author: PER CURIAM. TORBERT, Chief Justice

text:
    JIM WALTER HOMES, INC., a corporation, and Mid-State Homes, Inc., a corporation v. Gerald D. WALDROP, et al.
    81-1022.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied April 6, 1984.
    Samuel H. Franklin of Bradley, Arant, Rose & White, Birmingham, for appellants.
    J. William Thomason, Bessemer, for ap-pellees Gerald Waldrop and Lois Waldrop.
    Joyce E. May of Winston, Winston & May, Birmingham, for appellee Charles Patterson.
   PER CURIAM.

This is an appeal from a jury verdict in favor of Gerald D. and Lois J. Waldrop and against Jim Walter Homes, Inc., in a breach of contract action concerning construction of a home, and from a jury verdict in favor of Charles and Cathy Patterson and against Jim Walter Homes, Inc. and Mid-State Homes, Inc., on a cross-claim alleging fraudulent misrepresentation in the sale of a home. We affirm in part; reverse in part; and remand.

In 1976, appellees Gerald D. and Lois J. Waldrop (the Waldrops) entered into a contract with Jim Walter Homes, Inc. (Jim Walter) whereby Jim Walter agreed to construct a house on property owned by the Waldrops. In return, the Waldrops signed a promissory note and gave Jim Walter a mortgage on the property to secure payment. No payments were due under the note and mortgage until completion of construction by Jim Walter. The note and mortgage were immediately assigned to Mid-State Homes, Inc. (Mid-State) for financing purposes.

Jim Walter and Mid-State are both subsidiary corporations of Jim Walter Corporation, Tampa, Florida. Jim Walter is engaged in the business of building shell homes to various stages of completion. The standard written documents executed by a purchaser of a Jim Walter home in Birmingham, Alabama, include a written building contract; Exhibit “A” to the contract describing the options selected by the purchaser; Exhibit “B” defining the items included in the options described in Exhibit “A”; an agreement by the buyer to comply with the City of Birmingham or Jefferson County building codes and to obtain a certificate of occupancy; and a “receipt” whereby the purchaser acknowledges receiving copies of these documents. The evidence shows that the Waldrops signed and eventually received copies of all these documents, but they contend that they never read nor asked any questions about the documents or their terms or conditions.

Jim Walter acquired a building permit and began construction on the house in August 1976. When the house was at a suitable stage of completion, the Waldrops installed an air conditioner and turbines on the roof, painted the walls, placed flooring in the house, installed a screen door, graded the lot and paid an inspection fee to the gas company. They applied for a certificate of occupancy from the City of Huey-town, but were denied. The city inspector gave the Waldrops a list of things which needed to be finished before the City would issue the certificate. In a letter dated November 19, 1976, Mr. Waldrop informed Jim Walter that a number of items in the house would have to be completed before the city would issue a certificate of occupancy to them. Mr. Waldrop stated that he believed it was Jim Walter’s responsibility to complete these items and that he did not intend to make payments on the house until it was fit for occupancy. Jim Walter wrote back acknowledging the Waldrops’ letter and stating that it would look into the problem. Mr. Waldrop wrote a second letter, dated December 2, 1976, acknowledging receipt of payment cards from Jim Walter which indicated that the Waldrops were to begin making payments on the house on December 5, 1976. Mr. Waldrop renewed the assertions of his first letter and again asked that Jim Walter make the house fit for occupancy.

On March 7, 1977, Jim Walter sent a letter to the Waldrops stating that Jim Walter had investigated their complaint, but found that all the work stated in the contract as Jim Walter’s responsibility had been completed and any additional items not mentioned in the contract were the Waldrops’ responsibility. Paragraph 7 of the “Agreement for Buyers to Comply with City of Birmingham or Jefferson County, Alabama Building Code” reads:

“Buyers agree to completely finish all work not contracted for; obtain necessary permits, inspections, and obtain a Certificate of Occupancy before attempting to occupy the residence.”

This form was part of the Jim Walter standard documents and was executed by both Gerald and Lois Waldrop. The March 7 letter also informed the Waldrops that their initial payment date had been changed to April 5, 1977.

On March 16, 1977, Mr. Waldrop sent a third letter to Jim Walter stating that he still believed it was Jim Walter’s responsibility to complete the work on the house. In the letter he listed eight items that he believed Jim Walter was required to com-píete. Jim Walter did not complete the items as requested, and the Waldrops never made a payment on the house.

In May 1977, Mid-State wrote to the Wal-drops declaring a default on the mortgage and giving notice of intent to foreclose. On July 8, 1977, the foreclosure sale was held and Mid-State purchased the property. Mr. Waldrop acknowledged notice of the sale and notice of his statutory right to redeem the property within one year, but testified that he was financially unable to redeem. Jim Walter then completed the items necessary to make the house suitable for occupancy and resale by Jim Walter. On June 10, 1978, Jim Walter resold the house to one Charles Patterson who is a co-defendant in this suit.

On January 10, 1978, the Waldrops filed suit against Jim Walter and Mid-State, alleging that Jim Walter had breached the written contract for the construction of the house by failing to complete it in a timely manner; that the Waldrops were entitled to rescind the contract due to failure to advise the Waldrops of certain rights under the Federal Consumer Credit Protection Act; and that Mid-State, by virtue of the recordation of a foreclosure deed, had slandered the Waldrops’ title to real estate. Jim Walter and Mid-State in their respective answers denied all the allegations.

On May 1, 1980, the court granted the Waldrops’ motion to amend their original complaint so as to add Charles and Cathy Patterson, as co-defendants to the lawsuit and to add a fourth count which alleged that the foreclosure proceedings conducted by Mid-State were invalid. Counsel for Jim Walter and Mid-State then filed a motion to dismiss on behalf of the Pattersons as to the claims asserted against them in the fourth count. The trial court denied the motion.

Qn September 21, 1981, the Pattersons, having obtained independent counsel, filed a cross-claim against Jim Walter and Mid-State. In their cross-claim, the Pattersons contended that Jim Walter and Mid-State had negotiated in June 1978 (after the filing of the original complaint by the Wal-drops) to sell to them the property previously owned by the Waldrops, and that Jim Walter and Mid-State fraudulently concealed the existence of the pending litigation initiated by the Waldrops in order to induce them to purchase the property. The Pattersons claimed damages by virtue of the fact that they had been joined as defendants in the Waldrop litigation, and also sought punitive damages. Following denial of their motion to dismiss the Patter-sons’ cross-claim, Jim Walter and Mid-State answered the cross-claim, denying all of its allegations.

The Waldrops again were allowed to amend their complaint, on April 5, 1982, by striking the first two counts of the original complaint and adding a fifth count in which they claimed damages for “mental anguish” allegedly suffered due to breach of the building contract by Jim Walter. The Pattersons also were allowed to amend their cross-claim to seek damages for mental anguish.

The case then went to trial. At the conclusion of the evidence presented by the Waldrops, Jim Walter and Mid-South moved for a directed verdict as to each of the Waldrops’ claims.' The trial court granted the motion for directed verdict in favor of Jim Walter as to each claim except the breach of contract count and granted the motion for directed verdict in favor of Mid-State as to the Waldrops’ claims in their entirety. Jim Walter and Mid-State also moved for a directed verdict against ■the Patterson cross-claim at the close of the Pattersons’ evidence, but the trial court overruled the motion.

On April 9, 1982, the jury returned a verdict in favor of the Waldrops and against Jim Walter in the amount of $15,-000.00 and a verdict in favor of the Patter-sons and against Jim Walter and Mid-State in the amount of $37,500.00, and judgments were entered thereon. Jim Walter and Mid-State proceeded to file various post-trial motions, including a motion for new trial alleging that the jury verdict in favor of the Pattersons for $37,500.00 was excessive. On July 21, 1982, the trial court entered an order finding that the verdict in favor of the Pattersons was excessive to the extent of $12,500.00 and ordered that the motion for a new trial be granted unless the Pattersons filed a remittitur. On July 28, 1982, the Pattersons accepted a remittitur and accordingly judgment was entered for $25,000.00. All the other post-trial motions were denied.

On September 1, 1982, Jim Walter and Mid-State filed a notice of appeal to this Court. They appeal from the judgments entered upon the jury verdicts in favor of both the Waldrops and the Pattersons, from the orders of the trial court overruling the motions for directed verdict as to the Waldrops’ claim and the Pattersons’ cross-claim, and from the denial of their motions for post-trial relief.

Appellants’ first contention on appeal is that the trial court erred in allowing the Waldrops to testify, over appellants’ objections, to alleged oral statements or promises made by Jim Walter’s sales representative to the Waldrops prior to execution of the written contract. Mr. Waldrop was allowed to testify that Jim Walter’s representative told him that they would complete the house to a point where the Wal-drops could get a certificate of occupancy, except that the Waldrops would have to put in the air conditioning and heating system, paint the inside walls and stain the woodwork, and put in the floor covering. Appellants objected to this testimony on the grounds that the written agreements signed by the parties were the best evidence of the parties’ respective responsibilities and, therefore, that the oral testimony was barred by the parol evidence rule.

