author: MADDOX, Justice.

text:
    STAUFFER CHEMICAL COMPANY v. Billy Ray BUCKALEW and Carol Buckalew.
    82-1169.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      James D. Brooks and C. Robert Gottlieb, Jr. of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellant.
    Robert T. Cunningham, Jr. and Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for ap-pellees.
   MADDOX, Justice.

On February 21, 1978, Billy Ray Bucka-lew (plaintiff) was injured on the premises of Stauffer Chemical Company (defendant). At the time of injury, Buckalew was employed as an electrical foreman by McIntyre Electric Company, a sub-contractor employed to do electrical work in or about Stauffer’s plant. The injury occurred when a ladder upon which Buckalew was standing collapsed, causing him to fall approximately 14 feet onto a concrete floor. As a result of the fall, Buckalew sustained fractures of the left wrist and a compression fracture of the back, and he is still permanently disabled because of those injuries.

The facts indicate that the ladder in question was the property of Stauffer, and that Buckalew borrowed it to repair a broken conduit because McIntyre had no available ladder which extended high enough to perform the task. Buckalew claimed that he borrowed the ladder at the direction of Jack Barnett, the electrical supervisor for Stauffer, who acted as liaison with Stauf-fer’s subcontractors.

Buckalew brought suit in Mobile Circuit Court, alleging negligence on Stauffer’s part in providing him with a ladder which it knew, or should have known, was unsafe. His wife, Carol Buckalew, joined in the suit, asserting claims for loss of consortium.

The case was tried before a jury. At the close of their case, the Buckalews’ motion for directed verdict was denied, as was Stauffer’s similar motion made at the close of all testimony. The jury returned ver-, diets in favor of Billy Ray Buckalew for $100,000 and Carol Buckalew for $25,000. Stauffer’s motions for judgment notwithstanding the verdict or, alternatively, for new trial or remittitur, were denied.

Stauffer appeals here, contending that the trial court erred by: (1) not granting a directed verdict, JNOY, new trial, or remit-titur in regard to the issue of Carol Bucka-lew’s damages; (2) allowing evidence to be introduced of subsequent remedial measures taken by Stauffer, in particular, a report indicating the results of a ladder inspection conducted at Stauffer’s plant seven days following the accident, which showed that a substantial number of Stauf-fer’s ladders were defective; (3) not granting a directed verdict, JNOV, or new trial on the issue of Stauffer’s liability; and, (4) allowing the Buckalews to examine Stauf-fer’s employees and former employees as adverse witnesses. We find no prejudicial error and affirm.

The record shows that Stauffer was engaged in the production of various agricultural chemicals at its Mobile plant, that it recognized the corrosive effect of these chemicals on the metal and wooden components of the ladders in its plant, and that it was aware of Occupational Safety and Health Administration (OSHA) regulations requiring regular ladder inspections. For these reasons, Stauffer, for some time pri- or to Buckalew’s injury, had maintained a policy of inspecting all ladders on its premises monthly, keeping reports showing the number of ladders found to be defective.

Prior to trial, Stauffer filed a motion in limine seeking to prohibit reference to the fact that ladder inspection reports were compiled after the accident and, specifically, that a number of ladders were thrown away as a result of the subsequent inspection. The trial court denied Stauffer’s motion, and the Buckalews were allowed, over Stauffer’s objections, to introduce the inspection report, which was made on February 28, 1978, seven days after Buckalew’s injury. The Buckalews were also allowed to refer to that report both in their opening statement and during examination of witnesses.

The February 28th report showed that of 66 ladders inspected, 27 were found to be “bad” and were discarded. This evidence was especially damaging when considered in the light of the previous month’s report, made on January 27, 1978, showing that of 56 ladders inspected, only one was found to be “bad.” Stauffer asserts that the February 28th report, when viewed in this light, has no probative value except to show its negligence in conducting ladder inspections. We do not agree.

As Stauffer correctly contends, evidence of subsequent remedial measures is generally inadmissible to prove negligence. Standridge v. Alabama Power Co., 418 So.2d 84 (Ala.1982). The reason for this rule is that admission of such evidence would tend to prevent even careful persons from making repairs until after trial, a result which might subject other persons to the same risk of injury. C. Gamble, McElroy’s Alabama Evidence, § 189.92 (3d ed. 1977), citing, Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604 (1914); however, there are several exceptions to the general rule, such as where evidence of subsequent remedial measures is admitted to show defendant’s control over the allegedly defective premises or instrumentality, the existence of a condition at the time of the accident in question, the feasibility of the use of safeguards or precautionary measures, or to impeach a witness. Evidence of remedial measures may also be admitted where the remedial measures were taken within the res gestae of the occurrence giving rise to the cause of action. Standridge, supra.

The present evidence was not, in our view, admissible to show ownership or control, because neither ownership nor control of the ladders was in dispute, Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941), nor was it probative as to a condition existing at the time of injury, City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944), or as to the feasibility of safeguards, Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981), cited as authority in Standridge, supra. The res gestae exception, as applied in Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975), also has no application here. We do, however, hold that the subsequent inspection report was properly introduced for the purpose of impeachment.

Subsequent remedial measures have previously been recognized as admissible where offered to contradict or impeach a witness or to lessen the weight of expert testimony. Norwood Clinic, supra. While the application of this exception in Alabama has heretofore been limited to situations in which subsequent modifications of a defective instrumentality have been introduced to contradict expert testimony that such modification was impossible, Bedgood v. T.R. Miller Mill Co., 202 Ala. 299, 80 So. 364 (1918); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 (1904), we do not believe its use should be limited to those specific situations.

We would note that Federal Rule of Evidence 407 permits evidence of subsequent remedial measures for the purpose of impeachment, Werner, supra, and that under the federal rules, this exception has been applied quite liberally. For example, in Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F.2d 351 (3rd Cir.1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 845, 59 L.Ed.2d 39 (1979), it was held that evidence that new fluorescent lights were installed four days after a rape was properly admitted to rebut defendant’s contention that the area was adequately lighted at the time of the rape. We find Kenny, supra, to be very similar to the present case, as we shall show.

The Buckalews called Robert Gardner as an adverse witness. He testified that both he and Nathanial Lucius were “safety mechanics” employed by Stauffer to conduct, among other things, monthly ladder inspections. On cross-examination, he testified concerning ladder inspections conducted prior to the date of Buckalew’s injury, and stated that “some months seems like all of them [ladders] will be bad,” and that on many occasions “half” of the ladders inspected were bad. In effect, his testimony was that he and Lucius had carefully conducted inspections prior to Buckalew’s inju- ■ ry. At this point, the February 28th report was offered and introduced, along with pri- or inspection reports. Those reports clearly showed that at no time were all, or even half, of the ladders inspected found to be bad. The reports not only contradicted Gardner’s testimony, thereby impeaching his credibility as a witness, but also impeached Stauffer’s claim that its ladder inspection program, prior to Buckalew’s injury, was conducted in a reasonable manner. Therefore, the report was properly admitted for these purposes. Kenny, supra; Standridge, supra.

As to Stauffer’s contention that Gardner, Obie Cates, and Jack Barnett were improperly called as adverse witnesses, the evidence shows that all three were longtime Stauffer employees and that they were either responsible for safety at Stauf-fer’s plant or were in a supervisory position on the day of Buckalew’s injury. Thus, we believe that all three could have been named as defendants in the present action, and, considering our decision in Whitworth v. Utilities Board, 382 So.2d 557 (Ala.1980), we believe they were “managing agents” within the meaning of Rule 43(b), Ala.R.Civ.P. As managing agents, all three were properly subject to being called as adverse witnesses.

We see no support for Stauffer's contention that it was entitled to a directed verdict, JNOV, or a new trial. It is a well known principle of law in this state that the standard of review for testing motions for directed verdict is identical to that for testing motions for JNOV, and that the jury must be allowed to pass on the evidence if there is any evidence, no matter how slight, to support a verdict in favor of the party against whom a directed verdict is sought. Casey v. Jones, 410 So.2d 5 (Ala.1981). Similarly, a motion for JNOV should be denied if there is any conflict in the evidence for the jury to resolve, the existence of such conflict to be determined by the scintilla rule. Warren v. Ousley, 440 So.2d 1034 (Ala.1983). Both motions for directed verdict and for JNOY may be denied if there is a scintilla of evidence favorable to the non-movant. Marion v. Hall, 429 So.2d 937 (Ala.1983).

In the case sub judice, there is evidence that Stauffer undertook to provide safety inspections, that, at least two times prior to the accident, its employees inspected the ladder on which Buckalew was injured, and that neither of these inspections showed the ladder to be “bad.” Further, there was expert testimony indicating that the collapse of the ladder was caused by localized chemical activity which should have been visible during these inspections, if properly conducted.

We believe the foregoing evidence presents more than a scintilla of evidence indicating Stauffer’s negligence in conducting ladder inspections. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971); therefore, we find no error in the trial court’s denial of a directed verdict or JNOY on the issue of Stauffer’s liability.

The same reasoning applies to Stauffer’s similar motions regarding Mrs. Buckalew’s damages. Although she did not appear at trial, there is evidence showing that the Buckalews are husband and wife, that immediately after her husband’s accident, Carol Buckalew went to the hospital, that she observed her husband’s pain and treatment, and that she visited him often during his hospital stay. The evidence also shows that Mr. Buckalew was admitted to the hospital on February 21, 1978, underwent surgery, and remained hospitalized until February 28, 1978, when he underwent a second surgical procedure. After this second procedure, he remained in the hospital, confined to bed, until March 4, 1978, at which time he was released to go home. Between his return home and the time the doctors released him to go back to work, June 2, 1978, he was unable to participate in any normal activities around his house. He also underwent a third surgical procedure for removal of a pin from his wrist. Finally, the evidence shows that, even after his return to work, his activities were limited by his injuries and that those injuries appear permanent. This evidence is sufficient to present at least a scintilla from which the jury could have inferred Carol Buckalew’s loss of consortium, Marion, supra; Williams v. Alabama Neon Sign Co., 293 Ala. 454, 304 So.2d 895 (1974), and we find that Stauf-fer’s motions for directed verdict and JNOV on these issues were properly denied.

