author: PRATHER, Justice,

text:
    A.C. LAMBERT, Sr., Commissioner of Revenue, State Tax Commission v. Ronnie R. SCHILLING, Jr.
    No. 54255.
    Supreme Court of Mississippi.
    June 6, 1984.
    Rehearing Denied July 11, 1984.
    Bobby R. Long, Joe D. Gallaspy, James H. Haddock, James S. Pounds, Gary W. Stringer, Jackson, for appellant.
    William Waller, Sr., Waller & Waller, Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The question presented on this appeal seeks an interpretation of a rule promulgated by the Mississippi State Tax Commission requiring coin-operated laundries to pay a five percent (5%) sales tax on gross receipts. The Hinds County Chancery. Court held that Rule 7 of the Mississippi State Tax Commission Sales and Use Tax Rules impermissibly expanded the authority of the taxing statute and awarded to Ronnie R. Schilling, Jr., a judgment of $53,-000 plus interest and costs against Mississippi State Tax Commission.

The Tax Commission appeals arguing that:

(1) The court erred in holding that MCA § 27-65-23 (1972) does not include coin operated laundries; and

(2) The court erred in holding that Rule 7 of the Mississippi State Tax Commission Sales and Use Tax Rules impermissibly expanded or extended MCA § 27-65-23 (1972) to include coin operated laundries.

We reverse and render.

I.

Ronnie Schilling has owned several coin operated businesses throughout the state since 1971. The business consists of coin-operated washers, dryers, and related equipment at each location. There are no managers or supervisors present to assist or accept money from the customers, but customers use the machines by placing coins, usually quarters, in the slots provided.

It is conceded that sales tax has been collected on launderettes since 1948. The appellee Schilling has been paying these taxes for ten (10) years without formal written protest.

Sales tax on gross receipts paid by Schilling for the years 1979 through the date of the lawsuit was stipulated to be $53,000.

II.

The sole question before this Court is whether a “launderette” or “coin-operated laundry” is taxable under the applicable sales tax statute, Mississippi Code Annotated, section 27-65-23 (1972) (Supp.1984) which in pertinent part states:

Upon every person engaging or continuing in any of the following businesses or activities there is hereby levied, assessed and shall be collected a tax equal to five percent (5%) of the gross income of the business, except as otherwise provided:
Laundering, cleaning, pressing or dyeing:

In 1948 pursuant to the authority granted the Tax Commissioner by Mississippi Code Annotated section 27-65-93 (1972), Rule 7(J) of the Mississippi State Tax Commission Sales And Use Tax Rules was promulgated which provides in part that:

Persons operating a laundry, launderette, cleaning, dyeing, or pressing shop are liable for a 5% sales tax on the gross income of the business.

This Court is asked to address whether Rule 7(J) is a clarification of section 27-65-23 as argued by the Tax Commission or whether the rule impermissibly expands the scope of taxing power of the Legislature. Stated another way, the appellant contends that the term “laundering” within the statute does not encompass “launderette” or “coin-operated laundry.”

The appellee relies upon this Court’s decision in Independent Linen Service v. Stone, 192 Miss. 832, 6 So.2d 110 (1942). Independent Linen Service operated a rental linen and towel service which leased towels, linens, pillow cases, sheets and other items to its customers. It was taxed under the laundry clause of section 27-65-23 by virtue of the fact that the business maintained and operated the equipment necessary to launder the linen and towel items which it rented.

This Court, however, recognized that Independent Linen Service provided no laundering services for others, but was engaged in the business of renting and leasing linens and merely laundered its own items for rental purposes. The Court held the sales tax statute inapplicable. (6 So.2d at 111).

Appellee follows this reasoning and contends that he operates a rental business of equipment, his rental business being washers and dryers rather than linens. Appel-lee, however, pays a privilege tax to operate a laundry.

The Utah Supreme Court addressed the identical issue presented here in Francom v. Utah State Tax Commission, 11 Utah 2d 164, 356 P.2d 285 (1960). Under Utah statute, a sales tax was imposed on charges for “laundry services”. In applying their statute to coin operated laundries the Utah Supreme Court reasoned that:

Regardless of the fact that the actual manual operation or labor is performed by the customer, we are of the opinion that the plaintiffs are performing a “laundry service” within the meaning of the statute and thus the sales tax is applicable. The mere fact that the plaintiffs have no attendant at the establishment does not mean that the plaintiffs are not performing a “service.” By making available to the public the machines necessary to the washing and drying of articles, they are performing a “laundry service.”

356 P.2d at 285-286.

This Court is of the opinion that the word of our statute “laundering” and the words of the Utah statute “laundry service” are analogous. In the case sub judice, as in Francom, supra, a laundering service is being provided for others. This Court takes the view that it matters not that the customer in Schilling’s launderette does the work. What matters is that a laundry service is provided.

In the context of the sales tax statute, “service” is not restricted to manual service, but includes the “service of furnishing washers and dryers” to the public for their use.

We, therefore, hold that a five percent (5%) sales tax on the gross receipts of a launderette or coin operated laundry is collectible under section 27-65-23 and may continue to be so collected. The judgment granted by the trial court to appellee against the Mississippi State Tax Commission is vacated.

Addressing the related issue pertaining to rule 7(J) of the Mississippi State Tax Commission Sales And Use Rules, we hold that such rule clarifies the meaning of section 27-65-23 as including launderettes and that the rule does not impermissibly expand the taxing authority of the Legislature.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, DAN M. LEE and SULLIVAN, JJ., concur.

ROBERTSON, J., not participating.


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice,

license: Public Domain

text:
    Kenny BLANKS and Paul Robinson v. STATE of Mississippi.
    No. 54920.
    Supreme Court of Mississippi.
    June 6, 1984.

      Robert M. Logan, Jr., Gerald, Brand, Watters, Cox & Hemleben, Newton, Leon Mangum, Decatur, for appellants.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and DAN M. LEE, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Kenny Blanks and Paul Robinson were jointly indicted, tried and convicted in the Circuit Court of Newton County, Mississippi, Honorable Marcus D. Gordon, presiding, on a charge of armed robbery. The jury was unable to agree upon a sentence and the lower court sentenced each of them to thirty (30) years with the Mississippi Department of Corrections. They have appealed, and Blanks has assigned six (6) errors and Robinson has assigned three (3) errors in the trial below.

I.

The lower court erred in denying Blanks and Robinson a severance for separate trials.

Both appellants contend that the court erred in refusing to grant them a severance. Neither Blanks nor 'Robinson testified at the trial. Blanks introduced three (3) witnesses, all of whom testified concerning an alibi for him. Robinson offered no evidence in his own behalf.

The appellants argue that it was anticipated Kenneth Robinson, a brother of Paul Robinson and an unindicted accomplice, would testify on behalf of the State. Also, Blanks contended that Paul Robinson had given a confession to the officers and that the confession would be highly prejudicial to him. At trial, the lower court conducted a hearing on an objection to the confession of Paul Robinson, sustained the objection, and did not permit the introduction of the confession.

Kenneth Robinson testified implicating both appellants equally in the planning and commission of the alleged crime, as well as himself. There was no prejudice sustained by either appellant for the failure of the court to grant a severance, since all evidence introduced at trial went to the guilt of both appellants and not to one more than the other. The granting of a severance is discretionary with the judge and, in our opinion, the lower court did not abuse its discretion in declining to grant the severance. Fairley v. State, 349 So.2d 1050 (Miss.1977); Price v. State, 336 So.2d 1311 (Miss.1976).

II.

The lower court erred in permitting the jury to consider the identification testimony of Gatha Lackey.

At approximately 3:30 or 4 p.m. on the afternoon of October 30, 1982, Gatha Lackey was standing in her driveway about 20 to 25 feet from the public road when a light beige old model car, either a Pontiac or Oldsmobile, passed her, traveling very slowly. She observed two black men on the front seat and obtained a good view of them, although she could not see their bodies below the shoulders. The robbery had occurred along the road only about 100 yards away, and, within a matter of minutes, the victim came to her house and reported the incident.

A preliminary hearing was held for the appellants in the town of Union after their arrest and Mrs. Lackey attended that hearing. She saw one of the black men at the hearing who looked exactly like Blanks. Mrs. Lackey testified that nobody pointed the man out to her nor did anyone say who the man was. She did not speak with any law enforcement officers about the identification. Subsequent to the preliminary hearing, a deputy sheriff contacted Mrs. Lackey and showed her two photographs. Mrs. Lackey said that the deputy sheriff placed the photographs on a table; that she looked at them; and that he didn’t ask her about the identity of the men or comment as to who they were. At the trial, Mrs. Lackey made a positive, unequivocal in-court identification of both appellants.

Robinson contends the fact that Mrs. Lackey went to the preliminary hearing and subsequently saw two photographs of a black man, rendered the identification impermissibly suggestive and that her testimony should have been excluded. However, she stated that she identified the appellants from her observation and view of them in the automobile, which passed her house shortly after the robbery, and she positively and unequivocally identified them in the courtroom. After carefully considering the testimony of Mrs. Lackey, we are convinced that, under the totality of the circumstances, her identification of the appellants was not so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Scott v. State, 359 So.2d 1355 (Miss.1978); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

III.-V.

The lower court erred in overruling the appellant Kenny Blanks’ motion to be allowed twelve (12) peremptory challenges to the jury panel.

The lower court erred in commenting upon the weight of the evidence.

The lower court erred in giving the “Sharplin” charge to the jury.

The assigned errors above do not constitute reversible error. Mississippi Code Annotated § 99-17-5 (1972) provides the following:

Defendants tried jointly must agree in their challenges made without cause, and shall be entitled to only the number to which one defendant is entitled..

The above section has been the law in this state for more than one hundred years, has never been seriously challenged, and is a complete answer to the error assigned.

