author: BEATTY, Justice.

text:
    PIGGLY-WIGGLY OF JACKSONVILLE, INC., a corporation, et al. v. CITY OF JACKSONVILLE, a Municipal Corporation.
    SC 1589.
    Supreme Court of Alabama.
    Aug. 13, 1976.

      Jenkins, Wallis & Thorn, Birmingham, for appellant.
    Merrill, Merrill & Vardaman, Anniston, for appellee.
   BEATTY, Justice.

Piggly-Wiggly appeals from a preliminary injunction granted in favor of the City of Jacksonville. We reverse.

The City of Jacksonville filed its petition seeking enforcement of the provisions of Act No. 1050 of the 1971 Alabama Legislature, codified in Code of Alabama, Appendix, Vol. 14B, § 341(a30) (the Calhoun County blue law) and Code of Alabama, Tit. 14, § 420 (the state blue law) against Piggly-Wiggly and individual defendant-appellants. The petition alleged that Piggly-Wiggly was a corporation doing business in Calhoun County and that the individual defendant-appellants were responsible for the operation of a store which was remaining open on Sundays in violation of the previously cited statutes. The City prayed that Piggly-Wiggly be restrained from further Sunday operation.

In a motion in opposition to the prayer Piggly-Wiggly asserted that, the statutes relied upon by the City are unconstitutional, unreasonable, arbitrary and capricious and have no real substantive relation to the objectives sought to be obtained by the adoption of the legislation. Piggly-Wiggly also filed a motion to dismiss, reiterating constitutional challenges, and an answer, which admitted Sunday operations but denied violation of the law because the operations were carried on with four or fewer employees. Piggly-Wiggly also cross-petitioned, praying that the statutes be declared unconstitutional and that the City of Jacksonville be enjoined from enforcing them.

The Circuit Court of Calhoun County issued a preliminary injunction against Sunday operation by Piggly-Wiggly, from which order Piggly-Wiggly appealed.

The constitutionality of Tit. 14, § 420, Code 1940, as amended, which is in question here, states in pertinent part as follows:

“Any person . . . who, being a merchant or shopkeeper, druggist excepted, keeps open store on Sunday, shall be fined not less than ten nor more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months. . . . ”

The Calhoun County blue law, § 341(a30)(b), Appendix, Vol. 14B, includes a further exception to the general state law. Its pertinent part reads:

“ . . . there is also excepted from the provisions of this section, due to public necessity and policy, the operation of a food store in which not more than four (4) persons regularly work. . . (Emphasis Supplied.)

The testimony on which the trial court granted injunction was the testimony of the police chief of the City of Jacksonville, J. Ross Tipton, who testified to a “head count” of store employees under his own definition of “regularly.” On direct examination of Chief Tipton, Mr. Vardaman, attorney for the City, asked the following:

“Q How many employees did you see?
“A It was over five.”

On cross examination, Chief Tipton, after testifying that he visited the Piggly-Wiggly Sundays on four or five occasions, testified to the following:

“Q On many of these occasions, is it not a fact that there were either three or four employees on duty at the store?
“A The times I have been in there, there have been four or more. That I made sure. I counted them.”

Whether these employees were regular employees was undetermined by Chief Tipton’s testimony.

Piggly-Wiggly raises the following issues on appeal:

I. Whether Tit. 14, § 420, Code 1940, as amended,
(a) is an improper exercise of police power; and
(b) is in violation of the Federal Constitution by establishing a preference to certain religions which may affect the civil rights, privileges and capacities of the citizens of Alabama.
II. Whether Act No. 1050 of the 1971 Legislative Session,
(a) is so vague and indefinite as to be unconstitutional because of the inclusion of the word “regularly”; and
(b) contains a classification which is unreasonable or without rational basis, therefore violative of the Fourteenth Amendment to the United States Constitution.

We answer issue I in the negative and answer issue II in the affirmative; we hold that the Calhoun County blue law is unconstitutional and overturn the lower court’s injunction granted in favor of the City of Jacksonville.

The United States District Court for the Northern District of Alabama wrote to issue I in Southway Discount Center, Inc. v. Moore, 315 F.Supp. 617 (1970) by quoting the general rule as found in 16A C.J.S. Constitutional Law § 496:

“ ‘With Sunday regulations, as with other laws passed under the police power, the legislature may classify persons or things for the purposes of legislation, provided such classification is based on reasonable distinctions and operate alike on all of the same class; but Sunday regulations which are arbitrary and based on unreasonable distinctions between different persons or classes of persons are unconstitutional.’ ”

Holding that the classification in Tit. 14, § 420 could justifiably be recognized as reasonable and valid, meeting minimum constitutional standards with regard to police power, the Federal Court upheld the statute.

