of him without stopping or giving a signal. Cartee said that he turned on his left turn signal well before the turn, but admitted that he turned without stopping.

Cartee testified that he did not see the plaintiffs’ vehicle, and defendants sought to prove that the plaintiffs did not have their lights on. The investigating officer testified that the headlight switch on the Volkswagen was in the “off” position when he examined it shortly after the accident. Plaintiffs’ expert witness testified that he found a filament from the right headlight which had been burning when the accident occurred. Tommy testified that his headlights were on. The road was flat and straight along the plaintiffs’ line of travel, so Cartee had an unobstructed view.

The above items of evidence are sufficient to show that the jury would have been entitled to disbelieve Cartee’s testimony that he did not see the van or to find that he acted with such reckless disregard of the presence of other vehicles as to justify a finding of wantonness. The jury could also have found that Cartee was fatigued because of the inordinate length of time he had driven the truck and with knowledge of that fact continued to drive.

“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. But knowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact or actual knowledge is a legitimate inference.”

Lankford v. Mong, 283 Ala. 24, 26, 214 So.2d 301 (1968) (citations omitted). See also Prescott v. Martin, 331 So.2d 240 (Ala.1976); Sparks v. Milligan, 295 Ala. 358, 330 So.2d 417 (1976).

Evidentiary Rulings

Defendants allege error in a number of rulings on admissibility of evidence. The first of these involves cross-examination of defendant Cartee on a criminal conviction: “Isn’t it also true that you got fired from Courtland Paper Mill for stealing and that you were convicted for that?” The trial court sustained defendants' objection and instructed the jury to disregard the question:

“Ladies and gentlemen of the jury, I m going to sustain the objection and I’m going to instruct you something that I’ve not instructed you before. I’m going to instruct you to disregard this last question completely. Now, you remember that I told you that the evidence comes from the witness stand; what the lawyers tell you is not evidence and I want to say this to you, you are to disregard this last question that was made by this lawyer. I also want to tell you this: when I tell you to disregard it, that means that you, even if you cannot erase it from your mind, you absolutely cannot take it into consideration. You absolutely cannot take it into consideration when you go into the jury room.”

Outside the presence of the jury, defendants then moved for a mistrial. They argued that the district court conviction to which plaintiffs referred had been nol-prossed on appeal to circuit court. The court questioned Cartee, but he was unable to respond more definitely than to say he had been told the case had been thrown out. The court overruled the motion for mistrial, observing that it was not sure any error had been committed, since there was proof of the conviction but no proof of the result in circuit court, but “even if he was not convicted, I think it was cured when I told the jury to disregard the question.”

A witness may be questioned about a conviction of a crime involving moral turpitude for purposes of impeachment. Code 1975, § 12-21-162(b). Prosecutions which result in less than a conviction are not admissible. Wright v. State, 354 So.2d 838 (Ala.Crim.App.1977), cert. denied, 354 So.2d 842 (Ala.1978). The trial court sustained the objection to the question, however, and forcefully instructed the jury to ignore the question. Any error prejudicial to defendants was sufficiently cured, so there were no grounds for a mistrial. Wright v. State, supra.

Defendants next argue that the trial court erred in overruling questions posed to Cartee based on charts in a Rand-McNally atlas showing the distance and driving time between various points on his route. Defendants claim that the charts are hearsay and the atlas was not introduced into evidence. Rule 44(g), A.R.Civ.P., adequately answers these contentions:

“Historical works, books of science or art and published maps or charts, when made by persons indifferent between the parties, are prima facie evidence of facts of general notoriety and interest.” (Emphasis added.)

Cartee had testified as to his driving time on the day of the accident, denying that he had driven more than ten hours that day. He disagreed with the figures from the atlas about which he was questioned, but questions based on those figures were proper cross-examination.

Defendants next contend that the trial court erred in overruling objections to questions posed to Cartee about a prior accident. The record shows, however, that defendants’ attorney told the jury in opening statement that “The evidence is going to be that this is the first wreck that he has ever had.” Cartee answered a question on direct examination as follows:

“Q. Did you make any observation or any determination as to whether or not he could get out of the van?
“A. No sir, I did not, because, you know, I was scared, I had never had a [sic] accident or nothing like this and I knew he was hurt—
“Mr. Self: Your Honor, at this time we want to point out to the Court that he opened the door.”

After the court overruled the objections to the cross-examination about a prior accident, Cartee answered:

“A. I never said I’d never had an accident of this sort—
“Mr. Rosser continues: What did you say?
“A. —I mean never had a [sic] accident before, I said a [sic] accident where anyone was hurt and involved.”
“Q. You turned a truck over one time didn’t you?
“A. Yes sir.
“Q. Freight truck?
“A. Yes sir.
“Q. Because you ran off the road?
“A. I was going up a two-lane road and the shoulder was high on the road and the right front wheel fell off and it turned.”

Defendants cite Gamble, McElroy’s Alabama Evidence § 14.01 (3d ed. 1977), on the doctrine of “curative admissibility” and argue that none of the prerequisites were met for admission of the evidence of the prior accident. They point out that the remarks in opening statement were not evidence and that Cartee’s answer in which he said he had not had a prior wreck was not responsive.

McElroy’s cites Camp v. Dobson, 228 Ala. 32, 152 So. 38 (1934), for the proposition that an unresponsive answer to a proper question does not open the door for an opponent to introduce illegal evidence in rebuttal. The holding in Camp rested in part on the fact that the answer “was a mere voluntary statement” and the contestant was “not to be held so highly responsible for the form of the answer given.” Id., 228 Ala. at 35, 152 So. 38. The situation at bar is distinguishable, however, because of the prior statement to the jury that the evidence would show “that this is the first wreck that he has ever had.” Plaintiffs’ attorney only questioned Cartee to the extent of clarifying his testimony that he had not been in a wreck with injuries. No prejudicial error arose in this line of questioning. See Plenkers v. Chappelle, 420 So.2d 41 (Ala.1982); Wilkinson v. Duncan, 319 So.2d 253 (Ala.1975).

Defendants next refer to an item in the testimony wherein one of Reba’s doctors was allowed to comment on the report of another one of her doctors. The report had been admitted into evidence and the testimony from the stand was wholly insignificant as regards any element of the case. Any error was harmless. Rule 45, A.R.A.P.

The same holds true for the defendants’ assignment of error in the overruling of objections to cross-examination of James McKay, a personnel and safety employee of Osborne. Plaintiffs asked McKay if he knew why the federal regulations prohibited driving more than ten hours or being on duty for more than fifteen hours per day. The questions called for yes or no answers. The trial court overruled objections to both questions, and McKay, instead of answering whether or not he knew the purpose, answered in a general and evasive way that “[t]he federal government puts the rules and regulations out and we [are] supposed to abide by them to the best of our ability,” and after fifteen hours “then a man must have eight hours rest .... ” The Federal Motor Carrier Safety Regulations had been admitted into evidence, and we see neither error nor prejudice to defendants from this exchange.

Defendants raise two allegations of error relating to questions they propounded to Ralph Cunningham, a witness defendants placed on the stand as an accident reconstruction expert. The first allegation involves questions seeking to qualify him as an expert. At the outset of his testimony he was asked about the information he gathered, and plaintiffs objected that he had not yet been qualified as an expert. Shortly thereafter, he was asked about the academic qualifications of the engineers for whom he worked, and plaintiffs objected that the questions called for hearsay. After these objections were sustained, defendants asked further detailed questions about Cunningham’s background and then asked him questions about his reconstruction of the accident.