The denial of Stauffer’s motion for new trial was also proper. A strong presumption favors a jury’s verdict, especially when the trial court refuses to grant a new trial. Matthews Brothers Construction Co. v. Lopez, 434 So.2d 1369 (Ala.1983). Consequently, the granting or refusing of a motion for new trial is within the sound discretion of the trial court, whose exercise of that discretion carries with it a presumption of correctness which will not be disturbed on appeal absent abuse of some legal right disclosing plain and palpable error. Cox v. Cox, 431 So.2d 527 (Ala.1983). A review of the record reveals no abuse of discretion nor plain and palpable error.

Stauffer was not entitled to a remittitur. The companionship and society of a husband are not articles of commerce which can be bought and sold, weighed or measured. Monetary compensation for loss of consortium is to be determined by the jury. Robbins v. Voigt, 280 Ala. 207, 191 So.2d 212 (1966). The jury’s verdict awarding such damages will not be disturbed on appeal unless so excessive or grossly inadequate as to indicate passion, prejudice, corruption, or mistake. Our authority to disturb the verdict on the grounds of excessiveness is to be exercised with great caution. This is especially true where the trial court has refused a new trial or remittitur, thereby strengthening the presumption in favor of the jury’s ver-diet. Prescott v. Martin, 331 So.2d 240 (Ala.1976).

The $25,000 verdict in favor of Carol Buckalew seems to us somewhat generous in view of the sparsity of evidence concerning the claims she made of loss of consortium; however, based upon Mr. Buckalew’s continued partial disability and his apparent total disability for more than three months, we cannot say that the verdict resulted from passion, prejudice, corruption, or mistake.

Finding adequate evidence to support the jury’s verdict and no errors in the admission of evidence, we affirm the judgment.

AFFIRMED.

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


source: Caselaw Access Project

author: EMBRY, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    BANK OF LEXINGTON v. C.H. JONES, Jr.
    82-1156.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      John 0. Morrow, Jr. of Wilson & Morrow, Florence, for appellant.
    J. Douglas Evans, Florence, for appellee.
   EMBRY, Justice.

This is an appeal by plaintiff Bank of Lexington from an order of the trial court granting the defendant’s motion to quash execution upon any fee simple interest in the property of C.H. Jones, Jr., sought to be levied upon in satisfaction of a judgment of the Bank against Jones. We reverse.

This action was brought by the Bank of Lexington to recover on a promissory note cosigned by defendant C.H. Jones, Jr. The note was made to obtain a loan to be used by the son of C.H. Jones, Jr. to purchase certain farm equipment. The son ultimately filed a Chapter Seven bankruptcy petition, but only after his parents, C.H. Jones, Jr., and Peggy Joan Jones, had conveyed all of their jointly owned real estate to Peggy Joan Jones alone.

The Bank of Lexington obtained a deficiency judgment against C.H. Jones, Jr., based upon the note, in the aggregate amount of $34,765.81. The Bank attacked the conveyance prior to the son’s bankruptcy as an attempted fraud on the creditors of C.H. Jones, Jr., and a consent judgment was entered against C.H. Jones, Jr., and his wife setting the conveyance aside.

The tracts of land covered by this fraudulent conveyance had been originally acquired in the period from 1952 to 1962 by defendants as tenants in common. In 1968 the property was deeded by defendants back to themselves through a corrective survivorship deed that created a joint tenancy with right of survivorship in defendants.

The trial court, after setting aside the fraudulent conveyance, turned to the determination of what real property was subject to execution, levy and sale to satisfy, to the extent possible, the Bank’s debt. The trial court found that because the joint tenancy was created after this courts decision in Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), and prior to the decision in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), the plaintiff’s writ of execution on the subject property must be limited to a one-half undivided life estate. The Bank of Lexington argues that it should be allowed to execute on a one-half interest in fee simple. Under the facts of this case we agree.

The deed which created the joint tenancy in the instant case was drafted in 1968 and therefore falls squarely within those decisions of this court previously mentioned which define the nature of joint tenancy in Alabama. Therefore, only by consent of all joint tenants could the joint tenancy of C.H. Jones, Jr., and his wife be destroyed. Bernhard, supra.

The fraudulent conveyance statute states:

“All conveyances or assignments in writing, or otherwise, of any estate or interest in real or personal property and every charge upon the same made with intent to hinder, delay, or defraud creditors, purchasers, or other persons of their lawful actions, damages, forfeitures, debts, or demands, and every bond, or other evidence of debt given, action commenced or judgment suffered, with the like intent, against the persons who are or may be so hindered, delayed or defrauded, their heirs, personal representatives and assigns are void.” (Emphasis supplied.)

§ 8-9-6, Code 1975. It is well settled that a fraudulent conveyance is valid as to all the world except creditors of the grantor, notwithstanding the statute itself declaring that such conveyances are void. J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972). However, under the facts of this case, statutory authority to void such a conveyance is of little benefit to creditors and fails to penalize the debtor for his fraud if the joint tenancy limits execution, levy and sale to a one-half undivided life estate.

This court will not insulate defendants from penalty for their fraud. We will not merely restore the status quo if doing so condones the fraudulent activity § 8-9-6 was designed to prevent. When this court decided Jackson v. Fillmore, 367 So.2d 948 (Ala.1979), giving Nunn v. Keith prospective application and allowing Bern-hard v. Bernhard to operate over the interim period prior to Nunn, we did not intend to create a safe harbor for fraudulent conveyance practices. Nor did this court intend to allow those holding under an indestructible joint tenancy to convey “any estate or interest” with the “intend to hinder, delay, or defraud creditors” and not be subject to penalty.

To limit the Bank of Lexington to a one-half undivided life estate would be to deny it the very protections which our fraudulent conveyance statute was meant to provide. The inequities of this approach are expressed by Justice Maddox in his dissent in Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972):

“The majority opinion holds that the conveyance of a contingent remainder, even if made for the purpose of hindering, delaying or defrauding a creditor, cannot be set aside by a creditor, since contingent remainders are not subject to levy and sale under execution. By requiring that the interest which a debtor holds be a vested interest, subject to levy and sale and subject to a judgment lien, the majority has unduly limited the provisions of Title 20, § 7, Code of Alabama 1940, Recomp.1958_
“This Court has said that transactions to defeat creditors are viewed with disfavor and that this statute, which provides that conveyances in writing of any estate or interest in real property which are made with intent to hinder, delay or defraud creditors of their lawful debts are void, should be liberally construed. Taylor v. Peoples Fertilizer Co., 270 Ala. 243, 117 So.2d 180 (1959).”

288 Ala. at 116-117, 257 So.2d at 360-361.

In essence, limiting the interest subject to levy by the Bank to a life estate places the judgment creditor in the position sometimes described as “heads I win, tails you lose.”

The inequities which would result and the dictates of conscience demand relief be afforded the Bank under the facts of this case and in light of § 8-9-6, Code 1975. When a joint tenant participates in activity to defraud his creditor he may not, upon being discovered, turn and rely on Bern-hard to shelter, from execution, levy and sale, the very same property he has made the subject of his fraud. The equities are all the more clear in this case where both joint tenants made the fraudulent conveyance.

Upon execution, levy and sale, C.H. Jones, Jr., and Peggy Joan Jones, under an estoppel theory cannot assert, as a defense, that title was restored jointly with right of survivorship with a contingent remainder interest in each. Therefore, execution, levy and sale cannot be limited to a one-half undivided life estate.

For the reasons stated, the judgment below is reversed and this action remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES and ADAMS, JJ., concur.

TORBERT, C.J., and ALMON, SHORES and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

Appealing facts often make bad law. To reach a desired outcome, the majority tampers with well-established rules of property law, citing no authority for its position. The rule it establishes will have reverberations far beyond the factual confines of this case, lending further confusion to an already confused area of law.

The majority relies on the estoppel theory for its new property rule that an attempted fraudulent conveyance of a life estate destroys the contingent remainder, resulting in a fee simple held concurrently by tenants in common.

In Ex parte Baker, 432 So.2d 1281, 1285 (Ala.1983), we stated the basic elements of estoppel:

“1) the actor, who usually must have knowledge of the facts, communicates something in a misleading way, either by words or conduct, or silence; 2) another relies upon that communication; and 3) the other party would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct. Mazer v. Jackson Insurance Agency, 340 So.2d 770 (Ala.1976).” See also General Elec. Credit Corp. v. Strickland Div., 437 So.2d 1240 (Ala.1983).

Even if we were to find that C.H. Jones, Jr. had misled Bank of Lexington and caused the bank to rely on the misrepresentation, it would still be impossible to find that the bank would suffer material harm if we restored the status quo. The estop-pel theory should not be applied here, because “estoppels ... are protective only, and are to be invoked as shields and not as offensive weapons, and ... their operation should be limited to saving harmless, or making whole, the person in whose favor they arise, and they should never be the instruments of gain or profit.” McCarty v. Gant, 248 Ala. 668, 670-71, 29 So.2d 136, 138 (1947). See also Merchants Nat. Bank of Mobile v. Steiner, 404 So.2d 14 (Ala.1981). The majority’s holding will improve the position of Bank of Lexington because it will be able to levy on a one-half undivided interest in fee simple rather than on a one-half undivided life estate upon which it had a right to levy because of the judgment on the promissory note.

According to 37 C.J.S. Fraudulent Conveyances § 307 (1943) at 1138, “a fraudulent conveyance is void as to creditors,” and “they may generally pursue legal process against the subject of the conveyance as though the title to the property was not embarrassed by the fraudulent conveyance.” (Emphasis added.)

Since there was no harm to Bank of Lexington, as required for the estoppel theory to apply, and since the title was not affected by the fraudulent conveyance, the standard property rules apply.