Kenny Robinson was called as a witness by the State, and he testified that he was present when the robbery was being planned by appellants. In overruling an objection to his testimony, the court stated: “Overruled. It goes to purpose or scheme, design, and plan.” Appellant Blanks argues that such statement by the judge was a comment upon the weight of the evidence. We do not agree with counsel that such statement, in giving the reason for .the court’s ruling, constituted a comment upon the weight of the evidence and find the assignment to be without merit.

Appellant Blanks next contends that the lower court erred in giving the Sharp-lin charge. The jury deliberated from 6 p.m. until 9:25 p.m. and announced in open court that it was divided 11-1 and felt that the jury could not agree upon a verdict. The lower court then gave the jury the verbatim charge from Sharplin v. State, 330 So.2d 591 (Miss.1976) [See Appendix], Thirty-eight minutes after receiving the Sharplin charge, the jury returned a verdict of guilty as charged on both appellants. The purpose of Sharplin was to formulate a proper instruction which could be given in a situation such as the case sub judice. The Sharplin instruction was devised for the guidance of trial judges, who are entitled to, and should, follow the law as pronounced by this Court to the best of their abilities. Sharplin gives specific authority for the instruction under such cases as we have here. The lower court committed no error in granting same. See also Murphy v. State, 426 So.2d 786, 791 (Miss. 1983).

VI.

The lower court erred in unduly restricting the right" of counsel for Kenny Blanks to cross-examine the witness Kenny Robinson.

As mentioned above, Kenny Robinson, an unindicted accomplice of the appellants, testified in favor of the State. On cross-examination, Blank’s counsel questioned Robinson concerning his past commission of burglaries and crimes and as to his part in a conspiracy to rob the victim. While the lower court permitted Robinson to testify about his convictions of burglary, and also his connection with the robbery in the case sub judice, it sustained objection to his involvement in other crimes and burglaries for which he had not been convicted. We think the lower court properly ruled on the objection and that no error was committed.

VII.

Both appellants contend that the verdict of the jury was contraryto the overwhelming weight of the evidence.

According to the State’s evidence, on October 30, 1982, when Commodore Dean, the victim, was returning from Meridian, to the Hopewell Community in Newton County, where he lived, he saw a beige car stopped on the side of the dirt road. The car darted ahead of him and two black men, one slim and one heavy, got out and demanded Dean’s money. The heavy man had a gun, and they took from him two billfolds, containing in excess of $100.00, broke his glasses, skinned his arm, and bent his car door. He drove to Gatha Lackey’s, a neighbor who lived approximately 100 yards from where the robbery occurred, and reported the matter to her. Dean could not identify the men.

Gatha Lackey testified that she was in her driveway, waiting to accompany a group of children to a Halloween function. She saw a light beige old model car slowly pass by, observed the men closely, and, in a short while, Mr. Dean came to her house and reported the burglary. She made a positive in-court identification of both appellants.

Kenny Robinson, testified for the State that he was present when the appellants planned the robbery of Mr. Dean, that he heard the plans prior to the robbery; and that he saw them after the robbery and knew they had committed the crime. Although Paul Robinson confessed to the robbery and implicated Kenny Blanks, the trial judge excluded the confession, since the appellants were being tried jointly. Paul Robinson offered no witnesses and Kenny Blanks’ defense was an alibi.

We are of the opinion that the evidence presented a guilt question for the jury and that there is no merit in this assignment. Jackson v. State, 440 So.2d 307 (Miss.1983); Gray v. State, 387 So.2d 101 (Miss.1980); Warn v. State, 349 So.2d 1055 (Miss.1977); Carroll v. State, 196 So.2d 878 (Miss.1967).

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

APPENDIX

“I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourselves, but only after each impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Please continue your deliberations.” Sharplin v. State, 330 So.2d 591, 596 (Miss.1976).

      . Mrs. Lackey, on first being examined, said that the passenger in the automobile was Robinson, but immediately thereafter and throughout her testimony unequivocally stated that Blanks was the passenger and Robinson was the driver.

      . House Bill No. 362, passed and effective July 1, 1984, amends Mississippi Code Annotated § 11-7-145 (1972), to provide for an equal number of peremptory challenges to jurors in civil actions when additional peremptory challenges are allowed to opposing counsel.
      Trial judges should consider the effect of that amendment on trials of joint defendants in criminal cases and as to whether a denial of constitutional rights might result to an accused.

      . No objection was made to the charge when given.

      .We note that the lower court gave the following instruction at the request of the defendants:
      The jury is instructed that the testimony of Kenny Robinson establishes him as an unin-dicted co-conspirator in this case. As such you should look upon his testimony with care, caution, suspicion and distrust, taking into consideration his possible motives to testify falsely.


author: PATTERSON, Chief Justice,

text:
    Barbara Kaye BUSH v. C. Nolon BUSH.
    No. 54921.
    Supreme Court of Mississippi.
    June 6, 1984.
    Rehearing Denied July 11, 1984.

      Dale Hubbard, Wayne E. Ferrell, Jr., Ferrell & Hubbard, Jackson, for appellant.
    Charles H. Evans, Evans & Evans, Thomas J. Lowe, Jr., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, wherein Barbara Kaye Bush was granted a divorce from her husband, C. Nolon Bush, on the ground of uncondoned adultery. Additionally, the chancellor’s final decree awarded Mrs. Bush custody of the parties’ minor children, use and possession of the household goods and of one of the parties’ automobiles, and the following sums: (1) $7,500.00 to be used to pay storage fees on certain household goods and for relocation expenses; (2) $10,000.00 lump sum alimony to be paid in equal installments on or before October 1, 1983, and on or before April 1, 1984; (3) $800.00 per month child support; and (4) $1500.00 attorneys fees. Bush was also required to maintain a minimum $100,000 insurance policy on his own life with the children of the parties as named beneficiaries and to pay all medical, dental, orthodontic, optical, and all reasonably necessary psychiatric/psychological expenses of the minor children.

Aggrieved with this judgment, Mrs. Bush appeals and assigns as error that the chancellor failed:

1. To award periodic payments of alimony;

2. To require Bush to post bond as security for payment of alimony and child support; and

3. To award an amount for necessities which had accrued at the time of trial.

The parties were married in July 1971, and had two children: a son in 1975 and a daughter in 1980. Nolon Bush also had three children from a previous marriage.

Barbara Bush ceased living with her husband when she discovered he was involved in an adulterous relationship with a colleague. The details of that liaison need not be discussed, since it is undisputed here that Mrs. Bush is entitled to a divorce on the ground of adultery. This case instead centers on the issue of the amount of support Bush should be required to pay and whether sureties for the payment of those amounts should be required.

Mrs. Bush first contends that the chancellor erred in refusing to award peri-odie payment alimony. We are of the opinion this case should be remanded for consideration of that issue. In so holding, we note first in fairness to the chancellor that Bush’s financial picture, as it appears in the record, is hazy. We agree with the chancellor’s observation that “[Tjhere was no way to tell what [Bush’s] business is, what [he has] made, what [he has] spent, where it has gone, whether the government has gotten what they were supposed to, or what it was.” However, we are concerned that the apparent reason for the refusal of periodic payment alimony was not the difficulty of ascertaining Bush’s financial condition, but that the chancellor was of the opinion such an award could not be made in combination with an award of lump sum alimony. Our conclusion is based on the following colloquy:

BY THE COURT:
If you would rather have that than the alimony lump sum that I show, we will go along with it.
BY MR. FERRELL:
No, sir.
BY THE COURT:
That is what I thought, and why I thought what I was offering was better. But I will let you go either way.
BY MR. FERRELL:
My problem with that, Judge, she needs the lump sum alimony but we feel like he has successfully evaded his duties. If he goes out now and makes $100,000.00 like he has in the past, ... if these two pay stubs are just put here for the purpose of persuading the court in the wrong direction ... we would have to have a material change of circumstances which that would be, and we really request just $1.00 a month or something where we can modify it if he hasn’t
BY THE COURT:
I don’t think that would do it.
We will go either way with it, but
BY MR. FERRELL:
My request was to have the lump sum, but have $1.00 per month which would be just
BY THE COURT:
I don’t think we can do that.
BY MR. FERRELL:
We will take the lump sum. (Emphasis added.)

The foregoing indicates to us the chancellor believed he had no authority to. award lump sum alimony in conjunction with periodic payment alimony. However, we have held to the contrary. Harrell v. Harrell, 231 So.2d 793, 796 (Miss.1970). In Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973), we stated:

... Harrell, as we view it, upholds and thus authorizes alimony in lump sum, either alone or in conjunction with other awards. It appears to us that a lump-sum award in conjunction with an award of monthly alimony would have been proper in this case.... It seems to us in a case such as this where the wife has contributed to the accumulation of the property of her husband, doing her part as a housewife, it would not be improper that she be allowed a reasonable amount as lump-sum alimony on retrial. (Emphasis added.)

. In view of these holdings, we are of the opinion the chancellor improperly required Mrs. Bush to choose between lump sum and periodic payment alimony. This case should therefore be reversed and remanded for consideration of whether Mrs. Bush is also entitled to the periodic payment alimony she requested.

Secondly, Mrs. Bush argues the chancellor erred in failing to require Bush to post bond as security for the payment of sums owed her.

The record reveals that after Mrs. Bush encountered some difficulty locating Bush, he was served with process in California. Bush testified that although he planned to live in Houston, his job could require him to “go anywhere in the world ...” On cross-examination he agreed with defense counsel that he had been “across the United States in the last month.”

It is obvious from the record Bush had no intention of remaining in Mississippi; also evident was the possibility that his travels would make it difficult for Mrs. Bush to locate him and for any court to exercise jurisdiction over him.

Mississippi Code Annotated, § 93-5-23 (Supp.1983), empowers the chancellor to “require sureties for the payment” of child support and alimony. Further, in Edmondson v. Ramsey, 122 Miss. 450, 465, 84 So. 455, 458 (1920), it is stated:

... It is also to be borne in mind that our chancery courts have power to issue the equitable writ of ne exeat república even before an award of alimony, when a proper charge is made to the court that the defendant is about to leave the state or that he has said that such was his purpose. Under this proceeding, he may be required to execute a bond with sufficient sureties conditioned not to leave the state, or as security for the payment of the alimony which may be adjudged against him ...

