source: Caselaw Access Project

license: Public Domain

text:
    Willie C. CARTER v. STATE of Mississippi.
    No. 55083.
    Supreme Court of Mississippi.
    Sept. 19, 1984.
    Henry C. Wood, Charles R. Brock, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Frank JENKINS v. STATE of Mississippi.
    No. 55115.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    H.E. Kellum, III, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilburn, Judge.

Before. WALKER, P.J., and PRATHER and SULLIVAN, JJ.

Affirmed.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    James Michael BOYD v. STATE of Mississippi.
    No. 55100.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Rickey J. Hemba, Purvis, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pearl River County; Michael R. Eubanks, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

Affirmed.

WALKER and ROY NOBLE LEE, P.JJ., and DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Frank H. ANDREWS, Jr. v. Virginia RANKIN and The Mississippi Real Estate Commission.
    No. 55104.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    J. Mack Varner, Varner, Parker & Ses-sums, Vicksburg, for appellant.
    John L. Maxey, II, Cupit & Maxey, Jackson, for appellees.
   Appeal from Circuit Court, Warren County; Rush M. Clements, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

Affirmed.


text:
    Herbert LITTLE v. HERRING GAS COMPANY. Nell LITTLE v. HERRING GAS COMPANY.
    Nos. 55120, 55123.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Robert R. Marshall, Jackson, for appellant.
    Jerome B. Steen, Whitman B. Johnson, III, Steen, Reynolds, Dalehite & Currie, Jackson, W. Hollis McGehee, McGehee, McGehee & Torrey, Meadville, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman for Charles Barber, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

Affirmed.


text:
    Wayne PINNIX v. STATE of Mississippi.
    No. 55097.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Jan R. Butler, Butler & Butler, Eupora, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

Affirmed.


text:
    Melvin HALL v. STATE of Mississippi.
    No. 55235.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Melvin Hall, pro se.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER and ROY NOBLE LEE, P.JJ., and DAN M. LEE, J.

Affirmed.


text:
    Ronnie Edward SMITH v. STATE of Mississippi.
    No. 55236.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Ronnie Edward Smith, pro se.
    Edwin Lloyd Pittman, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before WALKER and ROY NOBLE LEE, P.JJ., and DAN M. LEE, J.

Affirmed.


text:
    Fannie WILLIAMSON v. William E. READY, Administrator of Estate of Fred T. Carpenter, Jr., Deceased.
    No. 54423.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Robert H. Compton, Witherspoon & Compton, Meridian, for appellant.
    Robert J. Bresnahan, Meridian, for appel-lee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before WALKER, P.J., PRATHER and SULLIVAN, JJ., and SUGG, Retired Supreme Court Justice.

Affirmed.

ROY NOBLE LEE, P.J., BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Ruth Ann Nelson STILL v. Donald E. STILL.
    No. 54430.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
   Appeal from Chancery Court, Warren County; Nat Bullard, Chancellor.

Alfred H. Rhodes, Jr., Vicksburg, for appellant.

H. Gerald Hosemann, Vicksburg, for ap-pellee.

Before WALKER, P.J., HAWKINS and ROBERTSON, JJ., and SUGG, Retired Supreme Court Justice.

Affirmed as modified.

ROY NOBLE LEE, P.J., and BOWLING, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: TORBERT, Chief Justice.

text:
    F.M. ROSS v. Norman S. LUTON, Sr., et al. Ex parte F.M. ROSS.
    83-101, 82-1282.
    Supreme Court of Alabama.
    July 20, 1984.
    Rehearing Denied Aug. 24, 1984.

      Kenneth L. Funderburk and Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant and petitioner.
    Sam E. Loftin, Phenix City, for appellees.
   TORBERT, Chief Justice.

F.M. Ross petitioned this Court for a writ of mandamus directed to the Honorable George R. Green, District Judge acting as a Circuit Judge of Russell County, to review certain orders issued by that court that restrict the amount of water that can be pumped from wells operated on his property in Russell County. An appeal questioning the validity of the latest orders was also filed by Ross pursuant to Rule 4(a)(1)(A), Alabama Rules of Appellate Procedure, and that appeal was consolidated with his previously filed mandamus petition.

In April of 1982, Ross purchased some property in Russell County known as the “Tillery Estate.” He purchased the property with the intention of developing a well located thereon so he could sell water commercially to Smiths Water Authority. Pursuant to this goal, Mr. Ross ran a test on the well to see how much it would produce. The test involved the pumping of a considerable amount of water from the well over an 18- or 19-day period.

During the pumping test, Mr. Ross became aware of the fact that some of the wells in the surrounding neighborhood had gone dry, and he stopped the test a few days short of the scheduled test period. After the pumping was stopped, water returned to two of the wells that had gone dry during the pumping test.

A few weeks after Ross stopped his testing of the well, Norman S. Luton, Sr., Arthur A. Harris, Bernice Bailey, and Margaret Reynolds filed a complaint in the Circuit Court of Russell County seeking a permanent injunction against Ross’s alleged unreasonable withdrawal of water and seeking damages incurred as a result of his previous pumping. Each plaintiff owned and occupied property near the Ross property and obtained water for domestic and household use from wells located on his or her property. Ross filed a motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The trial court overruled his motion, and Ross then filed his answer to the complaint.

While the case was being prepared for trial, Ross continued with his preparations to sell water commercially, and on December 22, 1982, he .entered into a contract to provide water for Smiths Water Authority (hereinafter “Smiths”). Shortly after entering into the contract, Ross began withdrawing large quantities of water from his well, as he had done during the test period, and selling it to Smiths. The owners of wells in 'the surrounding area, including some of the plaintiffs, again experienced trouble with their wells going dry and losing the water flow or percolation.

Plaintiffs, with the trial court’s approval, amended their complaint to ask for additional compensatory damages resulting from Ross’s resumed pumping and for punitive damages. Plaintiffs also filed a request for a temporary restraining order, which the trial court granted after plaintiffs posted a bond for $5,000. This order temporarily restrained Ross from withdrawing water from his well in excess of his domestic or household needs and set a time for a hearing to determine if the injunction should become permanent. The trial judge conducted the hearing and granted a motion for permissive joinder of Jimmy H. Hardin, Wyman T. Kelly, and E.A. Spivey as parties plaintiff. The court in an order issued on February 11, 1983, found that Ross’s withdrawal of large quantities of water from his well constituted a private nuisance and enjoined Ross and his agents “from removing water from his wells in any amount in excess of that amount which is actually required for [his] household or domestic use.”

Ross filed a motion for new trial or, in the alternative, judgment notwithstanding the verdict and a motion to suspend the injunction pending appeal; both were denied. No appeal was taken from the order of February 11, 1983. On April 12, 1983, the parties, in an attempt to end the litigation and to allow Ross to be able to sell some water from his well, filed with the court a stipulation and agreement dated March 11, 1983. The stipulation was signed by all the parties and provided to the effect that: defendant admitted that he was maintaining a private nuisance by withdrawing an amount of water from his wells which substantially depleted the water in plaintiffs’ wells; defendant would be allowed to pump a reasonable amount of water from his wells so long as he exercised due diligence to insure that the water table was not again depleted to the extent that plaintiffs’ wells would be adversely affected by the loss of the flow of water therein; the permanent injunction entered by the court on February 11, 1983, would remain in full force and effect, except that plaintiffs agreed not to bring any action for contempt so long as defendant used due diligence and caution in withdrawing water from his wells so as to insure that the water table remained stable and sufficient in quantity to supply water to plaintiffs’ wells; defendant would inspect the water level in an observation well in a manner provided for in the agreement and keep a written record of the measurements, which would be sworn to by the person making the measurements; plaintiffs would have the right to come onto defendant’s property and inspect the observation well and make their own measurements of the water table; defendant agreed to voluntarily cease all pumping activities if the water table as determined by the method provided in the agreement dropped to 280 feet; plaintiffs would notify Ross within a reasonable time if they experienced problems getting sufficient water for their household and domestic use; Ross would pay plaintiffs’ damages and attorney’s fee as set out in the agreement; plaintiffs would release and discharge Ross from all damages to which they might be entitled as of the date of the agreement, but would retain the right to recover for future wrongs; and Susie Wells was added as a party plaintiff and would recover such damages as were provided for in the agreement. The court on April 12, 1983, adopted the agreement of the parties as part of its order.

After the stipulation and agreement were entered into by the parties and approved by the court, personnel of Smiths Water Authority resumed operation of the Ross well, as provided for in the agreement. A short time after the operation was resumed, Ross was notified that some of the surrounding landowners were again having problems with the water level in their wells. Ross tried to help those landowners to obtain water, but he did not stop the operation of his well.

Plaintiffs filed a petition for rule nisi against Ross to enforce the injunction granted on February 11, 1983. Ross answered the petition by alleging that: the proceeding should be transferred to another county or an outside circuit judge should be appointed to the case; the petition should be dismissed because there were no matters contained in the petition which could be the subject matter of a rule nisi proceeding; plaintiffs had failed to satisfy the terms of the agreement by failing to notify him within a reasonable time if they experienced any problems getting sufficient water for their household and domestic uses and by failing to prove the necessity and the causal relationship for the costs of deepening some of their wells; he had abided by the agreement and had the right to continue pumping as long as the water table in the observation well was not dropped below 280 feet; plaintiffs had failed to mitigate their damages; and the water system was a necessary and “mandatory” party and should be joined. Ross also counterclaimed for damages resulting from plaintiffs’ failure to abide by the agreement and from an alleged conspiracy to interfere with his property right to sell water under the contract with Smiths.

