author: JONES, Justice.

text:
    Kendall E. KELLEY, a minor, 17 years of age, who sues by and through his guardian ad litem, J. Gorman Houston, Jr. v. ROYAL GLOBE INSURANCE COMPANY, INC., a corporation.
    SC 2324.
    Supreme Court of Alabama.
    Aug. 19, 1977.
    Rehearing Denied Sept. 9, 1977.

      J. Gorman Houston, Jr., Eufaula, Guardian ad Litem for Kendall E. Kelley, a minor.
    John M. Milling, Jr. and Harry Cole of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   JONES, Justice.

This case involves a declaratory judgment rendered in favor of Royal Globe Life Insurance Company concerning the applicability of an employee exclusion clause in a public liability insurance policy. We affirm.

In connection with a high school vocational education program, Kendall Kelley, a seventeen-year-old student, was employed several afternoons a week in Bickley’s Grocery Store. His duties included bagging groceries, stocking shelves, cleaning, and assisting in the store’s meat department. In December of 1975, while grinding meat at the store, Kelley sustained personal injuries resulting in the traumatic amputation of his right hand. Because the store employee^ only three persons, workmen’s compensation was not required. Furthermore, the owner had not elected to voluntarily procure such coverage. Suit was filed and, as amended, named Bobby Ray Bickley, individually, as a defendant. Royal Globe sought a declaratory judgment action to determine whether it must defend Bickley in the original action.

The Circuit Court of Barbour County sua sponte reformed the insurance policy so that its named insured was Bickley’s Grocery, a partnership composed of Bobby Ray Bickley and his wife. It further found that Kelley was an employee of Royal Globe’s named insured and that the employee exclusion provision of the policy precluded Kelley’s coverage. Thus, Royal Globe had no obligation to defend Bickley in the pending litigation.

Kelley’s main contention is grounded upon the premise that, because his suit is against Bickley individually, the employee exclusion does not apply to him because he is employed by the partnership. Thus framed, the issue for our consideration is whether, for purposes of an employee exclusion provision in a public liability insurance policy, an employee of a partnership is an employee of the individual partners.

In urging a negative answer to this query, Kelley cites United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). In McCormick, an injured employee and the personal representatives of a deceased employee were permitted to bring suit against the president, vice-president and foreman of a corporation, notwithstanding an employee exclusion clause similar to the one before us. The Court pointed out that the corporate officers were additional insureds and, because the plaintiffs were employees of the corporation and not employees of its officers, a severability of interest clause permitted plaintiffs’ coverage under the policy, despite the employee exclusion clause. See 3 Cum.-Sam.L.Rev. 532 (1972).

The McCormick Court stated:

“The severability of interests provision requires consideration of each insured separately, independently of every other insured. . . . Applying this provision, the exclusion of an employee must mean that the exclusion of an employee of the insured must be limited to an employee of that particular insured who claims coverage under the policy.” 286 Ala. at 540, 243 So.2d at 375.

Royal Globe’s policy includes a severability of interest clause which provides in pertinent part:

“The insurance afforded applies separately to each insured against whom a claim is made or a suit is brought except with respect to the limits of the company’s liability.”

Kelley urges this Court to apply the rationale of McCormick and permit suit under the theory that, because Kelley is employed by the partnership, a suit against the partner individually avoids the employee exclusion; and this for the reason that the exclusion applies only to the “insured” employer — the partnership.

This is a strained interpretation and overlooks two important points. First, the term “insured” should be interpreted consistently throughout the policy because the policy must be read as a whole. Smith v. Kennesaw Life and Accident Insurance Co., 284 Ala. 12, 221 So.2d 372 (1969); Southern Guaranty Insurance Co. v. Wales, 283 Ala. 493, 218 So.2d 822 (1969); and State Farm Mutual Automobile Insurance Co. v. General Mutual Insurance Co., 282 Ala. 212, 210 So.2d 688 (1968).

While it is well-settled that any ambiguities or uncertainties in an insurance policy must be resolved against the insurer, ambiguities are not to be inserted by strained or twisted reasoning. Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920 (1960); and Insurance Company of North America v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976).

Three provisions in the policy must be read together:

“Each of the following is an insured under this insurance to the extent set forth below:
(b) if the named insured is designated in the Declarations as a partnership or joint venture, the partnership or joint venture so designated and any partner or member thereof, but only with respect to his liability as such .” (Emphasis added.)
“This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture which the insured is a partner or member and which is not designated in this policy as a named insured.” (Emphasis added.)
“This insurance does not apply to a bodily injury to an employee of the insured arising out of and in the course of his employment by the insured.” (Emphasis added.)

A reading of these three sections evinces a clear intent to exclude from coverage under the policy all employees of the partnership, or of the partners. When these sections are read in conjunction with the severability of interest clause, it is evident that the partners and the partnership are together an “insured” within the meaning of that clause. The policy clearly excludes Kelley from coverage in light of the trial Court’s finding that “. . . Kelley was at the time of the accident an employee of the insured acting within the line and scope of his employment . . .”

With respect to the severability of interest clause, McCormick is clearly inap-posite. The interests of a corporation, a separate legal entity, can be severed more easily from the interests of its officers than can the interests of a partnership, an aggregate of the partners which comprise it. We are not unmindful of the controversy and confusion surrounding the aggregate-entity concepts of partnership. The Uniform Partnership Act, Tit. 43, §§ 5(l)-(43), Code, and case law adopt the aggregate theory. Seaboard Coastline R.R. Co. v. Gillis, 294 Ala. 726, 321 So.2d 202 (1975) (rejecting an argument that a partnership was a “jural entity” separate and apart from its partners); and Ford v. Mitcham, 53 Ala.App. 102, 298 So.2d 34 (1974) (rejecting the contention that a partner could be an employee for workmen’s compensation purposes). In Ford, the Court stated:

“Although Alabama does recognize a partnership as a legal entity for some purposes such as for the purpose of buying and selling property, the entity theory is not recognized for all purposes. Alabama has adopted the Uniform Partnership Act. (Citations omitted.) The Act does require the recognition of the entity concept for some purposes but does not change the common-law theory that the partnership is an aggregate of its individual members.” 53 Ala.App. at 105, 298 So.2d at 36.

See Couch on Insurance 2d, § 44:96 (2d ed. 1963).

An examination of early case law reveals references to the entity concept. These cases, however, are limited to their narrow factual situations. See Capital Transport Co. v. Alabama Public Service Commission, 268 Ala. 416, 108 So.2d 156 (1959); Woodfin v. Curry, 228 Ala. 436, 153 So. 620 (1934); Williams v. Wilson, 205 Ala. 119, 87 So. 549 (1920). Ratchford v. Covington County Stock Co., 172 Ala. 461, 55 So. 806 (1911); and Teague, Barnett & Co. v. Lindsey, 106 Ala. 266, 17 So. 538 (1895). Significantly, all these cases pre-date the adoption of the Uniform Partnership Act in Alabama. Therefore, they are not viable authority for the proposition that Alabama adheres to the entity concept of partnership. See Metzger Brothers, Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398 (1971).

Upon reading the insurance policy before us, it is evident the parties intended to insure the business of Bickley’s Grocery in whatever fashion it chose to do business. In the same breath, the insurance policy specifically excluded employees of the store from its coverage. Because we view the partnership as an aggregate of the partners, the severability of interest clause does not confer coverage upon Kelley.

For these reasons, the decree of the trial Court, finding Kelley an employee of the named insured, and thus excluded from coverage of the policy, is due to be affirmed.

AFFIRMED.

BLOODWORTH, ALMON, SHORES and EMBRY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James V. BROWN v. KINGSBERRY MORTGAGE COMPANY and Jack Lee.
    SC 1640.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      Frank J. Mizell, Jr., Montgomery, for appellant.
    Sam M. McMillan, Mobile, for Kingsberry Mortgage Co.
    John E. Adams, Grove Hill, for interve-nors.
   PER CURIAM.

This is an appeal from a final decree rendered June 3, 1975. The decree was in response to a bill of review filed July 9, 1971. The issues on appeal are due process claims and a claim that the court exceeded its authority in the manner in which the trial judge handled the bill of review. These issues evolve around the chronology and substance of the pleadings and decrees. The record on appeal consists of the record proper only and contains no testimony.

The bill of review, Case No. 1668-J, sought to review the final decree in Case No. 991-J. The parties are the same in both cases except for the intervenors in Case No. 1668-J.

The final decree in 991-J established priorities between mechanics’ liens held by James Brown, the appellant, and mortgages held by Kingsberry Mortgage Company, ap-pellee, in certain parcels of land. The court’s decree held that Kingsberry’s mortgages were superior to the liens of Brown on all parcels except one. We are not here concerned with that one parcel.