“Whether or not a particular witness will be allowed to testify as an expert is in the sound discretion of the trial court, whose decision will not be disturbed on appeal except for palpable abuse.” Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348, 1353 (Ala.1982); Meadows v. Coca-Cola Bottling, Inc., 392 So.2d 825 (Ala.1981); Brown v. AAA Wood Products, Inc., 380 So.2d 784 (Ala.1980). Here, the defendants do not even object to the refusal to allow a witness to testify as an expert, but only to the manner in which he was allowed to be qualified. We find no abuse of discretion by the trial court in these rulings.

The second allegation of error in connection with Cunningham’s testimony regards questions asked him about his reconstruction of the accident. He went to the scene of the accident and observed Cartee turning in a manner similar to the turn which occasioned the accident. Cunningham timed the truck from the time the front wheels crossed the center line into the oncoming lanes until it reached the point of impact, a distance of about eighty feet. On four turns, he clocked times of 4.13 seconds, 4.42 seconds, 6.20 seconds, and 4.94 seconds. He testified that to travel the distance in 4.13 seconds, the truck would be going thirteen miles per hour.

In earlier testimony, Cunningham testified that he estimated the truck traveled twelve and a half feet after impact. He had also said that the average reaction time for a person to put on brakes after an impact is three-quarters of a second, and in that three-quarters of a second the truck would have traveled 22 feet at twenty miles per hour, 11 feet at ten miles per hour, or 5V2 feet at five miles per hour.

The question to which objection was sustained came immediately after Cunningham testified that the truck would be traveling at thirteen miles per hour to reach the point of impact in 4.13 seconds after beginning the turn:

“Q. And if the truck was traveling thirteen miles an hour at the point of impact, how far would it travel ... during three-quarters of a second?
“Mr. Rosser: At this point we object, because the evidence is that the point of impact locked up the trailer so that it would not roll.
“By the Court: I’m going to sustain the objection.
“Mr. Young: Your Honor, please we take exception to the objection in that it did not say that it locked up the trailer.
“Mr. Young continues: How many feet will a vehicle move at thirteen miles an hour in three-quarters of a second?
“Mr. Self: I object to that, may it please the Court, it has no relevancy. The relevancy is what happened on that day and the trailer wheels were locked up then, I don’t think—
“By the Court: Sustained.”

Defendants assert that the sustaining of these objections was error because they had the right to pose a hypothetical question to their expert predicated on such facts as conformed to the theory they were trying to establish — i.e., that Cartee made the turn slowly because the truck only traveled I2V2 feet after impact, and thus Tommy Whitten should have had time to avoid the impact. They cite Lehigh Portland Cement Company v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968), as authority for the right of an examiner to pose a hypothetical question on such facts in evidence as he sees fit, and state that plaintiffs’ proper action was to cross-examine the witness using their version of the facts.

Plaintiffs counter that defendants’ citation of Lehigh Portland Cement Co. omits a critical qualification of the rule. The pertinent portion of that opinion reads:

“A hypothetical question is not objectionable because it omits to hypothesize every fact shown by the evidence, for an examiner of an expert witness may lay as a basis for the opinion invited only those facts in evidence which conform to the theory the examiner would establish, though, of course, such question should incorporate sufficient facts in evidence to fairly justify the formation of an expert opinion on a material issue in the case; the frame and substance of hypothetical questions to expert witnesses being a matter largely committed to the discretion of the trial court. (Citing cases) Sovereign Camp, W.O.W. v. Davis, 242 Ala. 235, 5 So.2d 480.”

Id., 282 Ala. at 516, 213 So.2d 246 (emphasis as added by plaintiffs).

The testimony that the trailer wheels were so damaged by the impact that they would not turn came from Cartee himself in his deposition. That being admitted by defendants, the hypothetical questions indeed omitted a crucial fact. While there is some merit to defendants’ position that, had the questions been allowed, plaintiffs could have asked a similar question including the effect of the locked trailer wheels, this argument at most indicates that it might not have been an abuse of discretion for the trial court to overrule the objection. Because, however, the omission of a material fact provided a ground on which the question was objectionable, the trial court did not abuse its discretion in sustaining the objections.

Finally, under their issue of erroneous evidentiary rulings, defendants argue that the cumulative effect of these rulings was prejudicial enough that the judgment should be reversed even if not on the basis of any one of them. These rulings are incidents selected from a trial lasting five days and producing a transcript over 600 pages long. In the context of the trial we cannot conclude that these incidents deprived defendants of a fair trial.

Contributory Negligence

The trial court directed a verdict for Reba and Sonny on the defense of contributory negligence interposed against their claims. Defendants argue that it was error to direct a verdict as to Sonny, because there was a scintilla of evidence that he was driving. Plaintiffs, however, point out that the agreed summary in the pre-trial order referred to “a 1966 van being operated by Tommy Whitten and in which Reba Mae Langston and James Samuel Langston III were passengers _” The defendants’ motion to consolidate the cases for trial similarly referred to “a vehicle being driven by Tommy Whitten.”

Agreements and stipulations made in a pre-trial order are binding on the parties and control the subsequent course of the action. Watson v. McGee, 348 So.2d 461 (Ala.1977); Rule 16, A.R.Civ.P. Defendants argue that the issue of whether Sonny was driving was tried by implied consent, see Rule 15(b), but the evidence they cite mainly describes the positions of Sonny and Tommy after the wreck. This was sufficiently within the proof of the issues properly before the court that we cannot say Rule 15(b) overrode the admissions in the pre-trial order. The trial court did not err in directing a verdict on the defense of contributory negligence of Sonny Langston.

Exeessiveness of the Verdicts

Defendants argue that the verdicts were excessive and were a product of bias and prejudice. They point out that Reba and Sonny each had medical expenses of just over $22,000.00.

The evidence, however, would support substantial damages for pain and suffering, disfigurement, mental anguish, and physical disability. Reba had had six operations by the time of trial; Sonny had had five. They had both spent forty days in body casts and over two months in the hospital. Reba had a permanent disfiguring scar on her neck and they both had permanent impairments, Reba to her knee and Sonny to his ankle. These injuries would support large jury verdicts even without the possibility of punitive damages.

The evidence would also support punitive damages either on the theory that Cartee wantonly turned in front of the plaintiffs or on the indication that Osborne instructed Cartee to drive beyond the Federal driving time limitations and he did so. Indeed, Osborne’s dispatcher told Cartee to drive out and pick up another load at a time when he was already past the fifteen-hour on-duty limit and apparently also the ten-hour driving limit. While the violation of these regulations is not conclusive evidence that Cartee was tired and inattentive, it is evidence of intentional wrongdoing, which would support punitive damages.

Our conclusion that the verdicts are not so high as to necessitate a reversal is bolstered by the fact that the verdict was only $56,000.00 for Tommy Whitten, whose injuries were far less serious. This indicates that the jury awarded a great portion of the damages in favor of Sonny and Reba for their injuries and suffering, not as a result of bias against the defendants.

For the reasons stated, the judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

FAULKNER, JONES, SHORES and EM-BRY, JJ., concur.

