author: PATTERSON, Chief Justice,

text:
    Patricia Karen STUBBS v. STATE of Mississippi.
    No. 54016.
    Supreme Court of Mississippi.
    Dec. 21, 1983.
    Rehearing Denied Jan. 11, 1984.

      Charles R. Holladay, Picayune, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

Patricia Karen Stubbs was convicted of aggravated assault and sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections by the Circuit Court of Pearl River County.

On September 9, 1981, Patricia and her husband, Larry Stubbs, were estranged. Desiring to speak to her husband, Patricia went to his home in Picayune and waited until her husband arrived from his work. Although she endeavored to speak with him, Larry ignored her and went into the house and latched the door. Larry’s mother told him that Patricia wanted to speak with him, but he responded that he didn’t want to talk to her. On hearing that, Patricia said, “You bad M.P., stay here till I get back. I am going to show all of y’all something.”

Thereafter Larry went into the yard of his home and with his brother began working on a disabled van. As they were working, Patricia appeared, drew a pistol and fired three times. Larry was struck in the right shoulder and his brother, Grayson, was struck in the foot. Evidently the third shot went astray.

Patricia Stubbs appeals and assigns as error:

1. The trial court erred in compelling the defendant’s husband to testify against her when he was unwilling to do so;

2. The trial court should have granted an instruction for a lesser offense; and

3. An oral statement of the trial judge to the jury may have improperly influenced their verdict inasmuch as the jury was led to believe their recommendation of leniency would be taken into consideration.

We first consider whether the court erred in compelling Larry Stubbs to testify against his wife when he was unwilling to do so. Mississippi Code Annotated, § 13-1-5 (Supp.1983), provides:

Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.

We first observe the statute provides (1) either spouse may introduce the other as a witness in all cases between them; (2) either spouse is a competent witness to testify against the other for a criminal act against a child; (3) in all other instances where either is a party litigant the other spouse shall not be competent as a witness.

We next note that Larry Stubbs objected to testifying against his wife and based his objection upon Mississippi Code Annotated, § 13-1-5 (Supp.1983). The objection was overruled and Larry was compelled to testify against his wife, the court being of the opinion the crime charged was against the peace and dignity of the State of Mississippi and was not a domestic difficulty between the defendant and the witness. The posture of this case does not conform to either of the categories of Section 13-1-5 making one spouse a competent witness in that Larry was introduced as a witness not by his spouse but rather by the State of Mississippi, and neither did the charge concern a criminal act against a child. It is therefore urged that the third category of the section controls. It provides that in all other instances where either spouse is a party litigant the other shall not be competent as a witness against the other. Doubtless the statute makes no provision for a case in the posture of this one and since this is so, we need turn to the common law for guidance.

In Turner v. State, 60 Miss. 351, 353-54 (1882), it is held:

Stating the question most strongly for the appellant, it is this: Is the wife a competent witness against the husband in a prosecution against him for an injury to her person, when she objects to giving evidence?
The reasons why husband and wife were incompetent for or against each other at common law were: First, the unity of person and interest subsisting between them; and, secondly, the regard which the law had for the harmony of the marital relation, to preserve which neither spouse was permitted to testify against the other.
But at common law a wife was competent to testify against her husband in a prosecution for assault and battery on her. In such cases, the husband, having violated the sanctity and peace of the household, it was deemed more consonant with the interest of the public that the wife should gain protection through his punishment, than that she should be subjected to the danger of neglect and injury inflicted in the privacy of domestic life, by the husband, who had the power to exclude from its precincts all competent witnesses of his offences.
The exception was permitted for the protection of the wife; but it was a protection afforded to her not purely as an individual, but as one of the public. Punishment is not inflicted by the law upon a wrong-doer to deter him or others from again wronging the particular individual injured, but to deter him and others from again injuring any person whatever. The husband, therefore, who assaults his wife, commits an injury, not only upon her, but upon society, of which they are members. It is for the injury to the public, committed upon it through the person of the wife, that he is punished. It is for the protection of society, and of the wife as a member of society, that she is made competent as a witness against the husband, for injuries committed by him on her. It is the offence against the public for which he is tried. He is offender of the public, and not the wife alone, and she is competent to testify as a witness for the public, and not as a witness for herself.
And it is a competency not to be waived by her, or affected by her desires or fears.

The judgment is affirmed.

See also, McRae v. State, 104 Miss. 861, 870, 61 So. 977, 978 (1913); Merritt v. State, 339 So.2d 1366 (Miss.1966); and McQueen v. State, 139 Miss. 457, 104 So. 168 (1925).

We conclude there was no error in compelling Larry Stubbs to testify against his wife even though this was against his wishes. We think his individual desire was overcome by the paramount interest of the state in preserving its criminal laws. For the foregoing reasons, we think there is no merit in the suggestion that Larry Stubbs’ rights under the fifth amendment to the U.S. Constitution and those under Article III, Section 26 of the Mississippi Constitution were violated when he was required to testify against his wife.

It is next urged that the trial court should have been instructed to consider a verdict of simple assault. Of course, such an instruction is proper when the element of intent is absent from the assault. Markham v. State, 209 Miss. 135, 136, 46 So.2d 88, 89 (1950). However, the refusal to grant such an instruction is not error where there is no testimony of simple assault, as here where the victim was shot with a deadly weapon. In Grace v. State, 875 So.2d 419, 421 (Miss.1979), a similar case, we held, “We have concluded that this is not a case in which, upon the evidence, the jury could rationally have found Grace guilty of simple assault and not guilty of the crime charged. The trial court properly declined to submit the issue of simple assault to the jury.” We are of the opinion this assignment of error is not persuasive to a reversal.

Through the final assignment of error it is contended the oral comments of the judge to the jury were the equivalent of an instruction which may have influenced the jury to change its verdict inasmuch as they were led to believe that a recommendation of leniency would be taken into consideration by the trial court.

The provisions that a judge should not make unnecessary comments to the jury during its deliberations are undoubtedly strong. Pearson v. State, 254 Miss. 275, 291, 179 So.2d 792, 799 (1965). The rationale for this is stated in Martin v. State, 415 So.2d 706, 708 (Miss.1982). It states in part,

Ordinarily, as little verbal exchange as possible initiated by the jurors to the trial judge is desirable. Morgan v. State, 370 So.2d 231 (Miss.1979). The reason for such a rule is explained in Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965), wherein it is stated:
In the case of Green v. State, 97 Miss. 834, 838, 53 So. 415, 416 (1910), in recognizing the great influence of these officers and the worthiness of the occupants of this honorable position, it was said:
“It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury to avoid prejudice to either party. 21 Ency.P. and P. 994, 995, and notes. The court will not stop to inquire whether the jury was actually influenced by the conduct of the judge. All the authorities hold that, if they were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption. It is a conclusive presumption.” (254 Miss, at 292, 179 So.2d at 799-800.

Persuaded, the court in Martin reversed and remanded because there was testimony that two members of the jury had agreed they would not change their vote, “unless they can plead for a sentence.” 415 So.2d at 707. It was thus apparent that the jury had not reached a verdict and could not reach a verdict unless they could “plead for a sentence.” A quid pro quo situation was thereby established. Under this circumstance we held the court’s statement to the jury that it could include a recommendation of mercy with its verdict could reasonably be interpreted by the jury as an invitation for a guilty verdict by the court in exchange for which mercy would be extended to the defendant. It was for this reason that the case was reversed.

In this case the dialogue between the trial judge and the jury was entirely different, primarily in that the colloquy between the trial judge and certain jurors occurred after the verdict of guilty was read in open court. The jury was asked if that was their verdict and the jury nodded their heads in the affirmative. Following this, a request was made that the jury be polled whereupon, after some opening remarks, the trial court asked,

