text:
    John L. SMART v. STATE of Mississippi.
    No. 55266.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    John L. Smart, pro se.
    Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    A.C. LAMBERT, Sr., Chairman, Mississippi State Tax Commission v. SHELL OIL COMPANY.
    No. 55214.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Gary W. Stringer, James H. Haddock, Bobby R. Long, Jackson, for appellant.
    Jack W. Brand, Justin L. Cox, Kenneth Harmon, Gerald, Brand, Watters, Cox & Hemleben, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

Affirmed.


text:
    Dorothy Mae BRISTER v. STATE of Mississippi.
    No. 55280.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Thomas H. Scruggs, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Frankie- Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; James Bell, County Judge Acting Circuit Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

Affirmed.


text:
    FIRST NATIONAL BANK OF LUCEDALE v. Aline BROCKWAY, Administratrix of the Estate of Y.D. Brockway, Deceased.
    No. 54529.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    William T. Bailey, Lucedale, for appellant.
    Mark A. Maples, Gordon & Myers, Pasca-goula, for appellee.
   Appeal from Chancery Court, George County; Robert H. Oswald, Chancellor.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

Affirmed.


text:
    Wilbur B. McKEE v. CIRCUIT COURT.
    No. 55299.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Wilbur B. McKee, pro se.
    Edwin Lloyd Pittman, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

Affirmed.


text:
    Mrs. Inez HUFF v. Dr. Octavius D. POLK.
    No. 54526.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    John A. Nichols, Banks & Nichols, Jackson, for appellant.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

William E. Ready, Jr., Ready & Pritch-ard, Arlo Temple, Meridian, for appellee.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Johnny ARMSTRONG v. STATE of Mississippi.
    No. 55254.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Gaines S. Dyer, Dyer, Dyer & Dyer, Greenville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Gray Evans, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

Affirmed.

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


text:
    Richard Earl SPURLOCK v. STATE of Mississippi.
    No. 55259.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    William E. Tisdale, Biloxi, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.

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


text:
    Robert Gene CLEMTS v. Raymond B. WATKINS, Administrator of Estate of Mrs. W.A. Wallace, Deceased.
    No. 55307.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    George E,- Gillespie, Jr., Gillespie & Rogers, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.

SULLIVAN, J., not participating.


text:
    Anthony R. DUNSON v. STATE of Mississippi.
    No. 55472.
    Supreme Court of Mississippi.
    Dec. 12, 1984.
    Houston J. Patton, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilburn, Judge.

Before PATTERSON, C.J., and WALKER and ROY NOBLE LEE, P.JJ.

AFFIRMED.


author: MADDOX, Justice.

text:
    ARMY AVIATION CENTER FEDERAL CREDIT UNION v. James E. POSTON.
    82-1233.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    Rehearing Denied Nov. 21, 1984.
    Stephen T. Etheredge of Johnson, Hus-key, Hornsby & Etheredge, Dothan, for appellant.
    Richard W. Whittaker and Stafford Pittman of Pittman, Whittaker & Pittman, Enterprise, for appellee.
   MADDOX, Justice.

The issues on appeal are whether the mortgages between the appellee (Poston) and the appellant (Army Aviation Center Federal Credit Union) were contracts susceptible to breach and whether the jury correctly concluded that the contracts were breached, and, next, whether the trial court erred in denying defendant’s motion for a directed verdict as to the misrepresentation count of appellee’s complaint. We agree with the trial court’s determination that the mortgages were contracts which the jury could find were breached, but we find that the trial court erred in denying defendant’s motion for a directed verdict as to the misrepresentation count of Poston’s complaint. Even though we find that the jury could have found that the contracts were breached, we, nevertheless, reverse and remand, because the jury returned a general verdict and the Credit Union had specifically requested the trial court to direct a verdict in its favor on the misrepresentation count.

Poston, individually, and d/b/a Jim Po-ston Homebuilders, Inc., borrowed money from the Army Aviation Center Federal Credit Union for the purpose of constructing certain apartment units in the city of Enterprise. At the time Poston acquired the initial construction loans from the Credit Union, he anticipated acquiring permanent financing for the apartment units; however, after he acquired the construction loans, the interest rates charged on real estate transactions escalated and Poston was unable to obtain permanent financing.

In late 1979, or early 1980, the notes representing the construction financing became due. At that time Poston conferred with Tom Carter, the president of the Credit Union, regarding an extension of the due date of the notes. In April 1980, a formal extension agreement was entered into between Poston and the Credit Union.

After the expiration of the extension agreement, Poston contacted Carter, seeking the Credit Union’s permission to have the apartment units converted into townhouses. Carter encouraged Poston to convert the apartments into townhouses at a cost of $2,500.00. At this time Poston and Carter discussed the fact that the market was unsettled with respect to interest rates, which meant fewer potential buyers. Poston was under the impression that an understanding and agreement had been reached between him and Carter that he would be given a reasonable period of time to dispose of the townhouse units after converting them.

In the fall of 1980 Carter first mentioned foreclosure to Poston. At that time Poston had a potential buyer for one unit, but Carter refused to allow the townhouses to be sold as individual units. In October or November of 1980, the Credit Union employed J.E. Sawyer, an attorney, to pursue the collection of the notes and to foreclose the mortgages, if necessary. At this time Poston had the townhouse units listed under a contract with Nelson Tucker at a price of $235,000. This price would have enabled Poston to pay the $198,000 indebtedness and to recover money he had invested in the project.

In December 1980, Poston went to see the Credit Union’s attorney regarding expenses and the legal fees of foreclosure. The Credit Union’s attorney quoted a fee of over $20,000. At that time, Poston expressed outrage over this quoted fee. He also made sure that the Credit Union was aware of the fact that had the substantial attorney’s fee not been involved, Tucker was financially able, willing, and ready to acquire the property.

On December 20, 1980, the foreclosure of Poston’s property was completed. James E. Poston and Jim Poston Homebuilders, Inc. then filed a complaint alleging misrepresentation and/or deceit, outrageous conduct, bad faith breach of contract, and breach of contract. Poston later amended his complaint by adding a fifth claim, alleging breach of an oral agreement and interference with a contractual relationship between James E. Poston, Jim Poston Home-builders, Inc., and Nelson Tucker.

At trial the Credit Union moved the court to direct a verdict in its favor at the close of Poston’s case. This motion was granted by the trial court with regard to those counts of the complaint denoted as “second claim,” “third claim,” and “fifth claim,” but denied as to the “fourth claim” and “first claim.” The jury returned a verdict for Jim Poston Homebuilders, Inc. and James E. Poston for $65,000. The Credit Union then moved the court for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. This motion was denied by the trial court. The Credit Union then filed a notice of appeal.

The first issue raised by the Credit Union is whether the mortgages given by Poston to the Credit Union were contracts between the parties susceptible to breach. The Credit Union argues that the provision of the mortgages relating to attorney’s fees in the event of a default is unilateral and is intended as a promise of indemnity from the mortgagor to the mortgagee, and is not a contract, and that in the absence of a contractual obligation there is no foundation for appellee’s action for breach of contract. The appellant also contends that the attorney’s fee charged in conjunction with the foreclosure of Poston’s mortgages were reasonable and that there was no evidence from which the jury could have determined that a breach of the contracts occurred.

We hold that the provisions regarding reasonable attorney’s fees are terms of the contracts susceptible to breach. This Court, in Taylor v. Jones, 290 Ala. 268, 276 So.2d 130 (1973), cert. denied, 414 U.S. 879, 94 S.Ct. 126, 38 L.Ed.2d 124 (1973), quoting from White v. Blair, 234 Ala. 119, 173 So. 493 (1937), held that the claim for an attorney’s fee is as much a part of the contract as any other feature of it; therefore, the Credit Union’s contention that the provision relating to attorney’s fees is intended as a promise of indemnity and, therefore, was not a contract provision, is erroneous.

Because the case may be retried after our remand, we set forth some principles of law which govern whether an attorney’s fee is reasonable. In King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952), this Court set forth the standard to be used in determining whether an attorney’s fee is reasonable:

“[Tjhough in reviewing the propriety of the fixation of such fees by the lower court, this court will be guided by its own judgment upon a consideration of the whole record, Frazer v. First National Bank of Mobile, 235 Ala. 252, 178 So. 441, 126 A.L.R. 1; Dent v. Foy, supra [214 Ala. 243, 107 So. 210 (1925)], we make such review with a presumption in favor of the ruling of the court below and will not set aside its decree unless we are convinced that that court abused the discretion wisely vested in it.”

257 Ala. at 470, 60 So.2d at 52.

The reasonableness of an attorney’s fee was also addressed by this Court in Peebles v. Miley, 439 So.2d 137 (Ala.1983). In Peebles the trial court awarded attorney’s fees of $26,744 as a result of the attorney’s collecting $197,367.88 on a promissory note executed by the defendant. The plaintiffs attorney indicated that he had spent from eight to ten hours in the handling of this litigation. His arrangement with his clients was that he would obtain his fee on a percentage basis from the defendants. This Court held that the $26,744 awarded was not a reasonable fee.