Because of the time period involved in this case, the overruled holding of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), controls. In Bernhard, this Court held that an attempt to create a joint tenancy with right of survivorship in fact created a tenancy in common for the joint lives of the tenants, with cross-contingent remainders in each of the tenants. The tenants each had life estates, with a remainder to the survivor in fee simple.

Because the remainder is contingent, rather than vested, it is not subject to levy, execution, and sale under Alabama law. Code 1975, § 6-9-40. Yates v. Guest, 416 So.2d 973 (Ala.1982); Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972); Shrout v. Seale, 287 Ala. 215, 250 So.2d 592 (1971).

I would employ the analysis developed in our recent case of Yates v. Guest, supra, and hold that the creditor in this case may not levy against an undivided one-half interest in fee simple. I would hold that the only interest subject to levy and sale under execution is a one-half undivided life estate interest. Id. at 976.

I would affirm.

ALMON, SHOBES and BEATTY, JJ„ concur.


author: ADAMS, Justice.

text:
    Marseille HOUSTON & Elaine Houston v. John T. McCLURE & Christine McClure.
    83-262.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    M.A. Marsal and Barre C. Dumas, Mobile, for appellants.
    John D. Richardson and David F. Daniel of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   ADAMS, Justice.

This is an appeal from the Mobile County Circuit Court’s judgment ordering appellants, Marseille and Elaine Houston, to convey property to appellees, John T. and Christine McClure. We affirm.

The facts of this case are as follows:

On July 9, 1981, the Houstons agreed to sell, and the McClures agreed to buy, a waterfront lot located at Dauphin Island, Alabama. The lot is more particularly described as Lot 12, Block 1, Aloe Bay Addition. Under the contract, the McClures owed the Houstons $10,000.00, due on December 15, 1981. On July 10, 1981, the McClures had tendered the initial $10,-000.00 payment by cashier’s check to the Houstons, who accepted it and signed a document acknowledging its receipt. The document appears in the record as follows:

“July 10, 1981
“Received from John T. and Christine McClure ten thousand dollars deposit on Lot 12 Block 1 Aloe Bay Addition balance due on December 15, 1981, oil rights have not been sold.”

For the next three days the McClures spent a great deal of time on the property; they cut the grass, cleared the grounds, and repaired and added on to an existing pier. The McClures also placed two diesel fuel tanks on the property.

On July 14, 1981, appellant Marseille Houston advised the McClures that he wanted to buy back the lot from them. Appellant offered to return their $10,-000.00, along with a check for $700.00 to cover any improvement expenses incurred by the McClures. The McClures refused to accept these checks; as a result of their refusal Houston ordered them to remove the fuel tanks, and subsequently posted “no trespassing” signs on the lot. On July 15, 1981, the McClures tendered the remaining $10,000.00 payment by letter from their attorney, which the Houstons refused.

In August 1981, the McClures filed a complaint seeking specific performance of the contract. A motion for summary judgment was filed by the McClures in January 1982. After considering the pleadings and affidavits of both sides, the trial court granted the motion for summary judgment and ordered the Houstons to convey the lot to the McClures. The Houstons appealed, and we reversed and remanded the case for trial. In this court’s opinion, authored by Justice Faulkner, we stated that there were issues of fact as to whether the purchaser’s alleged acts of possession of the property were referable exclusively to the contract, so as to satisfy the Statute of Frauds. Houston v. McClure, 425 So.2d 1114 (Ala.1983).

On September 6, 1983, the case was presented ore tenus to the trial court without a jury, and judgment thereafter was entered in favor of the McClures. The Houstons were ordered to convey the lot to the McClures by warranty deed within fourteen days of the entry of the judgment. It is from this judgment that the Houstons appeal.

The dispositive issue on appeal is whether the trial court’s judgment ordering appellants to convey the lot to appellees is correct.

Contracts for the sale of land are governed by § 8-9-2, Code 1975 (the Statute of Frauds), which states:

In the following eases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller....

When the case was before us on the first appeal, we held that both the cashier’s check and the receipt, regarding it failed to comply with the primary requirements of § 8-9-2, Code 1975, set forth above. Houston v. McClure, supra. This means that for the McClures to be able to recover, they must prove that the part performance exception to the Statute of Frauds is applicable.

To take a case out of the statute of frauds ... upon the ground of part performance, the acts of possession must be clear and definite, and referable exclusively to the contract, and by authority of the vendor. The existence of the contract and its terms should be established by competent proof to be clear, definite, and unequivocal, in all its terms. If its terms, or the necessary acts of part performance, are not sustained by satisfactory proof, specific performance will not be decreed.

Id., quoting Hagood v. Spinks, 219 Ala. 503, 122 So. 815, 816 (1929).

The evidence was presented to the trial court ore tenus, and, after listening to the testimony offered by both sides, the court made the following findings of fact:

The court finds, based on the evidence presented at trial, that the terms of the contract for sale of the subject lot were clear, definite and unequivocal; that the contract was supported by consideration; that all parties to the agreement were present during the meetings of July 8, 1981 and July 10, 1981 and that they each had a clear understanding of the terms of the agreement at the time it was made. The court finds no evidence of fraud, oppression, duress, overreaching or unjust enrichment in the making of the contract and finds that the defendants’ defense of inadequate consideration is without merit.
The court further finds that the plaintiffs immediately took possession of the property pursuant to the agreement. Based on the evidence presented at trial, the court finds that the plaintiffs’ acts of possession are clear and definite, referable exclusively to the contract and by authority of the vendors.

As we stated previously, this case was presented ore terms. The general rule in ore terms cases is that we will not disturb findings of fact made by the trial court if they are supported by the evidence or any reasonable inference therefrom, unless these findings are plainly and palpably erroneous. Eagerton v. Courtaulds North America, Inc., 421 So.2d 104 (Ala.1982); First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510 (Ala.1982). We are unable to find any error in the trial court’s findings of fact in this case.

For the above-stated reason, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Jonnie GRIGGS and Glenn Griggs v. COMBE, INC.
    83-530-CER.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Francis H. Hare, Jr. and R. Gordon Pate of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    Frank E. Lankford, Jr. of Huie, Fernam-bucq & Stewart, Birmingham, for appellee.
   ALMON, Justice.

Pursuant to Rule 18, A.R.A.P., the United States Court of Appeals for the Eleventh Circuit has certified the following question to this Court:

“Does Alabama law impose liability under any theory — negligence, strict product liability, breaeh of implied warranty of merchantability, or duty to warn — on the manufacturer of an over-the-counter drug for injuries resulting from an uncommon allergic reaction of a hypersensitive user when the manufacturer was not aware nor, with the exercise of reasonable diligence, could have been aware, that its product might cause such a reaction?”

The facts as certified show that Jonnie Griggs suffered a systemic illness known as Stevens-Johnson syndrome after using Yagisil, a nonprescription topical analgesic designed to relieve vaginal itch. Her doctor diagnosed her condition as having been caused by an allergic reaction to benzo-caine, one of the active ingredients in Vagi-sil. For purposes of the question to be resolved, Combe, Incorporated, the manufacturer of Vagisil, accepts as true the assertion that the benzocaine in Vagisil caused the Stevens-Johnson syndrome suffered by Griggs.

The certification continues:
“Evidence adduced by both sides indicates that benzocaine was not a known allergin and that, to the contrary, it has been an effective external analgesic throughout this century. Dr. Osment’s deposition indicates that although he attributes the systemic reactions suffered by Griggs to the application of benzo-caine, he knows of no literature associating benzocaine with Stevens-Johnson syndrome or any other type of systemic reaction. Combe offered affidavits of experts in dermatology and anesthesiology who, based on their experience and a review of pertinent available literature, stated that they had never read or heard of a causal link between the application of benzocaine to the skin and any type of systemic reaction. Combe also maintains that it has received no other complaints of systemic reactions arising from the use of Vagisil, nor has it received from any source any knowledge linking benzo-caine or any other active ingredient in Vagisil to Stevens-Johnson syndrome or any other systemic reaction, although it has had several complaints of local skin irritation from its customers. The evidence was uncontradicted and the district court found that Combe had no knowledge of any users of Vagisil or its related products ever having suffered from Stevens-Johnson syndrome or any other systemic reaction caused or alleged to be caused by the use of Vagisil or any active ingredient contained therein. The parties therefore agree, assuming the tube of Vagisil was manufactured properly, that Mrs. Griggs’ illness was due to her hypersensitive allergic reaction to benzocaine.” (Emphasis added.)

Discovery in the district court produced references to the Food and Drug Administration proposed rule on external analgesic over-the-counter drugs, 44 Fed.Reg. 69,768 (1979), which included the following remarks on the safety of benzocaine:

“... The Panel concludes that benzo-caine is safe and effective for use as an OTC external anagesic as specified in the dosage section discussed below....
“Benzocaine is an effective topical anesthetic that has enjoyed widespread and long-term usage since 1903_
“... Clinical use has confirmed that benzocaine is safe in the dosage range used as an OTC external analgesic.
“Benzocaine is one of the most widely used and safest topical anesthetics found in OTC preparations. The domestic production is approximately 1¼ million pounds (lbs) per year. In addition, there is a quantity of benzocaine imported which adds approximately 30 percent more to the domestically produced quantity.”

Id., at 69,793.

The answer to the certified question may be found from an analysis of the principles of law announced in Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976). In these cases, this Court announced the Alabama Extended Manufacturer’s Liability Doctrine. The doctrine was modelled after the product liability concepts of § 402A of the Restatement (Second) of Torts (1965), with one important difference: this Court rejected the “no-fault” concept of the Restatement.

The fault concept retained in AEMLD cases is the marketing of a “defective” product, “not reasonably safe when applied to its intended use,” Casrell, at 132; Atkins, at 139. The Court held that “defective” and “unreasonably dangerous” are synonymous; “a ‘defect’ is that which renders a product ‘unreasonably dangerous,’ i.e., not fit for its intended purpose.” Cas-rell, at 133.