      . Although defense counsel referred to the "Motor Vehicle Safety Act" in their objection, the trial court appears to have understood that the reference was to the Motor Carrier Safety Regulations.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Frances E. SHELL, et al. v. JEFFERSON COUNTY, Alabama, etc., et al. The TAXPAYERS AND CITIZENS OF JEFFERSON COUNTY, Alabama v. JEFFERSON COUNTY, Alabama, a County under the Laws of Alabama, et al.
    83-458, 83-480.
    Supreme Court of Alabama.
    July 6, 1984.

      Edward Still of Reeves & Still, Birmingham and H. Powell Lipscomb III of Lipscomb & Lipscomb, Bessemer, for appellants Shell, et al.
    John Paul DeCarlo, Dist. Atty. and Robert Posey, Asst. Dist. Atty., Jefferson County, Birmingham, for appellants.
    Edwin A. Strickland, Robert H. Walston, L. Vastine Stabler, Jr., and Susan H. Snyder of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
    J. Mark Hart and Ralph B. Tate of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for amicus curiae Housing Authority of the Birmingham Dist.
    James J. Odom, Jr. and James L. Richey of North, Haskell, Slaughter, Young & Lewis, Birmingham, for amicus curiae Greater Birmingham Ass’n of Home Builders, Inc.
   SHORES, Justice.

This is an action for the validation of a proposed issue of sewer revenue bonds by Jefferson County, Alabama (the County), initiated by a petition by the County and the members of its governing body, pursuant to the provisions of § 6-6-750, et seq., Ala.Code 1975, in the Circuit Court of Jefferson County, Birmingham Division, against the taxpayers and citizens of Jefferson- County (the defendants) by the County and the members of its governing body. The district attorney of the County filed an answer, as required by law, alleging, among other things, that the proposed issue of bonds violated Amendment 73 to the Constitution of Alabama, and that the revenues pledged to the payment of the bonds were the result of illegal action by the Jefferson County Commission. Frances E. Shell and Carolyn J. Lipscomb intervened by filing an answer and counterclaim; Barbara Houts and Elizabeth R. Still intervened by filing an answer and counterclaim; and the City of Birmingham, a municipal corporation, the City of Bessemer, a municipal corporation, the City of Fairfield, a municipal corporation, Joe P. Bell, J. Hoyt Hall, Jr., and Jim Cooley intervened by filing an answer and counterclaim. The County filed an answer to the counterclaims. The said intervenors (inter-venors) participated fully in the hearing and briefing of the matter in the trial court.

During the .course of the hearing, a contention was made that the attorney general should have been served with a copy of the petition since the constitutionality of a statute of the State of Alabama was brought into question by the County during the course of the hearing. After the hearing and before the entry of the decree, the attorney general was served with a copy of all of the pleadings and filed with the court an acceptance and waiver of the hearing or notice of the proceeding.

The trial hearing was held before the Honorable William A. Thompson in the Circuit Court of Jefferson County, Birmingham Division, who, on January 10, 1984, rendered a decree confirming the validity of the proposed issue of bonds. Four of the intervenors and the defendants filed timely notices of appeal from the decree, and those appeals have been consolidated in this Court. We affirm.

The intervenors filed a motion to dismiss on November 21,1983, based on allegations of the existence of a prior pending claim on the issue in the Bessemer Division of the Jefferson County Circuit Court. No evidence or supporting affidavits were presented by the intervenors that appear in the record supporting these allegations. The intervenors’ motion was overruled by the Birmingham Circuit Court. The record contains a case action summary sheet from the Bessemer case, referred to by the inter-venors, which shows that the claims with respect to the 1983 sewer rates were dismissed in the Bessemer Division on November 15, 1983. The Bessemer court determined on a motion to dismiss in Case No. CY-83-494-C, that it did not have jurisdiction over the issue of the 1983 rates.

It is not controverted that the Jefferson County sewer system has become critically inadequate to meet the needs of the area. Some parts of the system which were constructed between 1900 and 1905 are worn out and falling in. Additionally, many of the sewer plants, such as Ensley, Cahaba, and Patton, have reached maximum capacity. With increased environmental regulations, almost every plant needs to be upgraded. The system has many holes in it, which means that during wet weather, storm water gets into the system and overloads the sewer plants. Great portions of the area served by the system are under moratorium. Others face the possibility of moratorium unless something is done to increase the capacity of the system. Many developments have capped sewers in place, but no trunk lines. Others have septic tanks overflowing onto the surface of the ground, causing health problems.

In response to these problems, the County Commission, through its staff, devised a capital improvement plan, projecting the financial needs of the county sewer system year by year, running to the year 2000.

To finance the capital improvement plan, Jefferson County plans to use assessments, cash flow from sewer revenues, federal EPA grants, and the proceeds of a proposed new $35,000,000 sewer bond issue. Ad valorem taxes are collected for the system, but all of them are pledged for past bond issues. The proposed bond issue is to be secured by the revenues from the sewer system. It is payable over a period of thirty years. There are covenants in the bond indenture to maintain sewer rates sufficient to cover operating expenses, debt service, and certain other funds designated in the indenture. The sewer rates adopted in 1983 meet these requirements and have not been, are not being, and cannot be used for any other purpose.

Essentially, the questions in this case deal with the legality of the bond issue and the sewer rates pledged to retire the bonds.

The appellants (defendants and interve-nors) contend that the trial court erred in three ways:

(1) In holding that Amendment 73 of the Constitution of Alabama does not prohibit the action of the County Commission in authorizing the bond issue and sewer user fees;

(2) In holding Act 619 of the 1949 Legislature, 1949 Regular Session, unconstitutional, which the appellants contend limits the amount of sewer fees Jefferson County is authorized to collect; and

(3) In refusing to abate the action.

For a better understanding of the constitutional and legislative issues involved in this appeal, it is helpful to review the history of both. In 1933, the legislature passed the Kelly Act, now §§ 11-81-160, et seq., Ala.Code 1975, to permit any county or incorporated municipality in Alabama to acquire a sanitary sewer system, to operate the system, and to issue sewer revenue bonds. The Kelly Act, still law, expressly authorizes the issuance of revenue bonds for “financing the acquisition, improvement, enlargement, extension and repair” of a sewer system. § ll-81-166(a)(l). These bonds are revenue bonds, to be paid solely from the revenues of the system, and do not constitute a debt of the issuer and do not require an election. The Kelly Act was held by this Court to be constitutional in Oppenheim v. City of Florence, 229 Ala. 50, 155 So. 859 (1934), and Smith v. Town of Guin, 229 Ala. 61, 155 So. 865 (1934).

Bond issues which were secured all or in part by the general credit of the county, unlike revenue bonds, created a debt of the county and were, thus, subject to the requirements of §§ 222 and'224 of the Constitution of Alabama. Section 222, as here pertinent, provides that bonds which create a debt of the county can be issued only after an election, receiving the approval of a majority vote of the qualified voters voting in such election. Section 224 (until increased to 5% in 1976 by Amendment 342) limited the debt of the county to an amount no greater than 3V2% of assessed value of the property in the county.

In an advisory opinion sought by the governor in 1933, the justices of this Court advised that if a Kelly Act bond issue is secured in part by a pledge of revenues of an existing system to finance an improvement to that system, then the bond issue constituted a debt for purposes of § 222 of the Constitution, and the bond issue must be submitted to the voters. Opinions of the Justices, 226 Ala. 570, 148 So. 111 (1933). (This construction of § 222 was expressly repealed as to cities by Amendment 107 in 1954 and by Amendment 398 in 1982 as to counties.) Because the same principle of debt was equally applicable to Section 224, it followed that a sewer revenue bond for the extension of an existing system would, under the reasoning of the justices in the advisory opinion, also be subject to the 3V2% limitation contained in § 224.

