text:
    William P. GILBERT v. Dr. John H. CAMPBELL.
    82-677.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellee.
   PER CURIAM.

William Gilbert filed this medical malpractice action against Dr. John Campbell. Gilbert claims that Dr. Campbell negligently left a portion of a Penrose drain in his abdomen. At trial, after the close of the defendant’s case, the trial court directed a verdict in favor of the defendant physician on the ground that there was no evidence of negligence. Gilbert appeals. We affirm.

In December 1979, Gilbert underwent an anterior resection of the colon to remove a tumor. Dr. Campbell performed the operation. During the operation, the colon had to be lifted and moved out of the way. Dr. Campbell testified that he occasionally utilized a Penrose drain to do this, although he could not recall whether one was used during Gilbert’s operation. He stated that before closing the site of the operation he checked and did not see any pieces of Pen-rose drain or other foreign matter.

Subsequently, in May and June of 1980, Gilbert was readmitted to the hospital for treatment of infections in the same area of the abdomen. During both stays Penrose drains were inserted through his rectum to drain infected material from a pelvic ab-cess. The first drain came out on its own. The second one was removed by the routine method, i.e., pulling it out through the rectum. Throughout this time Gilbert had infections in his abdomen, and eventually, a fistula, or tunnel between the abcess and the exterior left buttock, developed. In April 1981, he was referred to Dr. Halpern, who performed an operation to close off the fistula from the inside. Dr. Halpern found, in the tract of the fistula, among other things, a piece of Penrose drain approximately two inches in length. This was removed.

Gilbert urges us to apply the doctrine of res ipsa loquitur to this case. He argues that he has established a prima facie case of negligence against Dr. Campbell under the doctrine of res ipsa loquitur. We have never held that this doctrine may be used in a medical malpractice action to prove negligence. The rule in Alabama is that expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. See, Moses v. Gaba, 435 So.2d 58 (Ala.1983).

Expert medical testimony is required in this case to describe the proper use, purpose, insertion, and removal of a Penrose drain. Drs. Halpern and Campbell testified that a Penrose drain is a latex tube, varying in width and length. It is designed to serve as a temporary drain of fluids, infected matter, and other material. Neither had heard of any procedure for, or requirement that, the Penrose drain be measured prior to insertion and after removal to determine whether the full length of the tube had been removed. Neither followed such a procedure, and Dr. Campbell admitted that no measurements or comparisons of the lengths of the drains as they were inserted and removed were made during his treatment of Gilbert. Both physicians conceded that a drain may break while inside the body, leaving a piece inside while the rest of the drain is removed. Dr. Halpern testified that a physician probably would not know if a drain broke unless it was apparent to him that the portion removed was less than the length inserted. Dr. Campbell said that if a Penrose drain were to break while it was being removed, he probably would know because he would feel something “pull or snap,” and the broken end of the drain would be jagged.

There was undisputed expert testimony from Dr. Halpern that there had been no substandard medical practice by Dr. Campbell in the course of his treatment of Gilbert, including the use of the Penrose drain. According to the expert testimony, the standard medical procedure requires that a physician, who is aware of the presence of a non-functioning piece of Penrose drain inside the patient’s body, remove it as soon as possible. There was no evidence that Dr. Campbell’s conduct fell below this standard. It is undisputed that he had no knowledge of the presence of the drain. It failed to show up on the X-rays, and it was not capable of being seen upon external examination. Furthermore, due to the nature and severity of Gilbert’s illness, Dr. Campbell had no reason to believe that his suffering was caused by something other than the disease.

The mere fact that Gilbert’s condition may have been made worse by the presence of the drain and the fact that a piece of the drain was found in his abdomen does not shift the burden of proof. Moses v. Gaba, 435 So.2d at 61. Gilbert failed to present a scintilla of evidence that Dr. Campbell was negligent, and it was, therefore, proper to direct a verdict in favor of the defendant.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Welton SHELTON v. Winfield MOON, Sr., and Winfield Moon, Jr.
    82-683.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    William C. Veal, Birmingham, for appellant.
    B. Don Hale, Cullman, for appellees.
   SHORES, Justice.

Welton Shelton filed this action against Winfield Moon, Sr. (Moon, Sr.), and Win-field Moon, Jr. (Moon, Jr.), to collect on two promissory notes made payable to him. The notes allegedly were given to Shelton by Moon, Sr., individually, and on behalf of Moon, Jr., as consideration for a coal mining option. One note was for $150,000.00, of which $97,000.00 had been paid to Shelton, leaving a balance of $53,000.00. Judgment was entered in favor of Shelton on this note. This judgment is not in question.

The second note was for the amount of $250,000.00. The trial court found that the Moons were not liable to Shelton on this note and entered judgment accordingly. Shelton appeals. We affirm.

The note in question was produced at trial by Shelton and admitted into evidence. On its back was the following assignment:

“For value received, the undersigned holder, Welton Shelton, does hereby transfer, sell, assign, convey and grant unto William H. Lackey, all my right, title and interest in and to the proceeds of the note described on the reverse side hereof.
“Done this the 25th day of August, 1976.
“/s/ Welton Shelton”
The trial court found that:
“There is no evidence of any reassignment of this note to Shelton from William H. Lackey in writing. There was some statement to the effect that the note had been reassigned to Shelton, but nothing that would reasonably satisfy this Court of its reassignment.”

A “release” signed by Lackey and alleged to be evidence of the reassignment of the note to Shelton was offered as evidence by Shelton. The trial court refused to admit it on the grounds that an improper predicate had been laid. Shelton claims error in this ruling. We disagree.

On cross examination, Shelton stated that the note had been reassigned to him by Lackey and that he had documentation of this. On redirect, he identified a document as “a release from Lackey.” There was no testimony showing that this “release” was, in fact, the reassignment of the note from Lackey to Shelton. The “release” was not identified as a reassignment of the note, and a careful reading of the record does not show what it was. There was some evidence that Lackey had sued the Moons on both notes and that that case had been settled. The “release” could have related to that. The record, as noted by the trial judge, was devoid of any evidence that the note had been reassigned to Shelton. The trial court’s findings will not be disturbed.

In light of the above holding that Shelton was not entitled to receive payment on the note from the Moons because he was unable to prove ownership of the note, it is unnecessary to address the other issues raised.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Virgil L. BEDDINGFIELD v. CENTRAL BANK OF ALABAMA, N.A.
    82-842.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    John M. Heacock, Jr. of Lanier, Shaver & Herring, Huntsville, and Jerry W. Powell, Birmingham, for appellee.
   MADDOX, Justice.

The two issues on appeal are whether the dead man’s statute is unconstitutional and whether evidence otherwise excludable under the provisions of that statute can be considered to defeat a motion for summary judgment.

The appeal follows the trial court’s granting of summary judgment in favor of the appellee/defendant, Central Bank of Alabama, N.A., and against appellant/plaintiff, Virgil L. Beddingfield. All of the appellant’s claims emanate from an alleged kickback scheme with Charlie N. Mills (Mills), a former officer of the bank, prior to his death on August 13, 1980. Beddingfield alleged that the bank and its officers, directors and stockholders were guilty of fraud and misrepresentation, civil conspiracy to defraud, and negligence or wantonness in permitting its lending officer to use his authority to extort some $9,000 from him, and, finally, of negligent or wanton entrustment by placing Mills in a position of trust and authority where he was able to exert pressure on his customers so as to injure them. The facts in the record surrounding the transactions of Beddingfield and Mills appear in Beddingfield’s deposition.

In an affidavit supporting the bank’s motion for summary judgment, the bank’s counsel directed the trial court to the appropriate pages of Beddingfield’s deposition, where Beddingfield admitted that his dealings with Mills, while Mills was an employee of the bank, occurred solely in the presence of Mills and him.

After the bank’s motion for summary judgment was filed, Beddingfield filed a response and attached a notarized counter-affidavit of Beddingfield’s attorney, to which he attached exhibits which included portions of depositions of bank employees taken in other litigation arising out of similar circumstances involving the bank officer, as well as records obtained from the Federal Bureau of Investigation as authorized by the Freedom of Information Act. After a hearing on the bank’s motion for summary judgment and Beddingfield’s response, the trial court granted summary judgment to the bank. This appeal ensued.

Beddingfield asserts that the dead man’s statute, i.e., Code 1975, § 12-21-163, is unconstitutional because it deprives him of equal protection and due process of law under both the federal constitution and the Alabama constitution. U.S. Const, amend. XIV, § 1; Ala. Const, art. 1, § 6. He likewise contends that the statute contravenes his right of redress guaranteed by Ala. Const, art. 1, § 13.

The question of the constitutionality of the dead man’s statute is a novel one for this Court. Although Beddingfield is unable to cite Court decisions from other jurisdictions declaring the dead man’s statute unconstitutional, he nonetheless refers the Court to several legal treatises written by eminent scholars criticizing dead man statutes as both unfair and unnecessary. See, McCormick, Handbook of the Law of Evidence, § 65 (2d ed. 1972); Morgan, Some Problems of Proof Under the Anglo-American System of Litigation, 187 (1956); Morgan, The Law of Evidence, 25 (1927); and II Wigmore on Evidence § 578 (3d ed. 1940). Additionally, the Court takes notice of the fact that Rule 601 of the Federal Rules of Evidence completely rejects the principle of dead man statutes, as does Rule 601 of the Uniform Rules of Evidence, which has been adopted by at least twenty jurisdictions. 13 U.L.A. Civil Proc. & Rem. Laws 1982 P.P. 11.