It is generally well settled that when parties reduce a contract to a writing which is intended to be a complete contract regarding the subject covered thereunder no extrinsic evidence of prior or contemporaneous oral or written agreements will be admissible to contradict, vary, supplement, or subtract from the terms of such writing. Shepherd Realty Co. v. Winn-Dixie of Montgomery, Inc., 418 So.2d 871 (Ala.1982); League v. Giffin, 347 So.2d 1332 (Ala.1977).

This Court, in Parker v. McGaha, 294 Ala. 702, 707, 321 So.2d 182, 185 (1975), noted, however, that “a strict, formal, and technical interpretation of the rule has long since been abandoned,” and the court recognized certain exceptions to the rule, as follows:

“Parol evidence is always admissible to show that an instrument is void or to show a lack or failure of consideration. Corbin v. Sistrunk, 19 Ala. 203, 205-06 (1851);
“Evidence of fraud is always admissible, even though there is a completely integrated writing. Nelson Realty Co. v. Darling Shop, 267 Ala. 301, 309, 101 So.2d 78, 84 (1957); and
“Where there is ambiguity in a contract, parol evidence is admissible to aid in the contract’s interpretation. McClendon v. Eubanks, 249 Ala. 170, 178, 30 So.2d 261, 268 (1947).”

It is apparent from the record that the Waldrops did not allege failure of consideration, fraud, or mistake in the execution of the contract. Furthermore, the question of ambiguity need not be reached, since the testimony in question tends to suggest additional terms to the contract rather than to explain any of the existing terms of the written agreement. The Waldrops offered the oral testimony to show that Jim Walter was responsible for completing the listed items required by the City of Hueytown for a certificate of occupancy, even though the items are not mentioned at any point in the written contract.

Regardless of the content of the statements made by Jim Walter’s salesman, it is a basic principle of contract law that these statements, as well as all prior negotiations, were merged into the written contract between the Waldrops and Jim Walter. See League v. Giffin, supra; Blake v. Coates, 292 Ala. 851, 294 So.2d 433 (1974). Moreover, the contract signed by the parties states:

“This written contract including exhibits ‘A’ & ‘B’ contains the price and all the terms and conditions agreed upon by the Buyer and Seller, and no statement, representation or promise not set forth in this written contact has been made to induce either party to sign this contract.”

Under the facts of this case, we find that the written agreements were the best evidence of the contract between the Wal-drops and Jim Walter and of their respective underlying responsibilities. Under the contract all prior oral negotiations and agreements were merged into and became part of the written contract. Thus, we opine that the trial court misapplied the parol evidence rule in allowing evidence of the oral statements made prior to the execution of the written contract from which the jury could infer the existence of contract terms in addition to those listed in the written contract. As to this issue, we reverse and remand.

Appellants’ next contention is that the trial court erred in submitting to the jury the Pattersons’ cross-claim for fraudulent suppression. The Pattersons alleged that Jim Walter, in order to induce them to buy, intentionally failed to disclose to them that a lawsuit was pending against the property offered for sale. The Pattersons brought their cross-claim under Code 1975, § 6-5-102, which reads:

“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”

Appellants contend that their motion for directed verdict on the cross-claim should have been granted, because, they say, the evidence failed to establish, as required by the statute, that (a) the existence of the litigation was a material fact; (b) appellants had a duty to apprise the Pattersons that a lawsuit was pending against Jim Walter and Mid-State concerning the property, since, at the time of the sale, a finding for the plaintiffs in the suit would not affect the Pattersons’ title to the property; and (c) the non-disclosure was for purposes of inducing the Pattersons to act to their detriment. We do not agree that the motion for directed verdict was improperly denied.

At the outset, appellants’ argument that the existence of the pending lawsuit was not a material fact is without merit. The materiality of a fact to a plaintiff in an action for fraudulent suppression is a question for the jury. Courtesy Ford Sales, Inc. v. Clark, 425 So.2d 1075 (Ala.1983). In the instant case, the jury found for the Pattersons on their fraudulent concealment claim; therefore, we can only infer that the jury found the concealment of the pending suit to be material.

Also, it is stated that the “materiality must either be known to the seller, or the facts must so constitute an element of the value of the contract, as to authorize the inference of knowledge of its materiality.” Marshall v. Crocker, 387 So.2d 176, 179 (Ala.1980) (quoting Jordan & Sons v. Pickett, 78 Ala. 331 (1884)). In any case, a lawsuit pending against property for sale would certainly be a factor so affecting value as to authorize an inference that the seller knew of materiality. Indeed, we think it a rare case where concealment of a pending lawsuit in a sale of property would not be material, regardless of the claim involved. There is always the possibility, as the present case envinees, that the title to the property may, in some way, be challenged following the purchase. This is precisely one type of situation that the statute was intended to address.

Appellants’ contention that they were under no duty to disclose the existence of the lawsuit is equally unsubstantiated. The law states that in order for silence to be an actionable fraud, facts must be averred which give rise to a duty to speak. Hall Motor Co. v. Furman, 285 Ala. 499, 284 So.2d 37 (1970); Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286 (1926). The legal duty to communicate depends upon the existence of a fiduciary relationship, or relation of trust or confidence between the parties, the value of a particular fact, the relative knowledge or inequality of condition of the parties, or other attendant circumstances. Marshall v. Crocker, 387 So.2d 176 (Ala.1980); Hall Motor Co. v. Furman, 283 Ala. 499, 234 So.2d 37 (1970). This court has quoted with approval the following summary of Alabama law as stated by a federal court:

“... [T]he types of relationships wherein a duty to disclose has been found indicate that the Alabama courts give little attention to the designation of the relationship, such as vendor-vendee, etc., but instead look to the relative bargaining positions of the parties. [Citations omitted.] Where one party has some particular knowledge or expertise not shared by the plaintiff a duty to disclose has been recognized.”

Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83, 87 (Ala.1980) (quoting First Virginia Bankshares v. Benson, 559 F.2d 1307 (5th Cir.1977)). Furthermore, “each case must be individually examined to determine whether a duty of disclosure exists; a rigid approach is impossible, and, indeed, the words of the statute itself counsel flexibility.” Jim Short Ford Sales, Inc. v. Washington, supra, at 87.

In the instant case there is evidence which indicates that (1) M.S. Baker, the branch manager of Jim Walter, and Arle Newman, a field representative of Mid-State, knew that the Waldrop litigation was pending when they offered the property for sale to the Pattersons, (2) Mr. Newman told Bob Godwin (the salesman who dealt with the Pattersons) that there were no problems and it was all right to sell the property to the Pattersons, despite his knowledge of the pending litigation, and (3) the Patter-sons were possibly in an inferior bargaining position with respect to Jim Walter and Mid-State concerning the transaction. We hold that the evidence is sufficient to create a jury question as to the existence of a duty to disclose on Jim Walter’s part.

Appellants also argue that suppression of the fact of the pending lawsuit, if found, was not for the purposes of inducing the Pattersons to buy the property. Again, the determination of intention in suppressing a material fact is for the jury, see Marshall v. Crocker, supra, at 179, and, again, we infer that the jury, by entering a verdict for the Pattersons, found that Jim Walter purposefully or intentionally suppressed the existence of the lawsuit in selling the property to the Pattersons.

Also, the fact that all representations by Jim Walter to the Pattersons were made by its agent Bob Godwin, who allegedly had no knowledge of the pending litigation, will not insulate Jim Walter from liability. This court has often held that a corporation cannot escape liability in fraud cases by showing that the agent through whom it acted was without knowledge of the true facts. Shelter Modular Corp. v. Cardinal Enterprises, 347 So.2d 1334 (Ala.1977); J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967). This, state has codified the rule at Code 1975, § 8-2-8, which reads:

“As against a principal, both principal and agent are deemed to have notice of whatever either has notice of and ought in good faith and the exercise of ordinary care and diligence to communicate to the other.”

The issue of whether the principal had knowledge of the true facts is for the jury to determine. Bolton Ford of Mobile, Inc. v. Little, 344 So.2d 1208 (Ala.1977); Shelter Modular Corp. v. Cardinal Enterprises, supra. Evidence was before the jury to support an inference that Jim Walter had knowledge of the lawsuit pending against the subject property. Since the evidence established Godwin’s agency capacity at the time of sale to Patterson, Jim Walter’s knowledge will be imputed to Godwin so as to cause Jim Walter to be liable for fraudulent concealment.

We have carefully read the record in this case. We are satisfied that there was enough evidence produced by the codefend-ants Patterson to make out a jury question on the issue of fraud. Based upon this finding and the reasons stated above, we hold that the trial judge did not err in denying appellants’ motion for directed verdict, and we affirm as to that issue.

Appellants’ final contention on appeal is that the trial court erred in submitting the Pattersons’ cross-claim to the jury to the extent that the claim sought punitive damages. Appellants argue that the trial court erroneously denied their motion for directed verdict as to the punitive damages claim since, they contend, there was not sufficient evidence in the record to support a finding of intentional or reckless fraud which in turn would support a punitive damages award. We do not agree.