Thus, in 1948, prior to the adoption and ratification of' Amendment 73, Jefferson County had the authority to acquire, improve, and extend its sewer system, and to issue revenue bonds secured by sewer charges. However, under the Opinions of the Justices, supra, the limitations on borrowing contained in § 224 of the Constitution applied, if the authority was exercised so as to use the revenues from the existing system to secure the bond issue. It was against this background that Amendment 73 was proposed, adopted, and ratified in 1948. The pertinent provisions of Amendment 73 follow:

“Jefferson County Sewer Bonds

“In addition to any indebtedness now authorized, Jefferson county may become indebted and may issue bonds therefor in an amount not exceeding 3 percent of the assessed valuation of the taxable property in said county in order to pay the expenses of constructing, improving, extending and repairing sewers and sewerage treatment and disposal plants in said county. Said bonds shall be general obligations of Jefferson county but shall also be payable primarily from and secured by a lien upon the sewer rentals or service charges, which shall be levied and collected in an amount sufficient to pay the principal of and interest on such bonds, replacements, extensions and improvements to, and the cost of operation and maintenance of, the sewers and sewerage treatment and disposal plants. Such sewer rentals or service charges shall be levied upon and collected from the persons and property whose sewerage is disposed of or treated by the sewers or the sewerage treatment or disposal plants and whether served by the part of the sewer system then being constructed, improved, or extended or by some other part of such system....
“Before issuing any bonds or levying or collecting any such sewer service charges or rentals, the proposal shall first be submitted to and approved by a majority of the voters of the county voting at an election to be called by the governing body thereof....
“The governing body of Jefferson county shall have full power and authority to manage, operate, control and administer the sewers and plants herein provided for and, to that end, may make any reasonable and nondiscriminatory rules and regulations fixing rates and charges, providing for the payment, collection and enforcement thereof, and the protection of its property. This amendment is self-executing.
“The authority to issue bonds shall cease December 31, 1958. The authority to levy and collect sewer charges and rentals shall be limited to such charges as will pay the principal of and interest on the bonds and the reasonable expense of extending, improving, operating and maintaining said sewers and plants; and when the bonds shall have been paid off, service charges and rentals shall be accordingly reduced, it being the intent and purpose of this amendment that the expenses of needed improvements and extensions and maintenance and operation of the sewers and sewerage treatment and disposal plants and no other expenditures shall be paid from such service charges and rentals.”

The appellants argue that the first sentence of the last paragraph extinguished the pre-existing authority in Jefferson County to issue revenue bonds pursuant to the Kelly Act of 1933. This is a strained construction of the amendment and one which finds no support in logic or fact. They argue that the provision of the amendment, “[t]he authority to issue bonds shall cease December 31, 1958,” refers to the authority to issue all sewer bonds. We cannot agree. Rather, a reasonable reading of the language means that the County’s authority to issue general obligation bonds in excess of the restrictions of § 224 terminated on December 31,1958, as did its authority to issue the specific type bond authorized by the amendment, i.e., bonds payable from the revenues of the system, and which were also backed by the general obligation of the County. There is nothing in the amendment to support the argument that by its adoption, Jefferson County lost the authority to issue revenue sewer bonds which every county in the state has under the Kelly Act. This authority includes by § 11-81-161, Code 1975, the authority to construct sewer systems and extensions, enlargements, improvements, and repairs to such systems, and by § 11-81-166, the power to issue bonds to pay for such construction, and the authority to pledge the , revenues from the operations of such system to the payment of principal and interest on the bonds.

As we read it, Amendment 73 authorized Jefferson County to increase its debt limit by 3% of the assessed valuation of the taxable property in the County and permitted Jefferson County to issue a combination revenue and general obligation bond. The amendment required voter approval of the combination bonds issued thereunder, and the authority to issue such bonds in excess of the § 224 debt limit expired on December 31, 1958.

We agree with the conclusion reached by the trial court that Amendment 73 does not prohibit the issuance of sewer revenue bonds by Jefferson County pursuant to the Kelly Act, the plain language of which clearly authorizes such bonds. Darks Dairy, Inc. v. Ala. Dairy Commission, 367 So.2d 1378 (Ala.1979).

The second argument advanced by the appellants turns on the meaning of the remainder of the last paragraph of Amendment 73. They argue that the language does not allow the County Commission to set rates to cover a bond issue which in part covers facilities providing service to new customers. Approximately 80% of the proposed bond issue is to be used to repair and improve the existing system, and 20% is expected to be used to extend the system to residents of the County who have not heretofore benefited from the system, but who helped retire the general revenue obligation bonds issued in 1950, pursuant to Amendment 73. They argue that the second sentence limits the County Commission’s authority only to improve and repair the system as it existed after the issuance of the bonds permitted by Amendment 73.

First, we do not agree that the language of the last paragraph of Amendment 73 refers to a sewerage system frozen in time. Also, we do not agree that it forbids an extension of the existing system to new customers. Because we do not agree with the appellants that Amendment 73 extinguished Jefferson County’s authority to issue revenue bonds under the Kelly Act, ⅜ is to that act that we look. It expressly provides at § ll-81-166(b):

“(b) Any bonds issued under this article shall be made payable solely out of the revenues from the operation of a system or systems of the borrower and may be made payable from any such revenues without regard to whether or not such bonds are issued for the benefit of or with respect to the particular system or systems out of the revenues from which such bonds are made payable and without regard to whether or not the system or systems for the benefit of which the bonds are to be issued have been consolidated and combined with the system or systems from the revenues of which the bonds are made payable.”

The legislature has clearly authorized the action taken by the County, and the entire County benefits from the sewer system. As the Court said in Keene v. Jefferson County, 135 Ala. 465, 33 So. 435 (1902), after the legislature authorized the county to establish a sewer system running only, through the most populous area, financed by an ad valorem tax imposed on everyone in the county:

“It is shown that about two-thirds of the population of Jefferson county, or more than 100,000 people, live in the two valleys and at the foothills, through which the trunk lines of the sewers are proposed to be run, and that three-fourths in value of all the property in the county is within the area of drainage covered by these two trunk lines of sewer. The system in its beneficial effects, extends to the entire county for the protection of its water courses from pollution, and was intended to meet not only the present needs, but to fulfill in the future, the requirements of sanitation and health in cities and towns, and in all the thickly settled portions of the county. The health of the valleys drained is of great importance to every citizen of the county, in preventing the spread of contagious and infectious diseases throughout its borders. The prevention' of diseases is oftener better and cheaper than to cure them when they come.”

135 Ala. at 474, 33 So. at 438.

We, as did the trial court, hold that the extension of the sewerage system to new customers and the imposition of user fees are not prohibited by the language of Amendment 73 and are expressly authorized by § ll-81-166(b), Code 1975, which is applicable to Jefferson County. In addition, § ll-81-166(b), Code 1975, does not restrict the class of users upon which the fees may be imposed. It specifically states that the fees may be imposed

“without regard to whether or not such bonds are issued for the benefit of or with respect to the particular system or systems out of the revenues from which such bonds are made payable and without regard to whether or not the system or systems for the benefit of which the bonds are to be issued have been consolidated and combined with the system or systems from the revenues of which the bonds are made payable.”