The decree in 991-J further provided that the Register sell the parcels of land and apply the proceeds of the sale to Brown and the balance, if any, to Kingsberry. This action by the court was, according to the allegation in the bill in Case No. 1668-J, just the reverse of what the court should have ordered.

Additionally, the decree in 991-J gave Kingsberry the right to foreclose and sell under the power of sale contained in the mortgages.

The Bill of Review No. 1668-J alleged that the decree in 991-J is so vague, contradictory and uncertain that it is impossible for the Register to carry out the order of the court. The bill further alleges that the testimony taken in Case No. 991-J shows without dispute that Kingsberry and Jack Lee, the builder, perpetuated a fraud upon Brown by conspiring to sign his name to lien waivers. The bill prayed for an accounting; that the court declare the alleged fraud; that it change its decision on the priorities question and for general relief.

On April 17, 1975, the judge entered a “Final Decree on Bill of Review,” prefaced by the following:

“This cause coming on for hearing in open court and briefs having been submitted by the parties,
“And the parties to this cause being notified of the intention of the Court to enter this Decree in Chambers of this date, denying the substance of the Bill of Review, but granting clarification of the earlier Decree in Case 991-J, and the Court having invited the solicitors for the parties to attend in Chambers to assist in drawing this decree, and the solicitors for Defendant Kingsberry Mortgage Company being present in Chambers, and the solicitor for the Complainant James V. Brown in Case 991-J being present in Chambers, and the solicitor for Complainant James V. Brown in the present Case 1668-J being notified as aforesaid, and having made his view and objections known to the Court but not being present in Chambers, . . .”

The judge held that the decree in Case No. 991-J was clear and sufficient, but for the convenience of the appellant and register again ordered the sale by the register of the parcels of land. The advertisement was to make known that the liens were inferior to the Kingsberry mortgages.

The court noted that the .$1,500.00 would have been due the attorney had the parcel been sold by the court.

On May 7, 1975, appellant moved to amend or set aside the April 17, 1975, decree based on reasons stemming from the granting of the attorney’s fee. On May 15, 1975, the attorney to whom the fee was to be paid waived his right to the fee.

On May 14, 1975, Enoch and Rosa Lyn Todd intervened. The Todds had bought one of the parcels from Kingsberry who had acquired the parcel at its foreclosure sales. They alleged that they relied on the February 12, 1971, decree in Case No. 991-J and that a subsequent sale by the register would complicate and confuse their title.

The court set a hearing for 9:00 A.M., June 3,1975, and rendered a decree on that day. Applicable parts of the final decree, rendered June 3, 1975, read as follows:

“[C]omplainant, through his counsel, had made known to the Court that since James A. Brice has waived or renounced his claim of attorney’s fee, complainant has no further interest in pursuing his motion to set aside or amend the decree of April 17, 1975; and counsel for complainant makes known to the Court that he did not seek a resale of any of the properties in this litigation and that he has no objection to the granting of the request of the intervenors that there be no further sale of the properties involved here . . .”

The court then ordered that no further sales be made, affirmed Kingsberry’s mortgages as being senior to appellant’s liens, and denied the relief requested.

I

We agree that a clarification of the February 12, 1971, decree was necessary; the decree stated that Kingsberry’s mortgages were superior to the appellant’s material-men’s liens but that the register should sell the parcels and pay the proceeds first to the appellant. Apparently, the court intended that a buyer at a sale by the register would take subject to the Kingsberry mortgages, as he subsequently made this clarification in his April 17, 1975, decree. However, we do not believe his allegations of fraud were reviewable by bill of review, as appellant now contends.

On July 3, 1973, the Alabama Rules of Civil Procedure came into effect. Rule 86 provides that the ARCP shall govern cases then pending unless their application would not be feasible or would work an injustice. Rule 60(b) abolished the Bill of Review as well as the Bill in the Nature of a Bill of Review, but did not alter the substance of the remedies. Committee Comments, Rule 60, ARCP. We shall therefore treat the Bill of Review as an independent proceeding under Rule 60(b) without regard to whether it was denominated a Bill of Review or a Bill in the Nature of a Bill of Review.

Appellant complains that nothing in the record indicates he was given a hearing before the trial judge invited the parties into his chambers to draft a decree “denying the substance of the Bill of Review, but granting clarification . . . .” April 17, 1975, decree. We note first that appellant’s fraud allegations could not be reviewed by a 60(b) motion. His allegations are “that the testimony taken in Case 991—J [the original suit] shows without dispute . . ” that Kingsberry and Jack Lee “perpetuated” a fraud on the appellant. None of the allegations alleged newly discovered evidence. There was no appeal in Case 991-J.

“The other matters asserted in the present bill—with a view to vacating the decree regularly entered in a cause of which the court had jurisdiction—went, at most, to reflect upon the correctness of the decree in respect of the amounts of the mortgage debts secured by the two mortgages and to question the efficiency of the medium of publication through which notice of the sale was given. A bill of review, or a bill in that nature, to vacate a decree, will not lie to review and revise irregularities of that character; appeal by the party prejudiced being an appropriate remedy. Vary v. Thompson, 168 Ala. 367, 52 So. 951; McCall v. McCurdy, 69 Ala. 65, among others.” Boling v. T. L. Farrow Mercantile Co., 203 Ala. 217, 82 So. 467 (1919).

Fraud found in the testimony of a case would historically not support a Bill of Review or a Bill in the Nature of a Bill of Review.

“. . . The scope of the inquiry [in a Bill of Review] is limited to the issues formed and, where there is no question of newly-discovered evidence, to the facts as gathered from the record proper, not including the testimony; . . . Til-ley’s Alabama Equity, § 199, at 216.
“To support a bill based upon fraud in the procurement or concoction of a decree, it must appear that fraud was practiced in the very act of obtaining the judgment, and that it was extrinsic or collateral as distinguished from intrinsic fraud. . . . ” Tilley’s Alabama Equity, § 211 at 227.

Rule 60(b)(3) now provides that a court may relieve a party from a final judgment for “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” However, to obtain relief under Rule 60(b)(3) the motion must be made not more than 4 months after the judgment. The July 9,1971, Bill of Review was filed before the new ARCP, and more than 4 months after the February 12, 1971, decree. Thus, while we shall treat appellant’s Bill of Review as an independent action under 60(b), we will not remand the case for the judge to consider allegations of intrinsic fraud.

Rule 60(b) also provides that a judgment may be set aside within 3 years after its entry for “fraud upon the court.”

“ ‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” 7 Moore’s Fed. Prae. ¶ 60.33 at 515 (1975).

Fraud found in the testimony of the original suit is not “fraud on the court.” Errors found in the testimony are reviewable by appeal, not by a Rule 60(b) motion (or Bill of Review). We therefore conclude that appellant was not due a hearing on his allegations of fraud. Sharp v. Edwards, 203 Ala. 205, 82 So. 455 (1919).

II

We now turn to appellant’s contention that he was not granted a hearing at all. The April 17, 1975, decree reads:

“This cause coming on for hearing in open Court and briefs having been submitted by the parties,
“. . . and the solicitor for Complainant James V. Brown in the present Case 1668-J being notified as aforesaid, and having made his views and objections known to the Court but not being present in Chambers,
“It is, therefore, ORDERED . . . ”

After the Todds intervened, the trial court ordered a hearing for June 3,1975, at 9:00 A.M. His decree written the same day states:

“. . . and counsel for complainant makes known to the Court that he did not seek a re-sale of any of the properties in this litigation, and that he has no objection to the granting of the request of the intervenors that there be no further sale of the properties involved here . . .”

This court will not assume error. The burden is on the appellant to show error in the record.

“A party complaining of error in a judgment, must show it affirmatively upon the record, as otherwise the presumption will be that the decision is correct. Lyon v. Krebs, 9 Ala. 426.” Butler v. Olshan, 280 Ala. 181, 189, 191 So.2d 7 (1966).

The appellant points to the Register’s Certificate to Transcript as stating that the record before us is “a complete true and correct transcript of all the proceedings . ,” and from that argues that because there is no transcript in the record of a hearing, he was therefore denied a hearing. Arguments made to the trial judge by appellant’s counsel would not normally be a part of the record on appeal.

Moreover, the very essence of the bill was to review former Case 991-J. Under the holding of Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966), we must presume the trial judge took judicial notice of the record in Case 991-J. That record is not before us. In the absence of a contrary showing in the record before us, we must presume that the matter, which was before the trial court, was sufficient to sustain the trial court.