However persuasive the arguments made by these scholars and Beddingfield may be, they are insufficient to convince us that, under rules of statutory construction, the Alabama statute is unconstitutional. See Board of Trustees of Emp. Retirement System of City of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973). The Iowa Supreme Court, in upholding the constitutionality of that state’s dead man’s statute, remarked:

“Critics have been openly disdainful of the rule and have argued vigorously that it begets, rather than averts, injustice. However one may view such censure, it does not render the law unconstitutional. Perhaps the provision is unwise; perhaps it fails to accomplish all that the legislature intended. Unlike the commentators, we are not allowed to consider such imperfections. Unless a law has no rational relationship to its intended purpose, we must defer to the legislature as to its wisdom.... ”

Adams v. Bonacci, 287 N.W.2d 154, 156 (Iowa 1980). Similarly, it is not a function of this Court to determine the wisdom of specific legislation. See Lankford v. Sullivan Long & Hagerty, 416 So.2d 996, 1000 (Ala.1982).

Because the dead man’s statute involves neither a suspect classification nor a fundamental right, see In Re: Estate of Lopata, 641 P.2d 952 (Colo.1982), and Russell v. Wolford, 60 Ohio App.2d 134, 395 N.E.2d 904 (1978), we must determine whether the classification furthers a proper governmental purpose, and whether the classification is rationally related to such purpose. Gideon v. Alabama State Ethics Commission, 379 So.2d 570, 573-574 (Ala.1980).

The underlying policy of the dead man’s statute is to prevent testimony by living witnesses as to transactions with a person who is no longer alive to confront the witness nor to contradict his testimony. Walling v. Couch, 292 Ala. 33, 35, 288 So.2d 435, 436 (1973). The portion of the dead man’s statute which is applicable to the instant case was originally enacted by the legislature on March 2, 1875, and subsequently codified as a part of § 3058 of the Code of 1876. McCrary’s Administrator v. Rash’s Administrator, 60 Ala. 374, 376 (1877). It was discussed in the McCrary case as follows:

“The purpose of the exception, in each of these statutes, was to exclude the testimony of parties to the suit, when offered in their own behalf, to show transactions with, or statements by persons who have died, and consequently can not confront, and, perchance, contradict such testimony. It rests on the fear that personal interest will exercise an influence too controlling, unless it is confronted by an adversary interest, having equal knowledge of the facts. This exception has been uniformly upheld in its integrity, as a necessary restraint of abuses likely to grow out of the section of the Code we are considering.” (Citations omitted.)

60 Ala. at 377. Applying the “rational basis” test, the Court finds that the dead man’s statute furthers a proper governmental purpose and the provisions of the statute are rationally related to that purpose. Gideon, supra. Consequently, the Court holds that the dead man’s statute is constitutional. Accord, Corso v. Security-First National Bank of Los Angeles, 171 Cal.App.2d 816, 342 P.2d 56. (Dist.Ct.App.1959), appeal dismissed, 362 U.S. 144, 80 S.Ct. 681, 4 L.Ed.2d 617 (1960); Dubois County Machine Company v. Blessinger, 157 Ind.App. 115, 299 N.E.2d 207 (Ct.App.1973); Segur’s Estate v. Jacoby, 5 Ill.App.3d 459, 283 N.E.2d 76 (App.Ct.1972); and Adams v. Bonacci, supra.

The second issue on appeal here is whether the granting of the bank’s motion for summary judgment was proper. As appellant points out, the presence or absence of fraud or negligence is generally a question to be determined by a jury, thereby limiting the effectiveness of a motion for summary judgment in such instances. See e.g., Roberts v. Peoples Bank & Trust Co. of Sylacauga, 410 So.2d 393 (Ala.1982), and Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). But, appellant, as the non-moving party, has failed to present facts that are properly admissible in evidence. Ray v. Montgomery, 399 So.2d 230, 232 (Ala.1980); Morris v. Morris, 366 So.2d 676, 679 (Ala.1978).

Alabama’s dead man’s statute, § 12-21-163, reads in pertinent part:

“In civil actions and proceedings, ... no person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with ... the deceased person . .. when such deceased person ... acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced .... ”

The Court has interpreted this section to apply when (1) the witness has a pecuniary interest in the result of the action, (2) the deceased acted in a representative relation to the party against whom the evidence is offered, and (3) the witness testifies to a transaction with the deceased. Stanley v. Hayes, 276 Ala. 532, 535, 165 So.2d 84, 86 (1964).

Beddingfield argues, however, that the bank has waived the incompetency of the testimony contained in his deposition by attaching portions of his deposition to its motion for summary judgment. He cites Bank of the Southeast v. Koslin, 380 So.2d 826 (Ala.1980), as authority. In that case, the bank sued Koslin and other guarantors of a corporate note. Counsel took the deposition of a former bank employee who had transactions with one of the defendant guarantors who had since died. The defendant guarantors filed a motion for summary judgment, attaching the bank employee’s entire deposition in support of their motion. The trial court refused to consider the bank employee’s testimony regarding his transactions with the deceased defendant guarantor on the motion for summary judgment because it violated the dead man’s statute. Although the ultimate decision of the trial court to grant summary judgment was affirmed, this Court held that the trial court erred in refusing to consider the testimony of the bank employee in opposition to the motion for summary judgment because defendant guarantors had waived the bank employee’s incompetency by offering his entire deposition in support of its motion for summary judgment. 380 So.2d at 829-830.

In this case, the bank’s motion for summary judgment and accompanying affidavit set forth undisputed facts which indicated that had the case proceeded to trial, no competent evidence would have been available to support a judgment in behalf of Beddingfield.

Attached to the bank’s affidavit were the portions of Beddingfield’s deposition in which he unequivocally stated that all the transactions which occurred between Mills and him, occurred with no third person present. By utilizing specific portions of his deposition to establish this undisputed fact, the bank merely, without waiving the incompetency of his testimony regarding details of the transactions with the deceased, carried its burden of demonstrating that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.

AFFIRMED.

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

      . The following cases also hold the dead man’s statute is constitutional, but the Model Rules of Evidence are now applicable in these jurisdictions: In Re: Estate of Lopata, 641 P.2d 952 (Colo.1982); Wood v. Kaufman, 135 Mich. 5, 97 N.W. 47 (1903); Russell v. Wolford, 60 Ohio App.2d 134, 395 N.E.2d 904 (Ct.App.1978).


author: JONES, Justice.

text:
    Leila Dickson COLE, et al. v. Doris Dickson PLANT.
    82-969.
    Supreme Court of Alabama.
    Nov. 4, 1983.

      Jerry L. Thornton and Ralph R. Norman, III, Hayneville, for appellants.
    Harry W. Gamble, Jr. of Gamble, Gamble & Caíame, Selma, for appellee.
   JONES, Justice.

This is an appeal from a judgment quieting title to certain lands in Lowndes County, Alabama. Doris Dickson Plant, Plaintiff/Appellee, filed suit seeking to establish her right and title to lands devised her under the will of her father, Robert S. Dickson, Sr. The Defendants/Appellants are the heirs and descendants of Robert S. Dickson, Sr. (See, however, footnote 1, infra.) Jerry Thornton of Hayneville, Alabama, was appointed guardian ad litem to represent the interests of all unknown persons and all defendants who might be minors, or persons of unsound mind. A default judgment was entered by the court as to all defendants who were not infants or incompetent, or who had not otherwise appeared and consented to the proceedings.

The case was tried without a jury and Plaintiff prevailed. The guardian ad li-tem’s motion for new trial was denied. This appeal followed. We affirm.

FACTS

Robert S. Dickson, Sr., died in 1949, survived by his wife, Leila T. Dickson, and four children, Leila D. Arthur, Anne D. Kidd, Robert S. Dickson, Jr., and Doris Dickson (now Doris Dickson Plant). His last will and testament devised to Doris Dickson certain real property in the following language:

“I do hereby will and devise to my daughter Doris Dickson those lands now owned by me, comprising 822 acres more or less, and known as my HAIGLER PLACE, in fee simple, provided, that at her death she leaves bodily issue or heirs of her body; in the event of her death leaving no bodily issue or heirs of her body, then the title to said lands shall revert to my other heirs or descendants, according to the present Laws of Descent & Distribution, in the Statutes of Alabama.”

Subsequently, by deed dated the 3rd of September, 1957, Robert S. Dickson, Jr., and his wife; Anne Dickson Kidd and her husband; Leila Dickson Arthur and her husband; and Leila T. Dickson, a widow, conveyed to Doris Dickson Plant all of their right, title, and interest in the Haigler Place in the following language:

“[T]he [Grantors] ... hereby grant, bargain, sell and convey unto [Doris Dickson Plant] all of the right, title, interest and estate which the [Grantors] or either of them, may now own or to which they, or either of them, may hereafter be entitled, in law or in equity, including any right, title, interest or estate which they, or either of them, may now own or hereafter be entitled to by way of reversion or expectancy, or by remainder, whether vested or contingent, or by way of execu-tory devise, under or by virtue of the terms, conditions, or provisions contained in the last will and testament of Robert S. Dickson, Sr.”

The grantors in this deed were the testator’s widow and all of his children and their respective spouses, with the exception of Doris, who was the grantee.

Doris later sold a thirteen-acre tract of the original 822 acres and, in 1967, executed a timber sale contract on the remaining lands to Hammermill Paper Company. She proposed to sell a portion of the lands to General Electric Company in accordance with the terms of a contract for sale dated February 3, 1988. As a condition of the sale, General Electric required that she institute court proceedings to establish her right to the subject lands. This appeal is from the final judgment in that proceeding.