Appellants next argue that Act 619 of the 1949 Regular Session restricts the authority of the County to fix sewer rates by limiting the sewer rates to 50% of the water bill. Amendment 73 to the Constitution, in addition to authorizing the issuance of combination revenue/general obligation bonds by Jefferson County, also provides:

“The governing body of Jefferson county shall have full power and authority to manage, operate, control and administer the sewers and plants herein provided for and, to that end, may make any reasonable and nondiscriminatory rules and regulations fixing rates and charges, providing for the payment, collection and enforcement thereof, and the protection of its property.... This amendment is self-executing.”

The simple answer to the appellants’ contention is that a self-executing constitutional provision may not be restricted by the legislature. The justices so advised in Opinions of the Justices, 287 Ala. 337, 251 So.2d 755 (1971), in an inquiry directed to legislation attempting to limit the authority of Jefferson County granted in Amendment 73. There the justices stated:

“The proposed amendments to House Bill 1077 [limiting the amount of sewer rates the County could impose] are both designed to restrict the governing body of Jefferson County as to the rates and charges“whieh it may exact for the use of the sewerage system. We hold, therefore, that those amendments run counter to Amendment LXXIII [73] to the Constitution of Alabama and, therefore, are unconstitutional.”

287 Ala. at 341, 251 So.2d at 759.

Amendment 73 clearly authorizes the County to set rates for sewer service. It does not limit that authority to 50% of the water charges. The amendment is a part of the organic law of this state, ratified by the people. It can be changed only by another amendment to the Constitution. The trial court correctly held that Act 619 was an ineffective effort on the part of the legislature and was, thus, unconstitutional.

The appellants also raise procedural issues which they contend require reversal. Again, we cannot agree.

First, they contend the trial court was without jurisdiction to proceed with this case because the attorney general was not initially served with the complaint in this litigation. He was, however, later served, and he accepted service and waived any objection prior to the court’s judgment. This was a proceeding brought pursuant to § 6-6-750, et seq., Ala.Code 1975, which provides for the judicial validation of obligations of counties, cities, or other government unit. It is a statutory procedure which is quite explicit. It does not require service of process upon the attorney general, but, to the contrary, requires that a copy of the petition be served upon the district attorney of the county in which the proceedings are pending. The district attorney was served pursuant to § 6-6-752 and participated in the proceeding. Thus, the applicable statute was complied with.

While a bond validation proceeding is similar to an action for declaratory judgment, which by § 6-6-227, requires service on the attorney general, it does not contain the requirement that the attorney general be served. The failure to initially serve the attorney general in this proceeding clearly did not oust the court’s jurisdiction, even if, by reference to the declaratory judgment statute, notice to him is implied, a position with which we do not agree.

Finally, the intervenors assert that the trial court was powerless to act in this matter because some prior claim had been filed in the Bessemer Division, which somehow related to some of the same issues involved in this proceeding. The record indicates that when the intervenors filed their motion to dismiss, raising the prior Bessemer litigation, the trial judge there had either dismissed or transferred to the Birmingham Division that portion of the Bessemer litigation which related to the sewer rates involved here. Thus, no issue was pending in Bessemer requiring the Birmingham Division to dismiss this bond validation proceeding.

We find no error in the order appealed from. The judgment of the trial court is, therefore, affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Lilbourne HALL v. INTEGON LIFE INSURANCE COMPANY, et al.
    82-1197.
    Supreme Court of Alabama.
    July 13, 1984.

      John R. Benn, Florence, for appellant.
    Steve A. Baccus of Almon, McAlister, Ashe & Baccus, Tuscumbia, for appellees.
    Donald H. Patterson of Patterson, Weathers & Jester, Florence, for appellee J. Harold Barber.
   ON REHEARING EX MERO MOTU

FAULKNER, Justice.

This action arose out of the plaintiff’s discharge from his position as Integon Life Insurance Company’s regional general agent in Florence, Alabama. The complaint alleged fraud, breach of contract, and wrongful discharge against Integon and tortious interference with Hall’s contract with Integon against Donald Brackin and Harold Barber. The trial court granted summary judgment in favor of all defendants. The plaintiff, Lilbourne Hall, appeals as to Integon Life Insurance Company and Donald Brackin. We affirm in part and reverse in part.

The following counts are germane to this appeal:

COUNT 1 for breach of contract, alleging that under the terms of their contract Hall was entitled to be Integon’s exclusive general agent in the Florence area and that Integon had breached the agreement by appointing another general agent in the area;
COUNT 2 for fraud, alleging that In-tegon fraudulently induced him into entering into a contract to act as its general agent in the Florence area by falsely representing to him that he would have an exclusive agency in the Florence area;
COUNT 3 for breach of contract, alleging that after their written contract was executed the parties orally agreed to modify the contract to provide that Hall would not be terminated unless he was guilty of gross misconduct;
COUNT 4 for breach of contract, claiming money allegedly due under the terms of the parties’ agreement;
COUNT 5 for tortious interference with a contractual relationship, against Donald Brackin.
COUNTS 6 and 7 for wrongful discharge, alleging that his termination was willful and malicious, contrary to the public interest and in violation of an implied covenant of good faith and fair dealing; and
COUNT 8 for fraud, alleging that In-tegon fraudulently misrepresented to him that he would not be terminated except for gross misconduct.
COUNT I:

Breach of Exclusive Agency Contract

Prior to becoming associated with Integ-on, Hall was the exclusive agent in the Florence area for the Jackson Life Insurance Company. In 1974, Integon acquired the Jackson Company and began negotiations with Jackson’s agents regarding their joining the Integon sales force. Several meetings took place between the Jackson agents and Integon representatives. Hall claims that at one of the meetings John Penry, Integon’s vice-president, assured Hall and the other Jackson agents that “all of the benefits from the Jackson contract” would accrue to the agents under Integon’s contract. A meeting took place at Integ-on’s office in North Carolina, where Hall met with Penry, with Integon’s president, and with its sales director. At the meeting the parties discussed specific changes in Integon’s standard agent’s contract that would be necessary in order to induce Hall to enter into an agreement to represent Integon.

After the meeting in North Carolina, Hall sent Penry a letter dated October 21, 1974, stating, inter alia:

“Dear John:
“Thank you very much for the kind hospitality extended to me and Tom Hodges and Ozell Hinkle on Thursday and Friday of last week. Please express our thanks and appreciation to the other delightful people we met during our brief visit with you.
“John, I enclose herewith the following items:
“1. A list of amendments to be attached to my General Agent’s contract and to my Agent’s Contract.
“2. A list of three items that cause great concern on the part of myself and Tom Hodges in particular. Mr. Hinkle appears less concerned about these three items than Tom and myself.
“3. A list of questions still remaining unanswered in regard to some of the problems we are facing in transferring our affiliation from Jackson Life to Integon.
“During my conference with the Integ-on president, Mr. Ed Collette, he assured me that he and the company would honor any commitments that you make to me in writing. This is, of course, as I expected it to be. I, therefore, respectfully request your signature on the ten listed amendments to be attached to my agent’s contract and my general agent’s contract. A postage-free envelope is enclosed for your use in returning this list of amendments to me at your earliest convenience.”