... So let me start here, was that your verdict at that time when you voted and is it still your verdict?
BY JURY MEMBER:
I didn’t vote not guilty, but
BY THE COURT:
No, what I’m asking you, in the final vote that you voted in the jury room and the verdict that was read in open Court, was that your verdict when you voted?
BY JURY MEMBER:
Uh-huh.
BY THE COURT:
All right, is it still your verdict at this time?
BY JURY MEMBER:
Do I have — you know, would it matter if I voted not guilty?
BY THE COURT:
In other words, I have to know that all twelve members agree. If not, I need for y’all to go back in the jury room and reconfer on this matter, unless all twelve of you have entered this verdict and if it still is each of your verdict. I don’t want to confuse you; am I confusing you?
BY JURY MEMBER:
Explain it to me again.
BY THE COURT:
All right, for the jury to reach a verdict of either not guilty or guilty, all twelve of you have to agree in order for you to reach a verdict. Now, a verdict had been handed to me which I assume all twelve of you agreed on. I don’t know, you may have taken many votes; I don’t know, but the last vote that was taken purportedly all twelve of you agreed on this verdict; is that correct?
BY JURY MEMBER:
Uh-huh.
BY THE COURT:
All right, and do you still concur in that verdict?
BY JURY MEMBER:
(NODDED IN THE AFFIRMATIVE)
BY THE COURT:
All right, let the record show that she has acknowledged to the Court that this was her vote in the jury room and is still her vote.
BY MR. HOLLADAY: (Defense Attorney)
If it please the Court.
BY THE COURT:
Yes, sir.
BY MR. HOLLIDAY:
Did she say it was her vote that the defendant was guilty?
BY THE COURT:
That’s what I understand. Did you vote on the last ballot guilty as charged and do you so still state that that is your verdict.
BY JURY MEMBER:
I still say not guilty, but
BY THE COURT:
All right, let me ask the jury to go back in the jury room at this time, and to the members of the jury, now, of course, if you’re unable to agree on a verdict, then of course, that would also have to be explained, but if you will, go back in the jury room, and if all twelve of you are in agreement — I’ll need you to give back to the jury the pad and pencils because they may need them to revote. So at this time the jury will be asked to go back into the jury room and reconsider your voting, and if all twelve of you can arrive at a verdict, then of course, write your verdict out.
Yes, ma’am.
BY ANOTHER JURY MEMBER:
Can we ask a question, please?
BY THE COURT:
Ma’am?
BY JURY MEMBER:
May we ask a question?
BY THE COURT:
All right, let me explain this, if you ask a question that requires me to give you a legal instruction, I will have to take time to go have it — I can only instruct the jury in writing....
BY JURY MEMBER:
Well, it would require a yes or no.
BY THE COURT:
All right.
BY JURY MEMBER:
Are we allowed only to write we find the defendant guilty; is that all we can say and nothing else?
BY THE COURT:
You need to use one or the other forms. Of course, the other form is we the jury find the defendant not guilty, and if that’s your verdict
BY JURY MEMBER:
I understand that.
BY THE COURT:
Right.
BY JURY MEMBER:
But can we say anything at all in addition to that sentence?
BY THE COURT:
Yes, ma’am, I suppose, so. I don’t know what you’d want to say, but I would not preclude the jury from doing anything that you wanted to do at all.
BY JURY MEMBER:
This is our question, if — we can write that sentence out, can we say something else in addition?
BY THE COURT:
Yes, ma’am or you can say it in open Court, either way. The thing that has got me puzzled is if you have a verdict, and then want to qualify the verdict, then we don’t have a verdict. In other words, the jury has got to render a verdict or not.
BY JURY MEMBER:
Well, we’re not qualifying; a recommendation.
BY THE COURT:
Yes, ma’am, that will be fine as long as we don’t have an
BY JURY MEMBER:
No, we don’t
BY THE COURT:
In other words, find — but we wish this or that. In other words, if that is the case—
BY JURY MEMBER:
No, it’s a recommendation.
BY THE COURT:
Yes, ma’am, that will be fine.
BY JURY MEMBER:
That’s what we wanted to know.
(JURY WAS RETURNED TO THE JURY ROOM TO CONSIDER THEIR VERDICT)
BY THE COURT:
All right, all members of the jury are present.
Now has the jury reached a verdict at this time?
BY JURY MEMBER:
Yes, sir.
BY THE COURT:
All right, Bill, if you will hand the verdict to me at this time.
All right, at this time, Peggy, if you will, read the entire verdict of the jury and the part in parenthesis also, please, ma’am.
BY MRS. STATEN:
We the Jury find the Defendant guilty as charged. We recommend leniency.
BY THE COURT:
All right, now, to the members of the jury, is this the verdict of the jury at this time that all twelve of you have agreed upon?
(JURY MEMBERS NODDED IN THE AFFIRMATIVE)
R. 63-71.

Following this the jury was again polled and each juror responded that the guilty verdict was their verdict. From this circumstance, which differs from that in Martin, it is apparent that there was no quid pro quo situation as in that case. Presently the jury was correctly instructed that their verdict could not be qualified but that they could recommend mercy if they desired. The first verdict of guilty was without a recommendation of leniency. The second verdict was with a recommendation of leniency but both were guilty verdicts absent any qualification in our opinion. Although not an issue we observe a midway term of ten years, not the maximum sentence, was imposed on the defendant.

The record reflects unequivocally that the defendant shot her husband for little, if any, reason. There being no errors of law or judgment, the verdict and sentence must be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ADAMS, Justice. TORBERT, Chief Justice ADAMS, Justice.

license: Public Domain

text:
    Eleanor V. RUTLEDGE, et al. v. BANK OF HEFLIN, et al.
    81-688.
    Supreme Court of Alabama.
    June 3, 1983.
    Rehearing Denied Aug. 26 and Dec. 16, 1983.
    Fred Blanton and James R. Moncus, Jr., Birmingham, for appellants.
    John A. Tinney, Roanoke, for appellees.
   ADAMS, Justice.

This appeal is taken from a final judgment of the Circuit Court for Randolph County. The judgment declared that individual defendants William and Judy Hewitt (the Hewitts) are the owners of certain disputed property, under the doctrine of prescription and repose.

The appellant presents to us the following issues:

1. Whether the trial court erred in concluding from the evidence that one co-tenant had ousted his co-tenants so as to be the sole owner of the real property in question.
2. Whether the trial court erred in concluding that the doctrine of repose, or common law prescription, applies in a situation involving real property, title to which is in two or more persons, in the absence of clear evidence of an ouster.

Finding no error, we affirm.

The facts of the case are as follows:

Winston C. Wood was the sole owner of 120 acres of timberland in Randolph County from 1877 until his death in 1927. He died intestate, leaving four children: C.C. Wood, A.E. Wood, Bessie Rutledge, and D.C. Wood. In 1927, after the death of the father, A.E. Wood delivered to C.C. Wood a deed, purporting to grant to C.C. Wood the entire 120 acres. In 1975, C.C. Wood conveyed the property, individually, to defendant Richard T. Olsen, who, in 1980, conveyed it to the Hewitts.

C.C. Wood died in March 1980, and in January, 1981, the appellants, descendants of Bessie Rutledge and of D.C. Wood, filed an action to quiet title and sell the land for division. In their complaint the plaintiffs claimed collectively an undivided one-half of the property, and conceded that the Hewitts owned the other half. The defendants counterclaimed title to the entire property by adverse possession, prescription, statute of limitations and laches.

The court, after hearing the evidence orally without a jury, found in favor of the defendants’ counterclaim. In his order, he stated:

Attorneys for the parties have provided me with excellent statements of their positions, and I sympathize with both. On the one hand it should be and is difficult for a co-tenant to obtain good title as against the other co-tenants. However, the doctrine of repose requires that a person seek enforcement of his legal rights within twenty years.
The defendant’s predecessor in title had a recorded deed to the property for over fifty years; he exclusively assessed and paid taxes on the same in his own name for more than thirty years; he sold timber from the land; he executed a deed to the power company for a right-of-way; his neighbors considered him the owner; no joint owner questioned his claim until after he was dead. The defendants certainly had a right to rely on the appearance of things and the joint owners slept on their rights. After all the original joint owners had died, various heirs seek to establish a claim. This cannot be done because too many lips are sealed over the long lapse of time. To me, the doctrine of repose is clearly applicable in this case.

The court then went on to declare the Hew-itts sole owners of the property.

In establishing adverse possession or prescription by one co-tenant against other co-tenants, possession of one is presumed to be the possession of all, and such possession does not become adverse until the other co-tenants are actually ousted, or, short of ouster, the adverse character of the possession of one is actually known to the others, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the co-tenants on notice of its adverse character. Tyson v. Jackson, 364 So.2d 1140 (Ala.1978); Foshee v. Foshee, 278 Ala. 205, 177 So.2d 99 (1965).

However,

Numerous cases hold, recognize, or affirm that if a cotenant enjoys the sole, and the undisturbed and peaceable, occupancy for a long period of time, such as for 20 years or longer, without there having been any sharing with, or demand for a sharing by, those out of possession, of the rents and profits, or of the possession or other benefits of the premises, and without there having been any acknowledgment of the cotenancy on the part of the possessor, the facts and circumstances will, in various instances, warrant a presumption or inference that an actual ouster or disseisin of the possessor’s cotenants occurred, and that an adverse possession was accordingly established against them, as of an early date (or, according to some cases, that a grant by them was made), in reasonable explanation of such possession and circumstances and in affirmance of title in the possessor, though no direct evidence of an actual ouster has been adduced.

Annot: 83 A.L.R.2d 132 (1962).

In Miller v. Vizzard Investment Co., 195 Ala. 467, 70 So. 639 (1916), this court followed the above cited rule. In that case an owner of property lived on the property with one son. At the death of the father, the son continued in sole and exclusive possession, use and enjoyment of the property until his death 32 years later. The evidence indicated that he claimed the property in his own right and took the rents and profits without accounting to or recognizing any rights in his brothers and sisters. During the 32 years there was no assertion by his co-tenants of their rights in the premises. The court noted that they claimed that their brother had rheumatism, and that they had agreed among themselves that he should keep the place for his lifetime without interference by them, but that it was not claimed “that there was any agreement with or notice to him to that effect, or that the continued possession was permissive in any legal sense.” After the occupant’s death, the co-tenants filed a petition for sale for division, and the deceased brother’s daughter claimed exclusive ownership by prescriptive title in the father. This court stated:

For the purposes of this case, it might be conceded that the evidence does not convincingly show such a disseisin of the complainants by defendant’s father as would be required to set in motion the statute of limitations, although a contrary view seems to be approved in the case of Hamby v. Folsom [Folsam], 148 Ala. [221] 224, 42 South. 548. We think there can be no doubt, however, under the decisions of this court, and in line with the general current of judicial decision, that A.I. Yanzandt acquired an exclusive title to this land, as against his cotenants, under the doctrine of prescription and repose. Direct authority for this conclusion is found in the eases of Johnson v. Toulmin, 18 Ala. 50; 52 Am. Dec. 212, and Kidd v. Borum, 181 Ala. 144, 161, 61 South. 100, Ann.Cas. 1915C, 1226.

Miller, supra, 195 Ala. at 468, 469, 70 So. 639.