Ill

Appellant also contends the trial court went beyond its authority in determining in its June 3, 1975, decree that the property should not be resold after ordering a resale, subject to the Kingsberry mortgages, in its April 17, 1975, decree. Appellant argues that because his “Motion to Amend or Set Aside Decree” dated May 7, 1975, only addressed the $1,500 fee to be paid an attorney, the court was limited to addressing the attorney’s fee.

A week after the appellant’s motion, the Todds filed their motion to intervene. Rule 24(a), ARCP, provides:

“Upon timely application, anyone shall be permitted to intervene in an action: . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Appellant Brown’s initial Bill of Review did not ask for a resale; it only asked for an accounting. The Todds’ interest was affected when the court decreed that a resale should take place. We see no error in the court’s admitting and addressing the Todds motion to intervene. Moreover, the June 3, 1975, decree indicates that counsel for the appellant made known to the court that he did not seek a resale and had no objection to granting the request of the intervenors.

Finally, we address that aspect of the bill seeking an accounting. The parcels of land were sold under the power of sale contained in the mortgages. Thus, Kings-berry should account to Brown and to the court for any monies in excess of Kingsber-ry’s mortgaged interest. See cases collected in Ala.Dig., Account, &wkey;17(l).

The judgment is affirmed except as to the accounting issue. The cause is remanded with instructions.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

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


author: MADDOX, Justice.

text:
    The EMPLOYEE’S RETIREMENT SYSTEM OF ALABAMA v. Helen Chapman McKINNON et al.
    Div. SC 2343.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      William J. Baxley, Atty. Gen. and Jerry L. Weidler, Asst. Atty. Gen., for appellant.
    Robert B. Roden of Jones, Arnold & Ro-den, Birmingham, for appellees.
   MADDOX, Justice.

The Teachers’ Retirement System of Alabama (TRS) appeals from a summary judgment granted to plaintiffs Helen C. McKin-non and William R. McKinnon, Jr., widow and son of William R. McKinnon, Sr., deceased, who was a member of TRS. The trial court, finding the retirement system statutes discriminatory as between retired employees and active employees, ordered TRS to pay plaintiffs a “lump sum” benefit equal to the deceased teacher’s contributions and interest in the fund.

The facts were stipulated. William R. McKinnon, Sr., was a school teacher for some twenty-five years. In April, 1975, he filed an application for service retirement with TRS. (See Appendix A.)

TRS sent McKinnon a form containing retirement allowance estimates and a place for him to indicate which retirement benefit he elected. (See Appendix B.)

The effective date of McKinnon’s retirement was June 1, 1975. On June 18, 1975, the secretary-treasurer of TRS sent McKin-non a letter which contained certain tax information and other data regarding his benefits. (See Appendix C.)

On June 30, 1975, McKinnon died. TRS considered McKinnon’s election of the “Maximum Retirement Benefit” as final and binding, and claimed it was bound to pay to McKinnon’s son, the designated beneficiary, only a prorata amount for the number of days in the month in which McKinnon survived after his effective date of retirement. Since McKinnon retired effective June 1, 1975, and died on June 30, 1975, TRS claimed his beneficiary was entitled to be paid the retirement allowance for one month, or $503.94.

In October, 1975, Helen Chapman McKin-non and William R. McKinnon, Jr., surviving spouse and son, filed an action in the Circuit Court for Jefferson County. They alleged that, pursuant to Title 52, § 366(4), Code, 1940, as amended, they were entitled to a retirement allowance under Option 3. Alternatively, they alleged that McKinnon, Sr., was under the mistaken belief that the maximum retirement benefit would be paid to his son in the event of his death. Finally, they alleged that the construction placed on the statute by TRS was violative of the equal protection and due process clauses of the Constitution of the United States and of Article 1, Section 6 of the Alabama Constitution.

In February, 1976, the action was transferred to the Circuit Court for Montgomery County. The McKinnons filed a motion for summary judgment in November, 1976, and after a hearing was held on the motion, the court below granted the motion. The court concluded, in part:

“The Court concludes from the review of the evidence and the law applicable to the evidence that the construction relied upon by the State, if adopted and enforced, would be an arbitrary and capricious exercise of power and would accomplish an unlawful and unconstitutional discrimination between classes of employees without just basis. The statute applicable to the Teacher’s Retirement System does not provide for any of the retirement benefits of a retired teacher to cease at death. Two provisions in the statute do allow for an employee, upon cessation of employment, and an employee’s spouse before the employee’s retirement, upon death, to receive his or her contributions upon cessation of employment or death. To hold that an employee (or his spouse) who had reached retirement and who died before receiving his benefits was not entitled to any benefits, and that a teacher with only one year of tenure or one who had not reached retirement, was entitled to all contributions is an arbitrary, unjust and invidious discrimination in favor of one class against the other. Equal protection of the laws would be denied and the earned property right of the retired employee, or his spouse financed in large part by the employee’s contributions, would be taken without due process of law.

“The construction for which the defendant contends would disregard the beneficial spirit and purpose for which retirement benefits and pension plans are adopted. This Court would be loathe to conclude that the legislature intended to do what the defendant contends was its intentions to do, and fortunately this Court is clearly of the opinion that the legislature did not so intend. The Teacher’s Retirement System of Alabama and pension plans in general, are not designed as business ventures or moneymaking syndicates, but rather to provide for the security of faithful servants to the education of our young; to improve their moral (sic) and to give them peace of mind in their dedication to public service. The Courts generally recognize this objective and provide that such laws shall be liberally construed with a view of promoting the object for which they were adopted. A narrow, arbitrary or literal interpretation will not be permitted to defeat the objective for which such legislation is adopted. Collins v. City of Knoxville, [180 Tenn. 483], 176 S.W.2d 809 [808] (Tenn., 1944); Fulton County v. Hollin [Holland, 71 Ga.App. 455], 31 S.E.2d 202 (Ga., 1944).

“In the interpretation of a statute, the Courts will be strongly influenced by its spirit and intention. Bell v. Pritchard, 273 Ala. 289, 139 So.2d 596 (1962).

“The Court is clearly of the opinion that the intention of the statute was not to allow the system to benefit in such a situation and cannot be contended that plaintiffs are not entitled to the contributions. It is, therefore,

“ORDERED, ADJUDGED and DECREED by the Court as follows:

“1. Title 52, § 362 et seq., Code of Alabama as last amended, should be and is construed to mean that the benefits available to a retired member shall not cease at death, and like any other active member of the retirement system, shall have the right to the total amount of contributions.

“2. Consistent with the above interpretation, and the intention of the retired member, the plaintiffs are entitled to receive the retirement benefits in a lump sum.

“3. That the Teacher’s Retirement System of Alabama be and hereby is directed to process and approve the claim of the plaintiffs and to pay to the plaintiffs the lump-sum benefits, including the contributions, including interest at 6% thereon from the date of the claim.”

It is from the order granting the plaintiffs’ motion for summary judgment that this appeal is taken.

We reverse and remand.

As we construe the trial judge’s order, he concluded that benefits available to a retired member who has selected the “retirement allowance” do not cease at death, but continue at least until the retired member, his estate or his beneficiaries, have received his accumulated contributions. This interpretation does not comport with the statutory scheme and is erroneous.

The legislature has conveniently set out in Title 52, § 362, Code, definitions of statutory words we will be considering on this appeal. Section 362, in part, provides:

“ * * * ‘Member’ shall mean any teacher included in the membership of the system as provided in section 364 of this title. ‘Board of control’ shall mean the board provided for in section 367 of this title to administer the retirement system. * * * ‘Trustees’ shall mean the members of the board of control, to administer the trust funds. * * * ‘Beneficiary’ shall mean any person in receipt of a pension, an annuity, a retirement allowance, or other benefit as provided by this chapter. * * * ‘Annuity’ shall mean payments for life derived from the ‘accumulated contributions’ of a member. All annuities shall be payable in equal monthly installments. ‘Pension’ shall mean payments for life, derived from money provided by the employer. All pensions shall be payable in equal monthly installments. ‘Retirement allowance’ shall mean the sum of the ‘annuity’ and the ‘pension.’ ‘Retirement’ shall mean withdrawal from active service with a retirement allowance or optional benefit in lieu thereof granted under the provisions of this chapter. . ” [Emphasis added.]

