text:
    William L. HUTCHINS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    82-162.
    Supreme Court of Alabama.
    July 15, 1983.

      William R. Murray, Northport, for appellant.
    William J. Donald and William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellees State Farm Mut. Auto. Ins. Co.
    Charles C. Elliott, William J. Donald, III, Michael A. McDow, Freddie A. McDow, and Nova Story, E.L. Brobston, Bessemer, for appellee Heart of Dixie Datsun, Inc.
   BEATTY, Justice.

Appeal by plaintiff from summary judgment in favor of defendants in an action based on fraud. We affirm.

On November 15, 1980, Mrs. Freddie Ann McDow was driving a 1979 Chevrolet van on a narrow, unpaved road in Tuscaloosa County. She was accompanied by her sister, Nova Story. The van was owned by Mrs. McDow’s husband, Michael A. McDow. According to Mrs. McDow, as she approached an automobile parked on the right side of the road, she began to pass it to the left. As she did this, the occupant of the car, William L. Hutchins, opened the left door of the car, scraping the van and a mural painted thereon on its right, side.

The McDows carried $50.00 deductible collision insurance coverage on the van with State Farm Mutual Automobile Insurance Company (State Farm). Shortly after the accident, Mrs. McDow reported it to their insurance agent and signed an “Automobile Claim Report” containing her version of the accident. Several days later, Mrs. McDow took the van to the State Farm claim center where it was examined and photographed by a company estimator. He prepared an estimate of the repair cost in the amount of $201.00, leaving open the damage to the mural, and gave a copy of his estimate to Mrs. McDow. Mrs. McDow took the van to three different garages and obtained estimates on the total damages. One of the garages was Dixie Datsun in Bessemer, which estimated the total cost of repairs at $441.00. Dixie Datsun later supplemented this estimate covering repairs not previously covered by the State Farm estimator, and specifically including $110.00 allocated to the damaged mural. A field claims specialist for State Farm then inspected the van, following which he approved this estimate. Dixie Datsun agreed to perform the repairs for that figure. When the work was completed, State Farm paid Dixie Dat-sun $391.00, and the McDows paid $50.00, representing their deductible amount. The McDows also executed a subrogation receipt.

Thereafter State Farm elected to pursue subrogation against Hutchins. According to the affidavit of David Holley, an assistant claims superintendent:

“I was in charge of State Farm’s file in this matter at the Five Points Claim Center. I felt in good faith that the claim against Hutchins had merit and that he was liable for the property damage to the van in negligently opening a car door into the path of the insured van as it proceeded around Hutchins’s parked car.”

On January 29, 1981, at Mr. Holley’s direction, State Farm mailed a subrogation notice form to Hutchins, requesting information about his liability insurance coverage, if any, giving the amount paid by the company and the deductible amount, and inviting a reply. Hutchins received this notice but did not respond. A second subro-gation notice was also received by Hutchins without reply from Hutchins or his attorney, whereupon State Farm referred the file to the law firm of Williams and Elliott in Birmingham for collection.

On April 16, 1981, the law firm acknowledged receipt of the file, and Charles C. Elliott of that firm had a demand letter prepared and mailed to Hutchins. Hutchins received this letter also but made no reply. Elliott subsequently returned the file to State Farm without further action. The file was then sent to the State Farm claims center in Tuscaloosa, which mailed it to William J. Donald, III, of the law firm of Zeanah, Donald and Hust, requesting that the subrogation claim be pursued. The McDows were notified by mail of this action and that collection would be made in their names.

On June 1,1981, Donald mailed a demand letter to Hutchins who, after receipt, elected not to respond. On July 22, State Farm mailed Donald a check for the filing fee for an action, and thereafter proceeded to record a statement from Mrs. McDow which was sent to Donald. On August 20, 1981, he filed an action on behalf of McDow and State Farm against Hutchins in the Tuscaloosa County small claims court to recover $441.00. Hutchins answered and also counterclaimed against the plaintiffs for $408.07. That case was tried on November 17,1981, resulting in a judgment for Hutch-ins on the plaintiff’s complaint and a judgment against him on his counterclaim. Neither side appealed that decision.

Hutchins filed this present action in circuit court on June 9, 1982. He named as defendants State Farm, Dixie Datsun, Charles C. Elliott, William J. Donald, III, Freddie Ann and Michael McDow, and Nova Story. As Hutchins expresses the theory of his complaint: “The underlying elements of FRAUD, upon which the case is based, might well be called ‘The All-American Collision Insurance Scam.’ ” In his complaint, Hutchins alleged that the door to his automobile was already open before Mrs. McDow arrived, and that Mrs. McDow nevertheless drove the van’s right front bumper against the open driver’s door of his car. He then alleged that the McDows and Story presented a fraudulent claim to State Farm; that in a conspiracy with them State Farm failed to investigate the accident; that State Farm conspired to send the van to Dixie Datsun without soliciting competitive estimates; that Dixie Datsun conspired with State Farm and the McDows to inflate the repair bill; and that State Farm, the McDows, Story and Dixie Datsun conspired to file the district court lawsuit. Hutchins alleged further that the McDows and Story knew their representations to State Farm were false and would be detrimental to him; that the McDows and Story knew that Dixie Datsun had fraudulently inflated its repair bill; that the McDows and Story, in conspiracy with Elliott, fraudulently threatened Hutchins with a lawsuit if he failed to comply with their demands; that they likewise conspired with Donald for the same purpose; and that the McDows, Story, State Farm and Donald filed and prosecuted a fraudulent claim against him knowing that it was false.

Hutchins also alleged that State Farm committed a number of frauds upon him by: failing to “carry out its duties as insurer to investigate” the accident; lying to plaintiff by stating to him that it had performed an investigation and that its investigation revealed his responsibility for the accident; failing “to carry out its duty as an insurer to determine” that the repair bill it paid was the result of competitive bidding; failing “to determine the accuracy of the repair bill” before using it as the basis for a subrogation action; continuing “its frauds ... by sequentially conspiring with two Alabama lawyers, who in turn compounded Defendant STATE FARM’S frauds with their own”; continuing “its fraud all the way to the courthouse, prosecuting a legal claim against Plaintiff HUTCHINS which was based to a great extent upon its individual and conspiratorial fraudulent statements and activities”; and acting when “it knew or should have known that Plaintiff HUTCHINS was disabled, old, and poor, and thus probably unable to protect himself.”

Hutchins charged Dixie Datsun with fraud in that it “knew, and recklessly disregarded the fact, that it had presented a fraudulently-inflated repair bill to ... STATE FARM, and that it had lied [to State Farm] about its costs in repairing the van,” and that as an expert it knew that someone would have to pay State Farm for the repair bill. He further alleged fraud by Dixie Datsun because it “knew, or should have known, that its fraudulently-inflated repair bill would cause Defendant STATE FARM to force plaintiff HUTCHINS to defend himself against a false billing, and yet Defendant DIXIE DATSUN recklessly disregarded its duty to present a fair repair bill.”

Attorney Elliott was charged by plaintiff with fraud in that when he sent his “fraudulent [collection] letter” to Hutchins he knew he had not performed an investigation of the accident, and moreover, that he fraudulently stated that the results of his “non-existent investigation revealed that Plaintiff HUTCHINS was guilty of negligence.” Hutchins made essentially the same allegations against the defendant attorney Donald. He demanded compensatory damages of $975.99 and punitive damages.

Responsive pleadings and motions were filed by the defendants. Hutchins propounded interrogatories to all defendants. The defendants in due course filed motions for summary judgments, supported by numerous affidavits, together with a copy of the court file of the district court case of McDow and State Farm against Hutchins. The affidavits filed by defendants were those of Freddie McDow; Michael A. McDow; Don Salter, the field claims specialist of State Farm; David Holley, assistant claims superintendent for State Farm; William J. Donald, III; Charles C. Elliott; John C. Ratliff, the estimator for State Farm; and Ronald C. Lonergan, State Farm’s Tuscaloosa claims superintendent. The defendants also filed objections and a motion for a protective order in response to the propounded interrogatories to which certain answers were also filed. Hutchins responded with his motion to strike the objections and the motion for a protective order. He also filed his own affidavit in opposition to the motions for summary judgment.

A hearing on all motions was held on August 23, 1982, and on September 3,1982, the trial court entered summary judgment for all defendants. Hutchins moved to vacate summary judgment, supporting this motion with an affidavit of his attorney. A hearing was held on October 20 at which, the defendants, except Dixie Datsun, submitted the affidavit of Fred W. Nieol who, as the trial judge, had conducted the hearing on the motion for summary judgment but who had since retired. The motion to vacate was denied and this appeal ensued.

Plaintiff has raised a number of issues on appeal. Our study of the briefs and record, however, has led us to conclude that the controlling issue before us is whether or not it was error to grant summary judgment in favor of all defendants. In discussing that issue we note that the defendants affirmatively pleaded the statute of limitations as a defense to plaintiff’s claims against them. The record supports the conclusion that such a defense was good in this case. However, because of the nature of plaintiff’s allegations of “fraud,” it is our belief that we should comment upon other reasons upholding summary judgment.