In Black v. Black, 233 Ala. 425, 172 So. 275 (1937), this court dealt with a fact situation with many similarities to the case before us. In that case, at the death of Robert Black, his three sisters were living on Robert’s property. Later, Wash Black, the son of one of Robert’s three brothers, moved in with Robert’s sisters. After the death of two of the sisters, the third sister executed a warranty deed purporting to convey to Wash Black the entire property, and this deed was duly recorded. For 23 years thereafter, until his death, Wash Black continued to live there, assessing and paying the taxes thereon and exercising all acts of ownership. During this period there was no assertion by any of the co-tenants of their rights in the premises. Reversing the lower court, this court held:

Based upon the theory that men do not ordinarily sleep on their rights for so long a period (Turner v. Turner, 202 Ala. 515, 81 So. 17), this court is committed to the principle that, under the circumstances above outlined, the entire title vests in such occupant under the doctrine of prescription (Miller v. Vizzard Investment Co., 195 Ala. 467, 70 So. 639; Copeland v. Martin, 201 Ala. 472, 78 So. 378; Turner v. Turner, supra; Heath v. Lewis, 200 Ala. 509, 76 So. 451; Alabama Fuel & Iron Co. v. Broadhead, 210 Ala. 545, 98 So. 789; Jones v. Rutledge, 202 Ala. 213, 80 So. 35) which, as often here reiterated, is a rule of repose (Oxford v. Estes, 229 Ala. 606, 158 So. 534).
It results, therefore, that, in our opinion, the title was perfected in Wash Black, and that his heirs alone, as named in the original bill, are entitled to share in the proceeds of the sale.

Black v. Black, 233 Ala. at 426, 427, 172 So. 275.

The primary difference between the two cases cited and the one before us is that, in the cited cases, the party deemed to have title by prescription actually lived on the disputed property, while in the case before us, the property being timberland, possession was constructive only. We see no reason, however, that the principle involved should not apply to this fact situation. The appellants rely heavily upon Tyson v. Jackson, 364 So.2d 1140 (Ala.1978), a case which involves constructive possession. That case is readily distinguishable from the one before us by the fact that, in Tyson, after the death of the original co-tenant through whom the defendants claimed title by prescription, Matthew Jackson, his brother, A.F. Jackson, the other original co-tenant, conveyed his interest to a third party. This is a clear indication that A.F. Jackson, until the time of that conveyance, did not consider that he had ever relinquished his right in and to the property. On the other hand, in the case before us, there is evidence that at least one of the original two co-tenants through whom the plaintiff claimed rights in the property, Bessie Rutledge, orally communicated to C.C. Wood that she relinquished all of her claim in said property to him. While such a verbal communication cannot pass legal title, it is evident that, thereafter, C.C. Wood held the property exclusive to her, with her knowledge. While there is no direct evidence as to such an agreement between the remaining co-tenant, D.C. Wood, and C.C. Wood, there is evidence that, prior to D.C. Wood’s death in 1968, C.C. Wood granted a recorded easement in the property to Alabama Power Company in his own exclusive name, and likewise sold all the merchantable timber in his own name, holding himself out to the purchaser as the sole owner. D.C. Wood’s daughter, one of the plaintiffs, indicated at trial that, to her knowledge, her father never received any money from the sale of the timber. The lips of all the original co-tenants are now sealed in death.

Based on the above discussion, coupled with the presumptions of the ore terms rule (Silverman v. Charmac, Inc., 414 So.2d 892 [Ala.1982]; Gertz v. Allen, 376 So.2d 695 [Ala.1979]), we hold that, under the facts of this case, the findings of the trial court are not palpably wrong, without supporting evidence, or manifestly unjust. Therefore, we decline to disturb them.

AFFIRMED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

Although not cited in brief, I find that the case of Howard v. Harrell, 275 Ala. 454, 156 So.2d 140 (1963), is authority to affirm the trial court’s judgment in this case.

ON APPLICATION FOR REHEARING

ADAMS, Justice.

Petitioners, appellants in this case, take issue with the following statement from our original opinion:

On the other hand, in the case before us, there is evidence that at least one of the original two co-tenants through whom the plaintiff[s] claimed rights in the property, Bessie Rutledge, orally communicated to C.C. Wood that she relinquished all of her claim in said property to him. While such a verbal communication cannot pass legal title, it is evidence that, thereafter, C.C. Wood held the property exclusive to her, with her knowledge.

While the record is somewhat confusing on this point, after careful review and reconsideration, we have concluded that the testimony upon which our statement was based was never admitted into evidence, and should not have been considered by this court.

However, this evidence was not the sole basis for our holding in the case. In view of all the evidence, and the presumptions in favor of the trial court’s ruling (see, e.g., Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982)), we find that the ultimate conclusion in the original opinion is sound.

We find the petitioners’ other objections to the court’s opinion to be without merit.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

      . The Bank of Heflin was originally named as a defendant in the suit. As the mortgage which the Bank had held on the disputed property had been satisfied prior to the filing of the action, it was dismissed from the proceedings, but the style of the case continues to show the Bank as a party defendant.


author: ADAMS, Justice.

text:
    J.F. RAY and Mrs. J.F. Ray, a/k/a Dorothy Ray v. Glenda Earle STEWART.
    81-1002.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Dec. 16, 1983.
    L. Merrill Shirley, Elba, for appellants.
    Timothy B. Loggins of Loggins & Log-gins, Opp, for appellee.
   ADAMS, Justice.

This is an appeal by defendants, Foy Ray and Dorothy Ray, from a judgment of the Covington County Circuit Court establishing the boundary between their property and that of the plaintiff, Glenda Stewart. The lands are coterminous.

In her complaint, plaintiff claimed title to a parcel described in a warranty deed from her mother to her as follows:

One acre, more or less, in the NWV-i of NW'A of Section 32, T4N, R18E, situated in the City of Opp, Covington County, Alabama, described as follows: Beginning at a point on the West side of 13th Street at the Northeast corner of the lot deeded to Georgia Baker; thence N Io 10'W along the West line of said street 185.7 feet to a fence; thence turn 71° 16' to the left and run along the fence line for a distance of 210 feet to another fence; thence South along said fence for a distance of 227 feet to intersection with another fence; thence Southeasterly along said fence for a distance of 187.5 feet to the point of beginning on the West side of said 13th Street, at which point an angle of 81° 47' is formed inside of the lot hereby described by the West line of said street and the South line of the lot here described, in accordance with survey dated January 25, 1962, made by Ralph Powell, Surveyor.

She further alleged that defendants had made numerous encroachments on the property. She also asserted that she and her predecessors in title had occupied and possessed the parcel up to the boundaries described in the deed since March 16, 1962, and had assessed and paid property taxes annually since that time. Defendants answered the complaint and claimed title to the land on which they were alleged to have encroached.

The trial court heard an abundance of evidence orally presented, and reviewed many exhibits, including several deeds, photographs, tax assessment records, and a survey of the plaintiffs parcel. The judge decided to establish the boundaries in dispute as reflected in the deed held by the plaintiff and the plat prepared by Ralph Powell in 1962. The defendants made a motion for a new trial that was denied. Hence, this appeal.

It is understatement to assert as plaintiff did in her brief to this court, that most of the facts in this case were disputed by the parties and their witnesses at trial. There was considerable disagreement concerning not only the location, but also the existence of certain old fences along the boundary lines. This court recently addressed the nature of its review of a circuit court's establishment of a boundary that was ardently disputed by the parties at trial in Evans v. Green, 411 So.2d 788 (Ala.1982). In that case we said:

It is well settled that “[o]n appeal from a decree of the equity court establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court, the decree of the lower court is presumed to be correct and in such case, the trial court’s conclusions of fact will not be disturbed unless palpably erroneous or manifestly unjust.” Jones v. Wise, 282 Ala. 707, 213 So.2d 914 (1968). The facts presented in the lower court are conflicting and contradictory. The trial judge had the opportunity to resolve the conflicting evidence by observing the demeanor of the witnesses as they gave their testimony and by examining the exhibits as they were presented.

411 So.2d at 788. In the instant case, we can find no palpable error or manifest injustice in the trial court’s findings of fact establishing the boundaries between the parties’ coterminous lands according to the deed to the plaintiff and the survey of Ralph Powell.

It remains for us to consider defendant’s argument that the trial court’s judgment failed to describe the boundaries established with the requisite particularity. We disagree, since the Powell survey, which the decree adopts, was made with reference to fences or portions thereof, some of which continue to exist along the boundaries as described in the survey. Furthermore, we regard the trial court’s order to have a surveyor establish the boundaries described in the Ralph Powell plat as one to have permanent markings placed on the land so as to eliminate the possibility of further dispute between the parties. See Baldwin v. Harrelson, 229 Ala. 469, 471, 158 So. 416, 418 (1934).

For all of the above reasons, we affirm the decision of the trial court.

AFFIRMED.

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


text:
    Richard Allen FLOWERS v. Sharon Janelle McGILL, etc.
    82-393.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Dec. 16, 1983.

      David L. Ratcliffe, Mobile, for appellant.
    W. Kenneth Gibson, Fairhope, for appel-lee.
   ADAMS, Justice.

The defendant, Richard Allen Flowers, appeals from the denial of his motion for relief from a consent judgment in the amount of $85,000.00 in a wrongful death action filed by the administratrix of the estate of Jerry Mack McGill. Flowers claimed that his lawyer for over five or six years informed the Circuit Court of Baldwin County that Flowers had consented to a judgment for $85,000.00 when, in fact, he had not so consented. However, Flowers did not file his motion under Rule 60(b)(6) of the Alabama Rules of Civil Procedure until more than one year after the entry of the consent judgment, and three days prior to a scheduled sheriffs sale of certain real property owned by him.

The single question posed by this appeal is:

Did the trial court err in refusing to grant defendant relief from the $85,-000.00 judgment as requested in his Rule 60(b)(6) motion?

We are of the opinion that the trial court did not err in refusing to grant the relief, and we affirm its judgment.

