*1 525 It is of the Robbins stat- our decision that the decree denied Robbins. Mrs. was granting made to her below defendant a divorce ed such confessions were court adultery separated ground granting on the while from Robbins and she was child, Elissa, custody relations to de- though having was sexual Connie she suit weekly supported a divorce fendant is not sufficient evi- with him twice and both the dence and re- Robbins denied and the same set aside pending. relations versed. confession and the sexual Mrs. Rob- Defendant and Mrs. Robbins. Reversed and remanded.

bins in contact another and were with one respective having about their conversations

spouses problems during such and marital HOLMES, BRADLEY JJ„ and concur. times. evidence,

As we there consider the

presented nothing suspicion more than speculation support

mere of acts of

adultery. evidence is insufficient to Such

support very adultery charge serious stamp perma- plaintiff publicly

nently of of adultress. record with title 317 So.2d 493 insuffi- We further find the evidence INDUSTRIES, INC. WINSTON girl cient to remove child of tender v. age years custody four from the The STUYVESANT INSURANCE who, evidence, loved, mother all the has COMPANY, INC. cherished, provided worked for her Civ. 443. child, regularly and taken it church dur- ing its entire life. Appeals Court of Civil of Alabama. 11, June 1975. The courts compelling follow Rehearing July 9, Denied 1975. presumption that a female child tender years best will be cared for its mother

unless she is shown to be unfit. Brown v.

Jenks, 596, 247 Ala. Mc So.2d 439:

Gregor 232, McGregor, 257 Ala. 58 So.

2d a finding 457. Even of commission of

adultery is a bar not to the award of custo

dy only but bearing a consideration on the Harrison, of fitness. Harrison 471; 189 So.2d Gould v.

Gould, Ala.App. 379, So.2d

We cannot with the correctness of

the finding the trial court from the evi-

dence in this case physical, “that the moral

and emotional well-being of the minor

child . . by plac- . can be best served custody respondent.” thereof

We find evidence contrary to be to the

and the supported decree of the court not

by the palpably wrong. evidence *2 Brown, III, N. Birmingham, James

appellant. '527 *3 Gladden, Birmingham, Jr., C. William appellee.

HOLMES, Judge. Appellant appeals verdict ren- against dered it and in appellee favor of $2,950. amount of Appellant was the manufacturer mobile home sold by a retailer to Freeman Floyd, hereinafter referred to as Purchas- Appellee er. is an insurance company who insured the mobile home for Purchaser and is subrogee of Purchaser.