Citing Watson v. Williams, 36 Miss. 331 (1858), the court stated further:

... A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments, or decrees against the recu-sant parties before it, would be a disgrace to the legislation, and a stigma upon the age which invented it.
122 Miss, at 466, 84 So. at 458.

In both her pleadings and at trial, Mrs. Bush requested the court to require Bush to post bond. Bush’s own testimony revealed he planned to leave Mississippi at the conclusion of the proceedings. Additionally, the record shows a judgment for arrearage in child support had been rendered against Bush and remained unpaid at time of trial. Based on the foregoing fac¿ tors, our opinion is Bush should be compelled to post bond to secure payment of the sums he owes Mrs. Bush. This remedy is particularly appropriate in view of the fact that Bush owns no real property in Mississippi on which a lien could be imposed as security. Johnson v. Johnson, 189 Miss. 561, 198 So. 308 (1940).

Finally, Mrs. Bush argues the chancellor erred in not requiring Bush to pay one-half of the medical bills totaling $749.75 which had accrued at time of trial. She cites Cook v. Adams, 183 So.2d 925 (Miss. 1966), for the proposition that a husband and wife are jointly liable for the value of the wife’s necessities.

Bush does not dispute the holding of Cook; instead he argues the chancellor intended Mrs. Bush to use a portion of the award of $7500.00 to pay these bills. However, the chancellor stated in reference to that award:

That is for her to use for storage costs, relocation or whatever else she is going to need. There is no doubt in my mind but what Mrs. Bush has got to re-establish herself, re-establish the income level at which she is going to live, and income on which she is going to live. (Emphasis added.)

Our opinion is the chancellor was contemplating prospective expenses, not those already incurred, when he made this award. We therefore are of the opinion Bush should be required to pay half of these medical bills.

For the foregoing reasons, reversal is required, and the case is remanded so that the chancellor may (1) consider the appropriateness of an award of periodic payment alimony; (2) require Bush to pay an additional $374.87 to be applied to the medical bills incurred at time of trial; and (3) direct Bush to post bond to secure payment of all amounts owed Mrs. Bush.

REVERSED AND REMANDED.

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

ROBERTSON, J., not participating.


author: ADAMS, Justice.

text:
    Evelyn MANN v. Otis MANN, et al. Loyd Earl MANN v. Evelyn MANN.
    82-908, 82-934.
    Supreme Court of Alabama.
    June 1, 1984.
    Boyd Whigham, Clayton, for appellant.
    Lynn W. Jinks III, Union Springs, for appellees.
   ADAMS, Justice.

This appeal and the cross-appeal are taken from a judgment of the trial court, sitting without a jury, in an action for partition and sale for division of real property.

The plaintiff, Evelyn Mann, and eleven others were tenants in common of slightly more than 150 acres of real property in Bullock County. In October 1981, Miss Mann filed a complaint in the circuit court, asking the court to set aside, as her one-third interest in the property, fifty acres, including the parcel on which her house trailer was located. In addition, she asked the court to sell the remaining two-thirds for division, alleging that it could not be equitably partitioned among the other co-tenants. She asked that attorneys’ fees be awarded to her attorney from the proceeds of the sale.

An answer-counterclaim was filed on behalf of four of the defendants. In this pleading, it Was alleged that none of the real estate could be equitably partitioned. The court was asked to sell the entire property, including Evelyn Mann’s share, for division. The counterclaim also asked that the defendants’ attorney receive reasonable compensation for his services, “the same to be taxed as a common charge upon all the interests of the parties hereto as they might appear and to be paid out of the proceeds of the sale of said property.”

Miss Mann’s attorney filed a motion to dismiss the counterclaim, which motion was denied by the court. Thereafter, on April 1, 1982, the complaint was amended as follows:

1. That the Complaint heretofore filed be amended by the addition to paragraph 6 of the following:
“If the Court determines that it is not possible to partition the entire share of the Plaintiff Evelyn Mann, that the Court will partition that portion on which her trailer is located. If the Court determines that it is impossible to partition any amount to Evelyn Mann, then in the alternative all of the property described in- paragraph 1 should be sold for division.”
2. That the Complaint heretofore filed be amended by the addition to paragraph 2 of the Demand the following:
“In the alternative, if Evelyn Mann’s share, or a portion thereof, cannot be equitably partitioned, that the entire parcel as described in paragraph 1 be sold for division among the tenants in common.”

A trial was held, at which the defendants/ counterclaimants presented testimony, controverted by the plaintiff’s witnesses, that a partitioning off of Miss Mann’s share would diminish the value of the remainder. Evidence was also adduced that both attorneys involved in the case had rendered services which were of value to the entire estate. Following the trial, the court set aside approximately fifty acres of the property, including that occupied by Miss Mann’s trailer, as her one-third share, and ordered the remaining two-thirds sold for division.

After the sale of the two-thirds portion for $37,000.00, the court issued a decree confirming the sale and ordering that each of the two attorneys be paid a fee of $2,775.00. It determined court costs, exclusive of attorneys’ fees, to total $590.23. The court ordered the clerk of the court to deliver to Evelyn Mann a register’s deed to the property alloted to her upon payment into court of $2,046.74 as her pro rata share of the costs of the action, including attorney’s fees. The proceeds of the sale, after the subtraction of the remaining two-thirds of the costs, were divided among the defendants according to their interests in the property.

The division of the property is not contested in these appeals. The issues raised by the parties concern, first, the propriety of dividing the attorneys’ fees between the attorney for the plaintiff and the attorney for the defendant, and, second, the correctness of the trial court’s requirement that Evelyn Mann pay one-third of the attorneys’ fees and court costs. We affirm the judgment of the trial court.

Regarding the division of attorneys’ fees, Miss Mann argues that the defendants had no right to their counterclaim, which, she says, should have been struck by the trial judge, and that defendants’ counsel performed no service for the common estate which her own counsel had not been employed to perform. From this she concludes that defendants’ counsel should not be allowed attorneys’ fees from the common estate. The cross-appellant counters that, having petitioned to have her own share of the land partitioned in kind, Miss Mann had no standing to petition for the sale for division of the remaining two-thirds of the property, and that the coun-terelaim alone allowed the defendants’ share to be sold. Therefore, he maintains, Miss Mann’s attorney should be able to look only to his client’s interest in the property in collecting his fee.

In this discussion we do not reach the questions of the necessity or impropriety of the counterclaim, as we do not think these issues control the resolution of the conflict over attorneys’ fees. The statute governing the trial court proceedings, Code 1975, § 35-6-20, gives broad powers to the circuit court to “divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common .... ” The discretion of the trial court in such a case is extended to the awarding of attorneys’ fees by § 34-3-60. That section reads:

In all actions and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust, joint or common property, or any party in the action or proceeding, and is authorized to tax as a part of the costs in such action or proceeding such reasonable attorney’s fee, which is to be paid when collected as other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court to be a lien on the several parts in case of partition in kind. (Code 1907, §§ 3010, 5219; Code 1923, §§ 6261, 9319; Code 1940, T. 46, § 63.)

This court has noted that the attorneys’ fees authorized by the statute are not limited to the plaintiff’s attorney, but in a proper case may extend to a defendant’s attorney. See Spiller v. Mackereth, 334 So.2d 859 (Ala.1976). In Matthews v. Lytle, 220 Ala. 78, 124 So. 197 (1929), this court held:

To permit counsel for respondent to have a fee out of the estate, he must have been employed to render and did perform some service for the common benefit of all, which in due course of the proceeding other counsel had not been employed to render, or had unduly failed to perform, unless in the discretion of the court it appears that a case is presented in which more than one counsel should be employed for the common benefit. Under the statute, this is largely controlled by the discretion of the court, subject to proper review.

220 Ala. at 80, 124 So. at 198. It has been consistently held that the awarding of attorneys’ fees in partition actions is left to the sound discretion of the trial judge, and, on review, this court will not disturb the award without a showing that the trial judge abused that discretion. Spiller v. Mackereth, supra; King v. Smith, 247 Ala. 1, 22 So.2d 336 (1945); Broughton v. Nance, 244 Ala. 499, 14 So.2d 505 (1943).

An examination of King v. Smith, supra, seems appropriate with reference to the case before us. In that case, a number of parcels of land were owned by tenants in common. A bill was filed, seeking partition in kind or, alternatively, sale for division. As an outcome, certain of the parcels were partitioned, while others were sold for division. Attorneys’ fees were awarded from the common fund to counsel for both the plaintiffs and the defendants. This court observed, regarding the evidence:

The questions arising in the case were not those of adverse claim among these joint owners .... The only difference evidenced from time to time related to the method of partition or division. All the parties sought an equitable and fair division, and so far as this record discloses no one sought any peculiar advantage over the other.

247 Ala. at 2, 22 So.2d at 337. In affirming the trial court’s decree, this court noted that the trial judge was clearly familiar with the work done by the attorneys, and that the decree was supported by the evidence.

Likewise, in the case before us, the trial judge was familiar with the contributions of both attorneys to the action, and there is evidence in the record to support his finding that the services rendered by both attorneys were for the joint benefit of all the parties. We find no abuse of his discretion in awarding attorneys’ fees to both attorneys.

We look now to the trial court’s requirement that Miss Mann pay into court one-third of the court costs and attorneys’ fees.

It appears from the record that the total amount of the fees was based on the calculated value of the entire property made the subject of the action, including Miss Mann’s share. The last portion of § 34-3-60 authorizes the trial court to

tax as a part of the costs in such action or proceeding such reasonable attorney’s fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court and to be a lien on the several parts in case of partition in kind.

We find this language to be amply broad to allow the trial court, in its discretion, to order the taxation of attorneys’ fees and other costs in the manner adopted in this case, under the facts as presented.

For the above reasons, we hold that the trial court’s judgment is due to be, and it hereby is, affirmed.