The Court noted in Atkins that although the holding “modifies the Restatement’s theory of strict liability, the Comment, in large measure, retains its utility.” 335 So.2d at 143, n. 5. Pertinent among the Comments is the following excerpt from Comment j:

“Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger.”

This statement makes it clear that Combe had no duty to warn of a possible allergic reaction which it had no reason to suspect might occur, under the facts as presented to us. Moreover, since the facts certified to us show that Combe could not have known “by the application of reasonable, developed human skill and foresight” that the product presented a danger of injury of the kind suffered by Griggs, we cannot say that the product was “defective” or “unreasonably dangerous.” To do so would be to impose strict liability, a position expressly rejected in Casrell and Atkins and following decisions. See, e.g., Stone v. Smith, Kline & French Laboratories, 447 So.2d 1301 (Ala.1984), and Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So.2d 991 (Ala.1981). This result is consonant with the holding in Grau v. Procter & Gamble Co., 324 F.2d 309 (5th Cir.1963). See also, Annot., 53 A.L.R.3d 298 (1973).

The same analysis shows that Griggs cannot recover under negligence or duty-to-warn theories. If Combe could have no' foreknowledge of this type of injury, it was not negligent in marketing the product, nor did it have a duty to warn of such an unforeseeable risk.

The claim under implied warranty of merchantability presents a slightly different problem. Code 1975, § 7-2-3124, defines the implied warranty of merchantability which accompanies sales by merchants such as in the instant case. Among the definitions of “merchantable” is the provision that the goods “[a]re fit for the ordinary purposes for which such goods are used.” Id., § 7 — 2—314(2)(c).

Our review of the authorities on this Uniform Commercial Code warranty discloses that most jurisdictions hold that if a drug is fit for use by a normal person, the manufacturer will not be liable for an uncommon allergic reaction.

“Another area of difficulty is in dealing with drugs and cosmetics. Here, a particular individual may suffer an allergic reaction and the question will arise whether the particular product was fit for its ordinary purpose. Over a long period of distribution of the product, millions of people may have been able to use it without any reaction whatsoever. On the other hand, there may be a small group or percentage of persons as to whom an allergic reaction was caused by use of the particular product. The courts have had difficulty in answering this question but, as a usual basis for judgment, they would look to the percentages involved. If the injured person was one who could be described as ultra-sensitive, who suffered an allergic reaction which would be suffered by a very small or insignificant number of people, then the manufacturer would not be held liable. On the other hand, if there were a sufficient number as to whom this reaction had occurred then there would be liability imposed upon the manufacturer.”

3 Bender’s Uniform Commercial Code Service § 7.01[4] (1984) (footnotes omitted).

“It has been held or recognized in a majority of cases that if a product can be used by a ‘normal’ person without injury, there is no breach of an implied warranty of fitness or merchantability.”

3 Frumer and Friedman, Products Liability § 29.03[1] (1984).

Among the cases which these authorities cite, that which appears to go the farthest in imposing liability is Crotty v. Spartenberg’s-New Haven, Inc., 147 Conn. 460, 162 A.2d 513 (1960). Even this case would require that “an appreciable number of people” — rather than the presumably larger group of “normal” persons — would be affected.

For all that appears in the question before us, Griggs is the only person who has suffered this kind of injury in the long history of use of the drug in question. We agree with the above authorities that a product must adversely affect at least some significant number of persons before a question of “merchantability” arises. Therefore, Griggs cannot recover under this theory, either.

For the reasons stated above, we answer the certified question in the negative.

QUESTION ANSWERED.

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


author: SHORES, Justice.

text:
    Johnny ROBINSON v. William T. GRAVES, Jr.
    83-626.
    Supreme Court of Alabama.
    Sept. 21, 1984.

      Hubbard H. Harvey, Demopolis, and William W. Smith of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
    Frank E. Lankford, Jr., of Huie, Fernam-bucq & Stewart, Birmingham, for appellee.
   SHORES, Justice.

This is an appeal from a judgment dismissing a complaint against defendant Graves. We affirm.

Plaintiff Robinson filed suit against Load King Manufacturing Company, claiming damages for personal injuries alleged to have occurred on September 21, 1981, while Robinson was employed by Graves Company, Inc. The complaint alleged that while so employed, Robinson was compacting trash, and a screw that was holding the mashplate on a Load King paper baler worked out, causing the plate to fall on Robinson’s head, resulting in serious bodily injury.

The complaint asserted a claim under the Alabama Extended Manufacturer’s Liability Doctrine against Load King. In its caption, but not otherwise, it named as a defendant fictitious party “C”, “that person, firm, or corporation responsible for the state of repair or condition of the equipment or machinery that the plaintiff was using on the occasion complained of.” Nowhere in the complaint, however, is a cause of action stated against any defendant other than the manufacturer, and that claim was, as noted, an AEMLD claim. No claim was alleged in the complaint against any defendant, fictitious or otherwise, on a negligence theory.

Robinson and Load King settled the case on June 7, 1983, and the court entered an order of dismissal as follows: “By stipulation of the parties, this action is dismissed with prejudice. Each party to bear its own costs, /s/ J. Bryan, Presiding Judge.”

Thereafter, on August 24, 1983, the plaintiff filed a motion to reconsider, which the trial court granted. On September 12, 1983, the plaintiff filed an amended complaint, seeking to substitute William T. Graves, Jr., for fictitious party “C.”

Graves filed a motion to dismiss, alleging that the complaint as amended showed on its face that the statute of limitations barred the claim against Graves. The trial court granted the motion. This appeal followed. We affirm.

As noted, there was no claim based upon negligence stated in the complaint. No claim of any kind was asserted against fictitious party “C.” Thus, there was no fictitious party for which Graves could be substituted. Therefore, there was no relation back of the amendment, and the trial court properly held that the statute of limitations had run on the cause of action asserted against Graves. Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983). We have held, and we here reaffirm, that no greater particularity is required in alleging a claim against a fictitious party than is required against a named party. But, we also reaffirm the holding that, to toll the running of the statute, a cause of action must be alleged in the complaint against the fictitious party. Minton v. Whisenant, 402 So.2d 971 (Ala.1981).

The plaintiff also argues that, even though the statute of limitations has run, Graves should be estopped to raise it. He bases this argument on the assertion that Graves should have produced a letter from Load King to him warning that adjustments should be made on the paper baler to prevent the kind of injury that the plaintiff suffered. He argues that Graves is guilty of fraud in concealing that document. The plaintiff produced no evidence in support of this claim. He did not show that he took Graves’s deposition or that Graves had misrepresented any fact to him. He merely shows that, after the case was dismissed as to Load King and after the statute of limitations had run, barring the claim against Graves, he learned that such a document existed.

In the absence of some evidence showing a duty on the part of Graves to come forward with this evidence, there is no fraud shown and, therefore, no basis for the application of the estoppel principle. The applicable rule was stated in Ton-smeire v. Tonsmeire, 285 Ala. 454, 233 So.2d 465 (1970), where the Court said:

“In the absence of a confidential relationship, we know of no duty imposed by law obligating an alleged tort feasor to make known to one possibly injured by his acts the existence of a possible cause of action....
“As stated in Underhill, Receiver v. Mobile Fire Dept. Ins. Co., 67 Ala. 45:
“ ‘Ignorance of right in the party complainant, there being no more than passiveness, mere silence on the part of his adversary, cannot be engrafted as an exception on the statute of limitations, without a destruction of its wise policy and without an encouragement of negligence.’
“To establish fraud by silence, facts should be averred from which a duty to speak arises — it should appear that the parties were not dealing at arms length.”

285 Ala. at 458-459, 233 So.2d at 468.

There is no evidence in the record which would support an inference that a confidential relationship existed between the plaintiff and Graves which established a duty on the part of Graves to speak. We hold, therefore, that the trial court did not err in dismissing the. complaint against Graves, because the cause of action is barred by the statute of limitations.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Russell Earl STEVENS v. Louise BLAKE, R.N., Alabama Board of Nursing.
    Civ. 3953.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    Rehearing Denied Aug. 8, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1317.

      Chris S. Christ, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from an administrative order revoking appellant’s license to practice nursing in the State of Alabama.

Appellant, Russell Earl Stevens, a nurse employed by Jackson Hospital in Montgomery, Alabama, was charged by way of administrative complaint, of being guilty of unprofessional conduct of a character likely to deceive, defraud or injure the public in matters pertaining to health in violation of § 34-21-25, Code of Alabama 1975. The basis of this complaint occurred on or about the night of February 18, 1981. On that occasion Jacqueline Gould and Cheryl Pate, two nurses on duty at Jackson Hospital, became suspicious of appellant when vials of valium were discovered missing. Testimony at an administrative hearing indicated that nurses Gould and Pate noticed appellant was “nervous and jittery” after being in the bathroom. Checking trash cans in the bathroom, medicine room, utility room and nurses station, they found nothing except a “little dot-type of ban-daid.” They testified that upon returning from lunch appellant went directly into the bathroom and then into the utility room. When he left the bathroom he had something in his pocket. They saw him stoop and put the item into the trash can. The nurses then went into the utility room and found an empty syringe with blood in it, an empty bottle of ten milligram valium, the wrapper from the syringe, and the needle and alcohol wipe all wrapped inside a paper towel. Gould took these items to the nursing service office.

Gould testified that the trash can in the dirty utility room was not a proper disposal place for a syringe. Earlier that evening she had checked appellant’s patients’ drawers and did not find that any of his patients were taking valium. Gould and Pate stated they each had one patient on valium, but those were to be given intravenously. Gould stated that neither of those patients could have received valium from the syringe she found because there is never any blood in a syringe when a shot is given intravenously; rather, blood would only be in the syringe if someone had put on a tourniquet and injected directly into a vein.

Further testimony disclosed that on that same night Gould checked the pharmacy and found that appellant had checked out valium for a patient, though such was not charted as having been given to any of the patients. After appellant got the valium from the pharmacy, Gould again checked her patients’ drawers and found two vials of valium missing; whereas earlier only one had been missing. Gould stated that the problem with missing drugs had only begun since appellant started working at the hospital.

