author: PATTERSON, Presiding Justice, for the Court: SUGG, Justice

text:
    MISSISSIPPI STATE BUILDING COMMISSION, Appellant, v. BECKNELL CONSTRUCTION, INC. and St. Paul Fire & Marine Insurance Company, Appellees.
    No. 48460.
    Supreme Court of Mississippi.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      A. F. Summer, Atty. Gen. by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, Delos H. Burks, Picayune, for appellant.
    Heidelberg, Woodliff & Franks, Sam E. Scott, Jackson, for appellees.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice, for the Court:

The Mississippi State Building Commission brought suit for bond forfeiture against Becknell Construction, Inc. and St. Paul Fire & Marine Insurance Company. The defendants successfully moved to transfer the cause from the Circuit Court of the First Judicial District of Hinds County to the Chancery Court upon equitable defenses. From an adverse decree of the Chancery Court, the Mississippi State Building Commission appeals. We affirm.

In February and March of 1972 the State Building Commission published advertisements for bids for the construction of a classroom building at Jackson State College. The bids were to be finally accepted on March 21, 1972, at 2:00 p. m. Included in the bid process was the requirement of a certified check or acceptable bid bond in an amount equal to five percent (5%) of the base bid. This security for serious bidding was to be forfeited as liquidated damages by the successful bidder who failed or declined to execute a contract in accordance with his bid.

Henry Osborn compiled Becknell’s bid on the Jackson State building. He completed the figures and filled in the base price, in numbers and words, on the bid form while being driven to the Woolfolk State Office Building on March 21, 1972, just prior to 2:00 p. m. After the bids were submitted he remained in the office of the building commission until all of the bids were opened and copied the amount of each as they were announced. After hearing Becknell’s bid read aloud, he realized, in accord with his testimony, the bid was one hundred thousand dollars ($100,000) less than intended due to his erroneous transposition of figures from his work sheet to the bid form while enroute from his place of employment to the State Office Building. He immediately called Becknell, his superior, and informed him of the alleged mistake.

Becknell checked Osborn’s bid estimates and called James G. Chastain, the Executive Director of the Mississippi State Building Commission, and notified him of the mistake the same day. At 8:00 o’clock the next morning W. H. Fanning, Jr., a vice-president of Becknell, met with Chas-tain in the director’s office and delivered a letter to him in explanation of the mistake on the bid form, as well as a copy of the estimate work sheet. He also inquired if a meeting with the State Building Commission was necessary to explain the mistake and was advised that the meeting was not essential. The essence of the letter was, “The correct amount of the bid was, to have been $2,219,500.00, however, in transposing it was written in as $2,119,500.00. After your careful study of the documents presented with this letter, we will certainly appreciate your consideration in granting our request to withdraw our bid without penalty.”

Chastain was unable to reconcile the figures of the work sheet to the sum of the bid. The commission, therefore, awarded the contract to Becknell at its next regular meeting without requesting an explanation of the figures from Osborn or others.

Becknell refused the contract and it was thereafter awarded to the second lowest bidder, and this action was instituted for recovery on the bond. As mentioned, a motion to transfer to the chancery court was filed and at that time another work sheet of Osborn, the bid estimator of Beck-nell, was placed into evidence. Its figures are somewhat different from those on the work sheet that was attached to the letter previously delivered to the building commission. We observe also that during the course of the trial a third work sheet was placed in evidence. It also differed from the other work sheets. The discrepancies in the work sheet figures, however, were not made the basis for charging fraud against Becknell and, indeed, in response to an interrogatory the commission concedes that lack of good faith has not been charged, and succinctly sets forth the state’s position. It follows:

34. State the reasons and circumstances that led the State Building Commission to conclude Becknell was not acting in good faith and exercising ordinary care.
34. Lack of good faith has not been charged. It has been the position of the State Building Commission throughout this controversy that, once a bid that is legal on its face has been tendered, received and opened, and in the absence of statutory authority, it would be unlawful for the State Building Commission to permit a contractor to alter or amend its bid or to be permitted to withdraw the same.

The cancellor found that an honest mistake had been made in the bid. The language below expressed his views:

. . . In this cause, there has been no attack whatsoever on the reputation or honesty, or integrity of the Defendant Becknell Construction, Inc. or the Defendant St. Paul Fire and Marine Insurance Company, or any of its officers, agents or personnel, which leaves only the idea that if an error was made, it was an honest mistake.

The commission’s bill of complaint was dismissed, and the bid bond filed by Beck-nell was cancelled in accord with the prayer of the cross-complaint of the respondents.

It is contended that the trial court erred by substituting its judgment for that of the State Building Commission in determining the lowest and best bid was not that of Becknell. The commission cites Parker Bros. v. Crawford, 219 Miss. 199, 68 So.2d 281 (1953), wherein it is held that public boards are vested with a sound discretion in determining who is the “lowest and best bidder,” and their decision, when based on an honest and reasonable exercise of the vested discretion will not be interfered with by the courts. We adhere to this principle, and when the discretion is properly exercised, the courts will not interfere with the judgment of a public board.

We note, however, that the building commission did not formally meet or otherwise afford Becknell an opportunity to explain the work sheet, or sheets, antecedent to its bid. It was aware that inquiry had been made to this end and Chas-tain, executive director of the commission, had advised Becknell that an appearance was unnecessary. The commission, though promptly notified of the claimed mistake, had before it only the letter of Becknell and the first unexplained work sheet when the contract was awarded. We are not persuaded by the appellant’s argument that the trial court was substituting its judgment for the State Building Commission when it declined to impose the liquidated damage feature of the bond for Becknell’s declination of the contract. The court was not sitting on appeal to review an administrative order or finding and hence was not restricted to the confines of the record evidence, the bid, the letter characterizing the mistake and the figures of the first work sheet, as was the commission. It was sitting as a trial court in a suit instituted by the commission to determine on the merits from the evidence before it whether Beck-nell’s claim of honest mistake was reasonable and justified. It had evidence before it in dismissing the commission’s suit that was not before the commission at the time it awarded the contract. These circumstances, in our opinion, do not support the argument of substitution of judgment as contended by the appellant.

The appellant next contends that the negligence of Becknell caused the mistake and thereby established its liability under the bond. Osborn claimed to have made the error in transposing the figures from the work sheets to the bid document. He testified in part:

Q. What you’d claim to this court now to be a mistake really was a little bit of carelessness, wasn’t it?
A. It could be construed as stupidity or carelessness or even negligence, if we so elected to use those terms, because of my thirty years I have only had one other occasion of this in my life span.

Hunt v. Davis, 208 Miss. 710, 45 So.2d 350 (1950), citing Wall v. Wall, 177 Miss. 743, 171 So. 675 (1937), is urged in support of this point. We there stated:

. [Mjistake “to constitute equitable relief, must not be merely the result of inattention, personal negligence, or misconduct on the part of the party applying for relief.” (208 Miss, at 725, 45 So.2d at 352).

Hunt arose from a dispute on the quantity of mineral acres intended to be purchased by one litigant and sold by the other. Wall sought to reform a deed to accord with the alleged intention of the parties. The rule announced in Hunt through Wall is undoubtedly correct. Its application, however, is not always mandated, but must be judged from the particular factual circumstance before a court. More apropos to the present situation is the rule found in Terre Haute Cooperage, Inc. v. Branscome, 203 Miss. 493, 35 So.2d 537 (1948), wherein we held, in a suit for the rescission of a timber deed, that equity will grant appropriate relief for a unilateral mistake in proper cases.

We find persuasive State Highway Commission v. State Construction Co., 203 Or. 414, 280 P.2d 370 (1955), a case concerning similar facts to the present, in which equity prevailed. It states:

“But where the mistake is of so fundamental a character, that the minds of the parties have never, in fact, met; or where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in statu quo; equity will interfere, in its discretion, in order to prevent intolerable injustice. This is the clearly defined and well established rule upon the subject, in courts of equity, both in England and America.” (203 Or. at 435, 280 P.2d at 380).
“The appellants in the case before us fall within the rule. By mistake and inadvertence, they put in a bid for a piece of work for a sum much less than they intended to bid for it, and for a sum much less than that for which the work could be performed without loss. The mistake was not due to their willful neglect; nor will the granting relief from the mistake cause the other persons interested any serious loss, other that they will be deprived of the gain to be derived from a forfeiture of the check. But this latter is not a loss or injury, within the meaning of the rule, and is not a ground for denying relief.” (203 Or. at 436,280 P.2dat381).
In the instant case the defendant Construction Company made a serious and substantial mistake in its bid; it was an honest mistake, and not one that was intentional nor one due to gross negligence or willful neglect; immediately upon discovering the error, Defendant advised plaintiff thereof and sought to withdraw its bid. The bid had not then been accepted nor had the other bids been rejected. Plaintiff had in nowise changed its position because o*f the mistake. In everything it did defendant acted in good faith. It is manifest that it never intended to submit a bid without including therein the cost of the necessary steel sheet piling. When plaintiff assumed to accept the bid no meeting of the minds occurred. . . . (203 Or. at 436, 437, 280 P.2d at 370). See also Cataldo Construction Co. v. County of Essex, 110 N.J.Super. 414, 265 A.2d 842 (1971), and Smith & Lowe Construction Co. v. Herrera, 79 N.M. 239, 442 P.2d 197 (1968).