There is no question as to what the relevant law is in this case. An attorney has the authority to bind his client, provided the attorney acts within the scope of his authority. Nero v. Material Sales Co., Inc., 340 So.2d 454 (Ala.Civ.App.1976); McGinnis v. Chance, 247 Md. 393, 231 A.2d 63 (1966); Bank of Glade Spring v. McEwen, 160 N.C. 414, 76 S.E. 222 (1912). The defendant in this case says that his lawyer did not have the authority to enter the consent judgment. The lawyer says that he had this authority from his client. Therefore, the decision in this case must, of necessity, hinge on the resolution of this factual dispute.

Testimony for and against the Rule 60(b)(6) motion came from five witnesses, namely: the defendant, Flowers; his wife, Bobbie Jean Flowers; their two children, Earl Flowers and Bonnie White; and, defendant’s former lawyer, the Honorable Norborne C. Stone, Jr. (Lawyer Stone).

It would serve no useful purpose to summarize all of the facts contained in the transcript in this case. Some of the more relevant facts are as follows:

In addition to the wrongful death action demanding the sum of one million dollars, there was also pending against the defendant an indictment for murder arising out of the same fact situation as the wrongful death action. Both the defendant and his former lawyer agree that regarding settling these two cases there were many discussions both by way of telephone and by conversation at the defendant’s home in the presence of his wife. Defendant admits that he agreed to plead guilty and did plead guilty to negligent homicide — an offense much less than murder. He likened this crime to a DWI offense. Lawyer Stone states that the criminal offense was inextricably connected with the civil action and that he could only settle the criminal action by agreeing to settle the civil action.

The defendant admits that this was represented to him, but steadfastly contends that he only agreed to enter a plea of guilty in the criminal case and told his lawyer that he wanted to be tried by twelve honest citizens and that if he lost with a jury, he would be satisfied to give up his property. Defendant is a 46-year-old farmer with an eighth or ninth grade education and at the time of the trial, farmed, along with his 23-year-old son, approximately 450 acres, some of which he owned and some of which he rented.

Defendant admitted that he knew about the consent judgment and that he attempted to get other lawyers to help him with his case, but he says he was unsuccessful because of the prestige and reputation of Lawyer Stone. He did file a petition for bankruptcy, but this petition was dismissed four months before the hearing on the motion for relief from the consent judgment.

Defendant’s wife testified that at the meeting at their home, she suggested that her husband follow the advice of Lawyer Stone, since he had represented them successfully in the past, but she says that she never heard her husband actually give consent to his lawyer to negotiate for a misdemeanor plea in the murder case and to agree to a judgment in the civil case.

The defendant admits that on the evening of the accident he had a couple of drinks at the VFW Club and that he had some DWIs previous to the alleged accident in question. Defendant insists, however, that he did not strike Jerry McGill in the parking lot of the VFW Club.

Apparently, the defendant authorized Lawyer Stone to file a bad faith suit against defendant’s insurance company for $10,000.00 and that suit was settled favorably to the defendant for the $10,000.00 and applied to the $85,000.00 judgment.

With these facts, as well as the applicable law before it, the trial court ruled that Flowers had authorized Lawyer Stone to enter the consent judgment in the civil case and denied Flower’s Rule 60(b)(6) motion. Viewing these facts from the appellate level, we cannot say that the trial court was clearly wrong. Our standard of review is plain. This court will not disturb the judgment of the trial court unless there is a failure to apply the applicable legal principles, or its decision is palpably wrong and unjust. See Ex parte Shuttleworth, 410 So.2d 896 (Ala.1982); Martin v. Howard, 293 Ala. 36, 299 So.2d 727 (1974); Nero v. Material Sales Co., 340 So.2d 454 (Ala.Civ.App.1976).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: ALMON, Justice. ALMON, Justice.

text:
    Charlotte BEGLEY, etc., et al. v. Timothy R. MORGAN.
    81-1071.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Dec. 2, 1983.

      James D. Turner of Turner, Turner & Turner, Tuscaloosa, for appellants.
    John A. Owens of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellee.
   ALMON, Justice.

This is an appeal from a verdict and judgment for defendant in a personal injury case. The primary issue is whether there was sufficient evidence that the plaintiff and the driver of the motorcycle she was riding were engaged in a joint venture for the trial court to instruct the jury on a joint venture defense.

The plaintiff, Charlotte Begley, was injured when the motorcycle she was riding as a passenger ran into the rear end of another vehicle. Charlotte was fourteen years old at the time of the accident and her boyfriend, James Minor, was operating the motorcycle. At her request, he had come to pick her up to take her on an errand for her mother to a store adjacent to the mobile home park where she lived.

Tim Morgan, who was at James’s house when Charlotte called, arrived at the store in his van while Charlotte was inside. The store did not have what her mother wanted, so she came out and got on the motorcycle to leave. James drove away and Tim followed. Tim passed them as they drove back toward Charlotte’s home. Tim testified, however, that he left first. There were two speed breakers along the route, and Tim came to a stop in the road after the second one. Tim testified that the rear end of his van “locked up,” causing the van to halt. James and Charlotte ran into the back of Tim’s van and Charlotte was injured.

Charlotte, through her mother as next friend, and her mother, Stella Begley Ham-ner, sued Tim for negligent or willful and wanton operation of his van and sued his father for negligent entrustment. Tim’s father was voluntarily dismissed as a party at the commencement of the trial. After trial of the cause, the jury returned a verdict for defendant Timothy Morgan. The trial court entered judgment on the verdict and denied a motion for new trial.

Charlotte raises three issues: whether the trial judge erred to reversal in refusing to specify before oral argument which written requested charges he would give; whether counsel for defendant caused prejudicial error by continuing to refer to Mrs. Hamner’s Medicaid insurance coverage after the judge sustained objections to that line of questioning; and whether the trial court erred in giving instructions on the defense of joint venture.

We find it necessary to address only the issue regarding the instructions on joint venture. The trial court told the jury:

“He [Tim] pleads the general issue in other words and he alleges that on this occasion the plaintiff herself was guilty of negligence because she was on a joint venture. That would be something for you to decide, whether or not she was and therefore he says under the circumstances she was in a position to exercise some control over the operation of the motorcycle on this occasion.
“... You heard the evidence in that regard, the purpose to the store [sic], she was riding on the back of the motorcycle, the rear end of this motorcycle, and she herself was involved in the purpose of the trip, you have heard that evidence and you decide what the occasion was.
“... [B]ut if you find that on this occasion ... the plaintiff was guilty of some negligence as a passenger in the failure to exercise control over the operator or failure to do something to prevent the accident, you would be authorized to find contributory negligence on her part.”

Charlotte’s counsel duly objected to these portions of the charge on the grounds that Morgan had completely failed to establish a joint venture. He also objected to the giving of Tim’s requested charges three and six, but these charges are marked “refused,” and there is no indication that they were in fact given, so we pretermit discussion of these charges. The court overruled all objections to the charge.

After deliberating for a time, the jury requested a clarification of the verdict forms. The trial court instructed the jury, inter alia, that

“[I]f he is able to reasonably satisfy you under his answer that she was guilty of contributory negligence, that is to say that she herself, she had the right to exercise some control and failed to do it or did something that an ordinarily reasonable prudent person would have done or would not have done as a passenger or riding on that motorcycle that she was on a joint, the plaintiff [sic] contends that this was a joint mission, that she had gone to the store for her mother, that she had the right of control to exercise some control over the operation of the motorcycle and he alleges she did or failed to do anything she should have done riding on that motorcycle and he charges she was guilty of simple negligence. Now if you are reasonably satisfied that she was guilty of simple negligence on this occasion, she did something that a reasonably prudent person would or would not have done or failed to do something that is just basically suing each other, I mean charging each other with simple negligence. If you are reasonably satisfied that both of them were guilty of simple negligence, well you would be authorized to not return a verdict for either one.”

Upon Charlotte’s objection, the trial court corrected the erroneous instruction that “the plaintiff contends that this was a joint mission,” and told the jury the defendant made the contention. The court overruled Charlotte’s renewed objection to charging the jury on joint venture or contributory negligence.

The jury returned with a verdict but without signing one of the verdict forms. The judge sent the jury back to the jury room so the foreman could sign one of the verdict forms. While in the courtroom, one of the jurors spoke to the circuit clerk, telling her that “they didn’t know which form to sign, that they felt both parties were guilty of negligence and I [the clerk] told them they would have to sign one of those forms.” The jury returned a verdict for defendant Morgan. When the jury was polled, one of the jurors responded, “Judge, of the choices we had, that was our verdict.”

Under the trial court’s instructions, the jury could have concluded that merely because Charlotte and James went to the store on an errand for her mother, Charlotte had a right to control the operation of the motorcycle. This is not correct under the settled law of this state:

“It is a commonplace of the law that ordinarily a passenger in an automobile driven by another, over whom he has no control, is not, on that state of fact, • without more, chargeable with contributory negligence.
“The fact that the occupant is a passenger at his own request does not affect his status....
“The rule is well established that in order to create the imputation of negligence of the driver to the passenger, the passenger must have assumed control and direction of the vehicle or must have some right to a voice in the control, management or direction of the vehicle.”

Johnson v. Battles, 255 Ala. 624, 630, 52 So.2d 702 (1951) (citations omitted). The Court made clear in Johnson that the fact that the trip was for the exclusive benefit of the plaintiff passenger did .not justify the inference that the plaintiff had assumed the right to Control the manner of operation of the car.

The Court in Williams v. Pope, 281 Ala. 382, 203 So.2d 105 (1967), reaffirmed this result, emphasizing that a right of control must be shown from the evidence, albeit in the context of the sufficiency of pleas of contributory negligence: “No facts are alleged to show that plaintiff had the duty or authority to control the actions of the driver or the operation of the vehicle.” Id., 281 Ala. at 386, 203 So.2d 105.