This Court stated in Peebles:

“Over 71 years ago, Justice Somerville set forth yardsticks to be used by our courts in determining reasonable attorney’s fees. He said:
“The general principle is everywhere established that an attorney is in such a case entitled to reasonable compensation for his services, appropriate to his employment, rendered by him to his client. —Humes v. Decatur, Etc., Co., 98 Ala. 461, 470, 13 South. 368. In the estimation of their value many elements may be material for consideration, among which are the nature and value of the subject-matter of the employment; the learning, skill, and labor requisite to its proper discharge; the time consumed; the professional experience and reputation of the attorney; the weight of his responsibility; and the measure of success achieved.
Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912).
“Forty years later, Justice Simpson added an additional criterion to the six criteria above mentioned. King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952). The seventh criterion was that in determining a reasonable attorney’s fee, the trial judge should take into consideration the reasonable expenses incurred by the attorney. Although Justice Somerville mentioned in the Faulk case that the customary charges of lawyers in a particular community should also be taken into consideration in determining a reasonable attorney’s fee, and some cases have stated that the amount of an attorney’s fee could turn on whether the fee was certain or contingent, nevertheless, the codification of the criteria, for the most part, has remained as set forth in the Faulk case. Frazer v. First National Bank of Mobile, 235 Ala. 252, 178 So. 441 (1938); Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266 (1957).” (Footnote omitted.)

439 So.2d at 140.

This Court further stated in that same case:

“Having briefly discussed the most current legal principles dealing with reasonable attorney’s fees, we would like to add one caveat. We agree with the admonition of the American Bar Association to the effect that a ‘fee is clearly excessive when after review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.’ We are of the opinion that $26,-744.00 is in excess of a reasonable fee. As the amount of the recovery increases, the attorney’s fee should be prudently reduced. Otherwise, we would have the anomalous situation of a routine collection of a promissory note of $2,000,-000.00 and an attorney’s fee of $400,-000.00. The determination of a reasonable attorney’s fee should not be done in a wooden, inflexible manner, but should be done so that all factors will be given their proper interplay. Likewise, we are of the opinion that an amount from $2,000.00 to $7,500.00 is inadequate compensation. Somewhere between the $7,500.00 and $26,744.00 lies a reasonable fee in this case.
“Because of the sensitive nature of the problem of attorney’s fees, the litigants and the public would be better served if both attorneys in this case, and their clients, attempted to settle these differences without further resort to the courts.”

439 So.2d at 143-44.

The Credit Union next contends that the trial court erred in denying its motion for a directed verdict as to the misrepresentation count of the complaint. This count of the complaint alleges that the representation made by the defendant, that in the event of a default the defendant would charge to the plaintiffs a reasonable attorney’s fee, was false.

The representation made by the defendant/appellant was not a representation of material fact sufficient to support a cause of action for fraud under the laws of the State of Alabama. The cause of action for fraud and misrepresentation is granted by Code 1975, § 6-5-100, et seq. In construing the cause of action created by § 6-5-100, the courts have required the following as the critical elements of an action for fraud:

“(a) [A] false representation [usually] concerning an existing material fact, ...;
“(b) representation which (1) the defendant knew was false when made, or (2) was made recklessly and without regard to its truth or falsity, or (3) was made by telling plaintiff that defendant had knowledge that the representation was true while not having such knowledge, Hockensmith v. Winton, 11 Ala. App. 670, 66 So. 954 (1914);
“(c) reliance by the plaintiff on the representation and that he was deceived by it, Bynum v. Rucker, 235 Ala. 353, 179 So. 241 (1938);
“(d) reliance which was justified under the circumstances, Fidelity & Cas. Co. v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669 (1943);
“(e) damage to the plaintiff proximately resulting from his reliance. Smith v. Smith, 266 Ala. 118, 94 So.2d 863 (1957).”

First Virginia Bankshares v. Benson, 559 F.2d 1307, 1313 (5th Cir.1977), rehearing denied, 564 F.2d 416 (5th Cir.1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978).

That the attorney fee provision related to a future event cannot be questioned. The payment of attorney fees was contingent upon (1) the absence of proper payment by Poston (2) the declaration of a default by the Credit Union, and (3) the employment of an attorney by the Credit Union for foreclosure and collection of the indebtedness. Therefore, the representation, if there was one, was not with regard to an existing material fact at the time the mortgage was executed.

This Court in Clanton v. Bains Oil Co., 417 So.2d 149 (Ala.1982), dealt with the situation in which the representation did not concern an existing material fact but instead involved a future act or event. An additional burden is added to the party alleging misrepresentation in cases which involve a future act or event.

“In order for promises or opinions to constitute fraudulent misrepresentations, there must have been at the time the representations were made an intention not to do the act promised, and such promise or opinion must have been given with intent to deceive. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953). A promise, to constitute fraud, must be made with the intent not to perform it. Schwab v. Carter, 226 Ala. 173, 145 So. 450 (1933).
“While a plaintiff may meet, by circumstantial evidence, this burden of proving a present intent not to perform a future act as promised, the circumstances shown by the evidence of record must be such that the jury, as reasonable persons, may fairly and reasonably infer the ultimate fact sought to be proved.”

417 So.2d at 151. In this case, there is a total absence of any evidence of probative value tending to show the Credit Union’s intent to deceive or its intent not to perform as promised; therefore, the trial court should have granted the Credit Union’s motion for a directed verdict.

The case was submitted to the jury on the breach of contract count and on the misrepresentation count. The jury returned a general verdict. The law of Alabama applicable when a cause is submitted to the jury on more than one count and a general verdict is returned, is stated in Estes v. Nix, 401 So.2d 64 (Ala.1981), as follows:

“Under Alabama law, if a complaint contains a claim for relief that is supported by the evidence and one that is not, the defendant must challenge the claim not supported by the evidence by way of a motion for directed verdict, specific to the claim not supported by the evidence, and setting out the grounds for such motion with specificity. See, Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App.1976); Nashville, C. & St. L. Ry. v. Farell & Braley, 14 Ala.App. 380, 70 So. 986 (1915). Otherwise, if both claims go to the jury, and if a general verdict is returned, the court will presume that the verdict was rendered on the valid claim. Thrasher y. Darnell, 275 Ala. 570, 156 So.2d 922 (1963); Holley v. Crow, 355 So.2d 1123 (Ala.Civ.App.1978); Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976). Because defendant’s motion for directed verdict was specific as to the misrepresentation claim, alleging that plaintiffs failed to produce even a scintilla of evidence of misrepresentation, the Court of Civil Appeals’ reversal of the judgment, 401 So.2d 62, was proper, and there is no need for the writ of certiorari to issue.”

401 So.2d at 65.

Because the Credit Union’s motion for directed verdict was specific as to the misrepresentation count, we must reverse the judgment in this cause. In reversing the judgment, we note that the trial judge expressed “serious reservations” about submitting the misrepresentation count to the jury, as is shown by the record:

“THE COURT: All right. All I am going to do is call it like I see it. That’s all you all expect me to do. I am going to grant the directed verdict on the second count, on the third count, and the fifth count. I am going to leave in breach of contract count. I am going to leave in the fraud, although I have some serious reservations about leaving in the fraud. I am not sure it’s there.
“MR. PITTMAN: We’ll take our chances, Your Honor.
“THE COURT: I am going to leave it in, but I’m going to grant the directed verdict as to Count 5 — what’s called the fifth claim in here, the third claim, and the second claim, leaving in the fourth claim, breach of contract, and the first claim which is misrepresentation and fraud and deceit. I am leaving them in there.”

The judgment is due to be reversed and the • cause remanded.

REVERSED AND REMANDED.

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


author: MADDOX, Justice. MADDOX, Justice.

text:
    Jereme Lynn KENT, a minor of the age of 4 years, and his father and next friend, Gary Lynn Kent v. Howard Lee SIMS, Jr.
    83-376.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    After Remand Nov. 21, 1984.

      Judy D. Thomas, Oneonta, for appellants.
    Alexander M. Smith, Oneonta, for appel-lee.
   MADDOX, Justice.

The issue presented on this appeal is whether the trial court, in a non-jury action, erred in granting a motion for a “directed verdict” in favor of the defendant in a dog bite case.

Appellant Gary Lynn Kent filed a complaint on his own behalf and on behalf of his minor son as father and next friend of Jereme Lynn Kent, alleging that appellee Howard Lee Sims, Jr. was negligent in failing to keep his dog properly confined. The Kents further alleged that the dog in question had a reputation for dangerous propensities, and that the owner of the dog, Sims, knew of these dangerous propensities. Young Jereme Lynn Kent was bitten by the dog on February 28, 1982, while he and his father were in Sims’s home. The father testified that the child was lying on the floor next to the dog, a Doberman, when the incident occurred. After the child was bitten, he was taken to Blount Memorial Hospital for treatment.

Pictures depicting the child’s injuries were introduced into evidence.

The father testified that he had known the dog in question approximately ten months and had the opportunity to observe the dog “a couple of hundred times.” He testified that on several occasions prior to this incident he had seen the dog fighting with other dogs, but admitted he had never before seen the dog attack a person. Kent and his family had been frequent visitors in the Sims home and each time the dog was present, but was not confined.

The case was tried without a jury, and at the conclusion of the Kents’ evidence, Sims moved for a “directed verdict,” which we will treat as a motion for involuntary dismissal under Rule 41(b) Ala.R.Civ.P., because the case was tried without a jury. This motion was granted. The Kents’ motion for a new trial was denied.