Section 366(2)(a) and (b) provide:

“ * * * (2) Upon retirement from service a member shall receive a service retirement allowance which shall consist of:
“(a) An annuity which shall be the actuarial equivalent of his accumulated contributions at the time of his retirement; and
“(b) A pension which shall be equal to the annuity allowable at age of retirement, but not to exceed an annuity allowable at sixty-five computed on the basis of contributions made prior to the attainment of age sixty-five; . . . ”

Section 366(4) provides:

“(4) With the provision that no election of an option shall be effective until the end of the month following the effective date of retirement, and that should a beneficiary die before his first benefit payment is due at the end of the month following the effective date of retirement, he shall be considered as an active member at the time of death, any member may elect prior to retirement to receive, in lieu of his retirement allowance payable throughout life the actuarial equivalent at that time of his retirement allowance in a reduced retirement allowance payable throughout life with the provision that: Option 1. If he dies beT fore he has received in annuity payments the present value of his annuity as it was at the time of his retirement, the balance shall be paid to his legal representatives or to such person as he shall nominate by written designation duly acknowledged and filed with the board of control; or Option 2. Upon his death, his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall nominate by written designation duly acknowledged and filed with the board of control at the time of his retirement; or Option 3. Upon his death, one-half of his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall nominate by written designation duly acknowledged and filed with the board of control at the time of his retirement; or Option 4. Some other benefit or benefits shall be paid either to the member or to such person or persons as he shall nominate, provided such other benefit or benefits, together with the reduced retirement allowance, shall be certified by the actuary to be of equivalent actuarial value to his retirement allowance and shall be approved by the board of control.”

The statutory scheme, using the legislative definitions, provides that an active member, provided he meets all other requirements, may retire and may receive a “retirement allowance” or an “optional benefit in lieu thereof.” If a member selects the maximum benefit allowance, the statute specifically provides that the payments are “for life.” A “retirement allowance” is paid for life and does cease at death.

If the member selects an option in lieu of the “retirement allowance,” a reduced “retirement allowance” is payable to the member during his life and to the member’s surviving spouse or beneficiaries. This statutory scheme is covered by Title 52, § 366(4).

We hold that if a member dies after having made an election to receive a “retirement benefit,” whether before the first benefit payment is due, or afterwards, that member’s benefits cease at this death. However, if a member elects to receive “an optional benefit in lieu [of the retirement allowance],” then the benefits are payable as provided for in § 366(4).

This section provides that a member shall be “considered as an active member” if he dies before the “end of the month following the effective date of his retirement.”

If an active member who is eligible for service retirement dies before making an election, § 366(3)(b) provides:

“(b) In case of the death of a member eligible for service retirement pursuant to subsection (1) of this section, an allowance shall be paid to the surviving spouse in an amount that would have been payable if the member had retired immediately prior to his death and had elected Option 3, as set forth in subsection (4) of this section . . ..”

We are careful not to determine the factual dispute whether McKinnon was “mistaken” when he marked the block “Maximum retirement allowance.” There is some evidence that he was confused when he filled out the form. We note that when he filled out his application for service retirement on April 29,1975, he first marked the block for a maximum retirement allowance but crossed that out and asked for information about benefits payable under “Option Number 1.” The question of what McKin-non actually intended is not completely clear.

On remand, the parties can further develop the factual issue whether McKin-non factually intended to select the maximum retirement allowance or an option in lieu of the retirement allowance. If the trial court determines on remand that McKinnon intended to select one of the options, then in that event, it is the law that he made the selection with the condition attached that if he died before the end of the month following the effective date of retirement, which he did, an allowance would be paid to the surviving spouse “in an amount that would have been payable if the member had retired immediately prior to his death and had elected Option 3.

TRS argues that the McKinnons, by failing to cross-appeal, cannot raise the question whether McKinnon intended to elect an optional benefit in lieu of the retirement allowance. TRS cites Holczstein v. Bessemer Trust & Savings Bank, 223 Ala. 271, 136 So. 409 (1931) to support its argument that McKinnon’s signature on the application cannot be impeached unless it was guilty of fraud or misrepresentation. We refuse to apply these rules of contract law to the state retirement system. The legislature refers to the Board of Control as “Trustees” and to the funds they administer as “trust funds.” The legislative intent obviously is such that members are not expected to deal at arms length with the Board of Control. In fact, the converse would be more apt. The obligation is upon the Board of Control to adopt procedures which will aid members in making a knowledgeable and informed election.

Furthermore, the Board of Control should try to ascertain the intent of its members when they apply and carry out that intent, if allowed by law, so that the members will receive all benefits provided by law.

We hold that the McKinnons are not foreclosed from showing that the deceased member did not intend to elect an option in lieu of the “retirement allowance.” On the other hand, TRS is not foreclosed from showing that the deceased member intended to elect the “Maximum retirement allowance.”

REVERSED AND REMANDED.

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

APPENDIX “A’

APPENDIX “B"

Appendix “C” to follow.

APPENDIX “C”


author: BEATTY, Justice.

text:
    GEER BROTHERS, INC., a corporation v. Timothy P. CRUMP et al.
    SC 2360.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    James J. Sledge of Roberts & Davidson, Tuscaloosa, for appellant.
    Bruce McEachin of Jones, McEachin, Or-mond & Fulton, Tuscaloosa, for appellees.
   BEATTY, Justice.

This is an appeal by the plaintiff from the granting of the defendants’ motion to dismiss on the ground of res judicata. We affirm.

On August 4, 1976 Geer Brothers, Inc. filed an action to recover damages sustained on account of losses due to a fire at their warehouse and business premises. Joined as defendants were Timothy P. Crump, Dennis E. Painter, Painter and Crump Insurance, a partnership, Pennsylvania National Mutual Casualty Insurance Company,' and several unknown parties. An amended complaint containing five counts was filed subsequently. Counts three, four and five of this amended complaint alleged that the plaintiff, Crump and Painter made a contract whereby those defendants undertook to provide adequate,insurance coverage for the plaintiff’s business operations and premises. In substance plaintiff alleged that its business operations included taking custody of items of personal property belonging to others, and that the insurance coverage provided by defendants Painter and Crump under their contract proved to be inadequate when a fire occurred on May 2, 1974 destroying that personal property. Counts three and five proceeded on the theory of breach of contract, while count four alleged negligence in failure to procure adequate insurance. Each count demanded $15,000.00 damages together with interest and costs.

The defendants Crump and Painter moved to dismiss the complaint on several grounds, including the ground of res judica-ta. They alleged:

(8) For that on, to-wit, November 11, 1974, the Plaintiff herein filed suit against these same Defendants, being Civil Action No. 6290 formerly pending in this Court, for the same cause of action or causes of action contained in this suit and on, to-wit, April 4, 1975, a judgment in favor of this same Plaintiff was entered against these same Defendants and the matters complained about in the complaint in this case have already been adjudicated or, if not adjudicated, the matters complained of in this case should have been included in and claimed in said former suit.

In opposition to the defendants’ motion to dismiss, the plaintiff filed an affidavit of Aaron Geer, president of the plaintiff:

3. That during the trial of the prior suit, evidence was brought forth on behalf of Geer Brothers, Inc. tending to show inadequate fire insurance coverage on the building of Geer Brothers which was destroyed by fire and on the inventory contained therein.
4. Further relating to the evidence brought out at trial of the prior suit, said evidence showed a loss through fire of inventory belonging to or on consignment to Geer Brothers, Inc. I do not recall any testimony concerning items of personal property belonging to others which had been delivered to Geer Brothers, Inc., for repair, service, etc.
5.A part of the reason for not including any claim for loss occasioned by the destruction of property belonging to others in the prior suit was the fact that shortly after the fire, Mr. Crump and Mr. Raymond G. Ashby asked me to prepare a list of the items owned by other persons that had been destroyed in the fire. I am informed that Mr. Ashby was at that time associated with General Adjustment Bureau, Inc. To the best of my recollection, I was told or given the impression that Mr. Ashby was adjusting this claim for my insurance company, Pennsylvania National.
7. After Mr. Ashby and myself agreed on the list, he left and I did not hear from him for several weeks. After this lapse of time I contacted Mr. Crump regarding payment of this claim. On several occasions Mr. Crump stated to me that it was his impression that the claim would soon be paid. I have no reason to doubt that Mr. Crump was sincere in these statements. Geer Brothers, Inc., still has its business insurance with Mr. Crump.
8. At some point Mr. Ashby told Mr. Crump that he needed more information and wanted to revalue some of the items lost. After some time, Mr. Ashby came out to our offices again, at which time we went over the list, adding more detail as regards brand name, year, model number, cost of repairs, etc. A new list was prepared and Mr. Ashby came by and picked up this second list. After this time I continued to contact Mr. Crump concerning payment of the claim and, in response to my inquiries, Mr. Crump indicated that it was his understanding that the claim would be paid. At some point Mr. Crump told me that Mr. Ashby was waiting for me to furnish him more information. However, Mr. Ashby had not contacted me since the time that the second list had been prepared.
9. After more conversations with Mr. Crump, I was told that Mr. Ashby wanted to revalue the items again. I made an appointment and met with Mr. Ashby at his office where we accomplished this reevaluation and arrived at a third list.
10. A few weeks after this third list was prepared, I received a letter from Mr. Ashby, a copy of which is attached hereto and made a part hereof as if set out fully herein, informing me that the insurance company felt that there was no coverage under my policy for this sort of loss. This letter is dated June 3, 1975, which is some months after the trial of the prior suit. The events which I have described above concerning the attempts to adjust this claim occurred both before and after the trial of the prior suit. It was not until some months after the prior suit was tried that I received notification from anyone, including any of the defendants in this action, that coverage for this loss was being denied.
11. Relating to the goods which were lost in the fire and are the basis for this suit, the business of Geer Brothers, Inc., included a repair business wherein it was customary for us to accept for repair various mechanical devices, etc. Many of the items accepted for repair were parts or components of mobile homes, motor homes, campers and other recreational vehicles. We also accepted for repair other devices including window air conditioners and even portable toilet systems.
12. This repair business has been a part of our operation for a number of years, and was a part of our operation at the time the insurance policy in question was written.