ISSUES AND CONTENTIONS OF THE PARTIES

Before we begin our analysis, it is important that we refine and state the dispositive issue in the context of the arguments of the parties. These respective arguments are based on a common premise: The interest acquired by Doris was a fee simple subject to defeasance. That is to say, the testator’s will devised to his daughter Doris the subject property “in fee simple, provided, that at her death she leaves bodily issue or heirs of her body.” If this condition failed, then the testator provided, “title to said lands shall revert to my other heirs or descendants, according to the present Laws of Descent & Distribution, in the Statutes of Alabama.”

Therefore, the ultimate question is: Did the conveyance of all the right, title, and interest in the subject lands by the heirs-at-law of Robert S. Dickson, Sr., determined as of the time of his death, operate to vest in the grantee, under that deed, a fee simple absolute? In other words, was the interest acquired in the subject property by the heirs-at-law (other than Plaintiff), at the time of the testator’s death, of such character and nature that, upon their joint conveyance to Doris, she is empowered to convey a fee simple title without further limitations or restrictions? If not, both parties agree that her deed to General Electric will convey an absolute fee simple title only in the event she leaves, at her death, “bodily issue or heirs of her body.”

Both parties further agree that the ultimate decision rests on the meaning of the term “heirs or descendants,” as that term is used in the subject will. Defendants/Appellants claim that the alternative use of the term “heirs or descendents” manifested an intent to determine the devisees at some future time, i.e., at the date of Doris’s death, should she die without issue. Doris on the other hand, argues that these alternatives were intended as two ways of saying the same thing.

DECISION

I

In the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in light of the surrounding circumstances, the class described as testator’s heirs, or next of kin, or relations, or such persons as would take his estate if he had died intestate, to whom a remainder or ex-ecutory interest is given by the will, is to be ascertained at the death of the testator. Weil v. Converse, 273 Ala. 495, 142 So.2d 245 (1962); Jones v. Glenn, 248 Ala. 452, 28 So.2d 198 (1946); Annot. 49 A.L.R. 174 (1927); Annot. A.L.R. 602 (1940); Annot. 169 A.L.R. 207 (1947); 80 Am.Jur.2d Wills §§ 1437, 1438 (1975); 96 C.J.S. Wills § 695(5)(b) (1957).

Although neither of the parties presents us with case law explicitly stating that the term “descendants” is equivalent to the term “heirs” (nor can we find any), we hold the trial court properly found that Robert S. Dickson, Sr., equated the two terms and meant such “heirs” and/or “descendants” to be determined as of the date of his death.

Looking at the will as a whole, we note that only in that part of the will devising the land to Doris does the testator not explicitly designate at which time his “heirs” and “descendants” should be ascertained. In every other paragraph in which a future interest is devised, the testator plainly states it is his wish that upon failure of the initial gift, the remainder shall “revert to the then heirs of my estate.” (Emphasis supplied). The provision devising the Haigler Place to Doris merely says: “shall revert to my other heirs or descendants.” (Emphasis supplied.) Moreover, the concluding language of this sentence states, “according to the present Laws.” (Emphasis supplied.)

Because of this discrepancy and the obvious intent of the testator, we agree with the trial court that “heirs” etc. of the testator are to be determined at the date of his death. Therefore, upon failure of issue at Doris’s death, the widow and remaining three children of the testator (or their heirs or devisees), subject to the exercise of their right of inter vivos alienation, if any, would take a fee simple absolute.

II

Before we determine whether the testator’s heirs (the grantors in the September 3, 1957, deed to Doris) can transfer their “future interest,” we must classify that interest. As we have already noted, both parties agree that the language employed in the will operated to give Doris a fee simple subject to defeasance if she died without surviving issue. The parties disagree, however, on the effect that the conveyance by the heirs-at-law of Robert S. Dickson, Sr., has on the Plaintiff’s title. The guardian ad litem contends that the grantors’ interest was an executory interest, and, is, by definition, indestructible. Doris, on the other hand, while not disputing the fact that the interests held by the grantors are executory in nature, maintains, by inference, that such interests are alienable inter vivos, descendable and devisable.

Only two types of future interests can be created in a transferree, namely, remainders and executory interests.

“A remainder is a future interest having the following characteristics: (a) it is created in a transferree; (b) it is created simultaneously with a prior estate; (c) it is so limited that it can become a present interest at the termination of the prior interest; (d) the prior interest must be of a lesser duration than the interest of the transferor. Remainders are classified as vested and contingent.” L. Simes, Handbook of the Law of Future Interests 19 (2d ed. 1966).
“[A]n executory interest is distinguished by the following characteristics: (a) it is a nonvested interest; (b) in a transferee; (c) which is so limited that it will vest on the happening of a condition, or on the .occurrence of an event which is certain to take place, and (d) which with the exception of the executory interest after a determinable fee or a fee simple conditional, vests in derogation of a vested interest.” Simes, at 25.

At common law, both contingent remainders and executory interests were considered mere possibilities and were wholly inalienable. R. Boyer, Survey of the Law of Property, (3d ed. 1981). The majority view today, however, is that such future interests are considered presently existing things and are alienable, descendable, and devisable. 28 Am.Jur.2d Estates § 378 (1966).

The general proposition that contingent remainders and executory interests are alienable is subject to exception: If, for example, a future interest runs to an unborn person, then there is no one to make the conveyance. Additionally, some courts follow the old English view that these interests are inalienable. See Simes, at 71. Those courts adhering to the rule of inalienability; generally recognize three exceptions: First, if the attempted alienation is with warranty, or other provision which would create an estoppel, the property passes when the contingency occurs; second, if the attempted alienation is with valuable consideration, equity will treat it as a contract to convey and may give specific performance; third, if the alienation is by way of a release, the release puts an end to the future interest. Thus, if “land has been devised ‘to A and his heirs, but if A die without children, then to B and his heirs,’. B may release his executory interest to A.” Simes, at 72.

As can readily be seen from the preceding example, the executory interests held by Robert S. Dickson, Jr., Leila D. Arthur, Anne D. Kidd, and Leila T. Dickson, were future interests subject to aliena-bility at the time the deed was executed devising all the grantors’ “right, title and interest” to Doris. If Doris had died with children surviving her, regardless of the interests conveyed by the deed, she could have devised a fee simple absolute to anyone she wished. But if Doris had died without issue surviving her, she would have had nothing. Because of the release of the future interests held by her sisters, brother, and mother, however, Doris now has a fee simple absolute and can sell the property to whomever she desires with a clear title.

In summary, we need not, and have not, decided as between the earlier common law rule disfavoring alienability of future interests and the modern trend favoring aliena-bility. .Assuming, without deciding, this Court’s adherence to the general rule of inalienability as to such interests, we have applied the well recognized “release” exception. The rationale for this exception is obvious. The public policy which opposes alienation to a stranger is in favor of the release. In other words, where the reason for applying the rule no longer exists, the exception, and not the rule, obtains.

Thus, the judgment of the trial court quieting title to the lands in Doris Dickson Plant is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . Although we have retained the original style of the case, the named Appellant is not a party to the appeal. The only Appellants, in actuality, are those heirs and descendants of Robert S. Dickson, Sr., who are either unknown, or are minors, or are of unsound mind, and are represented by the guardian ad litem, who appeals on their behalf.

      . As Professor Simes points out, only the last of these (release) is a true exception; the first two are merely instances where other legal principles nullify the operative effect of inalienability.


text:
    TUSCALOOSA CITY BOARD OF EDUCATION, et al. v. Robert L. ROBERTS, Jr. Ex parte TUSCALOOSA CITY BOARD OF EDUCATION, et al. (In re: Robert L. ROBERTS, Jr. v. TUSCALOOSA CITY BOARD OF EDUCATION, et al.)
    82-1046, 82-831.
    Supreme Court of Alabama.
    Nov. 4, 1983.

      Sam M. Phelps and J. Russell Gibson, III of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellants.
    Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellee.
   MADDOX, Justice.

These appeals involve the question of whether an order of the Alabama State Tenure Commission in a case involving the cancellation of a tenured teacher’s contract was a final order. The circuit court of Tuscaloosa County issued a writ of mandamus to the Board of Education of the City of Tuscaloosa prohibiting the board from further proceedings in the matter. The Board appeals. We affirm.

The pertinent facts in these cases are not complicated. The Tuscaloosa City Board of Education held a hearing to determine if assistant principal Robert L. Roberts’s contract should be cancelled. Based upon testimony presented at the hearing, the board cancelled Roberts’s contract. Roberts appealed to the Alabama State Tenure Commission and that commission “dismissed” and “reversed” the board’s decision. We understand the Tenure Commission’s order which “dismisses the action and remands the action to the board,” was a “final” determination under § 16-24r-38. The commission’s order was based on Code 1975, § 16-24-10, which requires that a full copy of the transcript of hearings be sent to the commission on appeals. The full transcript was not sent to the commission because the court reporter, who was hired by the board, lost her notes on the testimony of two witnesses.

The board reinstated Roberts, suspended him again, and set a date for another healing on the same matter that was the subject of the first hearing. Roberts then sought a writ of mandamus, or in the alternative a permanent injunction, from the circuit court to prohibit the board from holding the second hearing and cancelling his contract again. During the court hearing, the board sought to offer testimony of several members of the tenure commission to show what was “meant” by the tenure commission’s order. The trial court sustained Roberts’s objection to this testimony. The trial court refused to allow the board to question the members of the tenure commission under Ala.R.Civ.P. 43(c), but did allow questioning of the Assistant Attorney General who works with the tenure commission on the general procedures followed by the commission.