The record unquestionably reveals that negligence caused the mistake. Implicit in the very definition of “mistake” is some degree of negligence. Human failing is its essence and it denotes an error of judgment. Nevertheless, it still remains the obligation of a court of equity to determine whether, despite such mis judgment, it would be inequitable and fundamentally unjust not to grant relief from honest but negligent mistake. Cataldo, supra. The present mistake was promptly called to the attention of the commission before the contract was let and at a time when the status quo could have been restored without substantial injury to the parties. The loss of windfall gain arising from negligent mistake, which does not appear from the record, in our opinion, to be either willful or gross, does not preclude equitable relief.

It is next urged that we should reverse because the trial court’s decision does not follow City of Hattiesburg v. Cobb Bros., 183 Miss. 482, 184 So. 630 (1939), wherein we stated:

The letting of public contracts by competitive bidding is for the protection of the public, and the public authorities are without the right to permit a bid for the contract to be withdrawn in the absence of circumstance that would render it inequitable not to permit its withdrawal. The inequitable circumstance here claimed is an honest mistake in determining the amount of the bid. Unless the mistake was in fact made, and honestly made, no right of withdrawal would appear. In determining whether to permit the withdrawal of this bid, the Mayor and Commissioners were under the duty to the public to ascertain whether a mistake affecting the amount of the bid had in fact been made. In order to do this, it was necessary for them to be advised of the character of the claimed mistake, so that they might consider it in connection with the bid and the advertisement therefor. The mere claim that a bidder has “made a mistake” or “found some error” in his bid neither gives him the right to withdraw his bid nor imposes on the public authorities any duty to examine the bid in order to ascertain whether a mistake appears therein. Another reason for requiring the character of the mistake made to be set forth in a notice of withdrawal of a bid is that, in an action to rescind the contract made by the acceptance of the bid and to recover a benefit conferred by the bidder on the other party to the contract, the bidder may be confined to the particular mistake claimed to have been made when the notice of withdrawal was given. (183 Miss, at 494-95, 184 So. at 631-32.)

Becknell’s prompt notice to the commission unquestionably influenced the trial court in its determination that an honest mistake had been made. As we read Cobb, it requires the bidder who claimed the mistake to advise the public body who had requested bids the character of the mistake claimed so that it might be considered in connection with the bid and the advertisement. It also confines the claimant to the specific mistake claimed when the notice to withdraw the bid was made. The Court sought to eliminate, in our view, false claim or frivolous error. Cobb placed upon the mayor and commissioners the duty to ascertain whether a mistake affecting the amount of the bid had in fact been made.

The statement in Cobb that public authorities are under no duty, to examine the bid in order to ascertain whether a mistake appears, means that the claimant has the onus or burden of going forward with the evidence to prove the reasonableness of the mistake. Otherwise, the opinion contradicts itself inasmuch as it places a duty upon public authority, but withdraws from public authority the means to fulfill the duty. We conclude that Cobb, supra, permits evidence to be presented in support of a mistake once its character has been promptly established, as was done in this instance.

The final contention is that the conclusion of the chancellor was manifestly wrong. The record discloses ample evidence, in our opinion, to support the finding of the chancellor that Becknell made an honest mistake in its bid. It is true that the figures of the work sheets differ and that from them the amount of the bid cannot be substantiated mathematically. However, this is counterbalanced by the promptness of notification of the mistake, the letter in evidence designating the character of the mistake, the work sheet in support of it, and inquiry of the director toward a commission hearing, undoubtedly to offer further evidence and explanation of the mistake, which was not thought to be essential by the director.

Moreover, Becknell was not charged with bad faith in withdrawing its bid. The record does not disclose, in our opinion, evidence supporting a finding of bad faith, nor did the chancellor so find. This was sufficient to sustain the chancellor’s finding and we cannot state, nor do we think we should, that he was manifestly wrong.

The fear advanced by the appellant that the doors will be opened whereby future bidders on public contracts may defraud the public is somewhat persuasive, but we think it overlooks the ability of the commission and the courts to deal with these situations when and if they arise. Certainly this argument cannot now inject fraud into the withdrawal of the present bid. The possibility of future fraud does not establish a present fact.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, and WALKER, JJ., concur.

SUGG, SMITH and BROOM, JJ., dissent.

SUGG, Justice

(dissenting):

I dissent because there was insufficient evidence to support the chancellor’s finding of fact.

On March 22, 1972, one day after the bids were opened, the Building Commission received a letter from Becknell enclosing a copy of a rough draft of the bid proposal and the estimate sheets used in preparing the bid. Becknell contended that the error occurred in transposing the amount of their bid from the estimate sheets to the proposal.

On March 30, 1972 James G. Chastain, Executive Director of the Building Commission, notified Becknell that the Building Commission subcommittee had considered Becknell’s letter and attachments and requested that Becknell either proceed with the work based on the bid submitted or forfeit the amount of the bid bond.

In a letter dated April 6, 1972 Becknell declined to enter into the contract for $2,119,500.00, which was the amount of their bid, and also requested that their bid bond be returned.

The Commission, after considering the estimate sheets for the claim of Becknell, found that the figures on the estimate sheet did not total $2,219,500.00 as claimed by Becknell, and did not total $2,119,500.00, the amount shown on Becknell’s bid. In that situation the Commission found that the claim of alleged error was not supported by the documents submitted, declined to permit Becknell to withdraw its bid in the amount of $2,119,500.00, declined to increase the bid by $100,000.00, and declined to permit a return of Becknell’s bid bond.

In City of Hattiesburg v. Cobb Bros. Const. Co., 183 Miss. 482, 184 So. 630 (1938), this Court stated:

The appellant’s duty was to act on the notice as given, and it was under no duty to advise the appellee what the notice should contain in order to be effective. (183 Miss, at 495, 184 So. at 632).

In the Hattiesburg case, the Court simply held that the City was under no duty to advise Cobb Bros, what proof was necessary to substantiate their claim in support of their request to withdraw their bid.

Becknell claimed that it had a- right to withdraw its bid on its naked assertion that a $100,000.00 error was made in transferring the amount of its bid from its estimate sheets to the bid proposal filed with the Commission.

At the hearing in chancery court this is the sum total of all the evidence offered on behalf of Becknell. In my opinion this was not sufficient because Becknell should have substantiated the accuracy of each of the items shown on its estimate sheets. The estimate sheets and three photo copies of it were before the chancery court. The majority opinion notes that none of the three photo copies agree with each other or with the original estimate sheet.

According to the original estimate sheets the subtotals of direct job cost consisted of the following items:

Labor $ 261,900.00

Materials 487,100.00

Sub-Work 1,248,900.00

Total $1,997,900.00

When these sub-totals were transferred to the last sheet by Becknell they were listed as follows:

Labor $ 261,900.00

Materials 487,100.00

Sub-Work 2,248,900.00

Total $1,996,100.00

Obviously on Becknell’s original sheet an error was made in transferring subtotals to the last sheet but the error was $1,000,000.-00 instead of $100,000.00. In any event the direct job cost of $1,996,100.00 as shown on Becknell’s last sheet cannot be obtained by adding any combination of figures shown as a subtotal on the preceding sheet.

It was the duty of Becknell to establish before the Commission and also before the chancery court the accuracy of the various items shown on the estimate sheet. Since more than 50% of the job cost consisted of items that were to be subcontracted by Becknell, it should have presented in evidence proposals that it received from its subcontractors. I know of no other method by which Becknell could properly substantiate the amount that' it claimed for subcontracts. It should also have established the material costs shown on its estimate sheets by listing quotations which it received from vendors of the building materials. This information on which Beck-nell based its bid was available to it because such information was necessary for the preparation of its estimate sheets. The correctness of each of the items on the estimate sheets were easily capable of proof. Absent this proof no credence should be given to Becknell’s unsupported claim of mistake.

There is a term in the contracting business known as “leaving money on the table.” This occurs when a low bidder submits a bid considerably lower than the next lowest bid. The requirement that bidders .claiming a mistake substantiate a claimed mistake has as its purpose defeating the possibility of a bidder recovering “money left on the table.”

When all of the evidence is analyzed it amounts to nothing more than a claim by Becknell that it made an error in transferring the amount of its bid from the estimate sheets to the bid proposal. Becknell made no effort to justify or prove the correctness of the items on the estimate sheets. The claim of an error in transferring figures from estimate sheets to a bid proposal, standing alone, is not sufficient to entitle Becknell either to change the amount of its bid, or withdraw it.

I would reverse and render judgment for the Building Commission.

SMITH and BROOM, JJ., join in this dissent.

      . The total bid consisted of direct job cost plus payroll, taxes, builders risk, building permit, state taxes, fee of 5% and bond premium. Most of the items added to direct job cost are computed on the amount of direct job cost.


source: Caselaw Access Project

license: Public Domain

text:
    James T. PALMERTREE and Jerry Palmertree v. STATE of Mississippi.
    No. 48936.
    Supreme Court of Mississippi.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Hugh L. Bailey, Winona, for appellants.
    A. F. Summer, Atty. Gen., by John C. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before INZER, P. J., and SUGG and WALKER, JJ.