Following a hearing on the motion to dismiss, the trial court dismissed the action against Crump, Painter and their partnership on the ground of res judicata.

At the outset, the plaintiff argues on this appeal that the trial court had before it only the complaint, the motion to dismiss, the Geer affidavit, and briefs of the parties when the motion to dismiss was ruled upon. The defendant, on the other hand, states that the record in Civil Action No. 6290, which is contained in the record on this appeal, was before the trial court. The record on this appeal is silent on the question of whether either party introduced that record as part of the pleadings or as evidence for or against that motion. However, any such action would have been superfluous, because when a party refers to another proceeding or judgment of a court in his pleading before that court, as was done here, the court on motion to dismiss may take judicial notice of the entire proceeding, or so much of it as is relevant to the question of law presented. Cogburn v. Callier, 213 Ala. 38, 104 So. 328 (1925). Moreover, the parties on appeal have argued the issue of res judicata, and of necessity have brought into consideration the effect of the former judgment. Therefore, we have before us the principal question: Whether the action of the trial court was proper, and in our response to that issue we shall treat the trial court’s ruling as having been one upon a motion for summary judgment, Rule 12(b)(6), ARCP.

The description of those cases against which the defense of res judicata is inapplicable has not always been an easy task, but the decisions have laid down helpful guidelines.

In Reid v. Singer Sewing Mach. Co., 218 Ala. 498, 119 So. 229 (1928), the plaintiffs first suit against the same defendant had charged an entry into plaintiff’s home and a trespass in taking a sewing machine, the gravamen of the action. After a judgment was rendered in that action, plaintiff brought another action against the same defendant charging a trespass to the plaintiff’s home, the gravamen of the action, and other misconduct involving the taking of the machine. In considering whether the former judgment was a bar to the latter, and after considering earlier authorities, the court recited two common principles:

(1) When the former action was between the same parties, that former judgment is conclusive of questions actually litigated and which could have been litigated.

(2) Even though the forms of the ac-' tions, past and present, are different, if substantially the same evidence supports their issues, the judgment in the former action is a bar to the latter.

Using these guides, the court held the plaintiff’s action barred because the trespass upon the land and a trespass to personal property in a continuous transaction allowed for one right of action, recovery in one barring an action for the other. Of course, it will be observed readily that the case involved an entry into a private dwelling to seize a sewing machine which the court considered one continuing undertaking, and doubtless it was for that reason that the court concluded that the same evidence would support the two causes of actions; otherwise the result would appear erroneous under the evidentiary principle.

But these principles, it has been held, do not depend qpon complete identity of parties. If the former action included some parties not joined in the later action, or even if additional parties are joined in the second action, the former judgment still will operate as a bar to the latter if the party against whom the res judicata, is asserted was a party formerly, and the judgment was entered on the merits. Suggs v. Ala. Power Co., 271 Ala. 168, 123 So.2d 4 (1960); Young v. Rutledge, 229 Ala. 492, 158 So. 185 (1935).

Another case in which identity of evidence was found upon the issues in the different cases was Sessions v. Jack Cole Co., 276 Ala. 10, 158 So.2d 652 (1963). There the plaintiff filed two separate actions based upon the same accident. In one he claimed damages for property damage, and for medical expenses and loss of services of his wife and minor child. In the other he claimed damages for the wrongful death of his minor child whose death occurred from the same accident. The defendant sought under Title 7, § 146, Alabama Code to have the plaintiff elect his action,- and this Court, considering whether plaintiff was required to make that election, stated that § 146 would be applicable depending upon whether a judgment in one of the actions would be res judicata to the other. In answering that question, this Court, utilizing the evidentiary approach, stated:

. [t]he test for determining this question is whether the issues in the two suits are the same and whether the same evidence would support a recovery in both suits. . . . There is no doubt that the issues in the instant action would be identical with the issues in the wrongful death action and would be supported by the same evidence save for proof of each element of damage. This latter circumstance is not grounds for distinguishing the issues of each cause. (Emphasis supplied.)

But what of the rule pertaining to issues not litigated earlier but sought to be litigated in the subsequent action? When are those issues barred by the first judgment, and does it matter that the parties are not the same? These questions were answered in Gulf American Fire and Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968). The plaintiff brought an action against the insurance company upon the common count for money received by the defendant to the use of the plaintiff. The defendant pleaded res judicata. The facts disclosed that the plaintiff had insured his house with the defendant against fire for the sum of $1,200.00. The insurance policy contained a mortgage clause requiring the proceeds from loss to be paid to the mortgagee, and also provided for no company liability upon the existence of certain conditions. In the event of liability being denied, the policy allowed the company to pay off the mortgage debt and require an assignment of the debt and the mortgage. A fire loss occurred, liability was denied by the defendant company, and the company paid the mortgage debt which was then transferred to the defendant. The company foreclosed the mortgage and bought in the land for an amount which represented the mortgage debt and foreclosure costs. Then the defendant company sold the land for $1,200.00. When the plaintiff filed suit against the defendant on the policy, the defendant pleaded payment to the mortgagee under the policy before the first suit. That suit resulted in a judgment for the defendant.

Citing earlier Alabama decisions, including Reid, supra, and quoting from 50 C.J.S. Judgments § 687, pp. 143-4, and 30A Am. Jur. 375, 376, Judgments, § 327, the court held that the earlier judgment in the action on the policy was a bar to the later action on the common count.

The Court in that case observed that each of the parties was relying upon a distinct rule of res judicata : Defendant — res judi-cata is a bar not only to matters actually presented on a right asserted in the earlier case but to matters which might have been asserted. This rule, the Court stated, “applies in cases founded on the same cause of action. . . . ” Plaintiff — res judicata is a bar only in those cases where the parties are the same, the subject matter is the same, the identical point is in issue, and judgment has been rendered in the first suit on that point. The Court pointed out that this rule “applies in cases founded on different causes of action.” (Emphasis supplied.)

In this case as in Gulf American, the question is whether the present and former cases are founded upon the same cause of action.

What is a cause of action? Commenting on that very point in Session, supra, this Court quoted from Chappell v. Boykin, 41 Ala.App. 137, 127 So.2d 636 (1960):

‘In a majority of jurisdictions in the United States, the rule is that a single act causing simultaneous injury to the physical person and to property of one individual gives rise to only one cause of action, and not to separate causes based on the one hand on personal injury, and on the other on property damage. The basis of the rule is that a “cause of action” grows out of the wrongful act and not the various forms of damages that may flow from the single wrongful act.’

and then quoted from Birmingham Southern Ry. Co. v. Lintner, 141 Ala. 420, 38 So. 363 (1904):

‘It may be stated as a very general if not universal proposition that one who is entitled to sue at all for the consequences of a wrongful act may recover all the damages that such act has proximately inflicted upon him. His cause of action is the one wrongful act of the defendant.’

The first action brought by this plaintiff against Painter and Crump alleged the breach by the defendants of their agreement to procure adequate insurance coverage for plaintiff’s warehouse and business premises. That case resulted in a jury verdict for plaintiff in the amount of $54,-000.00, and judgment for the plaintiff was entered accordingly. The second action brought by this plaintiff against Painter and Crump (with the insurance company joined) alleged the breach by the partners of their agreement to procure adequate insurance coverage for plaintiff’s warehouse and business premises. The only difference in the plaintiff’s respective allegations lies in the references to certain personal property which allegedly was not properly covered in the insurance policy procured, and for which no damages were claimed in the first action. Plaintiff maintains that it could not claim damages for that property until coverage was denied, which took place after the judgment was entered in the first suit. That position is untenable because the plaintiff’s cause of action, for whatever damages it might claim, arose out of the one act of the partners in failing to provide adequate coverage upon whatever property plaintiff desired coverage. In the first action, indeed, recovery would depend upon evidence identifying the property which should have been insured, compared with evidence identifying the property actually insured. That is precisely the evidence which would have supported the issues in the second action. The only difference in the two actions would be the damages provable. But as Mr. Justice Simpson stated in Sessions, supra, a difference in the proof of damages is not grounds for distinguishing the issues in each case. There being no genuine issue of material fact presented by the pleadings and proof before the trial court, therefore, his summary ruling in favor of Painter and Crump was correct. Rules 56(b), 12(b)(6), A.R.C.P.