The appellant/Board of Education of the City of Tuscaloosa raises four issues on appeal.

The appellant first argues that the order of the trial court erroneously applied a bar to further proceedings “apparently based on the principles of double jeopardy or res judicata.”

The trial judge had before him the commission’s order which read as follows:

“A meeting of the Tenure Commission was held in Montgomery on January 3, 1983, to hear the appeal of Mr. Robert Roberts from the cancellation of his contract by the Tuscaloosa City Board of Education pursuant to Section 16-24-8, Code of Alabama, 1975.
“Because the record of the proceeding was incomplete and thus not in compliance with Section 16-24-10(b), Code of Alabama, 1975, the Tenure Commission dismisses the appeal and reverses the action of the Board.
“Done this 3rd day of January, 1983.” (Emphasis added.)

The court also had before it the minutes of the commission meeting. These minutes in pertinent part read as follows:

“A motion was duly made and seconded to rescind the action of the Tuscaloosa City Board of Education, based upon the fact that the statute was not followed in submitting a complete and timely transcript in this matter. This motion carried unanimously. The following decision was rendered:
“IN THE MATTER OF ROBERT ROBERTS v. TUSCALOOSA CITY BOARD OF EDUCATION BEFORE THE ALABAMA STATE TENURE COMMISSION
“A meeting of the Tenure Commission was held in Montgomery on January 3, 1983, to hear the appeal of Mr. Robert Roberts from the cancellation of his contract by the Tuscaloosa City Board of Education pursuant to Section 16-24-8, Code of Alabama, 1975.
“Because the record of proceedings was incomplete and thus not in compliance with Section 16-24-10(b), Code of Alabama, 1975, the Tenure Commission dismisses the appeal and reverses the action of the Board.
“Done this 3rd day of January, 1983.
“/s/ Carlton Smith, Vice Chairman
Alabama State Tenure Commission”

Sections 16-24-1 through 16-24-38, Code 1975, provide the procedure to be followed if a board of education wishes to transfer, or cancel the contract of, a teacher with “continuing service status” (tenure).

The section to which we must look reads in full as follows:

“The action of the state tenure commission in reviewing transfers of teachers or cancellation of teacher contracts, if made in compliance with the provisions of this chapter, and unless unjust, shall be final and conclusive. Whether such action complies with the provisions of this chapter and whether such action is unjust may be reviewed by petition for mandamus filed in the circuit court of the county where said school system is located.” (Emphasis added.)

Code 1975, § 16-24-38.

This Court has consistently held that the Teacher Tenure Act is remedial in nature and is to be liberally construed in favor of teachers who are the class designated to be its primary beneficiaries. Board of Educ. v. Baugh, 240 Ala. 391, 199 So. 822 (1941), State Tenure Commission v. Madison County Bd. of Educ., 282 Ala. 658, 213 So.2d 823 (1968), State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700 (1975); or stated another way, the statutes are to be strictly construed in favor of the teachers in dismissal cases. See Brazil v. Rupp, 104 Ind.App. 287, 10 N.E.2d 924 (1937). With this law in mind, we now construe Code 1975, § 16-24-38, as it applies to this appeal.

The language “shall be final and conclusive” in § 16-24-38 is dispositive, we hold. “When the intention of the legislature is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for construction.” American Inst. of Psychotherapy, School of Professional Psychology v. Alabama Board of Examiners in Psychology, 410 So.2d 54, at 55 (Ala.1982).

Appellant argues that in Brown v. Alabama State Tenure Commission, 349 So.2d 56 (Ala.Civ.App.1977), a similar case was decided. In Brown, supra, the local board of education held a cancellation hearing, and cancelled the teacher’s contract, the teacher appealed to the tenure commission, and the commission reversed for failure of the local board to send a complete record of the hearing. After notification by the commission, the board held another hearing, again cancelled the contract, and the teacher appealed. The commission upheld the board and the Court of Civil Appeals reversed and remanded because the board had failed to comply with the notice provisions of the Teacher Tenure Act. Brown, supra. The issue of the propriety of the second hearing of the board was not raised or addressed by any of the parties in the Court of Civil Appeals.

Neither the board nor the teacher has cited us to a case deciding the issue before us. After our own search, we have found no case which addresses the issue, but, see, White v. Wohlenberg, 113 Iowa 246, 84 N.W. 1026 (1901), which held that where the decision of a board of education in discharging a teacher was reversed by the county superintendent because the teacher received no notice, the teacher was not entitled to an injunction restraining a second hearing on new charges since the first hearing was a nullity and could not operate as an acquittal. Of course, under our Alabama Rules of Civil Procedure, a dismissal operates as an adjudication upon the merits unless otherwise specified. Ala. R.Civ.P. 41(b) states, “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits,” Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1980); see also, Durant v. Essex Co., 7 Wall. (74 U.S.) 107, 19 L.Ed. 154 at 156 (1869), which states, “Where words of qualification such as ‘without prejudice’ or other terms indicating a right or privilege to take further legal proceeding on the subject do not accompany the decree, it is presumed to be rendered on the merits.”

The general rule has been stated thusly:

“Under statutes granting the right, a teacher, principal, or superintendent who is aggrieved by the action of the school authorities in dismissing or removing him has a right of appeal to a higher board or officer, such as a county or state superintendent. The decision or order of the appellate board or officer is generally final and conclusive.”

78 C.J.S. Schools and School Districts, § 209(a) (1955).

Based on the foregoing, we hold that where the State Tenure Commission “reverses” and “dismisses” an appeal from a teacher contract cancellation decision by a board of education, that order is final and conclusive and bars further proceedings by the board of education based on the same charges. Cf. Freeman v. Jefferson County Bd. of Educ., 375 So.2d 264 (Ala.Civ.App.1979), wherein the Court of Civil Appeals held that the tenure commission could not be required to send the record of a prior hearing back to the local board for supplementation of the record.

The board next argues that mandamus was improper because Roberts had another remedy available to him. The board contends that Roberts should have submitted to a second hearing and if the board again fired him, he could again appeal to the tenure commission. The board’s argument is based on the theory that the tenure commission’s order was not a final adjudication on the merits. We have already determined that it was. The board further relies on Alabama State Tenure Comm’n v. Oneonta City Board of Education, 376 So.2d 197 (Ala.Civ.App.1979). We think that case is not applicable here. Oneonta City dealt with whether a circuit court other than the Montgomery County Circuit Court could issue a supervisory writ of mandamus to a commission located in Montgomery with statewide jurisdiction.

Mandamus is available to a teacher to compel a local board to comply with a commission decision. See Schneider v. Mobile Bd. of School Comm’rs, 378 So.2d 1119 (Ala.Civ.App.1979), wherein the Court of Civil Appeals, in dictum, addressed this issue.

The board next argues that the trial court applied an incorrect standard of review. The board contends, and it is correct, when it states that Roberts was not entitled to a direct review of the action of the board by mandamus because a review of the board’s action is appellate and would not come under the circuit court’s jurisdiction. This proceeding was not such a review, however, and the power exercised by the circuit court in this instance was supervisory and permissible. Oneonta City, supra. The standard to be applied in the instant case is whether Roberts had no other legal remedy and whether there is a clear, specific right for enforcement. Ex parte Brandon, 243 Ala. 610, 11 So.2d 561 (1943); Martin v. Loeb & Co., Inc., 349 So.2d 9 (Ala.1977). Since the board was without authority to conduct a second hearing, we hold that mandamus was appropriate.

Lastly, the board argues the trial court committed error by not permitting the board to make a show of proof under Rule 43(c), Ala.R.Civ.P., by using individual members of the State Tenure Commission to show that the commission had not made any ruling that would bar a second hearing before the school board.

The rule, in pertinent part, reads:

“Record of Excluded Evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.” (Emphasis added.)

Rule 43(c), Ala.R.Civ.P.

The appellant cites us to no authority for the proposition that Rule 43(c) should apply in a mandamus hearing. Ap-pellee argues that the members of state regulatory boards should not be compelled to go to court in sixty-seven counties to explain each decision made, but we think there is a better reason for sustaining the action of the trial court. The State Tenure Commission is totally a creature of the legislature and was created to be a quasi-judicial body. See State Tenure Commission v. Madison County Bd. of Educ., 282 Ala. 658, 213 So.2d 823 (1968). The written record of the commission’s actions is the only way of proving what it does. See Kroger v. Puckett, 351 So.2d 582 (Ala.Civ.App.1977). Records of a court are the best evidence of its official acts, Kimbrell v. City of Bessemer, 380 So.2d 838 (Ala.1980) (minutes of board of adjustment are best evidence of official action taken by the board). We hold that the written record of the state tenure commission’s meeting and order is the best evidence of the commission’s action, and that the individual commission members should not give testimony concerning events occurring at such a meeting.

For the foregoing reasons, we affirm the judgment and deny the writ of mandamus.

AFFIRMED; WRIT DENIED.

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

      . This case was originally filed in the Court of Civil Appeals, which transferred the case to this Court. To aid in the disposition of the case, this Court voted to keep the case rather than send it back to the Court of Civil Appeals.


author: EMBRY, Justice.

text:
    Audrey F. SMITH v. Archie L. BLANKENSHIP.
    82-412.
    Supreme Court of Alabama.
    Oct. 28, 1983.

      Charles E. Floyd, Phenix City, for appellant.
    James R. McKoon, Jr. of Ferrell, Davenport & McKoon, Phenix City, for appellee.
   EMBRY, Justice.