Actionable fraud in Alabama consists of (1) a false representation, (2) concerning a material existing fact; (3) the plaintiff must rely upon that false representation; and (4) plaintiff must be damaged as a proximate result. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala. 1977). Under these elements it is fundamental that the representee who has relied on the defendant’s alleged misstatements and the plaintiff who was injured must be one and the same. Ray v. Montgomery, 399 So.2d 230 (Ala.1980); Jordan & Sons v. Pickett, 78 Ala. 331 (1884). Under these requirements we must inquire whether there was any evidence before the trial judge of a misrepresentation to plaintiff Hutchins. We have not found any evidence that either of the McDows, or Nova Story, or Dixie Datsun, or State Farm misrepresented anything to Hutchins. The McDows and Story made statements concerning the cause of the accident and the extent of the damage, but these statements, were to State Farm, not to Hutchins. Based on these statements, State Farm sought subrogation for cost of repairs from Hutchins. The standard notice form was sent to Hutchins on two occasions inquiring as to his liability insurance coverage. This notice began: “We are writing you about the accident in which you were involved with our insured on the date shown above. Our investigation of this accident indicates that you are responsible for this accident.” In our view this language is merely the opinion of State Farm and in no way constitutes the misrepresentation claimed by plaintiff. Dixie Datsun made statements to State Farm regarding the cost of repairs. For aught that appears, Dixie Datsun had no contact with Hutchins whatsoever.

Plaintiff, moreover, has adduced no evidence even indicating that he relied upon any representations by any of the defendants. See Desroches v. Complete Auto Transit, Inc., 409 So.2d 417 (Ala.1981). Indeed, Hutchins’s position throughout has been that the cause of the accident and the damage to the McDow van was the negligence of Mrs. McDow, not any negligence of his own. His fraud claim is based also on the premise that the McDow van was not damaged to the extent represented by the McDows to State Farm. Thereafter, he alleged, State Farm, Elliott and Donald falsely represented to him that he was liable to State Farm for $441.00, the amount of the loss. But Hutchins did nothing. He ignored the demand letters. He never relied upon them (assuming arguendo that they were misrepresentations) but, indeed, even contested them when the small claims action was initiated. Certainly, Hutchins adduced no evidence affording an inference that he was either deceived, or induced to act to his detriment, in reliance upon any such representations. Earnest v. Pritchett-Moore, Inc., 401 So.2d 752 (Ala.1981).

Nor did plaintiff adduce any evidence that he was damaged. In his affidavit in opposition to defendants’ motion for summary judgment, he does state: “All I know is that the Defendants tried to cheat me, and I believe they should pay back what they took from me.” But he produced nothing to show that he had been deceived to his damage. In his complaint he claimed $975.00 for “out-of-pocket expenses he has had to pay to defend himself.” But at the summary judgment hearing he offered nothing to show that he had in fact incurred any expense or any other loss as a result of the claimed fraud. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979).

Perusal of the materials before the trial judge at the summary judgment hearing is revealing. The only factual disagreement between the parties revealed therein pertains to the events of the day of the accident. The defendants’ accounts by affidavits of what took place thereafter are uncontradicted. Without facts suggesting contrary inferences, they establish an ordinary sequence of events: a claim for collision insurance proceeds following a vehicular accident, a damage survey, procurement of reasonable estimates of repair, payment of the claim, and legitimate attempts at collection from the apparent tortfeasor, including an action in small claims court. Nothing was presented furnishing a scintilla of evidence that any of the defendants, singly or in concert with any of the others, either conspired to defraud or defrauded plaintiff. Plaintiff may have suspected fraud, but when the defendants by affidavits showed the absence of any genuine issue of fact as to his fraud claims, it was incumbent upon him to come forward with at least a scintilla of evidence creating a triable issue of fact. Rule 56(e), A.R.Civ.P. The failure of the opposing party to offer evidence contradicting that of the moving party leaves the trial court with no alternative but to consider that evidence uncontro-verted, with no genuine issue of material fact existing. Worley v. Worley, 388 So.2d 502 (Ala.1980).

Plaintiff contends that summary judgment was inappropriate for other reasons. He says that the trial court erroneously considered certain papers filed by defendants after their motions for summary judgment had been filed. Plaintiff also maintains that the trial court erred in granting a protective order to the defendants which allowed them to avoid answering certain of his interrogatories. We surmise that the latter contention is based upon plaintiff’s viewpoint that summary judgment was premature; that the defendants’ answers would have revealed material evidence establishing a genuine issue of fact. On this second point, we note that plaintiff propounded eighty-seven interrogatories, most of these containing multiple parts. Many were answered. To others the defendants filed timely objections to which the protective order was addressed. Examples of these interrogatories follow: all residence addresses since 1975; complete employment history since 1970; all instances of employment history for periods of time exceeding two consecutive weeks and reasons for unemployment since 1975; all instances of self-employment and gross and net income therefrom since 1975; complete marital history including prior spouses, divorces, children by prior marriages; complete job, marital and family status of all brothers and sisters living; complete history and account of all business, commercial, social, professional or fraternal organizations, clubs or societies to which defendants belong, including membership dates, offices and positions held, and reasons for leaving organization; each motor vehicle owned by defendants since 1975; full and complete history and account of educational background, including subjects and courses taken, diplomas, degrees or awards received and identification of persons who could substantiate or verify such information; full history and account of defendants’ armed services backgrounds; detailed information regarding federal and state tax returns since 1977; identification of defendants’ accountants or attorneys for past three years, including description of subject matter handled by such attorney and disposition of the subject matter.

We have examined the propounded interrogatories, the answers filed, and the objections made. We are cognizant of our rule that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and we note that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1), A.R.Civ.P. Our decisions, and federal decisions based on the corresponding federal rule, have vested considerable discretion in trial courts in the application of this discovery rule, especially when the objection of relevancy is raised. The ultimate question is whether the trial court abused its discretion. Ex Parte Guerdon Industries, Inc., 373 So.2d 322 (Ala. 1979); Drewes v. Bank of Wadley, 350 So.2d 402 (Ala.1977). Considering the nature of plaintiff’s action, we cannot conclude that the trial court abused that discretion. Nor do we perceive in the trial court’s action granting the protective order any limitation upon the plaintiff’s opportunity to himself introduce evidence of facts precluding summary judgment. Indeed, the record affirmatively shows that at the summary judgment hearing the trial court specifically inquired of plaintiff’s counsel whether he had anything further to offer in support of plaintiff’s claim, and no additional offer of proof was forthcoming, nor any indication made of additional discovery of a pertinent nature. We conclude that the trial court did not err in granting the protective order.

Hutchins’s other contention is that the trial court improperly considered certain documents submitted after the motion for summary judgment was filed. A synopsis of the pertinent filings shows the following:

1982
June 30 Hutchins filed interrogatories.
July 2 Defendants (except Dixie Dat-sun) filed motion for judgment on pleadings and answers to complaint.
July 20 Dixie Datsun filed motion for judgment on pleadings.
July 29 Defendants (except Dixie Dat-sun) filed motions for summary judgment.
August 6 Hutchins filed motion to defer hearing on defendants’ motions for summary judgment until after defendants filed amended answers and answers to interrogatories.
August 10 Trial court set date for hearing all motions — August 23, 1982.
August 17 Hutchins filed motion for postponement of hearing on defendants’ motions for summary judgment and affidavit in opposition to defendants’ summary judgment motions.
August 20 Dixie Datsun filed motion for summary judgment with affidavit of Glenn Majors.
August 23 All defendants except Dixie Datsun filed respective answers to plaintiff’s interrogatories prior to hearing.
Hearing on all pending motions. Trial court took all motions under advisement.
September 3 Final order granting summary judgment entered by trial court.

It should be observed that, in accord with the plaintiff’s request of August 6, the hearing on the summary judgment motions was not held until the defendants had filed their answers to the complaint and to the interrogatories. It does appear that the hearing on Dixie Dat-sun’s motion for summary judgment was held less than ten days after the filing of the motion, i.e., on August 23, 1982, after filing on August 20, and thus was not in conformity with the requirement of Rule 56(c), A.R.Civ.P. Plaintiff made no objection to this procedure, however, nor did he make any objection when the trial court, following the hearing, announced: “Without objection, the Court advised the parties it would consider all pending motions and take them under advisement.” Not only does it appear that plaintiff waived strict adherence to the time requirement of Rule 56(c), but in view of the fact that he had nothing to offer contravening any of the summary judgment motions, as shown above, he was not prejudiced by the hearing of Dixie Datsun’s motion for summary judgment. Additionally, it is apparent that the trial court could have elected and did elect to treat the defendants’ motions for judgment on the pleadings, filed on July 2 well in advance of the August 23 hearing, as motions for summary judgment. It is also shown by the record that the plaintiff was allowed ample opportunity to present evidentiary matter in opposition to those motions, and chose not to do so.

Hence, the trial court did not err in its consideration of documents on motion for summary judgment. Nor was any error committed by the court below in considering documents after they were filed. Under Rule 56(c), A.R.Civ.P., the trial court was authorized to consider the “pleadings, depositions, answers to interrogatories . .. on file.”

For the reasons discussed above, we have concluded that the trial court did not err in granting summary judgment for all defendants. Let the judgment be affirmed.

AFFIRMED.

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

      . Hutchins does not rely upon the theory of conspiracy, but upon what he describes as a “web of fraud.”


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    SMITHS WATER AUTHORITY v. CITY OF PHENIX CITY.
    82-504.
    Supreme Court of Alabama.
    July 22, 1983.