The mobile purchased home was on De- 18, 1969, cember by Purchaser from re- tailer purchase price $7,200. for a retailer a Mississippi company. How- ever, the mobile home was delivered directly retailer appellant-manufac- happened. business, Appellant-man- turer, and was then them what had an Alabama inspect Purchaser, in ufacturer sent someone out to up by “set” the retailer. ap- damage. According testimony of Pur- fact, dealings directly had several chaser, people appellant-manu- delivery representing prior pellant-manufacturer home, carpets. picking facturer came out four or five times. Not g., e. out the mobile only inspect prem- did manufacturer personal resi- home was the The mobile ises, repairs, they several in- but also made dence of Purchaser. carpet living cluding replacing the ap- by the was insured The mobile home room, replacing the tile in the half bath Purchaser, apparently January pellee for (site occurred) where the leak and the during same this of 1970. Sometime bedroom, attempting front and also to nail hospital some entered a month presswood back buckled down. While miles from his home. two hundred appellee-insurance Purchaser wrote com- spent hospital wife Purchaser’s *4 pany damages. a letter informing it of his nights, him, including some much time finally $5,900 The claim was settled for necessity, home un- and, the mobile of left brought against appel- after Purchaser suit attended. lee. hospital, the Pur- discharge After from away wife, who had been chaser and his purchased Purchaser testified that he the days to home for several from the mobile $7,200. thirty- mobile home for He made husband, returned with her home be monthly it, payments three in on was satu- discovered that the mobile home amount of a month. He lived in $106.42 discovered rated with water. Purchaser trailer, it, despite damage the the to mobile home flooding that this within the years. eventually stopped three He mak- lava- a waterline under the was caused ing payments the on the His mobile home. in tory This resulted having come loose. company case with the insurance was set- fact, In accord- flooding the mobile home. shortly tled thereafter. Purchaser, testimony of the water to depth inches as evidenced reached a of six Appellee-insurance company, having set- the water stains curtains. on and, tled its claim with Purchaser as sub- Purchaser, rogee petition of a filed for de- flooding resulted in extensive dam- This claratory judgment against appellant (and carpet testified that the age. Purchaser alleging other named defendants) breach discolored, the had to be became curtains express implied of warranties. The replaced began to buck. Ad- and the floor suit went on issue of the following ditionally, months in the express breach warranty resulting in the changes in the condition of flooding, other appellee aforementioned verdict favor of the side occurred. On the mobile home $2,850. in the Appeal amount was then main entrance of the front door taken to this court. in the gave way. This resulted outriggers being front door dropping; sidewall Appellant’s argued assignments of error closed; opened or unable to be present three issues. The first issue raised fact, through. In beginning floor to cave by appellant is the contention that the ver- through fell in the front bedroom bed against dict is weight of the evidence replaced carpet floor. appellee in that did prove not that an ex- carpet out. Cer- original discolored rotted press warranty appellant existed from personal property within the tain Purchaser. The ap- second contention of damaged. was also home pellant appellee prove any is that not did product damages, or discovery of the manufacture defect. The third Following his damages the retailer contention is that the amount both Purchaser contacted is manufacturer-appellant reported payment excessive in that the amount of necessary the creation “(2) It is not unsupported to Purchaser appellee warranty that the seller express of an the evidence. or as ‘warrant’ words such use formal in- specific a ‘guarantee’ that he have or I an affir- warranty, but tention to make a appellant The main contention goods value of merely mation an ex prove that appellee failed to merely purporting to a or statement appellant press existed opinion commendation the seller’s subro appellee, as upon which warranty.” goods not create does appel rely against claim gee, his could this con The basis of appellant’s lant-manufacturer. Despite persuasiveness of Purchaser, himself, testimony by tention is thorough review of all argument, after a nor receive opinion that he did not evidence, this court is of the on Ala Appellant relies one. know about despite did the fact that pur by a indicating reliance bama cases copy of the written physically not receive express prove an war chaser order expressed warranty an Bloom Landman, Co. v. ranty. Halsey & was, fact, and does inure to in existence er, Michael, So. & appellee. the benefit of Wolf record to There is much evidence by ap- Thus, of this contention the basis express war- indicate the existence of an er- pellant appellee, subrogee, is is that by appel- ranty. response Foremost is the rely an ex- being allowed to on roneously admission following request lant to *5 press warranty Purchaser did not which by appellee. receive, appellant did not make and which That there an ex- (Appellee): “2. was particular to Purchaser. sale warranty press written on Express in Alabama are cre- warranties subject litiga- home is the of this that set out in following manners as ated so, product copy or du- tion. If [sic] 2-313, 7A, (Re- Ala.1940 Tit. Code of § inspection plicate warranty of said for comp.1958) : copying.” affirmation, “Express by warranties (Appellant) response request : “In promise, description, Ex- sample.' -(1)— 2, admissions numbered admits defendant are press by the seller created warranties a written at time -warranty existed of as follows: sale, Floyd this but has stated under oath Any prom- fact or “(a) affirmation of given that written warranty no was buyer by ise made the seller to the which him question.” the mobile home in on part of goods relates to the and becomes ARCP, 36(b) In accord with Rule this an ex- bargain the basis of the creates established, conclusively wit, matter press warranty con- goods that the shall warranty subject that a written on promise. form to the affirmation or property existed at the Pur- time of sale to Any description goods of “(b) chaser. part of the which is made of the basis express warranty copy appellant-manufacturer’s A of bargain creates an war- descrip- ranty goods shall to the was admitted into evidence. conform tion. Forrester, testimony Ray em- of put ployee appellant, appellant was that