As previously stated, the issue is whether the trial court erroneously entered a judgment in favor of the dog owner, Sims. In comparing a Rule 41(b) motion to a motion for a directed verdict, the Chaney court stated that “[a] Rule 41(b) motion to dismiss is not the equivalent of a Rule 50 motion for a directed verdict, nor is the role of the trial court the same.” Chaney v. General Motors Corporation, 348 So.2d 799, 801 (Ala.Civ.App.1977). The committee comments to Rule 41 elaborate on this distinction as follows:

“[I]n a jury case, Rule 50 applies and the court is limited to a question of law (thereby preserving jury trial right) as to the sufficiency of plaintiff’s prima facie case. In a non-jury case, the court, under Rule 41(b), as ultimate trier of fact, is free to weigh the evidence and the credibility of the witnesses.”

Ala.R.Civ.P. 41(b), Committee Comments (citing O’Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.1961)).

The Kents claim that the trial court should have viewed the evidence, and all reasonable inferences from it, in the light most favorable to their position. In Chaney, supra, a case similar to the case at bar, the plaintiff raised the same argument. Addressing this argument, the Chaney court stated:

“In this case the trial court was the trier of the facts, and in considering the evidence was not bound to view it in a light most favorable to the plaintiff, with all attendant favorable presumptions, but was bound to take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as he believed it entitled to receive.”

Quoting Allred v. Sasser, 170 F.2d 233, 235 (7th Cir.1948).

This rule must be read in conjunction with the ore tenus rule. Thus, the trial court's ruling need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust. Peterson v. Jefferson County, 372 So.2d 839 (Ala.1979). In Peterson, this Court addressed the scintilla evidence rule, which the Kents contend should have been applied in this case. In Peterson, the Court held:

“The appellants finally contend that the action of the trial court in granting a motion for directed verdict was improper since they presented more than a scintilla of evidence to support their claims. Rule 50(c), ARCP. While their contention may be correct when there is a jury trial, this case was tried in a non-jury setting and we consider the appellees’ motion to dismiss under Rule 41(b), ARCP.
Here the trial judge is the trier of fact and he weighs the evidence and credibility of witnesses. Committee Comments, Rule 41, ARCP. This rule, considered in conjunction with [the] ore tenus rule allows us to reverse the judgment of the trial court only where that judgment is palpably erroneous.”

372 So.2d at 844.

The trial court granted Sims’s motion on the grounds that the Kents failed to prove negligence or actual expenses incurred as damages. The trial court’s judgment is supported by credible evidence.

Recently, this court summarized the elements necessary to impose liability in dogbite cases:

“ ‘[The Court of Appeals] in Kershaw v. McKown, 12 Ala.App. 485, 68 So. 559 (1915), reiterated the common law rule that the owner of a dog is not liable for acts of the dog unless the owner had knowledge of the vicious propensities of the dog that resulted in the injury complained of. ... This Court held in Owen v. Hampson, 258 Ala. 228, 62 So.2d 245 (1952), that the common law rule was still applicable in Alabama. The most recent case is Reddett v. Mosley, 45 Ala.App. 38, 222 So.2d 369 (1969), wherein the Court of Civil Appeals stated: “The rule is one of judicial notice and requires proof of the defendant’s knowledge (actual or imputed) of the domestic animal’s dangerous propensity as a sine qua non in the elements of the claimed negligence.” 45 Ala.App. at 40, 222 So.2d at 370.
<< * * *
“ ‘Appellant cites Owen v. Hampson, in which this Court, quoting from a previous opinion, stated:
“ ‘ “Previous knowledge of the animal’s vicious habits must be alleged and proved. But positive proof is not always necessary. It may be inferred from the circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of” ’ ”

White v. Law, 454 So.2d 515 (Ala.1984).

Here, the only evidence presented at trial relating to the vicious propensities of this animal was that the animal would fight with other dogs. The father of the child bitten admitted that he had observed the dog in question “a couple of hundred times” but had never before seen it attack a person and admitted that he did not know of any such incident involving the dog prior to this incident. The trial court was authorized. to find from the evidence that the dog’s prior actions were insufficient to place Sims on notice or give him any reason to know of the dog’s dangerous propensities. Consequently, we will affirm the trial court’s finding that the owner of the dog was not liable for the injury if the case was tried on the theory of common law liability for negligence.

The Kents contend, however, that the case should be decided on appeal by considering the provisions of Code 1975, § 3-6-1, which create liability for the owner of a dog for injuries to a person who is bitten by the dog while on the owner’s premises. The owner of the dog, Sims, in his brief on appeal, contends that the Kents are attempting to have the appeal considered on a theory different from the theory upon which the original trial was had. It is, of course, the law that a case will not be reviewed here on a theory different from that on which it was tried below. Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974).

It appears that the case was tried on the theory of common law liability for negligence, but we cannot conclude, as a matter of law, that the Kents did not argue the applicability of Code 1975, § 3-6-1, et seq. in the trial court.

The defendant Sims, in his motion for a directed verdict, set forth a ground that “[t]he plaintiff has totally failed to prove the elements of a common law negligence case, specifically there has been no proof of negligence or the breach of any duty owed by the Defendant to the Plaintiff.”

The trial judge, in his order, made the following findings and conclusions:

“The case was called for trial and the Plaintiff presented his case. At the close of the Plaintiff’s case, the Defendant made a motion for a directed verdict and stated his specific grounds in support of said motion. Upon consideration of the legal evidence presented by the Plaintiff and the Motion for Directed Verdict, the Court finds that the Plaintiff has failed to prove any negligence on the part of the Defendant which would entitle the Plaintiff to a judgment against the Defendant on the theory of negligence. * *”

The plaintiffs filed a motion to set aside the order and grant them a new trial, and in their motion for new trial stated that “[tjhis Court ruled that Sections 3-6-1, 3-6-2, and 3-6-3 of the 1975 Code of Alabama are unconstitutional, and this ruling is not reflected in the court order granting the directed verdict motion of the defendant.” The trial court, on November 8, 1983, entered an order which stated: “After hearing arguments from both counsel on Motion for New Trial, be it ordered that Motion for New Trial be denied.”

Because we cannot conclude, as a matter of law, that the case was not tried on the theory of liability set out in Code 1975, § 3-6-1, et seq., we conclude that it would be just to remand the cause to the trial court with directions to certify to this Court within 28 days (4 weeks), the theory upon which the case was tried. After we receive the certificate from the trial court, we will decide the case based upon the theory upon which the case was tried below.

REMANDED WITH DIRECTIONS.

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

AFTER REMAND

MADDOX, Justice.

After remand, the trial court certified to us the following order:

“This cause comes back before the Court by the Order of the Supreme Court of Alabama as opined in the case of Jereme Lynn Kent, et al. v. Howard Lee Sims, Jr., Case Number 83-376, filed September 7, 1984, remanding the previous decision of this Court with directions that this Court certify the theory upon which the case at bar was tried. In consideration of the Supreme Court’s Order remanding this case, the Court has given a careful review of all of the pleadings filed in this case, the bench notes and other entries made in the Court file, and a careful review of the transcript of all of the testimony and evidence offered by both parties to this cause.
“The Plaintiffs’ pleadings in the case at bar set forth a common law negligence action demanding damages on behalf of both the minor child and his father for injuries sustained by the minor child as the result of a dog bite inflicted by an animal belonging to the Defendant. All of the Plaintiffs’ evidence offered at the time of trial was directed to proof of the common law negligence action. The Court granted the Defendant’s Motion for Directed Verdict since the Plaintiff failed to prove by competent evidence all of the requisite elements of a common law negligence action.
“The Plaintiff did not plea[d] nor offer any proof of the cause of action existing by virtue of Section 3-6-1, et seq., Code of Alabama, 1975, as amended. The Plaintiff and the Defendant joined issue on the Plaintiff’s pleadings and the Plaintiff offered no proof of the elements of the statutory cause of action set forth in Section 3-6-1 during the presentation of the Plaintiff’s case. The Plaintiff did not interject the statutory code provisions until the Plaintiff had rested his case and there was oral argument on the Defendant’s Motion for Directed Verdict.
“The issue of liability under Title 3-6-1, et seq., of the 1975 Code of Alabama, was not raised by the Plaintiff until after resting of Plaintiff’s case and during arguments on Defendant’s Motion for Directed Verdict. This court carefully considered the applicability of said Code Section to the proof offered in said cause and is of the opinion that there was no evidence presented that would justify a verdict in behalf of the Plaintiff. Under the provisions of Section 3-6-1, et seq., the Plaintiff failed to offer the necessary proof to justify relief in behalf of Plaintiff as an invitee on the premises of the Defendant nor did the Plaintiff offer any evidence as to the actual expense as provided in Section 3-6-3, 1975 Code of Alabama.
“The case at bar was tried upon the common law negligence theory as set forth in the Plaintiff’s Complaint.”

Upon consideration of this order, we affirm, having already determined that the Kents are precluded from recovery on a theory of common law negligence.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Lloyd C. THOMPSON, Administrator of the Estate of Cornelia Elizabeth Thompson, deceased, v. Dr. S.E. JARRELL.
    83-405.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Rehearing Denied Nov. 21, 1984.

      Roger S. Morrow of Whitesell, Morrow & Romine, Montgomery, and Ted Taylor, Prattville, for appellant.
    Richard B. Garrett of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   SHORES, Justice.