Ross next filed a motion to join Smiths and the City of Phenix City as additional defendants, claiming that both were necessary parties to the proceedings. Judge Paul J. Miller, who had presided over this case from the date of its original filing, issued an order recusing himself from the case and appointing the Honorable George Green, District Court Judge for Russell County, to serve as acting circuit judge over all further matters in this case. After a hearing on the petition and motions, Judge Green issued an order on September 8, 1983, which read in part:

“2. After the Stipulation and Agreement dated March 11, 1983, Defendant resumed the pumping of water from his wells and depleted the water table to the extent that water could not be obtained from the wells of Plaintiffs E.A. Spivey, Wymon T. Kelly, Margaret Reynolds and Susie Wells.
“3. The above affected Plaintiffs, as well as other nearby persons, notified the Defendant within a reasonable time they were again experiencing problems getting sufficient water for their household and domestic use.
“4. Defendant continued to pump water from his well after due notification by the Plaintiffs of the depletion of water from their wells.
“5. Defendant made the required water table measurements, but failed to have them sworn or attested to as stipulated.
“6. Defendant did not pump water so that the water table dropped below 280 feet in his observation well.
“7. Defendant subsequent to the Stipulation and Agreement of March 11, 1983, lowered the water pump in his producing well to the depth of 323 feet.
“8. At times during the pumping of water from Defendant’s well, Defendant has pumped more than the 200 gallons per minute allowed by the Alabama Department of Public Health.
“9. The Defendant’s withdrawal of water in large quantities from his wells diminished the flow of water into Plaintiffs’ wells and Plaintiffs are likely to suffer irreparable injury if Defendant continues his present use of water.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
“1. The Defendant, and all persons acting through or under his behalf are prohibited from removing water from wells upon Defendant’s property in an amount in excess of 150 gallons per minute.
“2. Defendant is to raise the pump in the producing well back to the March level of 280 feet, and is to do so immediately.
“3. Defendant’s Counterclaim against Plaintiffs is hereby dismissed.
“4. Hearing and further orders, as to Plaintiffs’ damages and as to the necessity of reinstatement of the permanent injunction upon compliance with the Court’s above stated Order, is set for Thursday, October 20, 1983, at 11:00 A.M.
“5. In the event that the Defendant chooses not to comply with Items 1 and 2 of this Order, then the Defendant and all persons acting through or at his direction are RESTRAINED AND ENJOINED from removing water from the well upon Defendant’s property in any amount in excess of that amount of water actually required for the Defendant’s household or domestic use.”

A short time after the entry of that September 8 order, plaintiffs filed a second petition for rule nisi seeking enforcement of the injunction. Ross filed a petition in this Court for writ of mandamus and a motion in the trial court to strike or quash the petition for rule nisi. The trial judge held another hearing and-issued an order on September 30, 1983, affirming and continuing its order of September 8. Ross filed a notice of appeal from the orders of September 8 and September 30 and was granted a stay of these orders pending appeal.

I.

A writ of mandamus “is an extraordinary remedy which should only be granted when there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner.” Ex parte Hartford Insurance Co., 394 So.2d 933, 936 (Ala.1981). A petitioner is entitled to a writ of mandamus if there is a showing of a clear legal right to the order sought, an imperative duty upon the respondent to perform, accompanied by a refusal to do so, a lack of another adequate remedy, and a proper invocation of the jurisdiction of the court. Martin v. Loeb & Company, Inc., 349 So.2d 9, 10 (Ala.1977). Mandamus is not a substitute for appeal. State v. Cannon, 369 So.2d 32, 33 (Ala.1979). Ross raises the following issues, which are proper for review in a petition for writ of mandamus:

A. Whether the trial judge should have recused himself and asked the chief justice, pursuant to § 6.10 of amendment 328 of the Alabama Constitution of 1901, to appoint a judge from outside the circuit to hear the case.

B. Whether the trial judge abused his discretion by denying Ross’s motion for change of venue.

C. Whether the trial judge abused his discretion by refusing to join Smiths and/or the City of Phenix City, d/b/a Phe-nix City Utilities System (hereinafter “Phe-nix City”), as indispensable parties under Rule 19, Alabama Rules of Civil Procedure.

A.

Canon 3(C), Alabama Canons of Judicial Ethics, provides in part:

“C. Disqualification:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;”

A judge should not act “if he has any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit.” Morgan County Commission v. Powell, 292 Ala. 300, 311, 293 So.2d 830, 839 (1974). The Court in Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977), quoted 48 C.J.S. Judges § 82(b) as stating the general rule on disqualification for prejudice. That § 82(b) provided:

“It is actual existence of prejudice on the part of a judge, not the mere apprehension of it by a party which disqualifies. Further, the disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity .... ”

A mere accusation of bias unsupported by substantial fact does not require disqualification of a judge. Taylor v. Taylor, 387 So.2d 849, 852 (Ala.Civ.App.1980).

Ross did not seek the disqualification of the judges in Russell County until after the parties had entered into the stipulation and agreement and plaintiffs had filed their first petition for rule nisi. Ross, in his answer to that petition, sought appointment of an outside judge, but made only general accusations of bias and prejudice. Judge Miller, who had presided over this case from the date of its original filing, then recused himself and pursuant to Rule 13, Alabama Rules of Judicial Administration, appointed Judge Green, District Court Judge for Russell County, to serve as acting circuit judge over all further matters in this case. The recusal order does not provide the reasons for Judge Miller’s recusal or for Judge Green’s appointment. The appointment of Judge Green as acting circuit judge is authorized by Rule 13, Alabama Rules of Judicial Administration, and the general accusations of bias and prejudice made by Ross are not sufficient to require the disqualification of Judge Green. “Prejudice on the part of a judge should not be presumed.” Duncan v. Sherrill, 341 So.2d at 947. Judge Green did not abuse his discretion in refusing to disqualify himself.

Ross also questions the validity of the orders entered by Judge Miller prior to his recusal in this case. Ross failed to object and to specify the reasons demanding Judge Miller’s disqualification prior to the entry of these orders. The disqualification of a trial judge for interest or prejudice may be waived if the parties proceed to trial without objection. MacMahon v. Baumhauer, 234 Ala. 482, 175 So. 299 (1937); Ex parte Clanahan, 261 Ala. 87, 72 So.2d 833 (1954). Ross waived his objection to these orders by failing to object prior to the original hearings in this case conducted by Judge Miller.

B.

Ross, in his answer to plaintiffs’ first petition for rule nisi, asked for a change of venue, alleging that he could not obtain a fair and impartial hearing in Russell County because of local prejudice. Code 1975,J§ 6-3-20, provides:

“Either party to a civil action may move the court to change the venue at any time before final trial, making affidavit that for causes set forth, he cannot have a fair and impartial trial in the county where the action is pending. The court may direct a change to the nearest county free from proper objection by either party, to be determined by affidavits and, whenever it will best secure the ends of justice, it may require the applicant to give bond and security for costs. The same party can have the venue changed but once.”

“[Ljocal prejudice which tends to prevent a fair and impartial trial is ground for change of venue.” Braswell v. Money, 344 So.2d 767, 769 (Ala.1977). The Court in Braswell went on to state:

“Generally speaking, the prejudice must exist throughout the county, and not in the particular locality, but if prejudice in a particular locality exists and the number of jurors from that locality is so [disproportionately large that an impartial jury cannot be selected, a change of venue may be granted. That the people of the community are generally interested in the question involved is not sufficient, but it has been held that venue may be changed if the residents of the community are interested in the event, to such an extent as to prevent a fair trial.”

344 So.2d at 769 (quoting 92 C.J.S. Venue § 143, p. 853 (1955)).

The question, then, is whether Ross presented evidence of local prejudice of such character as to create a reasonable belief that a fair and impartial trial could not be obtained in Russell County. Braswell, 344 So.2d at 769. Allegations that the outcome of this case may have an effect on the competition between two local utility systems and that one judge, who later recused himself, had been associated with one of these companies in the past are not sufficient to prove local prejudice. Ross presented no evidence that “the trial of this case has created widespread interest and comment in the community, nor that opinions have been formed concerning the case.” Braswell, 344 So.2d at 769. The accusations made by Ross are not sufficient to create a reasonable belief that a fair and impartial trial could not be obtained in Russell County. The trial court did not abuse its discretion by refusing to change venue to another county.

C.

Ross argues that the trial judge abused his discretion by refusing to act on his motion to join Smiths and/or Phenix City as indispensable parties under Ala.R. Civ.P. 19. Rule 19 provides in part:

“(a) Persons to be joined if feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
“(b) Determination by court whenever joinder not feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.”

The provisions of Rule 19 provide a two-step process. Note, Rule 19 in Alabama, 33 Ala.L.Rev. 439, 446 (1982). “First, a court must determine whether the absentee is a person who should be joined if feasible under Rule 19(a).” Note, supra. If the court determines that the absentee is a person who should be joined under Rule 19(a), “[rjule 19(b) sets forth four factors to consider in determining whether an action should proceed in the absence of such a person.” Mead Corp. v. City of Birmingham, 350 So.2d 419, 421 (Ala.1977); Note, supra.