Affirmed.


author: ROBERTSON, Justice:

text:
    STATE of Mississippi v. Marvin MAYS.
    No. 48953.
    Supreme Court of Mississippi.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Tommy McWilliams, Asst. Dist. Atty., Drew, A. F. Summer, Atty. Gen., by John C. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellant.
    W. C. Trotter, III, Belzoni, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   ROBERTSON, Justice:

Marvin Mays was indicted by the grand jury in the Circuit Court of Sunflower County for the crime of sodomy. The circuit court sustained a motion to quash the indictment, finding in its order:

“[T]hat the statutory allegations of the indictment are so vague, ambiguous, indefinite and uncertain as to deprive the Defendant of the constitutional right of due process guaranteed him by the Constitution of the United States and the Constitution of the State of Mississippi.”

The State appeals from the order quashing the indictment and discharging the defendant.

The indictment reads:
“That MARVIN MAYS late of the County aforesaid, on the 4th day of April 1975, in the County aforesaid, being then and there a male person, did willfully, unlawfully and feloniously commit the detestable and abominable crime against nature by having unnatural carnal intercourse with one Marty Bergin, a human being, by inserting and penetrating his, the said Marvin Mays’ penis into the anus of the said Marty Bergin to gratify the lust of said Marvin Mays.”

Mississippi Code Annotated section 97-29-59 (1972), titled “Unnatural intercourse”, provides:

“Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.”

Mississippi Code Annotated section 99-7-1 (1972), titled “Indictment may charge offenses according to common law or statute”, provides:

“Offenses at common law, indictable and punishable by special statutory provision, may be indicted as described or charged according to the common law or according to the statute, and, on conviction, the offenders shall be punished as prescribed.”

This Court has equated the common law crime of sodomy with “the detestable and abominable crime against nature committed with mankind or with a beast,” proscribed in Section 97-29-59. We have ruled that indictments describing or charging the crime “according to the common law or according to the statute” were valid and constitutional indictments. See Taurasi v. State, 233 Miss. 330, 102 So.2d 120 (1958); and State v. Davis, 223 Miss. 862, 79 So.2d 452 (1955).

The indictment in the case at bar describes and charges the crime both according to the statute and according to the common law.

In Rose, Warden, v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185, (1975), the Supreme Court of the United States rejected the contention that a Tennessee statute proscribing “crimes against nature” was unconstitutionally vague.

The Court said:

“It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’ United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); See Wainwright v. Stone, 414 U.S. 21, 94 S. Ct. 190, 38 L.Ed.2d 179 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for ‘[i]n most English words and phrases there lurk uncertainties.’ Robinson v. United States, 324 U.S. 282, 286, 54 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conform their conduct so as to avoid that which is forbidden. (Emphasis added).
“Viewed against this standard, the phrase ‘crime against nature’ is no more vague than many other terms used to describe criminal offenses at common law and now codified in state and federal penal codes. The phrase has been in use among English-speaking people for many centuries, see 4 W. Blackstone, Commentaries *216, and a substantial number of jurisdictions in this country continue to utilize it. See Note, The Crimes Against Nature, 16 J. Pub. L. 159, 162 n. 19 (1967). Anyone who cared to do so could certainly determine what particular acts have been considered crimes against nature, and there can be no contention that the respondent’s acts were ones never before considered as such. See, e. g., Comer v. State, 21 Ga.App. 306, 94 S.E. 314 (1917); State v. Townsend, 145 Me. 384,71 A.2d 517 (1950).
“. . . In State v. Crawford, 478 S. W.2d 314 (Mo.1972), the Supreme Court of Missouri rejected a claim that its crime against nature statute was so devoid of definition as to be unconstitutional, pointing out its provision was derived from early English law and broadly embraced sodomy, bestiality, buggery, fellatio, and cunnilingus within its terms. We dismissed the appeal from this judgment as failing to present a substantial federal question. Crawford v. Missouri, 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972); see Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2289, 45 L.Ed. 2d 223 (1975). And in Wainwright v. Stone, supra, we held that a Florida statute proscribing ‘the abominable and detestable crime against nature’ was not unconstitutionally vague, despite the fact that the State Supreme Court has recently changed its mind about the statute’s permissible scope.” 423 U.S. at 49-51, 96 S. Ct. at 244-45,46 L.Ed.2d at 188-89.

The indictment and the statute, § 97-29-59 (implemented by § 99-7-1), clearly met all constitutional tests.

The judgment of the trial court quashing the indictment and discharging the defendant, is reversed and this cause remanded to the circuit court for trial.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ., concur.


text:
    Bobby Gene McGORY v. Orlean Buchannan McGORY.
    No. 48582.
    Supreme Court of Mississippi.
    March 30, 1976.
    Parker, Averill & Winston, Tupelo, for appellant.
    Rex F. Sanderson, Houston, for appellee.
   Appeal from Chancery Court, Chickasaw County; W. W. Brand, Jr., Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


author: PATTERSON, Presiding Justice.

text:
    Homer Wayne BARRETT v. STATE of Mississippi.
    No. 48833.
    Supreme Court of Mississippi.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      Self, Bailey & Jordan, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice.

Homer Wayne Barrett was indicted and tried for the murder of Bill McCraw by the Circuit Court of Lauderdale County. He was convicted of manslaughter and sentenced to ten years in the state penitentiary. He argues for reversal by this Court (1) the verdict of the jury was against the overwhelming weight of the evidence, (2) the trial court erred in permitting witness Jay Sutton to testify, and (3) the trial court erred in not permitting the introduction of photographs into evidence. We affirm.

On the night of November 28, 1973, George Brantley and Slay Boswell were shooting pool and drinking beer in the Pizza King in Meridian, Mississippi. Shortly before midnight they were joined by Ken Carmichael and Bill McCraw. Carmichael and McCraw had been drinking whiskey and beer and were described as being “fairly drunk.” Brantley was characterized as “fairly sober” and Boswell “not as drunk as Bill and Ken.”

When the Pizza King closed at midnight, the four young men repaired to the adjacent parking lot where they loitered while discussing what to do next. A few minutes later a silver 1968 or 1969 Chevrolet automobile with a black top pulled into the parking lot. A man, whose identity was unknown, exited the automobile and was told by one of the young men that the restaurant was closed for the evening. The man tried the door anyway, found it locked, and as he returned to his automobile one of the young men addressed an obscenity to him; whereupon the stranger turned around, pulled a pistol from his coat and walked toward Brantley.

Brantley told him that he had not said anything, but nevertheless he was struck on the head with the butt of a pistol, causing the weapon to discharge. Immediately thereafter, when he realized that he was bleeding from the pistol blow, Brantley called the stranger a “son-of-a-bitch,” whereupon the pistol was pointed toward Brantley’s stomach and fired a second time, the bullet grazing his skin. As he departed to his automobile, the assailant fired twice over his shoulder, wounding Carmichael and killing McCraw.

Boswell, Brantley and Officer Sutton, who was on patrol nearby, testified that four shots were fired. Carmichael, though he told of each shot that was fired, testified on cross-examination he could not recall the number of times the pistol was fired.

Barrett’s defense was an alibi. By his testimony and his witnesses he placed himself in his home or his next door neighbor’s, some eight miles from the parking lot of the Pizza King, when the fatal shot was fired.

The details of the incident are undisputed. The alibi was controverted and was the primary issue" in the trial court as it is in this Court.

Brantley, who was struck on the head and shot in the somach by the person who killed McCraw, came face to face with this assailant in the parking lot. He testified the appellant was the person who struck him and shot McCraw. He explained the identification was possible because the area was illuminated by a street light about forty-five yards from the scene. It should be recalled that Brantley was characterized as being “fairly sober” at the time of the fracas.

Brantley’s identification of the appellant was corroborated by other testimony. On the night of November 21, 1973, Theodore Aniel, a Navy petty officer and parttime private detective, met Barrett, an acquaintance, at the wrestling matches in Meridian and purchased from him a .38-caliber “Charter Arms” pistol, Serial No. 172389, for $50.

On November 26 as the result of a conversation with an FBI agent, Aniel handed the pistol to Jim Roberts, a special agent with the Alcohol, Tobacco & Firearms Division, for inspection. After conferring with Roberts, whose interest was the identification and recovery of stolen firearms, Aniel stopped payment on his check for the purchase of the pistol and advised Barrett that it would be returned. In the meantime Roberts inspected and photographed the weapon. He concluded it was then new since it had no powder burns or pit marks on it.

At approximately 8:30 p. m. on November 28, while again at the wrestling matches, Aniel returned the pistol to Barrett and received in turn his check therefor. On November 29 Detective Flaherty of the Meridian Police Department received a copper jacket from a .38-caliber bullet which had been removed from McCraw’s body. Thereafter Aniel again had conversation with Roberts, the treasury agent, who was still concerned with stolen weapons and it was decided that Aniel should attempt to purchase other weapons from Barrett. To this end Aniel contacted Barrett who was willing to sell the .38-caliber pistol which had previously been returned to him.

On December 12 Aniel and William Turner, another agent of the Alcohol, Tobacco & Firearms Division, met Barrett at the wrestling matches where the pistol was repurchased by Aniel with funds supplied by Turner. It was later examined by Turner and Roberts who discovered that since the previous examination of the weapon it had been fired from four of its five revolving chambers. From this chronology of events the pistol was given to Detective Flaherty of the Meridian Police Department.