Plaintiff’s final argument is that the defendants are estopped from asserting the defense of res judicata because Crump, before and after the trial of the former action, indicated that the claim for the custodial personal property would be paid by the insurance company which was “adjusting” the claim. Mr. Geer’s affidavit clearly discloses that for “a number of years” the plaintiff had received the various items belonging to others for repair, and this “was a part of our operation at the time the insurance policy in question was written.” It is clear, also, that the failure to insure the items in plaintiff’s custody was a part of plaintiff’s cause of action for breach of Crump and Painter’s contract to provide adequate insurance coverage. If any loss occurred from the breach of that contract it was Crump and Painter’s breach which caused it, and which was relied upon, not the fact that the insurance company ultimately denied coverage under the policy which Painter and Crump procured in the performance of their contract with plaintiff. In that connection, plaintiff’s action for their breach of contract had been filed already and that action was litigating their entire cause of action, that is, all of their loss resulting from the failure to provide adequate coverage. The Geer affidavit referring to occasional statements by Crump concerning his “impression that the claim would be paid,” and “his understanding that the claim would be paid,” refer to the adjusting efforts of Mr. Ashby who, according to Mr. Geer’s impression, was adjusting the claim for his insurance company, Pennsylvania National. But Geer’s affidavit itself states that this adjusting was only “[A] part of the reason for not including any claim for loss occasioned by the destruction of property belonging to others in the prior suit. ...”

The elements of an estoppel are:

. . . ‘(1) A position of authority assumed by defendant . . . under the color or right; (2) submission to and reliance upon that assumption, by plaintiff and (3) injury suffered by plaintiff as a proximate consequence of such submission and reliance.’ Mooradian v. Canal Insurance Company, 272 Ala. 373, 130 So.2d 915 (1961), quoting from Belt Auto Indemnity Ass’n v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787, 790 (1924).

In these circumstances no estoppel has been established simply because the Crump statements do not show that Crump had any right to state that payment would be made; moreover, they do not even show that Crump assumed any authority with the insurance company to assure that settlement would be forthcoming. As we have noted, Geer’s, affidavit discloses that the plaintiff, at most, only partially relied upon Crump’s statement relating to settlement. To what degree Geer relied upon the Crump statements is unclear because some of these conversations occurred “shortly after the fire” and, inferentially, before the first action was filed. And finally, the loss sustained by plaintiff was not proximately caused by any reliance on Crump’s statements, but was caused by the same cause alleged in plaintiff’s first complaint, i. e., the failure to provide adequate insurance coverage.

Besides, estoppel can operate only when the subject-matter is contained in the terms of the contract. Cf. Home Ins. Co. of New York v. Campbell Motor Co., 227 Ala. 499, 150 So. 486 (1933). The scope and extent of the contract between the parties covering the property to be insured has been the subject of two lawsuits. Its terms are still in dispute. Estoppel could not operate against terms which may not have been included in the contract.

Because we have found that the action of the trial court granting the defendants’ motion was correct, the decision must be, and is, affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    June T. BRICE v. Donald W. BRICE.
    Civ. 931.
    Court of Civil Appeals of Alabama.
    Dec. 15, 1976.
    Rehearing Denied Jan. 20, 1977.
    J. Ronald Storey, Dothan, for appellant.
    L. A. Farmer, Jr., Dothan, for appellee.
   BRADLEY, Judge.

This appeal is from an order of the Circuit Court of Houston County modifying a prior divorce decree and an order denying wife-appellant’s motion asking that a new order be entered.

The parties to this appeal were divorced by the Houston County Circuit Court on January 10, 1975. The decree made a division of property and an award of child custody, child support and alimony, and required that certain insurance policies be maintained.

On August 21, 1975, pursuant to a request by the former husband and after a hearing, the trial court modified the January 10, 1975 decree by diverting $1,000 of the $1,800 awarded as monthly alimony to the payment of certain debts incurred by the former wife prior to the divorce. The modification decree further provided that after the payment of the debts the money diverted would again be paid to the former wife as alimony. The wife, June Brice, appealed the modification order to this court on August 29, 1975. After proceedings in this court and the supreme court, we affirmed the trial court on November 24, 1976.

During the pendency of appeal on the August 21, 1975 decree, Donald Brice petitioned the trial court to further modify the January 10 and the August 21, 1975 orders by asking that the amount of alimony previously decreed to be paid to the wife be reduced after the debts incurred by June Brice have been paid.

The trial court in an order dated May 1, 1976, modified the two previous orders, reducing the alimony payments from $1,800 per month to $800 per month. June Brice then asked for a reconsideration of this order. The motion was denied.

The present appeal was submitted to this court on the merits by way of briefs and on a motion to dismiss the appeal.

The record in this case shows that the appellant’s brief was due to be filed in this court no later than September 24,1976. On that day appellant requested of this court an extension of time in which to file her brief as permitted by Rule 31, ARAP. Rule 31 provides, among other things, that a party may receive one extension of up to seven days in which to file its brief. The rule also provides that if the appellant fails to file his or her brief within the time provided or as extended, the appellee may move for dismissal of the appeal.

This court granted the extension through October 4, 1976 for the filing of the brief. Appellant filed her brief on October 5,1976. The appellee, as authorized by Rule 31, supra, moved on October 11, 1976 to dismiss the appeal on the ground that appellant’s brief was filed late.

On October 13,1976 appellant filed in this court her response to appellee’s motion to dismiss the appeal. The substance of appellant’s reply is that her lawyer attempted to contact appellee’s lawyer to obtain the latter’s approval to a further delay in the filing of appellant’s brief but was unable to contact him. However, appellant’s lawyer did talk to appellee’s lawyer’s secretary, and told the secretary unless he heard from appellee’s lawyer, he would assume that appellee’s lawyer had agreed to an extension of time for filing her brief. The appellant makes no suggestion that she requested of this court, or made an attempt to request of this court, additional time in which to file her brief. Her sole effort was directed to obtaining the consent of counsel for the opposing party for additional time.

According to the rules of appellate procedure, this effort was misdirected. This court should have been requested to enlarge the time for filing the brief as permitted by Rule 26, ARAP.

Rule 26 provides, in pertinent part, as follows:

“The court for good cause shown may, upon motion, enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance or a petition for permission to appeal.”

As previously stated, this court was not asked by the appellant, either prior to the expiration of the seven day extension on October 4, 1976 or afterwards, for an enlargement of time as authorized by the rules. In fact no request was made of this court by the appellant for additional time in which to file her brief even after appellee moved for a dismissal of the appeal, including up until the time of this decision.

As we interpret the Alabama Rules of Appellate Procedure, only an appellate court can grant an extension of time for filing briefs, and that court is limited to one extension of seven days. After the expiration of the one week extension, the court can enlarge the time for filing briefs only after it is convinced, either on motion or otherwise, that for good cause shown additional time for filing a brief should be granted.

We granted the seven day extension as requested; we have received no other request from the appellant for an enlargement of time for the filing of her brief as permitted by Rule 26, supra. In the absence of such a request, we consider that the time for filing appellant’s brief expired on October 4, 1976 and appellee’s motion to dismiss the appeal is due to be granted.

MOTION GRANTED; APPEAL DISMISSED.

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


author: ALMON, Judge.

text:
    Ex parte June T. BRICE.
    SC 2358.
    Supreme Court of Alabama.
    Sept. 2, 1977.
   ALMON, Judge.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    PROTRANSCO, INC. v. The OCEANUS MUTUAL UNDERWRITING ASSOCIATION (BERMUDA) LTD., and American Casualty Company.
    Civ. 1099.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1977.

      Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.
    Sidney H. Schell of Pillans, Reams, Tap-pan, Wood, Roberts & Vollmer, Mobile, for appellee, The Oceanus Mut. Underwriting Ass’n (Bermuda) Ltd.
   WRIGHT, Presiding Judge.