      Guy F. Gunter, III of Melton, Gunter & Melton, Opelika, for appellant.
    Ronald G. Davenport of Ferrell, Davenport & McKoon, Phenix City, for appellee.
   BEATTY, Justice.

This is an appeal from a declaratory judgment in a proceeding to determine the validity of a rate increase under the terms of a contract. We affirm in part, reverse in part, and remand.

FACTS

Plaintiff, the city of Phenix City, Alabama (City), a municipal corporation located in Russell County, operates a water distribution system. Defendant, Smiths Water Authority (Smiths), is a public corporation which operates a water distribution system serving customers in Lee and Russell counties. On April 18,1979, the parties entered into a 27-year “Contract for Sale of Water” (contract) by which the City agreed to furnish and deliver potable water to Smiths at specified rates and under specified conditions. The provisions of the contract pertinent to this appeal are the following:

“THE AUTHORITY [SMITHS] AGREES
“1. (Rates and Payment Date) To pay to the City on the 20th day of each month for water delivered during the preceding month at the rate of 0.52 per 1,000 gallons up to a maximum of 10 million gallons.
“2. If the Authority shall use water in excess of 10 million gallons per month during any one calendar month, the City may discontinue providing water or the City may charge an excess water usage penalty rate for all water used in excess of 10 million gallons per month, which penalty rate includes the basic water charge per 1,000 gallons. Said penalty rate shall be in accordance with the following schedule.
“PENALTY RATES FOR WATER USED IN EXCESS OF 10 MILLION GALLONS PER MONTH
“Total Monthly Rate per 1.000
Consumption Gallons for ah Water used in Excess of 10 Million Gallons per Month
“10-11 million gallons .85
“11-12 million gallons .95
“12-13 million gallons 1.10
“13-14 million gallons 1.30
“14 — 15 million gallons 1.55
“15-16 million gallons 1.85
“16-17 million gallons 2.20
“17-18 million gallons 2.60
“Over 18 million gallons 3.05
“It is further mutually agreed between the City and the Authority as follows:

“(5) Modification of Contract — Upon the expiration of the period of two years from date hereof, and upon the expiration of each two-year period thereafter during the term of this Agreement, the City and the Authority will review the rates to be paid by the Authority for water furnished it hereunder. If, during such two-year period the cost to the City of furnishing water to the Authority hereunder has increased, the City may make a comparable increase in the rates to be charged the Authority for water hereunder.... In the event the City makes any such increase in rates, the City and Authority will enter into an appropriate agreement supplemental hereto stating the amount of the revised charge for water to be furnished the Authority hereunder.

“Further, in the event that during such two-year period, the City has made a general increase in the rates charged by it to its customers for water furnished them and in the event the City represents to the Authority that such general increase was made for the purpose of providing sufficient monies to enable the City to operate and maintain its then existing water system, the City may make a comparable increase in the rates charged to the Authority for water furnished hereunder, in which event the City and the Authority will enter into an appropriate agreement supplemental hereto stating the amount of the revised charge for water to be furnished the Authority hereunder.

“Both the City and the Authority agree that upon the happening of any of the events specified in the preceding two paragraphs, they will promptly execute the supplemental agreements therein referred to, irrespective of their then respective financial conditions.

“(9) Miscellaneous — That the construction of the water supply distribution system by the Authority was financed by a bond issue, guaranteed by the United States of America, acting through the Farmers Home Administration of the

United States Department of Agriculture, and the provisions hereof pertaining to the undertakings of the Authority are conditioned upon the approval, in writing, of the State Director of Alabama of the Farmers Home Administration. Similarly, any modification of the provisions of this contract shall be conditioned upon the approval in writing, of the State Director of Alabama, of the Farmers Home Administration.”

On March 2, 1982, the City Council of Phenix City, acting upon a motion, imposed a water rate increase upon all its customers, including Smiths. The new rates adopted by the City for Smiths were:

Quantity (Gallons) Unit Price (1,000 Gallons)
First 10 million $1.15
Next 2 million 1.05
Next 2 million 1.00
Next 2 million .95
Next 2 million .90
Above 18 million .85

These new rates were to become effective April 1, 1982.

When Smiths refused to enter into a supplemental agreement agreeing to pay the increased rates, the City filed the action below seeking a declaration that the rate increase imposed upon Smiths was in accord with the terms of the contract and did not constitute a breach. Smiths counterclaimed, seeking a judgment that the rate increase, so far as it pertained to Smiths, was void and of no force or effect in law.

The City subsequently added by amendment the Farmers Home Administration (FHA) as a necessary and proper party defendant. Since the United States of America was the real party in interest, the FHA had the action removed to the United States District Court for the Middle District of Alabama pursuant to 28 U.S.C. § 1441(a). The FHA then moved to be dismissed from the action, the motion was granted, and the action was remanded to the Circuit Court of Russell County.

At a hearing ore terns on December 20, 1982, Smiths presented four grounds for invalidating the rate increase. The court found in favor of the City on all four grounds and declared the rate increase to be effective as of April 1, 1982. From that judgment entered February 3,1983, and the court’s subsequent denial of the motion of Smiths to vacate or amend judgment or, in the alternative, for a new trial, Smiths now appeals.

ISSUES

The following issues are presented for review:

(1) Whether the City may increase the rates of Smiths at any time during the life of the contract, or is limited to imposing such increase only at the expiration of a two-year period.

(2) In the event that the City was entitled under the contract to impose an increase during a two-year period, whether the City applied an improper standard in determining the size of the rate increase.

(3) Whether a motion or resolution, rather than an ordinance which must be published to be effective, was a proper vehicle for imposing the rate increase.

(4) Whether the rate increase is invalid because the contractual condition requiring approval of the FHA was not met.

I

We hold that the trial court erred in concluding that the City is authorized under the contract to increase the rates charged Smiths at any time during the life of the contract.

Whether a written contract is unclear and ambiguous is a question of law for the court. E.g., Universal Development Corp. v. Shader, 382 So.2d 1115 (Ala.1980). While the court cannot make contracts for the parties, it must give their agreements a reasonable construction. Charles H. McCauley Associates, Inc. v. Snook, 339 So.2d 1011 (Ala.1976). See also Johnston-Rast & Hays v. Cole, 294 Ala. 32, 310 So.2d 885 (1975).

Subsection (5) of the contract, entitled “Modification of Contract,” specifically states that the rates will be reviewed by both parties at the expiration of each two-year period following the date the contract was entered. At any of those times, the City may unilaterally impose a rate increase upon Smiths if either of the following conditions is met:

(1) The cost to the City of furnishing water to Smiths has increased during the immediately preceding two-year period; or

(2) The City has made a general increase in the rates charged to its other customers (and represents that it was for the purpose of providing sufficient monies to enable the City to operate its then-existing water system) during the immediately preceding two-year period.

In the event the first condition has been met at the time rates are being reviewed, the City may unilaterally modify the contract by imposing a rate increase upon Smiths comparable to the increase in the City’s costs over the immediately preceding two-year period. If the second condition has been met at the time rates are being reviewed, i.e. if the City merely represents to Smiths that a general rate increase imposed on its other customers during the last two years was “for the purpose of providing sufficient monies to enable the City to operate its then existing water system,” the City may unilaterally modify the contract by imposing a rate increase upon Smiths comparable to the general rate increase imposed upon its other customers.

Contrary to its construction by the trial court, Subsection (5) clearly and unambiguously sets forth the two conditions under which a unilateral modification to the contract may be made at a time when rates are reviewable. Nowhere in this subsection does it appear that the City may make a unilateral modification under any other condition or at any other time during the life of the 27-year contract.

The City attempts to raise the affirmative defense of waiver for the first time on appeal. See Rule 8(c), A.R.Civ.P.

It is well-established that this Court will not consider a theory or issue where it was not pleaded or raised in the trial court. E.g., Johnson v. Keener, 370 So.2d 265 (Ala.1979); Union Springs Telephone Co. v. Green, 285 Ala. 114, 229 So.2d 503 (1969); Inter-Ocean Ins. Co. v. Banks, 268 Ala. 25, 104 So.2d 836 (Ala.1958); 2 Ala.Dig., Appeal & Error, Key No. 171(1).

II

Without addressing the trial court’s findings that the rate increase imposed upon Smiths was “reasonable” or “comparable” to the increase imposed upon the City’s other customers, and that the increases were “made for the purpose of providing sufficient monies,” etc., we hold that the court erred in concluding that the rate increase to Smiths met the requirements of the parties’ contract.

Under the terms of the original contract, Smiths agreed to purchase a maximum of 10 million gallons of water from the City per month. It further agreed to pay higher “penalty” rates for water used in excess of 10 million gallons per month as well as to risk a discontinuance of service by the City in the event it used more than 10 million gallons.

When the City unilaterally imposed the rate increase upon Smiths, it inverted the rate structure as well, contrary to the rate structure contained in the contract. Under the new rate structure, the penalties (higher prices for water used in excess of 10 million gallons per month) were eliminated. In effect, under the new structure, Smiths would suffer an approximate 121% increase in the rate charged on the maximum amount it is allowed to purchase before risking a discontinuance of service.

Testimony presented at trial revealed that Smiths was currently averaging using 14 to 15 million gallons of water from the City per month. It was further shown, however, that Smiths was in the process of obtaining an additional water source which, if implemented, would greatly lessen its requirements from the City.