Detective Flaherty brought the pistol and the copper jacket to John Dial, a criminalist in firearms evidence with the Mississippi Crime Laboratory. It was Dial’s testimony from microscopic examination of the projectile and comparison with other projectiles from the gun that the copper jacket removed from McCraw’s body was fired from the pistol purchased from Barrett. Paul McDonald, a ballistics expert with the Arkansas State Police, examined the copper jacket and the pistol and came to the same conclusion as Dial.

Mrs. Lou Aniel, wife of Petty Officer Aniel, was an employee at the concession stand on the evenings of the wrestling matches. She was acquainted with Barrett who on occasion assisted her at the concession stand. She testified that Barrett, when asked by her where he had been on the night of November 28 following the wrestling matches, replied that he had bought a fifth and had picked up a girl. He also stated, according to Mrs. Aniel, that he and the girl drove around in her car. The girl got drunk and passed out and he got home at 2:00 the following morning.

The state’s case depended upon Brant-ley’s identification of Barrett, the connection of Barrett to the pistol, the connection of the projectile removed from McCraw’s body to the pistol, as well as the opportunity for Barrett to have been at the Pizza King parking lot when the shooting occurred.

Barrett’s defense, as mentioned, was an alibi. In defense he testified that he left the wrestling matches at approximately 10:00 p. m. on' November 28 after helping Mrs. Aniel close the concession stand. He stated his mother had attended the matches with him and that he first carried her home and then picked up his wife and children at his mother-in-law’s and arrived at his home at about 10:30 that evening. He went then to Jim Bennett’s home, which was next door, to deliver a pair of boots and that he, Bennett, and Bennett’s wife conversed until about 12:15 when he again returned to his home.

Jimmy Bennett and his wife corroborated Barrett’s presence in their home as well as the time he visited. They recalled the clothing worn by the appellant on the occasion which varied from the testimony of the young men who viewed the assailant in the parking lot.

The appellant’s mother corroborated her son’s testimony as to her associations with him on the night of November 28.

The appellant’s wife testified that her husband left her and the children at her mother’s home when he attended the wrestling matches. She stated he returned between 10:15 and 10:30 p. m. on November 28 and they drove directly to their home. When they arrived, the lights were on in the Bennett house and her husband went over to deliver a pair of boots which he had purchased for Bennett. She was emphatic that her husband returned home at approximately 12:25 or 12:30 and recalled the time with particularity by connecting it with a movie she was observing on TV.

The witnesses above gave evidence that appellant’s automobile was a red Ford with a white top. They stated they had never seen Barrett in a gray and black Chevrolet Impala automobile. However, there is evidence that Barrett’s sister owned a gray and black automobile which was sometimes repaired by Barrett and on these occasions driven by him. There is no evidence to indicate that he drove his sister’s car on the evening of November 28.

Philip Kean testified that he was a contributing newspaper artist and cartoonist with the Meridian Star. He stated that he drew a composite picture of the assailant from a description given by a young man known as Boswell and that to the best of his recollection George Brantley was unable to give him anything by way of description that he could use for a composite drawing.

McNair Perry, a ballistics and weapons expert of the Federal Bureau of Investigation, testified for the appellant. He stated that the pistol and copper jacket were submitted to him for examination by the Meridian Police Department and from his tests he could not conclude whether the bullet was or was not fired from the pistol. He stated there were insufficient marks on the copper jacket to match or identify it one way or the other as having been fired from the weapon accompanying it.

Several witnesses gave testimony to the appellant’s good reputation for veracity and to his general reputation for peace in the community in which he resided.

Since the first assignment of error is that the verdict was against the overwhelming weight of the evidence, we have set out the testimony in some detail. It reflects the awesome duty of a jury to decide the fate of a defendant by resolving conflicting testimony. This resolution, however, is the basis of our criminal court system and is justified by the compelling theory that a jury of one’s peers, knowledgeable on everyday facts of life and most aware of community prejudices or lack thereof, is best able to determine the truth from conflicting testimony emanating from the lips of witnesses.

Our studied review of the testimony leads us to the conclusion there was sufficient evidence to support the verdict of the jury and we cannot state that it should have rejected the state’s evidence and accepted that favorable to the theory of an alibi. To do so would invade the distinct province of the jury. Spikes v. State, 302 So.2d 250 (Miss.1974); Ladnier v. State, 273 So.2d 169 (Miss.1973) ; and Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956).

The appellant contends next that Patrolman Sutton should not have been permitted to testify since he was not included on the state’s list of witnesses which the court had directed to have been made available to the defendant. It is true that his name does not appear, but it is also true that Sutton’s proximity to the Pizza King was noted in the report of another officer given to the appellant. The use of Sutton as a witness was largely within the trial court’s discretion. McCraw v. State, 260 So.2d 457 (Miss.1972); and Boyd v. State, 253 Miss. 98, 175 So.2d 132 (1965). We are of the opinion the court did not abuse its discretion in permitting Sutton to testify. His testimony at most corroborated the number of shots that were fired which had been established by other witnesses.

The final point for reversal is that the court erred in not permitting into evidence photographs of a male person standing near a gray Chevrolet automobile. They are explained by Detective Flaherty as having been obtained during the course of his investigation of the crime. While so engaged he obtained information that two men from the state of Michigan were in the area at the time McCraw was killed and that they had been stopped by a police officer for investigation of driving under the influence of alcohol. The photographs were obtained from officers in the state of Michigan and Flaherty was unable to verify them in any manner. However, the objection is again directed to an order of the trial court ordering the state to divulge to the defendant the exhibits it proposed to use during trial. From this the argument is made that the state had withheld the photographs in violation of the court’s order and thereby, in some manner, prejudiced the defendant. We discern nothing to indicate the photographs were deliberately withheld from the defendant, but conclude they were part of the investigation and came into question only due to the vagaries of trial. Indeed, we perceive no prejudice emanating from their rejection and again are of the opinion the question was largely within the judicial discretion of the trial court. McCraw, supra, and Boyd, supra.

The record has received much study by this Court. It reflects two versions of fact, one leading to imprisonment for the commission of a felony, the other to an acquittal by way of innocence. The jury by its verdict accepted the former and it is supported by the evidence. There being no prejudicial error revealed by the record, we conclude, as we think we must, that the cause must be affirmed.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    George M. MILLER et ux. v. Walter S. PITTMAN et ux.
    No. 48575.
    Supreme Court of Mississippi.
    March 30, 1976.
    Singley & Morgan, Columbia, for appellants.
    Sebe Dale, Columbia, for appellees.
   Appeal from Chancery Court, Marion County; Howard L. Patterson, Jr., Chancellor.

Before GILLESPIE, C. J., and SMITH and LEE, JJ.

Affirmed.

BROOM, J., took no part.


text:
    Josesph Jerome SORRELL, Jr. v. STATE of Mississippi.
    No. 48931.
    Supreme Court of Mississippi.
    March 30, 1976.
    Dyer, Dyer & Dyer, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Before INZER, P. J., and SUGG and WALKER, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


author: MERRILL, Justice.

text:
    Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, Commissioner of Insurance, etc.
    SC 1269.
    Supreme Court of Alabama.
    Feb. 27, 1976.

      Mark B. Poison, Birmingham, for appellant, Shearn Moody, Jr.
    Drayton Nabers, Jr., and William A. Robinson, Birmingham, for appellee, Protective Life Ins. Co.
    James W. Webb, Montgomery, for ap-pellee, Charles H. Payne, Commissioner of Insurance for the State of Ala. and Receiver of Empire Life Ins. Co. of America.
   MERRILL, Justice.

This case is concerned with the propriety of the issuance of an injunction whereby Shearn Moody, Jr. was enjoined from interfering with the receivership proceedings of Empire Life Insurance Company of America [hereinafter Empire], an Alabama corporation. Some background information is necessary to place the instant case in proper perspective.

Our records reveal that the State of Alabama, in April, 1972, filed a complaint in the Circuit Court of Jefferson County against Empire requesting that the company be placed in receivership because it was impaired and insolvent. Thereafter, following a hearing before Judge William C. Barber, Empire was placed in receivership by an order dated June 29, 1972, and John G. Bookout, the Commissioner of Insurance for the State of Alabama, was named receiver. Bookout was succeeded as commissioner by Charles H. Payne on January 20, 1975. Empire was also placed in receivership in the States of Arkansas, Montana and Texas with ancillary receivers appointed in those states. No appeal was taken by Empire or any of its officers from the decision placing it in receivership.

In May, 1973, the receiver petitioned the receivership court for instructions on seeking approval of the various federal and state regulatory agencies for possible advertisement for bids for complete reinsurance of the business of Empire to protect the policyholders. This order was granted. Following the approval of the Federal Trade Commission, the Securities Exchange Commission and state regulatory agencies, the receiver, on request of commissioners and receivers of other interested states, filed a petition for instructions regarding reinsurance, asking the circuit court to enter an order permitting the receiver to advertise for and secure bids for the complete reinsurance of all of the business of Empire. This order was granted.

