text:
    MOBILE DODGE, INC., a corporation v. MOBILE COUNTY and Treadwell Ford, Inc., etc.
    82-401.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Mylan R. Engel and Edgar P. Walsh, Mobile, for appellant.
    Richard D. Horne of Hess, Atchison & Horne and Vincent F. Kilborn, III of Kil-born & Gibney, Mobile, for appellees.
   BEATTY, Justice.

This is an appeal by the plaintiff, Mobile Dodge, Inc., from the denial of injunctive relief which it sought against Mobile County and Treadwell Ford, Inc., for an alleged violation of Code of Ala. 1975, §§ 41-16-50 through -63 (the Competitive Bid Law). We affirm.

On September 14, 1982, the Mobile County Commission gave notice that it would receive bids per specifications on thirty-nine 1983 model police package automobiles for the Mobile County Sheriff's Department. By stipulation of the parties, this litigation involves only the 36 units that were to be delivered between January 15 and February 1, 1983. The invitations to bid contained specifications calling for, among other things, heavy-duty full length frames and front and rear coil-spring suspension systems. Both Mobile Dodge and Treadwell Ford submitted bids on the 36 units involved: Mobile Dodge submitted a bid of $289,199.89, and Treadwell Ford submitted a bid of $340,989.63. Although Mobile Dodge submitted the lowest bid of those responding, the contract was not awarded to Mobile Dodge, because it had submitted its bid on police units having frames with unibody construction and torsion bar suspension systems, and those units were determined by county officials not to be suitable for the needs and purposes for which the units were required.

Upon the recommendation of Mobile County Sheriff Thomas J. Purvis, and over the objection of Mobile Dodge, the Mobile County Commission awarded the contract to Treadwell Ford, which had submitted the lowest responsible bid, its units having met the frame and suspension requirements, and otherwise conforming to the bid specifications.

On November 15, 1982, Mobile Dodge filed its petition for injunctive relief in the Circuit Court of Mobile County against Mobile County and Treadwell Ford, seeking to enjoin Mobile County from purchasing for the Mobile County Sheriffs Department the 36 police package automobiles from Treadwell Ford.

In its complaint, Mobile Dodge alleged that it was the lowest responsible bidder; that the specifications were drawn so as to deliberately exclude Mobile Dodge as a competitor; and that Mobile County acted arbitrarily, capriciously, and in bad faith in awarding the contract to Treadwell Ford. In denying injunctive relief, the trial court, guided by the decision of this Court in White v. McDonald Ford Tractor Co., 287 Ala. 77, 248 So.2d 121 (1971), found:

“[Tjhat the Sheriff’s Department of Mobile County engaged in a reasonable and rational process, based on their experience and the experience of others, in selecting the requirements most suitable to meet their needs.
“... The action of the Sheriff and the County in selecting the specifications found in the bid invitation did not constitute an abuse of discretion, was not illegal or contrary to the law, was not discriminatory, nor was it arbitrary, capricious or the result of bad faith.”
“... [Tjhat process was directed toward the selection of cars which would be durable, safe and crashworthy....”

The trial court’s order was entered on December 21, 1982. Since Mobile Dodge did not obtain a stay pending appeal, the purchase of the 36 police packages took place. Mobile Dodge’s position on this appeal, however, is that although injunctive relief has been rendered moot it would be entitled to its profit from the sale of the 36 units.

The pertinent provisions of the competitive bid law, found in § 41-16-57(a) and (c), provide as follows:

“(a) When purchases are required to be made through competitive bidding, awards shall be made to the lowest responsible bidder taking into consideration the qualities of the commodities proposed to be supplied, their conformity with specifications, the purposes for which required, the terms of delivery, transportation charges and the dates of delivery.
“(c) The awarding authority or requisitioning agency shall have the right to reject any bid if the price is deemed excessive or quality of product inferior.”

The standard of conduct to be followed by State officials when drawing specifications for products to be bid on, and when selecting the lowest responsible bidder, were set out with particularity by this Court in White v. McDonald Ford Tractor Co., supra, and followed in International Telecommunications Systems v. State, 359 So.2d 364 (Ala.1978). In White, the invitation to bid upon the purchase of tractors contained specifications requiring tractors with sleeve-type engines, among other things. It was admitted that the specifications were drawn around the Massey-Ferguson turf tractor after State officials had agreed that it was best suited for the required purposes. McDonald was the low bidder; however, its Ford tractors did not meet the sleeve-type engine requirement, nor certain other requirements contained in the specifications, and the State officials determined that they were unsuitable. McDonald sought an injunction when it failed to persuade State officials of the merits of the Ford tractor. Injunctive relief was denied, and on appeal this Court upheld the award of the contract to a higher conforming bidder, explaining:

“We think that State authorities should have discretion in determining who is the lowest responsible bidder. This discretion should not be interfered with by any court unless it is exercised arbitrarily or capriciously, or unless it is based upon a misconception of the law or upon ignorance through lack of inquiry or in violation of law or is the result of improper influence. In reaching the decision which we reach in this case, we do not mean to imply that this Court or some other court would not have the authority to declare a contract as being void because the ‘specifications’ were written in such a manner that full and fair competition were excluded. It is fair to say that the legislative intent in passing the Competitive Bid Law was to get the best quality equipment at the lowest possible price, and the executive authorities should carry out this intent of the legislature. These officials must have discretion, not an unbridled discretion, but one exercised within the bounds we have tried to delineate in this opinion. The single most important requirement of the Competitive Bid Law is the good faith of the officials charged in executing the requirements of the law. A bad motive, fraud or a gross abuse of discretion will vitiate an award whether made with specifications which are quite general or very precise. The trial court found that no bad faith, improper motive, fraud or gross abuse of discretion was present here; hence, we think the court was without authority to interfere with the judgment and discretion of the State officials in determining that Booker was the ‘lowest responsible bidder’ in this instance.” 287 Ala. at 86, 248 So.2d at 129-30.

The Court further stated that “if ... specifications were intentionally drawn so as to exclude others in order to purchase from a favored bidder because of some bad or improper motive on the part of State officials, then the practice could not be condoned.” White, supra, 287 Ala. at 82, 48 So.2d at 125.

Mobile Dodge contends that the Mobile County Sheriffs Department acted arbitrarily and capriciously by drawing the specifications for the police packages so specifically as to result in exclusion and disqualification of all Chrysler police packages, and further, that such exclusion of Mobile Dodge was intentional in order that the contract could be awarded to a favored bidder, Treadwell Ford. The specifications in question were developed by Lt. Rufus Harbin, of the Mobile County Sheriffs De-, partment, together with Joe Ferrouillat, County Garage Supervisor. Both men testified that they included full-frame and coil-spring suspension system requirements in the specifications for patrol cars because, based on their experience and the experience of others, these characteristics made the vehicle safer, more crashworthy, more durable, and cheaper to maintain and repair.

The evidence of record discloses that, although the specifications were revised somewhat each year, the full-frame and coil-spring suspension requirements were added after the Sheriffs Department had had bad experiences with several 1977 Dodge Monacos: on at least three of these vehicles, the torsion bars broke on the right side. Nevertheless, the Sheriffs Department has continued to use vehicles with the unitized frame on the “civil side” and currently has several 1981 Dodge Aspens for these purposes.

At trial, Mobile Dodge adduced evidence showing that the Mobile Police Department uses as patrol cars Dodge police packages having torsion bar suspension and unitized bodies, and is satisfied with their performance. Mobile County put on evidence, however, indicating that due to the unpaved roads and rougher terrain found in the rural areas of the county, over which the Sheriffs Department patrol cars routinely travel, having sturdier frames and more flexible suspension systems on its vehicles was a necessary and often critical consideration, especially when a vehicle is wrecked or involved in a collision. Based on the experience the Sheriffs Department had with vehicles with full-frame and coil-spring suspension systems, they proved more durable, cheaper to maintain, and longer lasting, and offered more protection to the patrolmen in the event of a collision.

Furthermore, the experience of the Alabama State Highway Patrol with the unitized body was shown not to have been particularly good; twisting or wrinkling often occurred as a result of crossing highway medians, and other damage to the body would result if the vehicle had to be towed from the back. It was also shown that repairs of the unitized body, calling for straightening or welding, required special and more expensive equipment which the county garage did not own.

Most importantly, both Lt. Harbin and Joe Ferrouillat testified that it was their intent to draw the specifications only to eliminate unitized frames and torsion bar suspension systems on its patrol cars, and not to eliminate Dodge as a competitor. Nor did they favor the Ford police packages. In fact, the evidence showed these specifications would not only exclude Chrysler products, but also certain Ford vehicles and any other vehicle not having a full frame and an independent coil suspension system. It was further shown that certain products made by General Motors and American Motors would not be excluded by the specifications. Therefore, it cannot be said that Ford products were preferred when the specifications were drawn. As the trial court found: “These specifications excluded all cars which did not have a full frame and which did not have coil spring suspension on all four wheels. It may be an unfortunate result that some cars are in fact excluded by this process but this does not make the process illegal.” (Emphasis in original.)