In J. Truett Payne Company v. Jackson, the applicable rule was set out as follows:

“It is no longer subject to question that punitive damages are allowed in this state in fraud cases where the defendant has made false misrepresentations intended to defraud the plaintiff. We have further held that the awarding of punitive damages in such a case is discretionary with the jury....”

281 Ala. at 429, 203 So.2d at 446. See also Neil Huffman Volkswagen Corp. v. Ridolphi, 378 So.2d 700 (Ala.1979); Bolton Ford of Mobile, Inc. v. Little, 344 So.2d 1208 (Ala.1977).

There is evidence in the instant case from which the jury could have concluded that Jim Walter, knowing that litigation was pending against the property, suppressed this fact with intent to deceive the Pattersons so that they would purchase the property. The trial court, therefore, properly submitted the issue of punitive damages to the jury.

We have carefully reviewed the record and briefs in this case and are of the opinion that the trial court erred in its application of the parol evidence rule, but ruled correctly on all other issues presented on appeal. Thus, we affirm as to all rulings except the parol evidence ruling, which we reverse, and we remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I want to clarify why I agree with the finding that Jim Walter Homes fraudulently suppressed a material fact in dealing with the Pattersons. Under the facts in this case, Jim Walter Homes’ failure to disclose that the property to be conveyed was the subject of pending litigation was a material fact.

A material fact is one that is likely to induce action on the part of the complaining party. Cooper v. Rowe, 208 Ala. 494, 94 So. 725 (1922); Cook v. Brown, 393 So.2d 1016 (Ala.Civ.App.1981). Ordinarily, the existence of an action by a buyer seeking rescission and damages for breach of contract in a sales transaction would not be a fact that the seller must disclose to a subsequent buyer of the property. In the instant case, however, the Waldrops also alleged that the recordation of the foreclosure deed slandered the Waldrops’ title to the property. The existence of a cloud on the title of the property in question is a fact that is likely to induce action by the Pattersons and is therefore a material fact.

      .In the third letter to Jim Walter, Mr. Waldrop listed the following eight items that had to be completed before the certificate of occupancy would be issued:
      1. Kitchen cabinets installed as per blueprint.
      2. Shelves and rods in closets installed.
      3. Eaves boxed in.
      4. Termite treatment for house.
      5. Plastic ground cover installed under house.
      6. Walkway and driveway installed.
      7. Formica installed around the bathtub.
      8. The bathroom window waterproofed.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    MEAD CORPORATION and Merle Brown v. R.D. HICKS.
    82-159.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied April 6, 1984.

      Harold F. Herring, Huntsville, for appellants.
    H.R. Campbell and Robert L. Hodges, Scottsboro, for appellee.
   FAULKNER, Justice.

The defendants, Merle Brown and the Mead Corporation, appealed from a judgment based on a jury verdict for $110,-000.00, in favor of the plaintiff, R.D. Hicks, in a defamation action.

Hicks was a businessman in the Stevenson community in Jackson County, Alabama. He held garbage collection contracts with Jackson County and with several towns, including Stevenson. He was also responsible for collecting waste at a nuclear power plant. Hicks operated a landfill business and a grocery store, and farmed and raised cattle. Prior to the time when the allegedly slanderous remarks were made, Hicks hauled sawdust and logs for Mead, performed clean up work at Mead’s facility in Stevenson, and sometimes furnished labor to Mead from his labor pool.

Hicks was widely perceived as having a wide circle of influential friends. He had a “close relationship” with the mayor and admitted having loaned money to the chief of police. The proceedings during the trial of the instant case were reported on the front page of the local newspaper. Hicks acknowledged that he was sometimes known around Stevenson as “Boss Hogg.” Several witnesses testified that Hicks had a reputation around Stevenson as a bootlegger.

There was a conflict in the testimony as to who originated the accusations which Hicks complained about- The assistant police chief, Richard Brown, testified that on January 25, 1980, Merle Brown came to the police station to obtain a pistol permit. At that time, Merle Brown allegedly told Richard Brown that Hicks and his associates were running a “local mafia,” that Hicks had lumber belonging to Mead, that Hicks was using Mead’s logs and Mead’s employees to operate Hicks’s sawmill and that Hicks was a “little A1 Capone.” Richard Brown went on to testify that Merle told him that he knew the local police could not “finger” Hicks because “he owned the mayor.” As a result of Merle Brown’s alleged accusations, the Stevenson police conducted an investigation of Hicks which failed to discover any evidence of wrongdoing by Hicks.

Merle Brown, on the other hand, testified that Richard Brown was the source of the allegations. He claimed that Richard Brown told him that Hicks was hauling wood from Mead to Hicks’s sawmill and that Richard Brown had cautioned him not to repeat any of the accusations because “Boss Hogg will have me killed ... he is the mafia in this county.”

Regardless of where the accusations originated, Merle Brown repeated them to his supervisors and to other employees at Mead. Although a subsequent inventory revealed a shortage of about one million board feet of lumber at the Mead facility, Mead’s auditors did not know whether the shortage resulted from theft, improper bookkeeping procedures, or a combination of problems.

According to Hicks, by the first part of April, talk that Hicks was in the “mafia” was “all over the streets.” Hicks denied any wrongdoing and claimed that he was embarrassed and that his reputation was damaged by the “talk” originated by defendant Merle Brown. Hicks produced witnesses who testified that Hicks had had a good reputation prior to the defamatory remarks but that his reputation deteriorated afterward.

The defendants raised numerous issues on appeal. Their major contentions involved the following:

(1) whether Hicks was a public or private figure;

(2) whether the trial court charged the jury properly; and

(3) the defendants’ claim that the communications complained of were privileged.

Because of the constitutional limitations on defamation actions outlined by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny, a determination of whether the plaintiff is a public official, a public figure, or a private figure is necessary to determine the plaintiff’s standard of proof. If the plaintiff is a public figure or public official, he must prove that the defendant had actual knowledge of the falsity of the defamatory statement or that he made the statement with reckless disregard for its truth or falsity. New York Times Co. v. Sullivan, supra, at 279-280, 84 S.Ct. at 725. A determination of the plaintiff’s status is a question of law which must be decided by the trial court prior to charging the jury, so that the court can instruct the jury as to the applicable standard of proof. Mobile Press Register, Inc. v. Faulkner, 372 So.2d 1282, 1285 (Ala.1979).

On appeal the defendants argue that the trial court failed to make a determination as to the plaintiff's status. It is apparent, however, from the trial court’s charge to the jury that it considered Hicks to be a private figure.

Public figures are those who gain notoriety due to their achievements or who seek the public’s attention with vigor and success. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). There are two classes of public figures. Some individuals achieve such pervasive fame or notoriety that they become public figures for all purposes. Most public figures, however, are those who are involved in particular public controversies and become public figures for a limited range of issues. Gertz, supra, at 351, 94 S.Ct. at 3012.

While Hicks may have been in the public eye in regard to certain of his business ventures, such as litigation regarding solid waste disposal at the nuclear power plant, he did not achieve such pervasive fame or notoriety that he could be considered a public figure for all purposes. The allegations of wrongdoing were not made in connection with any matter of public controversy and were not made in connection with Hicks’s involvement in local affairs which invited public comment.

“We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.”

Gertz, supra, at 352, 94 S.Ct. at 3013.

Having determined that Hicks was a private figure as to the allegedly defamatory statements in question, we turn to the question regarding the jury charge. At the outset we wish to acknowledge the difficulty faced by the trial court in formulating appropriate jury charges in light of the complexities engendered by the constitutional requirements established in New York Times Co. v. Sullivan, supra, and Gertz v. Robert Welch, Inc., supra. In order to ferret out the issues surrounding the jury instructions, it will be necessary to determine the proper standard of proof in a defamation action brought by a private figure.

At common law, a defamatory communication was actionable, subject only to the defenses of truth or privilege. The plaintiff was entitled to recover whether the defendant was reckless in making the defamatory statement or whether he innocently defamed the plaintiff. In New York Times Co. v. Sullivan, supra, the court ruled that the defense of truth, standing alone, was insufficient to protect freedom of speech and of the press. The court based its conclusion on the premise that the first amendment’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open," makes erroneous statements sometimes inevitable. “False speech” on public issues was, therefore, brought within the mantle of constitutional protection. New York Times Co. v. Sullivan, supra, at 270-272, 84 S.Ct. at 720-21.

Because of the constitutional considerations involved, a public figure or public official must prove that the defamatory statement was made with knowledge of its falsity or with reckless disregard as to its truth or falsity. The same constitutional considerations do not, however, attend statements about private individuals. The Supreme Court has concluded, therefore, that “[sjtates should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood.” Gertz, supra, at 346, 94 S.Ct. at 3010. Although the constitutional limitations are not as great with regard to statements about private individuals, Gertz clearly did away with the common law concept of strict liability for defamatory falsehoods. It held that “[sjtates may define for themselves the appropriate standard of liability for a publisher or broadcaster of [a] defamatory falsehood ... so long as they do not impose liability without fault.” Gertz, supra, at 347, 94 S.Ct. at 3010.