Although testimony presented by both parties and documentary evidence revealed that Smiths had attempted to negotiate with the City for a greater maximum amount of water for its use, mere negotiations for a contract modification do not amount to a modification. In Johnston-Rast & Hays, Inc. v. Cole, supra at 37, 310 So.2d 885, the Court stated: “It is a general rule that a party claiming that a contract modifies a prior contract must show that the later contract is definite and certain as to the terms of modification, and the modification extends only so far as the terms are definite, certain and intentional.” See also 17A C.J.S. Contracts § 374 (1963). Any modification to the penalty provision would require the mutual assent of the parties. That provision is independent of the provisions under Subsection (5), “Modification of Contract,” which allows unilateral rate increases under the enumerated conditions. See, e.g., Kinmon v. J.P. King Auction Co., Inc., 290 Ala. 323, 276 So.2d 569 (1973). See also Wiregrass Construction Co., Inc., v. Tallapoosa River Electric Cooperative, Inc., 365 So.2d 95 (Ala.Civ.App.1978) (while provision of contract between electricity supplier and customer allowed rate increases due to increased costs to be unilaterally imposed, it plainly did not allow supplier to unilaterally change the method by which customer’s monthly bill was calculated).

III

We agree with and affirm the trial court’s conclusion that the City’s mode and manner of adopting the rate increase as it applied to Smiths was not improper. The modification of the contract effecting the rate increase, had it been in compliance with the terms of the contract, would not have been of such a general and permanent nature as to require the passage of an ordinance requiring publication. See generally Code 1975, § ll-45-8(b).

IV

Since we have determined that the rate increase which is the subject of this action was improper, it is unnecessary for us to determine whether the rate increase was invalid because the condition requiring FHA approval in writing, set forth in Sub-paragraph (9) of the contract, was not met.

For the foregoing reasons, the declaratory judgment rendered below is affirmed in part, reversed in part, and the case is remanded for further proceedings in accord with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, CJi, and MADDOX, JONES and SHORES, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 304.
    Supreme Court of Alabama.
    Aug. 1, 1983.
   Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We acknowledge receipt of House Resolution No. 476 requesting an advisory opinion on the constitutionality of Senate Bill No. 451. Resolution No. 476 reads:

“RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That the Honorable Chief Justice and Associate Justices of the Supreme Court of Alabama, are respectfully requested to give this body their written opinions concerning the following important constitutional questions which have arisen in reference to the pending bill, S.B. 451, a true copy of which is attached hereto and incorporated herein by reference:
“1. Do the provisions of S.B. 451 now pending before the Legislature of Alabama in any way conflict with Article IV, Section 104, of the Constitution of the State of Alabama, 1901?”

The copy of S.B. 451 forwarded with the resolution reads:

“A BILL TO BE ENTITLED
AN ACT
“Relating to Jefferson County; to amend Act No. 79-454 of the Regular Session of the Legislature of Alabama 1979 and the title thereof; to authorize the Chief and Associate Coroner-Medical Examiners to remove corneal tissues for transplantation or other purposes from dead bodies examined by the Coroner-Medical Examiner’s Office; to adopt rules and regulations governing the removal of corneal tissues for transplantation or other purposes from dead bodies examined by the Coroner-Medical Examiner’s Office; and providing for the effective date of the Act.
“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. As used herein, the term ‘Act 79-454’ means Act No. 79-454 of the Regular Session of the Legislature of Alabama of 1979, approved July 26, 1979 (Ala. Acts, 1979, p. 739 et seq.).
“Section 2. The title of Act 79 — 454 is hereby amended so as to read as follows:
“ ‘An Act Relating to Jefferson County, to abolish the office of County Coroner and to provide that all duties, rights and powers authorized or performed by said officer shall be exercised and performed by the Jefferson County Coroner-Medical Examiners’ office; to provide for the powers, rights, duties, compensation and composition of such office; to provide for the Jefferson County Coroner-Medical Examiners’ Commission; to provide for the powers, rights, duties, composition and terms of office of the members of such commission; and to relieve the members of such commission and other persons from civil and criminal liability; to authorize the Chief and Associate Coroner-Medical Examiners under rules and regulations of the Coroner-Medical Examiners’ Commission to remove corneal tissues for transplantation or other purposes from dead bodies examined by the Coroner-Medical Examiners’ office.’
“Section 3. The following is added as Section 11A:
“ ‘Section 11A. Pursuant to rules and regulations promulgated by the Coroner-Medical Examiners’ Commission the Chief and Associates Coroner-Medical Examiners are authorized to remove corneal tissues for transplantation or other purposes from dead bodies examined by the Coroner-Medical Examiners’ Office. Nothing in this bill is to be interpreted or construed in such manner as to allow the Coroner Medical Examiner or his associates to remove corneal tissues for transplantation without the written consent of the next of kin.’
“Section 4. This act shall become effective upon its approval by the Governor or upon its otherwise becoming a law.”

S.B. 451 is a proposed amendment to Act No. 79-454. This Act abolished the position of Coroner in Jefferson County and established a Coroner-Medical Examiners’ Commission to be appointed as prescribed therein and further provided for certain powers of the Commission which are not relevant to your present inquiry.

S.B. 451 is therefore clearly a proposed amendment to a local act. The Justices have consistently declined to give advisory opinions on legislation that has already been enacted by the Legislature. Opinion of the Justices, 384 So.2d 1054 (Ala. 1980); Opinion of the Justices, 342 So.2d 916 (Ala.1977); Opinion of the Justices, 269 Ala. 658, 115 So.2d 524 (1959); Opinion of the Justices, 267 Ala. 110, 100 So.2d 565 (1958). Nothing in S.B. 451 would affect the constitutionality of Act No. 79-454 under § 104, Constitution of Alabama of 1901. This being the case, the question posed in actuality is a request for us to give an advisory opinion on legislation which has already become law.

There is an additional reason why we must respectfully decline to answer the question. As early as 1959 the Justices have declined to render advisory opinions on purely local matters unless it was necessary to decide such matters in developing the rationale to answer other questions of an important constitutional nature which involved general laws. Opinion of the Justices, 269 Ala. 127, 111 So.2d 605 (1959).

For the foregoing reasons, we respectfully decline to answer the advisory opinion request.

Respectfully submitted,

C.C. TORBERT, JR.,

Chief Justice JAMES H. FAULKNER RENEAU P. ALMON JANIE L. SHORES T. ERIC EMBRY OSCAR W. ADAMS, JR.

Associate Justices.


text:
    OPINION OF THE CLERK.
    Opinion No. 41.
    Supreme Court of Alabama.
    Aug. 3, 1983.
    NORWOOD, Acting Clerk.
   RULES 18 AND 19, ALABAMA RULES OF JUDICIAL ADMINISTRATION-AUTHORITY OF MAGISTRATES

Several questions concerning the authority of municipal court and district court magistrates to accept guilty pleas in minor misdemeanor cases have been submitted to me by Mr. Allen L. Tapley, Administrative Director of Courts. The relevant rules and statutes are Rules 18 and 19 of the Alabama Rules of Judicial Administration (ARJA) and Code 1975, §§ 12-12-52, 12-14-51 and 12-17-251.

My opinion is that district court magistrates may only accept pleas of guilty involving the sixteen traffic infractions listed in Rule 18 11(A)(4). Municipal court magistrates may accept pleas for the same sixteen offenses, and for any other traffic offenses scheduled by municipal ordinance pursuant to Rule 19(B)(2)(b).

Magistrates may only accept pleas for traffic offenses scheduled by applicable municipal ordinance or rule of the Supreme Court. Accepting pleas for other traffic offenses, or for non-traffic offenses, is beyond the authority granted to municipal court or district court magistrates by rule or law.

The authority of magistrates is strictly limited by statute and the ARJA (Code 1975, §§ 12-12-52, 12-17-261(c) and Rule 18 11(A)(3) for district court magistrates, and Code 1975, § 12-14-51(c) and Rules 18 11(B)(2) and 19(B)(2)(b) for municipal court magistrates). Municipal court magistrates may receive “... pleas of guilty in minor misdemeanors where a schedule of fines has been suggested by rule.” Rule 18 11(B)(2)(c). The word “rule” or “rules” in Rules 18 11(A)(3)(c) and Code 1975, §§ 12-14-51 and 12-17-251 means rules of the Supreme Court. If the schedule of fines could be extended by local rules, the specific grant of authority to municipalities in Rules 18 11(B)(3) and 19(B)(2)(b) to extend the schedule of traffic offenses by ordinance would be unnecessary.

The only schedule of fines the Supreme Court has suggested for municipal court magistrates is found at Rule 18 11(B)(3). The same list appears at Rule 19(B)(2)(a) and is applicable to district and municipal courts. A municipal court magistrate’s authority, however, may be extended. A municipality may adopt ordinances relating to magistrates which extend the schedule of traffic infractions, excepting the six prohibited categories of serious offenses listed at Rule 19(B)(2)(b)(i)(l)-(6). This authority is limited to traffic offenses; a municipality has no authority to allow its magistrates to take pleas in non-traffic cases.

The powers of district court magistrates are more limited than those of municipal court magistrates. At present, the Supreme Court has only suggested one schedule of traffic fines. The sixteen infractions are listed at Rule 18 11(A)(4) and 19(B)(2)(a). Until the Supreme Court extends the list, district court magistrates are restricted to accepting pleas for these sixteen infractions.