Mobile Dodge further asserts that the Chrysler police package, on which it bid, is a “quality product comparable to other police packages,” but that the specifications as written effectively eliminated it from the bid competition altogether. Therefore, it contends, the specifications were written in such a manner as to exclude full and fair competition, White v. McDonald Ford Tractor Co., supra; nor, it says, was Mobile Dodge given the opportunity to compete “upon a level of quality” established by the specifications, International Telecommunications Systems v. State, supra. In substance, we see no distinction between the contentions made here by Mobile Dodge and those made by the complainant in the case of Carson Cadillac Corp. v. City of Birmingham, 232 Ala. 312, 167 So. 794 (1936), cited with approval in White v. McDonald Ford Tractor Co., supra. In Carson, the complainants sought an injunction against the City of Birmingham and further sought to compel the city to modify or change its specifications for water pipe couplings to include the Carson joint so that it could bid on the Birmingham water supply project. Carson further alleged that its joint was “equal, if not the superior of any other bolted joint or coupling manufactured,” and that it had been excluded by the specifications from bidding “either as a result of the failure or inability [of the Engineering Commission] to consider and appreciate” its product, or as a result of improper influence, and that because of all this the bid process was “unwarranted, illegal and contrary to law.” 232 Ala. at 315-16, 167 So. at 795-96. This Court held:

“From the averments of the bill, it is apparent that the appellant is not as much concerned about the method the city has adopted in obtaining the materials for such construction, as it is that it is not in a situation to submit prices or bids for its production, because such production does not meet the requirements of the specifications adopted by the Engineering Commission, and therefore it seeks to compel the commission to modify its specifications so that complainant may submit bids or prices for the sale of its bolted joint couplings for the steel pipes, ranging from 48 to 60 inches in diameter, on the theory that appellant’s coupling is the equal or superior of any such coupling obtainable.
“To grant such relief would be to substitute the judgment of the court and its process for the judgment and discretion of the Engineering Commission as to technical matters within the field of engineering.
“It is well-settled that courts of equity, in the absence of fraud or gross abuse, will not interfere with the exercise of discretion by administrative boards in the determination of the necessity and requirements of public accomplishment, much less control the judgment of such boards in respect to matters within the technical field of their duties and powers.
“The averments of the bill fall far short of showing such fraud or gross abuse, or supporting the pleader’s conclusion that the act of said board ‘is unwarranted, illegal and contrary to law * * * a discrimination against the complainant and unjustifiable, interferes with its privileges and immunities which are protected by the Constitution of the United States.’ [Citations omitted.]” 232 Ala. at 317, 167 So. at 798-799.

While it is true that, due to the fact that all Chrysler products are manufactured with unitized bodies and torsion bar suspension systems, Mobile Dodge is effectively excluded from bidding on patrol cars for the Mobile County Sheriffs Department, we cannot upon the record conclude that the specifications calling for full frames and coil spring suspension systems are unreasonable, impulsive, or irresponsible, and thus arbitrary and capricious. International Telecommunications Systems v. State, supra. Nor are we able to find any evidence in the record that would support a conclusion contrary to the trial court’s finding that the county officials engaged in a reasonable and rational process in selecting the requirements most suitable to meet their needs, and acted in good faith from proper motives, without any showing of a gross abuse of their discretion in awarding the contract to Treadwell Ford. Consequently, we conclude that the order of the trial judge is due to be affirmed. It is so ordered.

AFFIRMED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Randy BOYETTE v. CITY OF MOBILE, a municipal corporation, et al.
    82-427.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Stephen M. Gudac of Palughi, Gudac & Zokoff, Mobile, for appellant.
    James B. Rossler of Stout & Roebuck, Mobile, for appellees.
   ALMON, Justice.

This is an appeal from a judgment granting the City of Mobile’s motion to dismiss Randy Boyette’s complaint for unlawful arrest and imprisonment, which alleged negligence on the part of city employees.

Boyette was arrested for first degree assault by a Mobile police officer pursuant to a warrant procured by James E. White, Jr., and issued by a magistrate. This criminal charge was subsequently dismissed, and on August 20, 1982, Boyette filed a civil suit for unlawful arrest and imprisonment, and malicious prosecution against the City of Mobile, James E. White, Jr., and several fictitious parties. The City moved to dismiss the action as to the City, for its failure to state a claim upon which relief could be granted. Rule 12(b)(6), A.R.Civ.P. This motion was granted.

Boyette then filed an amended complaint against the same defendants which alleged that his unlawful arrest and imprisonment resulted from “the neglect, carelessness or unskillfulness” of these defendants in investigating the alleged assault upon White. The circuit court again granted a motion to dismiss the complaint as to the City and declared the dismissal a final judgment under Rule 54(b), A.R.Civ.P. Boyette appeals from this judgment.

The issue presented for review is whether Code 1975, § 11-47-190, allows an individual to maintain an action for unlawful arrest and imprisonment against a municipality based upon the alleged negligence of city employees acting within the scope of their employment.

Although § 11-47-190, Code 1975, imposes municipal liability for injuries suffered through “the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty ...,” the viability of municipal immunity from unlawful arrest and malicious prosecution actions remains intact under Alabama law.

In two recent decisions, this Court has refused to expand the scope of this statute to include actions against a municipality for unlawful arrest and malicious prosecution. In the case of Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980), this Court held that a municipality is not responsible for the acts of its officers, agents, or servants in making unlawful arrests or for instituting a malicious prosecution. And, in Bahakel v. City of Birmingham, 427 So.2d 143 (Ala.1983), this Court declined to recognize a cause of action in which allegations of negligence on the part of city employees were juxtaposed with claims against the municipality for unlawful arrest and malicious prosecution.

The fact that these decisions failed to address the issue of municipal immunity from unlawful imprisonment actions does not detract from their clear precedential value. Because an action for unlawful imprisonment is premised upon the existence of an illegal arrest, see Sokol Bros. Furniture Co. v. Gate, 208 Ala. 107, 93 So. 724 (1922), municipal immunity from unlawful arrest actions necessarily implies municipal immunity from unlawful imprisonment actions.

Boyette argues, however, that the Neighbors decision in actuality only granted municipal immunity for malicious prosecution actions, thereby allowing municipal liability for his negligence-based action for unlawful arrest and imprisonment. This argument ignores the clear wording of our holding in the Neighbors case, which granted municipal immunity in actions for unlawful arrest or malicious prosecution. 384 So.2d at 113-14 (citing McCarter v. City of Florence, 216 Ala. 72, 112 So. 335 (1927)).

We therefore hold that a municipality has immunity from an action for unlawful arrest and imprisonment alleging negligence on the part of city employees.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . The circuit court refused to dismiss either the original or the amended complaint against White.


author: FAULKNER, Justice.

text:
    Jerome V. DEMPSEY v. Robert R. DENMAN.
    82-485.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Jack W. Smith of Smith & Smith, Do-than, for appellant.
    James F. Martin of Martin & Brackin, Dothan, for appellee.
   FAULKNER, Justice.

Dempsey appeals from a judgment of the circuit court dismissing his counterclaim. We affirm.

The facts of this case are that on July 30, 1982, the plaintiff, Robert R. Denman, filed a complaint in the Circuit Court of Houston County, Alabama, alleging malicious prosecution arising out of the arrest of Denman on or about the 28th day of October, 1981, on a warrant obtained by the defendant, Jerome V. Dempsey.

Dempsey filed an answer to the complaint and a counterclaim alleging abuse of legal process. This counterclaim stated, in part:

“1. That for some two years, the Counter defendant, Robert Denman, has used the courts for the purposes of harassment and the creating of legal expenses to the counter claimant and not for legitímate and proper processes. That [by] the complaint filed herein and previously the prosecution of the counter claimant’s children, and other processes that were without foundation and by other legal abuses he continues by such improper processes to harass and embarrass the plaintiff [counterclaimant] and his family.”

Denman moved to dismiss Dempsey’s counterclaim for failure to state a claim upon which relief could be granted. The court dismissed the counterclaim. Dempsey then filed an amended counterclaim based on abuse of. legal process, which averred, in part:

“(1) For that, in the month of May, 1981, the Counter-Defendant did file charges with the Juvenile Court of Houston County, Alabama, against Counter-Claimant’s children, having for their sole and only purpose the harassment of this Counter-claimant. That the Court’s Probation Officer investigated the charges and found said children to be exemplary students and good citizens. The Counter-Defendant did this knowing that it would cause these students to be called from their classes during final examination and would be an expense and financial burden to the Counter-Claimant and would humiliate him.
“That upon the hearing, the charges against the children were dismissed.
“(2) That to the governing body of Houston County, i.e., the Board of Commissioners of Houston County, and through Counter-claimant’s Commissioner, the Counter-Defendant falsely charged the Counter-Claimant’s wife of carrying a concealed weapon, i.e., a pistol, with the intent to do harm. That after Commissioner’s conference with the Counter-Claimant, said Board took no action or steps to prosecute the matter. The charge was false and was made solely and only for the purpose of harassing, humiliating, and embarrassing the Counter-Claimant and his family.
“(3) That the Counter-Defendant brought an action for damages against the Counter-Claimant in this Court also claiming a multiplicity of relief knowing at all times that the only relief available was a property right-of-way over a course that the Counter-Claimant had at all times agreed and was always willing to give. That said right-of-way was the only relief granted by the Court to Counter-Defendant and that said suit claiming damages and all other relief was again only a harassing tactic to embarrass, humiliate, and cause Counter-claimant great expense.”

Denman moved to dismiss each count of Dempsey’s amended counterclaim on the grounds that none of the statements of the counterclaims stated a cause of action upon which relief would be granted; that in the juvenile proceedings Dempsey was not involved as a party; that no legal process was instigated concerning the carrying of a pistol by Dempsey’s wife; and, on the matter of the suit for a right of way, that an action is described that does not say any more about the bringing of that action than that it was brought to harass, embarrass, humiliate and cause Dempsey great expense.

The circuit court entered a final order dismissing each count of the counterclaim on June 24, 1983. Dempsey appealed to this court from that order, alleging that the amended counterclaim did state a good and valid cause of action within the meaning of A.R.C.P. 8(a) and, further, that the court erred in dismissing the amended counterclaim without a hearing on the motion to dismiss and without considering affidavits or other verified evidence. We do not agree.

A.R.C.P. 8(a)(1) requires that a pleading set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under this rule the prime purpose of pleadings is to give notice. Fraternal Order of Police, Strawberry Lodge #40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975). A.R.C.P. 8(a)(1) interacts with A.R.C.P. 12(b)(6), which permits dismissal of a complaint, or counterclaim, for “failure to state a claim upon which relief can be granted.”