This is a wrongful death medical malpractice action. The plaintiff appeals from a judgment entered on a jury verdict in favor of the defendant physician. We reverse and remand.

The case arose from these facts:

At 8:15 p.m., Wednesday, November 28, 1979, Cornelia Thompson was taken to the St. Margaret’s Hospital emergency room in Montgomery, complaining of severe lower abdominal pain, fever and chills, and discomfort in urinating. She was examined by Dr. S.E. Jarrell, the defendant herein. Dr. Jarrell diagnosed Mrs. Thompson’s condition as a lower urinary tract infection, known as cystitis, and prescribed an antibiotic. He instructed Mrs. Thompson to have her urine rechecked in six days, and at 10:55 p.m. allowed her to go home.

Mrs. Thompson did not begin taking the medication until Thursday morning, according to testimony by her husband, Lloyd C. Thompson, because at the time of her release from the emergency room, there were no pharmacies open. Mrs. Thompson continued to experience pain and discomfort and later that day called the hospital. According to her husband, Mrs. Thompson was told by someone at the hospital to give the medication time to take effect.

Mrs. Thompson continued to take the medication the next day, Friday, November 30, and there is conflicting testimony as to whether she felt better that day. That evening, Mrs. Thompson went to bed after taking her medication and the next morning was found dead in bed.

An autopsy was performed which determined the cause of death to be acute pyelo-nephritis, a kidney infection.

Dr. Allan Jay Kogan, a physician who specializes in emergency room medicine, testified that, in his opinion, Dr. Jarrell negligently failed to diagnose the kidney infection. According to Dr. Kogan, had the condition been treated in time, Mrs. Thompson’s death could have been prevented.

The autopsy also revealed the presence of various central nervous system depressant drugs in Mrs. Thompson’s body, including 196 mg. of diazepam (valium) in her stomach, ethchlorvynol (placidyl) in her urine, and codeine from Tylenol # 3 tablets prescribed by Dr. Jarrell for pain. Dr. Kogan testified that the large amount of diazepam in the stomach could have been caused by an intestinal blockage which prevented the drug, which Mrs. Thompson had been taking over a period of time, from entering the intestine.

Dr. John Emory Campbell, an expert who testified in behalf of Dr. Jarrell, testified over objection that, in his opinion, Mrs. Thompson died not from a kidney infection but from a voluntary drug overdose. According to Dr. Campbell, when depressants like those found in Mrs. Thompson’s body are taken together, the risk of overdose is greatly increased.

In addition to his testimony concerning drugs found in Mrs. Thompson’s body, Dr. Campbell was allowed to describe the properties of drugs found in Mrs. Thompson’s kitchen cabinet. With respect to chloral hydrate, a drug found in the kitchen cabinet, but not tested for in Mrs. Thompson’s body, Dr. Campbell stated:

“All right. Chloral hydrate is a drug that’s commonly used as a sleeping pill. It’s a very old medication; been used for many, many years. It’s the old knockout drops they used to mix with alcohol. It has a rapid onset of action. It causes deep coma in overdose. And it has been known to cause death after as few as eight capsules in an adult.”

At the conclusion of his testimony concerning drugs found in Mrs. Thompson’s body and in the kitchen cabinet, Dr. Campbell responded to the following question:

“Q. Dr. Campbell, based on your training in pharmacology in undergraduate school and in pharmacy with a pharmacy degree from Auburn University, your training in medical school including a course in pharmacology, based on your experience as a Board member of the Alabama Poison Control Council, based on your experience in treating — well, let me ask you this: Do you have occasion to treat drug overdoses on a regular basis in the course of your duties as an emergency room physician?
“A. Yes.
“Q. And based on that experience of regularly dealing with drug overdose cases, do you have an opinion as to the cause of death in Mrs. Thompson’s case?
“A. Yes.
“MR. TAYLOR: We object.
“Q. What is that opinion?
“MR. MORROW: Your Honor, we object.
“THE COURT: Overruled.
“MR. MORROW: May I state my grounds, for the record?
“THE COURT: Yes.
“MR. MORROW: For the record, that’s not a proper hypothetical. It doesn’t set forth the facts upon which you could base that determination. There has been no predicate laid [that] [t]his man performs autopsies, no predicate that he has done any of the tests in this particular report he has been examining. There is no sign that he has any experience or expertise upon which to base such an opinion.
“THE COURT: Overruled.
“Q. What is your opinion, Dr. Campbell?
“A. That she died of a voluntary drug overdose.
“Q. A voluntary drug overdose?
“A. Yes.”

The trial court erred in overruling the objection to this question. There was simply no predicate laid for the admission of this expert's testimony.

Our cases are consistent in holding that an expert witness may give opinion testimony based upon either facts of which he has personal knowledge or facts which are assumed in a hypothetical question. Alabama Power Co. v. Robinson, 447 So.2d 148 (Ala.1983), reh’g denied; Yates v. Christian Benevolent Funeral Homes, Inc., 356 So.2d 135 (Ala.1978). See, C. Gamble, McElroy’s Alabama Evidence § 130.01 (3d ed. 1977). In either event, “the facts known to the expert or hypothesized] must be facts in evidence.” Hagler v. Gilliland, 292 Ala. 262, 265, 292 So.2d 647 (1974).

The defendant argues that Dr. Campbell had personal knowledge of the “data” in this case, based on his review of medical reports regarding Mrs. Thompson, all of which were in evidence prior to his testimony. Although it is not clear from the record that Dr. Campbell’s observation of the evidence in this case constitutes personal knowledge, as contemplated by our decisions, we note that he did not state the facts on which his opinion was based. Nor was the question predicated upon stated hypothetical facts.

We recognize that a hypothetical question is not objectionable merely because it fails to include every fact shown by the evidence, Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968), but it must incorporate “sufficient facts in evidence upon which an expert opinion can fairly be based.” Barfield v. Wright, 286 Ala. 402, 240 So.2d 593 (1970). Here, it is clear from the record that no attempt was made to hypothesize the facts on which Dr. Campbell’s opinion was based.

It was also error to allow Dr. Campbell to testify that, in his opinion, Mrs. Thompson died of a voluntary drug overdose. In order for expert testimony to be helpful to the trier of fact, it must appear that the subject matter is beyond the ken of the average layman. Thomas v. State, 249 Ala. 358, 31 So.2d 71 (1947); Hicks v. State, 247 Ala. 439, 25 So.2d 139 (1946). The determination of “voluntariness,” if relevant at all, should be left to the jury.

Because the court erred in allowing this evidence, its judgment is reversed, and the cause is remanded.

REVERSED AND REMANDED.

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

      . The hospital was also named as a defendant, but was later dismissed pursuant to a settlement. The hospital is, therefore, not involved in this appeal.

      . In Cotton v. Gamble, 355 So.2d 350 (Ala.1978), for example, a treating physician was allowed to give opinion testimony based on a physical examination of a party. This first-hand knowledge made it un necessary to hypothesize the facts on which the physician’s opinion was based.


author: SHORES, Justice. JONES, Justice

text:
    Chester S. NORRIS, Jr. v. Jerry TAYLOR and Kenneth Hays.
    83-749.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Rehearing Denied Nov. 21, 1984.

      Robert J. Hayes of Tipler, Johnson, Ro-den, Hayes & Cory, Birmingham, for appellant.
    Lyman H. Harris and Lynette E. Lamb of Harris & Evans, Birmingham, for appel-lees.
   SHORES, Justice.

This is an appeal filed by plaintiff, Chester S. Norris, Jr., from a summary judgment in a personal injury action in favor of co-employee defendants Jerry Taylor and Kenneth Hays. We affirm.

The sole issue in this case is whether Alabama or Kentucky substantive law governs, under Alabama choice of law principles, where the alleged act or omission complained of occurred in Alabama, and the injury arising therefrom occurred in Kentucky. We conclude that Kentucky substantive law governs.

The facts are not in dispute.

At the time of his injury, Norris, an Alabama resident, was employed by Quality Painting and Decorating, Inc., an Alabama corporation with its principal place of business in Jasper. Quality does business in Alabama, but performs a substantial amount of work at job sites outside this state. Norris was injured while working for Quality at a job site in Kentucky when the ladder upon which he was standing collapsed. The ladder and various other supplies for the Kentucky job were ordered by Quality and delivered to it within the State of Alabama.

Norris filed suit in the Circuit Court of Jefferson County, Alabama, on July 10, 1982, against the manufacturer of the ladder, the distributor of the ladder, and against two of his co-employees, Taylor and Hays. The count against Taylor and Hays alleged that they were responsible for supervising employees for Quality and enforcing safety standards, and that they negligently or wantonly selected an unsafe ladder for the Kentucky job.

Taylor and Hays filed an answer which contained the defense that Kentucky law applies to the action against them and that Kentucky law forbids co-employee suits. They then filed a motion for summary judgment, which was granted by the trial court and entered as a final judgment pursuant to Rule 54(b), A.R.Civ.P.

It is well settled that the traditional conflict rule of lex loci delicti applies to tort actions brought in this jurisdiction. Bodnar v. Piper Aircraft Corp., 392 So.2d 1161 (Ala.1981). Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Mullins v. Alabama Great Southern R.R. Co., 239 Ala. 608, 195 So. 866 (1940); Dawson v. Dawson, 224 Ala. 13, 138 So. 414 (1931); Alabama Great Southern R.R. Co. v. Carroll, 97 Ala. 126, 11 So. 803 (1892).