Three enclosures were included with the letter. Each enclosure corresponded to one of the three items listed in the body of the letter. Enclosure number one drafted by Hall was in the form of a letter from Penry to Hall. It was addressed to Hall and contained a place at its foot for Penry to sign. The document was dated November 1, 1974, and its introductory paragraph stated:

“I hereby approve the following amendments to be added to your General Agent’s Contract and your Agent’s Contract with the Integon Life Insurance Company of Winston-Salem, North Carolina, which contracts are dated November 1, 1974.”

It then listed ten separately numbered “amendments,” including:

“Amendment No. 6
“Integon agrees that those areas which are within the managerial responsibilities of the company’s managers and general agents shall remain the exclusive territory of such present managers and/or general agents; and no other managers or general agents with the company will establish offices or hire agents in those areas. In areas where there is overlapping responsibility at the present time, both present managers and general agents may continue to hire new personnel.”

Penry replied by way of a letter dated October 31, 1974, that “The amendment requested by you has been prepared and will become part of your contract dated November 1.” Penry refused to agree to one of the “amendments,” namely “amendment 8,” stating that, in his opinion, it was not necessary. Enclosed with Penry’s letter was a document in the same form as Hall’s enclosure number one, stating, inter alia:

“Amendment 6
“Integon agrees that for purposes of solicitation of life and health insurance, that it will not appoint agents under its Agency or Branch Office Department in Scottsboro or Cullman, Alabama unless such appointment is agreed upon by Mr. Hall. In Florence, Alabama, and Fort Payne, Alabama, where there are presently existing agencies of both Integon and Jackson Life, it will be permissible for the management personnel of the Integon agencies in those two locations to continue to develop those territories while at the same time it will also be permissible for Mr. Hall to recruit and develop agents in those two locations.”

The agent’s and general agent’s contracts Hall and Penry signed were dated November 1, 1974. The contracts, which were Integon’s standard form agreements, both provided that the agent’s territory was not exclusive.

After signing the agency agreements, Hall began selling Integon’s policies. In July of 1978, Donald Brackin signed an agent’s agreement with Integon. Initially, Brackin, who maintained an office in Muscle Shoals, was treated as a part of Hall’s agency. Hall was paid a percentage of the commissions on policies Brackin sold. In August of 1979 Brackin and Hall had a disagreement. The disagreement apparently involved a type of policy which pays first-year commissions in excess of the amount of actual first-year premiums. Hall claims that Brackin bought and paid for a number of these policies, using the commissions to pay the premiums and thereby netting a profit.

As a result of the dispute, Brackin asked to be removed from the Hall Agency. In-tegon acceded to the request and entered into a regional general agent’s contract with him on August 1, 1979, allowing Brac-kin to establish his own agency. The establishment of a competing agency created a conflict between Hall and Integon as to the exclusivity of Hall’s general agency contract. Integon drafted a document purporting to represent an agreement between it and Hall stating that Hall’s contract did not provide for an exclusive agency in the Florence area and that Hall was not entitled to commissions for the business sold by Brackin’s agency. Integon informed Hall by certified mail that if he refused to sign the document his contract would be terminated. Hall refused to sign and In-tegon terminated his contracts.

On appeal the parties disagree as to which of the two paragraphs labeled as “amendment six” became part of the contract. From the evidence in the record, it appears that Integon offered a general agency to Hall on the terms contained in its standard form agreement and that Hall refused to sign until certain changes in the terms could be agreed on. Hall made a counter-offer in the form of the ten amendments. Hall argues that when Penry wrote to Hall that the amendments “would become part of the contract” Penry had accepted Hall’s counter-offer. Hall’s argument overlooks the provision in his letter to Penry stating that Penry could accept the counter-offer by affixing his signature to the foot of the list of amendments Hall had prepared. Since Penry failed to sign the list which Hall prepared, choosing instead to sign a list he himself had drafted, it appears that Penry’s list of proposed amendments constituted a counter-offer rather than an acceptance. When an offer- ' or dictates the manner in which acceptance is to be indicated, a manifestation of assent by some other means will not usually result in the formation of a contract. See 1 Willi-ston on Contracts, § 76 (1957). Furthermore, when Penry redrafted the amendments, he made some changes in them. To be effective as an acceptance, any expression of assent restating the offer must not change the material terms of the offer. See 1 Williston on Contracts, § 77 (1957); 1 Corbin on Contracts § 82 (1963). It appears that Hall signed Integon’s standard form contract the day after Penry made his counter-offer. Since reaching an agreement on the amendments was a condition precedent to the signing of the contract, it appears, by virtue of the fact that he signed the contract, that Hall was satisfied with the amendments Penry proposed. Although that conclusion appears to be the one most strongly supported by the evidence, we are not prepared to rule that it is the only possible finding which could be made from the evidence. We cannot hold that there is no genuine issue of material fact. Summary judgment is not the proper vehicle for weighing the evidence.

Furthermore, even if we were to accept the argument that Penry’s amendments were agreed on by the parties, it would not follow that summary judgment was appropriate. Integon takes the position that its amendment 6 in no way restricts its rights to establish new general agents in the Florence area. That conclusion does not necessarily follow from the facts. Integon and Hall apparently entered into negotiations aimed at reaching an agreement to modify the terms of the standard form contract providing that the agency was not exclusive. If the amendment in no way restricted Integon’s right to establish new agencies in the Florence area, there would have been no need to modify the standard form contract. Integon’s argument presupposes that the amendment did not alter the meaning of the form contract. Hall’s argument, that the amendment only gave Integon the right to add new agents to its pre-existing agencies in the area, appears to be more plausible under the circumstances. Again, however, that interpretation, while it appears to be the most reasonable, is not the only possible conclusion which could be drawn from these facts. Summary judgment was, therefore, inappropriate.

When there is no conflict in the evidence as to what the terms of the contract are, and when its terms are clear and unambiguous, the construction of the contract is within the province of the court. When, as here, there is some dispute as to its terms and it appears that the terms are ambiguous, but capable of being clarified by consideration of the surrounding facts and circumstances, a jury question is presented. Medical Clinic Board of Birmingham v. Smelley, 408 So.2d 1203, 1206 (Ala.1981); Universal Development Corporation v. Shader, 382 So.2d 1115, 1117-1118 (Ala.1980).

COUNT II:

Fraudulent Misrepresentations Regarding the Exclusivity of the Contract

In Count Two, Hall alleged that Penry and others at Integon falsely represented to him that his agency would be the exclusive agency selling Integon’s policies in the Florence area, with the exception of those Integon agencies already in existence when Hall signed the contracts with Integon. In support of its argument that summary judgment was proper as to that count, In-tegon makes two arguments: First, that exclusivity is not provided for in the written contract and that when parties reduce their agreements to writing, the writing is the sole expositor of the parties’ agreement. Second, it argues that the claim is based on misrepresentations allegedly made in 1974, and therefore, that any actions based on those alleged misrepresentations would be barred by the statute of limitations.

Integon’s first argument overlooks the fact that the count sounds in tort, not in contract. Parol evidence is always admissible to show that the written instrument was procured by fraud or that because of fraud it does not represent the true intent of the parties. Alabama Power Co. v. Pierre, 236 Ala. 521, 525-526, 183 So. 665, 669 (1938).

We deem it inappropriate to address the merits of Integon’s second contention. The statute of limitations is an affirmative defense which must be pleaded. A.R. Civ.P. 8(c). Integon has not yet filed a responsive pleading. Nor did it raise the defense in its motion to dismiss. Summary judgment was, therefore, inappropriate as to count two.