Ross alleges that Smiths and Phe-nix City have interests relating to the subject of the action and are so situated that the disposition of the action in their absence may as a practical matter impair or impede their ability to protect their interests. “The ‘interest relating to the subject matter of the action’ that makes an absent person a party needed for just adjudication must be a legally protected interest, not merely a financial interest or interest of convenience.” 3A J. Moore & J. Lucas, Moore’s Federal Practice § 19.07—1[2] at 19-129 (2d ed. 1982); Realty Growth Investors v. Commercial & Industrial Bank of Memphis, Tennessee, 370 So.2d 297, 304 (Ala.Civ.App.), cert, denied, 370 So.2d 306 (Ala.1979).

Phenix City, as the operator of a competing utility system, has merely a financial interest relating to the subject matter of this case and is not a party that should have been joined under Rule 19(a). Smiths, by entering into a contract to purchase water from Ross, has a legally protected interest relating to the subject matter of this case and is so situated that the disposition of this case in its absente may as a practical matter impair or impede its ability to protect that interest. Smiths is a party that should have been joined if feasible under Rule 19(a), so we must proceed with the analysis required by Rule 19 and determine whether Smiths is an indispensable party under Rule 19(b).

The determination of whether a party is indispensable under Rule 19(b) is based on equitable and pragmatic considerations, Toney v. White 476 F.2d 203, 207 (5th Cir.1973), and includes the examination of the following factors provided in the rule:

“first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.”

Mead Corp., 350 So.2d at 421-22.

After a careful consideration of these factors and the equities involved, we find that Smiths is not an indispensable party to this action. “[E]ven a party whose interest may be affected by a court action may not be indispensable if its interest is adequately represented by a party already before the court.” H.H. Robertson Co. v. Lumbermen’s Mutual Casualty Co., 94 F.R.D. 578, 580 (W.D.Pa.1982). Ross and Smiths, as a result of the contract between them, share the same interests, and there is no reason to believe that either the parties to this case or Smiths would be prejudiced if the action proceeded with the present array. Nationwide Auto Transporters, Inc. v. Morgan Driveaway, Inc., 441 F.Supp. 755, 757 (S.D.N.Y.1977). The interests of Smiths are adequately represented by Ross, and if Smiths feared otherwise, it could easily intervene. H.H. Robertson Co., 94 F.R.D. at 580. There is no reason why the trial court can not give meaningful relief to the parties in the absence of Smiths. Nationwide Auto Transporters, Inc., 441 F.Supp. at 757. As shown by this discussion, the trial judge did not abuse his discretion in failing to join Smiths and/or Phenix City as indispensable parties.

Ross has failed to show either a clear right to relief or an abuse of discretion on the part of the trial court. The writ of mandamus is denied.

II.

Ross also appeals from the trial court’s orders of September 8 and September 30 and raises the following issues concerning those orders:

A. Whether the injunction issued in the September 8 order is null and void due to the failure of the trial court to require the posting of a bond or the giving of other security.

B. Whether, in a rule nisi proceeding brought over four months after the rendition of a final decree, a trial court has the authority to modify or amend its prior order.

C. Whether the trial court’s findings of fact contained in its order of September 8 are clearly erroneous, arbitrary, and against the great preponderance of the evidence.

A.

Ross argues that the injunction issued in the September 8th order is null and void due to the failure of the trial court to condition the order upon the posting of a bond or the giving of security by plaintiffs, as required by Ala.R.Civ.P. 65(c). Rule 65(c) provides:

“(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorneys fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the state of Alabama or of an officer or agency thereof, and provided further, in the discretion of the court, no such security may be required in domestic relations cases.”

“The requirement of security is intended to protect the party restrained or enjoined, as the case may be, against ‘cost and damages’ incurred or suffered by the party wrongfully restrained or enjoined.” 7 J. Moore, J. Lucas & K. Sinclair, Jr., Moore’s Federal Practice § 65.09 at 65-94 (2d ed. 1982). “A bond is not required of the prevailing party as a condition to the entry of an order granting a permanent injunction.” 2 C. Lyons, Jr., Alabama Practice § 65.5 at 215 (Supp.1984) (citing Dobbins v. Getz Exterminators of Alabama, Inc., 382 So.2d 1135 (Ala.Civ.App.1980).

The trial court heard extensive testimony from both sides before it issued its order of September 8, and that order can only be construed as a modification of the permanent injunction entered on April 12 incorporating the stipulation and agreement of the parties. No bond is required for the entry of an order granting a permanent injunction, and the injunction of September 8 is not void for lack of security or bond.

B.

Ross questions the authority of a trial court in a rule nisi proceeding held four months after the entry of final order to modify or to amend that order. This Court in Wilkinson v. State ex rel. Morgan, 396 So.2d 86, 88 (Ala.1981), stated:

“However, unlike the ‘proceedings past and closed’ referred to in Saad [51 Ala.App. 668, 288 So.2d 731 (1974)], the injunction is a continuing order over which a court, sitting in equity, maintains jurisdiction for the life of the decree. This Court recognized this peculiar nature of the injunction decree in Ex parte Myers, 246 Ala. 460, 21 So.2d 113 (1945). There, this Court quoted, with approval, the California case, Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, 690 (1941), stating:
‘[T]he decree, although purporting on its face to be permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon proper showing, to modification or dissolution by the court which rendered it. The court’s power in this respect is an inherent one.’
246 Ala. at 463, 21 So.2d 113. Thus, the life of the injunction, by its very nature, is subject to pertinent events that occur subsequent to the decree. In the words of the Myers Court, ‘The injunction relates to matters of future continuous operation.’ 246 Ala. at 464, 21 So.2d 113.”

It is not questioned that a court has power to modify or to dissolve an injunction upon a proper showing of changed circumstances, and some cases have allowed this power even without a showing of changed conditions. Ex parte Myers, 246 Ala. at 463, 21 So.2d at 115.

Plaintiffs, at the hearing held on their petition for rule nisi, presented sufficient evidence to show that Ross had not completely abided by the court’s order adopting the stipulation and agreement of the parties and that he had again lowered the water table to the extent that plaintiffs’ wells were adversely affected. Under these circumstances, the trial court clearly had the authority to modify its earlier decree in order to protect plaintiffs’ water rights.

C.

Ross challenges the trial court’s findings of fact contained in its order of September 8 as clearly erroneous and against the great preponderance of the evidence. The majority of the evidence presented at the hearing was ore tenus testimony, and generally, when a trial court has heard ore tenus testimony, “every presumption will be indulged in favor of the trial court, and its findings will not be disturbed on appeal unless palpably wrong or clearly erroneous.” Morrow v. Wood, 411 So.2d 120, 122 (Ala.1982).

We háve reviewed the record and find that the testimony at the hearing supports the trial court’s findings and decision in its order of September 8. Based on the reasoning in this part of the opinion, the trial court orders of September 8 and September 30 are affirmed.

82-1282, WRIT DENIED.

83-101, AFFIRMED.

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

      . Rule 4(a)(1)(A) provides for an appeal within 14 days of the date of the entry of any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an injunction.

      . Because of the similarity between the rules, "[c]ases interpreting the Federal Rules of Civil Procedure are authority in the construction of the Alabama Rules of Civil Procedure." Bracy v. Sippial Electric Co., Inc., 379 So.2d 582, 584 (Ala.1980).


author: MADDOX, Justice. JONES, Justice

text:
    Troy WATKINS, Individually, Troy A. Watkins, Individually, et al. v. LIFE INSURANCE COMPANY OF GEORGIA, a Corporation, Thomas E. Beckham, et al.
    83-360.
    Supreme Court of Alabama.
    July 20, 1984.
    Ronald L. Davis of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellants.
    Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   MADDOX, Justice.

The sole question presented is whether Alabama should now recognize that the wrongful cancellation of an insurance contract constitutes a tort for which compensatory and punitive damages are recoverable.

The trial court granted the insurer’s motion for summary judgment.

In 1965, Troy Watkins purchased an insurance policy from Life of Georgia. Thereafter, he paid monthly premiums to an agent who came by his home, and he also purchased additional policies on himself and on his two children. In 1981, Watkins had five different policies with Life of Georgia in force on himself, and four other policies in force on his two children. The lawsuit only involves five of these insurance policies, a $1,000 life insurance policy on himself and four policies on the children.

In 1981, Watkins discussed his insurance coverage with Dennis Painter, an agent of New Southland Insurance Company. Painter offered to increase Watkins’s own coverage by $12,000 for the same monthly premium. Watkins requested a representative of New Southland Insurance Company to write a letter to Life of Georgia for him, and ask that all the insurance policies he had on himself be cancelled. This letter was dated September 1, 1981. Life of Georgia responded to Watkins’s letter by informing him that the policies could not be cancelled until the proper company forms were completed. Watkins called Life of Georgia and asked that Dale Livingston and Thomas Beckham, Life of Georgia representatives, come to his home to discuss the matter. When the agents arrived, Dennis Painter was there with Watkins. The Life of Georgia agents refused to discuss anything while Painter was present, and according to testimony of Watkins, in his deposition, Beckham “got mad” and “raised his voice,” then left.

Late in the afternoon, Beckham returned to the Watkins home when Watkins and his wife were alone. The evidence is conflicting regarding what occurred during this meeting.