“(c) sample which is of Any or model warranty bargain to the one introduced part basis similar made of the of by appellee every home into evidence creates dealer, sent and that this built and goods* shall conform to the whole appellant practice was the business sample or model. during years question. perceives it, He this further As court the determin- appellant newly testified that as far con- factor in this case under as was en- procedure acted cerned would be that Uniform Commercial Code is not re- warranty liance would be delivered the dealer on the war- seller’s ranty, part to the ultimate but whether it is of the “basis bargain.” See Elanco Products also find that the of conduct We course Akin-Tunnell, Company Tex.Civ.App., appellant very beginning from the 789; Young Cooper, S.W.2d Inc. v. & conformity existence of an ex- 281; Vestring, Kan. 521 P.2d press warranty. Appellant made several Hawkins Construction Co. v. Matthews trips being to the mobile home after in- Inc., Co., 190 Neb. 209 N.W.2d 643. damage. formed of the some these On fact, necessary In it is any not to show trips repairs actual made were them. particular buyer reliance give testimony There is also the of Mr. Forres- Anderson, rise to such warranties. Uni job completely ter that the was conducted Code, 1, 2-313:18, Commercial Vol. § form conformity with the idea that there was 2d ed. warranty. a written 2-313, 7A, Comment 7 to Tit. Code of § proof Even more of the existence of a (Recomp.1958), Ala.1940 reads as follows: warranty is following paragraph precise “7. The time when words of the bill of sale the retailer to Purchaser. description or affirmation are made or is, “This trailer is sold as without war- samples are shown is not material. The ranty (except guaran- and is title) sole language whether the teed free and clear mortgages, from all samples or fairly models are to be re- liens, encumbrances, except or other garded the contract. If lan- referred security to herein as for the guage is used after the closing of the within indebtedness. If the trailer sold deal (as buyer when the taking when de- trailer, be a used it is without livery asks and receives an additional as- except of title. New trailers usual bear surance), the becomes a modi- factury guarantee.” [Emphasis ours] *6 fication, supported and need not be by consideration if it is otherwise seasona- perceive appellant’s As we conten ble and in order (Section 209).” 2— tion, it would have us hold that even [Emphasis ours] though prod it offered a on its Certain writers have concluded that reli- uct, merely purchaser because the failed to ance is no longer necessary when a war- copy a warranty (even receive of the if ranty agreed upon can be closing through purchaser no fault of after own) his of the Review, sale. Texas See Law Vol. protection would be barred from the of 53:60,pp. 63-65. warranty. fered We decline to do this, instance, and, in this accordingly find us, instance, The before an to the In is whether the is regarded to be above, view of the the trial court was not part contract, wit, of the to whether it allowing error in ap the introduction of part bargain. of the basis of the Refer- pellant-manufacturer’s express warranty. ring again once to the aforementioned bill of sale which states that “new trailers bear Nor do we find requiring those cases re- factory guarantee,” usual we find it is in- liance on the applica- deed a bargain. Therefore, basis of the ble here. judge properly appellant’s trial refused required As both counsel charge admit and the court con- per- to the requiring in, curs point. knowledge. there is a dearth sonal of cases on that he did away and while he was down