Upon a hearing of the complaint, the hearing officer determined that appellant had self-administered a narcotic drug while on duty and that such act constituted unprofessional conduct likely to cause injury to the public health. He recommended that appellant’s license be suspended for six months. Upon review of the hearing officer’s findings and recommendation, the Board of Nursing concurred in the factual findings, but revoked rather than suspended appellant’s license on November 10, 1981.

Appellant appealed the Board’s decision to the Montgomery County Circuit Court, and on July 11, 1983, the court affirmed the Board’s actions. Appellant appealed here in August, 1983. Due to difficulty of obtaining a transcript, the case was not submitted here until June 6, 1984. In the meantime, on December 2, 1982, appellant appeared before the Board, and his license was reinstated to him on a probationary status for one year. On December 7, 1983, appellant’s probation was cleared. On December 28, 1983, he was reissued a permanent license.

On appeal, three issues are raised; (1) whether appellant was entitled to a jury trial on appeal, (2) whether appellant’s hearing afforded him adequate process, and (3) whether the record contained sufficient evidence to support the decision made by the hearing officer and concurred in by the Board.

We find the case of Ex parte Smith, 435 So.2d 108 (Ala.Civ.App.1983), applicable and dispositive of the first issue. That case held that one appealing a disciplinary decision of the Nursing Board is not entitled to a jury trial.

On the second issue, appellant contends that due process requires that a hearing be conducted and a decision rendered by a full board and that a hearing before a hearing officer with only one Board member present fails to afford appellant due process. Appellant cites portions of Title 34, Chapter 21, Code of Alabama 1975, which state that “the Board shall” follow certain procedural functions in conducting a revocation hearing. We find this issue is not reviewable on appeal as appellant at no time objected to the use of a hearing officer. Matters not objected to at trial usually are not to be considered on appeal, even though constitutional questions are concerned. Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982).

Though Section 17(5) of the Board of Nursing Rules Procedure requires that a majority of the members of the Board must be in accord for its decision to be final, it does not necessitate that such Board member or a majority be physically present for each step of the procedure involved in a disciplinary action. Section 34-21-2(15), (16), Code of Alabama 1975, authorizes the Board to employ such persons as may be necessary to assist them in executing their statutory duties. A hearing officer falls within the purview of the statute as it was modeled after the Administrative Procedure Act, Title 41, Chapter 22, Code of Alabama 1975, which directly refers to the use of a hearing officer. See, § 41-22-12(f)(6), Code of Alabama 1975.

In Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), the Supreme Court discussed at length the function and responsibility involved in administrative proceedings. From that opinion the Court’s primary emphasis appears to ensure that a fair opportunity to hear, present and evaluate the evidence is provided. “The ‘hearing’ is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that a hearing has not been given.” Id. at 480, 56 S.Ct. at 911. The Court further explained, however, “[T]his necessary rule does not preclude practicable administrative procedure in obtaining the aid of [others].” Id. at 481, 56 S.Ct. at 912. The Court noted that assistance may be utilized in prosecuting inquiries, taking evidence, sifting and analyzing evidence and that the argument may be oral or written.

“The requirements are not technical. But ... the officer who makes the determinations must consider and appraise the evidence which justifies them.” Id. at 481-82, 56 S.Ct. at 912. In the present case these requisites were complied with. The Board members making the final decision had access to the evidence and argument presented before making a final decision. Merely because every member was not present when the hearing was conducted in no way negates that appellant received a fair hearing in compliance with the due process requirements of an administrative hearing.

That the Board changed the degree of punishment that the hearing officer recommended does not warrant reversal. A hearing officer’s opinion or recommendation is not absolute and binding on the Board. See, Johnston v. State Personnel Board of Alabama, 447 So.2d 752 (Ala.Civ.App.1983); 2 Am.Jur.2d Administrative Law §§ 438, 439 (1962).

We find appellant’s third contention that there is insufficient evidence to sustain the Board’s decision unfounded. As the recitation of facts indicates, sufficient evidence was presented to support the Board’s determination that appellant violated § 34-21-25, Code of Alabama 1975. Accordingly, we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    STATE of Alabama v. MARMON INDUSTRIES, INC.
    Civ. 4190.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    Rehearing Denied Aug. 1, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1281.

      Charles A. Graddick, Atty. Gen., B. Frank Loeb, Chief Counsel, and Melissa C. Bowen, Asst. Counsel, Dept, of Revenue, Asst. Attys. Gen., for appellant.
    Edward M. Selfe and Carleta A. Roberts of Bradley, Arant, Rose & White, Birmingham, for appellee.
   HOLMES, Judge.

This is a use tax assessment case. On December 3,1982, the Department of Revenue, State of Alabama, entered a final assessment of $114,564.22 against the taxpayer, Marmon Industries, Inc. The assessment covered the period from January 1, 1980, to June 30, 1981, and included use taxes and the interest thereon.

Marmon paid the disputed amount and perfected its appeal to the Montgomery County Circuit Court, pursuant to section 40-2-22, Code of Alabama (1975). Trial was had before the circuit court, with the evidence being presented largely by extensive stipulations of fact and exhibits. On October 30, 1983, a final judgment was entered in favor of the State of Alabama, upholding the assessment. However, upon the taxpayer’s motion for a new trial, an amended order was entered setting aside the assessment and directing that the amount paid be refunded. The State then filed a timely appeal to this court.

Marmon Industries, Inc. (Marmon) is a Delaware corporation with its principal corporate headquarters in Chicago, Illinois. Marmon conducts operations at two leased manufacturing facilities in the cities of Al-bertville and Cullman, Alabama. The facilities are owned by the Albertville and Cull-man Industrial Development Boards, which were organized, for purposes of this appeal, under the provisions of the Cater Act, see sections 11-54-80 through -123, Ala. Code (1975) & 1983 Cum.Supp. Each facility consists of land, buildings, equipment, and machinery.

Marmon’s vice-president and general counsel testified that the cost of financing capital expansions is so great that in order to expand, companies such as Marmon often work with local industrial development boards who are authorized to issue tax-free industrial revenue bonds. Marmon used such an approach with the Albertville and Cullman Industrial Development Boards in order to establish the two facilities here at issue.

On June 20, 1979, the Albertville Board adopted a Resolution of Intent authorizing the sale of $8,000,000 of bonds to finance the construction of a facility that would be leased to Marmon. On August 10, 1979, Marmon and the Albertville Board entered into a Bond Purchase Agreement with E.F. Hutton & Company pursuant to which E.F. Hutton agreed to purchase the Albertville Board’s industrial revenue bonds. On September 4, 1979, Marmon’s board of directors adopted resolutions authorizing its officers to enter into a lease agreement with the Albertville Board. On November 5, 1979, E.F. Hutton refused to purchase the Albertville bonds, causing Marmon to file suit against it in Jefferson County Circuit Court.

On January 3, 1980, the Albertville Board entered into a $2,891,000 construction contract for construction of the Albert-ville facility. The construction contract did not include equipment which the Albertville Board was to purchase from Marmon. The Albertville facility became operational, with all equipment in place, on or about January 1, 1981.

At various times during 1981, the Albert-ville Board issued purchase orders for equipment delivered to it by Marmon during 1980 and 1981. Marmon had previously purchased this equipment with its own funds from vendors and repaired and refurbished it. All equipment purchases by Marmon were made at various times after June 20, 1979, the date on which the Al-bertville Board adopted the resolution authorizing the sale of bonds, construction of the manufacturing facility, acquisition of the equipment from Marmon, and the lease of the facility to Marmon. The use tax here at issue was imposed upon Marmon after it purchased the equipment from out-of-state vendors.

On February 9, 1982, the Albertville Board issued $7,000,000 of bonds to finance construction and acquisition of the Albert-ville manufacturing facility and concurrently entered into a lease agreement with Mar-mon. The lease agreement provided in section 301 that Marmon was to be paid out of the construction fund for the equipment provided to the Board. On February 9, 1982, the Albertville Board paid Marmon for the equipment with funds obtained from the bond sales. It was stipulated that the bonds had not been sold before February 9, 1982, because of high interest rates.

Because the chronology of events dealing with the Cullman project closely resemble those of the Albertville project, they need not also be set out in detail. For the sake of the legal questions here at issue, it is sufficient to say that 1) although Marmon purchased the equipment for the Cullman project after adoption of the resolution authorizing the issuance of bonds, construction of facility, acquisition of equipment, and lease to Marmon, 2) Marmon purchased the equipment, delivered it to the Cullman Board and the Cullman facility became operational all before the Cullman board paid Marmon for the equipment from the bond proceeds.

At the outset, it should be made clear that there are two sets of transactions involved in this case. The first set of transactions consists of retail sales by out-of-state vendors to Marmon. The second set consists of those transactions in which Marmon resold the equipment to the Al-bertville and Cullman Boards. The Department of Revenue contends that the property purchased in the first set of transactions became subject to use tax when the property came to rest in Alabama for storage, use, or consumption, as provided for in section 40-23-61, Ala.Code (1975). The Department of Revenue has never sought to tax the second set of transactions, viewing them as sales to tax-exempt entities.

A general discussion of use taxes puts our resolution of this issue into a proper perspective. In the enactment of the sales and use tax statutes, it was the underlying purpose and intent of the legislature to impose a tax upon the “ultimate consumer” of the goods purchased, with the tax being based upon the amount of the gross receipts of retailer to consumer. The sales tax statutes apply to retail sales or purchases taking place within the state; the use tax statutes apply to goods purchased at retail outside of the state and brought into the state for use by the purchaser. The sales tax and use tax statutes are complementary and are to be construed in pari materia — an exemption from sales tax would be equally an exemption from use tax. State v. Thiokol Chemical Corp., 46 Ala.App. 558, 246 So.2d 447 (1970), affd, 286 Ala. 739, 246 So.2d 454 (1971).