Regarding part (b) of the first issue, whether § 420 is in violation of the Federal Constitution by establishing a preference for certain religions which may affect the civil rights, privileges and capacities of the citizens of Alabama, while it is not clear from the record that the appellants have established standing to raise this First Amendment right, made applicable to the states by the Fourteenth Amendment, this Court, in Lane v. McFadyen, 259 Ala. 205, 66 So.2d 83 (1953), held that legislative restrictions enacted under the police power of the state, requiring a day of rest at periodic intervals, do not interfere with religious freedom or liberty of conscience. See also McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). We have been shown no compelling reason to find constitutional infirmity with such statutes as § 420 represents which have been upheld against attack based upon religious grounds.

In Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), concerning a similar attack upon the Pennsylvania Sunday Law which prevented selling certain personal property on Sunday, the United States Supreme Court answered the argument of religious preference:

“ . . . [t]he statute before us does not make criminal the holding of any religious belief or opinión, nor does it force anyone to embrace any religious belief or to say or beliéve anything in conflict with his religious tenets.
If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.

This language is particularly appropriate here. Given the apparent purpose of § 420 which is to provide a day of rest at periodic intervals, and is well within the legislative power, and its indirect effect, if, indeed, there is any effect, upon religious observance, we find that the legislature has satisfied the constitutional requirements for such a statute as § 420. The question of unequal application is not before us. Therefore, we uphold Tit. 14, § 420.

However, we find fault with the specific blue law applicable to Calhoun County. This statute, Tit. 14, § 341(a30)(b), as is Tit. 14, § 420, is criminal in nature, and must be interpreted in accordance with established guidelines regarding the construction of criminal statutes. The Fourteenth Amendment to the United States Constitution echoed by the Constitution of Alabama, Article I, § 6, provides that one may not be deprived of life, liberty or property without due process of law. It has been held as a cornerstone of due process that an enactment is void for vagueness if its prohibition is not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

Appellants also contend that the Calhoun County statute violates the Fourteenth Amendment to the U. S. Constitution because it contains a classification which is unreasonable or which is without rational basis.

As appellants state in their brief, “there can be no reasonable substantial distinction between food stores which is based solely upon the number of their regular employees.”

The legislative purpose in requiring stores to close on Sundays is the protection of the public health and welfare which results from setting aside one day each week as a day of rest and relaxation. Code of Alabama, Appendix, Vol. 14B, § 341(a30) (b). When classification systems in legislation are relevant to the purpose stated in the legislation, they will be upheld. Al Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So.2d 816 (1958); Southway Discount Center, Inc. v. Moore, 315 F.Supp. 617 (N.D.Ala.1970); Plant v. R. L. Reid, Inc., 294 Ala. 155, 313 So.2d 518 (1975).

The purpose of the Calhoun County blue law, as indicated above, is the provision of a community-wide day of rest. In order to reach a result which will promote that purpose, the legislature chose the number of regular employees as a determinative factor, and established a classification which turned on that number. It stated, in effect, that stores which had [at any time] less than four regular employees could remain open on Sundays whereas stores which had [at any time] more than four regular employees must close on Sundays. We find that such a designation is not germane to the stated purpose of the legislation. The number of regular employees who are required to be at work from Monday through Saturday is in no way relevant to the number of employees who are unable to rest on Sunday as a result of the store by which they are employed remaining open on Sunday. Based on the purpose of the legislation, we find no rational reason to distinguish between large stores, i. e., stores with more than four regular employees [at any time], and small stores, i. e., stores with less than four regular employees [at any time]. All food stores, regardless of size, should find their Sunday operation governed by the legislative purpose of protection of health and welfare, and therefore should be included in the same class. The classification chosen by the legislature, four regular employees, seems to us to be an arbitrary classification for which no relation to purpose has ever been provided.

Our recent opinion in Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602 (1972) which dealt with a similar statute, does not conflict with this view, for in that case the statutory classification was based upon grocery stores not having on duty on Sunday more than four employees at any one time. This Court found that differentiation a reasonable one, consistent with the purpose of the Birmingham Sunday Law, Act No. 431, 1966 Acts of Alabama, Special Session, § 1(b), i. e., the maintenance of the public health. As we have noted, however, the classification in the instant case is not based upon the number of employees on duty on Sunday but upon the distinction between grocery stores with four regular employees at any time, including Sunday, and it is that distinction which we find as an unreasonable classification when measured by the purpose of the statute.