COUNT III:

Breach of Agreement not to Terminate Except for Gross Misconduct

The contracts Hall signed provided that the contract could be terminated on ten days’ written notice by either party. Hall claims that in 1977 he and Integon reached an oral agreement to modify his contracts to provide that they would not be terminated except for gross misconduct. The only written evidence indicating such an agreement was a letter written by an Integon vice-president to Hall stating:

“We appreciate your visiting with us this past week and we hope that your trip was both enjoyable and profitable. As I understand the discussion we had in my office you wanted to be assured that we would not terminate your contract automatically at age 65, and that we would continue to pay service fees to you as long as you personally serviced your business.
“Lil, this is our practice at the present time, but I will place a copy of this memo in your contract file to assure you that:
“1. We will not automatically terminate your contract at age 65, except for gross misconduct, unless you elect to receive retirement benefits under the agent’s retirement program. Present law requires us to terminate a full-time contract whenever a man elects to receive a retirement benefit. In such a case we would reissue a part-time contract with the same commissions and overrides as the previous full-time contract.
“2. Service fees that you receive under your contract will be continued to you as long as you are personally servicing your business and your contract is in force.
“I trust that this reassurance of our intentions in these two matters will be helpful to you and that 1977 will be your best year ever.”

Hall argues that the letter supports his contention that the contract was orally modified. It would be rather anomalous, he contends, for the contract to be terminable at will until Hall reached age 65 and terminable only because of gross misconduct thereafter.

Integon argues that under the plain wording of the letter, the modification applied only to termination of Hall’s contract after age 65.

Integon’s argument ignores the fact that Hall did not allege that the letter embodied the agreement. He argued that the modification was oral and that the letter was evidence that the oral modification had occurred. It is clear that under Alabama law a written agreement can be modified by a subsequent oral agreement unless some statutory provision requires otherwise. Herring v. Prestwood, 414 So.2d 52, 57 (Ala.1982); Winegardner v. Burns, 361 So.2d 1054, 1057 (Ala.1978). Summary judgment should not, therefore, have been granted as to count three.

COUNT IV:

Compensation Due Under The Terms Of The Contract

In support of its motion for a summary judgment, Integon filed an affidavit by an Integon vice-president stating, in effect, that Integon had paid Hall all the money it owed him under the terms of their agreement. Hall filed a responding affidavit stating that money was owed. Attached to the affidavit was an exhibit specifying alleged discrepancies between the amounts owed and the amounts paid. Although the exhibit details claimed discrepancies dating back to February of 1979, the trial court mistakenly granted a partial summary judgment as to all claims prior to November 1, 1979. Based on the exhibit incorporated by reference into Hall’s affidavit, summary judgment should have been granted only as to claims prior to February 1, 1979, not November 1, 1979.

COUNT V:

Tortious Interference With A Contractual Relationship

Count five of Hall’s amended complaint alleges that Harold Barber and Donald Brackin intentionally and maliciously persuaded Integon to repudiate and terminate Hall’s contract of employment. The trial court granted a summary judgment in favor of the defendants and Hall appeals. During the pendency of the appeal Hall dismissed his claim against Barber and he proceeds only against Brackin as to count five.

Brackin argues on appeal that count five of Hall’s amended complaint fails to state a claim on which relief can be granted. We disagree. A person’s employment, trade, or calling is a property right, and wrongful interference therewith is actionable. Polytec, Inc. v. Utah Foam Products, Inc., 439 So.2d 683, 689 (Ala.1983); James S. Kemper & Co. v. Cox & Assoc., 434 So.2d 1380, 1386 (Ala.1983); Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 481, 205 So.2d 222, 233 (1967); Bowen v. Morris, 219 Ala. 689, 691, 123 So. 222 (1929); United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732 (1921). Furthermore, it does not defeat the plaintiff’s cause of action if it is determined that the plaintiff was an at will employee. As this court noted in Millonas, supra, the fact that the employment is at the will of the employer and employee does not make it one at the will of third parties. 206 Ala. at 151, 89 So. at 735.

Summary judgment as to count five of the amended complaint was, therefore, improper.

COUNTS VI AND VII:

Wrongful Discharge

Hall argues that, assuming his contract is found to have been terminable at will, we should recognize an exception to the termination at will rule in this case.

An at will employment contract is terminable by either party for a good reason, a bad reason, or no reason at all. Bates v. Jim Walter Resources, Inc., 418 So.2d 903, 905 (Ala.1982). We decline plaintiff’s supplication to carve out an exception to the rule under the facts of this case. Summary judgment as to Hall’s claims under counts six and seven is hereby affirmed.

COUNT VIII:

Fraudulent Misrepresentation Regarding Statements That Hall Would Not Be Terminated Except For Gross Misconduct

Hall claims that Integon made misrepresentations to him in 1977 concerning the termination provisions in his contract and that, because he relied on those misrepresentations, he suffered damages. Integ-on’s reliance on the written provisions of the contract providing for termination at will were insufficient to overcome allegations of fraud. See Alabama Power Co. v. Pierre, supra.

ORIGINAL OPINION WITHDRAWN AND OPINION SUBSTITUTED;

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MADDOX, ALMON, EMBRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Richard C. JONES, et al. v. Thomas E. NEWTON, et al.
    82-1130.
    Supreme Court of Alabama.
    July 13, 1984.

      Stephen W. Drinkard of Drinkard & Drinkard, Prattville, for appellants.
    Clifford W. Cleveland, Prattville, for ap-pellees.
   EMBRY, Justice.

This appeal by plaintiffs Richard C. Jones and Barbara T. Jones is from a partial summary judgment in favor of defendants. We affirm.

The Facts

In December of 1976, appellants, Mr. and Mrs. Jones, purchased a home and lot located at 822 Newton Street, Prattville, Alabama. The lot they purchased was adjacent to, and northeast of, property owned by appellees Thomas E. Newton and William D. Davis, III.

Prior to their purchase of the property, appellants viewed the house and lot with a realtor who, they state in deposition, represented the boundary of the lot they were to purchase was defined by a backyard fence. Appellants further testified that, during the closing transaction, a map was given them which represented the lot to be the entire area enclosed by the backyard fence, rather than a portion of that area. The map to which they refer is depicted in an appendix to this opinion. Neither the realtor nor the prior owners of the property are parties to this suit.

Mr. and Mrs. Jones presented no further evidence of their title to the disputed portion of the backyard property. The legal description of the lot which they bought clearly does not include the entire fenced area; that description was included in its entirety on the deed to the property and all other documents in evidence. Appellants presented no evidence they paid taxes on the entire fenced area, nor is there evidence their occupation of the land has amounted to adverse possession under Alabama law.

After the closing transaction, Mr. and Mrs. Jones took possession of the property and utilized the entire fenced area as a backyard.

In the spring of 1981, appellees Thomas E. Newton and William D. Davis, III, began preparations for the development of a shopping center on property adjacent to and behind the Joneses’ lot. Because the proposed shopping center site was zoned as residential property, it was necessary for Newton and Davis to petition the Prattville Planning Commission for rezoning and approval of the site plan. A portion of the property included in the proposed site was the strip of land enclosed by appellants’ backyard fence but not included in their property description.