AFFIRMED.

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

      . The cross-appellant in the case before us, Loyd Earl Mann, was one of the counterclaimants in the court below.


author: EMBRY, Justice.

text:
    COCA-COLA BOTTLING COMPANY, MONTGOMERY, a partnership, et al. v. Eddie Mae PARKER and Charles J. Allen, et al.
    82-935.
    Supreme Court of Alabama.
    June 1, 1984.

      Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants.
    V. Lee Pelfrey, Clayton, for appellees.
   EMBRY, Justice.

This is an appeal from a verdict and judgment in the Circuit Court of Bullock County for the plaintiffs, Eddie Mae Parker and Charles Allen, in the amount of $10,000 per plaintiff. The suit arose out of a claim for compensatory damages for injuries suffered by Parker and Allen as a result of the ingestation of particles of glass from a Coca-Cola bottled in Montgomery, Alabama, by the defendant company (Coca-Cola). Plaintiff-appellee’s theory of recovery against Coca-Cola was predicated upon the Alabama Extended Manufacturer’s Liability Doctrine and breach of warranty. Coca-Cola’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, was denied by the trial court.

The only issue raised on appeal is whether, under the particular facts and circumstances pertaining to the award of compensatory damages in this case, the jury award to each plaintiff was excessive.

I

Because a review of this nature is contingent upon the facts of the particular case, a rather detailed statement of the facts is here presented: On Sunday, 4 October 1981, at about 7:00 A.M., Charles Allen, Eddie Mae Parker’s grandson, removed a sixteen ounce Coca-Cola, bought the previous day at Midway Trading Post in Midway, Alabama, from the refrigerator. He opened the bottle by unscrewing the cap, noting at the time it made the normal “whoosh” sound when the seal was broken. Mrs. Parker drank several swallows from the bottle and then left the house with a friend. When in the friend’s car, Parker felt something in her throat. She expectorated several times and, after arriving at her destination, threw up some blood.

After Parker had left, Charles Allen drank several swallows from the drink and felt something going down his throat. He found a small piece of glass lying on his tongue. Upon peeling the wrapper off the Coca-Cola, Allen saw there were particles of glass in the bottle. He took the bottle to Parker, who was down the street, and showed her the glass. Mrs. Parker said of Allen’s appearance at this time, “His eyes were all bugged out.”

Parker gave Charles Allen bread in order to coat the glass and he returned home. Parker took the Coca-Cola bottle to Midway Trading Post to show it to the retailer that had sold her the bottle.

The following day, both Mrs. Parker and Charles Allen complained of very sore throats and went to a physician named Jackson. Dr. Jackson treated both with antibiotics. After a second visit he released both Parker and Allen with no restrictions. Dr. Jackson testified at trial that, in both eases, the throats appeared similar to the throat of a person with a serious cold or sore throat.

As a result of the trips to the physician, Charles Allen missed two days of school. Because Mrs. Parker was not working at that time, she lost no income as a result of her illness.

Both Mrs. Parker and Allen testified they continue to suffer lasting effects from their injuries. Parker testified regarding her fear while grocery shopping:

“Q. Has this incident caused you any inconvenience — ?
“A. Yeah.
“Q. —Other than what you’ve already testified to?
“A. Yeah, because when I went to the grocery store, because I be scared. I got to stay in there so long looking, you know, because I don’t buy nothing in no bent can or any cracked nothing.
“Q. Do you check the products closely that you buy now?
“A. Closer than I used to.
“Q. Do you buy soft drinks in glass bottles?
“A. No, I don’t buy no soft drinks in no bottles. I buy them in a can.
“Q. What about other products in the grocery store?
“A. I buy what I can in plastic.
“Q. And why is that?
“A. I’m scare of a bottle now. I don’t buy nothing in a bottle now if I can get around it.”

Allen testified he was afraid he was going to die as a result of drinking glass and he is still afraid of drinking from bottles.

The only monetary loss proven by Allen and Parker at trial was $15 for the cost of driving to and from Eufaula, Alabama, to see Dr. Jackson.

II

The general principles of reviewing excessive damages are well established. Jury verdicts carry with them a presumption of correctness, Carroll Kenworth Truck Sales, Inc. v. Leach, 396 So.2d 1044 (Ala.1981), especially where damages awarded are for pain and suffering. Langdon v. Miller, 276 Ala. 195, 160 So.2d 479 (1964). That presumption is strengthened by the trial court's denial of a motion for new trial. Cox v. Herrington, 416 So.2d 968 (Ala.1982). Where, as here, the issue is whether damages awarded for personal injuries are excessive, the disposition depends on the facts of the particular case. In Durham v. Sims, 279 Ala. 516, 187 So.2d 558 (1966), this court stated:

“There is no fixed standard for ascertainment of compensatory damages recoverable here for physical pain and mental suffering, but the amount of such award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion....”

Durham v. Sims, 279 Ala. at 517, 187 So.2d at 559. Coca-Cola contends there was here a prejudiced and passionate exercise of discretion by the jury and pleads with this court to order a remittitur to a reasonable amount or, in the alternative, to order a new trial on the issue of damages.

Ill

This court is aware of the difficulty in labeling almost any present verdict excessive in comparison with prior verdicts, given the decrease in value of the dollar. But the dollar figure cannot be viewed in the abstract; it must be considered in the context of the evidence of record. That evidence shows extremely little damage in this case.

The total amount of monetary damages caused the plaintiffs and proved at trial was $15. The only physical pain of any consequence which the plaintiffs suffered was the immediate discomfort upon swallowing the glass and a sore throat for several days thereafter. The experience of drinking a polluted beverage must have been unpleasant. Lingering mental anguish, however, including a continued disinclination by the plaintiffs to drink from bottled beverages, must be considered minimal.

In short, while the amount of the award to the plaintiffs is not shocking when viewed in the abstract, when tied to the facts of this case and the mildness of the injuries suffered by the plaintiffs, we do not find the amounts awarded shocking.

We must note the record reveals that, to prove Coca-Cola’s liability, the plaintiffs have presented extensive evidence as to that company’s failure, prior to this incident, to provide appropriate quality control measures for the detection of foreign objects in bottles. Based on that evidence, we think it reasonable to surmise that the jury returned punitive damages against Coca-Cola as well as compensatory damages, for the plaintiffs. The plaintiffs sought only compensatory damages, and the jury was charged by the trial court only as to the award of compensatory damages.

While we are reluctant to do so, we find the amount allowed by the verdict so excessive as to plainly indicate it was produced by mistake, inadvertence, or failure to comprehend and appreciate the issues. In determining this issue we have kept in mind the governing principles of law and have given the required presumptions to the trial court’s refusal to order a new trial because of excessive damages.

Coca-Cola requests that this court either order a remittitur of the damages or grant a new trial only as to damages. Under Rule 59(a), ARCP, a new trial may not be granted on part of the issues where the action was tried to a jury.

Therefore, for the above reasons, the appellees shall, within thirty days after this date, file a remittitur, pursuant to § 12-22-71, Code 1975, reducing the total judgment from $20,000 to $10,000, computed at $5,000 per plaintiff; otherwise this judgment will stand reversed. Let notice issue to the appellees accordingly. If they shall timely file such remittitur, the judgment will be reduced and affirmed for the sum of $10,000.

AFFIRMED CONDITIONALLY.

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


author: ALMON, Justice.

text:
    George W. STRIPLING v. Robert A. ARMBRESTER; Jackson Realty Co., A Corporation; Real Evans; Charles Mathews, d/b/a Mathews Cafeteria; et al.
    82-973.
    Supreme Court of Alabama.
    June 1, 1984.
    Bryant A. Whitmire, Jr., Birmingham, for appellant.
    Robert M. Girardeau of Huie, Fernam-bucq & Stewart, Birmingham, for appellees Jackson Realty Co., Robert Armbrester, and A.A. Evans.
    Dick Nave of Furner, Boyce & Nave, Homewood, for appellee Charles Mathews d/b/a Mathews Cafeteria.
   ALMON, Justice.

This is an appeal from the grant of summary judgment in favor of the owner, managing agents, and a tenant of a shopping center who were sued by a business invitee whose car was stolen from the shopping center parking lot.

On September 4, 1982, at approximately 6:00 p.m., George W. Stripling parked his car in the Mountain Brook Shopping Center parking lot adjacent to Mathews Cafeteria, one of the businesses in the shopping center. After locking his car, Stripling and his wife entered the cafeteria to eat dinner. When Stripling returned to the space where he had parked his car, he discovered that his automobile was missing. He immediately called the Mountain Brook Police Department, and an incident report was made. Shortly thereafter, his automobile was discovered within the City of Birmingham. The automobile had been vandalized and stripped.

On November 1, 1982, Stripling filed suit in Jefferson Circuit Court against Robert A. Armbrester, Jackson Realty Co., Real Evans, Charles Mathews d/b/a Mathews Cafeteria, and certain fictitious parties. The complaint alleged that the defendants were aware of other automobile thefts occurring in the Mountain Brook Shopping Center parking lot, that they were negligent in failing to provide appropriate security measures and in failing to inform the public of this dangerous condition, and that their negligence proximately caused the theft of Stripling’s car from this parking lot.

The defendants filed an answer denying each allegation of the complaint. In response to interrogatories, the defendants denied having any knowledge of prior automobile thefts from the Mountain Brook Shopping Center parking lot. The defendants stated that their occasional use of off-duty Mountain Brook police officers in the parking lot was for the sole purpose of controlling a problem of limited parking and not for the deterrence of possible criminal activity.

The defendants also filed a motion for summary judgment. Stripling filed a motion in opposition to the summary judgment motion and attached the affidavit of a Mountain Brook police officer who stated that two other auto thefts had occurred in the Mountain Brook Shopping Center parking lot only two months prior to the theft of Stripling’s car. The officer also stated that in the past five years there had been several purse snatchings, two robberies, and a kidnapping, all of which had occurred in or around the parking lot. The officer concluded that the close proximity of the parking lot to the entrance ramp of Highway 280 made the lot particularly susceptible to crime.