In Shannon v. Hollingsworth, 291 Ala. 159, 279 So.2d 428 (1973), the Court held that the mere fact that the passenger gave directions on the route to follow did not mean that he assumed control over the manner in which the vehicle was operated. The court was “unable to find any evidence in the record from which the jury could have found any causal connection between the route followed and the cause of the accident and injuries.” Id., 291 Ala. at 164, 279 So.2d 428.

Most recently, in Nance v. Jones, 384 So.2d 621 (Ala.1980), this Court reversed the trial court for giving an instruction regarding imputation of negligence where the passenger has assumed control because there was no evidence that any of the passengers had assumed control of the vehicle or had any right to control it.

In addition to the statement that the driver’s negligence is imputable to the plaintiff passenger only if the two are on a joint venture or the passenger has some right or duty to control the vehicle, many of the cases on point state that the passenger is not absolved of all duty to care for his own safety. The cases also establish however,' that no such duty arises unless the facts show that the passenger had some knowledge of the danger.

In Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971), the Court held it was error to give an instruction that if the jury found that the plaintiff knew the vehicle in which she was riding was being operated negligently and at an excessive rate of speed but “negligently remained in the automobile without making any remonstrances,” then the jury must find for the defendant. The Court found that

“the evidence does not support a reasonable inference to the effect that Wanda Coulter had knowledge that the manner in which Larry Patterson was driving his automobile was attended with great danger and there is no evidence to support a reasonable inference that she ‘negligently’ remained in the Patterson automobile.”

Id., 287 Ala. at 647, 254 So.2d 420. The Court acknowledged that the giving of an abstract charge is not reversible error “unless it appears from the whole record that the charge did in fact mislead the jury to the appellant’s prejudice,” but found that the charge did in fact mislead the jury and so reversed.

In Brown v. AAA Wood Products, Inc., 380 So.2d 784 (Ala.1980), the Court found no error in giving an instruction on the duty of a passenger to exercise due care where the evidence showed

“that both plaintiffs had planned to go hunting and at the time of the collision the truck in which they were riding was traveling on the wrong side of the road with the driver looking off into the woods. This evidence alone was sufficient to create a jury question as to whether the deceased passenger, Brown, had a duty to keep a watch or to give a warning.”

Id., at 787.

We find the case at bar distinguishable from Brown, supra, and similar to all the other cases cited where this Court held that the evidence did not support an instruction on either imputation of negligence or contributory negligence. As in Johnson, supra, the fact that the trip was for the benefit of Charlotte does not suffice to give her control over the operation of the motorcycle. As in Shannon, supra, the possibility that she chose the route does not mean she had control over the manner in which James operated the motorcycle; moreover, he knew the trailer park as well as she and so probably chose the route himself.

Tim did testify that after his van came to a stop, he looked in the rearview mirror and saw the headlight on James’s motorcycle — it was night at the time of the accident — and the headlight was swerving back and forth rather than going in a straight line. He said it looked as though James was leaning the motorcycle from side to side. Tim testified that the motorcycle appeared to be going about twenty-five miles per hour. Another witness, Frank Stewart, testified that it was going twenty-five miles per hour.

These facts do not support an inference that Charlotte had a right to control the operation of the motorcycle. The jury’s evident confusion and apparent reluctance to return a verdict, as well as the verdict in favor of defendant, show that Charlotte was prejudiced by the court’s instructions on these issues. For this reason, the judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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

ON APPLICATION FOR REHEARING

ALMON, Justice.

Appellee argues on application for rehearing that the opinion issued in this case does not address the issue of contributory negligence and that the case is due to be affirmed because there was at least a scintilla of evidence of contributory negligence.

Without reaching the question of whether there was any evidence that Charlotte knew that James was operating the motorcycle in an unsafe manner, see Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971), we hold that the result reached in the original opinion is due to stand. The trial court’s oral instruction, quoted in that opinion, so confused the issues of joint venture and contributory negligence that the jury may well have been misled to the prejudice of the plaintiff.

As extended, the opinion reversing the judgment of the trial court and remanding the cause stands as the opinion of the Court. The application for rehearing is overruled.

OPINION EXTENDED; APPLICATION OVERRULED.

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


author: PER CURIAM.

text:
    The SAND MOUNTAIN BANK v. ALBERTVILLE NATIONAL BANK, et al.
    82-289.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Dec. 16, 1983.
    See also 414 So.2d 928.

      Laurence D. Vinson, Jr., of Bradley, Ar-ant, Rose & White, Birmingham, and Franklin J. Allen, II, Boaz, for appellant.
    Charles R. Hare, Jr., of Gullahorn & Hare, Albertville, for appellees.
    C. Lanier Branch of Copeland, Franco, Screws & Gill, Montgomery, for amicus curiae Modern Banking Ass’n of Ala.
    Terry R. Smyly, Asst. Atty. Gen., for amicus curiae State of Ala. Banking Dept.
    H. Hampton Boles and Ralph F. MacDonald, III, of Balch, Bingham, Baker, Hawthorne, Williams & Ward and D. Paul Jones, Jr., Birmingham, for amicus curiae Central Bank of the South.
   PER CURIAM.

This is an appeal from an order issued by the Marshall County Circuit Court enjoining Sand Mountain Bank from maintaining and operating an automated teller machine (ATM) and night depository within the corporate limits of Albertville, Alabama.

Defendant, Sand Mountain Bank, is a state bank. Its principal offices are maintained in Boaz. In March and April 1980, Sand Mountain Bank filed applications with the Federal Deposit Insurance Corporation (FDIC) and the Superintendent of Banks for the State of Alabama, respectively, seeking permission to establish an ATM in the Food World Supermarket located on U.S. Highway 431 North. This location is approximately one mile inside the Albert-ville city limits. Both applications for establishment of the ATM were approved.

In July 1980, Sand Mountain Bank again filed applications with the FDIC and the Superintendent of Banks, seeking permission to install a separate night depository safe adjacent to the ATM. The applications were approved and on July 31, 1980, the ATM and night depository (“combined facility”) were placed into operation.

Plaintiffs, Albertville National Bank and First State Bank of Albertville, filed an action in circuit court to enjoin the maintenance and operation of the combined facility. Plaintiffs complained that operation of the combined facility was in violation of Act No. 303, Acts of Alabama 1973. The circuit court agreed and issued the injunction from which defendant now appeals.

Act 303 is a local act applicable only to Marshall County. The purpose of this Act is to allow branch banking and other related banking activity within the county under specific conditions. The pertinent language of the Act provides:

“Section 2. Any bank, either incorporated or unincorporated, within the State, now or hereafter having a combined paid in capital and paid in or earned surplus of at least $200,000, and situated in such County or having an office or place of business in said County, shall have power to establish, to maintain and operate within the limits of such County, where the principal place of such business of such bank is situated or where it has an office or place of business, one or more branches or branch banks, branch offices, branch agencies, additional offices, or branch places of business, for the receipt of deposits, payment of checks, lending of money and conduct of a general banking business, provided that such bank, before the establishment of any such branch or branches or additional offices or places of business, shall first secure the written consent thereto of the State Superintendent of Banks. It is provided further that no bank shall establish, maintain and operate such a branch within any incorporated municipality in the county in which a bank is already established, other than the municipality in which its principal place of business is situated, or in which it has a branch or authorized place of business.”

(Emphasis added.) The circuit court enjoined the operation of Sand Mountain Bank’s ATM and night depository, holding that the combined facility is a branch place of business within the terms of the Act capable of receiving deposits, transferring accounts, receiving payments on notes, making change, and giving limited amounts of cash and that its operation in Albertville is in violation of the Act. Defendant seeks to have the judgment of the circuit court reversed and presents three issues, each of which will be discussed.

The first issue is whether the combined facility constitutes a “branch place of business” under Act 303. We need not examine whether the combined facility is a “branch bank.” The language of Act 303 specifically refers to the establishment of “branch banks, branch offices, branch agencies, additional offices, or branch places of business, for the receipt of deposits, payment of checks, lending of money and conduct of a general banking business.” The circuit court did not decide whether the combined facility was a “branch bank” under the Act, and this question is not properly before the Court.

In determining whether the combined facility is a branch place of business, we must examine whether the Act’s definition of “branch place of business” is fulfilled. The functions listed in the Act are the receipt of deposits, the payment of checks, the lending of money, and the conduct of a general banking business.

Undoubtedly, one of the functions of the combined facility is the receipt of deposits. Built into the ATM itself is a depository. Customers of Sand Mountain Bank can make deposits, large or small, commercial or personal, by slipping them into the ATM depository. Customers may specify whether the deposit is to be credited to their checking or savings account. This depository function is in addition to the night depository adjacent to the ATM which was installed to permit acceptance of deposit bags too large for the ATM.

A second required function listed in Act 303 which the ATM is capable of performing is the lending of money. Aside from making application for an Anytime Teller Card, a bank customer may apply for a Check OK Card. The Check OK plan allows a customer to establish a line of credit with Sand Mountain Bank and then continue to make withdrawals against an insufficient checking account balance. Any money withdrawn against the insufficient account balance is considered a loan. It is carried on the monthly bank statement as an outstanding loan, and the bank requires monthly repayments and charges interest. Bank customers can also obtain cash advance loans against their Visa or MasterCard line of credit by using specially encoded cards issued through Sand Mountain Bank. These loans are repayable to Visa or Master-Card and not to the bank. Although the card holder can only receive a maximum of $100 per day, the ability of the ATM to lend funds is unquestionable. Of course, ATMs can be programmed to permit withdrawals much larger than $100.