Watkins testified, by deposition, that Beckham brought the policies with him, and that he told Beckham he wanted to cancel the ones on himself and keep his children’s policies in force. Watkins admitted that he signed some papers, because he knew he was entitled to receive cash value on some of the policies. Watkins said that Beckham took with him the policies with the cash surrender value.

Mrs. Watkins testified that when Beck-ham returned, her husband asked her to get the policies, which shei did. The policies were spread out on the coffee table in the living room. She remembered hearing her husband say he was keeping the policies on the children.

Beckham testified that he met at the Watkins home on September 17, 1981, that at this time, Watkins had the policies on the table, and that he told him the ones that he wished to cash out. Beckham testified that Watkins asked him to cash out three policies for cash value, which he did, and that this was all that the plaintiff wanted and he did this for him.

Life of Georgia contends that the effect of the meeting was that one policy was left in effect on Watkins, and the four policies were still in effect on the children.

Watkins claims that he signed forms which cancelled all of his policies, including Policy No. 88541706, a $1,000 life policy, that these forms were taken by the agent for Life of Georgia, but that the request to cancel Policy No. 88541706 was crossed out by someone, and that the forms had been in the possession of Life of Georgia until produced in this litigation.

Afterward, Life of Georgia agents continued to collect monthly premiums of $4.73, which Watkins claimed he thought were being applied to the children’s policies. Life of Georgia contends that the $4.73 premium was applied to policy No. 88541706, and that the policies on the children lapsed because of the nonpayment of premiums. Watkins claims that he did not learn that the $4.73 was not being applied to the policies on the children until the fall of 1982, when a new agent of Life of Georgia asked about the children. Watkins contacted the company and was told that the premiums he had paid were applied to his policy and that the policies on the children had lapsed.

The company claims that Watkins continued to pay on his policy “with the knowledge that he was paying it on himself.” There is some evidence in Watkins’s deposition which supports the company’s position. On February 1, 1983, Watkins went to the office of Life of Georgia and paid $11.48 for two months’ premium (he “thought it was $5.74 a month I believe I am right and that is what I paid them. And it was $4.74 a month”). He received a refund cheek because of his overpayment. He testified in his deposition, as follows:

“Thank you for your payment of $11.48 in the office on February 1, 1983. Two months premium, $9.46, has been applied to your policy No. 88541706. We are refunding your overage of $2.02, check # 06043614 is enclosed. This pays your policy through the month of February. We will mark your premium receipt book up to date on your next visit to the office.”

On the other hand, there is evidence that at the time he made the February 1, 1983, payment he wrote to the state insurance department, as follows:

“I have enclosed a copy of the policies on my son and daughter and it shows a weekly premium of $4.64. Life of Georgia has been coming by and collecting $4.73 per month in premiums. They state that they have been applying $4.73 to policy number 88541706 on me and yet this policy, as you will notice, is one of those that was sent in for cancellation on September 1, 1981.
“Life of Georgia has made a serious mistake and now tells me it cannot be corrected.
“I have never received any notification from Life of Georgia that the four policies on my children had been cancelled or were not in force and I assumed all this time, since I told them I wanted to keep the policies on the children, that my premiums were being applied accordingly.
“I ask that as the State of Alabama Insurance Department you will take whatever action is necessary to see that Life of Georgia corrects their mistake and applies the premiums I have been paying to my children’s policies as listed below:
“Jannifer L. Watkins, Policy Number 79145689
“Jannifer L. Watkins, Policy Number 79145690
“Troy A. Watkins, Policy Number 76170212
“Troy A. Watkins, Policy Number 78822028
“Your prompt action in this matter would be appreciated.”

Watkins filed this suit in April 1983, alleging breach of contract, fraud, bad faith, and wantonness. Watkins alleged in his complaint the following:

“4. The Plaintiffs purchased four insurance policies, numbered 76170212; 78822028; 79145690 and 79145689 from the Defendant, Life Insurance Company of Georgia and/or ‘A’ through ‘G’, said policies being on Troy A. Watkins and Jannifer L. Watkins, both the children of Troy Watkins, with Troy Watkins being named the beneficiary.
“5. On or about September 1, 1981, Troy Watkins authorized the Defendants Life Insurance Company of Georgia and/or ‘A’ through ‘G’ to cancel policy numbers 81623491, 84091096; 88541706, 50011443 and 79382123, by correspondence, a copy of which is ATTACHED hereto and incorporated by reference.
“6. Subsequent to September 1,1981, the Plaintiffs continued to make payments on policies 76170212, 78822028; 79145690 and 79145689 which they desired to remain in full force and effect.
“7. At no time did the Plaintiffs knowingly request that policies 76170212; 78822028; 79145690 and 79145689 be cancelled.
“8. Policy 76170212 was purchased in 1964 with the insured being Troy A. Watkins and the beneficiary Troy Watkins. Plaintiffs have made monthly payments on said policy for approximately 18 years with only two years remaining before said policy is paid in full.
“9. Policy 79145689 was purchased in 1968 with Jannifer L. Watkins being the insured and Troy Watkins being the beneficiary. Plaintiffs have made monthly payments on said policy for approximately 14 years with only six year [sic] remaining before said policy is paid in full.
“10. In approximately October of 1982 Plaintiffs first learned that the Defendants were applying premiums being paid to one of the policies which Troy Watkins had requested be cancelled on or about September 1, 1981, rather than to the four policies they desired to keep in full force and effect, policies 76170212; 78822028; 79145690 and 79145689.
“11. At that time Plaintiffs requested that this matter be reviewed and, if in fact the monies paid by the Plaintiffs were being applied to policies other than policies 76170212; 78822028; 79145690 and 79145689 that the matter be corrected.
“12. Approximately one month later, Plaintiffs were again told that monies being paid by them were being applied to a policy that the Plaintiff had requested to be cancelled on or about September 1, 1981 and that the four policies on the children had been cancelled, i.e. policies numbered 76170212; 78822028; 79145690 and 79145689.
“13. Plaintiffs have made efforts to have the Defendants correct this error but the Defendants refused to reinstate the four policies which were wrongfully cancelled by them and further refused to apply the premiums which are being paid to these four policies.
“14. The Defendants, separately and severally, have breached the implied and expressed provisions of their contract with the Plaintiffs by wrongfully cancel-ling these four insurance policies and by failing to apply the insurance premiums which have been paid by the Plaintiffs to these four policies.
“15. Plaintiffs allege that the breach of the aforesaid four contracts was an intentional breach to deprive the Plaintiffs of the benefits of the aforesaid contracts for which they had been paying premiums for a number of years.
“16. In the alternative, Plaintiffs allege that the breach of the aforesaid four contracts was a mistake on the part of the Defendants, however the refusal by the Defendants to correct said mistake when it was brought to the attention of the Defendants by the Plaintiffs is an intentional act made for the express purpose of denying the Plaintiffs the benefits of the aforesaid contracts for which they have been paying insurance premiums for a number of years.
“17. Plaintiffs further allege that the Defendants, separately and severally, have breached said contracts and dealt with the Plaintiffs in the fashion alleged above in retaliation for Troy Watkins electing to cancel certain other insurance policies previously purchased from the Defendants on or about September 1, 1981.”

The trial court granted summary judgment for the defendants on the fraud, bad faith, and wantonness counts. That judgment was made final pursuant to Rule 54(b), Ala.R.Civ.P. The breach of contract claim is still pending in the trial court. Appellant Watkins recognizes that in Hamner v. Mutual of Omaha Insurance Co., 49 Ala.App. 214, 270 So.2d 87 (1972), cert, denied, 291 Ala. 781, 282 So.2d 256 (1973), the Court of Civil Appeals held that a wrongful cancellation of an insurance policy is not a tort, but he claims that Hamner was decided prior to the adoption of the tort of bad faith by this Court and should not be determinative of the legal issue presented.

Unquestionably, in Alabama, the remedy for an alleged wrongful cancellation of a policy of insurance has been in contract, not tort.

In Hartford Fire Ins. Co. v. Ollinger & Bruce Dry Dock Co., 16 Ala.App. 302, 303, 77 So. 452 (1917), the Court opined:

“In a contract to insure, where the insurer renounces his contract, and declares that he will not be bound thereby, the insured may accept the breach, terminate the contract, and sue for such damages as he has sustained, and where the breach occurs before a loss takes place, and the breach is accepted by the insured, the measure of damages is the difference between the cost of the insurance obtained elsewhere and its cost under the contract, provided the insured has used due diligence in protecting himself against loss.”

The contract remedy is recognized in almost all jurisdictions as being the only remedy available where an insurer wrongfully cancels, repudiates, or terminates a contract of insurance. This is consistent with the holding in Hamner, supra. Almost all courts which have been presented with the question hold that the insured may at once pursue any of three courses: (1) he may elect to consider the policy at an end and recover the just value of the policy or such measure of damages as the court in the particular jurisdiction approves; or (2) he may institute proceedings in equity to have the policy adjudged to be in force; or (3) he may tender the premiums and, if acceptance is refused, wait until the policy by its terms becomes payable and test the forfeiture in a proper action on the policy. 34 A.L.R.3d 245, 269, Remedies and Measure of Damages for Wrongful Cancellation of Ufe, Health and Accident Insurance.