ii lavatory. pipes in the froze not believe by ap next contention raised The above testimony as set out findWe prove any pellant appellee to is that failed cause and logical sequence of indicates defect product defect or manufacturer conjecture that more than mere effect and damage. which resulted a basis determi presented as alone was inas- argument appears The Engineers, Campbell Construction nation. did not much as Purchaser testified he Board and Sewer Works Inc. Water Inc., fitting Alabama, know came loose the ver- Pritchard, how Ala. City conjecture speculation. dict is based on also Central App., 194. 290 So.2d See Griffin, 36 Ala. Railway Georgia Co. Appellant also into evidence introduced App. 292, 55 So.2d climatological indicated data chart which period freezing temperature during the Ill away hospital and Purchaser was in the from the introduction of the trailer. The is that Appellant’s next contention supplemented by testimony chart prove that appellee-subrogee failed to expert pressure witness seal con- that the approxi $5,900 Purchaser payment of appellant nections used could come mobile damage to the mated amount of temperature. apart under conditions of low home. brief, appellant In counsel for contends home purchase price the mobile speculate it is Purchas- reasonable $7,200. that he Purchaser testified may er’s wife have turned the thermostat was Purchaser; appellee that down or that was informed counsel for visiting while not, cost extraordinarily appellee’s agent even if it would she did low estimated repair fi- temperature $1,243 outside the home could the mobile home. settlement, however, $5,900. loosening. have caused the nal was for Thus, no ba- appellant contends there was Thus, appears appellant attempts it $5,900 Purchaser. payment sis possible damage to offer a second cause of appellant. The We do not that, in an effort to show absent direct Purchaser, he himself, testified that while cause, proof of the the verdict is based on no cash had idea as to what actual val- speculation conjecture. We do not be, him, that, damage ue after the would agree. family it “wasn’t worth much” because his testified that he found wa- hardly “couldn’t also testi- live it.” He lavatory ter line had come loose under the fied that he was informed two other *7 in approximately sixty days the half bath president mobile trailer dealers —one a purchase. after He had had no trouble be- employee the the other trailer was —that copper leaking pipe fore. The tube in the “unrepairable” expensive” and “too to re- slipped had fitting. out of the pair.

repaired problem, himself, by buying the Thus, putting there is evidence that the larger grommet on a rubber damage approximated screwing tightly. it the value of the on He testified he home, Additionally, damages had had itself. The measure of due no trouble since. the plumber, injury testifying appellant, personal property to to is a on behalf of which responded accident, theory affirmatively question to a as to total loss after under the pipe parties, whether the leak if the of would connec- this case as tried the is rea properly tightened. tion were not also sonable market accident, We value before less salvage Muse, note that far as Purchaser testified as value after. Parker 47 Ala.App. he knew the thermostat was not turned So.2d express warranty that an assignments his of dence case Appellant, by 2-313, 7A, Title 1, 4, was created under Sec. argues that the trial court and 6 error Code. The evidence Commercial error in its oral committed reversible Uniform contrary. totally is to the charges damages. regarding the measure of assignments find no merit in these of We any denied purchaser knowledge The of objection to error as no valid was made any warranty extended the manufac- object in regard. the court Failure this turer. I am to determine how unable in alleged charge below to oral of error warranty can created without knowl- precluded Scroggins court trial review. edge of its existence the Corp., Alabama Gas. So. express warranty Creation requires of an 2d 90. promise by or affirmation of fact the seller buyer relating goods, to the which All argued assignments of error which promise part affirmation or becomes of properly having were below been raised or bargain. basis considered, of Such affirmation is, is due to be and case promise pur- made known must be accordingly, therefore and affirmed. any if it bar- chaser is to form basis for the Affirmed. gain. in form Without communication some there promise can be no affirmation nor or BRADLEY, J., concurs. can such be any said to be or consideration entering purchaser