Following advertisement in various media, bids were taken in compliance with orders of the court. Bids were submitted by Protective Life Insurance Company [hereinafter Protective] and two other life insurance companies in addition to a bid submitted by Shearn Moody, Jr., of Texas, President, Chairman of the Board and principal stockholder of Empire. Another bid was submitted by an individual. Following a hearing of all bidders before the interested commissioners and receivers of the various states, the bid of Protective was recommended to the court in a petition filed in January, 1974, for liquidation and reinsurance without dissolution under provisions of the Alabama Insurance Code, Act No. 407, § 624, Acts of Alabama 1971, p. 996, listed in the Recompilation as Tit. 28A, § 624(2), on the grounds that further efforts to rehabilitate the company would be useless.

Moody objected to the reinsurance and liquidation of Empire and was granted the right' to intervene.

During the course of the three-week hearing, Protective was also made a party for intervention. Following extensive hearing and briefing by all parties, the trial court, on June 14, 1974, entered an order granting the receiver’s petition to liquidate and reinsure the business of Empire into Protective. The trial court found, inter alia, that Empire was impaired in excess of ten million dollars, insolvent in excess of six million dollars and that the financial condition of Empire was “rapidly deteriorating.”

Intervenor Moody gave notice of appeal, filed a motion for supersedeas bond and motion for new trial. These motions were overruled. The appeal was taken on July 25, 1974; the certificate of appeal was received in this court on August 6, 1974, but the transcript of the record has not yet been received. We avert to this later in the opinion.

I. The Injunction.

On December 27, 1974, John G. Bookout, the Commissioner of Insurance for the State of Alabama, applied for and received a temporary restraining order against Moody and others. The order prevented the filing, sponsoring or aiding of any lawsuit or legal claim relating to the affairs of Empire, the treaty of assumption and bulk reinsurance or the decree approving the treaty. To supplement his application, Bookout attached affidavits concerning the multiplicity of litigation instituted by Moody, threats by him to institute further litigation, and the deposition of one Willie Alimón. The hearing was set for January 6, 1975.

Commissioner Bookout testified at the hearing; there was no objection to his testimony, and there was no cross-examination. His testimony is, therefore, uncon-troverted and undisputed. He testified that he has been subjected (both as receiver of Empire and individually) to numerous lawsuits and proceedings filed by Moody or Moody lawyers, all of which related to the Empire receivership and all of which were filed subsequent to the plenary hearing conducted by the receivership court in April, 1974, which culminated in the June 14, 1974 order determining that Empire was insolvent and that reinsurance of the Empire policies was necessary to protect the interests of policyholders. He also testified as to the following separate lawsuits or proceedings filed by Moody or Moody’s lawyers and, as to each of them, Bookout testified that said litigation substantially depleted the assets of the receivership estate and, further, resulted in irreparable loss to the receivership in terms of seriously interfering with implementation of the receivership court’s orders and supervision of the receivership by Bookout:

A. Moody v. Empire, No. 112,034, a suit filed in state court, Galveston County, Texas, in which Moody sought to prevent the transfer of the principal asset of Empire to Protective.

B. Meyers v. Moody, C.A. 3-5678-D, a suit pending in federal court, Northern District of Texas, in which Moody filed a cross action against Bookout as receiver of Empire and individually. Moody’s cross action alleged mismanagement of the receivership estate by Bookout and alleged that Bookout put Empire in receivership for political reasons. [The issues raised by Moody’s cross action had been fully litigated and decided adversely to Moody in the April, 1974 hearing before the Alabama Receivership Court.]

C. Extraordinary proceedings in this court and one federal suit:

(1) In Ex parte Moody, S.C. 962, Moody sought that this court approve a super-sedeas bond pending his appeal from the June 14 decree; in the alternative, Moody sought the issuance of a writ of mandamus to compel the receivership court to permit supersedeas. All relief sought by Moody was denied.

(2) Moody then filed Moody v. Bookout, Civ. No. 74 — 328-N, in which Moody sought federal district court review of the foregoing decisions of this court, ostensibly on constitutional grounds. The Federal District Court for the Middle District of Alabama summarily dismissed said action on the grounds that Moody was pursuing the matter in the state courts of Alabama.

(3) Moody nevertheless filed Moody v. Bookout, S.C. 1032, in which Moody attempted, for the fourth time, to relitigate the denial of supersedeas in connection with his appeal from the June 14, 1974 decree. This attempt was also rejected by this court.

D. Allmon v. Bookout, Civ. No. 74-377-N, was filed in the name of Willie Alimón, an Arkansas policyholder of Empire. This suit alleged that Bookout and Protective caused Alimón to lose 35% of the cash value of his policy. Bookout testified that the records of Empire affirmatively show that the cash-value position of the Alimón policy was unaffected by the receivership of Empire or by the reinsurance of Empire’s policies by Protective.

The deposition of Willie Alimón was introduced into evidence at the January 6 hearing upon which this appeal is based, without objection from Moody’s counsel. It establishes unequivocally that the Alimón lawsuit was solicited by Moody’s agents. The deposition of Alimón, a farmer from Star City, Arkansas, who has only a sixth-grade education, is replete with his sworn testimony that Alimón thought Empire Life Insurance Company was representing him in the federal suit; that Alimón mistakenly 'believed he was represented by Empire lawyers; that maintenance of the suit was not costing Alimón any money; and that neither Bookout nor Protective had ever done anything to damage or injure Alimón.

The deposition of Ernest Cross, the insurance agent who sold Willie Alimón his Empire policy, was received into evidence, over the objection of Moody’s lawyer. Cross’s deposition establishes that Cross believed that Dale Major, an out-of-state Moody attorney named in the January 6 injunction, was an attorney with and legal adviser for Empire; that Major procured from Cross the name and residence of Alimón; and that Major represented himself to Alimón as an Empire attorney.

E. State of Texas v. Empire, No. 198,-374, is the ancillary receivership proceeding pending in the District Court of Travis County, Texas, in which Empire’s ancillary receiver for the State of Texas sought the approval of the Texas ancillary receivership court to consummate the re-insurance agreement whereby Protective assumed the policies of Empire.

After listing the various suits, Bookout testified to Moody’s threats. He said:

“[Shearn Moody] said to me, in words to this effect, that Mr. Bookout, we are just getting started on you.
“I intend to sue you personally. My actions will be of a personal nature against you to carry over after you have left the office [of Commissioner of Insurance]. * * * we killed Crawford Martin and somebody else, * * * he died with a heart attack the day after he signed his deposition, and we are beginning on you, and we are going to keep on if it takes us 50 years.”

After the close of the evidence and argument of counsel, the injunction was made permanent. In his opinion, Judge Barber stated in part:

“The order that was issued temporarily by this Court, does enjoin the filing of other suits and other motions in this case, but there is a stipulation in the order that these should not be filed without the permission of the Court.
******
“ * * * I think that this court would have a right to refuse the proposed litigation with an eye to see whether or not it is a matter of harassment, a matter which would obstruct the orderly carrying out of the previous decrees and orders of this court by the Receiver emanating from the lengthy hearing that was held last spring here in this court.
‡ ‡ ijc Sfc }{c ‡
“It is a feeling of this Court that based upon the evidence that has been introduced at this hearing and through the depositions that have been presented to me, that there is a very evident effort at delay and harassment on the part of Shearn Moody in his activities in this case.
“There has been no evidence to controvert the statement that has been made by Mr. Bookout in his testimony. There has been no evidence to controvert the statement [s] made in the depositions that have been presented, which is the basis of my ruling in this case.”
The court concluded:
“It is ORDERED, ADJUDGED and DECREED that
(1) any and all policyholders, stockholders and agents, present or former, of Empire Life Insurance Company of America, and
(2) Shearn Moody, Jr., his officers, agents, servants, employees and attorneys (including, but without limitation, Donald L. Collins, A. Eric Johnston, Dale R. Major, Scott E. Manley, A. R. Schwartz, and Thomas R. Beech),

and those persons in active concert or participation with any of the foregoing be permanently restrained and enjoined from filing, financing, sponsoring, initiating, or aiding, in whole or in part, in any way the filing of any lawsuit, complaint or legal claim, or any amendment to any complaint or legal claim in any court wheresoever located on behalf of any party whatsoever against:

(1) John G. Bookout, as an individual;
(2) John G. Bookout as Receiver of Empire Life Insurance Company of America, his officers, agents, employees and attorneys;
(3) the Ancillary Receivers of Empire Life Insurance Company of America, their officers, agents, employees and attorneys;
(4) Protective Life Insurance Company, its officers, agents, employees and attorneys; or
(5) any other person or legal entity which lawsuit or claim relates to or affects directly or indirectly:
(a) the affairs of Empire Life Insurance Company of America;
(b) its receivership;
(c) its Receiver;
(d) the Treaty of Assumption and Bulk Reinsurance, as amended, between the Receiver and Protective Life Insurance Company; or
(e) the implementation of any order or decree of this Court in this proceeding,
unless such policyholders, stockholders or agents or said Shearn Moody, Jr., his officers, agents, servants, employees and attorneys and those persons in active concert or participation with them shall first receive the prior approval of this Court.”

Title 28A, § 624(2), provides in Chapter 28, Rehabilitations and Liquidations, as follows:

“(2) The court may at any time during a proceeding under this chapter issue such other injunctions or orders as may be deemed necessary to prevent interference with the commissioner or the proceeding, or waste of the assets of the insurer, or the commencement or prosecution of any actions, or the obtaining of preferences, judgments, attachments or other liens, or the making of any levy against the insurer or against its assets or any part thereof.”