This is an appeal by the plaintiff from a judgment entered on a jury verdict in favor of the defendant.

Plaintiff, Audrey F. Smith, was a passenger in the front seat of a car owned and driven by her mother. While stopped at a red light, that car was bumped from the rear by a car driven by the defendant, Archie L. Blankenship. Smith sued Blankenship, alleging that, as a result of the automobile accident, she had developed rheumatoid arthritis of the cervical spine.

At trial, Smith testified that, directly after the accident, she felt pain in her neck, but did not wish to go to the hospital. She sought medical treatment for her neck injury from Dr. Joseph Wilkes five days after the accident. Wilkes examined Smith, diagnosed her problem as strain of the neck, and prescribed a soft cervical collar.

Two weeks later, Smith testified, she sought the advice of Dr. Richard Dodelin regarding her neck injury. Dodelin, an orthopedic surgeon, examined Smith and diagnosed her problem as “severe preexisting rheumatoid arthritis in her neck.” He testified he thought the arthritis had accelerated due to the accident of 19 March 1981.

Blankenship relied upon the testimony of Dr. James Andrews and Dr. Vincent Currier to rebut the testimony of Smith’s witnesses. Both physicians testified that Smith’s X-rays looked normal and showed none of the changes caused by rheumatoid arthritis.

Dr. Andrews testified he had been treating Smith since 1975 for rheumatoid arthritis in her hips, one hand, and both feet. He stated she had never, before or since the auto accident, complained to him about her neck.

Smith presents four issues for this court’s review:

“I.
“Did the Court commit error when it refused Plaintiff’s Motion for Directed Verdict on the issue of liability?
“II.
“Did the Court commit error when it refused to sustain Plaintiff’s objection to and instruct the jury to disregard Defense Counsel’s personal references to himself in his argument to the jury— ‘When the bursa in these shoulders start aching every night, I have to take Tylenol — ’
“III.
“Did the Court commit error when it refused to sustain Plaintiff’s objection to and instruct the jury to disregard Defense Counsel’s argument to the jury when he said; T would not impute or promote as necessary to anyone that this is something you must consider in all fairness because not only is this lady’s life at stake in this case but this old gentleman’s life and his property and — ’?
“IV.
“Did the Court commit reversible error when it refused to grant Plaintiff’s Motion for New Trial?”

We will consider the issues in the order presented.

I.

At the close of plaintiff’s evidence, Smith made a motion for directed verdict on the issue of liability which the trial court denied. Smith contends the trial court erred in refusing to direct a verdict in her favor on the issue of liability and cites testimony by Blankenship that he was at fault in causing the wreck.

Smith has brought suit against Blankenship, contending his negligence caused her neck injury. A review of the record indicates Blankenship admitted, from the outset, his responsibility for' the automobile accident but has, also from the outset, contended vigorously any disease was not a proximate result of the automobile accident.

The three well known elements of a right to recovery grounded on negligence are: (1) A duty owing from the plaintiff to the defendant; (2) A breach of that duty; and (3) An injury to the plaintiff as a consequence of that breach. See Alabama Great Southern Railroad Company v. Raney, 34 Ala.App. 125, 37 So.2d 150 (1948); and Goodson v. Elba Baking Company, 408 So.2d 498 (1981).

In the instant case, the issue whether the actions of Blankenship caused injury to Smith was not, at the time of the motion for directed verdict, resolved. It is well settled that where any material issue of fact remains unsettled, a directed verdict is inappropriate. Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 856 (Ala.1981). Therefore, the trial court would have erred in granting a directed verdict in favor of Smith.

II.

Second, Smith contends the trial court committed reversible error when it refused to sustain plaintiff’s objection to and instruct the jury to disregard defense counsel’s personal reference to his own physical ailments in his closing argument. Smith says this was an improper appeal based upon matters not within the bounds of legitimate inferences or deductions from the evidence.

Blankenship contends the comments of counsel regarding aches in his shoulders were inferences drawn from the evidence. He contends he was attempting to infer that, though Smith probably did have aches and pains, her aches and pains, like those of other people, developed through natural bodily processes rather than resulting from injury caused by the accident.

Considerable latitude is permitted counsel in arguments to the jury. City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174, 177 (1950). However, arguments which might encourage the jury to ignore the evidence and render a verdict based on prejudice are improper. While defendant’s counsel may have been attempting to appeal to the sympathies of the jury, we do not think the statement by defendant’s counsel regarding his own health problems influenced the finding of the jury. We find that the trial court’s act of allowing defendant’s counsel to so remark, if error, is not reversible error. Rule 45, ARAP.

III.

Third, Smith contends the trial court committed reversible error when it allowed counsel for Blankenship to remark to the jury that the “old gentleman’s life and his property [are at stake].” Smith claims the statement constituted an improper reference to wealth and an improper inference that the defendant had no liability insurance coverage. An analysis of the facts from the record discloses there is no merit in this assignment of error.

The record shows that Smith interjected the issue of defendant’s financial condition during the trial. Blankenship calls to this court’s attention the following cross-examination by Smith’s attorney of defendant’s wife.

“Q: Where is the [defendant’s] farm?
“A: In Elmore County.
“Q: How big is it?”

Defendant objected to this question and plaintiff withdrew it. Plaintiff then continued.

“Q: What kind of farming does your husband do?
“A: What little he does right now, it is soybeans and hay.
“Q: Does he actually do it himself or do other people work for him?
“A: He does it himself. He does have a hand that comes in and helps him when it is necessary but he don’t all the time.
“Q: How much of the farm does he actually cultivate?

The plaintiff continued further.

“Q: Does Mr. Blankenship actually drive a tractor himself?
“A: Yes.
“Q: And would he just have one tractor only?
“MR. McKOON: Now, we object to how many tractors he owns.
“Q: Does he drive more than one type of farming equipment?”

Where counsel for a party litigant pursues an improper line of argument he thereby invites a reply in kind, and statements made by opposing counsel which would otherwise be objectionable are often proper. Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314, 320 (1964). We find that to be the situation here.

IV.

Last, Smith argues the trial court committed reversible error by refusing to grant her motion for new trial.

Ordinarily, the denial of a motion for new trial rests within the sound discretion of the trial court. This court will not disturb the trial court’s ruling unless the record plainly shows the trial court to be in error in its action on such a motion. Hill v. Cherry, 379 So.2d 590, 592 (Ala.1980). Furthermore, jury verdicts are presumed correct and that presumption is strengthened when the trial court denies a motion for new trial. Finance Inv. & Rediscount Co. v. Wells, 409 So.2d 1341, 1343 (Ala.1981).

As we noted in our discussion of issue one, there was a considerable controversy as to whether Smith’s injuries were proximately caused by the automobile accident for which Blankenship admitted liability. A review of the record reveals there was substantial evidence from which the jury could have concluded Smith’s injuries were not a direct result of that accident. Therefore, the trial court was not in error in refusing Smith’s motion for a new trial.

Because we find no reversible error in the record, the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

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


text:
    Ronald L. MOATES v. Susan Gail Moates MORGAN.
    Civ. 3109.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.
    Rehearing Denied Dec. 1, 1982.
    Clifford W. Cleveland, Prattville, for appellant.
    Stephen M. Langham, Prattville, for ap-pellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This garnishment proceeding was instituted in an attempt to collect delinquent child support payments which were allegedly due by the father under a divorce judgment.

In their divorce settlement, the father agreed to pay to the mother the sum of $300 per month for the support of their three minor children. The October, 1978, divorce judgment approved that agreement. After almost three years, the mother executed affidavits which, among other matters, stated that the father was $4,000 in arrears for child support as ordered by the 1978 judgment. A writ of garnishment was issued against the father’s employer. The father filed a motion to void the garnishment on several grounds. One of his aver-ments was that the trial court had not reduced to a judgment the delinquent support payments before the initiation of the garnishment proceeding.' The trial court determined that such a reduction of the past due installments to a judgment was not a condition precedent to the issuance of garnishment and the father’s motion was overruled. He appeals.

Many Alabama cases contain language to the effect that “installment payments decreed in a divorce for support and education of the minor child of a marriage become final judgments as of the dates due and may be collected as other judgments.” Armstrong v. Green, 260 Ala. 39, 68 So.2d 834, on rehearing, 260 Ala. 45, 68 So.2d 839 (1953). From those words it would appear that it is not essential that delinquent child support payments be initially reduced to a monetary judgment by the court which rendered the divorce judgment prior to the issuance of a writ of garnishment or a writ of execution. While the authorities are sharply divided on that point, several jurisdictions have given a literal interpretation to the stated rule and permit garnishment to issue for due and unpaid child support or alimony payments without any prior proceedings to reduce those payments to a definite sum certain judgment. Gray v. Gray, 238 Iowa 723, 27 N.W.2d 123 (1947); Andrews v. Andrews, 171 Kan. 616, 237 P.2d 418 (1951); Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68 (1948); Martin v. Martin, 59 Wash.2d 468, 368 P.2d 170 (1962); Stemme v. Stemme, 351 S.W.2d 823 (Mo.App.1961). However, a thorough search and study of decisions of our supreme court lead in a different direction and dictate a contra result.

In Miles v. Gay, 280 Ala. 131, 140, 190 So.2d 686, 694 (1966), it was decided on rehearing that, under what are now §§ 6-9-210 and -211 of the Code of Alabama of 1975, as to the nonpayment of periodic installment payments decreed by a divorce judgment, a lien pursuant to the code could be acquired “only by a judicial ascertainment and declaration of the amount of past due installments” and the subsequent filing of the required certificate showing such a judgment or decree.