      . Rule 19(B)(2)(a), ARJA, states in part that, “the following fines are suggested for traffic infractions in district and municipal courts.” The word “suggested” has application only to courts (trial judges) in their routine disposition of such cases and is used so as not to preempt them from exercising their discretion in sentencing defendants in these cases. With respect to magistrates, the word “suggested” operates only as a limitation upon their authority to receive a guilty plea. In other words, they have no such authority, unless a fine has been suggested by rule or by municipal ordinance for the offense in question.

      . This rule has been amended to substitute “suggested by rule” for “prescribed by law or rule.” Similarly, Rule 18 11(A)(3)(c), pertaining to district court magistrates, was amended to read “suggested”. However, Code 1975, §§ 12-15-51 and 12-17-251 still read “prescribed by rule”.


author: EMBRY, Justice.

text:
    Betty Jane GRAY, as Administratrix of the Estate of Evart Bail, deceased v. Dr. James W. SHERWOOD, Dr. Henry G. Herrod, Jr., and Dr. James T. Gascoigne, et al.
    81-425.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    John T. Roach, Jr., Birmingham, for appellant.
    Robert B. Harwood, Jr. of Rosen, Har-wood, Cook & Sledge, Tuscaloosa, for appel-lees.
   EMBRY, Justice.

This is a wrongful death action.

On 6 January 1980, Mr. Evart Bail died as a result of a ruptured abdominal aortic aneurysm while a patient of the defendant doctors at Druid City Hospital, Tuscaloosa, Alabama. During the eight days that Bail was a patient in that hospital, he was treated for pancreatitis. Betty Jane Gray, as administratrix of the estate of her father, Evart Bail, alleges his death was due to the negligence of the defendants: Dr. James W. Sherwood, Dr. Henry G. Herrod, and Dr. James T. Gascoigne and others.

The case was tried to a jury in Tuscaloosa, which returned a verdict for the three doctors. The trial court overruled Gray’s motion for a new trial. This appeal followed.

The dispositive issue on appeal is whether the trial court erred to reversal in refusing to grant plaintiff’s challenges for cause of two of the prospective jurors. With regard to this issue, Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1977) provides:

“The test to be applied is probable prejudice. Probable prejudice for any reason disqualifies a prospective juror. Qualification of a juror is a matter within the discretion of the trial court and, on appeal, this court will look to the questions propounded and the answers given by the prospective juror to see if this discretion was properly exercised. ...”

In Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961), this court outlined a more pointed test to be used in determining when jurors could be successfully challenged for cause pursuant to the above statute:

“The test to be applied has been stated to be that of probable prejudice. Probable prejudice for any reason disqualifies a prospective juror. Mutual Building & Loan Ass’n v. Watson, 226 Ala. 526, 147 So. 817. Por a juror to be impartial between the parties he must be ‘indifferent as he stands unsworn’. Wilson v. State, 243 Ala. 1, 8 So.2d 422, 430.”

Id., 273 Ala. at 146, 135 So.2d 391.

Under these principles of law we review the trial court’s action regarding whether there was an abuse of discretion.

A similar issue was presented in Ballard v. State, 225 Ala. 202, 142 So. 668 (1932), where this court considered whether there was error in refusing the defendant’s challenge for cause of a juror who, after testifying he could give the defendant a fair trial, winked at the State’s solicitor [now district attorney]. Regarding the winking incident, the following statement was made:

“We think that this circumstance was prima facie an indication of a favorable consideration from the standpoint of the state. We cannot disregard what all people understand.... ”

Id., 225 Ala. at 203, 142 So. 668.

Ballard was reversed for the combined effect of this and another separate error.

The conduct and actions of the challenged jurors in the instant case match and surpass the degree of manifested predisposition shown by the Ballard veniremen. During the voir dire examination of the jury panel, a prospective juror, Reba Whaley, stated that defendants “Dr. Herrod and Dr. Sherwood have been our family doctors for a number of years.” When asked whether that fact would affect her ability to fairly and impartially hear the evidence in the case, she responded, “I would rather not sit on it.” The plaintiff’s attorney did not further question Whaley.

Another prospective juror, Michael Web-ber, during voir dire responded: “I know Dr. Gascoigne; he is our company doctor.” When asked whether he had been treated by Dr. Gascoigne, Mr. Webber replied, “Yes, sir. I have seen him on several occasions.” Mr. Webber then stated: “I want to ask to be struck from this jury.” Webber was asked no further questions.

There is often a close personal relationship between physician and patient, derived, perhaps in part, from the necessity for trust and confidence upon the part of the patient in his physician’s judgment. “The sick man loves the physician because he is sick,” says Plato in Lysis (217a). The Roman philosopher Lucius Annaeus Seneca (8 B.C.-A.D. 65) explored the bond between physician and patient. We find his observations timely: Seneca, de, Beneficiis, VI, 16. We cannot ignore this time-honored sympathy between doctor and patient.

“Why then, are we so much indebted to these men? Not because what they sold us is worth more than we paid for it, but because they have contributed something to us personally.”

Venirepersons Whaley and Webber, by their requests to be excluded from a jury gathered to rénder a verdict for, or against, their personal physicians, were attempting to express that their involvement in this physician-patient relationship prejudiced them to such an extent they could not be fair and impartial. In Alabama we require indifference of our jurors. Wilson v. State, 243 Ala. 1, 8 So.2d 422, 430 (1942). This court “cannot disregard what all people understand,” Ballard, supra, 225 Ala. at 203, 142 So.2d at 668. The request of jurors Whaley and Webber to be excluded from the jury was prima facie an indication of their interest in the conviction or acquittal of the defendants, prohibited by the holding of Alabama Power Co. v. Henderson, supra.

Each of these jurors should have been excused for cause by the trial court. Therefore, the judgment below is due to be reversed; it is hereby reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

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

      . As quoted by L. Entralgo, Doctor and Patient, 17 (F. Partridge trans. 1969).

      . Id. at 1.


author: ADAMS, Justice.

text:
    James Michael HARTMAN v. BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA, et al.
    81-622.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      William P. Gray, Jr., of Gray & Espy, Tuscaloosa and J. Zack Higgs of Higgs & Mason, Huntsville, for appellant.
    Paul E. Skidmore, University, for appel-lees.
   ADAMS, Justice.

This appeal is taken from a summary judgment granted to the defendants. The plaintiff (Hartman) alleged in his complaint that the individual defendants, Albert S. Miles, Warner 0. Moore, and Tony Strong, had made fraudulent representations to him on which he had relied to his detriment, and had taken arbitrary and capricious actions, or, alternatively, had acted in bad faith or under a mistaken interpretation of law, re-suiting in punishing Hartman twice for the same offenses. Hartman sought a writ of mandamus, a permanent injunction, and damages from the individual defendants.

Hartman raises two issues for our consideration:

1. Did the trial court err in granting the defendants’ motion for summary judgment where the plaintiff’s complaint alleged that the individual defendants had acted in bad faith, arbitrarily and capriciously, fraudulently, or under a mistake of law in punishing the plaintiff twice for the same offense?
2. Did the trial court err in failing to grant the plaintiff’s motion for recusal?

We answer these questions in the negative, and affirm.

The facts of the case are as follows:

Hartman was a student at the University of Alabama in Tuscaloosa, pursuing a degree in music education. At the end of the fall semester, 1979, Hartman received a grade of C in a music theory course in which he thought he should have received an A. In mid-January, 1980, after receiving notice of his grades, Hartman became very irate, argued with his professor, threatened him with violence and used abusive language toward him. In addition, he made harassing telephone calls to the head of the music department and several other University officials over a period of three or four days. On January 15 there was communication between the office of the University counsel and Hartman’s attorney, followed by a letter from that office stating that “it is the view of the music department, at least, that Hartman should not be readmitted as a student to this institution during the current semester.” There followed several telephone calls and letters, culminating in an agreement that Hartman would “sit out” the spring semester. When Hartman came onto the campus in March, 1980, with his attorney, and registered for the summer term, formal charges were filed against him, stating that he had breached his agreement. It was their contention that it had been understood between the parties, although not reduced to writing, that Hartman was not to enroll prior to the fall term. However, the formal charges were set aside, and in June the parties, with advice of counsel, entered into a new agreement. By this agreement Hartman could enroll for the fall term, but could not take any courses within the department of music. Additionally, Hartman was to receive psychological counselling and have reports sent from the counselling clinic to the University’s Office of Student Affairs. Reports indicated that Hartman attended only five of nine scheduled appointments with the psychologist. There is also evidence that he attempted to register for music courses during the summer. In September, Hartman’s attorney began inquiring as to the requirements for getting Hartman back into the music program. On November 7, 1980, Hartman requested a full due process hearing on the charges that had been brought against him. At the hearing, at which Hartman was represented by counsel, Hartman admitted the truth of the charges, and was given a voluntary withdrawal (suspension) until the fall of 1981.