The insured in this case argues that a few states have recognized “a need for a cause of action (for wrongful cancellation of an insurance policy) and have developed the tort of wrongful cancellation of insurance policies.” He cites four South Carolina cases, a Florida case, and a California case to support his argument. Those cases are: Mack v. Life and Casualty Insurance Company of Tennessee, 171 S.C. 350, 172 S.E. 305, 306 (1934); Latta v. Sovereign Camp W.O.W. No. 14403; 179 S.C. 376, 184 S.E. 157 (1936); Brown v. United Insurance Co., 236 S.C. 39, 113 S.E.2d 26 (1960); Davis v. Bankers Life and Casualty Company, 227 S.C. 587, 88 S.E.2d 658 (1955); Spindle v. Travelers Insurance Companies, 66 Cal.App.3d 951, 136 Cal.Rptr. 404 (1977); Saltmarsh v. Detroit Automobile Inter-Insurance Exchange, 334 So.2d 862 (Fla.Dist.Ct.App.1977).

These eases from these other jurisdictions, especially those from South Carolina, would allow punitive damages for the wrongful cancellation of an insurance policy.

We are faced, then, with the question whether we should continue to follow Hamner, which followed the general rule, and which we refused to review on certio-rari, or whether we should overrule Ham-ner, and hold that in an appropriate case, an insured could sue in tort for the wrongful cancellation of an insurance policy. The insured asks us to overrule Hamner and adopt the rule that there is an implied contract of good faith and fair dealing in every insurance contract, and that this implied contract can be breached by the wrongful cancellation of an insurance policy, just as it can be by the wrongful refusal to pay a claim. Insured cites Chavers v. National Security Fire and Casualty Co., 405 So.2d 1 (Ala.1981), and asks that the rule of Chavers be applied here. We see no reason to depart from the holding in Hamner that the contract remedy is the only remedy available where an insurer wrongfully cancels, terminates, or repudiates a contract of insurance; therefore, we hold that the trial court did not err in granting defendants’ motion for summary judgment.

Some of the facts are undisputed:

(1) Watkins paid premiums only on Policy No. 88541706.

(2) Watkins received a new premium receipt book for Policy No. 88541706.

(3) Watkins paid premiums on Policy No. 88541706 for over a year and continued to pay the premiums on this policy after he discovered that the children's policies had lapsed. That policy was still in effect when suit was filed.

(4) On the form Watkins signed indicating he wished to cancel policy No. 88541706, a line had been drawn through the reference to policy No. 88541706.

(5) Watkins could neither read nor write.

(6) Some extended benefits are still available under the two whole life policies on the children, even though the basic benefits would not be payable because of the lapse.

Watkins’s theory of recovery on bad faith, fraud, and wantonness could be summed up basically, as follows: The insurer was notified of his desire to cancel the policies on himself and that he did cancel these policies when he signed the form, but the company intentionally and fraudulently refused to cancel policy No. 88541706, collected premiums on this policy, and allowed the policies on the children to lapse.

Even assuming we recognized a tort of bad faith cancellation of insurance, we would find that under the facts of this case there was a “debatable reason” for the insurer’s actions.

Assuming we would overrule Bamner, Watkins claims that he showed at least a scintilla of evidence that the insurer was guilty of fraud. He argues, in brief:

“Life of Georgia agent, Thomas E. Beckham, represented to Mr. Watkins that the instructions Mr. Watkins had given regarding cancellation of policies were carried out. That is, Beckham gave Mr. Watkins certain forms to be signed which Beckham said would cancel only policies on Mr. Watkins, including the father’s policy. Mr. Watkins has a fourth-grade education and is illiterate; therefore, he was at the mercy of Beck-ham and signed the papers which, he believed, cancelled only policies on himself. Mr. Watkins relied on Beckham’s representations that the children’s policies would remain in effect, and continued making monthly premium payments on the children’s policies. Unbeknownst to Mr. Watkins, Life of Georgia intentionally applied these premiums to the father’s policy, allowing the children’s policies to lapse. With the subsequent cancellation of the children’s policies, Mr. Watkins has been damaged by the loss of the policies, one of which was to mature in seven years and one which was to mature in two years.”

In this case, even assuming that Beck-ham represented to Watkins that all, the policies on his life would be cancelled, when, in fact, one policy was not cancelled, and even assuming that the facts as averred by Watkins constitute a misrepresentation, which was relied upon by Watkins, there is nevertheless no damage which cannot be recovered in the contract action; therefore, if Watkins can prevail on his contract action, he can be made whole.

For the same reasons, Watkins cannot recover on his wantonness count. He contends that “[a] duty of good faith and fair dealing is imposed by law on insurance companies ... and it is the omission of this duty which constitutes wantonness in this case.” We disagree and hold that Watkins’s contract remedies are adequate to compensate him for any loss he may have suffered because of the acts or omissions of the insurer.

The judgment is due to be affirmed.

AFFIRMED.

ALMON, EMBRY and BEATTY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I would overrule Hamner v. Mutual of Omaha Insurance Co., 49 Ala.App. 214, 270 So.2d 87 (1972); but, under the undisputed facts of this case, I would affirm the trial court’s order granting the insurer’s motion for summary judgment.


author: EMBRY, Justice.

text:
    COMEQ, INC. v. MITTERNIGHT BOILER WORKS, INC., a Corporation MITTERNIGHT BOILER WORKS, INC., a Corporation. v. COMEQ, INC.
    82-1134, 82-1261.
    Supreme Court of Alabama.
    July 27, 1984.

      Caine O’Rear III of Hand, Arendall, Bed-sole, Greaves & Johnston, Mobile, for appellant/cross-appellee Comeq, Inc.
    Joseph M. Allen, Jr. and Craig S. Pittman of Hamilton, Butler, Riddick, Tarlton & Allen, Mobile, for appellee/cross-appellant Mitternight.
   EMBRY, Justice.

The Facts

Appellant, Comeq, Inc., is a machine tool importer and distributor with offices in Baltimore, Maryland. Its business is the purchase and reselling of heavy machinery and equipment purchased by Comeq from various manufacturers.

One machine sold by Comeq is an “angle bending roll” manufactured by a company called “Swedish Tool,” which markets its products under the name of “Roundo.” That machine is used in the steel fabricating industry to roll angles, channels and beams into circular shapes to be used for supports. It is a standard machine, listed in the Roundo catalog and manufactured pursuant to standard specifications. Of approximately 420 machines sold by Comeq prior to March 1978, about 300 were angle bending rolls. In the year prior to March 1978, Comeq sold approximately 70 to 80 machines.

Beginning in 1974, Comeq made a number of contacts with appellee and cross-appellant Mitternight Boiler Works, Inc., in an effort to sell Mitternight one or more angle bending rolls. In October of 1977, specific negotiations ensued and on 22 March 1978, Comeq delivered to Mitter-night a telex offering to sell a specific model of the roll for $74,424, plus $2,226 for a digital readout.

By return telex, Mitternight accepted Co-meq’s offer to sell one model R7S:

“Consider this wire to be our firm commitment to purchase from you one model R7S Roundo Angle Bending Roll per quoted specifications for $74,424.00 firm. P.O. Number will follow upon completion of IDB procedures. Advise adjusted Ocean Freight FAS Port of Mobile and discount for 90 per cent advance payment pendant mounted digital readout of roll position is also req’d per quoted additional $2,226. We appreciate your long attention to this matter.”

This acceptance was received by Comeq on 27 March 1978.

On 28 March 1978, Comeq committed in writing to Roundo to purchase an angle bending roll to fulfill its contract with Mit-ternight. The cost of the machine to Co-meq was $52,578.25.

On 29 March 1978, after Comeq was committed to purchase the machine from Roun-do, Mitternight advised Comeq it would not purchase the R7S as agreed. The machine ordered by Comeq for resale to Mitternight was indeed purchased by Comeq from Roundo and was later sold by Comeq to another customer. The sale price for the machine was the same as it would have been to Mitternight.

In September of 1978, Comeq sued Mit-ternight for breach of contract. It claimed as damages the profit lost on the agreed sale due to Mitternight’s alleged breach. The case proceeded to trial. Mitternight made an oral motion for directed verdict at the conclusion of the plaintiff’s evidence. The ground set forth for that motion was that there was no evidence of a binding contract. It did not touch upon plaintiff’s theory of damages.

At the conclusion of the evidence, the court expressed concern over whether Co-meq’s theory of damages was appropriate under Alabama law. It advised counsel for both parties it would charge the jury as to Comeq’s lost-profit theory of damages but that, in the event of a verdict in favor of Comeq, it would consider setting aside such a verdict on the basis that only nominal damages were recoverable. Consequently, it reasoned, if it was reversed on appeal, the jury verdict could be reinstated without the necessity of a new trial.

The trial court then charged the jury as to Comeq’s lost-profit theory of damages. It also instructed the jury that, in the event of a verdict in favor of Comeq, the rate of interest to be applied was six per cent.

After deliberating, the jury found Mitter-night had breached the contract, and it rendered a verdict for Comeq in the amount of $30,951.75. That verdict was based on the profit lost on the sale plus interest at the rate of six per cent per annum from September 1978. Judgment was entered on the verdict and costs were taxed against Mitternight.

Mitternight then filed motions for new trial and for judgment notwithstanding the verdict, both grounded on the damages issue. Comeq filed a post-trial motion requesting the court to enter judgment calculated on the basis of twelve per cent interest from the date of breach of contract, rather than six per cent interest, calculated from the date of judgment as charged.