The tug Defiance, owned by ProTransCo, was insured under two marine policies issued by American Casualty Company (hereafter called American) and the Oceanus Mutual Underwriting Association, Ltd. (hereafter called Oceanus). On March 14, 1970, a loss occurred. ProTransCo brought suit to determine which policy covered the loss. American admitted coverage and offered payment of the loss less deductible. Oceanus denied coverage because of the coverage by American. ProTransCo denied coverage by American and sought declaration of coverage by Oceanus because the deductible on that policy was $500 while the deductible on the American policy was $5,000.

The matter was submitted below upon stipulation of fact. It was agreed that if there was coverage under the American policy Oceanus had no liability. The court found coverage to be in American.

The issue is whether there was a collision by Defiance with a structure under the terms of the American policy. We reverse and remand with directions.

For better understanding of the case we now set out the pertinent factual stipulation.

“Stauffer Chemical Company maintains along the west bank of the Mobile River a dock facility and outboard of these docks there are several pile clusters and concrete and steel cells used for mooring barges. On the night of the casualty the tug DEFIANCE was bringing to the Stauffer dock a loaded barge (UM187) with the intention of leaving the loaded barge at the dock and picking up two empty barges (SCC90 and AD104) then at the Stauffer dock. In order to accomplish the exchange of barges it was necessary to shift the empty barges to make room for the loaded barge. The barge SCC90 had already been shifted to an upstream berth and secured and the tug, still made up to the loaded barge UM187 then came back down alongside the barge AD104 and secured the UM187 and the AD 104 together.
“Barge AD104 at the time had her bow facing upriver and was moored alongside and secured port side to the two northernmost pile clusters. The pile clusters were on the riverside of the dock and between the dock and the barge AD104. The AD104 was secured to the pile clusters with lines that were not part of the barge’s equipment but were provided by others for this purpose. The mooring lines were made up at the pile clusters by being tied to the wrapping cables which secured the groups of piles together.
“Running between the three pile clusters, partially in the water and partially out of the Water, was a continuous cable used by Stauffer personnel to shift the barges alongside the pile clusters as was necessary. On each of the three pile clusters was a sheave. The distance between the pile clusters was 120' and the barge AD104 was moored alongside two of these clusters. A continuous cable ran from a winch at the south end of the pile clusters through the sheaves on the riverside of each of the three clusters and then back from the northernmost cluster to the southernmost cluster and back to the winch. The cable gave the appearance of being an upper cable running through the three sheaves and a lower cable as this continuous cable was slack alongside the center cluster.
“On the night of the casualty there were two deckhands assigned to the DEFIANCE. After these deckhands had secured the loaded barge UM187 to the barge AD104, deckhand Bob Huron proceeded to the forward port bit on the barge to cast off and deckhand Albert R. Ayala, Sr., went to the stern port bit for the same purpose. The deckhands then proceeded to cast off all mooring lines securing the AD104. The DEFIANCE then came forward and started to swing the two barges out into the river with the intention of bringing the AD104 alongside of and securing it to the riverside (east) of the barge SCC90. During this shifting maneuver the stern of the AD104 swung inside the plane of the pile clusters and the after port bit of the barge got hung up on the top shifting cable attached to the clusters. As the tug and barges continued then to move away from the pilings this cable became taut and the deckhands were unable to throw it off and the center pile cluster was pulled over by the momentum of the movement and was damaged as a result. The entire damage to the Stauffer property was the result of the contact between the bits on the barge and the fixed shifting cable and the pulling or tugging on the pile cluster resulting therefrom. There was no other contact between the barge and the pile cluster or the barge and the dock in this maneuver.” (Emphasis ours.)

We first observe that we indulge no presumption as to the correctness of the findings of fact by the trial court because of it having heard the testimony. Such presumption is not to be indulged by the reviewing court when the evidence below was stipulated. Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115 (1950).

We next observe that we have before us the anomalous situation of an insured contending against coverage under the terms of his policy. ProTransCo urges that the terms of the American policy be construed most favorably to the insured. ProTransCo actually means that it wishes us to construe the policy so as to favor its present interest — that is that there is no coverage under the American policy so that it can recover under the more advantageous Oceanus policy.

The principle of construction urged by ProTransCo is well known, but it is based upon the proposition that the contract of insurance is written by the insurer and if there is any reasonable uncertainty as to its meaning which requires construction by the court, that uncertainty should be resolved in favor of coverage. Aetna Life Ins. Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904. ProTransCo is not invoking the principle in this case to secure coverage, but to defeat coverage which the insurer admits is provided by the policy. This is not a case for the principle of liberal construction in favor of an insured.

There can be little reasonable in-sistance that the pilings were not “structures, floating or otherwise” under a normal and reasonable construction of the term. There is little logic or reason in contending that the steel cable attached to each piling and extending to all of them and used in conjunction with them in mooring or unmooring barges was not an appendage of and a part of the “structure.” They are as much a part as would be a fender attached to the piling or a catwalk between the pilings. Such reasonable and practical application is most favorable to the insured seeking coverage. Trans-Continental Mut. Ins. Co. v. Harrison, 262 Ala. 373, 78 So.2d 917 (1955). Words of an insurance contract are to be given their natural and usual meaning so as to produce a rational and practical interpretation. Canal Ins. Co. v. Stidham, 281 Ala. 493, 205 So.2d 516 (1968). We find that the pilings were structures or collectively was a structure and the cable attached was an integral part of the structure. Our finding is supported by Webster’s Third New International Dictionary which defines “structure” as something “built or constructed.”

The remaining aspect of the issue is whether the hooking of the cable by the bit on the barge and the subsequent pulling was a collision with a structure.

Collision by connotation and definition is the violent or forceful striking together of things opposed. Webster’s Third New International Dictionary. In maritime law, collision has come to mean the violent contact of a vessel with another vessel though one vessel is not in motion. 44 Am.Jur.2d Insurance § 3180. Bennett S. S. Co. v. Hull Mut. S. S. Protecting Soc’y Ltd., 82 L.P.K.B.(N.S.) 1003 (1913). Express terms of insurance policies have broadened the meaning of collision to include contact by a vessel with any moving or stationary object. Carroll Towing Co. v. Aetna Ins. Co., 203 App.Div. 430,196 N.Y.S. 698.

The problem arises in this case not with the vessel and/or structure involved, but in applying the broad definition of collision with the facts as stipulated. A collision must be considered as the result of the act of colliding. There is no authority to be found that does not include in the definition of collision terms of force or violence, such as “violent encounter,” “forceful striking together,” a “clashing meeting,” “violent impact,” or a “meeting in sharp direct opposition.”

The factual event occurring in that case is underlined in the quoted stipulation. These undisputed facts connote no violent encounter nor forceful impact. There was no more collision by definition than if the damage had been done by the tug pulling away without casting off the mooring line of the barge from the pile. The facts stated indicate no forceful coming together of the cable and the bit of the barge. They merely became hung up while the tug was preparing to pull away. There was no collision. The judgment of the trial court must be reversed.

According to the stipulation, the loss paid by ProTransCo on December 7, 1970 was $7,865.00. It was stipulated that if coverage was not provided by the policy of American, there was coverage under the policy of Oceanus. It was further stipulated that if ProTransCo was entitled to recover from Oceanus, the amount recovered would be $7,365.00; that interest at the rate of 6% per annum from December 7, 1970 might be added in the discretion of the court. Having found no coverage in the American policy, the court now reverses the judgment of the trial court and remands the case with direction to the trial court to enter judgment in favor of ProTransCo and against the Oceanus Mutual Underwriting Association, Ltd. in the sum of $7,365.00. Interest at 6% from December 7, 1970 may be added at the discretion of the court.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


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    Irene Duke TAYLOR v. Wister Eugene TAYLOR.
    Civ. 1117.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1977.

      Douglas M. Bates of Adams & Bates, Dothan, for appellant.
    William G. Hause of Hardwick, Hause & Segrest, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment modifying a prior judgment for custody of children. We reverse.

The primary issue here is whether a hearing of a rule nisi for contempt of court may be converted into a hearing for change of custody without prior notice and opportunity to prepare.

The parties were divorced on December 7, 1975. An agreement that the mother should have custody of three minor children and reside in the home was incorporated in the divorce. The judgment was modified on October 5, 1976. The modification changed custody of the oldest child, a daughter, from the mother to the father. It directed the mother to leave the place where she was then living and return to live in the home in Dothan. The mother was further directed to sever all association and relationship with Kenneth A. Tew.

On December 10, 1976, the father filed a petition requesting that the mother be directed to show cause why she should not be held in contempt of court for failure to comply with the directives of the judgment of October 5, 1976. Motion to dismiss was filed by the mother on the ground that the provisions of the judgment she was charged with violating were void and unenforceable.