This suit was filed in March, 1981. Hartman’s petition for writ of mandamus contained in the suit was denied, as was his motion for temporary injunctive relief. There were numerous delays in the case. At one point the trial judge contacted Hartman’s attorney by phone and told him that the University of Alabama was “our friends” and “we just shouldn’t file suits like this against the University of Alabama.” He further threatened to grant the defendants’ motion to dismiss without further consideration. (After a hearing on the motion to dismiss, the motion was denied.) The judge later expressed anger over the plaintiff’s filing in this court of a petition for writ of mandamus to the trial judge, seeking injunctive relief. This Court denied the writ of mandamus without opinion. Ex parte Hartman, 406 So.2d 404 (Ala. 1981). At the final hearing, in open court, the trial judge stated: “I realize our past in this case and I will have to accept responsibility that our path has been a little rocky.” Later, during the same hearing, he said:

I want to again study this case carefully and I hope that whatever ruling I should make would be acceptable. I will apologize for anything that occurred prior to this time. That is not my duty to get up here and get mad at anybody. I may have gotten a little upset by the effort being made to get me out of the case but that is over with now but in any event I have simply done the best I know how and I intend to do that as I again study the situation we have here in this case.

We examine first the question whether the court erred in granting the defendants’ motion for summary judgment. The defendants rely on Ferguson v. Thomas, 430 F.2d 852 (5th Cir.1970), and Bowling v. Scott, combined with Bowling v. Mathews, 587 F.2d 229 (5th Cir.1979). Ferguson is a teacher termination case in which the appellate court outlined judicial review of administrative hearings in public institutions of higher learning. In that the case, the appellate court stated:

The rudiments of due process fair play in school administrative proceedings have been well outlined in this circuit with regard to the rights of college students who were subjected to disciplinary suspensions. They are entitled to a statement of the charges against them, the names of witnesses, the nature of the testimony of those witnesses and the opportunity of presenting a defense. Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961).

430 F.2d at 856. Regarding judicial review, that court said:

If no federal right has been violated in the procedures followed, then the court should next look to the record as developed before the academic agency to determine whether there was substantial evidence before the agency to support the action taken, with due care taken to judge the constitutionality of the school’s action on the basis of the facts that were before the agency, and on the logic applied by it. Johnson v. Branch [364 F.2d 177 (4th Cir.1966)], supra. If the procedures followed were correct and substantial evidence appears to support the Board’s action, that ordinarily ends the matter.

430 F.2d at 858.

In the Bowling cases, supra, also dealing with teacher termination, the appellate court affirmed a summary judgment in favor of the defendants, finding that procedural due process had been afforded and that an independent review of the hearing showed that the conclusion was supported by substantial evidence.

Hartman maintains that the cases cited above are inapplicable to the one before us because the hearing itself is not contested, either procedurally or substantively. Rather, he claims that the course of events, culminating in a hearing held some ten months after his initially complained of behavior, shows evidence that the named individual defendants acted fraudulently, in bad faith, arbitrarily and capriciously, or under a mistake of law.

Summary judgment may be granted only when the materials on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A.R.Civ.P., Rule 56(c); Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1981). In determining the existence of genuine issues of material fact, the record must be viewed by this court in a light most favorable to the non-moving party. Ryan, supra; Papastefan v. B & L Construction Company, Inc., 356 So.2d 158 (Ala.1978). In reviewing the record before us, we find definite issues of fact with regard to what the parties actually agreed to do in the spring and summer of 1980, as well as to which parties actually breached the agreements. However, we find no evidence in the record to indicate that any of the three individual defendants acted fraudulently, in bad faith, arbitrarily and capriciously, or under a mistake of law. To the contrary, the evidence, when viewed in a light most favorable to Hartman, indicates that after Hartman committed infractions of a very serious nature, the officials of the University, acting under advice of the University counsel and through counsel for Hartman, tried to handle the matter in an informal manner which would protect the University and at the same time provide Hartman with an opportunity to pursue his education. When the first agreement was deemed breached, the University initiated disciplinary proceedings. These proceedings were subsequently set aside, and a new agreement voluntarily entered into by the parties, with the understanding that if Hartman breached the new agreement, the disciplinary action would be reinstated. There is ample evidence of actions by which the officials could in good faith have concluded that Hartman had breached this agreement. However, the disciplinary action was not reinstated until Hartman requested a full due process hearing on the matter. Hartman had received prior notice that such a hearing could result in additional sanctions. While the length of time between Hartman’s initial acts and the hearing was unfortunate, and one might conclude, in retrospect, that Hartman would have been better off with an immediate formal hearing rather than the attempted informal agreements, we cannot find from the facts any evidence that the defendants acted in bad faith or as otherwise charged in the allegations.

Finding that there are no issues of material fact as to the allegations in the complaint, we return to the requirements of due process set forth in Ferguson v. Thomas, supra. The procedures followed in the disciplinary hearing are not challenged by Hartman, and there was substantial evidence before the disciplinary committee to support the action taken by it. Therefore, we hold that the summary judgment in favor of the defendants is due to be affirmed.

Hartman next contends that the trial judge erred in refusing to recuse himself.

Canon 3 C(l), Alabama Canons of Judicial Ethics, states in pertinent part:

C. DISQUALIFICATION:

(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

Hartman insists that the trial judge’s impartiality might reasonably be questioned as a result of his remarks suggesting a personal bias in favor of the University of Alabama, as well as his expressions of anger toward Hartman’s attorney.

In United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), the United States Supreme Court stated:

The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31 [41 S.Ct. 230, 65 L.Ed. 481]. Any adverse attitudes that [the trial judge] evinced toward the defendants were based on his study of the depositions and briefs which the parties had requested him to make.

Grinnell, 384 U.S. at 583, 86 S.Ct. at 1710.

Bias and prejudice must be shown by the conduct of the trial judge and may not be presumed or inferred by his subjective views. Duplan Corporation v. Deering Milliken, Inc., 400 F.Supp. 497 (D.S.C.1975). Adverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice. Knapp v. Kinsey, 232 F.2d 458 (6th Cir. 1956).

While the trial judge’s remarks to Hartman’s attorney were of an unfortunate and intemperate nature, the record indicates that he recognized that fact, and apologized in open court. There is nothing in the record to indicate that the alleged bias resulted “in an opinion on the merits on some basis other than what the trial judge learned from his participation in the case.” United States v. Grinnell Corp., supra. Following a complete review of the same material which was before the trial judge when he rendered his judgment, this court has arrived at a conclusion affirming that judgment. In the light of these facts, it is clear that Hartman was not prejudiced by the trial judge’s failure to recuse himself.

For the foregoing reasons, the trial court’s judgment is due to be, and hereby is, affirmed.

AFFIRMED.

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


text:
    Arthur HAMMOND v. McDONOUGH POWER EQUIPMENT, INC.
    81-739.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    Hubert L. Taylor of Taylor & Cunningham and Burns, Shumaker & Davis, Gadsden, for appellant.
    F. Michael Haney of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   EMBRY, Justice.

This is a products liability case. Plaintiff Arthur Hammond appeals from an adverse judgment.

In April of 1977, Hammond bought a lawn mower which was manufactured and distributed by McDonough Power Equipment, Inc. In September of 1979, Hammond was injured when he fell from the mower. He contends this accident was due to a design defect in the lawn mower’s gear system which caused its front end to jerk upward, throwing him onto the ground.

Hammond sued McDonough and the case proceeded to trial on 6 April 1982. The jury returned its verdict in favor of McDo-nough. Hammond appeals to this court to consider whether the trial court erred in giving certain instructions to the jury.

I.

The first issue Hammond presents is whether the trial court committed reversible error by charging the jury that a change in the design of the gear system by appellee prior to the accident could not be considered by it on the issue of whether the product was defective. A review of the record reveals the trial court did not instruct the jury the change could not be considered. The essence of its charge was that the design change should not be considered as singularly determinative of the issue of defect in design or negligence.

Moreover, the record reveals Hammond did not properly object to' the charge; he merely requested a further explanatory charge without stating grounds for objection. Rule 51, ARCP, provides, in part, as follows:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.... ”

Because Hammond did not state the ground of his objection when it was initially raised and did not renew his objection after the explanatory charge was given, this issue was not properly raised on appeal.

II.

Hammond further contends the trial court erred by charging the jury on the affirmative defenses of contributory negligence, assumption of risk, and the misuse of the product, when no scintilla of evidence was offered by appellee to support these allegations. The record reveals considerable evidence as to these issues. The tendency of the evidence is revealed by Hammond’s testimony that, on the occasion of his fall, he shoved the gear lever on the mower forward to fourth or fifth gear rather than starting in first gear, despite his awareness of the manufacturer’s instruction concerning operation of the mower to the contrary. Hammond also testified he became aware the front end of the mower would “raise” during operation within one week after he purchased it. Despite that fact, he continued to use the mower over the course of two years until the time of the incident giving rise to this suit. Because there was significant evidence of contributory negligence, misuse of the product, and assumption of risk, the trial judge correctly submitted these issues to the jury. See Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), and Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976).

III.

Hammond last contends the trial court erred in charging the jury he could not recover for medical or doctor bills which have been paid by insurance and which the evidence does not show he is obligated to repay. This charge was given pursuant to § 6-5-522, Code 1975, which provides:

“In all product liability actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed (1) by medical or hospital insurance or (2) pursuant to the medical and hospital payment provisions of law governing workmen’s compensation, shall be admissible as competent evidence in mitigation of such medical or hospital expense damages. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be enti-tied to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses. Such portion of the costs of obtaining reimbursement or payment of medical or hospital expenses as the trier of fact finds is reasonably related to the reimbursement or payment received or to be received by the plaintiff shall be a recoverable item of such damages for medical or hospital expenses.”