The case of Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968), and the latest case of Austin v. Austin, 364 So.2d 301 (Ala.1978), utilize language that is decisive of the present issue.

In Austin it was decided that past child support payments may not be a charge against the estate of the deceased father where the amount due is in dispute and has not been reduced to a monied judgment. Therein it was stated:

“Considerable confusion has arisen because of the appellation that past due and unpaid child support and alimony payments are ‘judgments’ or ‘final judgments.’ See Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977). It is commonly stated that installment payments decreed in a divorce for alimony or support and maintenance of minor children become final judgments as of the dates due and may be collected as other judgments. See Andrews v. City National Bank of Birmingham, supra; O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969); Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963); Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953) (On Rehearing). The ‘finality’ of these judgments appears to have arisen from those cases which hold that installments which mature before a petition to modify is filed are immune from change. Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); Scott v. Scott, 265 Ala. 208, 90 So.2d 813 (1956).
“Past due and unpaid alimony or child support payments are not ‘judgments’ for all purposes.... ”

Austin v. Austin, supra, at 302. Therein, reliance was placed upon the Miles decision and the opinion further quoted with approval from the Dodd case, wherein the following was asserted:

. “By analogy, the doctrine of Miles v. Gay, supra, would deny the enforcement of an Alabama decree providing for periodic payments of alimony until the accrued installments had been transmuted into a monied judgment for an amount certain.
“We hold therefore that for a decree for alimony, as to accrued installments to be given effect in this state, it must be reduced to a judgment in this state for a sum certain by appropriate proceedings brought for that purpose.”

Dodd v. Lovett, supra, 282 Ala. at 386, 211 So.2d at 802.

After applying the essential facts of this case to the holdings and language of the Miles, Dodd and Austin cases, supra, we have no alternative but to hold that, in the present case, prior to the issuance of the writ of garnishment, the wife, through proper proceedings brought for that purpose, should have had the delinquent child support installments reduced by the trial court to a judgment for the exact amount then ascertained by that court to be due under the provisions of the 1978 divorce judgment.

We realize that this decision may appear to be at variance with implications contained in O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969); however, the question here raised was not therein discussed and apparently was not an issue in the O’Neal case. While the procedure here utilized by the wife appears to be reasonable and while it afforded procedural due process through • notice and an opportunity by the father to appear and contest the amount, if any, due to be garnished for delinquent support payments, we are bound by and must follow the latest supreme court holding and decision in the Austin case. Ala.Code § 12-3-16 (1975).

It is further noteworthy that in 1981 legislation was passed which concerned alternative provisions for the garnishment of salaries of parents who are under a court order to provide child support, and the legislature provided that the trial court itself would enter the appropriate order for garnishment and set the amount thereof not to exceed 40% of disposable wages after proper service and hearing. Ala.Code § 6-6-490 et seq. (1975).

The motion of the father should have been granted. We must reverse and remand.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice. TORBERT, Chief Justice MADDOX, Justice

text:
    Ex parte Susan Gail Moates MORGAN. (Re Ronald L. MOATES v. Susan Gail Moates MORGAN).
    82-257.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      Stephen M. Langham, Prattville, for petitioner.
    Clifford W. Cleveland of Cleveland, Booth & Bush, Prattville, for respondent.
   FAULKNER, Justice.

We granted certiorari to review a decision of the Court of Civil Appeals requiring the plaintiff to have delinquent child support installments reduced to a judgment by the trial court before instituting garnishment proceedings. We reverse.

Ronald L. Moates and Susan Gail Moates Morgan were granted a final judgment of divorce on October 28, 1978. The divorce decree ordered Mr. Moates to pay the sum of $300.00 per month for the maintenance and support of the three minor children of the union. On August 4,1981, the plaintiff, the former Mrs. Moates, filed a petition for citation for contempt in the Circuit Court of Autauga County, Alabama, against her former husband, alleging, inter alia, that her former husband had willfully failed to pay support for the minor children.

In response, the defendant filed a motion for general continuance, which was granted by the trial court on August 20, 1981, because Mr. Moates was in the military and had not accumulated sufficient leave to be absent from his military duties. Susan Gail Moates Morgan then had a process of garnishment issued from the Circuit Court of Autauga County, Alabama, on October 8, 1981. The garnishee was the Air Force Accounting and Finance Center of Denver, Colorado. The process of garnishment listed the date of the judgment as October 23, 1978, which is the date of the parties’ final judgment of divorce. The judgment amount is listed as $4,000.00 plus $9.00 costs, for a total garnishment amount of $4,009.00. The garnishment pleadings included an affidavit, duly sworn by Mrs. Morgan, stating that as of September 8, 1981, the defendant was $4,000.00 in arrears for his child support obligations pursuant to the October 23, 1978, divorce decree.

On November 5, 1981, Mr. Moates filed a motion to void garnishment, claiming, inter alia, that the garnishment was void due to the fact that the garnishment amount had not been reduced to a judgment and that the amount of the current garnishment was based on an ex parte determination by the plaintiff.

The trial court denied the motion to void the garnishment. It held that it was not necessary to reduce the arrearage to a judgment prior to issuing a garnishment. The Court of Civil Appeals reversed on the authority of this court’s opinion in Austin v. Austin, 364 So.2d 301 (Ala.1978). In Austin, the issue before the court was whether past due child support payments may be charged against an estate where the amount due was in dispute and had not been reduced to a monied judgment. The Austin court, relying on Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968), and Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1966), as its authority, held that accrued installments of alimony must be reduced to money judgments before a claim against a decedent’s estate would be permitted.

In Miles the wife filed a lien against the husband’s estate for past due installments of alimony based upon the judgment of the divorce decree awarding her “$10.00 per week, beginning on the 29th of September 1945.” There was no sum certain mentioned in the certificate filed by the wife in the probate court — “just $10.00 per week, beginning on the 29th of September 1945.” The court stated:

“In addition to the remedy for contempt, the wife, who has obtained a decree requiring the husband to make periodic payment for the wife, can protect herself under the present statute as to past-due installments by obtaining from the court an adjudication that the husband is indebted to her in the amount of the delinquent payments as determined by the court. It would seem clear that recording a proper certificate based on such a judgment for a stated amount would give the wife a lien on the property of the husband for the amount judicially ascertained to be due.”

The court then rendered its opinion by saying:

“We are of opinion that, under the present statute, §§ 584, 585, Title 7, a lien for periodic installment payments can be acquired only by a judicial ascertainment and declaration of the amount of past-due installments and filing a proper certificate showing such a judgment or decree.”

After its decision in Miles, this court was presented the question of whether a claim for past due alimony installments under a Georgia court decree filed by the adminis-tratrix of a deceased divorced wife against the estate of the divorced husband would be allowed without reduction to judgment. See Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968). Adhering to its decision in Miles, the Dodd court stated:

“By analogy, the doctrine of Miles v. Gay, supra, would deny enforcement of an Alabama decree providing for periodic payments of alimony until accrued installments had been transmuted into a monied judgment for an amount certain. No greater effect need be given a decree of a sister state than is given a decree of this state.”

The court held that for a decree for alimony, as to accrued installments to be given effect in this state, it must be reduced to judgment in this state for a sum certain by appropriate proceedings brought for that purpose.

We now come to the heart of the issue in this case, i.e., must past due installments for child support under an Alabama court decree be reduced to a monied judgment before garnishment proceedings can be instituted against the delinquent father? The answer to this question does not come from Austin, Miles, and Dodd. It comes from Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953), O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969), and Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977).

Armstrong established the rule that installment payments decreed in a divorce for support and education of the minor children of the marriage become final judgments as of the dates due and may be collected as other judgments. O’Neal, citing Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825 (1938), held that a decree for child support is a fixed monied judgment, as to past due installments, which can only be discharged as any other such judgments. In Andrews, the court held that alimony is a debt which becomes a final money judgment as to past due installments. Thus, being a final judgment, the past due installments of alimony were subject to being attached by a writ of garnishment filed by a creditor of the divorced wife.

We find that Austin, Miles and Dodd appear to be 180 degrees from Armstrong, O’Neal and Andrews. Can these cases be distinguished with any degree of logic? To be sure, Miles and Dodd can be distinguished with logical reasoning. Austin is an inexplicable circumstance.

In Miles the wife secured a certificate of judgment in an uncertain amount and filed that as a claim against the estate of her former husband. Not only was the certificate in an uncertain amount, but it also lacked a statement of the amount of costs. The court held that under the statutes — §§ 584, 585, Tit. 7, Code 1940 — the certificate was insufficient to establish a lien. Because of this, it was necessary that past due installments be reduced to money judgments in a sum certain before the claim would be allowed. And, in Dodd, the court had before it a Georgia court decree awarding periodic alimony, and a claim for past due installments was filed against the deceased husband’s estate. This court held that accrued installments must be reduced to a monied judgment before the claim against the estate would be permitted. There is a logical reason for the court’s holding. First, the decree was from a foreign jurisdiction. Second, for a decree of a foreign jurisdiction to be enforceable in this state, the foreign decree must be made a judgment in this state. Cf. Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810 (1901). That is the rule under the Full Faith and Credit Clause of the United States Constitution.

And, now Austin. Austin ⅛ authority for holding that a claim for past due installments of child support must first be reduced to a monied judgment was, as stated above, Miles and Dodd. Neither of those cases should have been authority for our holding in Austin. The holdings of those decisions simply do not come within the facts of Austin. Chief Justice Torbert correctly stated, in his special concurrence, that the majority in Austin had misplaced its reliance on Miles and Dodd. He correctly said that:

“There is no reason in law that claims for alimony or child support should be treated any differently than any other claim or debt asserted against an estate by requiring that such payments be first reduced to a judgment.”