Comeq’s motion for amendment of the judgment regarding interest was denied, but Mitternight’s motion for judgment notwithstanding the verdict was granted. In granting that motion, the court set aside the judgment for $30,951.75 and entered judgment in favor of Comeq for the nominal sum of $100 plus costs.

By its ruling, the trial court determined:

(1) evidence was sufficient to support the determination that a contract existed and that Mitternight had breached it; and (2) Comeq was not entitled under § 7-2-708, Code 1975, to recover the profit lost on the sale.

Comeq appeals to this court from the final judgment entered by the trial court and also from that court’s denial of its motion to recalculate the interest.

Mitternight cross-appeals, alleging the trial court erred to reversal by failing to determine the evidence insufficient to support a finding that a contract existed between the parties.

I

Three issues are presented on appeal. First, Mitternight, in its cross-appeal, con-' tends the trial court erred in determining that a contract existed between Mitternight and Comeq.

There was ample evidence at trial that the parties agreed to a contract of sale. Comeq’s telex of 22 March 1978 stated, “We offer you one new Roundo angle bending roll size R7S.” Mitternight responded by telex of 27 March 1978, “Consider this wire to be our firm commitment to purchase from you one model R7S Roun-do angle bending roll.” Alabama’s Commercial Code sets forth a flexible rule regarding the formation of a contract for the sale of goods:

“(1) A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
“(8) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis of giving an appropriate remedy.”

Section 7-2-204, Code 1975. The Code also provides that:

“(1) A definite and reasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.”

Section 7-2-207, Code 1975.

Mitternight’s telex of 27 March 1978 was not expressly conditioned upon Comeq’s assent to any different or additional terms. It clearly constituted an acceptance of Co-meq’s previous offer. Therefore, the trial court correctly submitted the question of the existence of a contract to the jury for determination. Mitternight’s motions for directed verdict were properly denied and, likewise, the trial court was correct in refusing to set aside the jury’s finding that a contract existed and that it had been breached by Mitternight.

II

Comeq contends the trial court erred in the construction of § 7-2-708, Code 1975. That section provides:

“(1) Subject to subsection (2) and to the provisions of this article with respect to proof of market price (section 7-2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this article (section 7-2-710), but less expenses saved in consequence of the buyer’s breach.
“(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (section 7-2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds or resale.”

Mitternight claims that any lost-profit damages to which Comeq is entitled must be computed in accord with U.C.C. § 2-708(1), which requires that a set-off be made for all profits received by plaintiff as a result of sale to a third party of the machine ordered for Mitternight.

Comeq cites U.C.C. § 2-708(2) as the proper measure, however, in view of its capacity to provide angle bending machines not only for Mitternight but for third parties as well. Comeq reasons that the sale to a third party would have been made regardless of Mitternight’s breach and that, therefore, Mitternight is not entitled to a set-off for proceeds from a third-party sale. We agree.

Professors White and Summers have discussed appropriate application of § 7-2-708(2) in the following terms:

“Unfortunately, the draftsmen never identified or articulated any principle to unite these cases [under 2-708(2)]. In fact it appears that they did not identify the characteristic of the ‘standard priced’ class. That characteristic is not the ‘standard pricedness’ of the goods the seller is selling but the fact that he will lose one sale when Buyer No. 1 breaches and, if he resells Buyer No. 1’s goods to Buyer No. 2, he will still not be made whole by difference-money because he will have lost one sale, one profit, over the course of the year. To illustrate, assume a contract for the sale of a washing machine with a list price of $500. Buyer breaches, and seller resells that washing machine at the same list price the buyer had been willing to pay. However, the resale buyer is one of seller’s regular customers who had intended to purchase a washing machine from him anyway. If the seller’s total cost per machine was $300, he stood to gain an aggregate profit of $400, that is $200 profit from each of two sales. Clearly the 2-708 contract-market differential formula is inadequate in this situation since it gives no damages to the seller who has lost a $200 profit because of the breach. In such a ease the damage award should be the lost profit, that is $200, for this will place the seller ‘in as good a position as performance would have done.’ ”

J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code (1972) at 226-227.

The treatise continues:

“If the seller is in a market in which the demand for the product exceeds the available supply (as for example the car market immediately after World War II), he will lose nothing when one party breaches, and he should recover no damages even if his goods are ‘standard priced.’ ...”

Id. at 227.

There is no Alabama case which considers the application of § 7-2-708(2) to the middleman-seller. However, other jurisdictions have, under § 2-708(2), consistently awarded the middleman-seller damages for his buyer’s breach, even where the seller has resold the goods to a third party, if the seller cannot be compensated under § 2-708(1). Teradyne, Inc. v. Teledyne Industries, Inc., 676 F.2d 865 (1st Cir.1982); TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542 (6th Cir.1981); Famous Knitwear Corporation v. Drug Fair, Inc., 493 F.2d 251 (4th Cir.1974); Nederlandse Draadindustrie NDI B.V. v. Grand Pre-Stressed Corporation, 466 F.Supp. 846 (E.D.N.Y. 1979); Neri v. Retail Marine Corp., 30 N.Y.2d 393, 397, 334 N.Y.S.2d 165, 285 N.E.2d 311 (1972); Snyder v. Herbert Greenbaum and Assoc., 38 Md.App. 144, 380 A.2d 618 (1977); Distribu-Dor, Inc. v. Karadanis, 11 Cal.App.3d 463, 90 Cal.Rptr. 231 (1970). These cases are in line with our longstanding rule in Alabama that in contract law the primary duty of the court is to put the injured party in the same position he would have been in had the terms of the contract not been violated. Zippy Mart of Ala., Inc. v. A & B Coffee Serv., Inc., 380 So.2d 833 (Ala.1980).

The facts of this case fit within the perimeters of § 7-2-708(2). Comeq is in the business of reselling, as a middleman, standard machines and equipment available in volume for Comeq to resale to its various customers. The record reveals that, prior to the contract with Mitternight, Comeq had sold approximately 300 angle bending rolls, and after the contract date sold numerous others. Had Comeq sold and delivered the angle bending roll to Mitternight as agreed, the record indicates it still would have sold the exact same model for the same price to another customer pursuant to independent negotiations. Because of Mitternight’s breach, Comeq lost the profit on that particular sale to Mitternight. But for the breach, Comeq would have received the benefit of both sales, not just one. The market price contract price formula under § 2-708(1) is inadequate to make Comeq whole. Were it applied here, Comeq would be left without a remedy for the breach.

Therefore, the trial court erred in determining that lost-profit damages are not recoverable by Comeq for Mitternight’s breach. As shown above, such damages are recoverable under § 7-2-708(2). Because of our disposition of the above issue, we find it unnecessary to consider whether the trial court erred by considering it on motion for judgment notwithstanding the verdict.

Ill

Comeq also questions the trial court’s calculation of interest due Comeq on the judgment. The damages proved are the sort that permit prejudgment interest. Section 8-8-8, Code 1975, provides:

“All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed.”

In Lapeyrouse Grain Corp. v. Tallant, 439 So.2d 105 (Ala.1983), this court held such prejudgment interest should be calculated at the rate of six per cent per annum pursuant to § 8-8-1, Code 1975, and that post-judgment interest, where, as here, no other rate is established by contract, shall bear interest at the rate of twelve per cent per annum. See our discussion of this issue in Burgess Mining & Construction Corporation v. Lees, 440 So.2d 321 (Ala.1983). In this ease, Comeq is entitled to prejudgment interest of six per cent from the date of breach until the judgment was entered and post-judgment interest of twelve per cent thereafter.

For the above reasons, the judgment of the circuit court is reversed as to all issues, except the issue regarding the existence of a contract between Comeq, Inc., and Mit-ternight Boiler Works, Inc., and this cause is remanded to that court for entry of judgment consistent with this opinion.

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

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


author: JONES, Justice.

text:
    BRINDLEY CONSTRUCTION CO., INC. v. BYCO PLASTICS, INC.
    83-194.
    Supreme Court of Alabama.
    July 27, 1984.
    Rehearing Denied Sept. 21, 1984.

      Rodney B. Slusher, of Peck, Slusher & Bunch, Florence, for appellant.
    Jimmy E. Alexander, of Alexander, Cord-er & Plunk, Athens, for appellee.
   JONES, Justice.

This appeal is from a judgment based on an original claim for breach of contract, resulting in a jury verdict for Plaintiff/Ap-pellee Byco Plastics, Inc., in the sum of $8,036.54 against Boatwright-Littrell Constructors, Inc., and Brindley Construction Company. Additionally, the jury returned a verdict of $2,500 on a fraud count (added by amendment) against both corporate Defendants. Following a denial of post-judgment motions, Brindley appeals. We affirm conditionally.

FACTS

In the spring of 1981, Brindley entered into subcontractual agreements with Boat-wright-Littrell for the construction of several apartment complexes. Cabinet tops for two of the complexes were purchased by Boatwright-Littrell from Byco.

Because of the insolvency of Boatwright-Littrell, a trust account was established in July 1981, whereby monies owed by Brind-ley to Boatwright-Littrell were deposited in a trust account to be disbursed to Boat-wright-Littrell’s creditors. Byco was not a party to the agreement and was not made aware of the agreement until later.