The injunction is well within the statutory authorization, and the undisputed evidence, both oral and documentary, clearly supported the issuance of the injunction.

The requirement that parties who desire to bring suit against a receiver must first obtain permission from the receivership court is not new in Alabama. In Ex parte Davis, 230 Ala. 668, 162 So. 306 (1935), this court said:

“ * * * ‘Property in the hands of a receiver being in the custody of the court, the broad general rule established by the weight of authority is that a receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without leave of the court appointing him.’ * * * ‘A receiver being an officer of the court, acting under its direction, and in all things subject to its authority, it is contrary to the established doctrine of courts of equity to permit them to be made a party defendant to litigation, unless by consent of the court appointing him. And it is in all cases necessary that a person desiring to bring suit against a receiver in his official capacity, should first obtain leave of the court by which he was appointed, since the courts will not permit the possession of the receiver to be disturbed by suit or otherwise, without its consent or permission. The rule is established for the protection of receivers against unnecessary and expensive litigation, and in most instances a party aggrieved may have ample relief by application on motion to the court appointing the receiver. And when an action is instituted against a receiver in his official capacity, without first obtaining leave of the court, the plaintiff in such action is guilty of a contempt of court and will be punished accordingly.’
“This court is firmly committed to the above rule. Montgomery, Trustee v. Enslen, Receiver, 126 Ala. 654, 28 So. 626; Baker v. Carraway, 133 Ala. 502, 31 So. 933.”

The rationale for requiring permission of' the receivership court is to permit that court the opportunity to satisfy itself that the suit or legal proceeding which is planned will not unduly interfere with the receiver or the receivership proceedings.

The mere fact that the injunction was made permanent does not, in an injunction as issued in the instant case, mean that such injunctions do not remain subject to clarification and modification by the trial court. In Ex parte Myers, 246 Ala. 460, 21 So.2d 113 (1945), this court said:

“ * * * the court which has rendered a final decree in the form of a permanent or perpetual injunction in respect to future activities may open and modify it where the circumstances and situation of the parties are shown to have so changed as to make it just and equitable to do so. * * * ”

This court quoted, with approval, from Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, 690, as follows :

“ * * * ‘this is so because the decree, although purporting on its face to be permanent, is in essence of an ex-ecutory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon proper showing, to modification or dissolution by the court which rendered it. The court’s power in this respect is an inherent one.’ * * * ”

The record shows no request by Moody to file a suit against the receiver or any request to the trial court for clarification or modification.

Appellant Moody argues in brief that the injunction was overbroad. But the record does not show that that question was raised in the court below.

The trial court will not be put in error unless the matter complained about was called to its attention by objection or by other appropriate method. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865; Pearce v. Brilliant Coal Co., 200 Ala. 630, 77 So. 4.

“The general rule is that the appellate court, on review of injunction orders and decrees, will consider only such questions as are raised in the court below, and properly preserved and presented. Where that is not done, the court may refuse to consider an objection * * * that the injunction is too broad in its operation, * * 42 Am.Jur.2d, Injunctions, § 350, p. 1158.

The injunction was not only justified but was necessary to preserve the assets of Empire.

II. Object of Ancillary Suits Filed by Moody.

The principal asset of Empire was the Libbie Shearn Moody Trust. In Moody v. Bookout, Middle District of Alabama, Case No. 74-377-N, Moody’s prayer for relief asked that the receiver and Protective Life Insurance Company be restrained from in any way disposing of any of Empire’s assets until a final decision on appeal in the Supreme Court of Alabama; and that these defendants be enjoined from the execution and carrying out the order of Judge Barber dated June 14, 1974.

In Moody v. Moody National Bank and Empire Life Insurance Company in State District Court, Galveston, Texas, Case No. 112,034, Moody’s prayer for relief asked that the court reform the terms of the agreement whereby Empire acquired Moody’s interest in the Libbie Shearn Moody Trust “to conform with the intent of the parties and to expressly provide that neither Empire nor any one acting for it may assign such interest in the Libbie Shearn Moody Trust; * * *.”

It is evident that the extraordinary hearings in this court, S.C. 1125, January 22, 1975; S.C. 1221, April 23, 1975; S.C. 1200, March 26, 1975 and November 11, 1975, were either directly or indirectly attempts by Moody to nullify the action of the trial court on June 14, 1974, or to get the possession of the Libbie Shearn Moody Trust out of the receivership and back into Moody’s possession.

This court has consistently refused to grant Moody the relief sought and, insofar as we are informed, no other jurisdiction, either state or federal court to which he has applied, has granted him any such relief.

III. The Donovan Case.

Most of appellant’s brief and most of his oral argument were devoted to the proposition stated in Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), that “state courts are completely without power to restrain federal-court proceedings in in personam actions.” This principle is not new to us. Donovan was cited and applied by this court in Johnson v. Brown-Service Ins. Co., 293 Ala. 549, 307 So.2d 518 (1974). [We agree that it states the law and based on the briefs, counsel for all parties agree that it is the law.]

Moody made this argument in trying to show that the filing of the case of Alimón v. Bookout was not in violation of the injunction issued by Judge Barber.

It is interesting to note that the same paragraph in which the previous quote appears begins with some careful writing and limitation by Justice Black, the author of the opinion:

“Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other’s proceedings. That rule has continued substantially unchanged to this time. An exception has been made in cases where a court has custody of property, that is, proceedings in rem or quasi in rem. In such cases this Court had said that the state or federal court having custody of such property has exclusive jurisdiction to proceed. Princess Lida v. Thompson, 305 U.S. 456, 465-468, 59 S.Ct. 275, 280, 281, 83 L.Ed. 285 [291]. In Princess Lida this Court said ‘where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other.’ Id., 305 U.S. at 466, 59 S.Ct. at [280] [83 L.Ed.2d 291]. See also Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226. * * * ”

We have already shown that these suits were repeated attempts to remove assets from the res of the receivership and liquidation proceedings. The federal courts have consistently followed the rule that proceedings involving the liquidation of the business and assets of an insurance corporation are in rem or quasi in rem proceedings. Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 194-95, 55 S.Ct. 386, 388, 79 L.Ed. 850, 854-55; Jacobs v. DeShetter, 465 F.2d 840 (6th Cir.); Gillis v. Keystone Mut. Casualty Co., 172 F.2d 826, 829 (6th Cir.), cert. denied, 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499; Holley v. General American Life Ins. Co., 101 F.2d 172 (8th Cir.), cert. denied, 307 U.S. 615, 59 S.Ct. 1038, 83 L.Ed. 1496; Liberty National Ins. Co. v. Reinsurance Agency, Inc., 307 F.2d 164, 168 (9th Cir.), Hutchins v. Pacific Mut. Life Ins. Co., 20 F.Supp. 150, 152 (S.D.Cal.), aff’d 97 F.2d 58, 60 (9th Cir.).

This same question was raised in Allmon v. Bookout, Middle District of Alabama, No. 74-377-N. In his opinion, filed April 24, 1975, Judge Varner discussed Hutchins, supra, and we quote his statements with approval:

“It appears to be the settled rule with respect to suits in equity for the control by receivership of the assets of an insolvent corporation that the Court first assuming jurisdiction may maintain and continue to exercise that jurisdiction to the exclusion of any other court. (Citations omitted.)
“This jurisdictional priority principle is buttressed by the case of Hutchins v. Pacific Mutual Life Ins. Co., 20 F.Supp. 150 (S.D.Cal. 1937), affm’d. 97 F.2d 58 (9th Cir. 1938). In that case prior to any suit being filed in federal court, the State Court vested title of all the assets of an alleged insolvent domestic insurance company in the Insurance Commissioner of California pursuant to his petition. After the State Court — again pursuant to the Commissioner’s petition — approved liquidation of the insolvent company on the grounds that conservation was futile, the Commissioner filed a plan of reorganization whereby a new insurance company was to acquire the assets of the insolvent company. The plan, after approval by the State Court, was fully executed.
“Subsequently, suit was brought in federal court seeking reconveyance of the assets on the grounds that the entire State proceeding was fraudulent and, therefore, that the State Court lacked jurisdiction. The District Court, in dismissing the federal action, stated:
“ ‘This action, and the one in the state courts, are actions in rem, or, at least, quasi in rem. The relief sought is primarily concerned with the assets in question. The rule in such cases is that the court first acquiring jurisdiction of the res has exclusive jurisdiction.’ 20 F.Supp. at 152.”

One John S. Bleker, Jr. was granted to intervene as a plaintiff with Alimón. Motion for summary judgment for defendants was granted.

We are convinced that Judge Barber did not violate either the letter or the spirit of Donovan.

IV. The Alimón Case — Almon v. Bookout, No. 74-377-N.

We have already referred to this case and pointed out that although it was brought in Allmon’s name, he was merely an unwitting front for Moody. We were told on oral argument that after appeal had been taken to the Fifth Circuit, Alimón cancelled his policy and dropped out of the case and that on November 18, 1975, the Fifth Circuit vacated the appeal and remanded the cause to the district court for appropriate findings of fact and conclusions of law as to whether the appeal had been mooted.