Although Gertz applies on its face only to suits against newspapers and broadcasters, this court has ruled that the decision is applicable to actions against individuals as well. Bryan v. Brown, 339 So.2d 577, 583-584 (Ala.1976). The reasons for the abolition of strict liability for innocent defamation by the press would seem, a fortiori, to apply to actions against individuals. A professional publisher whose daily operations pose a likelihood of disseminating falsehoods throughout the community should not be held to a lesser standard than an individual.

It is, then, left up to the individual states to adopt a standard of conduct with regard to allegedly defamatory statements by private figures which incorporates the “fault” concept contained in Gertz. The majority of the decisions we found have adopted the negligence standard employed by the Restatement (Second) of Torts § 580 B (1976). See Cahill v. Hawaiian Paradise Park Corp., 56 Haw. 522, 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (1976); Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975); Jacron Sales Co. v. Sindorf 276 Md. 580, 350 A.2d 688 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975); Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494 (1974), cert. denied, 423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975); Martin v. Griffin Television, Inc., 549 P.2d 85 (Okl.1976); Taskett v. King Broadcasting Co., 86 Wash.2d 439, 546 P.2d 81 (1976); Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216 (1977).

Section 580 B states:

“One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he
“(a) knows that the statement is false and that it defames the other,
“(b) acts in reckless disregard of these matters, or
“(c) acts negligently in failing to ascertain them.”

Thus, defendants who made false defamatory statements about private figures may be held liable if their conduct created an unreasonable risk of harm to the plaintiff. In determining whether the defendant acted as a reasonable, prudent person under the circumstances in publishing the defamatory communication the finder of fact may take into account the thoroughness of the check that a reasonable person would make before publishing the statement, the nature of the interests that the defendant was seeking to promote in publishing the statement, and the extent of damage to which the statement exposed the plaintiff’s reputation. See the comments following Restatement (Second) of. Torts § 580 B.

In addition to the standard of care with respect to “fault” as mandated by Gertz, the jury instruction in the case sub judice should have taken into account the defendants’ claim of privilege. The question of whether an utterance was privileged is a matter of law to be determined by the court. Fulton v. Advertiser Co., 388 So.2d 533, 537 (Ala.1980). The test for determining whether a privilege exists is as follows:

“ ‘Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith be-Heves he is acting in pursuance thereof, although in fact he is mistaken.’ ”

Fulton, supra at 537.

The defendants argued that their communications were absolutely privileged. We disagree. The only absolutely privileged communications under Alabama law are those made during legislative or judicial proceedings, or contained in legislative acts made under authority of law. Browning v. Birmingham News, 348 So.2d 455, 458 (Ala.1977).

In the alternative, defendants argued that their statements were protected by a qualified privilege. Statements subject to a qualified privilege are not actionable unless the plaintiff can prove malice on the part of the defendant. If the plaintiff is a public figure or public official he cannot recover absent a showing by clear and convincing evidence that the defendant either knew the publication was false or acted with reckless disregard as to the truth or falsity of the statement. (Sullivan “actual malice”). If the plaintiff is a private figure the plaintiff must show “common law malice” (evidence of ill will, hostility, threats, former libels, etc.). Fulton v. Advertiser Co., supra, at 538.

To recapitulate, the standard of proof with regard to an allegedly defamatory statement as to private figures is as follows: The plaintiff must prove by a preponderance of the evidence that the defendant was negligent in making the statement. The negligence requirement is the minimal threshold of “fault” allowed under the rule established in Gertz v. Robert Welch, Inc. If, however, the communications were protected by a qualified privilege, the plaintiffs burden of proof is higher. He must prove “common law malice” in its traditional sense. See Fulton v. Advertiser Co., supra, at 538.

The trial court in the ease at bar improperly failed to make a determination, as a matter of law, as to whether the communications in question were protected by a qualified privilege. The defendants objected to the submission of the question of the existence of privilege to the jury:

“Your Honor, I would like to say that we appreciate the difficulty of any charge in this case. In this particular charge that you made, Your honor, we would except to the Court’s failure to determine as a matter of law that occasions complained about were privileged. ...”

The communications complained of were made by Merle Brown to the police and to other Mead employees. An employee enjoys a qualified privilege in reporting suspected thefts of his employer’s property. Dent v. Smith, 414 So.2d 77 (Ala.1982). Therefore, the qualified privilege existed as to the accusations of theft made by Merle Brown. Since the communications were privileged, the negligence standard of fault otherwise applicable in actions brought by private figures must give way to the more stringent standard necessary to overcome the privilege. The trial court should have charged the jury that the communications were protected by a qualified privilege and that the plaintiff could prevail only if the jury was reasonably satisfied from the evidence that the statements were the product of actual or express malice in the ordinary sense of the term (i.e. ill will, hostility, etc.).

In light of the trial court’s error in submitting the issues of the existence of a privilege to the jury, we reverse and remand the cause for further proceedings.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES, ALMON and ADAMS, JJ., concur.

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

      . An apparent reference to a character on a currently running television show, who is a political "boss” of his small town.

      . See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Comment, "Libel Law: A Confused and Meandering State of Affairs,” 6 Cum.L.Rev. 667 (1976); Eaton, "The American Law of Defamation Through Gertz v. Robert Welch, Inc., And Beyond: An Analytical Primer,” 61 Va.L.Rev. 1349 (1975).


author: EMBRY, Justice.

text:
    COTTON STATES MUTUAL INSURANCE COMPANY v. Janice THIGPEN.
    82-474.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    As Corrected on Denial of Rehearing April 6, 1984.
    Benjamin R. Rice of Williams, Spurrier, Rice, Hendérson & Grace, Huntsville, for appellant.
    Winston V. Legge, Jr. of Patton, La-tham, Legge & Cole, Athens, for appellee.
   EMBRY, Justice.

This is an appeal from a judgment entered on a jury verdict awarding $15,000 to Janice Thigpen on claims for fraud and deceit. Cotton States Mutual Insurance Company contends the trial court erred in denying its respective motions for summary judgment, directed verdict and judgment notwithstanding the verdict. We cannot agree.

The single question posed by this appeal is whether Thigpen proffered any evidence, when viewed in its most favorable light, which supports her case. Ex parte Bennett, 426 So.2d 832 (Ala.1982); Casey v. Jones, 410 So.2d 5 (Ala.1981).

Section 6-5-101, Code of 1975, articulates the definition of legal fraud in Alabama:

“Misrepresentations of a material fact made willfully to deceive, -or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”

Regardless whether ■ the representations were made willfully, recklessly or mistakenly, actionable fraud exists upon showing (1) a false representation, (2) concerning a material existing fact, (3) upon which the plaintiff relies, (4) and is damaged as a proximate result. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912, 914 (Ala.1981); International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala. 1977).

Section 6-5-103, Code of 1975, provides for a right of action in deceit:

“Willful misrepresentation of a material fact made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.”

The evidence of record is replete with testimony which, if believed by the jury, supports a claim for actionable fraud or deceit. For example, Thigpen testified that Cotton States’ agent, Steve Klepper, told her she could have her automobile repaired at Mac Campbell’s Body Shop and Cotton States would pay the repair bill. She further testified that the representation induced her to both authorize repairs as well as to forgo filing a claim for repairs with her own insurance carrier. Klepper conceded on cross-examination that he had no intention of paying the repair bill until Thigpen signed a property damage release. However, Klepper never communicated this intention to Thigpen.

Thigpen further testified that while her car was being repaired, Klepper informed her “I’m not giving you nothing until you settle with me.” In fact, Klepper never paid the repair bill. Consequently, Thigpen claimed she was forced to rent a car for this period in order to provide for her transportation needs.

After viewing the evidence of record in a light most favorable to Thigpen, we hold the evidence presented by Thigpen was sufficient to withstand motions for summary judgment, directed verdict and judgment notwithstanding the verdict. See e.g. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, supra. Accordingly, the trial court properly denied each of Cotton States’ respective motions. Ex parte Bennett, 426 So.2d at 834. The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

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


text:
    Clayton BERRY v. PIKE COUNTY BOARD OF EDUCATION, et al.
    82-711.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Rehearing Denied April 6, 1984.

      Theron Stokes, Montgomery, for appellant.
    Richard F. Calhoun, Troy, and Donald B. Sweeney, Jr., Birmingham, for appellees.
   FAULKNER, Justice.

This is a teacher tenure case in which the trial court dismissed an action brought by Clayton Berry against the Pike County Board of Education and its members.

Berry’s complaint alleged that he was hired for the 1978-79 school year as an instructor of math and language arts for the Pike County school system. He taught during the 1979-80 term and for six weeks of the following school year, at which time he was assigned to the position of coordinator/ counselor. He continued in that capacity until May 21, 1982, when he was informed, by letter from the board, that his contract would not be renewed for the coming year.