Under section 40-23-61(a), all purchases of tangible personal property are deemed to be at retail, and are therefore' subject to the use tax, unless the purchase is a wholesale sale as defined in section 40-23-60(4), Ala.Code (1975). If the purchase is at wholesale, the use tax is, by definition, inapplicable. Lepeska Leasing Corp. v. State Department of Revenue, 395 So.2d 82 (Ala.Civ.App.), cert. denied, 395 So.2d 85 (Ala.1981).

Concentrating only upon the first set of transactions discussed above, the issue on this appeal is the applicability of the Department of Revenue’s interpretative regulation G27-916 which provides as follows:

“An industrial development board created by an incorporated municipality within the State of Alabama under the Cater Act, Section 11-54-80/101, Code of Alabama 1975 as amended, would be exempt from sales and/or use tax on any tangible personal property purchased by the board or its duly authorized agent provided the purchases are made in the name of the board, the board’s credit is obligated and said purchases are paid for by the board with funds belonging to the board. The term ‘funds belonging to the board’ shall normally be construed to mean those funds not exceeding the amount of the long term revenue bonds and any temporary borrowing evidenced by revenue bonds or notes maturing not later than 18 months from date of issue. “Under the Alabama Sales and Use Tax Laws, this exemption would not apply to a contractor where the contractor has a construction contract to furnish all materials and labor for use in the performance of the contract. The contractor is the consumer thereof of all materials used in the performance of the construction contract which becomes part of real property. A contractor may purchase items of machinery or equipment not becoming part of the realty, tax exempt, where such items are intended for resale to the board in the form of tangible personal property.”

(Emphasis added.) Marmon contends that its purchases from out-of-state vendors are tax-exempt “sales for resale” because of the emphasized portion of G27-916.

The State contends that Marmon cannot avail itself of the exemption outlined in G27-916 because Marmon is not a contractor. It argues that the Boards’ resolutions authorizing Marmon to make certain purchases and to act as Board agent do not rise to the level of contracts and that the lease agreement — the only written contract Marmon might rely upon — was entered into well after the equipment purchases were made.

In the case of State v. Montgomery Woodworks, Inc., 389 So.2d 510 (Ala.Civ.App.), cert. denied, 389 So.2d 513 (Ala.1980), this court discussed the term “contractor,” defining it as “(1) one who formally undertakes to do anything for another; (2) one who contracts to furnish a product or service to another; or (3) one who undertakes to supply labor and materials for specific improvements under a contract with an owner or principal.” Id. at 511-12. After having reviewed the evidence, we find that the trial court did not err in taking the Boards’ resolutions and Mar-mon’s resolutions together as sufficient evidence of a formal undertaking by Marmon to furnish the equipment and machinery here involved. The trial court did not err in discounting the fact that the only written evidence of a contract post-dated the purchases by Marmon.

The State’s second contention is that Marmon does not come within G27-916 because it did not originally intend to resell the equipment purchased. This argument is based upon the fact that the two facilities became fully operational and Marmon commenced its operations as lessee and used the purchased equipment before the Boards actually paid Marmon for the equipment. To support this argument the State cites Hamm v. Boeing Co., 283 Ala. 310, 216 So.2d 288 (1968), appeal dismissed, 394 U.S. 320, 89 S.Ct. 1194, 22 L.Ed.2d 308 (1969). In Boeing the court refused to allow an exemption based upon a “sale for resale” when the facts established that the Boeing Company used the items procured for its own purposes for at least a brief period of time before resale. Id. 216 So.2d at 297.

The Boeing case is distinguishable because the capacity of the use before resale in Boeing differed from that involved here. In Boeing the use of items purchased was incidental to research and development work undertaken by Boeing in its role as contractor. However, in the instant case, the evidence established that Marmon did not use the goods in the role of contractor/vendor of that equipment, but instead subsequently in the role of lessee of the plant.

Substance, not form, must govern the determination of tax matters. Rust Engineering Co. v. State, 286 Ala. 589, 243 So.2d 695 (1971). The facts here clearly establish that the use of the plant equipment by Marmon which predated payment for the equipment by the Boards was in its role as a lessee of the equipment and not as the original contractor/vendor and was precipitated only because the bond market did not favor an earlier issuance of the bonds. Under these circumstances, the trial court did not err in disregarding this use and in finding that Marmon did in fact intend to resell the equipment.

The decision below is due to be affirmed.

AFFIRMED.

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


text:
    Angus OLIVER v. HAYES INTERNATIONAL CORPORATION, a Corporation.
    Civ. 4152.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 15, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1369.

      Harold E. Hayden, Dothan, for appellant.
    William L. Lee, III, Peter A. Mclnish, and William G. Hause of Hardwick, Hause, Segrest & Northcutt, Dothan, for appellee.
   HOLMES, Judge.

The plaintiff (Hayes International Corporation) sued the defendant (Angus Oliver) for money paid by mistake. The defendant counterclaimed. The trial court, after both parties rested, granted plaintiff’s motion for a directed verdict and entered a judgment for $7,429.40.

The defendant, through able counsel, appeals, contending the trial court erred in excluding (by a motion in limine) evidence on his counterclaims and in granting plaintiff’s motion for directed verdict, thereby rejecting defendant’s estoppel, laches, mutuality, and waiver defenses.

We find no error requiring reversal and affirm.

The record reveals the following facts:

The defendant had worked for Hayes International since 1962, first cleaning parts and then later as shop manager. The defendant, who is sixty-seven years old, retired from Hayes in 1982 after some twenty years of service.

Hayes paid the defendant weekly, by a computer-issued check which was mailed to defendant’s home address. Oliver was paid by the hour, receiving time-and-one-half, double time, and triple time for overtime, Sunday, and holiday work, respectively.

In 1979, Oliver received checks totaling $11,103.11. In 1980, the checks totaled $12,572.95. In mid-1981, Oliver’s pay scale was raised from $6.71 per hour to $7.31 per hour; however, his total pay for that year almost doubled to $23,008.56. John M. Summerford, who as treasurer of Hayes was responsible for the issuance of pay checks, testified that $11,128.00 of this amount was overpayment made by computer error. Summerford testified that in addition to the amounts properly due the defendant by applying his hourly rates to hours worked each week, the computer added into the defendant’s check an extra $214.00 per week during all of 1981. Sum-merford testified that of the 3200 to 3500 Hayes employees, Oliver was the only person whose check was misdrawn and that the company had researched the computer error, but was unable to explain its origin.

By the time Oliver retired in early 1982, Hayes had discovered the error and had, apparently to no avail, asked Oliver to repay the $11,128.00. At that time, the company still owed Oliver two checks totaling $1,336.91, part of this amount representing vacation pay earned under the union contract but not yet paid. The company withheld the two checks as a credit against the repayment it contended it was due from Oliver. It also credited against the overpayment $2,361.69 in excess withholding taxes, which it apparently did not remit to the Internal Revenue Service, to reduce the amount allegedly due from Oliver to $7,429.40.

Oliver, who had dropped out of school before finishing the third grade and who could not read anything other than his name, testified at trial that both he and his wife realized something was wrong with his check from the first pay period of 1981 because the net pay exceeded the gross pay by five dollars. Oliver brought this to the attention of a Billy Myers who sent for Oliver to come to the office and who had a replacement check issued.

After Mr. Myers corrected the check for the first pay period of 1981, Oliver never brought another check to the company’s attention, as the following testimony established:

“Q [Defendant’s attorney] After you complained to Mr. Billy Myers on that first occasion about your check being wrong and you said he kind of laughed at you, did you make any further complaints about your check being correct or incorrect?
“A [Defendant] No sir. I didn’t know whether to go back there or not.
“Q Why is that, Angus?
“A Because, see, you are not allowed to talk to the main bossmen there.
“Q They have got a system you have to go through to get to talk to those people?
“A Yes.
“Q Well, didn’t you attempt to follow that system to find out if any of your checks were right or wrong?
“A Well, wasn’t no way to find out.”

Hayes International filed its complaint against Oliver on May 10, 1982, seeking to recover the $11,128.00. (On the date of trial, plaintiff reduced its demand to $7,429.40 to reflect the credits discussed above.) Oliver filed an answer raising the defenses of equitable estoppel, laches, no mutuality of mistake, and waiver. He also counterclaimed, alleging that plaintiff converted to its own use $2,361.69 originally withheld for payment to the Internal Revenue Service as taxes from the defendant's check and $643.20 which defendant was due as vacation pay, regular wages, and overtime.

On the date of trial, the trial court judge granted Hayes’s motion in limine which sought to exclude defendant's evidence on the conversion of the withholding taxes counterclaim and the counterclaim which alleged conversion of the $643.20 allegedly due the defendant for vacation pay and wages. Then, after both plaintiff and defendant were given the opportunity to present evidence, the trial judge granted plaintiffs motion for a directed verdict and dismissed defendant’s counterclaims.

Under Alabama law, more specifically the principle of unjust enrichment, one may recover money paid to another under mistake of fact, even if the payor could have discovered the proper facts but was not diligent in doing so. See, e.g., Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So.2d 251, 257 (Ala.1978). This the defendant does not question. However, as set out above, the defendant contends that the trial court erred in 1) rejecting defendant’s counterclaims and 2) not allowing the jury to consider the defenses of estoppel, laches, mutuality of mistake or waiver.

As discussed above, the trial court granted plaintiff’s motion in limine, thereby excluding all defendant’s evidence on the counterclaim alleging conversion of the $643.20 vacation pay and regular wages check due defendant.

Plaintiff’s arguments given on appeal to support exclusion of evidence on the conversion of the paycheck counterclaim are premised upon the technical definition of conversion and the recent Alabama Supreme Court case of McCain v. P.A. Partners Ltd., 445 So.2d 271 (Ala.1984). In that case the supreme court held that a not yet delivered paycheck could not support an action for conversion because 1) conversion requires the wrongful detention of property in which another has a general or special' property right or an immediate right of possession, and 2) a negotiable instrument, such as a paycheck, has no valid existence until it has been delivered. As the allegations of the instant case come squarely within the McCain ruling, they do not support a conversion counterclaim.