The court granted summary judgment in favor of all the defendants, and Stripling’s appeal to this Court followed.

Our review of the grant of summary judgment in this case is controlled by the recent decision of Latham v. Aronov Realty Co., 435 So.2d 209 (Ala.1983).

In Latham, supra, a business invitee who was criminally assaulted in the parking lot of a shopping mall by third parties sued the owners of the mall, the rental agent, and the security service hired to guard the mall, to recover damages for the injuries resulting from his assault.

Latham argued that he had presented evidence “more than sufficient to give rise to a reasonable inference that the defendants knew or should have known about the dangerous condition that existed in an area over which they exercised control, and thus [that] the granting of the directed verdict was error.” Latham, supra, 435 So.2d at 213.

In support of this position, Latham contended that the act of hiring security personnel gave rise to an inference that the defendants foresaw the possibility of criminal activity on the part of third persons. He also cited the testimony of the mall manager, who stated that on prior occasions, property was stolen and a mall employee abducted from the mall parking lot. Latham also argued that the security guard had actual notice of the presence of the unruly crowd in the parking lot on the morning of the incident, yet negligently failed to take any action to reduce the danger, despite having called on prior occasions for police help in dispersing unruly crowds from the parking lot.

This Court held that because Latham failed to introduce any evidence showing that the defendants knew, or had reason to know from past experience (i.e., knew of or had experience with prior criminal activity occurring on the mall premises), that there was a likelihood of conduct on the part of third persons such as the actual assailants which would endanger the invitee Latham, the criminal assault upon Latham in the parking lot was not shown to have been reasonably foreseeable.

In so holding, the Court declined to adopt the provisions of the Restatement (Second) of Torts § 344 (1965), which would place a duty upon a business owner to exercise reasonable care 1) to discover actual acts of physical harm perpetrated upon invitees by third persons or the likelihood of such acts; 2) to warn invitees to enable them to avoid the harm; and 3) to police the premises if the business owner knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons in general which might endanger the safety of any invitee, even though the owner has no reason to expect that a particular individual will suffer such harm.

Stripling contends that the Latham decision is distinguishable from this case, thereby precluding the grant of summary judgment in favor of the defendants. He argues that the prior criminal activity occurring in and around the Mountain Brook Shopping Center parking lot, the close proximity of the parking lot to the entrance ramp of Highway 280, and the complete absence of security measures in the parking lot created a duty on the part of the defendants to discover this activity, to warn potential invitees, and to eliminate this dangerous condition with appropriate security measures consistent with § 344, Restatement (Second) of Torts (1965). We disagree.

Under the Latham standard, Stripling must produce evidence showing that the defendants knew, or had reason to know from their knowledge of prior criminal activity occurring in the parking lot, that there was a likelihood of criminal conduct on the part of a third person which would endanger Stripling. Absent such specialized knowledge on the part of the defendants, the mere recital of prior criminal activity occurring in or around the parking lot or the lack of appropriate security measures will not constitute constructive knowledge on the part of the defendants sufficient to satisfy this foreseeability standard. Because Stripling failed to produce evidence showing such specialized knowledge on the part of the defendants, summary judgment was properly entered in their behalf.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . Armbrester was vice-president and secretary-treasurer of Jackson Realty Company, the managing agent of the shopping center. Evans was the president of Southeastern Investment Co., Inc., the owner of the shopping center. Mathews was a tenant of the shopping center.

      . We note that Stripling’s reliance upon § 344, Restatement (Second) of Torts (1965), is misplaced. This provision embraces only physical harm which the invitee suffers at the hands of a third person while on the business owner's premises.


text:
    ALEXANDER FORD, INC. v. Joe JOHNSON.
    82-1005.
    Supreme Court of Alabama.
    June 1, 1984.

      Howard B. Warren of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellee.
   ALMON, Justice.

This is a fraud case. The defendant appeals, alleging that the jury applied improper measures of damages in awarding both compensatory and punitive damages.

Joe Johnson bought a ¾⅛ ton pickup truck from Alexander Ford, Inc. Alexander Ford does not challenge the jury verdict of liability, which depends on a finding of fact that a salesman for Alexander Ford represented to Johnson that the truck was a ¾ ton truck. The evidence indicated that Johnson wanted to replace his ½ ton truck with a ¾ ton truck because he owned a camper top which required the bigger truck, and he testified that he made this clear to the salesman.

The jury awarded Johnson $14,258.18 actual damages and $4,750.00 punitive damages. Alexander Ford protested in its motion for new trial or remittitur that the jury reached the actual damages figure by adding the trade-in value of the truck Johnson previously owned ($1500), the remainder of the purchase price ($9,192.28), the finance charge for the loan of this amount ($3,448.70), and the insurance premium ($117.12). The motion argued that Johnson’s actual damages did not equal this amount because the payoff on the loan at the time the motion was filed was less than the full payoff over the term of the loan.

Alexander Ford makes the same argument here, and adds that the insurance premium provided six months’ coverage and Johnson only kept the truck two weeks or less. It cites Earle, McMillan & Niemeyer, Inc. v. Dekle, 418 So.2d 97 (Ala.1982); Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981); Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala. 1981), for the proposition that Johnson’s damages should be the difference in value between the lh ton truck and a ¾ ton truck. Alexander Ford appears to concede that the jury could have found that the Vz ton truck was valueless to Johnson and awarded him the entire purchase price, but not the interest on the loan.

Johnson responds by citing Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d-312 (1975), for the rule that he could recover in fraud such damages as were either the necessary or natural and proximate consequences of the fraud. Johnson paid the loan installments through the time of trial and avers that he has kept payments current to this date. He returned the truck shortly after he discovered the misrepresentation and since that time has been without the use of either it or the truck he previously owned. The denial of Alexander Ford’s post-trial motion came fourteen months after Johnson purchased the truck, and it has now been two years. Regardless of whether he prepays the loan when he receives the judgment award, his damages suffered as a proximate consequence of the fraud are certainly sufficient to support the jury’s award and the trial court’s denial of the motion for new trial or remittitur.

Alexander Ford concedes in its reply brief that “it seems clear that punitive damages are awardable in the Alexander Ford case — but only for a proper purpose.” It argues that because the punitive damages are almost precisely ¾⅞ of the actual damages, the jury awarded punitive damages in an attempt to award attorney’s fees. We find no reversible error here. The amount of punitive damages is in the discretion of the jury. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams 394 So.2d 912 (Ala.1981); Neil Huffman Volkswagen Corp. v. Ridolphi, 378 So.2d 700 (Ala.1979). No abuse of that discretion appears in this case.

The judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

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


text:
    Sherrell BECHTEL v. CROWN CENTRAL PETROLEUM CORPORATION.
    82-1097.
    Supreme Court of Alabama.
    June 1, 1984.

      James S. Ward and Sandra K. Yinik of Stuart & Ward, Birmingham, for appellant.
    William Anthony Davis III and M. Clay Ragsdale IV for Starnes & Atchison, Birmingham, for appellee.
   ADAMS, Justice.

On March 19, 1982, Sherrell Bechtel filed suit in circuit court for injuries received at a gasoline service station owned by Crown Central Petroleum Corporation (Crown). Named as defendants were Crown and four individuals. Crown answered, pleading the general issue and raising eight affirmative defenses, but did not raise the issue of statutory immunity under Code 1975, § 25-5-53, the Workmen’s Compensation Act. On January 19-, 1983, Crown filed a motion for summary judgment, raising for the first time the defense of statutory employer immunity. Bechtel immediately filed a motion to strike the defense and a motion for a continuance, on the ground, among others, that statutory immunity is an affirmative defense which must be raised in the pleadings.

Summary judgment was rendered in favor of Crown on July 1, 1983. The court found that an employer-employee relationship existed between Crown and Bechtel as a matter of law, rendering Crown immune from suit under the Workmen’s Compensation Act. That judgment was made final pursuant to Rule 54(b), A.R.Civ.P., and this appeal followed.

The parties argue the following issues on appeal:

1. Is Crown estopped from claiming to be Bechtel’s employer for purposes of this suit?
2. Did the trial court err in granting summary judgment based on an affirmative defense which was never raised in the pleadings?
(a) Is the defense of statutory immunity an affirmative defense in Alabama?
3. Are there genuine issues of material fact before the court so as to preclude the granting of Crown’s motion for summary judgment?

We do not answer the first question, as it is not properly before us. Because we must reverse and remand on the basis of our answer to the second issue, we decline to reach the evidentiary question.

The record of this case shows that Bechtel signed an employment contract with PEP Services, Inc. (PEP), which describes itself in the introduction to its Station Manual as “a nationwide petroleum service company specializing in contract staffing services for the petroleum marketing industry.” PEP, in turn, had a contract with Crown pursuant to which PEP supplied workers for Crown’s service stations. Bechtel was working at one of Crown’s stations at the time of her injury. Bechtel’s salary was paid by PEP, which was the defendant in Bechtel’s workmen’s compensation claim. The documentation of that claim in circuit court described Bechtel and PEP as the sole parties interested in the claim.

Bechtel argues in her brief that both the contract between Bechtel and PEP and the one between PEP and Crown clearly show that Bechtel was an employee of PEP. In addition, she claims that a spokesman for Crown has, in other litigation involving his employer, denied that attendants working at Crown stations through PEP contracts were employees of Crown. She says that, because of these facts, Crown should be estopped from claiming now, to avoid civil liability, that it is her employer.

We are unable to consider the question of estoppel, because the record before us fails to reveal that the issue was ever raised in the trial court. See City of Rainbow City v. Ramsey, 417 So.2d 172 (Ala.1982). Bechtel states that estoppel was raised in oral argument at the hearing on the motion for summary judgment. However, no transcription of that hearing is included in the record. This court is limited to a review of the record alone and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel. Green v. Standard Fire Insurance Co. of Alabama, 898 So.2d 671 (Ala. 1981); Cooper v. Adams, 295 Ala. 58, 322 So.2d 706 (1975).