Berry claimed that his contract was terminated because of his unsuccessful bid to unseat defendant John Key as superintendent of the school system’s board of education. He prayed for a declaratory judgment to determine whether he had attained continuing service status by operation of the Alabama Teacher Tenure Law and for an order reinstating him with back pay.

The trial court dismissed Berry’s action on the defendants’ motion. It ruled that the remedy of a tenured teacher who is terminated by an employing board is provided by the Teacher Tenure Act. The court noted that the action was not a mandamus action to review a decision of the Alabama State Tenure Commission. It ruled that the action was not permissible, absent an allegation that Berry had requested a hearing before the Tenure Commission before filing suit.

Clearly, if Berry’s allegations that he was tenured and that he was dismissed for political reasons were true, the board acted contrary to law in attempting to terminate his employment. A tenured teacher’s employment cannot be terminated for political or personal reasons. Section 16-24-8, Code of Alabama 1975. The primary issue here is whether Berry can enforce his rights by filing an action in circuit court without first appealing to the State Tenure Commission. See § 16-24-37, Code of Alabama 1975.

Berry relied primarily on Boyd v. Alabama State Tenure Commission, 406 So.2d 438 (Ala.Civ.App.1981). In that case, the employing board and the Tenure Commission ruled that Boyd was not tenured. The circuit court affirmed. On appeal, the Court of Civil Appeals ruled that Boyd was not entitled to an administrative hearing on the question of whether he was tenured, because the Tenure Commission is only authorized to hear appeals by tenured teachers. In the instant case, Berry' followed the Court of Civil Appeals’ suggestion to Mr. Boyd to litigate the existence, vel non, of his tenure by filing an original action in circuit court. Boyd, supra at 439.

The board of education interpreted Boyd differently than did the plaintiff. It argued that, Boyd being a non-tenured teacher, his action in circuit court would be proper since he had no administrative remedy. Since Berry is claiming to be tenured, the board continued, his failure to exhaust the administrative remedies available to tenured teachers was fatal to his action.

We disagree with the board and find Boyd to be controlling. The defendants’ argument that Boyd applies only to nontenured teachers was based on the faulty premise that Mr. Boyd was not tenured. In fact, the ease never reached the question of whether Boyd was tenured. Since the tenure commission lacked jurisdiction, its decision that Boyd was not tenured was void and without effect. A court without jurisdiction cannot render a valid decision. Nigg v. Smith, 415 So.2d 1082 (Ala.1982).

The exhaustion of administrative remedies doctrine requires that where an administrative remedy is provided, the administrative remedy must be exhausted before a court will act. 2 Am.Jur.2d Administrative Law § 595 at p. 426 (1962). Without commenting on the applicability of the doctrine in teacher tenure eases in general, we note that the applicability of the doctrine is premised on the existence of an administrative remedy. No administrative remedy exists for a teacher who claims to be tenured, but who is treated by the employing board as not tenured. The Tenure Commission lacks jurisdiction over non-tenured teachers. Alabama State Tenure Commission v. Ray, 342 So.2d 21 (Ala.Civ. App.1977). Since the Commission lacks jurisdiction to render a decision that a teacher is not tenured, it lacks the authority to determine the issue of the existence, vel non, of tenure.

Much of the confusion with regard to tenure has been engendered by a provision allowing tenured instructors to become tenured as supervisors or principals after promotion to a supervisory position and the requisite period of service. Section 16-24-2(b), Code of Alabama 1975. A teacher who is tenured as an instructor is entitled to a hearing when given notice of a transfer or of termination, even though he or she may not have attained tenure as a supervisor or a principal. Therefore, an administrative remedy exists for the tenured teacher to determine whether he or she is tenured as an instructor, a supervisor, or a principal. Ex parte Alabama State Tenure Commission, 430 So.2d 880, 883 (Ala.1983).

In cases where the teacher’s status as a tenured teacher, without regard to whether he or she is tenured as an instructor or otherwise, is questioned, no such procedure exists. Since the existence, vel non, of tenure must be established before the Tenure Commission can exercise jurisdiction, we agree with the Court of Civil Appeals that the proper place to litigate that issue is in the circuit court. Boyd,' supra. Berry’s action, therefore, was properly brought in the circuit court.

The board also argued that the allegations of the complaint were, even if taken as correct, insufficient to establish that he was tenured. A teacher who serves under contract as a teacher in the same public school system for three years and is reemployed in the same system for the succeeding year attains tenure. Section 16-24-2(a), Code of Alabama 1975. Berry worked two years and six weeks as an instructor, and then was appointed to the position of coordinator/counselor. Although he was employed for an aggregate period of four years, he held neither of the two positions for the requisite period.

The board’s argument that the two periods cannot be counted together to determine whether Berry attained tenure ignores the fact that the term “teacher” includes instructors, principals, and supervisors. Section 16-24-1, Code of Alabama 1975. Berry needed only to allege that he was a teacher in the broad sense in which “teacher” is defined by the Teacher Tenure Act to be entitled to a hearing upon notice of termination. Since one needs only to serve as a teacher for the requisite period to attain tenure, the construction urged by the board is contrary to the express terms of the Act, which should be construed in favor of the teachers who are the Act’s primary beneficiaries. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968).

In order for Berry to have attained tenure, his position as “coordinator/counselor” must have been one which was eligible for tenure. Since this case reached us on a motion to dismiss, there was no evidence as to the nature of his duties. Any consideration of that issue would be premature at this juncture.

The order of the court below is hereby reversed, and the case is remanded.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    JACKIE FINE ARTS, INC. v. Abe BERKOWITZ.
    82-734.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Rehearing Denied March 23, 1984.

      Edgar M. Elliott and Karon 0. Bowdre of Rives & Peterson, Birmingham, for appellant.
    Mark H. Elovitz, Birmingham, for appel-lee.
   JONES, Justice.

This case originates from a purchase and security agreement entered into by Plaintiff/Appellee Abe Berkowitz, and Defendant/Appellant Jackie Fine Arts, Inc. (Jackie), in December of 1979. Pursuant to this documentation, Mr. Berkowitz agreed to purchase an art “master” and certain rights thereto from Jackie Fine Arts, Inc.

On March 27, 1981, Berkowitz initiated these proceedings, seeking rescission of the contract with Jackie and damages for its alleged breach. The original complaint, as amended, included a demand for trial by jury. Trial began on January 10, 1983. After the jury was impanelled, and during opening statements, counsel for Plaintiff informed the court and defense counsel that he was dismissing all counts for breach of contract and elected to proceed solely on the theory of rescission. Under these circumstances, the trial judge retained the jury in an advisory capacity.

After trial, the case was submitted to the jury on the following three interrogatories:

“1. Did Jackie Fine Arts, Inc., sell a limited edition of 300 prints to Abe Ber-kowitz?
“2. Did Jackie Fine Arts, Inc., exercise its best efforts to cause the Limited Edition to be printed and the artist to approve and manually sign and number each print of the Limited Edition as soon as practicable and to sign a Plate upon completion of the printing of the Limited Edition?
“3. Has the value of the purchase and security agreement been substantially impaired?”

The jury answered all three interrogatories favorably to the Plaintiff.

The trial court, considering (without being bound by) the jury’s answers to the interrogatories, entered final judgment on February 28, 1983, cancelling the purchase and security agreement between the parties. Also, the court ordered that the promissory notes given in connection with the agreement were to be cancelled, and that Defendant was to refund to Plaintiff amounts previously paid. The relief, as granted, was conditioned upon the return by Plaintiff to Defendant of the art master, the limited edition prints, and any other items of value received under the original contract.

Upon denial of its post-judgment motion for judgment notwithstanding the verdict or, alternatively, for new trial, Jackie Fine Arts, Inc., appeals. We affirm.

FACTS

In November of 1979, William Sharp, an independent salesman involved in marketing of art masters as tax shelters, contacted Abe Berkowitz, concerning the possibility of Berkowitz’s purchasing a “master” for investment and tax purposes. The “masters” with which Mr. Sharp was involved were offered by Jackie, a corporation engaged in marketing art masters for tax advantages.

On December 13, 1979, Berkowitz signed the contract which forms the basis of this action. The contract was entitled “Purchase and Security Agreement” and involved Jackie Fine Arts, Inc., as the obli-gee. Pursuant to their agreement, Jackie agreed to sell and Berkowitz agreed to purchase, certain “property.” Such “property,” as defined by the agreement, consisted of an art “master,” all copyright rights related to the master and image, and certain appurtenant rights. The parties’ agreement defined “appurtenant rights” to the art master as including the right to copy or reproduce, the right to control the use of, and the right to distribute the image of the master.

As part of the purchase agreement, Ber-kowitz executed two notes, in amounts of $9,500 and $133,000 respectively. To secure payment of both notes, Jackie retained a security interest in the art master and any products produced by its use, including any limited edition prints or unlimited or poster editions, and the proceeds received from any disposition of those items.