Norris does not deny that he sustained his injuries in the State of Kentucky. He argues instead that the wrongful act complained of — the negligent or wanton conduct — occurred in Alabama, and hence Alabama is the proper situs of the tort for purposes of the lex loci delicti rule. We do not agree.

Alabama Great Southern Railroad Co. v. Carroll, supra, is dispositive of the issue before us. There, a brakeman for the defendant railroad was injured when a link connecting two freight cars broke, causing the cars to uncouple. The accident occurred in Mississippi, yet evidence indicated that the link was defective when the train left Birmingham, Alabama, and that employees of the defendant failed to discover the defect. The Court held that where an injury occurs in a jurisdiction other than where the wrongful act or omission took place, the law of the jurisdiction where the injury was sustained controls. This represents the majority view of jurisdictions that apply the lex loci delicti doctrine. See An-not.,'53 A.L.R.2d 1273, § 3 (1961).

It is undisputed that Norris received his injuries in Kentucky, where co-employee suits are barred. We conclude, therefore, that the trial court correctly granted summary judgment in favor of defendants Taylor and Hays.

AFFIRMED.

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

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result).

I concur in the result. I agree that the opinion of the Court sets out and applies the general conflict of laws rule of this State: The applicable law is the law of the state where the injury occurred. We have not adopted the “significant interests” rule; nor do I contend for the adoption of this minority view. See Harris Corp. v. Comair, Inc., 712 F.2d 1069 (6th Cir.1983), and Employers Liability Corp. v. Webb, 283 Ky. 115, 140 S.W.2d 825 (1940).

In concluding that the injured employee is barred, under Kentucky law, from proceeding in his third-party claim against co-employees, I would address his argument that Alabama’s workmen’s compensation law, and not Kentucky’s workmen’s compensation law, should govern. I would agree with this conclusion, if his argument were based on the factual premise that the injured employee had elected to pursue his remedy under the Alabama Workmen’s Compensation Act (§ 25-5-35) as opposed to the Kentucky Workmen’s Compensation Act. An exception to the general conflict of laws rules is applicable in a workmen’s compensation context, but only if the injured employee invokes that exception by his election to accept his benefits under the workmen’s compensation act of his state of employment and not of the state where his injury occurred. See Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966). If the instant employee elects to accept payments pursuant to Kentucky’s Workmen’s Compensation Act, he takes the entire Act, its limitations and restrictions, as well as its benefits. Lewis v. American Family Insurance Group, 555 S.W.2d 579 (Ky.1977).

My diligent search of the record fails to disclose any allegations or proof that the employee pursued, or is pursuing, his workmen’s compensation claim under the Alabama Act. Absent the employee’s compliance with this affirmative burden, the trial court did not err in applying the immunity provisions of Kentucky’s Workmen’s Compensation Act. See, also, Code 1975, § 25-5-35(f).

      . Ky.Rev.Stat.Ann. § 342.690 (1980), which provides for co-employee immunity, reads in part as follows:
      "The exemption from liability given an employer by this section shall abo extend to such employer's carrier and to all employes, officers or directors of such employer or carrier, provided the exemption from liability given an employe, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the willful and unprovoked physical aggression of such employe, officer or director." (Emphasis added.)

      . It should be noted that this exception, if invoked, is not all inclusive. The tort law of Kentucky would still govern the third-party action.


author: TORBERT, Chief Justice.

text:
    Ruth L. McLEAN, L.A. McLean, Jr., Individually and L.A. McLean, Jr., as Executor of the Last Will and Testament of Nancy L. Luke, and Louise McLean Wilson v. Marion Luke BRASFIELD, Lillian Luke McKenzie and Jane Luke Boyett.
    83-773.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Rehearing Denied Nov. 9, 1984.

      Marcus E. McConnell, Jr. and William C. Brewer III, Livingston, for appellants.
    - Ira D. Pruitt, Jr. of Pruitt, Pruitt, Watkins & Robinson, Livingston, for appellees.
   TORBERT, Chief Justice.

Ruth L. McLean, L.A. McLean, Jr., and Louise McLean Wilson appeal from an interlocutory decree construing the last will and testament of Mollie Luke in favor of the plaintiffs, Marion Luke Brasfield, Lillian Luke McKenzie, and Jane Luke Boyett, who requested the sale of certain real estate and a division of the proceeds among the joint owners.

Mollie Luke of Sumter County, Alabama, died testate in 1926, and her will, with a codicil thereto, was admitted to probate on April 10, 1926. At the time of her death, Mollie Luke owned 421 acres located near Livingston, Alabama, which was devised by Item Two of her will. That land, called the Luke homeplace, is the subject of this lawsuit.

Mollie Luke was survived by six children. The names, with dates of death of those children who have died since the testatrix’s death, are as follows:

(1) Mary Clanton Luke, a daughter who never married, died on July 13, 1944.
(2) Myrtle Luke, a daughter who never married, died February 1, 1948.
(3) Nancy Luke, a daughter who never married, died on April 27, 1983.
(4) James M. Luke, who died subsequent to the death of Myrtle Luke (1948), and prior to the death of Nancy Luke (1983), was survived by three daughters, Marion Luke Brasfield, Lillian Luke McKenzie and Jane Luke Boyett, the plaintiffs in this suit.
(5) T.M. Luke, an unmarried son, died in 1966, subsequent to the death of Myrtle Luke and prior to the death of Nancy Luke.
(6) Ruth Luke McLean, a married daughter, is now living, and one of the defendants in this suit.

Item Two of the will is composed of five sentences which, for convenience, are here separated and numbered:

1. “I give, devise and bequeath unto my three daughters, Mary Clanton Luke, Myrtle Luke and Nancy Lillian Luke, equally, share' and share alike, my homeplace and land situated about IV2 miles West of Livingston on the Livingston/York public road, TO HAVE AND TO HOLD unto them for and during their natural lives or as long as they remain unmarried.
2. “On the marriage of either of said daughters, her interest in said place shall immediately vest in the remaining unmarried daughters for the term of their natural lives or until they shall marry.
3. “On the marriage of all three, then the property is to be divided among all of my children equally.
4. “Should either of my said daughters not marry, she is to have the said property for and during her natural life and at her death, the property is to be equally divided among all my children.
5. “If any of my children shall have died prior to that time leaving issue then the issue to take the part their parent should have taken if living.”

(Emphasis added.)

On January 8, 1931, T.M. Luke executed and delivered a deed by which he conveyed any interest which he owned in the home-place to his three unmarried sisters, namely, Mary Clanton Luke, Myrtle Luke, and Nancy Luke. Mary Clanton Luke died testate. By her will she devised any interest which she owned in the homeplace to her two unmarried sisters, Myrtle Luke and Nancy Luke. Myrtle Luke died testate. By her will she devised any interest which she owned in the homeplace to her unmarried sister, Nancy L. Luke. Nancy L. Luke died testate. By her will she devised any interest which she owned in the homeplace to her niece, Louise McLean Wilson, and her nephew, L.A. McLean, Jr. L.A. McLean, Jr. is serving as executor of the estate of Nancy L. Luke, deceased. Louise McLean Wilson and L.A. McLean, Jr. are also defendants in this suit.

The plaintiffs claim an undivided-one-half interest in the homeplace as children of James M. Luke. Ruth Luke McLean, surviving child of Mollie Luke and a defendant in this cause, claims an undivided one-sixth interest in the Luke homeplace under the terms of her mother’s will. Louise McLean Wilson and L.A. McLean, Jr., the other defendants, each claim a one-third interest in the homeplace as devisees of Nancy L. Luke.

The question presented for review is whether under the will a remainder interest vested equally in all the testatrix’s children at the time of her death, or whether the will bequeathed the homeplace equally to all her children alive at the time of the death of the last unmarried daughter. In other words, were the remainder interests vested or contingent?

This case was submitted on stipulation of facts and briefs of the attorneys; therefore, no presumption of correctness as to findings of fact will be indulged on review, and it is this Court’s duty to sit in judgment on the evidence. McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).

The polestar to guide a court in the construction of a will is the intent of the testator and that intent should be determined by considering the instrument as a whole and not by construing any subpart separately. Greil Memorial Hospital v. First Alabama Bank of Montgomery, 387 So.2d 778 (Ala.1980). Also, “[ujnless the testator clearly expresses an intention to the contrary, remainders are construed as vesting at the earliest possible moment, generally the death of the testator.” Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359, 1363 (Ala.1977). It seems clear that the testatrix intended to make certain that her unmarried daughters had a homeplace while unmarried or until they died. The only question is whether she intended that upon the termination of the possessory interest of the unmarried daughters, only her children who were then living should share in the property.

In White v. Fowler, 245 Ala. 209, 16 So.2d 399 (1944), this Court addressed a similar situation:

“[T]he only question before us is to determine the meaning of the last sentence in item three of the will in the following language: ‘And after the death or marriage of the last one of my daughters as herein above mentioned (that is, the three named as being then unmarried) then shall my estate both personal and real descend to my heirs in common.’ At the time of the death of the last of three who were not then married, September 8, 1936, some of the other sisters had died and left heirs, but all six survived the testator. The question is whether the will vested a remainder in the sisters effective in interest at the time of the death of the testator, or whether such interest was contingent upon them being alive and an heir of the testator at the time the last of the three unmarried sisters should lose her prior possessory right. The court held that the remainder vested in all the six daughters at the time of the death of testator. In this we concur.
“We have here (we repeat) no provision for survivorship, expressed in the will. It provides for the testator’s ‘heirs,’ but not conditioned upon survival at any time. The will is that the testator’s ‘heirs’ are to have his property at the end of the preceding particular period.”