In November 1981, Boatwright-Littrell owed Byco $7,572.93 and Byco refused to deliver more counter tops until payment was received. Byco claimed that a $3,000 payment was received as the result of a telephone conversation between Mr. Tap-scott of Byco and Mr. Brindley of Brindley Construction. Also, Tapscott claimed that Brindley said he would see that Byco received the money owed it, and that, in the future, Brindley wanted to receive copies of the invoices Byco sent to Boatwright-Littrell. Byco subsequently sent a copy of each invoice to Brindley.

Ricky White, an accountant for Brindley, testified that on November 5, 1981, Fred Littrell of Boatwright-Littrell called him and said that his company needed some materials for cabinets, that the company account for Byco was past due, and that Byco would not release the materials without payment. White also said that as of November 5 neither he, nor anyone else at Brindley, knew that Boatwright-Littrell was purchasing its cabinet tops from Byco and that its account was past due.

White later contacted Tapscott at Byco and asked him if his company would release the materials to Boatwright-Littrell upon payment of $3,000. Byco consented to the payment, which was later authorized by White.

Byco filed suit against Fred Littrell, individually, Boatwright-Littrell Constructors, Inc., Brindley Construction Company, and Robert Brindley, individually, alleging that the Defendants owed Byco $7,936.85 due by open account and for goods sold and delivered to the Defendants. By amendment, Byco claimed fraud against each Defendant.

At the close of Plaintiffs case, the trial court granted Fred Littrell’s motion for a directed verdict. The jury then resolved the claims for open account, for goods sold and delivered, and for fraud against both corporate Defendants and in favor of the individual Defendant Robert Brindley.

ISSUES

The ultimate question presented is whether the alleged agreement by Brindley Construction to pay Byco for the cabinet tops, not being in writing, is unenforceable as violative of the Statute of Frauds. In determining that issue, we must decide whether the evidence supports a finding that either (1) both Brindley and Boat-wright-Littrell were initially liable for the debt incurred to Byco; or (2) whether a new consideration passed to Brindley from Byco. The parties agree that either situation would remove the obligation from the purview of the statute of frauds, thus validating the jury verdict of enforceability.

DECISION

The evidence of record is uncontra-dicted that the alleged agreement to pay the indebtedness to Byco was oral. Code 1975, § 8-9-2, states that every promise to answer for the debt of another is void unless in writing and signed by the party to be charged. To this rule, however, there are “exceptions.”

“ ‘A party may make a valid oral contract, which operates to create a new debt of his own, if founded on a new and independent consideration, though the effect of the payment is to pay another’s debt. In order, however, to have this effect, the essence of the new undertaking must be the payment of the promis- or’s own debt, by paying the debt of a third person.’ ” Herrington v. Central Soya Co., 420 So.2d 1, 3 (Ala.1982), citing Clark & Wadsworth v. Jones, 85 Ala. 127, 130 [4 So. 771] (1887).

This distinction between “original” and “collateral,” focusing on the nature of the promise made, is addressed in Lankford v. Rucker, 396 So.2d 105, 108 (Ala.Civ.App.1981), quoting from Toles v. Cook & Sons Lumber Co., Inc., 370 So.2d 1047, 1049 (Ala.Civ.App.1979):

“ ‘In order to determine whether a promise is collateral, and thus within the statute of frauds, or original and not within the statute, a determination must be made as to whom the credit is actually given. If the credit is given solely to the promisor, although the goods are delivered to another, then the promise is original and not one of guaranty and not within the Statute of Frauds.’ ” (Emphasis in Lankford.)

Lankford continues: “If such credit is extended simultaneously to both the promisor and the debtor, then the promis- or’s promise may also be deemed an ‘original’ promise.”

In Riteway Machine & Manufacturing Co. v. First National Bank of Tuscumbia, 374 So.2d 1361 (Ala.1979), the plaintiff repaired the debtor’s sawmill equipment after the defendant bank assured plaintiff that the repair bill would be paid by the bank. This Court reversed the order granting a directed verdict for the defendant bank, stating that the determinative issue was to whom the promisee extended the credit.

“If the promisee extended credit to the promisor, then the promisor is not being asked to answer for the debt of another, and it is immaterial that the goods were delivered to ... someone other than the promisor. If that be the case, then the requirement that the promise be written is not applicable.” 374 So.2d at 1370 (emphasis original).

We are not entirely clear from our examination of the record before us as to the precise details of how the account between Byco and Boatwright-Littrell in November 1981, after being reduced by $3,000 paid by Brindley from the trust account, reached a new balance of $7,936.85 at the time of trial. This much, however, is apparent: The Boatwright-Littrell account of $7,572.93 was reduced to $4,572.93 by the $3,000 payment. Subsequent transactions between Byco and Brindley increased that balance to the amount claimed in the suit, $7,936.85. The evidence supports a finding that the amount of the increase between the original balance after the $3,000 payment, and the total balance of the account at the time of the suit, resulted from the direct dealings between Byco and Brindley. Consequently, this difference of $3,363.93 is the original debt of Brindley, and is unrelated to the payment of a debt of another.

On the other hand, we find no evidence to support either of the exceptions to the Statute of Frauds referred to above with respect to the initial obligation between Byco and Boatwright-Littrell. In other words, any claim for the $4,572.92 balance remaining after Brindley’s $3,000 payment to Byco is within the Statute of Frauds and is unenforceable.

We find no merit in Appellant’s allegation of error with respect to the $2,500 award on the fraud claim. The jury’s finding that Brindley’s misrepresentation relating to Byco’s delivery of the cabinet tops resulted in substantial actual damages is warranted by the evidence. The presumption in favor of the jury award is strengthened by the trial court’s denial of a new trial on a “weight of the evidence” ground. Carroll Kenworth Truck Sales, Inc. v. Leach, 396 So.2d 1044 (Ala.1981).

Accordingly, we affirm the judgment below on the condition that the Appellee file with the Clerk of this Court, within fourteen days of the date of this Court’s certificate of judgment, a remittitur in the amount of $4,672.61, thereby reducing the total judgment to $5,863.93, plus the legal rate of interest on the sum of $3,363.93 from the last date of delivery of the goods.

AFFIRMED CONDITIONALLY.

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

      . Boatwright-Littrell filed no post-judgment motions and is not a party to this appeal.

      . The two situations referred to earlier (i.e., original debt and new consideration), in the strictest sense, are not exceptions to the Statute of Frauds. Rather, they are factual situations that do not invoke the operative effect of the rule's proscription.


author: BEATTY, JUSTICE.

text:
    Lisa Diane HENLEY v. PIZITZ REALTY COMPANY, a Corporation.
    83-362.
    Supreme Court of Alabama.
    July 27, 1984.

      Hilliard R. Reddick, Jr. of Hardin & Hollis, Birmingham, for appellant.
    Michael K. Wright of Norman, Fitzpatrick & Wood, Birmingham, for appellee.
   BEATTY, JUSTICE.

Appeal by plaintiff from a summary judgment for defendant. We affirm.

The basic legal question presented is whether or not a private corporation owes a duty to protect its invitees from a criminal attack.

Plaintiff, Diane Henley, parked her automobile in a parking deck owned and operated by Pizitz Realty Company (Pizitz) as a business enterprise. Upon entering the deck, she was presented with a ticket which recited:

“This Contract Limits Our Liability. Please Read It. This Parking Deck rents space only. No bailment is created; and the Parking Deck is not responsible for loss or damage to car or contents due to fire, theft, vandalism, collision, or any other cause whatsoever. Please hold your children’s hands. Do not leave children or pets in parked cars.”

On the day of the episode giving rise to this action, the plaintiff returned to the parking deck after work, at approximately 5:40 p.m. She rode an elevator to a point near the parking level, then walked down a lighted way to her car. At that point, she was accosted at gunpoint by a man who forced her into her car. He required her to drive to the exit and pay the attendant, and then he forced her to drive to an apartment, where she was raped. She reported the incident to the police, whose investigation led to the arrest and conviction of the assailant.

At the time in question, the parking deck was equipped with a number of closed circuit television cameras monitored in the attendant’s booth. A guard was also employed who made regular patrols of the deck.

Through interrogatories later propounded by plaintiff to defendant, it was disclosed that during the ten-year period between January 1, 1970, and December 31, 1979 (which is beyond the date of this incident, i.e., December 6, 1979), the following crimes, of which defendant had notice, occurred in this parking deck: one battery upon an owner of a car; six breakings and enterings of cars; two robberies; one rape (this occurrence); six thefts; and one theft . in which the thief was shot by a customer.

Plaintiff brought this action against Piz-itz, alleging negligence and wantonness in maintaining its security system in the parking deck, and for breach of an agreement between Pizitz and plaintiff to provide and maintain a security system, resulting in plaintiffs abduction, battery, and rape. Pizitz moved for summary judgment, supported by the pleadings, defendant’s answers to plaintiffs interrogatories, and the depositions of plaintiff, Peggy Ervin, Daniel Brown, and 0.0. Young. Following a hearing, this motion was granted. Plaintiff appealed.