The classic statement of the proper test of the sufficiency of a complaint, under 12(b)(6), appears in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In that case, the Supreme Court of the United States stated:

“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.

This rule has been adopted by this court. See, e.g. Lavoie v. Aetna Life & Casualty Co.,. 374 So.2d 310 (Ala.1979); Pugh v. Kaiser Aluminum & Chemical Sales, Inc., 369 So.2d 796, 798 (Ala.1979); Entrekin, supra.

Implicit in Conley and our cases is the requirement that the relief to which plaintiff may be entitled under a provable set of facts must be relief according to a cognizable theory of law. Entrekin, supra. The theory of recovery espoused by Dempsey, in asserting his claim for relief, is abuse of legal process. This tort is defined as the perversion of a regular and valid process, which has been duly and properly issued, whereby a result not lawfully or properly attainable under it is secured. Duncan v. Kent, 370 So.2d 288 (Ala.1979); Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986 (1912). To maintain an action for abuse of process, existence of an ulterior motive must be proved. Clikos v. Long, 231 Ala. 424, 165 So. 394 (1936).

72 C.J.S. Process § 120 (1951) states, at 1190-91:

“[Generally,] in order that action for abuse of process may lie, there must have been an unlawful interference with plaintiffs person or property under color of process ....
“[T]he [ulterior motive] must culminate in an actual abuse of the process by perverting it to a use to obtain a result which the process was not intended by law to effect .... ”

Furthermore, 1 Am.Jur.2d Abuse of Process § 13 (1962) states:

“If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse .... ”

See also Duncan v. Kent, supra.

An examination of Dempsey’s amended counterclaim, in view of the principles set out above, leads us to conclude that Mr. Dempsey has failed to state a claim for abuse of legal process. Viewing the counterclaim even in a light most favorable to Mr. Dempsey, we are convinced that he could prove no set of facts which would entitle him to relief under any of the three counts.

First, under Count One of the complaint concerning the action brought against Dempsey’s children, abuse of process will not lie because no result was obtained that is unlawful or improperly attainable under the law. The charges were dismissed, and the count does not aver that Dempsey was damaged in any way before the bringing of this action.

Second, it is clear that abuse of process will not lie for Count Two concerning the alleged charge against Dempsey’s wife made to the Board of Commissioners of Houston County, since no regular and valid process was issued against Mrs. Dempsey in that instance.

In Count Three, the fact that the civil suit instituted against Dempsey has not terminated will not bar Dempsey’s claim for abuse of process. See Tarver v. Household Finance Corp., 291 Ala. 25, 277 So.2d 330 (1973). However, the result of the suit alleged to have been intended and accomplished by Denman, i.e., the securing of a right of way, is precisely the result intended by the law to be effected by the process that is issued in such a suit. Abuse of process, therefore, cannot be under the facts alleged in Count Three of Dempsey’s counterclaim.

For the foregoing reasons, we find that the circuit court did not err in dismissing Dempsey’s amended counterclaim, and, thus, we affirm.

AFFIRMED.

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


author: JONES, Justice.

text:
    Marie BRADSHAW, etc. v. Louis G. SIMPSON, et al. (Two Cases) MARYLAND CASUALTY COMPANY v. BURLINGTON-NORTHERN RAILROAD, et al. STANDARD FIRE INSURANCE COMPANY, as Subrogee of MDR Cartage, Inc. v. BURLINGTON-NORTHERN RAILROAD COMPANY, et al. JACINTOPORT CORPORATION v. Marie BRADSHAW, as Administratrix of the Estate of Bobby T. Shackelford, deceased, Marie Bradshaw, as surviving dependent mother of Bobby T. Shackelford, deceased, individually and jointly.
    82-605, 82-729, 82-785, 82-791 and 82-909.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Joseph M. Brown, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellants/cross-appellees.
    Broox G. Holmes and Norman E. Wal-drop, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for ap-pellees Louis G. Simpson and Burlington Northern R. Co.
    Peter V. Sintz and Mary Beth Mantiply of Sintz, Pike, Campbell & Duke, Mobile, for appellee Jacintoport Corp.
   JONES, Justice.

These consolidated appeals stem from judgments rendered in jury trials for Defendants against Plaintiff on allegations of negligence on the part of the Defendants. Plaintiff appeals, claiming error in the trial court’s order granting Defendants’ motion for directed verdict on the wanton count. Defendant Jacintoport Corporation cross-appeals, alleging error on the part of the trial judge in refusing certain jury charges. We affirm as to each of the respective appeals and the cross appeal.

FACTS

On August 12,1981, at 11:05 in the morning, Bobby T. Shackelford, Plaintiffs intestate, was killed while operating a tractor/trailer truck along Jacintoport Boulevard, a four-lane paved road located in Mobile County, Alabama. Plaintiff’s intestate was struck by a train as he crossed the tracks at a point where Burlington-Northern’s track crosses Jacintoport Boulevard.

At the time of the accident, Burlington-Northern’s train was traveling in a northerly direction along its tracks, and the tractor/trailer truck driven by Plaintiff’s intestate was traveling in a westerly direction on Jacintoport Boulevard. Another set of railroad tracks owned by the Southern Railway Company runs parallel to and approximately 100 to 110 feet east of the Burlington-Northern crossing at Jacintoport Boulevard. Both tracks are straight and level. On the day of the accident, crossbuck railroad markers were in place on either side of both the Burlington-Northern crossing and the Southern Railway crossing.

Along the route traveled on the day of the accident, approaching the crossing in question from the east to the west along Jacintoport Boulevard, Shackelford passed five signs warning of the crossing before passing over Burlington-Northern’s track.

After passing the entrance to a facility on the right, Shackelford passed a black-on-yellow circular advance warning sign on the right side of the road approximately 270 feet east of the Burlington-Northern crossing, and 160 to 170 feet east of the Southern Railway crossing. This sign was set in place by the governmental authority having jurisdiction over this roadway.

Next, along this approach, is a white railroad warning painted on the roadway, beginning about 100 feet to the east of the Southern Railway crossing. This painted warning is about 30 feet from top to bottom and terminates at a point approximately 70 to 80 feet east of the Southern Railway crossing. This pavement marker was also applied by the governmental authority having jurisdiction over the streets in the area in question.

Shackelford then passed a third sign (sometimes called the “Jacintoport sign”), which warns, “Caution — 2 Track Railroad Crossing,” and which has two four-inch yellow lights above the message. The lights have never been equipped with power, and thus were inoperative on the day of the accident. This sign is on a tall pole that is topped off with a black-on-white railroad-style crossbuck and is 53 feet from the Southern Railway track, and 153 feet from the Burlington-Northern track.

After passing the Jacintoport sign, Mr. Shackelford then passed a crossbuck railroad sign situated immediately to the east of the Southern track; there he came to a complete stop. Passing over the Southern track and continuing to the Burlington-Northern crossing, where the accident occurred, he passed another crossbuck railroad sign immediately to the east of the Burlington-Northern crossing. At this time, Shackelford was traveling at a rate of 5-10 miles per hour. He did not stop at the Burlington-Northern track, but drove onto the Burlington-Northern track. At the point when the front of his truck was over the track, the impact took place.

The train involved in the accident was made up of 33 cars pulled by three locomotives. It was a little more than half a mile long. The lead locomotive was 15 feet high, 10 feet wide, and 50 feet long. It was painted orange and white. Two lights on the front of the locomotive were working at the time of the accident, and were visible during the daylight hours. The truck and trailer driven by Shackelford was 54 feet long. The truck had a flush-front cab.

Louis Simpson, the engineer of the train, stated that, in accordance with normal procedure, he began sounding the whistle and bell a quarter of a mile from the crossing and continued sounding the whistle and bell until the collision occurred. Several other witnesses confirmed that the whistle was sounded before the accident, but Plaintiff presented witnesses who said that the whistle had not been sounded prior to the collision.

As the train approached the crossing, Simpson testified, he was not aware of Shackelford’s approach to the track until he saw the front of the truck projecting over the track. At this time, Simpson was keeping a lookout on the left, or west, side of the cab. Simpson said he continued sounding the bell and whistle as he reached to apply the emergency brake, but found that the brake had already been applied by the brakeman, Walter Beard.

Beard was keeping a lookout on the right, or east, side of the cab as the train approached the crossing. Beard testified he first saw the truck when the train was 400-500 feet from the crossing, as the truck was “slowly” crossing the Southern Railway track and proceeding toward Burlington-Northern’s track. Beard said he thought the truck was going to stop and was “surprised” when he realized the truck was not going to stop, and that immediately upon this realization he applied the emergency brake.

The testimony at trial conflicted as to the speed of the train as it approached the intersection in question. Defendants contended the train was going 35 miles per hour and supported this testimony by introducing the recording of a “tachygraph” device, which recorded the speed of the train on the morning of the accident. Plaintiff’s eye witnesses testified the train was going about 50-55 miles per hour. No speed limit is set by governmental authority, but Burlington-Northern had imposed a speed limit of 40 miles per hour on this track due to “track conditions.”

At the close of all the evidence, the trial court directed a verdict in favor of Defendants on Plaintiff’s wantonness count, and submitted the case to the jury solely on the negligence question. A general verdict was returned in favor of all Defendants. Motions for new trial were subsequently denied. These appeals followed.