245 Ala. at 210, 211, 16 So.2d at 400, 401.

We agree with the reasoning in White and believe that the remainder interests here were also vested. The testatrix in sentences three and four indicated that upon the death or marriage of all her unmarried daughters her property was to be divided among all of her children. The provisions of sentence three and four are not conditioned on the children’s surviving until the possessory interest of the unmarried daughters terminates.

The provisions in sentence five, while admittedly not crystal clear, are consistent with the conclusion that the testatrix intended the remainder interests to vest immediately upon her death. As we read sentence five, we think the testatrix intended to make sure that if some of her children are not living at the time the possesso-ry interest of the unmarried daughters terminates then the issue of a deceased child would take in the deceased child’s place. We understand the significance of the term “if living” to be not an attempt to limit the passage of the estate to those children living when the possessory interest terminates, but an expression of the testatrix’s intent that a deceased child’s issue take the same as if the child were living. This interpretation is consistent with the intent expressed throughout the will that the testatrix sought to make special provisions for her unmarried daughters and when they no longer needed such special consideration that all her children should share in her estate.

Therefore, we conclude that the trial court erred in holding that the remainder interests were contingent.

REVERSED AND REMANDED.

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

FAULKNER and EMBRY, JJ., dissent.


author: PER CURIAM.

text:
    TUSCALOOSA ORTHOPEDIC APPLIANCE COMPANY, INC. v. Edward W. WYATT, et al.
    82-1068.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Rehearing Denied Nov. 21, 1984.

      G. Stephen Wiggins of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellant.
    Edward F. Morgan, Tuscaloosa, for ap-pellees.
   PER CURIAM.

Plaintiff and his wife brought an action alleging negligence and wantonness against the defendant, Tuscaloosa Orthopedic Appliance Company, Inc., in connection with the fabrication and application of a leg brace. The jury returned a verdict in favor of the plaintiffs. Defendant appealed. We reverse.-

In 1941, plaintiff Edward W. Wyatt fell out of a tree and broke his back. He recovered to the point that he could walk until complications occurred in 1946, at which time surgery was performed on his back. After the surgery, gradual paralysis occurred in both legs until, in 1957, he completely lost his ability to walk. He then became confined to a wheelchair and has been paraplegic since that time.

Mr. Wyatt began experiencing problems with decubitus ulcers (pressure sores) in 1961. He was hospitalized for more than two months for treatment of decubitus ulcers on his buttocks and was again hospitalized in February of 1979 for a month for treatment of decubitus ulcers over his hips and buttocks.

He was readmitted in May of 1979 for a four-month hospital stay. The hospital course included treatment with different types of medication, whirlpool baths, rotating air mattress, egg crate, sheepskins, and debridement of the wounds. Cultures of the wounds, change of antibiotics, and various combinations of medications were also tried. The treating physician, Dr. Herrod, stated in the discharge summary that

“[The] patient’s ulcers were [a] very vexing problem, as we got one improved somewhat another one seemed to break down. Several communicated along the sacrum in an infectious process. Finally after great effort the wound seemed to be improved except for one area where two rather distant sites connected by a large fistulous like tract.”

Dr. Herrod requested that the home health care nurses of the Tuscaloosa County Health Department call on Mr. Wyatt to assist in the care of his decubitus ulcers. The nurses started calling on him at home in September of 1979 and came on a regular basis thereafter.

Mr. Wyatt was re-admitted to Druid City Hospital on March 27, 1980, for treatment of decubitus ulcers on both hips and over the presacral area. He was discharged on September 5, 1980, having stayed for over five months. The discharge summary of Dr. Herrod indicated that Mr. Wyatt had a dramatic worsening of his presacral ulcer. Numerous changes in therapy were made. Dr. Herrod stated, “After initial cleaning and frustrating tries at promoting closure of the large presacral ulcer, the flap was developed and swung to cover the ulcer. This broke down and again undermining of the ulcer took place.” Again, numerous methods of treatment were attempted.

In March of 1981, Mr. Wyatt fell, injuring his leg. He went to see Dr. E.C. Brock, a Tuscaloosa orthopedic surgeon, on March 20, 1981. The patient had acute cellulitus of the left knee and a comminuted fracture of the left distal femur. Mr. Wyatt was admitted to Druid City Hospital on the same day for immediate treatment of the acute infection and the fractured femur. At the time of admission, the patient had multiple infected areas over the body, which Dr. Brock described as decubitus ulcers. Mr. Wyatt was treated with intravenous antibiotics from March 20 until about April 5 to clear up the cellulitus and get his 104° temperature down.

While Mr. Wyatt was in the hospital, Dr. Brock brought James (Buddy) Mason to Mr. Wyatt’s room and introduced him as being the man who would put the brace on his leg. It was not discussed at that time what kind of brace would be applied.

Mr. Mason is the president of the defendant, Tuscaloosa Orthopedic Appliance Company, Inc. He is an orthotist and has worked for the past seventeen or eighteen years with all the orthopedic surgeons in the West Alabama area. Orthotics includes the fabrication and fitting of braces and casts suitable for a patient in keeping with the instructions of the physician.

Mr. Mason took courses in orthotics at Northwestern University, worked for years under a certified orthotist, and took other courses in the nature of continuing education in the field of orthotics over the past many years. He is certified by the Board of Certification of the American Orthotic and Prosthetic Association, having passed its examination and otherwise having met the requirements and qualifications to become a certified orthotist. The American Orthotic and Prosthetic Association is a national organization for orthotists, and certification by that organization qualifies Mr. Mason to do crippled children’s work for the State of Alabama and vocational rehabilitation work for the Veterans Administration. He is the only such person certified to do that work in West Alabama.

When Dr. Brock discussed Mr. Wyatt’s case with Mr. Mason on April 2, 1981, Dr. Brock orally prescribed a fracture brace to hold the left knee at 90 degrees and stabilize the fracture. Dr. Brock told Mr. Mason that he wanted the usual long leg fracture brace to treat a distal femoral fracture and to immobilize the fracture. In Dr. Brock’s opinion, Mr. Wyatt needed a long leg brace, and a fracture brace was the only option acceptable to the patient.

The day before the brace was applied, Mr. Mason came to Mr. Wyatt’s room and took the necessary measurements. Mrs. Wyatt was present in the hospital room. When she saw the area of her husband’s leg being measured, she complained to Mr. Mason that she did not think he could get in and out of bed if the brace were that high on his leg.

On April 4, Mr. Wyatt was taken to the Druid City Hospital operating room, where Mr. Mason fabricated the fracture brace and fitted it to Mr. Wyatt’s left leg. When Mr. Wyatt complained about the brace coming up so high on his leg, Mr. Mason replied that it had to. The brace had metal pieces on each side of the knee, and Mr. Wyatt also complained that the metal would rub his other leg when he was in bed. This was discussed, and it was decided that a piece of sheepskin could be used to protect the other leg from irritation. The knee area of the brace was left open on the top so that it had a window in the knee. Mr. Mason explained to the patient how the brace should fit and cautioned him to be very careful about its being too tight or too loose because he was paraplegic. Instructions were also given to be careful about the brace constricting the groin area. Mr. Mason gave Mr. Wyatt further warnings and instructions on the brace and told him to watch for any kind of skin problems underneath it.

Mr. Wyatt complained in the operating room about the brace being high on his leg, because he thought it would cause him difficulty in getting in and out of bed, and also because he thought it would prevent him from sitting in his wheelchair. He had no concern at the time about the brace rubbing so as to cause a sore on his stomach, because he was not aware it could do so.

Mr. Mason came to Mr. Wyatt’s room two days later and helped him get out of bed and into a wheelchair. Wyatt made no complaint about the brace at that time. In fact, Mr. Wyatt’s only complaint about the brace at any time was that Mr. Mason put it up too high on his leg.

All of Mr. Wyatt’s decubitus ulcers got worse while he was in the hospital for treatment of the broken leg from March 20 until April 7. In addition to the worsening of the existing ulcers, he developed new sores on his back and left elbow.

Dr. Brock saw the brace and checked it in the hospital. Mr. Mason had put what was ordered on the patient, and Mr. Wyatt was discharged on April 7.

Mr. Wyatt found a sore on his lower abdomen on or about April 23. The next day, Wyatt went to see Mr. Mason, who cut out or molded back a portion of the brace to further separate it from the sore. The sore was fully visible to Mason and was not under the brace, but was at the point where, when Mr. Wyatt folded his leg up toward his chest, the brace touched his abdomen. After the adjustment was made, Mason recommended that Wyatt go see Dr. Herrod to treat the sore.

Wyatt first complained to Dr. Brock of a brace problem four days later, on April 28. When Mr. Wyatt went to Dr. Brock’s office, Dr. Brock sent the patient to Mr. Mason with instructions that more of the brace be cut out or rolled back away from the ulcer. This was done, and Mr. Wyatt then went to see Dr. Herrod for treatment of the ulcer. Dr. Herrod treated the ulcer and then sent him home with instructions to call the county health nurse for assistance.