It is appropriate to show that the prayer for relief in the original bill in Alimón asked that the defendants be enjoined from consummating the reinsurance agreement; that Bookout be enjoined from action which might affect Allmon’s rights as policyholder or creditor; and in the alternative, joint and several damages of $40,000,000. Once again, Moody was attempting to stop the liquidation and to regain possession of the principal assets of Empire. The mere fact that in the alternative he prayed for damages does not change the main thrust of the suit from at attempt to secure possession of the assets of Empire.

Counsel mention in briefs an amendment to the complaint in the Alimón case. The amendment is not in the transcript before us and, being de hors the record, cannot be considered. Coleman v. Estes, 281 Ala. 234, 201 So.2d 391; Blanton v. Blanton, 276 Ala. 681, 166 So.2d 409; Cooper v. Adams, Ala., 322 So.2d 706.

V. The Appeal in the Original Case.

Earlier in the opinion, we stated that the notice of appeal from the June 14, 1974 order in the original case was taken on July 25, 1974, but had never been perfected. This fact is no part of the instant appeal on the injunction question, but we feel constrained to comment on it.

The appeal in the original case should settle most of the questions in this litigation, but Moody has evidently sought to try his case in this court piecemeal in a succession of requests for extraordinary writs. The suits in other jurisdictions previously listed were also filed after the appeal was taken. At an extraordinary hearing on January 22, 1975, a member of this court asked counsel for Moody when the transcript of the record of the appeal on the original case would be filed in this court. The answer was that it should be here in about thirty days. Later, at an extraordinary hearing in April, 1975, new counsel represented Moody and the question was asked again when the transcript could be expected and the same reply “in about thirty days” was given. We considered then and still consider that the answer given by counsel on both occasions were made in good faith. Counsel answering the second time withdrew from the case soon thereafter.

In August, 1975, motions to dismiss the appeal were filed 'but the motions were denied. One of the reasons for the denial was that nowhere was there any writing by this court that attempted to list the harassing and delaying tactics employed by Moody. We have not listed all of them here but we have tried to mention most of them. We did not want to put him in a position to go to some other jurisdiction, either state or federal, with the complaint that this court had denied him an appeal by dismissing his appeal in the most important of all suits.

But now, in this opinion, we have tried to give a sufficient account of the many maneuvers that have taken place in this litigation, and a sufficient compilation of events to counter any claim of summary denial of Moody’s rights to be heard and to have his appeal decided.

We do not intend to be as lenient in the future as we have been in the past, regardless of the changes in counsel. The record in the original case must be filed within a reasonable time of the publication of this opinion.

The order and injunction issued by Judge Barber, dated January 6, 1975, is due to be, and is, affirmed.

AFFIRMED.

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


author:
      EMBRY, Justice.
      JONES and SHORES, Justices

text:
    UTICA MUTUAL INSURANCE CO., a corporation v. TUSCALOOSA MOTOR CO., INC., a corp., et al.
    SC 993.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    Rehearing Denied April 9, 1976.
    Hubbard, Waldrop & Jenkins, Tuscaloosa, for appellant.
    Roberts, Davidson & Gibson, Tuscaloosa, for appellees.
   EMBRY, Justice.

Appeal by Utica Mutual Insurance Company from adverse decisions in two declaratory judgment actions consolidated for trial. Utica was Tuscaloosa Motor’s garage liability insurance carrier until 1 June 1970; on that date Auto-Owners Insurance Company became Tuscaloosa Motor’s garage liability insurance carrier.

The facts: Tuscaloosa Motor Company made repairs to the respective cars of Annie Nuckols and Lloyd Johnson. It was stipulated at trial that these repairs were made during the period the Utica policy was in effect. On 1 July 1970 the Nuckols automobile was involved in an accident that resulted in damage to it and bodily injury to Nuckols; on 7 August 1970 the Johnson auto was involved in an accident resulting in damage to it. In each instance damage and injury occurred during the period Auto-Owners policy was in effect. Nuckols filed an action for damages against Tuscaloosa Motor alleging that proximate cause of the bodily injury and property damage was negligence of Tuscaloosa Motor in making repairs. Johnson filed an action for damage to an automobile on the same theory of negligence of Tuscaloosa Motor Company.

Utica’s agent, E. Cecil Carver, received notice of Johnson’s claim on 10 August 1970 and Nuckols’ claim on 18 November 1970. Utica initially undertook to investigate and defend these claims. On 29 September 1971 Utica notified Tuscaloosa Motor of its intent to withdraw from defense of the Johnson case and on 10 February 1972 of its same intent as to the Nuckols case.

Subsequently, Auto-Owners Insurance Company and Tuscaloosa Motor Company filed an action seeking declaration that Utica was required to defend against and be liable for any judgment arising out of Johnson’s suit. Utica filed a declaratory judgment action seeking a determination that it was not required to defend against nor be liable for any judgment arising out of Nuckols’ suit. The trial court found Utica liable to defend against and pay any judgments rendered in both the Johnson and Nuckols suits. It found Auto-Owners liable only for any “excess” damages over and above the limits of liability of the Utica policy.

The only issue essential to a decision is: (1) Does the Utica policy cover a liability for negligent repairs performed during the policy period when bodily injury or property damage occurs after expiration of the policy period?

• The insuring clause in Utica’s policy reads:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
G. bodily injury or
H. property damage
to which this insurance applies, caused by an occurrence and arising out of garage operations * * * ”

An “occurrence” is defined in the Utica policy as:

“ * * * an accident * * *' which results, during the policy period, in bodily injury or property damage neither expected not intended from the standpoint of the insured;”

In the “Policy Period; Territory” section, the Utica policy reads:

“This insurance applies only to bodily injury, property damage or loss which occurs during the policy period * * * ”

“Loss” is defined in the policy as “direct and accidental loss of or damage to property.”

The trial court found the Utica policy covered a liability for negligent repairs performed during the policy period when bodily injury or property damage occurred after expiration of the policy. To reach this result the trial court first determined that there was an ambiguity in the policy. Necessary to an understanding of how the trial court reached this conclusion are certain provisions of its order and judgment. In part, findings in that judgment read:

“ ‘Occurrence’ is defined in the definitions section of the Utica policy as: ‘(An) accident . . . which results, during the policy period, in bodily injury or property damage neither expected not intended from the standpoint of the insured.’ The Alabama Courts have consistently held that the term ‘accident’ in a liability insurance policy is broad enough to afford coverage when the negligence occurs during the policy period — though the actual damage resulting from that negligence may not arise until after the policy expires. Thus, in viewing the term ‘accident’ in the.definition of ‘occurrence’ in Utica’s policy, this Court concluded that the Alabama Courts have interpreted this terminology as broad enough to provide coverage in situations such as those in the two damage suits. However, the Court had next to determine whether the accident resulted during the policy period in bodily injury or property damage.
“Paragraph IV of ‘Policy Period; Territory,’ of Utica’s policy provides that: ‘This insurance applies to bodily injury, property damage or loss (emphasis added) which occurs during the policy period.’ It is uncontroverted that no bodily injury or property damage was incurred by either customer during Utica’s policy period. Thus, the issue was reduced to whether or not the term ‘loss’ as defined in Utica’s policy was ambiguous such that Utica’s conduct under its policy was relevant to a determination of the meaning of the term.
* * * * * *
“First of all, by Utica’s employment of the term ‘accidental’ in its definition of ‘loss’ an ambiguity was created because of the fact that the Alabama Courts have interpreted the word ‘accident’ as broad enough to encompass prior negligence which results in subsequent damage (see the discussion supra). Secondly, the Alabama Courts have consistently given the term ‘loss’ a broad meaning, including a connotation broad enough to encompass an ‘injury’. E. g., Mason v. City of Albertville, 276 Ala. 68, 71; 158 So.2d 924 (1963). And it is axiomatic that a person incurs a legal injury at the time a person who owes him a duty commits a negligent act, rather than at the time the resultant damages accrue. Thus, the question became whether Utica, •by its conduct, had indicated the intention that this was the meaning the term ‘loss’ was to be given in its policy.
“IT IS, THEREFORE, THE ORDER, JUDGMENT AND DECREE OF THE COURT that on trial the Court finds that the actions of Utica in assuming the responsibility for investigating and defending, for a period of months with no reservation of rights, the possible liability of Motor Co. clearly shows that it interpreted its policy to' cover the incidents in question. The Court thus holds and declares that Utica is responsible for investigating and defending the suits in question and that Utica should bear any liability which Motor Co. might incur as a result of its negligence causing the two accidents.
“IT IS THE FURTHER ORDER, JUDGMENT AND DECREE OF THE COURT that Auto-Owners is only liable for any ‘excess’ damages over and above the limits of liability of Utica’s policy.
“The Court finds it unnecessary to reach the issues of waiver and estoppel because these actions can be resolved based on the rationale discussed above. ‡ ‡ ‡»

We cannot agree that the policy language is ambiguous. The trial court recognized that no bodily injury or property damage occurred during the policy period. However the trial court found ambiguity in the policy because the term “loss” was included in the “Policy Period; Territory” clause but was not included in the definition of “occurrence.” In the trial court’s view ambiguity was created because one clause predicated Utica’s liability under the policy on bodily injury or property damage occurring during the policy period while another clause predicated liability on bodily injury, property damage or loss occurring during the policy period.