We are of the opinion that Austin does not have any relationship to the case before us, and, therefore, cannot be authority for resolving the issue of the case.

We hold that past due installments of child support — like past due installments of alimony found in Andrews — create a final monied judgment, and that a writ of garnishment is a legally permitted method of collecting that judgment. There is no logical reason for having the judgment of past due installments reduced to a monied judgment. It is already a monied judgment.

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded.

REVERSED AND REMANDED.

JONES, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

MADDOX, ALMON and EMBRY, JJ., dissent.

TORBERT, Chief Justice

(concurring specially).

Although I agree with the holding of the majority that past due installments of child support are final money judgments and that a writ of garnishment is a legally permitted method of collecting those judgments, I disagree with the majority’s failure to recant the basis of this Court’s holding in Austin v. Austin, 364 So.2d 301 (Ala.1978). The plurality opinion in Austin provided that a disputed claim for past due child support under a divorce decree cannot be allowed as a claim against an estate unless first reduced to a monied judgment. I disagreed with the basis of the decision in Austin, but concurred in the result for two reasons. First, child support payments which mature more than twenty years before a claim is filed are conclusively presumed satisfied, and second, child support payments should not be awarded to children after they reach their majority or after their marriage. 364 So.2d at 303 (Torbert, C.J., concurring specially).

The majority opinion correctly points out that the plurality in Austin misplaced its reliance on Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1966), and Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968). The majority characterizes Austin as an inexplicable circumstance but fails to recant the basis of that decision, stating that it “does not have any relationship to the case before us, and, therefore, cannot be authority for resolving the issue of the case.”

The basis of the decision in Austin cannot be distinguished from the present facts. The issue in Austin was whether past due child support payments may be charged against an estate when the amount due has not been reduced to a monied judgment. The majority holds here that past due child support payments are final money judgments. Installment payments decreed in a divorce for alimony or child support become final money judgments on the dates they are due. I concur in the result and the reasoning of the majority, but disagree with the majority’s failure to recant the basis of this Court’s holding in Austin.

MADDOX, Justice

(dissenting).

The majority does not expressly overrule Austin v. Austin, 364 So.2d 301 (Ala.1978), but the holding of the opinion has that effect; therefore, I respectfully dissent.

ALMON and EMBRY, JJ., concur.


text:
    Ronald L. MOATES v. Susan Gail Moates MORGAN.
    Civ. 3109.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The prior opinion of this court, 440 So.2d 1067, has been reversed and remanded by the Supreme Court, 440 So.2d 1069. On remand to this court, and in compliance with the Supreme Court’s opinion of September 23,1983, this cause is now affirmed.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    James H. LEWIS v. Donald and Alice DOUGLASS.
    Civ. 3469.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    As Modified on Denial of Rehearing Aug. 10, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1126.

      George Beck of Baxley, Beck & Dillard, Montgomery, for appellant.
    J. Michael Manasco, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is a child custody case.

In 1975 Victoria Douglass, the common-law wife of James H. Lewis, gave birth to a boy. The child was born in Butler County but soon thereafter mother, father, and child moved to Kansas. Two years later the mother abandoned her son and husband. Lewis and his son moved in 1979 from Kansas to Southport, Florida. In March 1981 Lewis’s father retired and moved in with him. Prior to his father’s retirement, Lewis would leave his son in Montgomery with the boy’s maternal grandparents, Donald and Alice Douglass, from Monday to Thursday night. Thursday nights Lewis would return to Montgomery and would spend the weekend with his son at his father’s house in the Montgomery area.

On February 13, 1981 the Douglasses filed a petition in the Montgomery County Juvenile Court for custody of the child. They alleged in the petition that Lewis took the boy from their home and he had not advised them of the child’s whereabouts. They also alleged that the child, while in his father’s care, was being exposed to the handling of an illegal drug. The court on February 25, 1981 granted temporary legal custody of the child to the Montgomery County Department of Pensions and Security (DPS) and set a hearing on the matter for April 1, 1981. Physical custody of the child was placed with the maternal grandparents. Lewis filed petitions to modify or set aside the court’s order. The petitions were denied. The father then filed a motion for a DPS investigation and home study of him. This motion was granted and the father was given visitation privileges.

The parties on March 31, 1981 entered into a settlement agreement which stated that the parties shall share the permanent care, custody and control of the child. The child was to reside with the Douglasses during the school year and his father during the summer, AEA holidays, and one week during Christmas vacation. Visitation rights were also given to both parties. This agreement was ratified by a court order on April 2, 1981.

In the latter part of May 1981, Lewis took the child to Florida for the boy’s summer visitation. Soon thereafter Lewis began child custody proceedings in Florida.

The grandparents filed in July 1981 a citation for contempt and petition to clarify the court’s order of April 2. They alleged that the father had not cooperated with the visitation rights provision of the decree. The court set a hearing date and ordered that Lewis deliver the child to the court. Lewis did not appear at the hearing. The court held Lewis in contempt for his failure to appear and deliver the minor child to the court.

On December 5, 1981 Lewis moved for a stay of all Alabama proceedings until the resolution of a jurisdictional question in the Florida custody proceedings. The stay was granted. On January 12, 1982 the Florida court decided that it lacked jurisdiction to determine the custody of the child. The father appealed this decision in Florida. Lewis was later ordered by the Florida court to deliver the child on April 26, 1982 to the Montgomery County DPS. The father moved to stay this order so that his son could complete the school year in Florida. After a hearing on the motion, the motion was denied. On May 5, 1982, the date the stay was denied, Lewis filed a petition in Alabama for modification of the custody decree. In his petition he alleged a material change in circumstances and asked for sole custody of the child. An ore tenus hearing on the issue of modification was held. Depositions were offered at the hearing. On August 4, 1982 the court found Lewis in contempt and determined that there was insufficient proof of a material change in circumstances that would justify granting the relief he asked for. The court did specifically set out in the order the periods of visitation and custody and required Lewis to post a performance bond prior to his exercise of visitation or custody privileges to insure his compliance with the decree. The court ordered the father to pay $5,000 to the grandparents for expenses they incurred in litigation after the April 2, 1981 decree.

The father appeals and claims that the trial court erred by not granting to him full custody of the child. He argues that the trial court misapplied the law to the facts and therefore the ore tenus standard of review does not apply in this case. Lewis, relying on Mathews v. Mathews, 428 So.2d 51 (Ala.Civ.App.), writ denied, 428 So.2d 58 (Ala.1982), asserts that a natural parent has a prima facie right to custody of his child, as against the custody of a nonparent. This presumption that the child’s best interests will be served if he is in the custody of a natural parent is very strong. Absent evidence of a voluntary forfeiture of the right to custody, which the father argues is lacking in this case, the presumption will be overcome only upon a finding that the parent seeking custody is guilty of such neglect or misconduct as to render that parent an unfit and improper custodian of the child. Mathews v. Mathews, supra. The father states the burden was upon the grandparents to prove by clear and convincing evidence that the presumption of the natural parent’s right to custody should be overcome. Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980). Hence, the Doug-lasses failed to meet their burden.

We disagree with the husband’s contention that the trial court misapplied the law. The strong presumption favoring the natural parent as custodian applies to an initial custody determination, which in this case was reached on April 2,1981 when the trial court ratified the parties’ custody agreement. We find no authority for applying this presumption when a noncustodial parent is seeking modification of the prior custody decree. See Simpson v. Gibson, 420 So.2d 782 (Ala.Civ.App.1982); Chandler v. Manning, 411 So.2d 160 (Ala.Civ.App.1982). Furthermore, as set out in Mathews, the presumption is overcome when the right to custody was voluntarily forfeited. The father forfeited his right to full custody of the child when he entered into the joint custody agreement with the Douglasses.

A party seeking modification of a child custody decree has the burden of showing a material change in circumstances which adversely affects the welfare of the child. Pons v. Phillips, 406 So.2d 932 (Ala.Civ.App.), cert. denied, 406 So.2d 935 (Ala.1981). “The petitioner’s burden of proof in custody modification is a heavy one in that (1) the original decree is presumed correct, (2) there must be a substantial reason for the change, and (3) the surrounding circumstances must affect the welfare of the child.” Cheatham v. Cheatham, 403 So.2d 250 (Ala.Civ.App.1981) (citations omitted). Lewis argues that he proved a material change in circumstances and thus the decree should have been modified. The father asserts that in the year his son lived with him in Florida, the boy made good grades in school. Once the child was returned to Montgomery his grades declined. Testimony was presented that Lewis was a good father and the boy should be with his father.

We note that the primary consideration in ruling on a motion for change of custody is the best interests of the child. Kieth v. Kieth, 380 So.2d 889 (Ala.Civ.App.1980). Whether the child custody decree is to be modified is a matter vested in the trial court’s discretion. When testimony is taken ore tenus, as in this case, it is presumed the judgment is correct and will not be disturbed on appeal unless the judgment is so unsupported by the evidence as to be an abuse of discretion. Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981). Testimony was presented as to the husband’s prior and present involvement with an illegal drug. Testimony was also presented that Lewis had a live-in female companion. In view of this testimony and all the other testimony in the record, we cannot say that the trial court abused its discretion by not modifying the custody decree.