In support of her argument that the trial court erred in granting summary judgment for defendant, plaintiff espouses two positions. In one, plaintiff argues that a business proprietor has a legal duty to protect patrons from criminal acts when the proprietor knows or, in the exercise of reasonable care, should know that criminal acts are likely to occur. Under this principle, plaintiff maintains, the facts adduced show that Pizitz should have known of the likelihood of criminal activity and thus had a duty to protect plaintiff. In that connection, plaintiff urges that this Court adopt § 344 of the Restatement (Second) of Torts (1965):

“Business Premises Open to Public:
Acts of Third Persons or Animals.
“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
“(a) discover that such acts are being done or are likely to be done, or
“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
“(f) Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”

In the other position, plaintiff maintains that the language of the parking ticket, together with the presence of the television cameras, constituted a contractual duty, voluntarily assumed by Pizitz, to provide security against criminal attack by third persons.

This Court considered this same problem in Latham v. Aronov Realty Company, 435 So.2d 209 (Ala.1983). That decision explored the pertinent Alabama cases as well as decisions from other jurisdictions. See, e.g., Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976) (owner of vehicle who left keys in ignition not liable for injury caused by operation of vehicle by thief); City of Mobile v. Largay, 346 So.2d 393 (Ala.1977) (perpetration of rape not reasonably forseeable consequence of City’s failure to maintain its building). See also Berdeaux v. City National Bank of Birmingham, 424 So.2d 594 (Ala.1982) (financial institution providing office for paying and receiving money owed no special duty to protect customers from third persons committing robbery); and Annot., 10 A.L.R.3d 619. Perusal of our cases, and those of many other jurisdictions concerned with the problem, discloses an emphasis upon the absence of proximate cause, a conception not without difficulty in its application even on a case-by-case basis. See, Jones, J., dissenting in Largay, supra.

In Parham v. Taylor, 402 So.2d 884 (Ala.1981), a clerk in a food and beverage store was shot by a robber. The clerk brought an action for damages against her employer, claiming that he had failed to provide a safe place to work “in that she was not adequately protected from the criminal acts of third persons.” In affirming summary judgment for the employer, this Court aligned itself with the reasoning expressed in a similar Kentucky decision, Thoni Oil Magic Benzol Gas Stations, Inc., v. Johnson, 488 S.W.2d 355, 357 (Ky.1972):

“In the ordinary situation we indulge the assumption that people will obey the law rather than violate it. Thus, absent unusual circumstances, an employer need not anticipate injury to an employee through the criminal acts of third persons. In the ordinary situation an employer has no duty to provide police protection for employees....
“In spite of police protection afforded by the state it is a fact of life that citizens are sometimes assaulted, beaten, robbed, raped or murdered at home, at work or on the streets. This is a problem which confronts all citizens equally and for which there is often no civil remedy.
“With our opinion in Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., [467 S.W.2d 772 (Ky.1971)], we have joined the ranks of those jurisdictions which hold that in certain unusual circumstances an employer may have a civil liability to his employees for the criminal acts of third persons. We feel however that employers should not be saddled with such liability except in the most extraordinary and highly unusual circumstances.
“When conditions of employment are such that they invite attack upon employees by creating highly unusual and unreasonable exposure to danger without the employment of reasonable protective measures there is justification for imposing liability upon the employer when injury results.
“There is perhaps some exposure to the criminal acts of third persons in any employment but we recognize that the degree of exposure varies considerably from one type of employment to another. Thus the bookkeeper, the industrial worker, or the clerk in a mercantile establishment is probably less likely to be murdered on the job than is the policeman, the night watchman, the teller in a branch bank or the attendant at an all-night service station.
“But even so, the employer of the night watchman, the bank teller, or the service station attendant is not the insurer of his safety from attack. Even in those occupations which ordinarily entail a substantial risk of exposure to criminal acts of third persons, we think liability should not attach to the employer unless it is clearly shown that the employer in some manner greatly and unreasonably increased that risk without taking reasonable precautions for the safety of the employee.
“The determination of when the exposure to harm has been escalated to the point that liability will attach is difficult and each case must rest upon its own facts. We stress however that evidence of some potential danger or possibility of harm is not enough. It is only when the risk reaches the stage that injury to the employee is the likely or probable result of the condition of employment that liability attaches.” (Citations omitted.)

It can readily be seen that the Kentucky court, and this Court, would not authorize recovery from an employer by an employee so injured, absent “the most extreme case where it is clearly shown that the employer in some manner, greatly and unreasonably, increased the risk to the employee without taking reasonable safety precautions.” This position was in accord with the rationale of Thoni that “as a matter of law the conditions of the employment were not so fraught with danger as to render a crime against the employee a likelihood or a probability.” Thoni at 357.

Although the employer-employee decisions are factually distinguishable, and their controlling legal principles do not contain precisely the same phraseology, nevertheless they are substantially similar to the invitee cases, so as to furnish helpful doctrinal analogies.

Latham v. Aronov Realty Company, supra, dealt not with an employer-employee situation but a landlord-invitee relationship. In that decision, there is an exhaustive analysis of the premise upon which liability has been imposed upon a landlord whose invitee has been victimized by the criminal act of a third party. This Court held that an invitee of shopping mall owners, who was the victim of a criminal assault in the mall parking lot, could not recover damages in the absence of evidence showing that the owners knew or had reason to know from past experience that there was a likelihood of conduct by third persons that would endanger him. That opinion refers to cases showing the frequency of criminal incidents which put the defendant on notice and thus created the duty to protect: 77 car thefts and 15 attempted car thefts in one parking lot, Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Pa.1977); 273 police calls and 160 arrests at a bowling alley in a six-month period, Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 (1966); and 7 muggings within a year’s time, with 5 of these committed in evening hours during the four months preceding the attack on plaintiff, Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982).

It is also significant that in Latham, supra, plaintiff argued that the hiring of security personnel proved that the defendant landlord foresaw the possibility of criminal conduct by third parties, and that the presence of crowds on the night of the incident established the inference that the guard’s attention should have been focused upon that area of the mall and of the parking lot nearby (where the attack took place). Likewise, plaintiff here argues that the presence of the monitoring system was a recognition of the likelihood of criminal activity and the assumption of a duty to protect the plaintiff from attack. Additionally, plaintiff contends that the defendant’s security system could not be operated efficiently, because at peak periods the task of monitoring could not be accomplished properly by those whose duties included taking up money from customers.

In regard to a similar argument made by the plaintiff in Latham, this Court discussed a Tennessee decision, Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975):

“The facts in that case are strikingly similar to those in this case. In Corn-propst, an assailant attacked a woman shopper in the parking lot of a shopping mall. The attack occurred at night and there were no security guards posted in the lot. Prior to this attack, there has been various other assaults and acts of violence either on the premises or in the general vicinity. She sued the mall owner and the owners of the stores in the mall for a failure to provide adequate protection from the criminal acts of third parties.
“The Tennessee court noted that under the common law there was no duty whatsoever to protect others from criminal acts of third parties. The court noted that in establishing such a duty, it would be very hard to determine when the duty arose, what measures would discharge the duty, and whether acts of the defendants would be the proximate cause of the injury. The Court opined:
“ ‘In our opinion it is a mistake to equate the duty of shopkeepers with respect to criminal acts with the duty of shopkeepers with respect to careless acts. Section 344 of the Restatement of Torts (Second) places both acts in exactly the same category in comment f.
“ ‘In our opinion the appropriate rule applicable to this case is as follows: There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.
“ ‘Assuming arguendo, that the complaint in this case states a cause of action upon which relief could be granted, we would dismiss the lawsuit for another reason. The facts alleged ... establish an efficient, intervening and unforeseeable cause for the injury sustained by Marie Cornpropst [the plaintiff]. The minds of reasonable men cannot differ but that the sudden act [of the third party], which could not have been prevented or deterred by the exercise of reasonable care on the part of the shopping center merchants, was the sole proximate legal cause of harm to Marie Cornpropst. Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965).’ ” Latham, 435 So.2d at 213.

In Cornpropst and in Latham, the legal question was whether or not the particular criminal conduct was foreseeable. It was held in each case that the criminal conduct was not foreseeable because the evidence failed to establish that the defendant knew or had reason to know that “acts [were] occurring or about to occur on the premises that pose[d] imminent probability of harm to an invitee,” and, thus, no duty to protect against such act arose. Accord Stripling v. Armbrester, 451 So.2d 789 (Ala.1984).

Without detracting from our natural sympathy for this unfortunate victim, we conclude that the occurrences of the ten-year period established by plaintiff did not give rise to a duty upon this defendant to protect this plaintiff from the crime for which she suffered at the hands of the third-party criminal. Paraphrasing from Latham, supra, at 214, there was an absence of evidence that the defendant either knew or should have known of a likelihood of conduct on the part of a third person such as this assailant which would endanger the invitee. Thus, under the facts of this case, this assault and the rape were not reasonably foreseeable.

This Court cannot agree, moreover, with plaintiff’s argument that the parking ticket received by plaintiff established a contract with her to provide her with security against criminal attack, and, together with the closed circuit monitors, constituted a voluntary undertaking by Pizitz to protect the plaintiff from attacks upon her person. Such an interpretation would extend far beyond any intention manifested by the language contained thereon. By its terms, the ticket contracted for rental space. Any foreseeable incident recognized by those terms, at most, would have concerned theft of articles left within an automobile, and, perhaps, damage by vandalism. We cannot construe the language of the parking ticket as an assumption by Pizitz of all liability not specifically excluded.

For these reasons, this Court has concluded that the trial court did not err in granting the summary judgment for defendant.

Let the judgment be affirmed.

AFFIRMED.

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