inducement to the for bargain. express warranty An is a WRIGHT, J., part in concurs P. contract and its creation determined part. dissents in the law of contracts. An uncommunicated promise affirmation of fact or cannot be a WRIGHT, Presiding Judge (concurring part of a any or contract form basis part, in dissenting part.) the entering into contract. fact that the manufacturer intends to extend specially I concur in with the deci- warranty purchaser every may create majority respectfully sion of the dis- moral obligation but unless the part. sent knows extending or at least of Though I concur with majority policy extending, of he could not have con- under the evidence in this case the sidered entering it in into bargain express of an existence purchase goods. If de- such is jury, was for the I do not with cer- termined to be the law warranty, there language tain arriving at the deci- used would requirement be a or nullification majority. sion of the I would hold that denial warranty by seller manu- response appellant, Winston, re- facturer rather than affirmation of fact or quest for admissions sufficient for promise. go matter to to the to the existence the warranty. It trepidation is with some that I concur with the majority its decision that there the requirements discussion of of was sufficient express evidence of an war the Uniform Code for the Commercial cre- ranty, but I not concur do the evi ation of an by major- dence sufficient create such ity, application and the require- of such *8 2-313, under Title 7A, Com Sec. Uniform ments to the in inap- this case is evidence mercial Code. propriate. I would that hold Winston was by its bound that its I cannot with majority admission manufactur- the that the er’s existed for the benefit the evidence established that a there was purchaser. estoppel design defect the principle ap- The manufacture or product. plicable. I the hold would not under the evi-

533 in an action for warranty. that after breach of presented was evidence The Co., Gardner home, it was deliv- v. Coca-Cola Bottling 267 purchasing the mobile 505, 557; in Mis- Minn. dealer 127 United States by the N.W.2d ered to the Baur, Cir., up by dealer Rubber Co. v. 8 picked the 319 F.2d 463. sissippi. It was transported buyer a The burden is on the that and show manufacturer the there was highways defective material or workman over distance substantial ship scope within purchaser. and place designated product The such by the defect existed at the time the up” “set dealer. There it was custody left its and elec- it with water manufacturer. dealer connected Shramek presumably Corp., with sewer v. Motors and General Chevro supply trical let Div., 72, re- Motor Ill.App.2d in and 69 216 moved N.E.2d connection. Purchaser 244; During Co., six weeks. Wilbur Curtis 425 therein for about F.2d sided Dufon 1294, problem (6th 1969). was no Cir. this time there later pipe was particular water which proof mere a fitting comes leaking. It was used found to loose loose and leaks product after the has been properly. and worked period delivered and used a of time hospital- and was Purchaser became ill does not alone establish a presumption or away. spent some miles His wife ized 200 inference of a defect manufacture. part in the time with him and Inc., Wear v. Company, Chenault Motor 52 days. Upon leaving the home for several 382, Ala.App. 298; Eversmeyer 293 So.2d home, purchaser hospital returning Chrysler Corp., (La.App.). 192 So.2d 845 the home have at some found flooded only proof presented Such was the occupied by his time it was last wife. since presume spec- case. The could not or connection Examination disclosed a loose ulate as to the existence of a defect lavatory. copper pipe to a of a attached manufacture, especially when evidence was apparently This was the source of presented plausible cause of the leak. repaired flooding. The leak was Southworth, It was said in Admx. v. that he did not He testified Shea, 774, 419, quoted So. loose. Neither why pipe became know Railway Dickson, in Southern Co. v. witness, any he, ma- any nor testified as 481, Ala. 100So. as follows: merely design. terial fault fault of He or un- a loose from some found connection goes “Proof which no further than known cause. show an injury could have occurred alleged way, warrant does not testimony that presented Manufacturer occur, conclusion that it where did so immediately preced- nights during several injury proof from the same can with tempera- had flooding there been equal probability be attributed to some freezing in degrees below tures 10 or more other cause.” It further the area the home. was that water qualified a witness shown presented by plain- evidence Under the easy susceptible pipes in trailers were proof tiff in this case there was mere unoccupied particularly when freezing, pipe Why it was loose and leaked. came It was shown unregulated. heat with the conjec- solely to loose and leaked was left type would connection involved jury. ture evidence There no pipe pull froze. if the water loose workmanship materials, of failure of proof to establish The burden of proof is at design. Liability under such warranty is breach of manufacturer’s ipsa at loquiter best founded upon res 1419, 63 Am. upon buyer. ALR2d worse makes the manufacturer an insurer. Liability. Jur.2d Sec. Products I apply would reverse remand. ipsa loquitur res does not doctrine of