Lewis also argues, in essence, that the trial court erred by making an award to the grandparents for litigation expenses. On July 26, 1982 the Douglasses filed a prayer for specific relief in which they requested, among other things, that Lewis be held in contempt and that he “be required to reimburse the maternal grandparents for all costs, expenses and attorneys’ fees they have incurred from May 23, 1981 up to and including the present date, including but not limited to the Alabama contempt of court proceedings, the Florida proceedings at the trial level and appellate level; and including the Alabama appellate proceedings and this hearing.” The evidence showed that the grandparents had expended in excess of $11,000 in fees and expenses in the protracted litigation relative to securing the return of their grandchild. The trial court stated in its decree that “[t]he natural father shall pay to the maternal grandparents the sum of $5,000 which reflects a portion of their fees and expenses incurred relative to the protracted litigation since this Court’s Order of April 2, [1981]

This court, relying on Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975), recognized in Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978), that a trial court could assess damages in favor of an aggrieved party in civil contempt proceedings.

We consider that the trial court did award damages to the grandparents when it awarded them “the sum of $5,000 which reflects a portion of their fees and expenses relative to the litigation.” We find no error here.

The judgment of the trial court is affirmed.

AFFIRMED.

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

ON APPLICATION FOR REHEARING

OPINION MODIFIED.

APPLICATION FOR REHEARING OVERRULED.

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


author: HOLMES, Judge.

text:
    EDGEWOOD SERVICE CENTER v. Alfred C. HOGAN.
    Civ. 3664.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    Rehearing Denied Aug. 3, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1101.

      Max Hudson of London, Yancey, Clark & Allen, Birmingham, for appellant.
    Charles L. Howard, III of Howard & Howard, Birmingham, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee sued his employer to recover workmen’s compensation benefits. After an ore tenus hearing, the trial court entered a judgment for the employee finding him to be permanently and totally disabled and awarded benefits accordingly. Thereafter, the employer filed a motion for new trial which was denied. The employer now appeals to this court by certiorari. Finding no reversible error in the action taken by the trial court, we affirm.

On appeal, able and distinguished counsel for the employer contends that (1) the medical testimony does not support a finding that the employee is totally and permanently disabled and (2) the trial court committed reversible error in failing to make a specific finding concerning the retrainability of employee for gainful employment.

The record reveals the following pertinent facts: The employee was an auto and truck mechanic and had been so employed in that occupation for approximately forty years. The employee began working for the employer in October of 1978. His duties were that of a general mechanic. On January 17, 1979, while working on the brakes of a Frito-Lay truck at the direction of his employer, the employee suffered a severe injury when a wheel fell off the truck and onto him causing him to strain or sprain his back. The evidence indicates, and the employee so testified, that he informed his employer that day that he had hurt his back and requested that he be allowed to go home and do something for it. The next morning the employee could not get out of bed without assistance. Since the date of the accident, the employee has worked approximately one-half day but has done no other work. The evidence in the record indicates that the employee requires almost constant assistance; that he can no longer perform any of his normal activities; and that he suffers from a great deal of pain as a result of his injury. The employee has seen several doctors for diagnosis and treatment of his injury, some at the request of the employer. None have been able to help him. The employee takes prescribed medication daily to ease the pain and spends several hours daily in a traction device. The employee also wears an electrical device which sends electrical currents into his back muscles and provides him some relief.

We are aware that the record contains conflicting testimony concerning the degree of disability suffered by the employee. However, it is the duty of the trial court to make some determination as to disability. In making that determination, it is not bound by expert medical testimony. The trial court must consider all the evidence, including its own observation, and interpret it to its own best judgment. Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980). Where evidence, expert testimony or otherwise, is in conflict, the weight to be given that evidence is a question for the trial court. Albertville Nursing Home v. Upton, supra. In any event, this court will not look to the weight of the evidence but will only look to see if there is any legal evidence to support the findings of the trial court. Jasper Community Hospital v. Hyde, 397 So.2d 153 (Ala.Civ.App.1981). In the instant case, there is ample evidence from which the trial court could find that the employee suffered a severe back strain or sprain which rendered him unable to work and caused him to be permanently and totally disabled.

Furthermore, while the trial court did not specifically find that Hogan could not be retrained for gainful employment, this court finds that implicit in its conclusion that Hogan was permanently and totally disabled is the finding that he could not be retrained. That finding of fact, however, must be supported by some evidence. Thompson and Co. Contractors v. Cole, 391 So.2d 1042 (Ala.Civ.App.1980). Hogan was approximately fifty-one years old at the time of the accident. He had been employed as a mechanic for more than forty years. As a result of his injury he can no longer perform normal daily activities. His attempt to return to work was unsuccessful. He experiences severe pain during normal movement and he requires constant attention. We therefore find there is more than sufficient evidence to support an implied finding that Hogan cannot be retrained for gainful employment.

In view of the above, our review of the record establishes that the judgment is supported by some evidence and, hence, we find no error.

The judgment is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    William B. OWENS v. Earl DURDEN d/b/a Durden Outdoor Advertising.
    Civ. 3624.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Sept. 7, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1284.
    James A. Ward, III, Dothan, for appellant.
    J. Huntley Johnson of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This appeal involves the determination of corporate or individual liability in a breach of contract case.

William B. Owens is president and principal stockholder of Imperial Volkswagen, Inc., of Dothan. Owens signed a contract with Earl Durden of Durden Outdoor Advertising providing for the painting and maintenance of six billboards in various locations in Dothan. The contract was prepared by Durden and stated therein “Imperial Volkswagen-Porsche Audi” to be the advertiser. It was signed by William B. Owens over the typed words “Imperial Volkswagen-Porsche Audi.” “Imperial Volkswagen-Porsche Audi” is not the proper name of the corporation which operated the automobile dealership.

The contract provided for maintenance of the specified advertisements for a period of twenty-four months. The beginning date of the contract was December 1,1980. The monthly payment for the advertising was $650. Imperial Volkswagen, Inc. issued its checks for eleven monthly payments before ceasing. Durden subsequently filed his complaint for breach of contract against Owens “d/b/a Imperial Volkswagen-Porsche Audi.” Durden subsequently added Imperial Volkswagen, Inc., as a party to the action.

Trial was held without a jury. Judgment was entered in favor of Durden against Owens, individually, for $4,600 plus costs. Judgment was also entered in favor of Imperial Volkswagen, Inc., and against Dur-den. Owens’ motion to alter, vacate or amend the judgment was denied.

The issue presented on appeal is whether the trial court erred in holding Owens liable individually and in not holding Imperial Volkswagen, Inc., liable on the contract. Owens contends that the court erred in holding him liable individually because no evidence was presented that he was acting as an individual when he signed the contract. The general rule is stated in 3 Am. Jur.2d Agency § 294 (1962):

“If a contract is made with a known agent acting within the scope of his authority for a disclosed principal, the contract is that of the principal alone and the agent cannot be held liable thereon, unless credit has been given expressly and exclusively to the agent and it appears that it was clearly his intention to assume the obligation as a personal liability and that he has been informed that credit has been extended to him alone.”

The Supreme Court of Alabama expressed the rule this way:

“The legal presumption is, when a known agent deals or contracts within the scope of his authority, that credit is extended to the principal and not to the agent; and that the dealing is the act, or the contract is the engagement, of the principal alone, as if he were personally present and acting or contracting. This presumption prevails in the absence of evidence that credit was given to the agent exclusively and the burden of proof rests upon the party seeking to charge him personally. If the contract or promise is in writing, its construction and effect are, ordinarily, questions of law for the decision of the court.”

Anderson v. Timberlake, 114 Ala. 377, 386, 22 So. 431, 433 (1897). See also, Davis v. Childers, 381 So.2d 200 (Ala.Civ.App.1979), cert. denied, 381 So.2d 202 (Ala.1980); and Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972).

In the present case, the contract reveals that Durden knew Owens to be an agent of the car dealership. The two had dealt with each other before. The contract lists “Imperial Volkswagen-Porsche Audi” as the advertiser — not Owens. Although the correct corporate name is not used, the dealership is sufficiently identified, and the intention of the parties to bind that dealership is clear. It is not contended that Owens acted outside the scope of his authority. The contract was therefore sufficient to invoke the presumption that Owens acted to bind the dealership.

No evidence was ever presented that the contract was extended exclusively and expressly to Owens, or that it was Owens’ intention to assume the liability personally. The burden of proof was on Durden to present sufficient evidence of this intention to rebut the presumption favoring corporate liability in this case.

The trial court, hearing the evidence ore tenus, is afforded a presumption of correctness in its judgment and will not be reversed unless palpably wrong, without supporting evidence or manifestly unjust. This court is always hesitant to overturn the trial court on a factual determination; however, the presumption of correctness does not apply where the trial court erroneously applies the law to the facts. League v. McDonald, 355 So.2d 695 (Ala.1978). In view of the presumption in favor of Owens and the failure of Durden to rebut that presumption, the trial court erred in holding Owens liable on the contract.

Durden argues that this situation is governed by § 7-3-403, Code of Alabama 1975, and that Owens is liable on the contract because the contract fails to state Owens’ corporate office. However, by its own terms, Article 3 of the Uniform Commercial Code applies only to commercial paper. § 7-3-103, Code 1975 (official comment). Specifically, § 7-3-403 applies to a signature on an “instrument,” which is defined in § 7-3-102(l)(e) to mean a “negotiable instrument.” The contract in question in the present case is not a negotiable instrument. § 7-3-104, Code 1975. The argument is without merit.

The issue of the liability of the corporation is not before us on appeal.

The judgment of the trial court is reversed and judgment for defendant Owens directed to be entered.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ„ concur.