ISSUES

Plaintiff’s action for negligence and wantonness against Defendants was based on the following allegations: 1) That the whistle on the train never sounded before the collision; 2) that the “whistle board” notifying the engineer and/or the brakeman to sound the whistle (one-fourth mile from the crossing) was not in place on the day of the accident and consequently would not alert the engineer at what point to begin sounding the whistle; 3) that the train was exceeding a company-imposed speed limit of 40 miles per hour; 4) that the railroad should have issued a “slow order” for the crossing due to the outage of the lights on the Jacintoport sign; 5) that the lights on the Jacintoport sign were inoperative; 6) that visibility to the right and the left of the crossing was poor due to the heavy brush; 7) that Jacintoport undertook to erect a sign which would warn of an approaching train and had failed to complete the project, thereby misleading the public into believing that when the lights were not flashing, a train was not approaching; and 8) that Jacintoport had notice and knowledge of the dangerous conditions present at the crossing.

DECISION

Plaintiff argues that at least a scintilla of evidence existed supporting wantonness and that the wanton count therefore should have been decided by the jury. Plaintiff, in her brief, submits that the key inquiry in determining the existence of wantonness lies in

“a determination of whether the trainmen were conscious of conditions and probable injury. Whether this consciousness comes from the populous and well-traveled nature of a particular crossing ... or from other facts and circumstances, such as the Burlington-Northern’s knowledge in this case of a previous accident and of the fact that nonstandard, non-functioning signals were in place apparently guarding the particular crossing, would again be evidence from which the jury could determine that the railroad ... was conscious of conditions and probable injury to people and motorists traveling in and about the particular crossing.”

Plaintiff cites a string of cases wherein the various courts allowed evidence of excessive speed to support a claim for wantonness. See, e.g., Glass v. Seaboard Coastline R., 457 F.2d 1387 (5th Cir.1972); Southern Ry. Co. v. Diffley, 228 Ala. 490, 153 So. 746 (1934); Nashville, C. and St. L. Ry. v. Prince, 212 Ala. 499, 103 So. 463 (1925); Northern Alabama Ry. Co. v. McGough, 209 Ala. 435, 96 So. 569 (1923); and Louisville & N.R. Co. v. Rush, 22 Ala.App. 195, 114 So. 21 (1927). These cases, however, deal with “populous crossings,” an issue not addressed at trial, and embraced by Plaintiff only on appeal. No evidence was elicited at trial to support Plaintiffs assertion of the existence of a populous crossing. In fact, only one facility is served by Jacintoport Boulevard, that being the facility Shackelford visited on the day of his death. Speed of the train alone, under these conditions, did not create a scintilla of evidence supportive of a factual finding of wantonness. Northern Ala. Ry. Co. v. McGough, supra.

Moreover, the “prior accident” to which Plaintiff refers did not occur at the crossing here in question; rather, it occurred at the Southern Railway Company’s crossing to the east of Burlington-Northern’s crossing some ten months prior to the accident involved in this case. Plaintiffs counsel made no effort at the trial of this case to show that the “prior accident” occurred under the same or similar circumstances, and the trial court correctly refused to allow any of the evidence of the other accident to be in any way considered by the jury as applicable to Burlington-Northern and its engineer. In fact, Plaintiff expressly stated that evidence of the “prior accident” at the Southern Railway Company crossing was not offered against Burlington-Northern and Simpson, but only against Jacintoport. Furthermore, no evidence was offered at trial as against Burlington-Northern or its engineer that would suggest in any way that these parties knew of the prior unrelated accident.

Plaintiff also alleges wantonness on the part of the railroad in the inspection of the crossing. In support of this proposition, Plaintiff cites Western Ry. v. Still, 352 So.2d 1092 (Ala.1977). We find that case inapplicable to the facts in the case at bar. In Still, this Court affirmed a verdict for plaintiff due to improper maintenance of the crossing itself because the grade of the crossing was higher than the grade of the road, causing plaintiff to skid into an embankment. Here, however, plaintiff does not allege wantonness in the maintenance of the crossing itself, but in the inspection of the Jacintoport sign, which was not on the railroad right-of-way, but on Alabama Power Company’s right-of-way. No evidence was produced at trial that the railroad knew of the existence of the sign, or that the railroad knew it had never been equipped with power. Under these circumstances, the law will not impute such knowledge to the railroad; and, therefore, we must agree with the trial court’s grant of the railroad’s motion for directed verdict. See Stallworth v. Illinois Central Gulf R., 690 F.2d 858 (11th Cir.1982).

Likewise, we find no evidence of wanton conduct on the part of Jacintoport Corporation. Jacintoport did indeed erect a sign and fail to supply it with power. This sign, however, was not intended to operate as a warning of an approaching train; that is to say, it was not equipped with any device connected to the tracks. It was, instead, a “passive” warning signal that merely warned of tracks ahead, not of an approaching train.

Plaintiff attempts to causally connect the existence of this sign with Shackelford’s death. The uncontradicted facts do not bear this out. Shackelford passed two standard railroad warning signs on Jacinto-port Boulevard prior to the Jacintoport sign. He then proceeded 53 feet further, past another standard railroad warning sign, up to the Southern Railroad tracks and came to a complete stop. He then proceeded another 100 feet at a rate of 5-10 miles per hour and drove onto the Burlington-Northern tracks without stopping. Although we cannot, and will not, engage in speculative thoughts as to what the deceased was thinking while driving onto the Burlington-Northern track, we cannot find from the evidence before us, that he relied on the Jacintoport sign situated 53 feet in front of the first track to indicate that no train was approaching on the second track. Rather, we could conceivably find that he relied, mistakenly, on the sign, and proceeded through the Southern crossing, except that the evidence is uncontroverted that he came to a complete stop at that track.

We fail to find the requisite scintilla of wanton conduct on the part of any of the Defendants. The judgment of the trial court, therefore, is due to be, and it hereby is, affirmed. Because we affirm the trial court’s judgment, we need not address the issues raised in Jacintoport’s cross-appeal.

AFFIRMED.

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

      . Due to the complexity of these appeals, we refer to Marie Bradshaw as the Plaintiff/Appellant in the singular. It should be noted, however, that consolidated with Ms. Bradshaw's appeal are the appeals taken by the Intervenor Maryland Casualty Company and by Defendant Standard Fire Insurance Company. Both counsel for Maryland Casualty and for Standard Fire rely on the briefs and oral argument of Ms. Bradshaw’s counsel in pursuing their respective appeals, and, therefore, are bound by this opinion.


author: MADDOX, Justice.

text:
    GULF SHORES, LTD., Paul L. Smith and Smitty Realty, Inc. v. Milta J. POWRZANOS & Linda Powrzanos.
    82-712.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Charles S. Street, Mobile, for appellants.
    Allan R. Chason of Chason & Chason, Bay Minette, for appellees.
   MADDOX, Justice.

This is a case involving a sale of land. The trial court, hearing the evidence without a jury, found for the plaintiffs and against the defendants, ordered rescission of the sale and refund of the money paid the grantor, and made an award of punitive damages. We affirm.

Gulf Shores, Ltd. is an Alabama limited partnership which owns land in Baldwin County. Smitty Realty, Inc. is an Alabama corporation with its principal place of business in Mobile County, and is engaged in the sale of real estate. Paul L. Smith (hereinafter Smith) is the sole general partner of Gulf Shores, Ltd., the sole stockholder and president of Smitty Realty, Inc., and a licensed real estate broker in Alabama.

Smith purchased the property, of which the disputed sale comprised a small portion, in 1977. After completion of surveys, consultation with a local engineering firm, construction of unpaved roads and drainage ditches, and selling several lots, Smith conveyed the property herein to the plaintiffs. The consultation with the engineering firm involved, among other questions, possible difficulties in parcels of property having suitable sites for septic tank installation [percolation (“perc”) characteristics of the soil and the depth of the water table]. The engineer testified that he had advised Smith on state health regulations and on possible problems he could anticipate with the percolation properties of the soil, and of the depth of the water table. The engineer testified that this advice was given before the date of the sale to the plaintiffs.

After seeing advertisements placed by Smith, the plaintiffs, who were residing in Birmingham, and who had very limited experience in the purchase of property, arranged to meet with Smith in Gulf Shores to inspect the property. During the inspection, the plaintiffs asked Smith if the property would “perc.” There was evidence that Smith replied that he did not know whether the soil would “perc,” but that if it did not, it could be made to “perc” by moving soil from one part of the lot and using it as fill, which would have supposedly caused the water table to be further from the surface of the soil.

On May 13, 1979, the plaintiffs made an offer of $10,500 for a three-acre parcel of property, and subsequently the sale was closed and the deed delivered. The sales contract had no clause regarding the suitability of the soil for a septic tank. The plaintiffs paid $2,500 down and agreed to pay $106.67 a month. Plaintiffs made payments until March or April of 1982. In September of 1981, the plaintiffs had an engineering firm (the same firm which had worked for Smith) conduct an on-site inspection of the property in order to place a septic tank before moving a mobile home the plaintiffs had recently purchased onto the property. The engineer reported on September 10, 1981, that the

“... property was covered with water. Present Health Department regulations require that land be 5' (five feet) to water to install a septic tank and a minimum of 2' (two feet) to water before filling. Under these regulations, you will be unable to fill your lot or install any type of septic tank system. The type soil on your property is Rains type soil. Rains is very wet soil year around and is not suitable for septic tank systems.”

The plaintiffs then contacted an attorney, who wrote Smith, asking that the sale be rescinded and the plaintiffs be refunded all money paid. Smith refused and the plaintiffs filed suit on March 29, 1982. The complaint had three counts: one for fraud and misrepresentation, one for material mistake or unilateral mistake on the part of the plaintiffs and inequitable conduct on the part of the defendants, and one for violation of Code 1975, § 22-27-7 (1981 Cum.Supp.), and regulations promulgated by the Alabama State Board of Health.

On January 24, 1983, the trial court entered a final judgment in favor of the plaintiffs and against Paul R. Smith, Gulf Shores, Ltd., and Smitty Realty, Inc. for $10,500, cancelled the promissory note, and directed the plaintiffs to execute a warranty deed to Gulf Shores, Ltd. for the property in dispute. The court withheld ruling on the remaining issues involved in the suit.