The record of the hearing on the rule nisi discloses that the court was reminded by counsel for the father that the mother had been ordered to move back to Dothan from Barbour County and to discontinue any relationship with Kenneth Tew. Counsel then informed the court that the mother had not moved to Dothan, but had married Tew and was living with him and her two children in Barbour County.

There was argument by counsel for the mother in support of the motion to dismiss the rule nisi. The court found the motion well taken and dismissed the rule nisi. The court then announced that it would entertain a motion by the father to modify the decree of October 5, 1976, as to the custody of the children. The motion was promptly made and the court stated “then we will go into that now.” Counsel for the mother announced that he was not prepared to defend a modification. The court commented that he should be as prepared for that as he was for the rule nisi, as it all involved the same thing — the welfare of the children. Counsel excepted to the court’s action.

The following colloquy then occurred:

“THE COURT: All right. In fact, I believe that the record would show — and it probably ought to come out anyway— that I remarked at the time that we had this hearing that if Mrs. Taylor — I guess now Mrs. Tew — did not do what I said, why, I would, would give custody of both children to the father. I believe I made that statement, if I’m not mistaken. And—
“MR. BATES: Your Honor, I would like in the interest of my client to ask that you recuse yourself from this case because in my opinion you have prejudged the matter, and I’d like to ask that you recuse — recuse yourself, set it for hearing before another judge.
“THE COURT: I deny that motion. The record would show what your grounds are, but that’s — this is all a continuing matter. And you’re quite correct. I do have an opinion about it, which your client will have to overcome since we have — well, I’ve already made a determination in this case, which the record shows. And — but, anyway. We will consider the, as I say, the — I agree with you. I cannot hold your client in contempt of court for failing to obey the type of order that I rendered. I realize that. I realized it at the time I made it, I suppose. But I’ll consider this complaint for contempt as a motion to further modify the decree for the best interests of these children.
“Mr. Hause, if you want to proceed on that I’ll let you.”

After this exchange, testimony was taken by the father and final judgment was entered taking custody of the children from the mother, relieving the father from further payment of support and permitting sale of the home and division of the proceeds.

It is the opinion of this court that the mother was denied constitutional due process. It does not comport with fundamental fairness to cite a party to appear and defend against an accusation of conduct constituting contempt of court and upon such appearance require that party to defend against a deprivation of custody of children. Fundamental fairness is what due process is all about. State Tenure Comm’n v. Madison County Bd. of Educ., 282 Ala. 658, 213 So.2d 823 (1968); Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954). Due process is a limitation even upon an equity proceeding. Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961). We believe the decision of this court in the case of Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977) is sufficiently in point to be dispositive of the issue of due process presented in this case. That case has been buttressed by the decision of our Supreme Court in the case of Ex parte Anonymous, 11 ABR 2104 (Aug. 12, 1977).

We are not holding here that the court upon presentation of information, by petition or otherwise, of need for immediate action to protect the minor children, could not act. However, such action would be temporary pending a due process hearing, and not a permanent change of custody as in this instance. See Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867 (1961).

The second issue presented is whether the motion that the judge recuse himself was improperly denied.

As this case is being reversed on other grounds, and remanded for further proceedings as the parties deem necessary and proper, we pretermit consideration of that issue. Should the situation arise requiring the motion for recusal to be made again, we perceive that better factual support could be laid in the record than is presently before the court. For guidance and consideration if such motion is again filed, we suggest a review of the case of Wambles v. Coppage, 333 So.2d 829 (Ala.Civ.App.1976), and Canon 3C, Alabama Code of Judicial Ethics.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


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    In re Norma Lee LINGO v. DIXIE VENEER COMPANY, a corp. Ex parte Norma Lee Lingo.
    Civ. 1143.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1977.
    Edward M. Price, Jr., of Farmer, Farmer & Price, Dothan, for petitioner.
    William L. Lee, III, and Stephen T. Eth-eredge of Lee & Mclnish, Dothan, for respondent.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The petitioner, Norma Lee Lingo, was an employee of Dixie Veneer Company, a corporation, of Abbeville, Alabama on October 21, 1973, and was injured, while in the line and scope of her employment when she fell some thirty feet onto some logs and a concrete floor. At the time of the fall, petitioner was placing logs on a conveyor belt. The fall resulted in injury to her lower back.

Petitioner filed an action in the trial court asking that it find she was suffering a job-related disability of seventy-five percent and to award her compensation commensurate with that finding. The respondent denied that petitioner was seventy-five percent disabled and asked that she not be awarded any further compensation. After a hearing the trial court found that petitioner was suffering a thirty percent disability to the body as a whole and awarded compensation accordingly. Petitioner seeks here a review of that judgment.

Petitioner’s first contention is that the trial court failed to comply with Title 26, Section 304, Code of Alabama 1940 (Re-comp.1958) in that it did not file a “statement [of] facts and conclusions [of law]” with its judgment.

Section 304 provides in part as follows:

. . At the hearing or any adjournment thereof, the court shall hear such witnesses as may be presented by each party, and in a summary manner without a jury . . . decide the controversy. This determination shall be filed in writing with the clerk of said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge.”

Petitioner further says that even if there has been a compliance with section 304, the findings of the court are so meager as to preclude a review of the judgment based thereon.

In Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 the supreme court said:

“When the trial court completely fails to comply with the provisions of § 304, Title 26, supra, the judgment of the trial court will be reversed by this court. But a substantial compliance will suffice. And we have held that where the trial court’s finding of fact is merely meager and omissive, this court will look to the evidence in the case to see if on any reasonable view of the evidence the judgment of the court can be sustained.” (Citations omitted.)

In the case at bar the trial court entered a judgment in which it made findings of fact that petitioner was an employee of respondent at the time of her injury, that she was injured on the job, that respondent had notice of her injury, that her average weekly wage at the time of injury was $66.43, that she received injuries to the lower back, that there was medical testimony that she would suffer a twenty-five percent disability, that she had been unable to work since her injury, that there was evidence relating to the extent of her education and past employment record and that the court observed the petitioner while in the courtroom and on the stand.

The court concluded that petitioner had suffered a thirty percent permanent partial disability to the body as a whole and was entitled to receive compensation pursuant to Title 26, Section 279(C)6, Code of Alabama 1940 (Recomp.1958) at the rate of $66.44 for 300 weeks less 43.2 weeks for compensation previously received, which is 256.8 weeks multiplied by $13.30 per week, which is two-thirds of $66.44 multiplied by thirty percent.

We find there has been a substantial compliance with section 304 so far as making findings of fact and conclusions of law is concerned and there is no error in this aspect of the trial court’s judgment.

Petitioner next says that the trial court committed reversible error by failing to find that she had suffered a permanent partial loss of ability to earn.

Petitioner’s contention is correct; the trial court nowhere in its findings of fact found that petitioner had suffered a permanent partial loss of ability to earn a living. The trial court instead found that petitioner had suffered a thirty percent permanent partial disability to the body as a whole.

In B. F. Goodrich Co. v. Martin, 47 Ala. App. 244, 253 So.2d 37, this court said:

“It is thus clear under the statute and decisions of our appellate courts hereinafter cited, that the criteria for determining permanent partial disability for purpose of compensation is not controlled by a finding of physical disability of the body as a whole. Compensation is awarded on the basis of permanent partial loss of ability to earn. Without such finding of fact there can be no award. We emphasize that physical disability may be inextricably involved but not necessarily or exclusively so. The requirements as to the finding of a decreased ability to earn resulting from a compensable non-scheduled injury are ably discussed in Goodyear Tire & Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So.2d 278, and Ala. By-Products Co. v. Landgraff, 248 Ala. 253, 27 So.2d 215. We further recommend Larson’s Workmen Compensation Law, Vol. 2, Section 57.”

Again, in Brooks v. Crimson Homes, Inc,, 51 Ala.App. 252, 284 So.2d 279, this court said, in answer to the same contention:

“. . . there was no finding of fact as to the loss of ability to earn, but there was evidence in the record as to the earnings of respondent at the time of his injury, his earnings at the time of trial, his limited education, the limitation of his work experience to manual skills, his constant suffering and pain from the injury, and the prediction by the attending physician that respondent could not do manual labor.
“There being no finding in the trial court’s judgment of a permanent partial loss of ability to earn, this case must be reversed for there is no basis for the award. It must therefore be remanded to the trial court for the ascertainment of the existence of a permanent partial disability to earn, if there be any.”

Likewise, in the case at bar there was evidence in the record as to the earnings of petitioner at the time of her injury, her limited education, the limitation of her work experience to manual skills, and her inability to work at her job since the injury. But, there was no finding of a loss of ability to earn, and, without such a finding there is no basis for an award. Regretfully, we have no alternative but to reverse the judgment and remand the case to the trial court.

REVERSED AND REMANDED.

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