Prior to the presentation of the petition for rezoning to the Planning Commission, Newton and Davis solicited community support for the petition. Newton visited Mr. and Mrs. Jones for the purpose of soliciting their support. Appellants contend Newton intentionally, during that visit, failed to disclose to them the fact that the construction and rezoning would affect a part of the property enclosed by their backyard fence. They state, in deposition, that Newton promised to replace their fence, during construction, with a new fence, but never mentioned the fence would be moved so as to dispossess them of approximately 1,527 square feet which they had previously used as their backyard, and which, they contend, belongs to them.

While waiting for the Commission’s decision regarding rezoning, Newton and Davis contracted with appellee H.M. Gipson Land Surveying, Inc., to survey the shopping center site and to supply appellees Bobby Carter and B.S. Carter Construction Company, Inc., with the necessary plans, specifications, and documents for their performance of a site work contract.

When the planning commission approved the shopping center site, Newton contracted with Carter and B.S. Carter Construction Co., Inc., to prepare the site for construction of the shopping center.

In August of 1981, Mr. Jones observed a bulldozer near his backyard. After questioning the workers regarding their intentions, he left to speak with an attorney. When Jones returned, the workers had taken down the old fence and had begun to erect a new fence on the property line as described in the deed held by Mr. and Mrs. Jones.

In December of 1981, appellant filed a five-count complaint, which named Thomas E. Newton, William D. Davis, III, H.M. Gipson Land Surveying Inc., Bobby Carter, and B.S. Carter Construction Company as defendants. That complaint alleges the following offenses by defendants: (1) trespass quare clausum fregit, (2) continuous trespass, (3) private nuisance, (4) invasion of privacy, and (5) wantonness. They also filed a separate complaint against Tommy Newton, wherein the only allegation was fraud. The trial court consolidated the two cases.

In May of 1982, while the shopping center was still under construction, Newton and Davis sold the property to SOWEGA Properties, Inc.; Mr. and Mrs. Jones amended their complaint to add SOWEGA Properties as a defendant to the continuous trespass and private nuisance counts of the original suit.

Defendants filed motions for summary judgment. The trial court granted summary judgment as to all counts of the consolidated action except count one, based on trespass quare clausum fregit (Thus, summary judgment was granted as to each count to which SOWEGA was named a party and the count remaining involves only the original defendants.) The trial court issued a Rule 54(b), ARCP, certification of finality as to that summary judgment. The issue on appeal is the propriety of the trial court’s granting of summary judgment in this action.

I

Summary judgment is appropriately granted only if the pleadings and affidavits reveal no genuine issues of material fact. Oliver v. Taylor, 394 So.2d 945 (Ala.1981). The moving party has the burden of establishing the absence of a genuine issue of fact. Eason v. Middleton, 398 So.2d 245 (Ala.1981). If a genuine issue of fact must be resolved, so that the nonmov-ing party could conceivably prevail, the trial court must deny the motion for summary judgment. Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So.2d 885 (Ala.1976). Considering these principles, we proceed to determine the propriety of summary judgment as to the various counts of appellants’ complaint.

II

First, the trial court granted summary judgment as to appellants’ allegation that appellees have created a private nuisance, disturbing the peaceable use and enjoyment of appellants’ property by developing and operating the shopping center. We find no evidence in the record of such a disturbance.

The record reveals that Newton, Davis, SOWEGA Properties, and their agents have developed a strip of land to which they have title. Appellants have, without apparent mismanagement, built a shopping center on land zoned for commercial'development. This court will not anticipate mismanagement. Jackson v. Downey, 252 Ala. 649, 42 So.2d 246 (1949). The doing properly of that which the law authorizes does not constitute a nuisance. Johnson v. Bryant, 350 So.2d 433 (Ala.1977).

When all the evidence appellants presented of a real and substantial invasion of a protected interest is seen in the best light, it is clear to this court that any discomfort and annoyance alleged by appellants is so lacking in substance that the law will refuse to recognize it, applying the maxim de minimis non curat lex — the law does not concern itself with trifles. Borland v. Sanders Lead Co., 369 So.2d 523, 529 (Ala.1979).

III

Second, the trial court granted summary judgment as to appellant’s claims of negligence and wantonness. Again, we find no evidence supporting these claims. The necessary elements for recovery under a negligence theory are: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury. Mascot Coal Company v. Garrett, 156 Ala. 290, 47 So. 149 (1908). We find no evidence to support any of these elements in the record on appeal.

Appellees have cleared and excavated property adjacent to property owned by appellants. They moved a fence located entirely on their own property so that it is now located on the property line. From these facts, this court cannot conceive of any circumstances under which appellants could maintain a successful action for negligence against appellees.

IV

Third, appellants allege the trial court erred by granting summary judgment as to their allegation of continuous trespass by appellees. Appellants argue they have been continuously deprived of their rightful possession and control of the disputed strip of land in their backyard.

Again, no evidence has been presented to indicate that title to that strip of property is, or has ever been, vested in appellants or that they enjoyed any possessory rights in that strip. Neither is there evidence appel-lees have built any structure upon or over property owned by Mr. and Mrs. Jones such as would create a continuous trespass on that property. See Alabama Power Co. v. Gielle, 373 So.2d 851 (Ala.Civ.App.1979).

We conclude, because there is no evidence of a continuous trespass by appellees onto land belonging to appellants, the trial court was correct in granting summary judgment as to that count.

V

Fourth, we consider whether there is a disputed issue of material fact regarding appellants’ allegations of invasion of privacy. Wrongful intrusion into another’s private activities constitutes a tort for invasion of privacy. Alabama Electric Cooperative, Inc. v. Partridge, 284 Ala. 442, 225 So.2d 848 (1969).

Appellants assert that appellees’ acts of removing trees and underbrush from the property owned by Newton and Davis constitute an offensive and improper invasion of privacy. They contend the trees served as a natural barrier of privacy which blocked the public view of their backyard and that, because of the clearing of the property, there is no longer any privacy in their backyard.

Appellants cite, and we find, no precedent to support such a claim.

VI

Last, appellants contend there is error in the trial court’s granting of summary judgment as to their allegation of fraud against Newton. They allege Newton, when he met with them to discuss the possible rezoning of the property on which the shopping center was ultimately built, fraudulently concealed from them information that the shopping center would encroach on their property.

First, we must again note there is no evidence of appellants’ title to the disputed portion of property in their backyard. In Hall Motor Company v. Furman, 285 Ala.499, 234 So.2d 37 (1970), this court stated that to plead a case of fraudulent concealment by silence, facts must be averred from which a duty to speak arises. There was no relationship between Newton and appellants from which such a duty would arise. Newton had no obligation to inform appellants regarding the use of his own property.

Second, there was no reliance by appellants on the alleged “failure to disclose” by Newton. Newton was simply seeking public support for a rezoning request. Mr. and Mrs. Jones were not responsible in any way for granting or denying request for rezoning. Had they become aware during their visit with Newton, that their backyard fence was to be relocated on their own property line so as to “deprive” them of the use of another’s property, this court can anticipate no action they have taken in response to receiving that information. Neither can we ascertain any injury which resulted from their failure to act based on the alleged nondisclosure.

In conclusion, after a careful review of the deposition testimony, answers to interrogatories, and affidavits, together with appellants’ pleadings, we conclude there is no genuine issue of material fact as to any of the above named counts regarding which the trial court granted summary judgment. For that reason, the trial court’s judgment is due to be, and is hereby, affirmed.

AFFIRMED.

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

APPENDIX