Nurse Williams talked to Dr. Herrod, who described the ulcer on Mr. Wyatt’s abdomen and also noted that the decubiti on his hips were worse. He requested that assistance be given in caring for the decu-bitus ulcers, all of which had gotten worse after the femur fracture. However, the ulcers on his hips became still worse from April 21 to April 30.

Mr. Wyatt was admitted to Druid City Hospital on May 11, 1981. He had multiple severe decubitus ulcers on the buttocks, both hips, right lower leg, and abdominal anterior wall. Dr. Herrod noted that the patient suffered from recurring bouts of decubitus ulcers and ordered that the fracture brace be removed in order to have Mr. Wyatt placed in the Hubbard tank for physical therapy treatment of his ulcers.

According to Dr. Herrod, the patient could not tolerate the fracture brace, and upon the request of Dr. Brock, Mr. Mason removed it from the leg on May 14. When the brace was removed, there was no sore or ulcer of any kind on Mr. Wyatt’s leg. He was then sent to physical therapy for treatment of the ulcers, and when physical therapist Kathy Hershman saw Mr. Wyatt, he had ulcers on the buttocks, hips, lower right leg and abdomen, but none on his left leg. The patient came to physical therapy without any device on his left leg, but stated that he was wearing splints in his room. Physical therapy treated all of Mr. Wyatt’s ulcers during this hospitalization.

Mr. Wyatt did not wear the fracture brace fabricated by Mr. Mason after May 14. After it was removed in the hospital, Dr. Brock applied splints to Mr. Wyatt’s left leg. Splints are not as effective as the fracture brace, do not encompass the whole leg, and also open at the knee. The splints were taken off twice a day for treatment in physical therapy and then reapplied. After Mr. Wyatt was discharged and went home, he occasionally removed the splints to sleep.

He next saw Dr. Brock in his office on July 6. Although he seemed to be doing well at that time with his splints, the leg started swelling again, and another splint device was tried.

Another ulcer then developed on the knee above the fracture site, and Mr. Wyatt returned to Dr. Brock on July 28. By then the new decubitus ulcer had opened and it extended into the fracture site on his left leg. Still another splint device was placed on his left leg. When Dr. Brock saw the patient in the Druid City Hospital emergency room on August 1, he had a swollen left knee with bloody drainage coming from an opening of one and a half inches on the left knee. The patient was admitted to the hospital that day.

The doctors found during the August 1 admission that the fracture was firm, although it had healed in poor position. However, Mr. Wyatt had infection from the decubitus ulcer in the fracture site. Dr. Brock found that the problem was not the healing of the fracture, but was infection. The patient had had cellulitis in his knee and accompanying fever since treatment began in April. Dr. Herrod agreed that the infection was serious and stated that the patient had developed some sepsis (infection) and that the slightest amount of pressure could cause an ulcer to develop. There was testimony that infection and subsequent amputation are very common in paraplegics, and the longer one is a paraplegic, the greater are his chances that an amputation will become necessary. Dr. Herrod felt the best treatment to be amputation above the site of infection, and this was carried out on August 13, 1981.

Mr. Wyatt was next admitted to Druid City Hospital on December 30, 1981, again for treatment of severe decubitus ulcers, and was discharged on or about February 8, 1982. When Dr. Brock saw him in his office on March 12, 1982, the patient had a large decubitus ulcer and was continuing to have problems with decubitus ulcers.

Prior to application of the brace, Mr. Mason was told by Dr. Brock that the fracture was in the middle femur or slightly distal, which Mason also described as between the knee and the mid-shaft. Dr. Brock described the fracture as being two to four inches above the knee, in other words, close to the knee and extending up the shaft. The kind of brace which should be applied depends upon the location of the fracture.

The fracture brace covered Mr. Wyatt’s entire thigh, because the purpose of a fracture brace is to get as much fixation of the bones as possible. The more tissue contained, the better fixation occurs. In other words, the longer the cuff is, the better the brace is.

Dr. Brock testified that the fracture brace was the best way to exclude the possibility of infection from the patient’s multiple decubiti. According to Dr. Brock, a long leg fracture brace, such as Dr. Brock ordered, usually goes from the toes to the trochanter at the top of the hip, and it should be level with the trochanter, in order to get immobilization. He stated that the brace Mr. Mason put on Mr. Wyatt was the type Mr. Wyatt needed to treat this particular fracture, and that it was what he ordered, and what the patient agreed to. He said that the reason for having a long leg brace like the one Mr. Mason applied was to immobilize the whole leg and get firm fixation, that the window in the knee area of the brace makes no difference, and that as long as there is firm fixation, the open knee does not matter.

Dr. Brock approved the brace and testified that Mr. Mason did nothing improper and, further, that Mason met his requirements on application of the brace. It only takes six hours for a decubitus ulcer to develop, he said, and he saw no relationship between the brace and the decubitus ulcer on Mr. Wyatt’s knee.

In addition to Dr. Brock, who testified that the brace was what he prescribed, another witness, an orthotist from Birmingham, who was qualified as an expert in the field, testified on behalf of Tuscaloosa Orthopedic. Several lengthy hypothetical questions were posed to him. The hypo-theticals were based upon the facts of the ease as they had been produced for the jury. The expert stated that, in his opinion and based upon the facts in the hypothetical, there had been no substandard performance in the application of the fracture brace or in the subsequent maintenance of the brace.

The plaintiffs did not offer any expert testimony. In fact, the only complaint they had with regard to ulcers was that because the brace was too long, it caused the ulcer on Mr. Wyatt’s abdomen. There was no evidence, expert or otherwise, that connected the brace with the infection which developed at the site of the fracture, necessitating the amputation.

The dispositive issue before us, then, is whether expert testimony is required to establish the proper procedure with regard to the fabrication and application of braces by an orthotist. We hold that expert testimony is required. Although orthotists are not specifically mentioned in the Alabama Medical Liability Act, § 6-5-480, et seq., Ala.Code 1975, they are health care providers who provide services as prescribed by physicians for their patients.

Although this case does not involve a physician, it does involve a claim of negligence in the delivery of health care. Therefore, the usual rules relating to medical malpractice are applicable. In a medical malpractice action, “expert medical testimony is required to establish what is and what is not proper medical treatment and procedure.” Gilbert v. Campbell, 440 So.2d 1048 (Ala.1983). An exception to this rule exists “in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.” Dimoff v. Maitre, 432 So.2d 1225, 1226-1227 (Ala.1983), quoting Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 66, 322 So.2d 709, 711 (1975). In the recent decision of Holt v. Godsil, 447 So.2d 191 (Ala.1984), this Court specifically enumerated the types of medical malpractice cases in which expert testimony is not required. None of these exceptions applies here.

The need for expert testimony does not necessarily depend upon the type of profession which the defendant practices. Rather, it is dependent upon whether the average person is able to decide without expert testimony whether or not the procedure followed in any given case falls below the acceptable standard.

Regardless of education and licensing requirements for orthotists, which Mr. Wyatt emphasizes were rather lax at the time that Mr. Mason was certified, a certain degree of skill and knowledge is required. It is this specialized training and knowledge that puts an understanding of the acceptable standard of care in orthotics beyond the common knowledge of the jury. Laymen do not have the background and knowledge without expert testimony to understand whether or not a fracture brace has been properly applied.

We hold that absent expert testimony to establish that Mr. Mason’s performance fell below the acceptable standard for or-thotics, there was no evidence of negligence on the part of the defendant. For this reason, the judgment of the trial court must be reversed.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    Bobby L. HANDLEY and Marlene M. Handley v. Brenda HANDLEY, n/k/a Brenda Handley Richards.
    Civ. 3706.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Rehearing Denied Nov. 30, 1983.

      J. Zach Higgs, Jr. of Higgs & Conchin, Huntsville, for appellants.
    David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellee.
   BRADLEY, Judge.

This appeal concerns a custody dispute between the mother of three children and the children’s paternal grandparents.

Glenn and Brenda Handley were married and lived for a number of years in Arab, Alabama. They had three minor daughters, Tonya, Christy and Summer. In January of 1981 the couple separated and Glenn moved in with his parents, Bobby and Marlene Handley. Shortly thereafter Glenn committed suicide.

After their father’s death, the three girls continued to live with their mother. On August 21, 1981 Bobby and Marlene Hand-ley petitioned for permanent custody of their grandchildren, arguing that it was not in the children’s best interests to remain with their mother. A guardian ad litem was appointed to represent the interests of the children.

On November 80, 1982 the court ordered Mr. and Mrs. Handley, the three girls, and Brenda and her new husband, Jim Richards, to submit to a psychological examination. The examinations were conducted by the court-appointed psychologist and he testified in open court about his findings.

On December 13, 1982 Brenda Handley Richards counterclaimed for . a reasonable attorney’s fee. The Handleys objected to the filing of the counterclaim and amended their original complaint, asking that they be awarded visitation rights with their grandchildren.

After an ore tenus hearing on December 14, 1982, the court denied the Handleys’ request for custody and visitation rights, awarded $7,928 in attorney’s fees to the mother, and ordered the Handleys to pay the court costs, which included a guardian ad litem fee of $1,100.

After the denial of their posttrial motions, the Handleys appeal.