The legislature made clear its intent in adopting this provision in § 6-5-520:

“It is the intent of the legislature that plaintiffs be compensated fully for any medical or hospital expenses incurred as a result of injuries sustained from a breach of product liability laws, but that plaintiffs not receive compensation more than once for the same medical and hospital expenses.”

Several of our state constitutional provisions, among others, Ala. Const. Art. I, §§ 1, 6, and 22, are relevant to our consideration of the legislature’s abrogation of the collateral source rule as applied to products liability cases. However, Hammond presents no constitutional challenges to the statute, contending only that the trial court misconstrued its meaning. We disagree with that contention. In any event, even if the charge were erroneous, such error is without injury. The jury returned a verdict in favor of McDonough on the issue of liability, which is supported by the evidence. Sexton v. Johnson, 278 Ala. 384, 178 So.2d 541 (1965). Rule 45, ARAP.

For the reasons stated, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Edward O. GLASS and Ernest Glass v. Cilia ADKINS, as Administratrix of the Estate of Grace R. Windham Glass, deceased, et al.
    81-809.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      James B. Morton, Birmingham, for appellants.
    A.B. Foshee and John Hollis Jackson, Clanton, for appellees.
   ALMON, Justice.

This appeal involves title to certain joint savings accounts and the construction of a provision in a will.

The case was tried on the following stipulation of facts:

“1. That Grace R. Windham Glass and Edward 0. Glass were husband and wife, having been married in July of 1977.
“2. That Grace R. Windham Glass died on February 16, 1978.
“3. That Edward 0. Glass was indicted for the murder of Grace R. Windham Glass and was convicted of the said murder on November 1, 1978, in the Circuit Court of Chilton County, Alabama.
“4. That Grace R. Windham Glass died testate; that her Last Will and Testament was executed by her on or about the 9th day of February, 1978, and was admitted to probate in the Probate Court of Chilton County, Alabama, on the 28th day of April, 1981 ....
“5. That at the time of her death, Grace R. Windham Glass was possessed of title to, or held an interest in, certain saving certificates and/or certificates of deposit which also included thereon the name of Edward 0. Glass, all of said certificates being further described as follows:
Certificate no. E1433-First Federal Savings & Loan Association of Chilton County issued for $15,400.00 on August 20, 1974, and appearing on its face to be in the name of Grace R. or Edward O. Glass.
Certificate no. E 1432-First Federal Savings & Loan Association of Chilton County-issued for $12,300.00 on August 20, 1974, and appearing on its face to be in the name of Grace R. or Edward O. Glass.
Certificate no. 16282-Jefferson Federal Savings & Loan Association-issued for $1,000.00 on August 20, 1970, and appearing on its face to be in the name of Mrs. Grace R. Glass or Mr. Edward O. Glass.
Certificate no. 16285-Jefferson Federal Savings & Loan Association-issued for $1,000.00 on August 20, 1970, and appearing on its face to be in the name of Mrs. Grace R. Glass or Mr. Edward O. Glass.
Certificate no. 3091-The Peoples Savings Bank-issued for $2,000.00 on January 25, 1978, and appearing on its face to be in the name of Mr. or Mrs. Edward Glass.
Certificate no. 809590-City Federal Savings & Loan Association-issued for $6,000.00 on October 25, 1977, and appearing on its face to be in the name of Grace R. Glass or Edward O. Glass. Savings account no. 01-05-100121-Jef-ferson Federal Savings & Loan Association-presently containing the balance for proximately $2,000.00 plus interest earned and appearing on its face to be in the name of Mrs. Grace R. Glass or Mr. Edward O. Glass. [Note that of the seven deposits at issue, six are held by savings and loan associations. Only one deposit, certificate no. 3091, is held by a bank.]
“6. That the aforedescribed certificate[s] and/or accounts were purchased by the said Grace R. Windham Glass prior to her marriage to the said Edward O.
Glass and that subsequent to their marriage said certificates and/or accounts were changed or reissued to show alternate ownership thereof as indicated in the preceding paragraph.
“7. That said Last Will and Testament .... provided, as to the disposition of the property of the said Grace R. Windham Glass as follows:
‘2. I hereby give, devise and bequeath all of my property both real, personal and mixed, wheresoever situated or located, seized and possessed by me or to which I may be entitled to at the time of my death to my beloved husband, Edward 0. Glass.
‘4. In the event my husband, Edward 0. Glass, predecease me, then I give, devise and bequeath unto my nephew, Earnest [sic] Glass, all of my property, or interest therein, whether real, personal or mixed, and wherever situated.’
“9. That Grace R. Windham Glass was survived by no children or their descendents [sic] and was not survived by her father or mother, and that she was survived by the following heirs at law, all of whom are over the age of 19 years and are of sound mind: [names omitted].”

Relying on these facts, Cilia Atkins, the administratrix of Mrs. Glass’s estate, joined with Mrs. Glass’s other heirs at law in a declaratory judgment action against Edward Glass, Ernest Glass, and the bank and savings and loan associations which held the deposits. All parties agreed that the bank and savings and loan associations which held the deposits were named merely as stakeholders.

The plaintiffs maintained that the deposits should descend to them as in the case of intestacy because Edward, having been convicted of murdering his wife, was barred from participating in the ownership of the deposits. The plaintiffs also asserted that neither Edward nor his nephew Ernest could inherit under Mrs. Glass’s will. The plaintiffs claimed that Edward was disqualified by his wrongful act and that Ernest could take nothing since his inheritance was contingent upon the condition that Edward predecease the testatrix.

The trial court acceded to each of the plaintiffs’ contentions and ordered that Mrs. Glass’s property descend to the plaintiffs as in the case of intestacy.

The first issue presented is whether Edward should be precluded from taking the deposits. In our opinion, the trial court reached the correct result by barring Edward from all incidents of ownership.

Sections 5-16-1 through -53, Code 1975, govern savings and loan associations. Section 5-16-45 provides that when a deposit is made in a savings and loan association

“in the names of two persons, payable to either of such persons, or payable to the survivor of them, the said deposit shall, upon the death of either of said persons, become the property of and be paid in accordance with its terms to the survivor

Code 1975, § 5-5A-41, contains an analogous provision for bank deposits, allowing the bank to pay the deposit to the survivor of a joint account. While this section does not purport to convey title to the deposit, we do not find it necessary to reach the question of ownership in this case.

Edward contends that he is entitled to the deposits as the surviving joint owner, or at least that to deprive him of a half interest would work a forfeiture. We find, however, that to permit Edward to take any of these deposits would allow him to profit from his wrongful act. Had he not killed Grace, she might have survived him and thereby owned the deposits. At the very least, he accelerated his survivorship of her. Moreover, she might have withdrawn the deposits if he had not killed her.

It is axiomatic that one is not allowed to profit by his wrongful acts. Kempaner v. Thompson, 394 So.2d 918 (Ala.1981); Weaver v. Hollis, 247 Ala. 57, 22 So.2d 525 (1945). Because there are several circumstances in which Edward would have taken nothing if he had not killed Grace, we agree with the trial court’s conclusion that to give Edward any of the bank deposits would allow him to profit by his wrongful act.

The remaining question is whether the contingent beneficiary in Mrs. Glass’s will, Ernest Glass, can inherit her estate.Certainly, Edward, the primary beneficiary, must not profit from his wrong by taking under the will. The trial court, however, decided to also prohibit the contingent beneficiary from inheriting. The trial court ruled that the contingent devise was never activated because the condition upon which the contingent beneficiary would take— that the testatrix outlive the primary beneficiary — did not occur. We disagree.

Such strict compliance with the condition should not defeat the presumption that the testatrix intended to die testate.

“In connection with the procedure relating to the interpretation of wills, certain legal principles have been educed .... Prominent among these principles, and considered as an aid to assist and guide the judicial mind in discovering the intention of the maker of a will, is the presumption that the testator intended to dispose of his entire estate; or, stated negatively, it is not to be presumed that the testator intended to die intestate as to any portion of his property, unless the contrary intention is so plain as to compel a different conclusion. Arrington v. Brown, 235 Ala. 196, 178 So. 218, and cases cited.”

Baker v. Wright, 257 Ala. 697, 60 So.2d 825 (1952).

Additionally, wills should be construed to uphold rather than to defeat devises and bequests. First National Bank of Birmingham v. Klein, 285 Ala. 505, 234 So.2d 42 (1970). As we see it, the contingent devise was inserted in the will to insure against intestacy should the primary beneficiary, Edward, be unable to take. We construe the condition that the primary beneficiary predecease the testatrix as merely the one event envisioned by the testatrix in which the primary devise would fail. The fact that the primary devise failed for a reason other than that foreseen by the testatrix should not defeat the contingent devise, especially where we must presume that the testatrix did not intend to die intestate.

In view of the foregoing, we hold that the contingent beneficiary, being totally unconnected with the murder of Mrs. Glass, may inherit as provided in her will.

The judgment of the trial court is hereby affirmed in part, reversed in part, and remanded with directions that a judgment be entered in accordance with the views expressed in this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

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

      . Mrs. Glass’s will contained no residuary clause. Beyond the contingent beneficiary, the will named no other takers. The decision of the trial court brings about intestacy.


text:
    Minnie C. STROTHER, Claude C. Strother and John C. Strother, Jr. v. Louise Robin STROTHER, et al.
    81-824.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      David L. Carroll of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellants.
    W. McLean Pitts of Pitts, Pitts & Thompson, Selma, for appellees.
   ALMON, Justice.