We must now decide if the procedure by which the defense of statutory employer immunity was raised is permissible under Rule 8(c), A.R.Civ.P. That rule states, in part:

(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. [Emphasis added.]

An affirmative defense is defined as “new matter which, assuming the complaint to be true, constitutes a defense to it.” Black’s Law Dictionary (rev. 5th ed. 1979). This court has not specifically addressed the question whether the defense that the defendant is the employer of the plaintiff, and thereby protected from a suit of this nature by Code 1975, § 25-5-53, is an affirmative defense. However, in other jurisdictions it has been held to be so. See, e.g., Freeman v. Chevron Oil Company, 517 F.2d 201 (5th Cir.1975); Seal v. Industrial Electric Co., 362 F.2d 788 (5th Cir. 1966); Duplechin v. Pittsburgh Plate Glass Co., 265 So.2d 787 (La.Ct.App.1972). Certainly, such a defense falls within the definition quoted above. Therefore, we hold that the defense of statutory employer immunity is an affirmative defense in Alabama, and is subject to the pleading requirements of Rule 8(c) and the case law regarding such a defense.

Crown correctly points out that it is within the court’s discretion to allow the defendant to raise an affirmative defense after the initial answer to the complaint. In support of this proposition it quotes from Freeman v. Blue Mountain Industries, 395 So.2d 1049 (Ala.Civ.App.1981):

Rule 15(a), ARCP, expressly provides that amendments should be freely allowed when justice so requires. Stead v. Blue Cross-Blue Shield, 294 Ala. 3, 310 So.2d 469 (1975). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar the amendment. Bracy v. Sippial Electric Co., Inc., Ala. 379 So.2d 582 (1980).

395 So.2d at 1050.

The weakness in Crown’s argument is that both Freeman and Rule 15(a) pertain to the amendment of pleadings. If Crown had attempted to amend its answer to raise the defense, the discretion of the trial court would have been invoked, and the burden would have been upon Bechtel to show that such amendment would cause actual prejudice or undue delay. This court has recently allowed a defendant to amend his answer in order to raise an affirmative defense after the defendant had filed a motion for summary judgment based on the defense. Piersol v. ITT Drill Division, Inc., 445 So.2d 559 (Ala.1984). However, Rule 8(c) requires that in pleading, a party “shall set forth affirmatively” any matter constituting an affirmative defense. In Piersol, the defendant, after answering the complaint, filed a motion for summary judgment, alleging that he was entitled to such a judgment based on the applicable statute of limitations. Some four months later, but before the court had ruled on the motion, the defendant filed an amended answer in order to raise the defense of the statute of limitations.

In the case before us, five weeks lapsed between the filing of the motion for summary judgment and the court’s hearing on the motion. There is no indication that Crown attempted to.amend its answer during that time, or thereafter, although Bechtel had filed a “Motion to Strike Affirmative Defense” within one week after the summary judgment motion was filed.

The language of Rule 8(c) is mandatory. This court has held:

[An affirmative defense] is required to be specially pleaded under Rule 8(c). See Nash v. Vann, 390 So.2d 301, 303 (Ala. Civ.App.1980). Under the Federal Rules of Civil Procedure, after which our rules are modeled, the consequences of a party’s failure to plead an affirmative defense have been explained as follows:
“If an affirmative defense is not pleaded it is waived to the extent that the party who should have pleaded the affirmative defense may not introduce evidence in support thereof, unless the adverse party makes no objection in which case the issues are enlarged, or unless an amendment to set forth the affirmative defense is properly made.”
2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d Ed.1948). See Funding Systems Leasing Corporation v. Pugh, 530 F.2d 91 (5th Cir.1976).

Smith v. Combustion Resources Engineering, 431 So.2d 1249 (Ala.1983). See, also, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983).

It is clear that Bechtel made timely objection to the reliance on the affirmative defense in the motion for summary judgment, and equally clear that an amendment to the pleading to set forth the defense was not made. For this reason, the court erred in granting the summary judgment based on the defense.

Because of the posture of the case, we do not find it appropriate at this time to discuss the evidentiary question. Likewise, we do not intend by our decision to intimate an opinion as to whether the trial judge should, in the exercise of his discretion, allow the defendant’s pleading to be amended following remand.

The judgment of the trial court is due to be, and it hereby is, reversed and the case remanded.

REVERSED AND REMANDED.

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


text:
    Ralph E. OWENS v. Mildred R. FORD.
    82-1216.
    Supreme Court of Alabama.
    June 1, 1984.

      Bruce L. Aune of Aune & Aune, Mobile, for appellant.
    John T. Crowder, Jr. of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellee.
   ADAMS, Justice.

Ralph Owens appeals from an order of the probate court of Mobile County appointing Mildred Ford the administratrix of the estate of Jon S. Ford, deceased. Owens raises one issue on appeal: whether Mildred Ford is a non-resident of the State of Alabama, and, therefore, disqualified from serving as administratrix of the estate of Jon Ford.

Jon Ford, a resident of Mobile County, Alabama, died intestate on July 8, 1983. On July 15, 1983, his half-brother, Ralph Owens, filed his petition for letters of administration, in which he asserted that he was the only heir-at-law and next-of-kin of the deceased currently residing in Alabama. Thereafter, on July 20, 1983, Mildred Ford, mother of the deceased, filed her petition for letters of administration, in which she listed her residence as Mobile, Alabama.

A hearing on both petitions was held in the probate court of Mobile County on July 21, 1983. At the hearing, the probate judge indicated that Mildred Ford was entitled to receive the letters of administration unless she were proven to be a nonresident of the State of Alabama.

Mildred Ford testified that at the time of her son’s death, she was administratrix for an ill sister with whom she was living in Carrollton, Missouri. She said that she had come to Mobile only after learning of Jon’s death. She further testified that upon her arrival in Mobile, she stayed at a motel for a few days and then rented an apartment.

Mildred Ford admitted that she had not yet sought employment in Mobile and had not secured an Alabama driver’s license. Though she stated that she had applied for voter registration in Alabama, an affidavit of the Chairman of the Board of Registrars of Mobile County indicates that she was not registered to vote and had not filed an application for voter registration. Nevertheless, Ford stated that she had no intention of returning to Missouri; she said that she would remain in Mobile permanently, since “my son is here.”

The causes for disqualifying a person from serving as an administrator are enumerated in Code 1975, § 43-2-22(a). Among them is that an applicant for letters of administration is a “non-resident” of the State of Alabama.

We have studied carefully the cases collected in the annotation at 9 A.L.R. 4th 1223 (1981), and are of the opinion that it is well-settled in other jurisdictions that a change of residence for the purpose of acquiring letters of administration requires a “union of act and intent.” In re Donovan’s Estate, 104 Cal. 623, 625, 38 P. 456, 456 (1894). See also, In re Nix’s Estate, 66 Mont. 559, 564, 213 P. 1089, 1091 (1923); Re Olson’s Estate, 194 Wash. 219, 224, 77 P.2d 781, 784 (1938). Moreover, we are persuaded that “the motive or purpose of a change of domicile or residence is not material.” Stevens v. Larwill, 110 Mo.App. 140, 155-56, 84 S.W. 113, 117 (1904). See In re Nix’s Estate, supra; In re Newman’s Estate, 124 Cal. 688, 57 P. 686 (1899).

It was the probate court’s responsibility to determine Mildred Ford’s intention from the conflicting testimony elicited at the hearing on the petitions for letters of administration. In re Newman’s Estate, 124 Cal. at 693, 57 P. at 687; In re Donovan’s Estate, 104 Cal. at 625, 38 P. at 456. The probate court resolved the issue in Ford’s favor, finding that she was a resident of Alabama, and appointed her admin-istratrix of her deceased son’s estate. In reviewing that order, we are mindful of the probate court’s discretion in determining the existence of causes of disability enumerated in Code 1975, § 43-2-22(a). Kidd v. Bates, 120 Ala. 79, 23 So. 735 (1898). We think the court properly exercised its discretion, as there clearly was evidence to support its conclusion. Consequently, its order is due to be affirmed.

AFFIRMED.

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

      . On cross-examination, Mildred Ford admitted that Jon Ford’s body had been cremated.

      . In In re Nix's Estate, a person seeking letters of administration testified that she had been induced to come to Montana by information that she could be appointed administratrix of her deceased brother’s estate. 66 Mont, at 564, 213 P. at 1091. The Supreme Court of Montana said that "[t]he question of what induced her to come to Montana is not material” to whether she was a "bona fide resident” of Montana. Id.

      . In In re Newman’s Estate, the California Supreme Court looked beyond an unfaithful wife's testimony that she would not have come to California but for the fact that her deceased husband had left an estate there, to her state'ments regarding her intention to remain in California, in affirming a finding that she was a resident of California, entitled to letters of administration. 124 Cal. at 693, 57 P. at 687.


author: JONES, Justice.

text:
    James H. GRAYSON v. L.R. BOYETTE.
    82-1299.
    Supreme Court of Alabama.
    June 1, 1984.

      E. Graham Gibbons, Mobile, for appellant.
    Claude D. Boone, Mobile, for appellee.
   JONES, Justice.

This is an appeal by James H. Grayson, Defendant below, challenging an adverse money judgment in a jury trial and the trial court’s order for specific performance of a contract. We affirm conditionally as to the money judgment, and affirm the judgment as to the award of equitable relief.

L.R. Boyette, Plaintiff/Appellee, filed a breach of contract action for damages and specific performance in Mobile Circuit Court against James H. Grayson. In May 1981, Grayson and Boyette had entered into an agreement whereby Boyette was to care for and train twelve greyhound racing dogs belonging to Grayson. The two agreed that Boyette would board the dogs until they were ready to race. According to the agreement, when the dogs began to race, Boyette would receive 65% of the winnings, and Grayson 35%. During the 1982 racing season, Grayson received approximately $1,000 per month from the dogs’ winnings.