Jackie agreed to use its best efforts to accelerate the printing process. In May 1980, Mr. Berkowitz selected Fine Art Acquisition as his distributor of any limited edition or other appurtenant uses of the master.

The printing of the limited edition of lithographic prints from the art master was done by Circle Fine Arts Corporation. According to Jackie, the original artist, Edward Plunkett, made this selection. Ber-kowitz, on the other hand, maintains that the decision to use Circle Fine Arts was made by Jackie.

By letter dated December 26, 1979, Jackie informed Berkowitz that the master plates were complete. Berkowitz next informed Jackie that he had selected a distributor, and inquired when the prints would be received. Harvey Rabiner, Jackie’s representative, told Berkowitz he could expect the prints subsequent to Berkow-itz’s first payment on the promissory notes in February — two months later.

In February 1980, Berkowitz forwarded payment of principal and interest on the promissory notes in the amount of $9,603.44 to Jackie, and inquired by phone as to when he might expect delivery of the prints. Another representative from Jackie told Berkowitz that delivery would be forthcoming within two to three weeks after his February payment.

Between March and October of 1980, Berkowitz made numerous phone calls to Jackie complaining of the delay in shipment of the prints, which, at that time, were still undelivered. Jackie neither shipped the prints, nor gave an excuse for failing to ship them.

By letter dated October 13, 1980, Ber-kowitz requested Jackie’s prompt attention to the nondelivery of the prints. On November 14, 1980, having received no response to his earlier correspondence, Ber-kowitz wrote Jackie threatening to rescind the entire transaction. Jackie again failed to respond. On November 19, 1980, the limited edition was delivered, contrary to Berkowitz’s instructions, to his personal office. Berkowitz never received the “Art Master.”

By letter to Jackie dated December 18, 1980, Berkowitz made a formal demand for repayment of the purchase price and return of his promissory notes. Implicit in that letter was Berkowitz’s notice of rescission of the contract.

DECISION

Our standard of review is whether the trial court’s decree, here consistent with the recommendations of an advisory jury, is supported by the evidence. Unless there is insufficient evidence (i.e., lack of proof) to support the trial court’s decree, or unless the trial court’s decree is otherwise so contrary to the great weight of the evidence as to convince the reviewing court that it is palpably wrong and unjust, the trial court’s decree must be affirmed. Menefee v. Lowery, 375 So.2d 793 (Ala.1979); Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1975).

In McCaghren v. McCaghren, 294 Ala. 89, 312 So.2d 384 (1975), this Court stated:

“When the trial court accepts the findings of an advisory jury, appellate review is directed to the findings of the trial judge just as if the trial judge had heard the case unaided by the jury’s advice. 9 Wright and Miller, Federal Practice and Procedure, § 2335.
“We cannot substitute our judgment for that of the trial court as to the effect to be given conflicting oral testimony dealing with pivotal questions of fact. Johnson v. Godin, 279 Ala. 443, 186 So.2d 722 (1966).” 312 So.2d at 385.

Stated otherwise, only where, after making proper allowances and indulging all reasonable intendments in favor of the court below, we reach the clear conclusion that the findings are unsupported by the evidence or that the judgment is palpably wrong as being against the great weight of the evidence, will we revise verdicts of juries and findings of trial judges on questions of fact. Kelly v. Kelly, 247 Ala. 316, 24 So.2d 265 (1945).

As postured by Appellee, and we think rightly so, the primary issue for our consideration is compliance vel non by Jackie with the terms of the parties’ original contract. That is to say, does the evidence support the specific finding of the trial court that “Jackie Fine Arts, Inc., did not exercise its best efforts to cause the Limited Edition to be printed and the parties to approve and manually sign and number each print of the Limited Edition as soon as practicable and to sign a Plate upon completion of the printing of the Limited Edition”? Not only does the evidence of record support this finding; it is undisputed that the art master itself was never delivered to Berkowitz, and this fact justifies the trial court’s further conclusion that “the value of the Purchase and Security Agreement has been substantially impaired.”

The ultimate question, then, is whether the trial court’s finding that Jackie’s failure to comply with the requirement of timeliness in its performance under the contract, justifies its order upholding Ber-kowitz’s right of rescission? We hold that it does. Code 1975, § 7-2-309. Furthermore, we hold that the judgment is not so against the great weight and preponderance of the evidence as to require a new trial.

AFFIRMED.

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

BEATTY, J., concurs in the result.

      . An art “master” is the plate or plates from which lithograph prints of the image can be made.

      . According to Defendant, "By error of Circle Fine Arts, the limited edition was shipped to Mr. Berkowitz’s office in Birmingham. This was done in total disregard of the shipping order which Jackie Fine Arts, Inc., provided to Circle Fine Arts on June 16, 1980, which stated that the prints were to be shipped to Mr. Berkowitz’s distributor, Fine Art Acquisitions, and that the plates, or art master, were to be shipped to Mr. Berkowitz."


author: MADDOX, Justice.

text:
    Kjell FILLINGER v. Talmadge Franklin FOSTER.
    82-297.
    Supreme Court of Alabama.
    Jan. 27, 1984.
    Rehearing Denied April 6, 1984.

      James W. Tarlton, III, and Gregory C. Buffalow of Hamilton, Butler, Riddick, Tarlton & Allen, Mobile, for appellant.
    Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellee.
   MADDOX, Justice.

Plaintiff, Talmadge Franklin Foster, while working as a “shipfitter” at a land-based operation, but who was covered under the provisions of the Federal Longshoremen’s and Harbor Worker’s Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, sued his co-employee for injuries he allegedly sustained while working on the job. The issue before the Court is whether the exclusivity provisions of the LHWCA bars the suit. We hold that the exclusivity provisions of the federal act are controlling, and we reverse and remand.

The injury which is the basis of this suit occurred at the Kaiser Aluminum and Chemical Sales, Inc. plant on Pinto Island in Mobile. The Pinto Island plant manufactures storage tanks which are placed in ocean-going vessels at the plant site. The plaintiff, who was classified as a “shipfit-ter,” was injured while using a hand-held grinder to smooth out welds on the storage tanks. The grinder, which did not have a safety guard, “kicked back,” and struck the plaintiff in the face.

After his injury, plaintiff applied for state workmen’s compensation benefits. He never applied for compensation benefits under the LHWCA, although he was eligible for them. See Waller v. Kaiser Aluminum & Chemical Sales, Inc., OWCP No. 6-47643 (March 13, 1981); Clark v. Kaiser Aluminum & Chemical Sales, Inc., OWCP No. 6-47917 (June 9, 1981); Campbell v. Kaiser Aluminum & Chemical Sales, Inc., OWCP No. 6-47914 (June 12, 1981); and Sylvester v. Kaiser Aluminum & Chemical Sales, Inc., OWCP No. 6-45393 (July 7, 1981), holding the Kaiser facility came under the LHWCA.

Plaintiff, in his original complaint, and in all amended complaints, claimed that the defendant co-employee had personal duties and responsibilities in the area of safety at the Kaiser facility, and that these duties included providing him with a reasonably safe place to work and with reasonably safe tools and equipment with which to perform his work. Plaintiff claimed that the co-employee defendant, who was the plant manager, breached this duty by providing him with an unreasonably dangerous tool, and that his injury proximately resulted from the breach of this duty. Plaintiff testified at trial that he was never instructed to use a safety guard nor was he warned by any of his co-employees of the possibility that the grinder would “kick back.”

Defendant raised as a defense the exclusivity provisions of the LHWCA by asking the court (1) to dismiss the claim, (2) to direct a verdict in his behalf, and (3) to enter a judgment in his behalf notwithstanding the fact the jury awarded plaintiff $75,000. The court denied each motion.

The defendant appealed and raises two issues on appeal: (1) whether the LHWCA bars the instant suit, (2) and whether the defendant was guilty of any negligence which would subject him to personal liability. Because of our holding on the first issue, we do not reach the second.

Appellant/defendant argues that co-employee suits in state courts for damages are barred in cases falling under the provisions of the LHWCA and that the election of remedies doctrine has no bearing in this case, citing 33 U.S.C. §§ 901-950; Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980); Ex parte Alabama Oxygen Co., Inc., 433 So.2d 1158, 1159 (Ala.1983); Keller v. Dravo Corp., 441 F.2d 1239 (5th Cir.1971), Nations v. Morris, 483 F.2d 577 (5th Cir.1973); Hughes v. Chitty, 415 F.2d 1150 (5th Cir. 1969). The appellee/plaintiff contends that in a case of land-based maritime injury, concurrent jurisdiction exists between federal and state remedies and that the plaintiff is not barred by the LHWCA unless he elects to pursue remedies under the LHWCA, citing Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976); Umbehagen v. Equitable Equipment Co., 329 So.2d 245 (La.App.1976); Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980); Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980).

Although both parties argue diversely about the intent of Congress in passing the exclusivity provisions of the LHWCA, they agree that the plaintiff was covered by the LHWCA; therefore, whether plaintiff could maintain his state court action requires us to construe the act to determine the intent of Congress in passing the LHWCA and the amendments thereto.