This appeal concerns a suit to have a resulting trust declared in favor of Minnie C. Strother in certain lands deeded by various grantors to her three sons or to Strother Brothers, a partnership. The trial court held that under the facts and the applicable law Minnie Strother was not entitled to have a resulting trust in the lands declared in her favor.

John C. Strother, Sr., who died in 1935, was the husband of Minnie C. Strother and the father of James B. Strother, Claude C. Strother, and John C. Strother, Jr. The Strothers acquired the lands which are the subject of this suit during the time between the death of John C. Strother, Sr. and the death of his son, James B. Strother, on or about August 19, 1966. Some thirty real estate transactions were involved, wherein title to these lands was taken in one of the following four ways:

(a) James B. Strother, John C. Strother, Jr., and Claude C. Strother; or
(b) James B. Strother, John C. Strother, Jr., and Claude C. Strother, Partners doing business as Strother Brothers; or
(c) Strother Brothers, a Partnership; or
(d) J.C. Strother, C.C. Strother, and J.B. Strother, Partners doing business as Strother Brothers.

None of the deeds named Minnie C. Strother as grantee.

Some ten years after the death of James B. Strother, Minnie, Claude, and John Strother brought two suits, one for partition and the other for sale for division of various parcels of the property, seeking to have Minnie Strother declared the owner of a one-fourth interest in the lands. The suits were consolidated for trial and are here in one appeal.

The Strother Brothers partnership operated a cattle business, but the Strothers never executed a written partnership agreement. The issue at trial and before this Court is whether Minnie Strother was a partner with her sons and, if so, whether the lands were taken as partnership property of which Minnie Strother owned a one-fourth interest. Stated otherwise, the issue is whether she contributed part of the purchase price for the lands in question so as to be entitled to a resulting trust. If so, the heirs of James Strother take only a one-fourth interest in the lands, whereas if Minnie Strother is not entitled to a one-fourth interest, as the trial court held, the heirs of James Strother take a one-third share.

In Goldthwaite v. Janney, 102 Ala. 431, 15 So. 560 (1894), this Court cited authorities for the proposition that real estate may be partnership property even though taken in individual partners’ names if it is bought with partnership funds or credit for partnership purposes. . The Court stated:

“Whether the land belongs to a firm or to one of the individuals composing it,— when the title is in his name, and not in that of the firm,—must be solved by what appears to have been the intention of the parties. Prima facie, ownership is where the muniment of title places it, but if by all the circumstances attending the transaction,—which may be shown by pa-rol, if there is no written evidence,—it is made to appear, that in the intention of the parties, it was purchased for and was treated as partnership property, that presumption of ownership arising from the face of the deed will be overcome, and the property will be treated as belonging to the partnership. Authorities supra.”

Id., 102 Ala. at 438,15 So. 560. In Goldthwaite evidence was taken before a register showing that the property “was bought for the firm, paid for out of its funds and was taken and treated as its property, and not as the property of. the member m whose name the title stood,” id., except for the partners’ residences and one other lot.

To like effect are Cooper v. Cooper, 289 Ala. 263, 266 So.2d 871 (1972); McGowin v. Robinson, 251 Ala. 690, 39 So.2d 237 (1949); and McKleroy v. Musgrove, 203 Ala. 603, 84 So. 280 (1919). In Cooper, a register similarly concluded that “the evidence was sufficient to overcome the presumption of individual ownership by the six respondents,” 289 Ala. at 271, 266 So.2d 871, where two partners had conveyed their property to the individual partners. The register also found that when the two partners originally bought the property in their individual names, the property belonged to them individually and not to the partnership. The trial court and this Court sustained both findings.

In both Cooper and McGowin it was noted that the mere use by the partnership of property owned by one or more partners as individuals does not impress upon it the character of partnership property. In McGowin, supra, the Court held that the land was owned by the partners as tenants in common and not by the partnership, stating that “[i]t was only the business operated on the real estate that constituted the partnership between Robinson and McGowin.” Id., 251 Ala. at 693, 39 So.2d 237.

In McKleroy v. Musgrove, supra, a register made findings based on detailed proof that certain stocks were not partnership property but belonged to the individual partners, citing the rules relied on in each of these cases that the condition of the land is prima facie that indicated by the muniment of title and that the equitable ownership is a question of fact as to the intent of the parties. Again, as in Cooper and Goldthwaite, supra, this Court affirmed the decision of the trial court, which was based on a register’s finding.

In the case at bar no detailed factual presentation was made to support the contention that Minnie Strother was an equal partner with her sons and that the land was partnership property bought with partnership funds or on partnership credit. No written partnership agreement was ever executed. The evidence that Minnie was a partner consisted chiefly of testimony by the accountant for Strother Brothers that one-fourth of the partnership profits were paid to Minnie and Claude Strother’s bare assertion that his mother’s funds were part of the purchase money used to buy the lands. We find no error in the trial court’s finding, as follows:

“... There was absolutely no evidence to establish that Minnie C. Strother ever intended, during her lifetime, to have any interest in the lands until this suit was instituted, which was after Minnie C. Strother had become a very old person and her two (2) sons were the principals in the institution of the suit. The muniment of title standing in the names of the three (3) sons in each of the Deeds spoke the truth. Some of the Deeds are the only written evidence that establishes the members of the Partnership of Strother Brothers and these members were James B. Strother, Claude C. Strother, and John C. Strother, Jr. All of the evidence disclosed that before the death of James B. Strother the Partnership was engaged in the cattle business and it appears from the evidence that this Partnership that was created before the death of James B. Strother was nothing more than an operating Partnership.”

Thus, the trial court’s judgment is sustainable on the ground that the plaintiffs produced insufficient evidence to prove that the property was paid for with partnership funds or on partnership credit. Claude Strother testified that the lands were bought with partnership funds and that Minnie Strother contributed part of the purchase price, but these assertions were not supported by any exhibits nor by any detailed testimony.

The bulk of the trial court’s opinion and judgment dealt with the theory of a resulting trust. Indeed, this Court has observed that the doctrine which allows property bought with partnership funds for partnership purposes to be treated as partnership property rests “on the broad foundation of a resulting trust,” McKleroy v. Musgrove, supra, 203 Ala. at 608, 84 So. 280 (citations omitted).

A resulting trust may be established in favor of one providing purchase money where a named grantee has used another’s money to purchase property, but the facts setting up the trust must be shown by clear and convincing evidence. Sims v. Sims, 259 Ala. 296, 66 So.2d 445 (1953); Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809 (1950); Banks v. Banks, 253 Ala. 252, 44 So.2d 10 (1950); Lauderdale v. Peace Baptist Church of Birmingham, 246 Ala. 178, 19 So.2d 538 (1944); Heflin v. Heflin, 216 Ala. 519, 113 So. 535 (1927).

The trial court held that the Strothers who were attempting to establish the resulting trust in favor of Minnie C. Strother did not meet their burden of proof:

“From all the evidence it is apparent to the Court the three (3) sons owned the real estate in their individual capacities just as set forth in the various Deeds. There was no evidence as to how and when the purchase money was acquired by the three (3) grantees of the Deeds and to create a Resulting Trust, it is an indispensable requisite that the purchase money be furnished at or before the purchase. It must result at the time title passes, the basic principle being the investment of one’s funds, not intended as a gift, in the purchase of the property and taking title in another’s name. If no money was so invested at the time of the purchase, when title taken [sic], a subsequent contribution as part payment does not create a Resulting Trust. The Plaintiffs in this case have failed in their proof in that there was no evidence Minnie C. Strother paid any part of the purchase money at or before the purchase of the land. This would have necessitated the Plaintiffs going into each separate real estate transaction wherein the Deeds were acquired and it was absolutely essential that proof be offered that Minnie C. Strother paid part of the purchase price either directly or through the Partnership and that she did not intend the same to be a gift to her three (3) sons. The contents of the James B. Strother Will referring to the Partnership strongly establishes that the Partnership, prior to his death, consisted only of he [sic] and his two brothers. The Plaintiffs have failed to establish beyond reasonable controversy by clear, full, satisfactory, and convincing evidence that a Resulting Trust was created. Banks v. Banks, 44 So.2d 10, 253 Ala. 252. While the Defendants also contended, as a defense, that the Statute of Limitations or the Doctrine of Laches barred the Plaintiffs from asserting a Resulting Trust, the Court is of the opinion it is not necessary to decide this question because the Court is not convinced from the evidence that the Plaintiffs have met the burden of proof cast upon them in order to establish a Resulting Trust. The Court is of the opinion no Resulting Trust was established and that the Defendants own a one-third (Vs) undivided interest in all of the lands that were described in the two (2) Complaints. Due to the large acreage, the Court is of the opinion said lands may be equitably divided among the owners without a sale of said lands.”

The decision of the trial court is in accordance with the evidence of record and the applicable law. The judgment is affirmed.

AFFIRMED.

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

      . Minnie Strother died prior to the trial of the case, leaving all of her property to her sons Claude Strother and John Strother, Jr. John Strother, Jr., also died prior to trial. Claude Strother is the executor of both estates.