We recognize the presumption favoring the constitutionality of legislation if any viable construction may be given it. But here we can find no reasonable justification for the selection of the classification of four regular employees. We find, therefore, that the Calhoun County blue law’s classification is unreasonable and arbitrary, having no relation to the statute’s stated purpose, and we must strike it on constitutional grounds.

REVERSED AND RENDERED.

MADDOX, FAULKNER, SHORES and EMBRY, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Lois Etress CARDEN et al. v. Josie VANDERSLICE and Phoebe House.
    SC 1600.
    Supreme Court of Alabama.
    Aug. 13, 1976.
    Harry L. Hopkins and Carolyn B. Nelson, Birmingham, for appellants.
    Frank Ellis, Jr. and Conrad M. Fowler, Jr., Columbiana, for appellees.
   MADDOX, Justice.

The trial court ordered a 60-acre tract, owned jointly by 18 individuals as tenants in common, sold for division on the ground that the land could not be equitably divided in kind. We affirm.

The plaintiffs had the burden to prove that a fair and equitable partition of the land could not be made. We find that they sustained their burden by proof, especially in view of the presumption in favor of the trial court’s findings since he saw and heard the witnesses. Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951).

The record shows that attempts at division were made before the suit was filed, without success. Also, the nature of the terrain, the location of improvements and roads on the land and the number of interests — some owning one-fifth, others, one-fortieth — are facts which support the trial court’s finding that equitable division in kind could not be accomplished.

AFFIRMED.

FAULKNER, SHORES, EMBRY and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    Charles R. CROVO and Diane Crovo, jointly, separately and severally v. The AETNA CASUALTY AND SURETY COMPANY and Shirley Ann Skipper.
    SC 1565.
    Supreme Court of Alabama.
    Aug. 13, 1976.

      M. A. Marsal and Claude D. Boone, Mobile, for appellants.
    Donald M. Briskman, Daniel A. Pike, Mobile, for appellees.
   SHORES, Justice.

Shortly before midnight on October 4, 1973, a neighbor of Shirley Ann Skipper telephoned and asked Ms. Skipper to walk with her from the apartment complex, where the two women lived, to a restaurant and lounge a distance of some 200 yards. The neighbor, Martha Haas, said that they would only be gone a little while; that she was going to the lounge to get Charlie Crovo and would‘then return to the Haas apartment. Ms. Skipper protested that she had to be up at 5:00 a. m., had already retired and did not want to go. She relented, however, and got dressed and the two women left the apartment at approximately 12:05 a. m. on October 5th. When they reached the lounge, Mr. Crovo was waiting for them and told Ms. Skipper to get Keene Hammond. After having Keene Hammond pointed out to her, since she had never met him, Ms. Skipper approached him on the dance floor and told him that Charlie was ready to go.

The four left the lounge by the back door. Ms. Skipper testified that she started walking toward her apartment, but Mr. Crovo told her to get in the car. She did so, believing that they were going to the apartment. After Ms. Skipper got into Mr. Cro-vo’s car, he announced that he “was going to the Steak House to get something to eat.” Ms. Skipper testified: “. . . I told him that I did not want to go, that I was not hungry and that I wanted to go home.” Ms. Skipper told Mr. Crovo that she had to get up at 5:00 a. m. and wanted to go home, but he said no, “. . .we are going to get something to eat . .” She again told him that she did not want to go but wanted to go home. Instead of driving to the apartment, Mr. Crovo headed in the direction of the Sky Ranch Steak House and, within a very few minutes, at approximately 12:15 a. m., the automobile driven by him left the road and settled in a ditch. Ms. Skipper suffered severe injuries.

Mr. Keene Hammond testified that he and Mr. Crovo had begun drinking at one lounge around 6:30 p. m. and continued to drink at the lounge adjacent to the apartment complex in which Martha Haas lived until around midnight, when Charlie called Martha Haas to join them. He did not remember how many drinks they had. He did not remember whether Ms. Skipper and Ms. Haas had a drink, and he did not remember whether Ms. Skipper protested that she did not want to go to the Sky Ranch Steak House. He did remember the accident, and did remember that Mr. Crovo told him to tell the police that he, Hammond, was driving the automobile.

Within two or three days of this accident, Mr. Crovo conveyed the house in which they lived to his wife. Mrs. Crovo testified that the conveyance was made as a part of a divorce settlement between them, but that divorce proceedings were never instituted.