I

The first issue is the standard of review we should apply. The seller argues the evidence before the trial court was not in dispute, and therefore, that the ore ten-us rule would not apply and we should sit in judgment de novo. Samford v. First Alabama Bank of Montgomery, 431 So.2d 146 (Ala.1983). We have reviewed the record of the evidence before the trial court, however, and have determined that the evidence was in dispute as to issues before the court on fraud, misrepresentation, and mistake. The evidence was particularly disputed whether Smith was aware, or should have been aware, that the land might not be suitable for septic tank placement before the sale of the disputed property to the plaintiffs. Where the evidence is in dispute, and the trial court has heard the testimony without a jury, there is a presumption of correctness attached to its findings and they will not be disturbed unless they are without supporting evidence, or are palpably wrong or manifestly unjust. Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982).

The sellers make four arguments, of which three relate to the weight and sufficiency of the evidence. The arguments as to fraud and punitive damages will be addressed first.

II

The appellants’ first two arguments will be addressed together as they are inextricably intertwined. The appellants argue the evidence did not support a finding they were guilty of fraud nor was the evidence sufficient for an imposition of punitive damages authorized by Code 1975, § 6-5-101. There is no dispute between the parties that the trial court’s order included an award of punitive damages. Section 6-5-101 states:

“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.”

Here, we are concerned with “misrepresentations ... made willfully ... or recklessly without knowledge.” Our cases consistently hold that punitive damages may be recovered in an action of fraudulent misrepresentation if the misrepresentation is gross, malicious or oppressive, and is made with knowledge of its falseness, or so recklessly made as to amount to the same thing and is made with the purpose of injuring the plaintiff. Hall Motor Co. v. Furman, supra; Continental Volkswagen v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975); Randell v. Banzhoff, 375 So.2d 445 (Ala.1980).

After a review of the record, we hold that there was sufficient evidence before the trial court to justify an award of punitive damages. An award of punitive damages in this type case is largely discretionary with the factfinder, in this case, the court. Randell v. Banzhoff, supra. Applying the rule of law to the facts here, we cannot say the trial court abused its discretion in the award of punitive damages in this case.

Ill

The appellants’ third and fourth contentions are that failure on the part of the defendants to comply with the requirements of a State Board of Health regulation does not render sales of land invalid and the evidence did not support a finding of material mistake justifying a rescission of the sale.

The trial judge entered a general verdict in this case, and made no indication as to which of the particular counts of the complaint he based his decision on. We have already determined the trial court could have rendered the judgment on either of the other two theories of the complaint; therefore, even though we cannot determine on what ground or theory the judgment was rendered, the finding of the trier of fact could have been referred to either theory because each was supported by the evidence. See Columbia Motors v. Williams, 209 Ala. 640, 96 So. 900 (1923). Moreover, under the ore tenus rule, the judgment of the trial court will not be reversed or disturbed on appeal unless it is without supporting evidence, is palpably wrong or is manifestly unjust. Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982); Holley, supra.

For the foregoing reasons, we must affirm.

AFFIRMED.

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


text:
    Ruth L. RIVERS v. OAKWOOD COLLEGE, et al.
    82-783.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Kenneth L. Thomas of Massey, Means & Thomas, Montgomery, for appellant.
    Edward L. Hopper, Huntsville, for appel-lees.
   FAULKNER, Justice.

This is an appeal from a declaratory judgment in an action filed by Mrs. Ruth Rivers in the Circuit Court of Madison County against Oakwood College, Huntsville, Alabama, and certain officials of the college. We reverse.

Mrs. Ruth L. Rivers was employed as a full-time instructor by Oakwood College for four consecutive school years, namely, the 1978-79, 1979-80, 1980-81, and 1981-82 school years. For each of these school years, Mrs. Rivers signed a “Notice of Employment” which served as her employment contract with Oakwood.

This controversy concerns Mrs. Rivers’s employment contract for the 1981-82 school year. On June 8, 1981, Mrs. Rivers and Mr. C.B. Brock, president of Oakwood, signed a “Notice of Employment” for the 1981-82 school year. This particular “Notice of Employment” provided 'that Mrs. Rivers would be employed from “8/10/81 to 6/11/82,” as a full-time instructor with a prescribed rate of pay. Under the “Remarks” section of this contract, however, it stated:

“95% Salary Plan — 12 monthly pay periods starting July 1, 1980 to June 30, 1981.”

The record indicates that the dates stated under the “Remarks” section were incorrect, as the result of a clerical error, and the correct dates should have been “July 1, 1981 to June 30, 1982.” The business office, which was in charge of drawing up the employment contracts, was responsible for the error.

Just after Mrs. Rivers’s contract was signed, Maxine Logan, the president’s secretary, noticed the error, and alerted Mr. Brock. They agreed that a revised contract should be drawn up, and Mrs. Logan instructed the business office accordingly.

A representative of the president’s office then called Mrs. Rivers and informed her that there was an error in the contract that she had signed on June 8, 1981, and that she should come in and sign a revised contract. The date of this call is in dispute, but it is clear that Mrs. Rivers came in and signed the revised contract on June 29, 1981. It should be noted that both versions of the 1981-82 contract stated that “This Notice of Employment is void if not signed and returned by June 19, 1981.”

Mrs. Rivers proceeded to work as a full-time instructor at Oakwood College for the 1981-82 school year and was paid the salary prescribed in both versions of her 1981-82 contract. By letter dated December 2, 1981, Mr. Brock informed Mrs. Rivers that she would not be rehired for the 1982-83 school year.

The record indicates that during the 1981-82 school year, Oakwood College had in effect certain policies and guidelines which the college was obliged to follow in dealing with faculty members. These guidelines and policies are outlined in its handbook entitled General Policies and Benefits for Full-Time Faculty Employees, 1980 Edition. This handbook provides, under “SEPARATION OF A TEACHER NOT ON CONTINUOUS APPOINTMENT,” in pertinent part:

“Notice of nonreappointment, or of intention not to recommend reappointment to the governing board, should be given in writing in accordance with the following standards:
“3. At least twelve months before the expiration of an appointment after two or more years in the institution.”

On October 6,1982, Mrs. Rivers filed suit against Oakwood College, et al. In her complaint, Mrs. Rivers sought a judgment declaring that the defendants had violated the above-stated provisions of Oakwood’s General Policies and Benefits for Full-Time Faculty Employees by failing to give her timely notice of nonreappointment. Mrs. Rivers also asked the court to declare that Oakwood had breached its contract of employment with her and to enter mandatory preliminary, and permanent injunctions requiring defendants to reinstate Rivers as a full-time business education instructor with all back pay, allowances, seniority, tenure status, and retirement benefits to which she would have been entitled had she been rehired for the 1982-83 school year.

Following denial of defendants’ motion to dismiss, denial of each party’s motion for summary judgment, and trial of the case ore tenus, the trial judge entered an order declaring:

“... that Ruth Rivers was, following June 19, 1981, an employee at will of the college, and thus she was not the beneficiary of the policies and procedures accorded those employees teaching under contract with the school.”

Accordingly, the trial court denied Mrs. Rivers’s prayer for relief, whereupon Mrs. Rivers filed her notice of appeal to this court.

Mrs. Rivers’s basic argument on appeal is that the trial court erred in its finding that she was an employee at will of the college for the 1981-82 academic year due to the fact that she failed to sign her revised “Notice of Employment” on or before June 19, 1981. We agree that the trial court erred.

The trial court determined that the original “Notice of Employment” was an offer to contract made by Oakwood College, and that the discrepancy in the dates contained therein caused that offer to be ambiguous, so that when Mrs. Rivers signed the offer on June 8, 1981, there was no meeting of the minds between Mrs. Rivers and Oak-wood, and thus, no contract. This finding, unfortunately, fails to recognize certain basic principles of contract law.

Initially, the fact that an ambiguity existed in the language of the offer does not necessarily mean that the contract was void. It is a general rule that when parties reduce an agreement to writing, the writing is the sole expositor of the transaction and intention of the parties. Massey v. Educators Investment Corp. of Alabama, Inc., 420 So.2d 77 (Ala.1982). However, once the court determines that an instrument is ambiguous or uncertain in any respect, it becomes a question for the fact-finder to determine the true meaning of the contract. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666 (Ala.1981). Furthermore, surrounding circumstances, including the construction placed on the language by the parties, is to be taken into consideration in order to ascertain and carry out the intention of the parties. See Carmichael, supra; City of Montgomery v. Maull, 344 So.2d 492 (Ala.1977). Also, it is axiomatic that ambiguities should be interpreted most strongly against the party drawing the contract. Lilley v. Gonzales, 417 So.2d 161 (Ala.1982); United States Fidelity & Guaranty Corp. v. Elba Wood Products, Inc., 337 So.2d 1305 (Ala.1976).

Drawing upon the principles stated above, we think it obvious that the “Notice of Employment” signed by Mrs. Rivers on June 8, 1981, was a valid contract. Although there was an ambiguity in the dates listed under the “Remarks” section, the surrounding circumstances sufficiently indicate the true intention of the parties in that regard. The correct dates were stated in the “Employment Date” section of the contract and the dates listed under the “Remarks” section had already passed. Also, Oakwood College, the party who drew up the contract, had no policy of offering employment contracts for previous academic years.

A review of the record in this case leads us to the inescapable conclusion that the parties to the “Notice of Employment” signed on June 8, 1981, intended to and did make a contract upon the terms as set out in the revised version of the “Notice of Employment” signed by Mrs. Rivers on June 29, 1981. This second “Notice of Employment” merely served to resolve an ambiguity, i.e., to correct a clerical or typographical error, in the contract that existed between the parties. This court finds that Mrs. Rivers had a valid employment contract with Oakwood College for the 1981-82 academic year as of June 8, 1981. Therefore, she was entitled to a year’s notice before the college could refuse to reappoint her.