By September 1981, most of the dogs were ready to race, and did in fact race during that season. At the close of the 1982 season, Grayson obtained the dogs’ registration papers from the Mobile Greyhound Park, where the dogs had been kenneled by Boyette. Grayson refused to return the papers to the park or to Boyette the following December, thus preventing Boyette from racing the dogs during the 1983 season.

Boyette, alleging that Grayson had breached the contract by failing to return the registration papers to the track, claimed as damages the fair value of boarding the dogs during the period they were unable to race. Additionally, claiming that he could not obtain complete legal redress because a portion of his damages was based on future loss of track winnings, Boyette prayed that Grayson be ordered to specifically perform the contract in the future, i.e., to return the dogs’ registration papers to the track, thus allowing them to run as contemplated by the contract.

Grayson counterclaimed, alleging breach of contract by Boyette in not returning the dogs at his request. Boyette answered, contending that, under the terms of the contract, he could race the dogs throughout their racing life, as long as they were profitable.

After the trial, the jury awarded Boyette $25,000 in damages. Subsequently, the trial judge granted Boyette’s prayer for specific performance. In so doing, the trial judge found that a contract did in fact exist between the parties and that, under the terms of the contract, Boyette was to use his “particular expertise in the training of greyhounds for the purpose of racing and that [Boyette] fully performed all of his obligations under said contract.” The order granting specific performance further provides:

“That the Plaintiff possessed unusual and specialized skill in the training and racing of said greyhounds and utilized said expertise in the preparation of said greyhounds for racing and because of the unique nature of the contract and due to the specialized personal services rendered by the Plaintiff herein, the Plaintiff is unable to obtain complete redress for his injuries in an action for damages, it is, therefore, ORDERED, ADJUDGED and DECREED by the court as follows:
“1. That the Defendant, James H. Grayson, is hereby directed to take all steps necessary, including but not limited to, the delivery of such certificates as are necessary to the counsel for the Plaintiff for the racing of said greyhounds, and obtaining all necessary licenses to effectuate a specific performance of said contract.”

On the same date of the order granting specific performance, the trial court denied Grayson’s motion for a new trial as to the money judgment, conditioned upon Boy-ette’s filing a remittitur of $7,000, thus reducing the judgment to $18,000. Accordingly, Boyette filed a remittitur.

Appellant presents two issues on appeal: 1)Whether the verdict is excessive (i.e., whether the judgment as reduced is supported by the evidence); and 2) whether both specific performance and damages may be recovered in an action for breach of the same contract. Appellee, pursuant to A.R.Civ.P. 59(e), seeks “to have the verdict reinstated in its full amount.”

I

Because Appellant’s first issue and Appellee’s Rule 59(e) contention deal with excessiveness vel non of the jury’s verdict, we will deal with these respective contentions as a single issue. At trial, Mr. and Mrs. Boyette and Defendant Grayson testified as to the provisions of their agreement to board and race the dogs. The Boyettes testified they were due between $13,000 and $14,000 for boarding the dogs, plus $4,900 for feeding and caring for them during the time the dogs were unable to race. Mr. Boyette concedes, however, that a portion of this bill was paid in services or other goods received from Grayson. These amounts included:

1) Appliances. $4,600
2) Bond. 500,
3) Building. 500
4) Diesel fuel. 65
5) Fencing. 1,200
TOTAL. $6,865

Appellee attempts to justify the $18,000 to which the judgment was reduced, as well as claiming the remitted $7,000, on the basis of lost profits. Lost profits, however, were neither pleaded nor proved; nor was the jury instructed to consider lost profits as a basis for their award of money damages. Viewing the evidence most favorably to Appellee Boyette, both as to the expenses incurred by him ($18,900), as well as the sum due by him to Grayson ($6,865), we find that the largest award supported by the evidence is $12,035.

Therefore, we affirm the judgment appealed from, on the condition that the Ap-pellee file with the clerk of this Court, within 14 days from the date of this opinion, a remittitur in the sum of $6,865, thereby reducing the judgment to $12,035. If the Appellee fails to file such a remittitur, this Court will reverse the judgment below and remand this cause for a new trial.

II

Grayson argues that the trial judge also erred in granting Boyette’s prayer for specific performance. Grayson first contends that specific performance is not an appropriate remedy for a contract involving personalty. Ordinarily, a court will not order specific performance of a contract relating to personalty, because there is an adequate remedy at law. Huddleston v. Williams, 267 Ala. 447, 103 So.2d 809 (1958). If, however, the loss occasioned by the breach cannot be fully compensated for in an action at law, specific performance will be granted. Huddleston, supra.

Boyette alleged that money damages would not adequately compensate him for the breach of contract because the loss of winnings by the greyhounds could not be accurately estimated. The trial court found that “because of the unique nature of the contract,” and the fact that Boyette could not “obtain complete redress for his injuries in an action for damages,” he was entitled to specific performance of the contract. We agree.

The sole issue remaining, then, is whether, under the instant facts, both an award of damages and a decree of specific performance will lie for the breach of the same contract. Ordinarily, one cannot have a decree for specific performance and damages for breach of the same contract. Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980). This Court has, however, on occasion, allowed both the recovery of damages and ordered specific performance of the same contract. Suter v. Arrowhead Investment Co., Ltd., 387 So.2d 815 (Ala.1980).

The situation in the instant ease is one which falls within the exception as explained in Suter. There, an investment company entered into an agreement with the Suters for the sale of a townhouse and lot. The Suters later refused to purchase the home and the investment company sued for specific performance. This Court affirmed the trial court’s order awarding incidental damages and also decreeing specific performance. The Court reasoned that damages and specific performance were appropriate where the damages, supported by credible evidence, were incidental to the breach, and where the on-going nature of the contract required its faithful performance. In the instant ease, the evidence amply supports an award of damages in the amount of $12,035, if the jury believed the Boyettes’ testimony; but these damages are merely incidental to the breach and do not compensate for the breach of its central purpose — the racing of the greyhounds.

Because the circumstances of this case fall outside the general rule proscribing both recovery of damages for breach of a contract and its specific performance, and because we find no abuse of the trial court’s discretion, we affirm that portion of the judgment ordering Grayson to specifically perform the contract.

AFFIRMED CONDITIONALLY IN PART; AFFIRMED IN PART.

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


text:
    Ex Parte PURCELL COMPANY, INC., and Lake Forest, Inc. (In re SPRIGGS ENTERPRISES, INC., and Delta Oil Company v. PURCELL CO., INC., and Lake Forest, Inc.)
    83-162.
    Supreme Court of Alabama.
    June 1, 1984.

      Broox G. Holmes and Roy W. Scholl III, Mobile, for petitioner.
    E.E. Ball, Bay Minette, Wesley Pipes, Mobile, Taylor Wilkins, Bay Minette, and Samuel H. Franklin, Birmingham, for respondent.
   ALMON, Justice.

Petitioners Purcell and Lake Forest obtained a reversal of judgments against them in Purcell Company, Inc., v. Spriggs Enterprises, Inc., 431 So.2d 515 (Ala.1983), in which this Court rendered judgment for Purcell and Lake Forest and ordered costs taxed against appellees. Purcell and Lake Forest petitioned the trial court to include the premiums of their supersedeas bonds as costs. Upon the denial of that petition, Purcell and Lake Forest filed this petition for writ of mandamus ordering the trial court to include the premiums as costs.

Rule 35, A.R.A.P., includes the provision that “if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered.” Purcell and Lake Forest executed supersedeas bonds under the provisions of Rule 8, A.R.A.P. They contend that the premiums for these bonds were necessary costs of the appeal, because each of them was subject to a $662,500 judgment and they could not afford either to pay the judgments or to suffer execution against the real properties which they owned as part of their real estate businesses.

The right to recover costs exists only as granted by statute, because there was no such right at common law. State v. Inman, 239 Ala. 348, 195 So. 448 (1940); Ex Parte Cudd, 195 Ala. 80, 70 So. 721 (1916). Prior to the adoption of the Rules of Appellate Procedure, the first section of the title of the Code of Alabama governing costs and fees stated that “[t]he law of fees and costs must be held to be penal, and no fee must be demanded or received except in cases expressly authorized by law.” Code 1940 (Recomp.1958), title 11, § 1. Although this provision was not brought forward into the 1975 Code, the principle that the law of costs and fees is penal, and to be strictly construed, has long been cited and approved without reference to the Code section. Chatman v. Pizitz, Inc., 429 So.2d 969 (Ala.1983); Keith v. Lewis, 274 Ala. 145, 145 So.2d 841 (1962); Cabler v. Mobile County, 230 Ala. 118, 159 So. 692 (1935).

The old Code title on costs and fees was partially transferred to chapters of the 1975 Code title on courts, especially the chapter on court finances, § 12-19-1, et seq.; partially covered by the Rules of Civil Procedure (Rule 54) and Appellate Procedure (Rule 35); and partially dropped. Court costs in the appellate courts are now set out in Code 1975, § 12-19-91, as amended by Acts 1983, Act No. 83-744, § 18.

Nowhere in any of these provisions is there a reference to the premiums of supersedeas bonds as costs of appeal: see, for example, Rule 8, A.R.A.P., which authorizes the bonds; Code 1975, §§ 12-22-40 and -41, relating to the trial court’s order for and acceptance of supersedeas bonds; and Code 1975, §§ 12-22-72 through -76, allowing damages for affirmation of stayed judgments and execution for costs.

Purcell and Lake Forest cite cases from other jurisdictions in which the premiums of supersedeas bonds are taxed as costs. These cases are consistent with the principles cited above that costs may be taxed only as allowed by law, either by statutory authorization, Mercantile Investment & Holding Co. v. Gilliland, 148 Fla. 260, 4 So.2d 118 (1941); Houston v. First Federal Savings & Loan Ass’n, 144 Ind.App. 604, 248 N.E.2d 169 (1969); Henderson v. Northwest Airlines, 231 Minn. 503, 43 N.W.2d 786 (1950); local court rule, Lunn v. F. W. Woolworth, 210 F.2d 159 (9th Cir. 1954); or long-standing custom, Williams v. Sawyer Bros., 51 F.2d 1004 (2d Cir.1931).