Whether the ATM is capable of performing the check payment function required under the Act is a more difficult issue. We understand that modern technology has not yet advanced to the stage where an unmanned machine can be programmed to cash a handwritten paper check. This does not, however, resolve the issue. The case of Illinois ex rel. Lignoul v. Continental Illinois National Bank and Trust Co., 536 F.2d 176 (7th Cir.), cert. denied, 429 U.S. 871, 97 S.Ct. 184, 50 L.Ed.2d 151 (1976), addressed the issue of whether or not a customer-bank communication terminal (ATM) was capable of cashing a check. We quote with approval from the opinion delivered in that case:

“[T]he district court concluded that a card inserted into the [ATM] machine to secure money was not the cashing of a check within the meaning of U.C.C. or in the common understanding of check cashing. We cannot agree. As was said in [Independent Banks Association of America v. Smith, 534 F.2d 921 (D.C. Cir.), cert. denied, 429 U.S. 941, 97 S.Ct. 166, 50 L.Ed.2d 141 (1976) ] this ‘is exalting form over substance — exactly what the Supreme Court instructed us not to do’ in First National Bank v. Dickinson (Plant City), 396 U.S. 122 at 137, 90 S.Ct. 337 [at 345], 24 L.Ed.2d 312 (1969). The check is merely the means used by the bank to attain the desired objective, i.e., the payment of the money to its customer. The card serves the same purpose as the check. It is an order on the bank. Any order to pay which is properly executed by a customer, whether it be check, card or electronic device, must be recognized as a routine banking function when used as here. The relationship between the bank and its customer is the same_ Just as a transfer of funds by cable or telegraph is in law a check, Louie v. Chase National Bank, 42 N.Y.S.2d 205 (Sup.Ct.N.Y.Co.1943), despite the non-negotiability of the cable, the card here for the purpose of withdrawing cash is a check. What must be remembered is that the foundation of the relationship between the bank and its customer is the former’s agreement to pay out the customer’s money according to the latter’s order. See, White and Summers, Uniform Commercial Code 1972 at 551. There are many ways in which an order may be given and one of late is by computer record.”

536 F.2d at 178.

The receipt of deposits, payment of checks, and lending of money are all considered conduct of a general banking business. § 5-5A-18, Code 1975 (1981 Repl. Vol.). In addition to the named functions which we have concluded the ATM is capable of performing, the Act specifically requires “conduct of a general banking business.” The requirements of Act 303 are conjunctive; hence, the ATM must be capable of performing activities other than those already discussed. We feel the ATM satisfies all requirements. Aside from the ability to receive deposits, make payment on checks, and lend money, the ATM can transfer funds between accounts, make payment on loans,- and make change. These activities can all be considered conduct of a general banking business. The fact that the ATM is not programmed or capable of performing certain activities which might normally be thought of as general banking business does not affect our decision because, as the circuit court noted, “all banks do not involve themselves in all the business allowed by law.”

The second and third issues which defendant presents to this Court are quite similar. Defendant contends that whether or not the combined facility constitutes a branch place of business under Act 303, its operation is permissible nonetheless by vir-ture of § 5-2A-7, Code 1975 (1981 Repl. Vol.), and the Electronic Fund Transfer System (EFTS) Regulations promulgated by the Superintendent of Banks pursuant thereto and that to the extent Act 303 is inconsistent with § 5-2A-7 and the EFTS Regulations, Act 303 is repealed by implication.

The Code provision, § 5-2A-7, which defendant contends authorizes the operation of the combined facility in Albertville, is part of the newly adopted Alabama Banking Code. Relevant portions of § 5-2A-7 read as follows:

“(a) The legislature finds as fact and determines that the financial industry composed of those banks, savings and loan associations and credit unions having their principal place of business in Alabama must keep pace with technological and other improvements constantly being made throughout the United States so as to enable Alabama banks, savings and loan associations and credit unions to render better and more efficient services to the citizens of Alabama. It is necessary and desirable that the superintendent be given additional authority in these fields.
“(b) The superintendent is hereby authorized to expand banking powers of Alabama banks or the powers of Alabama savings and loan associations or the powers of Alabama credit unions in order to:
“(1) Accommodate or take advantage of changing technologies; and
“(2) Assure the ability of Alabama banks, Alabama savings and loan associations and Alabama credit unions to be responsive in their respective businesses to the needs and conveniences demanded by consumers and businesses through on-premises as well as off-premises operations; provided, that nothing in this section shall enable the superintendent to authorize banks to engage in activities which are not properly incident to the business of banking nor to enable the superintendent to authorize savings and loan associations or credit unions to engage in the business of offering financial services which are now prohibited to them.
“(c) The superintendent is authorized to issue regulations under subsection (b) and shall give notice in writing of any such proposed regulation to each Alabama bank.”

Pursuant to authority granted in what is now § 5-2A-7, the Superintendent of Banks, in 1976, promulgated the EFTS Regulations. The Regulations provide in. part:

“2. PURPOSE
“The purpose of these regulations is to permit an orderly development of off-premise electronic funds transfer systems in the State of Alabama, for financial institutions domiciled within the state to serve their customers more effectively and efficiently, and for the market place to determine the growth and development of off-premise electronic funds transfer systems rather than by regulation. Unnecessary regulation which well might prevent the developing electronic fund transfer system from achieving its maximum potential is not intended. The primary purpose of these regulations is to remove any potential legal barriers and to regulate only to prevent unwise ventures and injury to the public interest. No financial institution is authorized, to offer or provide additional or new services or is granted powers by virtue of these regulations that were not previously permitted.
“7. CRITERIA FOR APPROVAL BY SUPERINTENDENT OF BANKS
“The criteria for approval to be used by this office for participating in, owning, or operating any type of electronic fund transfer system shall be whether such system would promote the public convenience and needs, whether sound competition would result, whether proper consumer protection measures and procedures have been established, and the impact on earnings and capital of the applicant. There will be no population or distance criteria applied to EFTS applications.”

(Emphasis added.)

Defendant argues that the statutory directive of § 5-2A-7, in conjunction with the subsequent issuance, by the Superintendent of Banks, of the EFTS Regulations, indicates a legislative desire that growth and development of off-premise electronic funds transfer systems, in particular ATMs, be controlled by conditions in the marketplace rather than by statutory regulation. Evidence of this, defendant says, is the reenactment in 1980, four years after the EFTS Regulations were issued, of the Code provisions authorizing the Superintendent of Banks to expand banking powers in Alabama without any substantial change which would affect the Superintendent’s prior interpretation of the provision.

While defendant’s assertion is true that reenactment of a statute without material change may be considered as legislative approval of departmental construction, such construction nonetheless is not binding upon a court. Haden v. McCarty, 275 Ala. 76, 79, 152 So.2d 141, 143 (1963). An administrative interpretation of long standing is normally entitled to favorable consideration by the courts, but “... this rule of construction is to be laid aside where it seems reasonably certain that the administrator’s interpretation has been erroneous and that a different construction is required by the language of the statute.” Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So.2d 317, 318 (1975). The Superintendent’s construction of § 5-2A-7, which construction authorizes the operation of defendant’s combined facility in Albertville, is clearly erroneous when considered in conjunction with local Act 303 and § 5-5A-20, Code 1975 (1981 Repl.Vol.), another general provision of the Alabama Banking Code.

In construing a statute, a court must look not only to the language of the statute, but also to the purpose and object of the enactment and its relation to other laws. Siegelman v. Folmar, 432 So.2d 1246, 1249 (Ala.1983). Section 5-5A-20, Code 1975 (1981 Repl.Vol.), provides:

“No bank, or any officer, agent or director thereof shall be permitted to establish a branch or office for the transaction of the banking business other than at its principal place of business, in any county in this state, except as has been heretofore or which may hereafter be provided by local laws or general laws of local application. All existing branch banks are hereby validated.”

By statute, the Alabama legislature has clearly established a policy to prohibit a bank from establishing a branch or office to transact banking business other than at its principal place of business, except as is provided by local laws or general laws of local application. Local Act 303 prohibits the operation of defendant’s combined facility in Albertville, and the general language of § 5-2A-7 cannot be construed to authorize its operation, in light of the legislative policy to prohibit such facilities except as is provided by local laws or general laws of local application. This would also be in keeping with the prohibition of § 2 of the EFTS Regulations that “[n]o financial institution is authorized to offer or provide additional or new services or is granted powers by virtue of these regulations that were not previously permitted.” Furthermore, the stated purpose of § 5-2A-7 and the EFTS Regulations will not be frustrated by a finding that Act 303 prohibits the operation and maintenance of defendant’s combined facility in Albertville. Such a finding would not interfere with defendant’s operation of other ATMs and night depositories in Marshall County as long as the provisos of Act 303 are complied with.

Finally, defendant, citing § 5-1A-6, Code 1975 (1981 Repl.Vol.), argues that inasmuch as § 5-2A-7 and the EFTS Regulations are inconsistent with Act 303, the latter is repealed. Section 5-1A-6 reads “[I]nsofar as the provisions of chapters 1A through 12A of [the Alabama Banking Code] are inconsistent with the provisions of any other law, general or special, the provisions of chapters 1A through 12A ... shall be controlling.” The decisions by this Court are in agreement with the statement by Professor Sands that “an express general repealing clause to the effect that all inconsistent enactments are repealed, is in legal contemplation a nullity.” 1A C. Sands, Sutherland Statutory Construction, § 23.08 (4th ed. 1972). As we said in Ex parte Jones, 212 Ala. 259, 102 So. 234 (1924),

“Such a general repealing clause ... does not operate as a repeal of any of the provisions of the [previous act], unless in conflict therewith. As said by this Court in Ogbourne v. Ogbourne, 60 Ala. 616, ‘It is merely a legislative declaration of the necessary effect of the act, if the clause had not been inserted.’ If, therefore there is a repeal, it is by implication, and it is well established that repeal by implication is never favored by the court.”