In brief the Handleys argue that the trial court erred in not giving them custody of their grandchildren or visitation with them, in not admitting into evidence a sermon given by Jim Richards, in excluding testimony as to an alleged adulterous relationship between Brenda Handley and Jim Richards, in sustaining objections to questions asked during trial, and in awarding attorney’s fees to Brenda.

In Alabama the welfare and best interests of a child are always the fundamental inquiry in a child custody case. Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980). Moreover, where there are conflicting claims to custody between a parent and a nonparent, the parent has the primary right to custody. Pendergrass v. Watkins, supra. The presumption is that the best interests of a child will ordinarily be served by being in the custody of its natural parent. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (Ala.Civ.App.1973). The party seeking to overcome such presumption has the burden of convincing the trial court that the best interests of the child will be served by placing custody with that party. Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977).

The trial court denied the Handleys’ request for custody; therefore we conclude that the Handleys failed to convince the court that they should have custody of their grandchildren.

Brenda Handley has taken care of her children since she separated from Glenn Handley, her then husband, in January 1981. The children are well cared for, loved, and appear to be happy. The children are afraid of their paternal grandparents, the Handleys, and the oldest child stated that she did not want to live with the Handleys.

The psychologist who interviewed the children stated that the children should remain in the custody of their mother and not be required to visit with the Handleys.

Brenda married Jim Richards in September 1981 and Richards adopted the three children. It appears that the children are well cared for by Richards and they are happy living with him.

The trial court not only refused to give the Handleys custody of their grandchildren but also refused to require that the children visit with them. The Handleys contend that the trial court committed error by denying them visitation.

Paternal grandparents have no legal right to visit with their grandchildren when the natural mother has remarried and the stepfather has adopted the children. Ex parte Bronstein, 434 So.2d 780 (Ala.1983). The trial court did not commit error when it denied the Handleys visitation with their grandchildren.

The Handleys next contend that the trial court committed reversible error when it refused to admit into evidence a transcribed copy of a sermon given by Jim Richards to his church congregation. This sermon concerned an adulterous relationship of a man and woman and how the congregation might deal with it.

The Handleys say that the exhibit was relevant to show Richards’ view on adultery and his fitness to be a custodian of the children. The trial court sustained an objection to the admission of the exhibit on the ground that it was irrelevant.

What is relevant evidence is a discretionary decision for the trial court and, unless the court abuses its discretion in refusing to admit proffered evidence, it will not be reversed on appeal. Costarides v. Miller, 374 So.2d 1335 (Ala.1979).

The sum and substance of the sermon was that true believers should have a forgiving heart. Such a pronouncement does not necessarily mean that the person making it condones adultery; it merely propounds that person’s view of the biblical tenets admonishing one not to pass judgment on others. The refusal to admit the tape recording and the transcription of the recording into evidence does not amount to an abuse of the trial court’s discretion.

Another issue raised by the Handleys relates to the refusal of the trial court to require answers to questions that relate somewhat to the above issue.

Questions were asked of several witnesses about statements made by Jim Richards during counselling sessions with these witnesses. The counselling sessions allegedly occurred during the time Richards was pastor of the Arab Christian’ Center. The questions attempted to elicit answers which would show Richards’ unfitness to be a custodian of the children. The answers which were sought were intended to reflect Richards’ attitude about sin and suicide, and his counselling procedure with these witnesses.

After a careful examination of the questions to which objections were made, we are not convinced that the Handleys have been substantially prejudiced by the refusal of the trial court to require answers to them. Rule 61, Alabama Rules of Civil Procedure, and Rule 45, Alabama Rules of Appellate Procedure. Garrison v. Grayson, 284 Ala. 247, 224 So.2d 606 (1969).

The Handleys’ next issue is that the trial court erred to reversal when it refused to require Brenda and Richards to testify whether they had had sexual relations prior to their marriage. The objection was based on the constitutional privilege against self-incrimination.

In Vail v. Vail, 360 So.2d 992 (Ala.1978), the supreme court held that it was reversible error to require a husband to testify about his adulterous acts over his objection based on his constitutional privilege against self-incrimination. In Howard v. Howard, 422 So.2d 296 (Ala.Civ.App.1982), we held that a husband can be required to answer questions about an adulterous affair if the acts occurred beyond the one-year statute of limitations.

In the case at bar the record shows that Brenda and Jim Richards had been married for more than one year prior to the trial; therefore any testimony about their sexual relations would have related to instances that occurred beyond the one-year statute of limitations for adultery. Consequently, Brenda and Richards were not entitled to the privilege against self-incrimination. Howard v. Howard, supra.

Did the trial court commit reversible error by not requiring Brenda and Jim Richards to testify about sex acts prior to their marriage? See Rule 61, A.R.Civ.P., and Rule 45, A.R.A.P.

If the evidence sought is relevant and material to the issues being litigated, the losing party may very well argue that he has been prejudiced by the refusal to admit the testimony being sought.

The sought-after testimony relating to sexual acts by Brenda and Jim Richards would be relevant and material to the issue of the fitness of the mother to retain custody of her children. We have said that sexual misconduct on the part of a parent who has custody of her children is a factor for consideration by the court in determining the fitness of that parent to retain custody of her children, so long as it is shown that such conduct has adversely affected the best interests of the children. Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982).

Had the witnesses been required to answer the question about sexual acts prior to their marriage, and assuming that they had answered in the affirmative, we do not find that evidence of this factor would have resulted in a decision for the Handleys.

The evidence strongly shows that the mother and the adoptive father love the children and properly care for them. The mother does not work and devotes her full time to the care and nurture of her children. On the other hand, the evidence is substantial that the children fear their grandparents and do not even want to visit them. Moreover, the psychologist testified that it would be detrimental to the children’s welfare to require them to visit the grandparents at this time.

Based on all of the other evidence in the record, we do not find that the Handleys’ rights have been substantially prejudiced by the refusal to require Brenda and Jim Richards to testify about sexual acts prior to their marriage. Furthermore, we consider our conclusion to be strengthened by the fact that in other places in the record it appears that Brenda testified that the only time she had taken a trip alone with Richards they did not have sexual relations. She further stated that the few times that he stayed overnight at her apartment he slept on the couch and did not sleep with her. Richards confirmed this course of conduct in his testimony. See Sweatman v. Federal Deposit Insurance Corp. as Receiver for Southern National Bank, 418 So.2d 893 (Ala.1982).

Finally, the Handleys say that the trial court wrongfully required them to pay Brenda an attorney’s fee. They contend there is no authority for a trial court to award a natural parent an attorney’s fee for defending a child custody action brought by the paternal grandparents.

In Alabama attorneys’ fees are recoverable “only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney creates a fund out of which fees may be paid.” Shelby County Commission v. Smith, 372 So.2d 1092 (Ala.1979), quoting State ex rel. Payne v. Empire Life Insurance Co. of America, 351 So.2d 538 (Ala.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978); and Parker v. Jefferson County Commission, 347 So.2d 1321 (Ala.1977).

In the present case there is no statute authorizing the payment of attorney’s fees to the mother by the grandparents, and there has been no fund created from which such fees can be paid. The only other method by which attorney’s fees can be awarded is when so provided by contract. No such contractual relationship exists between the mother and the grandparents in the present case.

Attorney’s fees have been awarded to the mother in child custody cases, but in those cases, the father has been the party required to pay the fees, the authority for the award arising from the marital relationship. Torme v. Torme, 251 Ala. 521, 38. So.2d 497 (1949).

Since there has been no marital relationship between the parties, no statute authorizing the award of attorney’s fees, and no fund created for such purpose, we hold that the trial court had no legal basis for requiring the Handleys to pay the mother an attorney’s fee. This aspect of the decree is reversed.

The mother’s request for an attorney’s fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR ENTRY OF JUDGMENT CONSISTENT WITH THIS OPINION.

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

ON REHEARING

BRADLEY, Judge.

In brief in support of appellee’s application for rehearing, counsel urges the reconsideration of that part of our decision reversing the trial court’s award of an attorney’s fee to the appellee.

Counsel argues that this court’s decision denying attorney’s fees to the appellee is a departure from the law of Alabama pertaining to child custody cases, is internally inconsistent, and is contrary to the mandates of justice and the best interests of the children.

Appellee relies on the case of Brock v. Brock, 281 Ala. 525, 205 So.2d 908 (1967), for her contention that she is entitled to an attorney’s fee for defending her custodial, rights against the demands of the paternal grandparents. The Brock case is distinguishable from the case at bar.

In Brock the supreme court said that the mother was entitled to an attorney’s fee because she had found it necessary to resort to judicial aid in her efforts to renegotiate child support payments from her husband. Counsel to aid her in this endeavor was necessary.

As authority for its position, the supreme court cited its case of Keith v. Paden, 255 Ala. 294, 51 So.2d 9 (1951). In the Keith case the supreme court said the allowance to the mother of child support is in a sense a feature of the alimony provision, and the amount payable is subject to the authority of the court the same as is the allowance to the wife. The authority to modify the child support payments includes the authority to award an attorney’s fee where appropriate.

We therefore adhere to our holding in the instant case that since there is no marital relationship between the wife and grandparents, no statute authorizing the award of attorney’s fees, and no fund created for such purpose, the trial court had no legal basis for requiring the Handleys to pay the mother an attorney’s fee.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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