Accordingly, the decision of the trial court is due to be, and is, hereby, reversed, and the case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ALMON, EMBRY and ADAMS, JJ., concur.

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


author: PER CURIAM.

text:
    William Charles CRANDALL v. CITY OF BIRMINGHAM.
    82-867.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    John H. Lavette and Gene W. Gray, Jr. Birmingham, for appellant.

      Herbert Jenkins, Jr., Asst. City Atty., Birmingham, for appellee.
   PER CURIAM.

Crandall, the plaintiff below, appeals from the trial court’s order dismissing his claim for damages for assault and battery and negligence against the City of Birmingham. The City’s motion to dismiss, which was treated as a motion for summary judgment, was granted on the grounds that Crandall failed to file a notice of claim with the city clerk within the ninety-day period prescribed by Title 62, § 659, of the Alabama Code of 1940 (Recompiled 1958), as preserved by § 1-1-10 of the 1975 Code. It is undisputed that Crandall filed the notice more than ninety days, but less than six months, after the date of the incident.

Crandall challenges the constitutionality of Title 62, § 659, claiming it is unconstitutional under Art. IV, § 105, of the Alabama Constitution of 1901, and the equal protection clause of the Fourteenth Amendment of the United States Constitution.

The statute, in full, states:

“§ 659. Claims for personal injury and property damage filed within ninety days. — No suit shall be brought or maintained nor shall any recovery be had against the city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides. (1915, p. 294.)”

As originally enacted, Act No. 257, Acts of Alabama, Regular Session 1915, which included the above section, applied to “cities which now have or which may hereafter have a population of as much as one hundred thousand, people.” With the adoption of the 1940 Code, the population classification was eliminated, and the act was specifically limited in application to the City of Birmingham. Ala.Code 1940, Title 62, § 1 (Recompiled 1958). The legislature did not adopt the local acts present in the 1940 Code when it enacted the 1975 Code. Today, Title 62, § 659, continues to apply only to the City of Birmingham. In all other municipalities, the limitation period for the presentation of claims against the municipality is six months from the date of the incident. Ala.Code 1975, § 11-47-23.

Crandall contends that § 659 is unconstitutional because it is an unequal application of the law. The test to determine whether a statute exists in violation of the equal protection clause has been stated by Mr. Justice Rehnquist in Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 70-71, 99 S.Ct. 383, 390, 58 L.Ed.2d 292 (1978):

“ ‘The Fourteenth Amendment does not prohibit legislation merely because it is special or limited in its application to a particular geographical or political subdivision of the state.’ Fort Smith Light Co. v. Paving List., 274 U.S. 387, 391 [47 S.Ct. 595, 597, 71 L.Ed. 1112] (1927). Rather the Equal Protection Clause is offended only if the statute’s classification ‘rests on grounds wholly irrelevant to the achievement of the State’s objective.’ McGowan v. Maryland, 366 U.S. 420, 425 [81 S.Ct. 1101, 1104, 6 L.Ed.2d 393] (1961); Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552, 556 [67 S.Ct. 910, 912, 91 L.Ed. 1093] (1947).”

The purpose of § 659 is “to provide sufficient notice so that the City has an opportunity to investigate the claim, prepare its defense or negotiate a settlement.” Brasher v. City of Birmingham, 341 So.2d 137, 138 (Ala.1976). Crandall argues that Birmingham’s shorter filing period does not further the achievement of this purpose. On the other hand, the City argues that the shorter filing period is necessary because it receives a larger number of claims than any other municipality by virtue of being the largest city in the state and the destination of great numbers of visitors. The City also argues that it has “a greater need for prompt filing of claims due to the faster mobility of witnesses, parties and employee turnover.” We cannot agree.

We can discern no set of facts within reason which can justify the distinction between Birmingham and all other municipalities in this state. We take judicial notice of the fact that Birmingham is the largest city in the state, exceeding Mobile, the next largest city, by 84,000 people. 1980 Census, 3rd count. However, we see no connection between the size of a municipality and the need to receive a notice of claim within ninety days instead of six months. Crandall points out, and correctly so, that Birmingham has the same characteristics as all the other major Alabama cities. There are major interstate highways, miles of streets and roads maintained by the municipality, major attractions, and interstate, intrastate, and international industries requiring vast numbers of employees and large networks of transportation in each of Alabama’s large cities.

In this case, Crandall was barred from pursuing his claim because he failed to file his notice within ninety days. Yet, if his claim had been against any other Alabama city, it would have been timely filed because notice was given within six months of the incident. Ala.Code 1975, § 11-47-23. The capriciousness of § 659 is especially evident here because the City, in anticipation of litigation, did investigate fully the claim almost immediately after the incident. The City’s contention that it needs to receive notice within ninety days in order to conduct an adequate investigation cannot stand under these facts. Section 659 denies equal protection of the laws of this state and the United States Constitution to persons injured by the fault of the City of Birmingham. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978).

Crandall also alleges that § 659 violates the provisions of Art. IV, § 105, of the Alabama Constitution of 1901, which states:

“[N]o ... local law ... shall be enacted in any case which is provided for by a general law, ... nor shall the legislature indirectly enact any ... local law by the partial repeal of a general law.”

He relies on Peddycoart v. City of Birmingham, supra, a case in which this Court struck down as unconstitutional Title 62, § 660 (Recompiled 1958), originating in the same act as Title 62, § 659, i.e., Act No. 257, Acts of Alabama, Regular Session 1915. This Court held that § 660 violated equal protection principles and that it was a local law, passed and continuing in existence in violation of Art. IV, § 105, of the Alabama Constitution. Section 660 granted governmental immunity to the City of Birmingham in direct contravention of already existing Title 37, § 507 [now §§ 11-47-190, -192 (1975) ], a general law on the same subject. The Court’s interpretation of § 105 was as follows:

“We do not look upon the presence of a general law upon a given subject as a bare segment, but to the contrary, its presence is primary, and means that a local law cannot be passed upon that subject....
“... [Ojur Constitution authorizes local legislation, and sets out a procedure for its enactment. Under that authorization local legislation reflecting responses to local needs may be enacted. It is only when those local needs already have been responded to by general legislation that § 105 of our state Constitution prohibits special treatment by local law.” [Emphasis in original.]

354 So.2d at 813-815.

Art. IV, § 110, of the Alabama Constitution defines a “local law” as “a law which applies to any political subdivision or subdivisions of the state less than the whole.” Amendments 375 and 397, amending § 110 and containing the redefinition of a local law, were not in effect at the time Act No. 257, containing the provisions included in § 659, was passed and are, therefore, not applicable. Jefferson County v. Braswell, 407 So.2d 115 (Ala.1981). We hold that § 659 is a local act, as defined by § 110 of the Constitution.

We agree with Crandall’s argument quoted here from his brief:

“At the time of the passage of Act 257, § 12 [now Title 62, § 659 (Recompiled 1958)], §§ 1191 and 1275, Code of Alabama 1907 (carried forward to date as §§ 11-47-23 and -192, Code of Alabama 1975) already existed and addressed the same subject matter for all Alabama municipalities as follows:

“§ 11-47-23. Limitation periods for presentation of claims against municipalities.
“ ‘All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred. (Code 1907, 1191; Code 1923, 1907; Code 1940, T. 37, 476.)
“The only substantive difference between Title 62, § 659 and §§ 11-47-23 and -192 is the time allowed for presentment of a claim....
“The enactment of Act 257, § 12 (now Title 62, § 659), in variance of existing §§ 1191 and 1275 (now §§ 11-47-23 and -192) and the continued existence of this local variance is in violation of Section 105, Alabama Constitution of 1901.”

We are unable to distinguish this case from Peddycoart v. City of Birmingham, and, had the constitutionality of § 659 been an issue before this Court at the time of that decision, it would have been struck down on the same grounds as § 660.

We hold that § 659, a local law, is unconstitutional under Art. IV, § 105, of the Constitution because it was enacted at variance with an already existing general law on the same subject.

The trial judge erred in granting the City’s motion to dismiss on the grounds that Crandall failed to timely file his notice of claim pursuant to § 659. Accordingly, we reverse the judgment and remand the cause for a trial on the merits, as the notice was filed well within the limits mandated by § 11-47-23, Ala.Code 1975.

REVERSED AND REMANDED.

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


author: TORBERT, Chief Justice.

text:
    Gwenetta L. GARVIN v. V.A. SHEWBART, et al.
    82-898.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Allen Edward Cook, Andalusia, for appellant.
    A. Neil Hudgens and Michael S. McGlo-thren of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   TORBERT, Chief Justice.

Plaintiff appeals from the trial court’s dismissal of her amended complaint. Plaintiff filed the complaint in the Circuit Court of Covington County, alleging that the conduct of the defendants, V.A. Shewbart (Shewbart), CNA Insurance Companies (CNA), Jr. Food Stores of West Florida, Inc., (Jr. Food), and other fictitious defendants, in failing to pay certain medical expenses she incurred arising from an on-the-job injury, was outrageous, in bad faith, done with a bad faith failure to determine the validity of her claim and was a tortious violation of duty. The trial court granted defendants’ motion to dismiss the amended complaint.

On June 18, 1981, plaintiff, Gwenetta Garvin, was injured while working for Jr. Food. Mrs. Garvin subsequently received medical treatment, including two operations on her back. She duly reported the injury to her employer, Jr. Food, and the employer turned the matter over to its workmen’s compensation carrier, CNA. Mr. Shewbart, an employee of CNA, handled Mrs. Garvin’s claim. Initially CNA paid all the medical bills and provided a compensation award based on Mrs. Gar-vin’s temporary total disability.