212 Ala. at 261, 102 So. at 235.

If the situation arises, as is alleged here, that provisions of a general law applicable to the entire state are in conflict with provisions of a previously enacted special law applicable only to a particular locality, the general law will not operate to repeal the special law, “unless repeal is provided for by express words or arises by necessary implication.” Vaughan v. Moore, 379 So.2d 1240, 1241 (Ala.1980). If under a reasonable construction it is possible to reconcile the acts, both will be given effect. Ex parte Jones, 212 Ala. at 261, 102 So. at 235; Siegelman v. Folmar, 432 So.2d at 1249. As discussed earlier, Act 303 and § 5-2A-7 can be reconciled and a field of operation given to each. The effect of § 5-2A-7 is not the repeal of Act 303.

In review, we are of the opinion that the combined facility installed by defendant, Sand Mountain Bank, in the Food World Supermarket located within the corporate limits of Albertville is at the least a “branch place of business, for the receipt of deposits, payment of checks, lending of money and conduct of a general banking business.” As such, its operation is in violation of the provisions of Act No. 303, Acts of Alabama 1973, which we find to be controlling, and is prohibited. Therefore, the judgment of the circuit court is due to be, and it is hereby, affirmed.

AFFIRMED.

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

MADDOX, FAULKNER, SHORES and ADAMS, JJ., dissent.

      . The defendant argues that the combined facility is not a "branch bank” for purposes of the Act. Even if we were to reach this argument, we would face an uncertain issue. Although several Code provisions, §§ 5-5A-20, 5-5A-32, 5-7A-45, Code 1975 (1981 Repl.Vol.), refer to branch banks and over eighty local laws and general laws of local application pertain to authorization or restriction of branch banking, we are not aware of any Alabama case which has legally defined the term "branch bank.” Even so, the pertinent provisions of Act 303 use much of the same language of the federal statutes. The fact that Act 303 adds some additional language concerning the conduct of a general banking business cannot lead to an interpretation different from federal standards, absent some indication of contrary legislative intentions.
      Federal law defines a branch bank as "any branch bank, bank office, branch agency, additional place of business ... at which deposits are received, checks paid, or money lent.” 12 U.S.C. § 36(f) (1976). See also 12 U.S.C. § 1813(o) (1976) (FDIC definition). Under the federal definition, ATMs have been held to be branch banks. State Bank of Fargo v. Merchants Nat’l Bank & Trust Co., 593 F.2d 341 (8th Cir.1979); Missouri ex rel. Kostman v. First Nat’l Bank, 538 F.2d 219, cert. denied, 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310 (1976); Illinois ex rel. Lignoul v. Continental Ill. Nat’l Bank & Trust Co., 536 F.2d 176, cert. denied, 429 U.S. 871, 97 S.Ct. 184, 50 L.Ed.2d 151 (1976); Independent Bankers Assoc. of Am. v. Smith, 534 F.2d 921, cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 141 (1976).

      . The statute was originally codified as Code 1975, §§ 5-1-37 through 5-1-39. In 1980 these sections were, with only minor changes not pertinent here, combined and reenacted as part •of the newly adopted Alabama Banking Code, 1980 Ala. Acts. No. 658, § 5-2A-7, Code 1975 (1981 Repl.Vol.).


author:
      TORBERT, Chief Justice.
      JONES, Justice

text:
    Levon WILLIAMS, Administrator of the Estate of Rayford Williams, deceased, et al. v. TENNESSEE RIVER PULP AND PAPER COMPANY, et al.
    82-632.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Dec. 9, 1983.
    James C. King of Wilson & King and Pat Nelson of O’Rear, Robinson & Nelson, Jasper, for appellants.
    Carol A. Smith of Starnes & Atchison, Birmingham, for appellees.
   TORBERT, Chief Justice.

Appellants Levon Williams, James Stel-man, and Frances Stelman initiated this action (as personal representatives of the Estates of Rayford Williams and Kathleen Marie Williams) against appellee Tennessee River Pulp and Paper Company (“Tennessee Paper”), claiming damages for the alleged wrongful death of Rayford and Kathleen Williams. Appellants alleged that Tennessee Paper was vicariously liable for these deaths. Appellants appeal from the trial court’s order granting Tennessee Paper’s motion for summary judgment. We affirm.

Tennessee Paper owns forest lands and a lumber mill in Alabama. As part of its operation, Tennessee Paper hires loggers to fell timber on the property and haul logs to its mill. Among the persons hired in 1978 was Rubel Lee Mauldin. Mauldin used his own truck, his own equipment, chose his own working hours, and hired his own employees. One of these employees was Melvin Ray Holley, who assisted Maul-din in both cutting and hauling timber. No social security deductions or other withholding taxes were taken from Mauldin’s pay by Tennessee Paper, except for contractor liability insurance and workmen’s compensation premiums deducted by Tennessee Paper and forwarded to an insurance carrier on Mauldin’s behalf.

On April 19, 1978, Melvin Ray Holley was driving a truck owned by Mauldin and carrying logs belonging to Tennessee Paper when the left front hub and wheel of the truck suddenly came off. The hub and wheel struck a car in which Rayford and Kathleen Williams were riding, causing it to swerve into the path of oncoming traffic where it collided with another vehicle, killing the Williamses. Pre-trial discovery indicated that the wheel flew off as a result of continuous overloading and poor maintenance of Mauldin’s vehicle.

The initial issue presented by Tennessee Paper’s summary judgment motion is whether there is any genuine issue of material fact over Tennessee Paper’s relationship with Mauldin; that is, did the evidence show, as a matter of law, that Mauldin was only an independent contractor of Tennessee Paper? If Mauldin was an independent contractor and not an employee, then Tennessee Paper is not responsible for his physical conduct under the doctrine of re-spondeat superior. See Restatement (Second) of Agency, §§ 2(3), 220 (1957).

On summary judgment, all reasonable inferences from the facts are viewed in favor of the non-movant; however, once the motion is supported as required by A.R.Civ.P., Rule 56(e), “the motion is to be granted unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial.” Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981).

In order to determine if Mauldin was an employee of Tennessee Paper, the crucial factor is the right of Tennessee Paper to control the manner of Mauldin’s performance. Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970). See Columbia Eng’g Int’l, Ltd. v. Epsey, 429 So.2d 955 (Ala.1983). “Control is not established if the asserted [employer] retains the right to supervise the asserted [employee] merely to determine if the [employee] performs in conformity with the contract.” Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wash.App. 669, 674, 626 P.2d 30, 33 (1981). See Solmica supra, 285 Ala. at 398, 232 So.2d at 640.

Appellants argue that Tennessee Paper did have the right to control the manner of Mauldin’s performance. Two types of evidence are presented. First, Tennessee Paper inspected the work site. These inspections were conducted to insure that Maul-din was complying with his contract. Appellants’ brief paraphrases deposition evidence to the effect that “The main problem Tennessee had with its loggers was concerning the manner in which the loggers cut the trees; i.e., trees were cut small and sometimes were not cut.” The only reasonable inference from this testimony is that the purpose of Tennessee Paper’s inspections was to supervise conformity with contract requirements. Tennessee Paper wished to make sure that small trees were not injured and that mature trees were harvested. Appellants’ subtle implication that Tennessee Paper’s inspections concerned “the manner in which the loggers cut the trees” is obviously not true. Tennessee Paper did not tell Mauldin how to cut or remove the trees; rather, Tennessee Paper supervised compliance with the contract specifications. Appellant cannot point to evidence showing that Tennessee Paper directed the manner of the work, offered advice on cutting and removal techniques, suggested changes in the work schedule, or attempted to supervise the manner of performance in any other way. Nor did Tennessee Paper reserve the right to control the manner of performance in its contract with Mauldin.

Appellants contend that Tennessee Paper knew the type and use of Mauldin’s equipment. Such knowledge, without more, is insufficient to support an inference that Mauldin is an employee of Tennessee Paper. Indeed, Mauldin supplied all the equipment used, a factor which supports the finding of independent contractor status. See Restatement (Second) of Agency, § 220(2)(e) (1957).

By examining the relevant evidence, we cannot find a reasonable inference of a genuine issue concerning the alleged employment relationship between Tennessee Paper and Mauldin. The evidence conclusively establishes Mauldin as an independent contractor. Appellants attempt to show that these same facts arose in three other cases that found the existence of an employment relationship. Each case is distinguishable for a different reason. In Sol-mica, supra, this Court affirmed a jury’s finding that John Cornelson, an aluminum siding applicator, was an employee of Sol-mica. Unlike the present case, the manager of Solmica “instructed Cornelson and the other applicators as to the way he wanted the siding applied_” 285 Ala. at 400, 232 So.2d at 642 (emphasis added). Solmi-ca retained and exercised the right to control the manner of application, above and beyond contract specifications related to the final product. The control exercised in Solmica is clearly different from the inspections conducted by Tennessee Paper.