We find it unnecessary to delineate the historical background of the LHWCA, except to point out that since passage of the Act, Congress has progressively extended coverage under the act to maritime workers employed in land-based activities. See G. Gilmore & C. Black, The Law of Admiralty .(1975); A. Larson, 2A, ⅛ Workmen’s Compensation Law (1983); Sun Ship, supra; Washington Gas Light Co., supra.

For example, in 1972 Congress amended the LHWCA to cover more maritime employees under more situations, probably because of a statement made by Justice White in Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). See also Tucker, Coverage and Procedure Under the LHWCA, 55 Tul.L.R. 1056 (1981).

“While we have no doubt that Congress had the power to [extend LHWCA jurisdiction landward] in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court.”

Nacirema Operating Co., supra, 396 U.S. 223-24, 90 S.Ct. at 353-54.

To “move” that line landward, Congress amended 33 U.S.C. § 902(3) and § 903(a). Now 33 U.S.C. § 902(3) reads, in pertinent part:

“[Ejmployee means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any har-borworker including a ship repairman, shipbuilder....”

Also 33 U.S.C. § 903(a) now reads in pertinent part:

“(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States {including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). (Emphasis added.)

Congress did not amend 33 U.S.C. § 933(i), which reads as follows:

“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a, person other than an officer or employee of the employer. [Emphasis added.]
“Mar. 4, 1927, c. 509, § 33, 44 Stat. 1440; June 25, 1938, c. 685, §§ 12, 13, 52 Stat. 1168; Aug. 18, 1959, Pub.L. 86-171, 73 Stat. 391; Oct. 27, 1972, Pub.L. 92-576, § 15(f) — (h), 86 Stat. 1262.”

Appellant strongly argues that, as a matter of federal law, specifically 33 U.S.C. § 933(i), the plaintiff was prevented from maintaining a co-employee damage, suit. Appellant’s argument is based upon the proposition that to allow a co-employee suit by a covered maritime employee when the federal statute specifically prohibits such suits would be to create the “type of federal-state conflict in which, under long established principles of federal pre-emption, pre-emption of state law is required.”

Appellee contends that in a case of a land-based maritime injury, concurrent jurisdiction exists between federal and state remedies. In fact, appellee contends that the U.S. Supreme Court in Sun Ship, supra, has held that the LHWCA does not preclude concurrent state jurisdiction under a state workmen’s compensation act in a case involving a harbor worker injured on land. Appellee states that this was the sole issue in Sun Ship, supra, as is apparent from the opinion, and that the issue was decided in his favor. The Court, in Sun Ship, supra, opined:

“The single question presented by these consolidated cases is whether a State may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), as amended in 1972. 33 U.S.C. §§ 901-950. We hold that it may.”

Sun Ship, supra, 447 U.S. at 716, 100 S.Ct. at 2434.

Appellant counters that “a distinction should be observed between the pre-emption of co-employee negligence actions for damages and the area in which some degree of overlap between the Longshoremen’s and Harbor Workers’ Compensation Act and the Alabama Workers’ Compensation Act is permitted.”

Appellant argues “that “a careful reading of the Sun Ship decision indicates that the only permissible concurrent jurisdiction between federal and state compensation laws is concurrent application of ‘compensation benefit’ levels.” He says “That is, ‘workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels.’ ” (Emphasis supplied).

Appellant argues:

“The difference between benefit levels, however, refers to the schedule of compensation benefits, for example, for injuries to limbs, disfigurement and other categories in which weekly or biweekly benefit awards are made. This is something wholly different from the situation presented here, involving an action for damages, in which there, is a clear conflict between the federal statute prohibiting co-employee damage suits and the state common law of Alabama which allows it.”

In our research, we have found that after it decided Sun Shi-p, the Supreme Court later decided that the Full Faith and Credit Clause of the U.S. Constitution does not preclude successive workmen’s compensation awards, since a state has no legitimate interest within the context of the federal system in preventing another state from granting a supplemental award when the second state could have applied its workmen’s compensation law in the first instance. Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980). Neither Sun Ship, supra, nor Washington Gas Light Co., supra, however, involved the precise question before us today — whether there can be concurrent jurisdiction to award damages to an injured plaintiff. Other courts have addressed the issue, however. The Louisiana Supreme Court held that a land-based maritime employee covered by the LHWCA could sue a co-employee under that state’s workmen’s compensation law. Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976). Earlier, Louisiana had merely recognized the overlap in compensation benefit levels only. Umbehagen v. Equitable Equipment Co., 329 So.2d 245 (La.Ct. App.1976). The rationale of the Poche court was based on the election of remedies doctrine which has been severely criticized by the authorities and which has been held to be inapplicable in a case involving the LHWCA. See A. Larson, 2A Workmen’s Compensation, § 73 (1983); Landry v. Carlson Mooring Service, 643 F.2d 1080 (5th Cir.1981). The Poche court’s decision was also based upon an interpretation of Louisiana’s workmen’s compensation law and upon prior Louisiana court decisions. The Poche decision was rendered before the Supreme Court’s decision in Sun Ship, supra, wherein the Court indicated that in a case involving the LHWCA and a state workmen’s compensation scheme in which there was an indisputable preclusion of LHWCA remedies, the federal law would “pre-empt the state compensation exclusivity clause.” Sun Ship, 447 U.S. at 722, 100 S.Ct. at 2437. We consider the Poche and Umbehagen decisions in view of these statements of the law in Sun Ship, supra.

In the resolution of the question presented we are aided by other state and federal decisions. The Florida District Court of Appeals held the LHWCA took precedence over state law as to whether the employer could be assigned all rights of persons entitled to recover damages from third persons in a wrongful death action. United States Fidelity and Guaranty Co. v. Reed Construction Corp., 132 So.2d 626 (Fla.App. 1961). The Supreme Court of South Carolina held the LHWCA was the “sole and exclusive remedy” of a plaintiff suing a co-employee in a negligence action. Smalls v. Blackmon, 269 S.C. 614, 239 S.E.2d 640, at 640 (1977). That court specifically cited 33 U.S.C. § 933(i). In Smalls the negligence action was clearly a shore-based maritime accident, as the plaintiff and defendant were involved in an automobile accident located at the Parris Island Marine Corps Exchange Service Station.

The Smalls court relied upon Nations v. Morris, 483 F.2d 577 (5th Cir.1973), cert. denied, 414 U.S. 1071, 94 S.Ct. 584, 38 L.Ed.2d 477 (1973), to reach its holding. Nations involved a plaintiff injured on an oil drilling rig located 40 miles off the coast of Louisiana. The plaintiff brought a co-employee action in federal court. Chief Judge Brown, writing for the appeals court, held that the LHWCA prohibited co-employee suits in this situation. In dicta, the Nations court indicated the LHWCA would apply to “twilight” or shore-based injuries, too. “L & H [LHWCA] applies during the dark of night, at the break of dawn and in the twilight too.” Nations, supra, at 584. In a case involving an injury on a floating dry dock located in a repair yard in a marine repair facility in Louisiana, the Fifth Circuit had earlier held that the exclusivity provisions of the LHWCA were constitutional and that they barred co-employee suits. Keller v. Dravo Corp., 441 F.2d 1239 (5th Cir.1971). The Keller court cited 33 U.S.C. § 933(i) as the controlling provision. See also Fitzgerald v. Compania Naviera La Molinera, 394 F.Supp. 402 (E.D.La.1974), citing Keller, supra; Bynum v. S.S. Mormacteal, 188 F.Supp. 763 (E.D.Pa.1960), which discusses the purpose of Congress’s passage of 33 U.S.C. § 933(0:

“The 1959 amendment to § 33 simply-recognized the problem [of co-employee suits] and solved it by forbidding such an action. In other words, the 1959 amendment to § 33 of the Act not only does not limit the provisions of § 5, but broadens them by insulating not only the employer, but also the fellow employees of the injured party from any liability in damages to the injured party. This is made clear by the legislative history of the amendment. U.S.Code Congressional and Administrative News, 86th Congress, First Session 1959, Volume 2, pages 2134-2136. With respect to the amendment now relied on by libellant, the Senate Report, under the heading ‘Purpose Of The Bill’, states as follows at page 2135:
“ ‘The other major provision of the bill relates to the immunization of fellow employees against damage suits. The rationale of this change in the law is that when an employee goes to work in a hazardous industry he encounters two risks. First, the risks inherent in the hazardous work and second, the risk that he might negligently hurt someone else and thereby incur a large common-law damage liability. While it is true that this provision limits an employee’s rights, it would at the same time expand them by immunizing him against suits where he negligently injures a fellow worker. It simply means that rights and liabilities arising within the ‘employee family’ will be settled within the framework of the Longshoremen’s and Harbor Workers’ Compensation Act.’ ”

Bynum, supra at 764-765. Hughes v. Chitty, 415 F.2d 1150 (5th Cir.1969), held that the LHWCA was the exclusive remedy for a longshoreman injured on navigable water.