In 1982, CNA began to refuse to pay certain medical bills. Mrs. Garvin contacted Shewbart, who requested that she supply him with copies of the unpaid bills. She did so, but the bills still were not paid. Subsequent attempts to contact Shewbart were unsuccessful. During this period some medical expenses, including the bills for the second back operation, were paid, and she continued to receive compensation benefit checks for her disability. Upon notification from Mrs. Garvin’s doctor that her condition had changed from temporary total to permanent partial disability, CNA stopped all benefit checks. Garvin filed a workmen’s compensation action and this separate tort action on the theories alleged, in the face of the exclusivity provisions of the Alabama Workmen’s Compensation Act (Act). This issue, exclusivity, was raised by the defendants in their briefs in support of the motion to dismiss, and was apparently the basis of the trial court’s order granting dismissal.

The exclusive remedy provision of the Workmen’s Compensation Act states:

“No employee of any employer subject to this article, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form or amount of compensation or damages for any injury or death occasioned by any accident proximately resulting from and while engaged in the actual performance of the duties of his employment and from a cause originating in such employment or determination thereof other than as provided in this article.”

Code 1975, § 25-5-52. The immunity from civil liability also extends to the “workmen’s compensation insurance carrier of such employer and to any officer, director, agent, servant or employee of such carrier....” Code 1975, § 25-5-53. This immunity from certain common law actions was granted by the legislature in return for the employee’s right to recover for work-related injuries under the Act without proof that the employer was negligent. Waldon v. Hartford Insurance Group, 435 So.2d 1271 (Ala.1983).

The statutory scheme is designed to provide certainty that those who are injured on the job are compensated, Alabama ByProducts Co. v. Landgraff 32 Ala.App. 343, 27 So.2d 209 (1946), by placing the financial burden on the employer. Ford v. Mitcham, 53 Ala.App. 102, 298 So.2d 34 (1974). The employer can shift this burden by contracting with a workmen’s compensation insurance carrier (carrier). The Act also creates an expedited scheme of recovery in case of disputed claims. Code 1975, § 25-5-88.

In Waldon v. Hartford Insurance Group, 435 So.2d 1271 (Ala.1983), we held that the employee’s actions against the employer or carrier for negligence or bad faith in processing or paying claims were barred under the exclusivity provisions. We did so because, essentially, the claim was based on the failure of the employer or of the carrier on the employer’s behalf to supply financial responsibility for the employee’s physical injury. In such a situation the Act provides a remedy in that the employee can file a workmen’s compensation action in circuit court. Code 1975, § 25-5-81. The Act contemplates that the circuit court will handle such an action in an expedited manner. Code 1975, § 25-5-88. Professor Larson points out another reason why we found that bad faith tort actions were barred by the exclusivity provisions:

“[I]t seems clear that a compensation claimant cannot transform a simple delay in payments into an actionable tort by merely invoking the magic words ‘fraudulent, deceitful and intentional’ or ‘intentional infliction of emotional distress’ in his complaint. The temptation to shatter the exclusiveness principle by reaching for the tort weapon whenever there is a delay in payments or a termination of treatment is all too obvious, and awareness of this possibility has undoubtedly been one reason for the reluctance of courts to recognize this tort except in cases of egregious cruelty or venality.”

2A A. Larson, Workmen’s Compensation Law § 68.34(d) (1982). We therefore hold that Mrs. Garvin’s bad faith tort claims were properly dismissed.

Mrs. Garvin also asks this Court to create a legal duty of good faith and fair dealing between the employee and the employer and/or the carrier. In order to create the tort of bad faith, we necessarily recognized the existence of a legal duty on the part of an insurer to deal with the insured in good faith. The breach of that duty gives rise to a tort action for bad faith. The bad faith action in the workmen’s compensation context, however, is barred under the exclusivity provision.

While we hold that plaintiff’s bad faith and tortious violation of duty actions were properly dismissed, we are not persuaded that the tort action based upon outrageous conduct was also properly dismissed. Admittedly, this Court does not have the authority to judicially engraft exceptions into the immunity provisions applicable to the employer, Clark v. Chrysler Corp., 342 So.2d 902 (Ala.1977), but neither should it expand the immunity into areas not covered by the Act. We have already held that certain suits against carriers are not barred by the exclusivity provisions. Fireman’s Fund Am. Ins. Co. v. Coleman, 394 So.2d 334 (Ala.1980).

The tort of outrageous conduct or intentional infliction of emotional distress involves “extreme and outrageous conduct” by one who “intentionally or recklessly causes severe emotional distress to another.” American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). Under our decisions the burden on the plaintiff to make out a case of outrageous conduct is heavy. Plaintiff must show that the conduct is so outrageous in character and so extreme in degree so as to be regarded as atrocious and utterly intolerable in a civilized society. Cates v. Taylor, 428 So.2d 637 (Ala.1983).

The Act is designed to compensate those who are injured on the job and provides immunity from common law suits for those employers and carriers who come within the Act. A suit seeking recovery under the tort of outrageous conduct does not seek compensation nor medical benefits for the original on-the-job injury. The connection with the physical injury that gave rise to the original workmen’s compensation claim is tenuous. The conduct giving rise to the tort of outrageous conduct in the context of this kind of case can be more accurately characterized as mental assault than as failure to pay compensation or medical benefits even though it may arise in a failure to pay context. Conduct constituting the tort of outrageous conduct cannot reasonably be considered to be within the scope of the Act. When the employer or carrier’s conduct crosses the line between mere failure to pay and intent to cause severe emotional distress, the cloak of immunity is removed.

For the foregoing reasons, we affirm the trial court’s dismissal of the bad faith and tortious violation of duty counts. While we make no finding as to whether these defendants’ conduct was sufficient to justify relief under a claim based upon the tort of outrageous conduct, we disagree with the trial court’s conclusion that such a claim was barred under the exclusivity provisions, and, therefore, we reverse the order dismissing the count based on that claim and remand the ease for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . While the Court in Waldon did not make reference to Code 1975, § 25-5-59, that section provides for a 10⅜ penalty where any installment of compensation is not paid without good cause within 30 days after it becomes due. Because of the wording in the definitional section, § 25-5-1(1), it is questionable whether § 25-5-59 applies to delay in payment of medical expenses. See Read News Agency, Inc. v. Moman, 383 So.2d 840 (Ala.Civ.App.1980), wherein the Court of Civil Appeals restricted the penalty, provision to unpaid installments of compensation for temporary total or temporary partial disability. We need not, and do not, comment upon this particular holding of the Moman decision.


author: SHORES, Justice.

text:
    Johnnie ALEXANDER, et al. v. The CALHOUN COUNTY COMMISSION, et al.
    82-941.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      George A. Monk of Merrill, Porch, Dost-er & Dillon, Anniston, for appellants.
    Herbert D. Jones, Jr. and H.R. Burnham of Burnham, Klinefelter, Halsey & Love, Anniston, for appellees.
   SHORES, Justice.

The plaintiffs, deputy sheriffs of Calhoun County, Alabama, appeal from the trial court’s denial of their petition for writ of mandamus and from a summary judgment granted in favor of the defendant Calhoun County Commission (Commission). We affirm.

On April 26, 1982, the Alabama Legislature passed Act No. 82-362 (Deputy Pay Raise Act), which provided for the minimum compensation of all deputy sheriffs in Calhoun County to be equal to that of a state trooper with equal time in grade. Section 5 of the act states:

“Section 5. This act shall become effective on October 1, 1982, provided a constitutional amendment authorizing the altering of court costs in Calhoun County is adopted prior thereto, effective and constitutional.” [Emphasis added.]

The constitutional amendment referred to in § 5 of the Deputy Pay Raise Act was proposed in the Legislature’s earlier passage of Act No. 82-171 on March 30, 1982.

An election was held on September 7, 1982, on the constitutional amendment proposed by Act No. 82-171. The proposed amendment appeared on the statewide ballot as follows:

“Proposed Amendment Number Two (2)

“Authorizes the county governing body of Calhoun County to fix, alter and regulate the costs and charges of courts in the county and the method of disbursement thereof upon approval by a majority of the voters of the county in an election called for that purpose. However, if a majority of the voters of Calhoun County participating in this election vote in favor of this proposed amendment no further election need be held. (Proposed by Act Number 82-171).”

The proposed amendment was approved by a majority of the qualified electors throughout the state voting on the amendment, but was defeated by the voters in Calhoun County. On September 22, 1982, the Governor proclaimed the results of the September 7, 1982, election, showing Proposed Amendment Number Two as having passed.

The Calhoun County deputies subsequently made demand upon the Commission for increased payment of wages and compensation in accordance with the provisions of Act No. 82-362. The Commission refused, claiming that the deputies were not entitled to a raise since the amendment was not approved by a majority of voters in Calhoun County. Specifically, the Commission contended that, since Proposed Amendment Number Two was defeated by the voters of Calhoun County, neither the amendment nor Act No. 82-362 had become “effective”; and, therefore, that the Commission lacked the authority to raise the additional revenue necessary to fund the deputies’ pay raise.

The Attorney General, in response to a request for an opinion by the Sheriff pf Calhoun County, advised that the constitutional amendment proposed by Act No. 82-171 “became effective when it was ratified by the majority of the voters in the State although it was not ratified by a majority of the voters in Calhoun County.”

The Attorney General’s opinion also said:

“The election called for in the latter part of the ... proposed amendment is to be held for the voters of Calhoun County to give their approval to a change in the altering of the court costs of the county and the method of disbursing these costs. The provision further states that if a majority of the electors in the county who voted on the adoption of the amendment did in fact approve the Amendment, it is not necessary to hold the second election. However, as it has been stated, since the Amendment did not receive a favorable vote in Calhoun County another election must be held before the court costs can be altered.”

The Attorney General, however, went on to say that Act No. 82-362 mandated that the deputy pay raise go into effect upon passage of the constitutional amendment by a majority of the voters statewide, notwithstanding its failure to win approval in Calhoun County.