There being no authority in this state by statute, rule, or custom for allowing super-sedeas bond premiums as court costs, the petition for writ of mandamus is denied.

WRIT DENIED.

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


author: MADDOX, Justice.

text:
    Betty GRASS v. E.J. WARD.
    83-320.
    Supreme Court of Alabama.
    June 1, 1984.

      Robert E. McDonald, Jr., Mobile, for appellant.
    Vincent F. Kilborn III of Kilborn & Gib-ney, Mobile, for appellee.
   MADDOX, Justice.

This is a dispute between a stepfather, E.J. Ward, and a stepdaughter, Betty Grass, over rights in a house at 558 Glen-wood Street in Mobile, following the death of Mabel Ward. Mabel Ward, who died intestate, was the wife of E.J. Ward and the mother of Betty Grass. The question here is whether E.J. Ward was entitled to a life estate in the property pursuant to the statutory right of curtesy, thereby precluding immediate possession of the premises by Betty Grass. The trial court found the interest of Betty Grass in the house subject to a life estate in her stepfather. We affirm.

Mabel Ward had previously been married to Ralph Thurman. Ralph Thurman, pursuant to a divorce decree, executed an instrument, on March 25, 1942, permitting Mabel to live in the house on Glenwood Street so long as she paid the house’s mortgage payment. The instrument further provided that:

“I [Ralph Thurman] hereby covenant and agree that when the final payment on said mortgage has been made, and/or when my liability on said mortgage ceases, I will promptly execute a Quitclaim Deed conveying to the said Mabel Thurman all of my right, title and interest in and to the property hereinabove described.”

Mabel Ward made all the mortgage payments and the mortgage was satisfied in 1948, thereby releasing her former husband from liability on the mortgage. For some unexplained reason, however, although she continued to live in the house, she never procured a deed to the house from her former husband. She died in Mobile County in 1981.

The facts indicate that on September 23, 1981, Betty Grass, plaintiff-appellant, obtained a quitclaim deed to the house from her father, Ralph Thurman. She subsequently brought suit against her stepfather, claiming title to the house and a right to possession by virtue of the deed. E.J. Ward, defendant-appellee, as widower of Mabel Ward, claimed possession of the house under a right of curtesy.

In its order, the trial court reasoned that Mabel Ward’s interest under the instrument executed by her former husband, Ralph Thurman, was real property as opposed to personal property because an equitable conversion took place in 1948, when she satisfied the mortgage and became entitled to demand a deed to the house. Hence, the trial court ruled that under the terms of the curtesy statute, Code 1975, § 43-3-12, which was in effect at the time of Mabel Ward’s death, defendant, as widower of Mabel Ward, was entitled to the use of the house for his lifetime and that plaintiff’s quitclaim deed from her father was subject to the life estate. This appeal followed.

Appellant asserts that the instrument executed by Ralph Thurman agreeing to convey title to the house on Glenwood Street to Mabel Ward, if she paid off the mortgage, merely created a leasehold interest which expired at her death, and thus her estate acquired no interest in the real property so as to create, by virtue of the curte-sy statute, a life estate on appellee’s behalf. Appellant further contends that since Mabel Ward never asserted her right to demand a deed from Ralph Thurman, the agreement cannot be enforced, because the statute of limitations has run.

Prior to repeal, Alabama’s curtesy law provided:

“If a married woman having a separate estate dies intestate, leaving a husband living, he is entitled to one-half of the personalty of such separate estate absolutely; and to the use of the realty during his life.”

Because this section was in effect at the time of Mabel Ward’s death in 1981, and because its constitutional validity was not questioned, we must ascertain what interest she possessed at the time of her death, in order that we may determine if the ap-pellee was entitled to a life estate, as the trial court held. This necessarily requires us to examine the instrument executed by Ralph Thurman.

To paraphrase its terms, Ralph Thurman agreed to convey the house to Mabel Ward by quitclaim deed on the condition she first satisfy the mortgage, thereby releasing him from any remaining obligations under the terms of the mortgage. We construe this agreement as being essentially one which, by its terms, permitted Mabel Ward to obtain title to the property upon the performance of certain conditions. The nature of a contract is to be determined by its terms and conditions. McGuire v. Andre, 259 Ala. 109, 115, 65 So.2d 185, 190 (1953).

The agreement here imposed no binding obligation upon Mabel Ward, but when she paid off the mortgage, she became entitled to receive a quitclaim deed from Ralph Thurman. When, in this instance, the mortgage was satisfied in 1948 by Mabel Ward according to the terms of the 1942 agreement, the agreement essentially became a bilateral contract of purchase and sale. Cf. McGuire v. Andre, supra, 259 Ala. at 115, 65 So.2d at 190.

The trial court, by ruling that an interest in realty passed from the estate of Mabel Ward upon her death, thereby giving her surviving husband, the appellee, a life estate under the terms of § 43-3-12, correctly concluded that an equitable conversion occurred when she paid off the mortgage and fulfilled the terms of the agreement signed by Ralph Thurman. Clearly, the circumstances of this case can be likened to those existing when there is a purchase and sale of realty.

“... Hence, when the vendee contracts to buy and the vendor to sell, though legal title has not yet passed, in equity the vendee becomes the owner of the land, the vendor of the purchase money. In equity the vendee has a real interest and the vendor a personal interest. Equity treats the executory contract as a conversion, whereby an equitable interest in the land is secured to the purchaser for whom the vendor holds the legal title in trust. This is the doctrine of equitable conversion.
“By the doctrine of equitable conversion under an executory contract of sale, the equitable estate, in its entirety, passes immediately to the purchaser at the moment the contract becomes effective and the bare legal title for security purposes remains in the vendor. The purchaser of the land is looked on and treated as the owner thereof, and the vendor, though holding the legal title, holds it as a trustee for the purchaser, and the vendee holds the purchase money in trust for the vendor....” (Footnotes omitted.)

G. Thompson, 8A Commentaries on the Modern Law of Real Property § 4447. See McGuire v. Andre, supra. Cf. Graham v. Graham, 202 Ala. 56, 79 So. 450 (1918).

We can conceive of no reasons that would otherwise require our ruling differently from the trial court here. According to the available facts, Mabel Ward, following her divorce from Ralph Thurman in 1942, not only paid off the house’s mortgage in 1948, but continued to live in the house until her death in 1981. Although she did not receive a deed to the house, and apparently did not request one, she continued to live in the house until her death, despite the absence of legal title, obviously with the full knowledge of her former husband, who held legal title.

Because equity treats that as being done which should be done, we hold that once Mabel Ward complied with the terms of the agreement signed by Ralph Thurman, the real interest or equitable title passed to Mabel Ward, and Ralph Thurman held the legal title in trust for Mabel Ward. Under these circumstances, the statute of limitations did not run, and appellant’s argument in this respect is without merit. Sykes v. Sykes, 262 Ala. 277, 78 So.2d 273 (1954). There, the Court stated:

“ ‘The statute of limitations does not begin to run against a resulting trust so long as there is a recognition of such trust by the trustees ... that is to say that each recognition of the trust affords a new beginning of time and each case stands upon facts and circumstances affecting such question....’”

In this case, the court could have found that EJ. Ward recognized the resulting trust up until the date of death of his former wife.

Consequently, appellee was, under the. terms of the curtesy statute in effect at the time of Mabel Ward’s death, entitled to a life estate in the house, as the trial court properly concluded. The judgment of the trial court is hereby affirmed.

AFFIRMED.

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

      . We do not address the question of the constitutionality of the curtesy statute because the issue was not raised below.

      . Appellant cites the statute of limitations period found under either § 6-2-33(1), Ala.Code 1975 (actions founded upon any contract or writing under seal must be commenced within 10 years), or § 6-2-34 (actions founded on promises in writing not under seal must be commenced within 6 years), as precluding enforcement of this agreement.

      . Section 43-3-12 was repealed by the Law of Intestate Succession and Wills Act of April 26, 1982, Act No. 82-399, 1982 Ala.Acts 578, which became effective on January 1, 1983.


author: TYSON, Judge.

text:
    Sonnette ROWELL, alias, v. STATE of Alabama.
    6 Div. 968.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Douglas C. Freeman, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Sonnette Rowell was indicted for theft of property in the first degree in violation of § 13A-8-3, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial judge set sentence at fifteen years’ imprisonment in the penitentiary.

i

The sole issue which the appellant raises on appeal is the sufficiency of the evidence.

On the evening of August 6, 1981, around 9:00, Major Henderson drove his car to Jerry’s Quik Stop in Birmingham. His wife and child were in the car with him. Henderson exited his vehicle and went into the store while his wife and child remained in the car. While Henderson was in the store, the appellant and another man got into the Henderson’s car and drove away. The appellant was in the back seat while the other man drove.

When Henderson came out of the store, another man told him what had happened and the two got into the man’s car and followed Henderson’s car. Then Henderson called the police. A short time later, the Henderson car was stopped by the police. The appellant and the companion were still in the car with Henderson’s wife and child.

The appellant contends that because he was not driving the Henderson vehicle, he did not obtain unauthorized control of same and therefore his conviction should be reversed. This contention is wholly without merit.

The appellant got into the Henderson vehicle and had full knowledge that neither he nor the other man had authority to do so. The question as to whether the appellant’s presence in the vehicle made him an accomplice was a question for the jury to determine after examining the surrounding circumstances. Walls v. State, 378 So.2d 1186 (Ala.Crim.App.1979), cert, denied, 378 So.2d 1193 (Ala.1980); Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981).

The jury properly decided the appellant’s participation constituted aiding and abetting and therefore, his conviction is due to be affirmed under the evidence in this cause.

This record is free of error. This cause is therefore affirmed.

AFFIRMED.

All the Judges concur.