We are sensitive to the statement made in Sun Ship, supra, that a state may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the LHWCA, but we believe the concurrent jurisdiction for pursuit of benefits under a state’s workmen’s compensation scheme does not include common lawsuits for damages against co-employees.

We are of the opinion that the LHWCA and the law of Alabama are in serious conflict as to the maintenance of co-employee suits, and because that is the case, we hold that federal law will pre-empt state law. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1983); Howard v. Uniroyal, Inc., 543 F.Supp. 490 (M.D. Ala.1981); Ex parte Alabama Oxygen Co., Inc., supra. If the “enforcement of state law ‘presents a serious danger of conflict with the administration of the federal program ... ’ ” the federal law must take precedence. Uniroyal, supra at 492. We can perceive no greater conflict than that which would be presented if we allowed this employee to sue his co-employee because he was a land-based maritime worker, and a maritime worker injured on a navigable waterway would be precluded from maintaining such a suit; therefore, we are persuaded to hold that the exclusivity provisions of 33 U.S.C. § 933(i) apply and that the state action was barred.

Because of our holding on the issue of pre-emption, we need not address the second issue raised by the defendant on appeal. For the foregoing reasons, the judgment of the trial court is reversed and the cause remanded in accordance with this opinion.

REVERSED AND REMANDED.

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


text:
    ALABAMA POWER COMPANY v. VSL CORPORATION, et al.
    82-780.
    Supreme Court of Alabama.
    Feb. 3, 1984.
    Rehearing Denied March 23, 1984.
    James H. Miller, III, Birmingham, for appellant.
    Michael Maddox, Robert H. Loeb, Joe R. Wallace, Birmingham, Gordon W. Shumaker of Meier, Kennedy, Quinn & Shumaker, St. Paul, Minn., and George E. Stern and Lee S. Goldstein of Stern & Funk, Atlanta, Ga., for appellees.
   JONES, Justice.

This products liability case involves the application of A.R.Civ.P. 4.2 — Alabama’s “long-arm” rule. Plaintiff/Appellant Alabama Power Company (APCo) complains that Defendant/Appellee Metro Manufacturing Company negligently fabricated two steel trusses that were delivered to the Joseph M. Farley Nuclear Plant in Columbia, Alabama.

Metro’s motion to dismiss for lack of in personam jurisdiction was granted. Following the denial of its timely filed motion to reconsider, APCo' appeals.

Metro is a Minnesota corporation engaged in the steel fabrication business. Its place of business is St. Paul, where it employs less than 15 people. Metro is not licensed nor qualified to do business in Alabama. Metro does not have any officers, directors, or employees in Alabama, nor does it have any real or personal property in Alabama. It has never transacted business in Alabama; and it does not actively solicit business from Alabama.

In February 1981, Metro contracted with YSL Corporation to fabricate a portion of two platform support trusses. VSL’s place of business, as reflected by the purchase order, is Burnsville, Minnesota. The purchase order makes no reference to any other place of business or to any other purchaser of the product.

Fabrication by Metro included welding on the trusses; it is this welding that is alleged to be defective. The trusses were delivered to the Farley Nuclear Plant in the spring of 1981 and placed into service almost immediately.

The original specifications in the VSL-Metro contract listed “Philadelphia Electric Company” in the title block. The final specifications listed the J.M. Farley Nuclear Plant in the title block, but did not indicate the plant’s location. The finished trusses (completed by VSL at Metro’s factory) were placed on VSL’s trucks and shipped to Alabama by VSL. Metro became aware of the final destination of the trusses when the bill of lading, consigning the trusses to APCo, arrived at Metro.

James R. Fox, the president of Metro, testified that, prior to shipment of the trusses, he knew that their ultimate destination was APCo’s nuclear plant in Alabama. A bill of lading, introduced into evidence, showed that the trusses were consigned to: “Alabama Power Company; Farley Nuclear Plant; U.S. Highway 95 South; Columbia, Alabama 36319.”

The complaint alleges, among other things, that Metro breached certain sales warranties and violated the Alabama Extended Manufacturers Liability Doctrine by fabricating the trusses with the defective welds.

The issue on appeal is whether Alabama has in personam jurisdiction over Metro pursuant to either A.R.Civ.P. 4.2(a)(2)(A) and (C), or 4.2(a)(2)(I). Ultimately, we must decide whether application of Rule 4.2, so as to require Metro to appear and defend this cause in Alabama, is violative of constitutional due process. Holding that it is not, we reverse and remand.

Alabama’s long-arm rule, A.R.Civ.P. 4.2(a)(2), allows personal service over a nonresident defendant when that person is: “(A) transacting any business in this state; ... (C) causing tortious injury or damage by an act or omission in this state ...; ... or (I) otherwise having some minimum contacts with this state and, ... it is fair and reasonable to require the person to come to this state to defend an action.” This state’s long-arm procedure for service of process is as broad as the permissible limits of due process. See DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala. 1977); Schoel v. Sikes Corp., 533 F.2d 930 (5th Cir.1976). See, also, A.R.Civ.P. 4.2, Committee Comments.

As our Court of Civil Appeals stated in Garrett v. Key Ford, Inc., 403 So.2d 923 (Ala. Civ. App. 1981):

“ ‘The ultimate test of in personam jurisdiction is “reasonableness” and “fairness” and “traditional notions of fair play and substantial justice.” ’ Oswalt v. Scripto, Inc., 616 F.2d 191, 200 (5th Cir.1980). That case merely restated the rule announced in the leading case of International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that an in personam judgment may be rendered against a nonresident if he has certain minimum contacts so that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice..’ 326 U.S. at 316, 66 S.Ct. at 158.” 403 So.2d at 925.

In Alabama Waterproofing Company, Inc. v. Hanby, 431 So.2d 141 (Ala. 1983), this Court determined that a guaranty agreement was signed by all the appellants, including the nonresident appellants. Although the nonresident appellants signed the guaranty in Mississippi, the guaranty was negotiated in Alabama, and guaranteed the performance of an Alabama corporation. In determining whether the nonresident appellants possessed sufficient contacts with this state for the trial court to obtain in personam jurisdiction, the Court examined all the relevant facts and attendant circumstances of the case, and found that at the time they made the agreement, the guarantors could reasonably anticipate that if they breached their agreement they would be haled into court here.

Furthermore, Gray v. American Radiator and Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961) (favorably cited in Mann v. Frank Hrubetz & Co., 361 So.2d 1021 (Ala.1978)), stands for the general proposition that “if a corporation elects to sell its products for ultimate use in another state, it is not unjust to hold it answerable there for any damage caused by defects in those products.” 22 Ill.2d at 442, 176 N.E.2d at 766.

In Mann, a manufacturer of a carnival ride, an Oregon corporation, was held subject to jurisdiction in Alabama because the manufacturer knew, or reasonably should have known, that the carnival ride would be used in Alabama. Thus, it did not violate due process to require the manufacturer to defend his suit in Alabama. See, also, Sells v. International Harvester Co., 513 F.2d 762 (5th Cir.1975); Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir.1969).

As the Mann Court reiterated, the inquiry must center on fairness and convenience. See International Shoe Co. v. Washington, 327 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). APCo argues, and we agree, that Alabama is the more convenient forum to litigate this dispute. Alabama law will govern the substantive questions, and the witnesses to the event are likely to be found in Alabama. Further, it is not unreasonable that Metro should anticipate that any problems with the trusses would occur in Alabama and that Metro could reasonably foresee being “haled into court” in Alabama for a tort committed here.

Metro heavily relies upon the decision reached by the United States Supreme Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). While this case is the most recent pronouncement by that Court on the subject of in personam jurisdiction, we find the analysis inapposite to the case at bar. In World-Wide Volkswagen, the Court held that where an automobile wholesaler and retailer carried on no activity whatsoever in Oklahoma, and availed themselves of no privileges or benefits of Oklahoma law, the fact that a single automobile, sold in New York to New York residents by a New York dealer, suffered an accident while passing through Oklahoma, did not constitute “minimum contacts” sufficient to allow Oklahoma courts to exercise jurisdiction.

Appellee fails to recognize that the manufacturer and the importer of the automobile were not held to be beyond Oklahoma’s “long-arm” jurisdiction. Indeed, only the wholesaler and retailer were dismissed. We find this distinction to be a material difference; and, thus, World-Wide Volkswagen’s holding is not dispositive of the issue before us. Despite the fact that Metro did not solicit the business of fabricating the trusses in Alabama, it knew that the trusses would be used in Alabama by an Alabama corporation. This knowledge, coupled with the totality of the circumstances, is more than enough to meet the foreseeability test: that is to say, it was reasonably foreseeable that the trusses would make their way to Alabama; and, if they were defective, it is both reasonable and fair that Metro be required to defend a suit for damages in the Alabama courts. Were we to conclude otherwise, our “long-arm” rule would become, in effect, a nullity.

In conclusion, we hold that jurisdiction is proper over Metro; therefore, the judgment is due to be, and hereby is, reversed, and this cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, SHORES and BEATTY, JJ., concur.

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