On plaintiff’s motion in limine the trial court also excluded evidence on defendant’s counterclaim that plaintiff converted to its own use amounts withheld from defendant’s check as withholding taxes. On appeal, plaintiff relies upon Chandler v. Perini Power Constructors, Inc., 520 F.Supp. 1152 (D.N.H.1981), to support exclusion of all evidence regarding money withheld by an employer from an employee’s paycheck for federal income taxes. The employee/plaintiff in Perini also sued his employer for conversion, seeking to recover amounts deducted from his wages, but his complaint was dismissed. In that action the trial court reasoned that 1) the Anti-Injunction Act, 26 U.S.C.A. § 7421(a) (West Supp.1984), prohibits taxpayers from bringing suits to restrain the collection of taxes and 2) that suits by employees against employers based upon taxes withheld are statutorily barred by 26 U.S.C.A. § 3403 (West 1979). Cf. United States Fidelity & Guaranty Co. v. U.S., 201 F.2d 118, 119 (10th Cir.1952) (amount withheld from employee’s wages is allowed to him as a credit on his tax liability even though the employer fails to remit such amount to the government). After having considered Perini, this court finds its reasoning applicable to the case at hand.

We would note that although motion in limine practice is available in Alabama, see, e.g., Acklin v. Bramm, 374 So.2d 1348 (Ala.1979), plaintiff apparently used the motion in a way not commonly contemplated, that is, like a 12(b)(6) or summary judgment motion to test the sufficiency of the defendant’s counterclaims. See generally Gamble, The Motion In Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981). Even though this would seem to be an unusual use of the pretrial procedure, we find no reversible error in the trial court’s action, as the evidence on defendant’s counterclaims was rendered irrelevant by McCain and Perini, and as one of the motion’s purposes is to foster judicial economy by shortening trial and simplifying issues where possible. Id. at 9.

The final issue is whether the trial court properly granted plaintiff’s motion for a directed verdict, thereby withdrawing from the jury's consideration defendant’s defenses of estoppel, laches, no mutuality of mistake, and waiver. After having compared the evidence presented with the elements of each of these defenses, we find that the defendant failed to produce a scintilla of evidence on at least one element of each defense.

Equitable estoppel has been discussed frequently in Alabama case law. See, e.g., Goforth v. Hallmark Pools, 393 So.2d 989 (Ala.1981); Mazer v. Jackson Insurance Agency, 340 So.2d 770 (Ala.1976); Duncan v. Johnson, 338 So.2d 1243 (Ala.1976); Ivey v. Dixon Investment Co., 283 Ala. 590, 219 So.2d 639 (1969); Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976). The following recital of the elements of estoppel is taken from our Witcher case, id. at 1387:

“(1) knowledge of the facts by the party to be estopped; (2) intention by the party to be estopped that its conduct be acted upon, or such party acts so that the party asserting estoppel has a right to believe that the conduct is so intended; (3) ignorance by the party asserting es-toppel of the true facts; and (4) injurious reliance by the party asserting estoppel on the conduct.”

Defendant’s testimony, as outlined above, did not establish that Hayes had knowledge of any paycheck irregularities other than that found in Oliver’s check for the first pay period of 1981. Second, there was no evidence that Hayes acted with the intention or reasonable expectation that Oliver accept the $214 surplus as correct. See Mazer v. Jackson Insurance Agency, 340 So.2d 770, 774 (Ala.1976). Finally, by his own admission, Oliver was not ignorant of the true facts or, alternatively, did not act with due diligence to ascertain the truth. See Ivey v. Dixon Investment Co., 283 Ala. 590, 594, 219 So.2d 639, 643 (1969). Accordingly, the estoppel defense was properly rejected by the trial court.

We likewise find that the laches defense is without merit. The Supreme Court of Alabama made the following pertinent observation in Cotney v. Eason, 269 Ala. 354, 113 So.2d 512 (1959):

“ ‘A person cannot be said to be guilty of laches until he has knowledge of the facts which entitles him to relief and thereafter manifests a want of diligence in asserting his rights,’ Hagood v. Knight, 257 Ala. 64, 57 So.2d 616, 618 [1952]; or unless he has knowledge of his rights or the claim of the opposing party or was possessed of such information as would put a person of ordinary prudence and diligence on inquiry which, if followed up, would reasonably lead to discovery of the situation. Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26 [1945].”

Id. 269 Ala. at 357-58, 113 So.2d at 515-16. As the evidence discussed above reveals, Hayes neither had knowledge of other than the first paycheck irregularity nor was possessed of such information as would put a person of ordinary prudence and diligence on inquiry, and there was no proof of want of diligence on Hayes’s behalf in prosecuting the claim once the error was discovered.

The defendant’s reliance upon the defense of no mutuality of mistake is misplaced, as a close reading of Williams v. Phillips Petroleum Co., 453 F.Supp. 967 (S.D.Ala.1978), affd, 614 F.2d 293 (5th Cir. 1980) (applying Alabama law) reveals. The plaintiff here is not seeking reformation of an instrument, but return of payments for which the defendant gave no consideration.

The trial court properly decided that defendant’s showing on the waiver defense was not sufficient to go to the jury. It has long been the law in Alabama that a payment made under mistake of fact can be recovered even though the payor had means of ascertaining the true facts and was not diligent in employing such means. Dudley v. Whatley, 244 Ala. 508, 14 So.2d 141 (1943); Merrill v. Brantley & Co., 133 Ala. 537, 31 So. 847 (1902); Rutherford v. Mclvor, 21 Ala. 750 (1852). There being no evidence of the intentional relinquishment of a known right by Hayes, see Brown-Marx Associates, Ltd. v. Emigrant Savings Bank, 703 F.2d 1361 (11th Cir. 1983) (applying Alabama law), the waiver defense was not available to defendant.

This court would be less than candid if it did not note that in view of the facts sympathy lies with the plaintiff. However, as indicated above, we find the law dictates that the trial court’s action was correct.

The ruling of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    Dennis O’DANIELS, a minor who sues By and Through his father and next friend, Edward O’DANIELS; and Edward O’Daniels v. Kerry McCants BATES.
    Civ. 4231.
    Court of Civil Appeals of Alabama.
    Aug. 22, 1984.

      Lawrence M. Wettermark, of Collins, Galloway & Smith, Mobile, for appellant.
    Timothy P. McMahon, of Reams, Voll-mer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a denial of a motion for new trial based on the inadequacy of damages assessed by the jury. For the reasons hereinafter stated, we reverse.

On November 6, 1981, Dennis O’Daniels, a minor, was driving a motorcycle which collided with an automobile driven by Kerry McCants Bates. A jury awarded Dennis O'Daniels $750 damages and awarded his father, Edward O’Daniels $750 damages. The O’Danielses contend they proved undisputed damages between $1,913.00 and $2,681.25 for their aggregate damages. The trial court denied the motion for new trial and the O’Danielses brought this appeal.

Jury verdicts are presumed to be correct. The power of the trial courts to set aside verdicts, while inherent in order to prevent irreparable injustice, is a power hesitantly exercised because of the solemnity of a jury verdict regarded in background of that most precious of rights, the right of trial by jury. Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891). No ground of a motion for new trial is more carefully scrutinized than that the verdict is against the great preponderance of the evidence. Chapman v. Canoles, 360 So.2d 319 (Ala.1978), § 12-13-ll(a)(6), Code of Alabama 1975.

To clarify, the questions presented on a motion for new trial on the grounds of inadequacy of damages are whether the verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice, and does the verdict fail to give substantial damages for substantial injuries. Roland v. Krazy Glue, Inc., 342 So.2d 383 (Ala.Civ.App. 1977). The presumption of the correctness of the jury’s verdict is strengthened by the denial of a motion for new trial by the trial judge who heard the evidence and observed the witnesses. McKinney v. Alabama Power Co., 414 So.2d 938 (Ala.1982). The reviewing court will reverse a jury award of damages on the ground of inadequacy only where, after consideration of all reasonable presumptions in favor of its correctness, a preponderance of the evidence is so decidedly against it as to clearly convince the court that it is the result of bias, and prejudice and is wrong and unjust. Herring v. Prestwood, 414 So.2d 52 (Ala.1982); Pennington v. Yarbrough, 406 So.2d 943 (Ala.Civ.App.1981). A jury verdict for damages cannot stand if it varies substantially from uncontradicted and un-impeached opinion of value. Williams v. Williamson Truck Lines, Inc., 353 So.2d 1172 (Ala.Civ.App.1978).

A case on point with the instant case is Stone v. Echols, 351 So.2d 902 (Ala.1977). The uncontroverted testimony in that case was that the car was worth $4,500.00 before the accident and that it “wasn’t worth a dime” after the accident. Stone's testimony was the only evidence offered as to the value of the car. The supreme court, citing Farmers & Ginners Cotton Oil Co. v. Reliance Insurance Co., 341 So.2d 147 (Ala.1976), held that the jury verdict of $4,000.00, in light of uncontradicted testimony that the car was worth $4,500.00, was unsupported by the evidence and must be set aside.

In this case, after searching the record, the uncontradicted testimony of Edward O’Daniels was that the motorcycle was worth $1,000.00 before the accident and a salvage value of “maybe $200.00” after the accident. In spite of this uncontradicted testimony of $800.00 property damage, the jury verdict for Mr. O’Daniels was only $750.00.

As to Dennis O’Daniels’ damages, the uncontradicted testimony was that he worked twenty to twenty-five hours per week at minimum wages. The accident temporarily totally disabled him, and- he was unable to work for a minimal estimation of eight weeks. The minimum amount of lost wages one could calculate from the facts is $536.00. The stipulated necessary medical expenses totaled $385.00. Not considering travel expenses for medical treatment, or pain and suffering resulting from a fractured elbow and finger requiring casts, the $750.00 verdict was $171.00 less than the uncontradicted testimony, the verdict is thus unsupported by the evidence.