Sawyer v. Chevron U.S.A., Inc., 421 So.2d 1263 (Ala.1982), is also distinguishable, although for other reasons. In Sawyer, this Court reversed summary judgment, finding a genuine issue of material fact over whether McDonald Petroleum, a trucking company, was an employee of Chevron. Several major differences are apparent. First, the McDonald trucks bore the Chevron logo. Other courts have held that such advertising may establish a public representation of apparent authority and therefore create an employment relationship. See generally Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir.1971); Sutton v. Chevron Oil Co., 85 N.M. 604, 514 P.2d 1301 (N.M.App.), aff'd, 85 N.M. 679, 515 P.2d 1283 (1973). No such representations were made by Tennessee Paper. More importantly, Chevron owned the facilities from which McDonald Petroleum conducted its business, limiting McDonald’s independence. Tennessee Paper did not control Mauldin in such a manner. Finally, McDonald and the trucking employees described by the cases cited in Sawyer were on call at all times subject to the employer’s direction. See Cox v. Howard Hall Co., 289 Ala. 35, 37, 265 So.2d 580, 582 (1972); Stevens v. Deaton Truck Lines, 256 Ala. 229, 234, 54 So.2d 464, 469 (1951). The right to control another’s time has been described as the quintessential ingredient of an employment relationship. See Seavey, Studies in Agency 220-22 (1949). Tennessee Paper had no right to control Maul-din’s time. On each ground, Sawyer is materially different from the present case.

Finally, appellants rely on a number of workmen’s compensation cases such as Davis-Day Timber Co. v. Gentry, 54 Ala. App. 385, 309 So.2d 97 (1975). Appellants suggest that the test of control relating to such determinations necessarily must be the same in all cases. Such a position is legally incorrect. The workmen’s compensation law is liberally construed to carry out the beneficent purposes of the act and to eliminate procedural technicalities. Sun Papers, Inc. v. Jerrell, 411 So.2d 790 (Ala.Civ.App.1981); Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974). The definition of employee has been gradually broadened to include borderline cases under workmen’s compensation schemes. A. Larson, Workmen’s Compensation, § 43.00 at 8-1 (1980). As Professor Larson of Duke has recognized, “the basic purpose for which the definition is used in compensation law is entirely different from the common-law purpose.” Id. § 43.42 at 8-16 (emphasis in original). Therefore, Gentry and other workmen’s compensation cases do not help this Court to ascertain the common law relationship between Tennessee Paper and Mauldin.

The second issue raised by appellants is whether Tennessee Paper may be held responsible for the Williamses’ deaths because Mauldin’s activities presented a peculiar risk of physical harm. The Restatement (Second) of Torts § 416 (1965) provides:

“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”

No Alabama case has formally adopted § 416 and we do not need to reach the issue in this case. Rather, we hold, as a matter of law, that the faulty maintenance of wheels and the hauling of pulp timber do not constitute a peculiar risk of physical harm which requires special precautions. Comment d. of § 416 illustrates our view:

“[I]f a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for.”

Tennessee Paper may be responsible for special precautions to anchor a load of giant trees which constitute a peculiar risk, but it is not responsible for the independent contractor’s compliance with simple maintenance procedures and load factors. See id. Hence, appellants cannot impose liability under § 416 upon Tennessee Paper under the facts in this case.

We hold that the trial court correctly granted summary judgment on the grounds of Mauldin’s independent contractor status and liability under Restatement (Second) of Torts § 416 (1965). Therefore, we affirm.

AFFIRMED.

MADDOX, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting).

The reader will readily discern that the majority opinion, for all practical purposes, is virtually a carbon copy of the dissenting opinion in Sawyer v. Chevron U.S.A., Inc., 421 So.2d 1263 (Ala.1982). Both are authored by the Chief Justice. The Court’s instant opinion overrules this Court’s holdings in Sawyer; C.E. Adams & Co. v. Harrell, 257 Ala. 25, 57 So.2d 83 (1952); Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970); and Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937), as well as the Court of Civil Appeals’ opinion in Davis-Day Timber Co. v. Gentry, 54 Ala.App. 385, 309 So.2d 97 (1975).

The only material distinction between this case and Sawyer is that in Sawyer the employee’s truck door bore the employer’s name “Chevron.” Surely, the inference of “right of control” could not spring from this fact alone; nor does the majority so hold. The majority’s suggested distinction that Chevron retained the right to control its employee’s work schedule, which Tennessee Paper did not, is fallacious. Tennessee Paper hired Mauldin to cut and haul logs from its timber lands to its mill; and, for his failure to perform according to Tennessee Paper’s expectation, Mauldin would be fired (in the language of the sawmill yard, “the boss done fired another sorry hand”).

The majority strains at another distinction:

“More importantly, Chevron owned the facilities from which McDonald Petroleum conducted its business, limiting McDonald’s independence. Tennessee Paper did not control Mauldin in such a manner.”

As already noted, Tennessee Paper owned “the facilities from which [Mauldin] conducted [his] business”; indeed, Tennessee Paper owned every place relating to Mauldin’s work except the public highway between the woods and the mill.

If anything, the distinction singled out by the majority between these facts and those in Solmica is even more telling:

“[T]he manager of Solmica ‘instructed Cornelson and the other applicators as to the way he wanted the siding applied.

This is as baseless as saying that, in the case of siding, the employer tells the worker to apply the composition material horizontally rather than vertically, while, in the case of a timber cutter, the employer tells the “saw hand” to cut the tree “down” instead of “up.”

The majority misconstrues Solmica’s rationale. Solmica’s holding is grounded in the kind and nature of the work to be performed. The hiring of one person by another to do common labor, whether it be cutting and hauling logs, or delivering gasoline, or putting siding on a house, generates, from the very nature of such employment, an inference of inherent right of control. Evidence of payment by cord weight, permitting the employee to hire helpers, not deducting for social security and other taxes, and requiring the employee to furnish his own truck and saws merely create a contrary inference; but such self-serving restrictions do not overcome, as a matter of law, the employer’s inherent right of control over such common laborers. To be sure, what other incidents of control would Tennessee Paper exercise over an hourly-wage employee than that right of control which it retained over Mauldin? The question is self-answering: There is no difference except for its labeling by the employer of independent contractor, which is not controlling.

In addition to this rationale (the right of control inherent in the kind and nature of certain employment), there is yet another subtle, but substantial, reason for this Court’s prior holdings in cases of this kind. We need not take a public poll to know that the most feared of all vehicles on the highways of this State, and for good reason, is not the truck hauling explosives, or toxic chemicals, or even atomic wastes, but the old, overloaded, no-brakes, slick-tired, one-headlight, no-taillights, uninsured log truck. This is not intended as a reflection on those hard-working timber cutters who eke out a bare existence under these so-called independent contract arrangements, for they barely earn a minimum wage; but the vehicles which they operate on the public highways are moving accidents, looking for a place to happen. For an excellent description of this kind of employee’s economic plight, see Professor Malone’s Louisiana Workmen’s Compensation Law and Practice, at p. 91, quoted in Malloy v. Buckner-Harmon Wood Contractors, 100 So.2d 242, 247 (La.App.1958):

“ ‘We have previously observed that in these cases [log hauling] the complainant is nearly always without appreciable capital (apart from the truck or wagon which he usually owns) and that the rate of pay for this use is pretty well standardized. Likewise the hauler’s job is integrated into the defendant’s enterprise on a fairly stable basis and he is thus in a poor position to set a price that will cover the risk of personal injury.’ ”

Recognizing this stark reality, our Courts have refused to indulge the legal fiction that would insulate, as a matter of law, the real responsible party. It is ironic indeed that the only deduction taken from Mauldin’s pay was for “contractor’s” insurance coverage to protect Tennessee Paper from liability. Query: What liability? See Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939).

The most absurd effort by the majority to distinguish its holding from Tuscaloosa Veneer and Davis-Day is found in this language:

“[Workmen’s compensation cases do not help this Court to ascertain the common law relationship between Tennessee Paper and Mauldin.”

This statement is hardly deserving of a reply. Suffice it to ask: If Mauldin had been injured and had filed a claim for compensation benefits, can we take seriously the majority’s suggestion that this Court’s application of one employer/employee standard would affirm a workmen’s compensation award in favor of Mauldin, but the application of another standard would affirm the trial court’s order granting summary judgment adverse to the estates of the two persons killed by Mauldin’s truck in the same accident? Such a word game reduces to a mockery what is intended by the liberal interpretation doctrine applicable to the Workmen’s Compensation Act. The Louisiana Court of Appeals addressed this point in a nonworkmen’s compensation context as follows:

“If economic status is a controlling, or at least a persuasive, influence in resolving claims between employer and employee, it should be accorded an equal weight in resolving liabilities toward the public generally. In other words, we are convinced that an employer, who is deemed liable to a claimant upon the principle that the claimant is an employee and not an independent contractor, should not be permitted to escape liability to third persons simply upon the basis of a conclusion that the same employee, with respect to the claims of such third persons arising from tort, should be classified as an independent contractor.” Malloy v. Buckner-Harmon Wood Contractors, 100 So.2d at 247.

Because I would affirm well-established precedent and reverse and remand on the respondeat superior theory, I would not reach the Appellants’ alternative theory based upon § 416, Restatement (Second) of Torts. The majority, by rejecting both theories, for all practical purposes, leave these and all prospective victims of such accidents remediless.

FAULKNER, J., concurs.

      . The accident upon which the suit in Sawyer was based occurred during a weekend and involved a McDonald employee who was called in to work to make a delivery.

      . Even though we have not embraced § 416, we have adopted its general principles in an earlier case.
      "An exception ... obtains where a duty to the public exists in the manner of executing the work undertaken by the contractor. Such duty exists when the execution of the work tends to create a nuisance; when it is dangerous within itself, as in blasting operations; when the work requires the creation of dangerous conditions, such as ditches and the like in a public highway; or generally when the maintenance of safe conditions in connection with the work is essential to protection of the public. In such case the chief contractor cannot transfer his public duty to a subcontractor. If the contractor places the performance of such duty in the hands of another, to that extent, that other is in law the mere agent, and the contractor is liable for his negligence."

        Thomas v. Saulsbury & Co., 212 Ala. 245, 246-47, 102 So. 115, 116 (1924) (emphasis added).