The deputies thereupon petitioned the Circuit Court of Calhoun County for a writ of mandamus, directing the County Commission to pay the deputies in accordance with Act No. 82-362. It is undisputed that the deputies have received no compensation under the provisions of Act No. 82-362. It is also undisputed that no election has been held in Calhoun County authorizing the County Commission to fix court costs per the constitutional amendment.

The trial court, in its judgment and order, found the question for its determination to be what the Legislature meant when it conditioned the pay raise on the amendment being adopted and effective. The court denied the deputies’ petition and granted summary judgment in favor of the Commission, stating:

“The Court is clear in its conclusion that the Legislature intended these two pieces of legislation to be tied together. Act Number 82-362 specifically refers to the adoption of an amendment such as that proposed by Act Number 82-171. The amendment is plainly designed to give the Commission a source of revenue to pay for the salary increases.
“The word ‘adopted’ has an understood meaning. It clearly is a requirement that the proposed amendment be approved by the voters of the state. It is equally clear that the amendment, even if adopted does not thereby automatically authorize the County Commission to raise the court costs to pay for the raise. Such an adjustment may only be made after it has been approved by the voters of Calhoun County.
“The question, again, is whether the Legislature intended ‘effective’ to mean that the County Commission must be authorized to fix court costs before the pay raise goes into effect. The Court concludes that it did.
“If the Legislature intended ‘effective’ to mean no more than approval by a majority of the voters in the state, the word would be redundant. To use both ‘adopted’ and ‘effective’ to mean the same thing would frustrate the plain meaning of the two Acts. The Court concludes that by inserting ‘effective’ as a precondition to the raise the Legislature intended that the electors of the County must give the County Commission the power to raise court costs before Act Number 82-362 becomes effective.”

We affirm.

Appellants argue that the language of the Deputy Pay Raise Act is clear, plain, and unambiguous and, therefore, does not require judicial construction. The deputies contend that, the language being unambiguous, the trial court erred by interpreting the term “effective” in a manner contrary to the legislative intent behind Act No. 82-362. We do not agree that the trial court’s judgment conflicts with legislative intent.

The trial court correctly observed that the pay raise bill and the amendment proposed by Act No. 82-171 must be read together. The pay raise approved by the Legislature is clearly contingent upon the adoption of a constitutional amendment authorizing the Commission to raise its court costs and, thus, provide the additional revenue necessary to fund the deputies’ pay raise. The deputies do not dispute the Commission’s assertion that the estimated annual cost of the pay raise is $218,532.00, an amount unavailable to the Commission without additional revenues or the reduction of other county personnel. When the two acts are read together, it becomes obvious that the Legislature intended the pay raise to become effective only after the measure provided to fund it was approved by a majority of the voters in Calhoun County.

In fact, the Legislature has, since this appeal was filed, made its intentions in this regard abundantly clear. On July 29,1983, it approved Act No. 83-732, which amended the language of the Deputy Pay Raise Act to state:

“Section 1. Section 5 of Act No. 82-362, H. 772 of the Regular Session of 1982, is hereby amended to read as follows:
“ ‘Section 5. This Act shall become effective as provided by law when:
“ ‘(a) An amendment to the Constitution of Alabama of 1901 authorizing the altering of court costs in Calhoun County is adopted prior thereto by the voters of the State of Alabama with a majority of the votes cast in such election by the voters of Calhoun County favoring such amendment, and the result of the vote is certified and proclaimed by the Governor as provided by law; or
“ ‘(b) If such amendment is adopted by the voters of the state and rejected by the voters of Calhoun County in the elections on the amendment, this Act will become effective only if the Calhoun County Commission proposes increases in court costs and a majority of the voters of Calhoun County approve such increases in an election called for that purpose.’
“Section 2. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

It is not inappropriate to consider subsequent action of the Legislature in an effort to determine its intent. 73 Am. Jur.2d Statutes, § 178 (1974). McWhorter v. State Bd. of Registration for Professional Engineers and Land Surveyors ex rel. Baxley, 359 So.2d 769 (Ala.1978). It is now clear that the Legislature intends that the pay raise bill will become effective only if a majority of the voters in Calhoun County approve a measure increasing that county’s court costs in an election called for that purpose. This further serves to underscore the correctness of the trial court’s ruling.

Whether a court cost schedule disparate with the rest of the state may be enacted in one county without violating the equal protection clause of the federal Constitution, we do not decide, since that issue is not before us.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Dempsey BOYD and Frances S. Boyd v. Amelia Fenn BRABHAM, et al.
    82-1107.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Boyd Whigham, Clayton, for appellants.
    Jimmy S. Calton, Eufaula, for appellees.
   PER CURIAM.

This protracted litigation, involving alleged interference with a one-square-acre, century-old family cemetery plot, commenced in 1978; and it is now before this Court for a second time. In the first appeal, reported at 414 So.2d 931 (Ala.1982), the trial court’s summary judgment in favor of the Plaintiffs was affirmed as to the asserted defenses of breach of warranty and adverse possession; but the judgment was reversed and the cause remanded for trial on the sole factual issue of abandonment.

On the date of trial, upon remand, the respective parties made known to the court their agreement to settle the remaining issue; this was to be done, as reflected by the trial court’s bench notes, “by reinstating cemetery by having [certain of the parties, along with their respective counsel and the trial judge] go on premises and mark off 1 square acre around graves.” The judge added, “If the parties can’t agree on location of boundaries, I will do so and have marked with suitable Corner markers.”

Subsequently, the trial court entered the following “Final Order.”

“This action having previously come before the Court on Motion For Summary Judgment and the Court having entered a Summary Judgment on the 11th day of August, 1980, which said decree was subsequently appealed to the Alabama Supreme Court, who rendered a decision on June 15, 1982 affirming all aspects of said Summary Judgment except the question of whether or not an abandonment of the one acre cemetery had occurred, and this case having been remanded to this Court for trial on the sole issue of abandonment, and the Court having duly complied with the mandate of the Supreme Court and having set the case down for a jury trial on the question of abandonment, and all parties and their attorneys having been present in Court at the duly appointed time, a jury having been struck and empaneled, the parties did make known to the Court that they had agreed that the cemetery in question had not been abandoned. The parties further agreed that the Plaintiffs were entitled to the relief prayed for in their complaint to the effect of having the boundaries of the original cemetery established, and the parties having located the gravesite of one of the Fenn family members, and the Court having physically viewed the premises and having determined that one or more of the Defendant’s peanut drying sheds infringes upon said one acre plot, the Court is of the opinion that a surveyor should define by metes and bounds the exact location of said cemetery by using said gravesite as the center point and by running said cemetery parallel with the section lines of the government survey in the immediate area.
“To this effect, Polysurveying, Inc., a registered surveying corporation, is hereby commissioned by the Court to immediately go to the site of the grave plot which is located in an 80 acre plot of land described as the east half of the northeast quarter of section 10, township 10, range 26, Barbour County, Alabama, and to cause said acre of land to be surveyed by metes and bounds and clearly marked by concrete markers. A copy of this survey is to be furnished to the Court and to all parties involved and shall be recorded as a part of this decree. The Plaintiffs and their heirs are further given a permanent right of egress and ingress to said cemetery from Highway 30 across the adjoining land of Defendant which comprises a portion of the same 80 acre tract.
“The Defendants are further permanently enjoined from interfering in the future with existence of said cemetery and from in any way desecrating, bothering, using, and infringing upon said one acre of land. The Defendants are further given 30 days from the date that the required survey is furnished to the Court within which time to remove any and all buildings, obstructions, or other property of Defendants from the boundaries of said cemetery. The Defendants are further ordered to seed said one acre plot in a reasonable manner.
“The Plaintiffs and their heirs are entitled to erect cemetery improvements in the form of coping, headstones, monuments, fences, and other improvements on said plot and to plant shrubs. The Court reaffirms the will of Matthew Fenn to the effect that said one acre family cemetery is to be forever dedicated to the purpose of a Fenn family graveyard with rights of way to and from same.”

At the very outset, we are met with the Appellees’ motion to strike this appeal as frivolous, pursuant to A.R.A.P. 38. The motion to strike, of course, must be tested against the substantive nature of Appellants’ issues presented on appeal. We observe, initially, that each of the “Issues Presented” speaks of alleged variances between the trial court’s bench notes and its “Final Order.” Broadly stated, the basic thrust of these claimed errors lies in the Appellants’ disapproval of the court’s location of the one square acre plot in relationship to several of their peanut drying sheds. In other words, when one of the unmoved graves was located and used to mark the center of the plot (the premise upon which the settlement agreement was made), three of Defendants’ drying sheds were found to be within the established borders of Plaintiffs’ cemetery plot; thus, compliance with the trial court’s order requires that Defendants remove these buildings.

We have carefully reviewed the entire record of these proceedings, along with Appellants’ lengthy and detailed briefs, and we find no merit in the contention that the trial court erred in entering a final judgment at variance with the settlement agreement of the parties. The trial court’s bench notes are not intended as a recital of each of the details which would later be encompassed as necessary recitations of its final order.

We find that the judgment appealed from reflects a lawful exercise of the trial court’s authority to effectuate the settlement agreement of the parties. The fact that the trial judge, who, by agreement of the parties, was vested with final authority to locate the boundaries of the disputed plot, so located the plot as to require removal of three of Defendants’ buildings is no basis for disturbing the trial court’s exercise of that authority, especially since the confusion and uncertainty of the plot’s original location, in large measure, was the result of Defendants’ activities in removing certain of the grave sites and altering the general topography of the original location of the cemetery plot.

We deny Appellees’ motion to dismiss the appeal as frivolous, but in doing so we emphasize that this litigation is to be properly brought to an end. Subject to appropriate sanctions for default, the Defendants are admonished to perform all remaining acts and to conduct themselves in full compliance with the final order of the trial court.

AFFIRMED.

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