After considering all reasonable presumptions in favor of the correctness of the verdict, we find that a preponderance of the evidence is so decidedly against it as to clearly convince this court that it is the result of bias and prejudice and is wrong and unjust. We reverse and remand for further proceedings.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Hilda Jean STRICKLIN v. Howard Edward STRICKLIN.
    Civ. 4238.
    Court of Civil Appeals of Alabama.
    Aug. 22, 1984.

      Bill Fite, Hamilton, for appellant.
    Jerry Guyton of Vinson & Guyton, Hamilton, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Hilda Jean Stricklin and Howard Edward Stricklin were married on January 31,1979, • having lived together since December 1977, about the time of Mr. Stricklin’s divorce from his first wife. They separated on April 21, 1983. No children were born of the marriage though both had children by previous marriages. Mrs. Stricklin filed for divorce on April 26, 1983 alleging violence on Mr. Stricklin’s part, death threats, incompatibility of temperament, and drunkenness. The divorce was granted on October 11, 1983. In its decree the trial court awarded the wife $14,000 as alimony in gross and $2,000 attorney’s fees. Wife appeals. She says that the trial court erred in not awarding her periodic alimony, a division of the marital property, some personal effects, and her future medical expenses. Wife also says that the trial court awarded her an inadequate amount of alimony in gross.

Husband has requested this court to strike certain statements from wife’s brief as being outside the record. We deny the motion but assure appellant that we will consider only evidence contained in the record on appeal.

In divorce cases the ore tenus rule is well established. Where the trial court hears the testimony, its judgment is presumed correct on appeal, and its decision will not be overturned unless it is unsupported by the evidence or is palpably wrong. Puckett v. Puckett, 437 So.2d 1298 (Ala.Civ.App.1983); Perkins v. Perkins, 419 So.2d 593 (Ala.Civ.App.1982).

The award of alimony and division of property are matters within the trial court’s discretion and will not be revised on appeal absent abuse of that discretion. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983). In deciding whether to award alimony, the trial court may take into account such factors as the earning ability of the parties, their future prospects, age, health, duration of the marriage, their standard of living, and their conduct during the marriage. Winfield v. Winfield, 415 So.2d 1111 (Ala.Civ.App.1982); Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980).

The evidence contained in the record reveals the following facts:

The marriage was of short duration, about four years; both parties are young and in good health; each party has children by a previous marriage.

The relationship of the parties was stormy even before the marriage. They fought prior to the marriage, with wife once pulling a gun on husband. Both parties admit they fought a lot after they were married; both admit they struck the other. Wife says she struck husband for every time she was struck, and that “it was pretty much equal on the fighting part.” She once pulled a gun and shot several times at husband’s feet.

Husband is an officer for the Security Trust and Savings Bank in Brilliant, Alabama. He owns 2,872 shares of stock in the bank with a book value of $54 a share, but he still owes $38,000 on the stock. In addition, there is evidence in the record that the bank’s financial condition may be questionable. Such evidence would support a finding that the stock’s worth was much less than its book value.

Husband has been involved in several other businesses, but this involvement came about prior to the marriage, and those he is presently involved in are not doing well financially. One of them is close to losing its equipment, for which husband is personally liable in the amount of $120,000. Husband’s other debts raise his total indebtedness to about $230,000. Furthermore, wife says she knows of no company husband is involved with that is currently making money.

Although wife has less than a high school education, she does have about six years’ work experience and is actively involved in the operation and management of Winfield Frozen Foods.

Considering the age of the parties, the duration of the marriage, the relative fault of both parties before and during the marriage, that no children were born of the union, and the relative financial condition of both parties, we are unable to say that the trial court was palpably wrong in not awarding the wife periodic alimony, in not requiring husband to pay wife’s future medical expenses, and in the amount of alimony in gross awarded to her.

Wife next says that the trial court erred in failing to award her any of the marital property.

There are no fixed standards for dividing the parties’ property in a divorce case. Each case must be decided on its own peculiar facts and circumstances. Sprinkle v. Sprinkle, 441 So.2d 974 (Ala.Civ.App.1983). The division of property does not have to be equal but it should be equitable. Wells v. Wells, 428 So.2d 88 (Ala.Civ.App.1983). In arriving at an equitable division of property, the trial court may consider the same factors as are considered in making the decision to award alimony. Winfield, supra. They are set out above and will not be repeated here.

The marital home and the sixty acres of land on which it sits were conveyed by both the parties during their marriage to husband’s sister and brother-in-law. Likewise a riverfront lot and house owned by husband were conveyed by the parties during their marriage to husband’s sister. Husband owns a small lot with a relatively unprofitable car wash on it, and he is a one-third owner of the Brilliant Bituminous Coal Corporation, which owns some property that cost about $60,000 and has an outstanding mortgage of $40,000.

As noted above, husband’s total indebtedness amounts to about $230,000.

Based on the above evidence we cannot say that the trial court abused its discretion in refusing to award any property to the wife. We find this conclusion to be supported by the fact that the parties are young and in good health, the four year marriage, and the relative fault of the parties contributing to the breakup of the marriage.

As to wife’s contention that the trial court erred in not specifically awarding her jewelry and other personal effects belonging to her, we consider it reasonable for the trial court to have concluded that these items belonged to and were owned by wife and did not require an order. In other words, if these items of property belonged to wife prior to the divorce they are still her property after the divorce absent a decree to the contrary.

Finding no reversible error, the judgment of the trial court is affirmed.

Wife’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

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


text:
    Betty HOLDER v. Addie C. WEATHERLY and Weatherly Funeral Home, Inc., a Corporation.
    Civ. 4281-X.
    Court of Civil Appeals of Alabama.
    Aug. 22, 1984.
    Robert H. Turner of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Sumter County awarded benefits to the deceased employee’s widow. The widow appeals, contending that the trial court erred in computing the average weekly wages of the employee.

The employer cross appeals, contending that the employer is entitled to credit against the workmen’s compensation benefits proceeds paid to the employee under the employer’s uninsured motorist coverage.

The record reveals that the employer was the owner of a funeral home and hired the employee on a part-time or “needed” basis to transport bodies for the funeral home. The employment relationship spanned over sixteen to seventeen years. The employee worked an irregular schedule, sometimes not working for several weeks. The employee was not paid an agreed upon salary but was compensated according to the work performed.

While in the line and scope of his employment, the employee was killed in an automobile accident with an uninsured motorist. At trial the workmen’s compensation benefits were computed by dividing the total payments made to the employee in the fifty-two week period prior to his death, which were $1,061, by the total amount of pay periods during that time. This computation arrived at the sum of $32.15 which was determined to be the average weekly wage.

The employee’s estate also recovered a sum of $14,000 in a tort action against a third party arising out of the automobile accident and a further sum of $10,000 from the employer’s uninsured motorist coverage.

In a workmen’s compensation case, the trial court’s finding is conclusive if there is any evidence that will support it. Wimbs v. El Biscuit Village, Inc., 418 So.2d 129 (Ala.Civ.App.1982); Weatherly v. Republic Steel Corp., 391 So.2d 662 (Ala.Civ.App.1980).

The determination of average weekly earnings is governed by § 25-5-57(b), Ala. Code (1975), wherein the computation methods are set forth. The applicable portion, in the instant case, is as follows:

“Where by reason of the shortness of the time during which the employee has been in the employment of his employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district.”

It is the general rule that the statutory formulas for computing the average weekly earnings are mandatory. Orkin Exterminating Co. v. Williams, 389 So.2d 935 (Ala.Civ.App.1980); Odell v. Myers, 52 Ala. App. 558, 295 So.2d 413 (1974). However, it has been held that the trial court may exercise its discretion when the computation is not practicable and will cause an unjust and unfair result. Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958); H.C. Price Co. v. Lee, 249 Ala. 230, 30 So.2d 579 (1947); Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974); Aluminum Workers International v. Champion, 45 Ala.App. 570, 233 So.2d 511 (1970).

In this ease, the employee did not work on a regular basis and had no regular working hours. He had no set salary but was paid in accordance with the job that he performed. There was evidence that two other employees of the employer had the same “casual” working arrangement and were paid in the same manner. However, no evidence was heard as to the salaries that were paid to these employees or any other person that was employed in the same type of job. Therefore, in this instance, the finding of the trial court that the average weekly earnings of the employee were his salary in the preceding fifty-two week period divided by the amount of pay periods was supported by the evidence and afforded a just and fair result to both parties.

The issue of the cross appeal by the employer is whether the uninsured motorist coverage award can be credited against the workmen’s compensation benefits.

The primary goal of workmen’s compensation legislation is to aid the injured person, but not to allow a double recovery. “Double recovery” has been defined as recovering from two sources an amount that exceeds the damages. It could also mean any recovery from two sources whether or not the amount recovered exceeds the losses. 2A A. Larson, The Law of Workmen’s Compensation § 71.23(h) (1983). The former definition is to this court the better view.

“There can be no conceivable policy objection to allowing an injured person to retain two recoveries that, when combined, still do not make him whole.” 2A A. Larson, The Law of Workmen’s Compensation § 71.23(h) (1983). We agree.

The supreme court addressed the issue of whether a workmen’s compensation recovery could be credited against the uninsured motorist coverage award because of the prohibition against double recovery. The court denied the “set off,” stating that, even in combining the employee’s recovery from all sources, he was still not indemnified for all his losses. State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971).

In order to obtain any “credit” under the facts of this case, there must clearly be some sort of double recovery, i.e., a recovery from two sources that exceeds damages.

In the present case, no proof was offered of the employee’s damages. For this reason, it cannot be asserted that the employee’s estate was awarded a double recovery. Therefore, the trial court did not err in disallowing a credit of the uninsured motorist coverage award against the workmen’s compensation benefits.

We should not necessarily be understood as concluding that, even under circumstances where payment of workmen’s compensation benefits coupled with recoveries from other sources would exceed the proven damages, a party would be entitled to a credit. That issue is not before us.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J„ concur.