The clear meaning of the policy language is that coverage is afforded only when bodily injury, or damage to or loss of property is suffered during the policy period irrespective of when the negligent act was performed which later resulted in such bodily injury, or damage to or loss of property. See Mut v. Newark Insurance Co., 289 So.2d 237 (La.App.1973) (reaching same result). Since there is no ambiguity, we need not construe the term “accident” as used in the policy. The determinative factor is not when the “accident” (negligent act) took place, rather, it is whether or not the bodily injury, or damage to or loss of property happened during the policy period.

Based upon this conclusion we must enforce the policy as written and may not indulge in construction favorable to the insured. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975); Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., Inc., 289 Ala. 719, 272 So.2d 232 (1973). Since the bodily injury and loss of or damage to the property did not occur during the policy period, Utica’s policy does not afford coverage.

Appellees argue in brief that Utica is estopped to deny coverage. Like the learned trial judge, we find it unnecessary to reach the question of estoppel. There is no ambiguity in Utica’s policy; Utica is not liable under it to defend against and pay any judgments resulting from the Nuckols and Johnson actions.

Understandably the result in this case will appear harsh to the insured. It is the opinion of the author of this opinion that the law of Alabama under the issues presented on this appeal will permit no other result.

Insureds are not without remedy however. Code of Ala., Tit. 28A, § 321, provides for filing with and approval by the Alabama Commissioner of Insurance of insurance policy forms. Such forms are deemed approved at the expiration of thirty days from filing unless prior thereto there has been affirmative approval or disapproval. Under the provisions of § 322(5) of the same Code Title the Commissioner may disapprove or withdraw previous approval of a policy form if it:

“Contains provisions which are unfair or inequitable or contrary to the public policy of this state, or which would because such provisions are unclear or deceptively worded, encourage misrepresentation.”

If, in the future, the Commissioner of Insurance because of limitations of manpower and time is not able to cause filed forms of policies of insurance to be scrutinized under the standards set out in § 322 and in particular § 322(5) this court may be compelled to declare the public policy of this State per the views expressed by Justices Jones and Shores in their dissent in this case.

REVERSED AND REMANDED.

MADDOX and ALMON, JJ., concur.

MERRILL and FAULKNER, JJ., concur in result.

HEFLIN, C. J., and BLOODWORTH, JONES and SHORES, JJ., dissent.

JONES and SHORES, Justices

(dissenting) :

We note that while the majority of the Court decides this case to reversal, it does not decide the issue presented. Tit. 13, § 14, Code, as amended. Mr. Justice Embry’s opinion, with which a majority of this Court concurs in the result, finds no ambiguity (the basis of the trial Court’s holding) and grounds its reversal on the “freedom to contract” principle. As to the ambiguity issue, we agree. We would affirm the trial Court, however, for the reasons expressed below.

The freedom to contract rule, particularly in instances involving adhesion contracts, where the contracting parties are not equally capable of negotiating the terms, should be tempered by the dictates of public policy. In the case before us, its unchecked application would allow successive. insurance policies to create a hiatus in coverage with no break in premium obligations. Some factual examples will demonstrate the fallacy: Suppose, for example, the Auto-Owners’ policy read differently from Utica’s to the effect that “occurrence” meant the negligent or wrongful act which culminates in liability; or, alternatively, suppose Auto-Owners, under identical language, asserted the defense that no coverage was afforded for negligent acts which preceded the policy period. Would each insurer then have an absolute defense even though the insured had paid for continuous coverage ?

Still worse, suppose the coverage remained with Utica and the contract of insurance for the new policy period substituted the latter definition of “occurrence,” could Utica then plead the alternative defenses under the identical policy language ? Would we then hold “no coverage” on the “freedom to contract” principle? If so, we would have invited the insurance industry to alternate definitions of language for successive policy periods and thereby create indefinite gaps in coverage; and, in so doing, we would have interpreted the language here involved adverse to the insured in each instance where the total transactions necessary to the accrual of an action did not occur within the policy period — all of this, in spite of the insured’s payment of premiums for continuous protection.

In the event Auto-Owners’ “ex post fac-to coverage” defense is rejected, from the standpoint of public policy, there are inherent evils in the imposition of liability against the insurer arising out of a wrongful act of its insured which takes place prior to the policy period. This would allow an uninsured, suspicious that his employee has performed negligent repairs likely to cause an immediate accident, to insure against a loss which is almost certain to occur. Such risks on behalf of the insurer would far exceed that normally contemplated by contracts of insurance. The only element in the total chain of the liability-producing events within the exclusive control of the insured is the initial wrongful act. While the injury-producing accident must result directly from the culpable conduct of the insured, ordinarily such subsequent consequences lie beyond the insured’s immediate control as to time and place of occurrence. Thus, public policy favors contracts of insurance in such' cases which fixes the coverage concurrent with the time of the insured’s culpable conduct — making the insured’s and the insurer’s legal obligations coextensive.

Other examples may further elucidate problem potentials. Suppose the garage owner permanently terminated his business operations concurrent with the expiration date of the policy period. Should he continue his insurance for an additional policy period? And, if so, assuming an insurer would be willing to write the risk, could the latter company successfully defend, even under the identical language here involved, on the ground that the public policy would void coverage for risks antedating the policy period ?

Only a minimum of imagination is required to visualize the myriad problems arising from such restrictive language in professional malpractice and errors and omissions policies.

We turn now to the case at hand. What was the insured insuring against? What risks did it attempt to cover? Tuscaloosa Motor Company’s legal responsibilities arising out of its business operations are fixed by operation of law. The law dictates that any injury or damage resulting directly from its culpable conduct is actionable and the action for such injury or damage may be maintained against it by an injured party upon the accrual of such action and for the applicable period of limitations.

The language of the insuring clause of this policy commits Utica to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . .” Tuscaloosa Motor Company, Inc., could not be “legally obligated to pay as damages” any amount to either Johnson or Nuckols until it breached some duty resulting in injury to them.

A cause of action did not accrue in favor of either Johnson or Nuckols against Tuscaloosa Motor Company until each of them was actually injured, whether in person or property. A right of action against the insured did not accrue until the injury actually occurred. West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909). Therefore, the insured could not become legally obligated to pay before that time.

By virtue of the definition of “occur--rence,” Utica restricts its liability to “. . . an accident . . . which results, during the policy period, in bodily injury or property damage . . . . ” While Tuscaloosa Motor Company’s liability, by operation of law, runs to an injured party from the moment of injury to the running of the statute of limitations, the ■liability of Utica to Tuscaloosa Motor Company extends only to injury-producing accidents occurring within the policy period.

Thus, by contract Utica has limited its liability to its insured to a definable time limit unrelated to the length of exposure which the law imposes on Tuscaloosa Motor Company.

In this case, Tuscaloosa Motor Company has been sued by two plaintiffs alleging negligence resulting in injury or damage. The alleged act of negligence by Tuscaloosa Motor Company occurred within the policy period. Utica, however, disclaims liability since the injury or property damage did not occur during the policy period, but concedes that the act of its insured, allegedly producing such injury or property damage, did occur within the policy period.

Utica, therefore, stands absolved of the very liability to which its insured is exposed by operation of law notwithstanding the fact that the policy commits Utica to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay . . .”

Undoubtedly, it is this anomaly which prompted the trial Court to conclude that the policy provisions created an ambiguity which it resolved in favor of the insured. We agree with Utica, however, that the policy provisions are clear as to their meaning and intent. A reading of the language of the policy leaves no uncertainty that Utica by contract has limited its risk of loss by definition of the term “occurrence” to the extent set out above. It is not on the basis of ambiguity that we would affirm the trial Court, but rather because the incongruity results in an anomaly which the public policy of this State cannot sanction.

The provisions of this policy, although unambiguous, leave Tuscaloosa Motor Company without a remedy against Utica for the very liability it sought insurance to protect against. Likewise, it leaves the plaintiffs (Johnson and Nuckols) without the protection which Tuscaloosa Motor Company sought to provide through its insurance contract with Utica. This result offends the public policy of this State.

As observed by Judge Walte'r Gewin in Northwestern Casualty Co. v. McNulty, 307 F.2d 432 (Sth Cir. 1962):

“Implicit in the entire field of tort liability and insurance law is the concept of furnishing some protection to those who are injured. Public policy is involved here . . . .”

We, therefore, would affirm the trial Court in holding Utica liable under its policy.

      . We do not necessarily approve or disapprove of any statement of law expressed in the judgment of the trial court, and upon which we do not rule. His decree is reproduced merely to facilitate understanding by a reader of this opinion.

      . For the history of the various clauses included in the policy and their purported purpose see: Long, The Law of Liability Insurance, Mathew Bender, 1969. The author observes that the “occurrence” provision “presents baffling problems since it has to do with a situation the reverse of the traditional one of coverage ‘caused by accident.’ But there is a substantial difference between accident and occurrence. The substitution of the word ‘occurrence’ confronts the insurance industry with new and special problems. They may arise out of court expansion of the scope of the coverage far greater than that intended by the underwriters when the substitution of words was made.
      “The intent of the underwriter being to cover gradual injury, it should follow that the injury could be exposure to a continuing condition resulting in injury extending over more than one policy period ....
      “When damage is caused by exposure to a condition extending over policy periods of successive policies, the question is presented as to which policy is answerable. . . . ”