Ms. Skipper sued Mr. Crovo charging him with negligence and wanton misconduct. She also sought to set aside as fraudulent the conveyance of the property to Mrs. Cro-vo. Aetna Casualty intervened because it had paid Ms. Skipper $10,000 under the uninsured motorist provision of Ms. Skipper’s liability policy.

At the conclusion of the evidence, the trial court submitted the negligence and wanton claims to the jury. The fraudulent conveyance claim was withheld from the jury’s consideration as was Aetna’s claim. The jury returned a verdict in favor of Ms. Skipper in the amount of $22,500. The Crovos appealed.

The first argument made for reversal is that the trial court erred in refusing to direct a verdict in favor of Crovo on the negligence and wanton counts. Crovo contends that Ms. Skipper’s negligence claim was barred by the guest statute; and that he was entitled to a directed verdict on the wanton count, since he says there was not a scintilla of evidence tending to show that his conduct was wanton.

The purpose of the guest statute has been stated many times and needs no repetition here. Suffice it to say that, where the facts are disputed or are conflicting whether one is a guest within the meaning of the guest statute is a question for the jury. Harrison v. McCleary, 281 Ala. 87, 199 So.2d 165 (1967).

It has frequently been stated that the relationship between the host and guest is consensual in nature and involves some acceptance by the guest of the relationship and its attendant hazards; and that misrepresentations, express or by implication, which operate to induce one to become a rider in the automobile, can nullify the relationship. See 8 Am.Jur.2d, Automobiles and Highway Traffic, § 475.

In this case, there was evidence from which the jury could have concluded that Ms. Skipper got into Crovo’s automobile only because she had been told by Mrs. Haas that, if she would accompany her to the lounge to get Charlie, they would bring her back to her apartment immediately. The jury could have believed Ms. Skipper’s version of the circumstances under which she entered Crovo’s automobile, i. e., that she thought they were going back to the apartment. Her evidence was to that effect and she protested when Crovo insisted that they were going to another restaurant. We find no error in submitting the negligence count to the jury. Ms. Skipper put on evidence which, if believed by the jury, would take her out of the operation of the guest statute insofar as the negligence claim is concerned.

In addition, there was sufficient evidence of wantonness to submit this claim to the jury. Crovo argues, on appeal, that there was not a scintilla of evidence going to prove wantonness. It is his contention that, at the time of the accident, he had been drinking, was driving slowly, down a two-lane road. Therefore, he says it is impossible to determine that he was guilty of doing an act “with reckless indifference.” We disagree. The evidence was uncontro-verted that Mr. Crovo had been drinking for some six hours when the trip to the restaurant was undertaken. Mr. Hammond testified that, when it became apparent that the car was leaving the road, he called to Mr. Crovo but the latter did not respond and he could not discern any braking of the automobile. The car simply left the road and ran into a deep ravine. We believe this is evidence from which the jury could have found that Mr. Crovo undertook to drive the automobile to the restaurant in reckless disregard of the welfare of himself and those persons riding with him. See 141 A.L.R. 58, Anno.—Automobile Guest Statutes—Intoxication.

The Crovos complain that the trial court erred in its treatment of the fraudulent conveyance count. In response to this argument, we first note that Rule 18(b), ARCP, expressly provides:

“Joinder of Remedies: Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.”

The Committee Comments to this rule state:

“Rule 18(b) is inserted to make it clear that in a single action a party should be accorded all the relief to which he is entitled regardless of whether it is legal or equitable or both. In respect to fraudulent conveyances the rule conforms to the provisions of the Uniform Fraudulent Conveyance Act, §§ 9 and 10. . . . ”

Clearly, there was no error in the trial court’s denying Crovo’s motion to strike the fraudulent conveyance claim. Just as clearly, Rule 42(b), ARCP, permits, but does not compel, the trial court to sever this claim for a separate trial. Of course, as the rule states, the right of a trial by jury is unaffected by the rule. One cannot, by joining claims under Rule 18, secure a jury trial where a jury would not be required were the claim brought separately. We do not think that the treatment accorded the fraudulent conveyance claim by the trial court in this case circumvented any of the above rules. Although the court refused to strike the claim, it did remove that aspect of the case from the jury’s consideration, telling the jury that that part of the case was totally outside the jury’s consideration and that the court would decide that part of the case.

We now turn to whether there was evidence which would support the trial court’s conclusion that the conveyance of the Crovo property was fraudulent as to Mr. Crovo’s creditors. Under our statute, which is no more than a restatement of the common law (Title 20, § 7) as to an existing creditor, a deed without valuable consideration conveying any of the debtor’s property subject to the debt is void, regardless of the intent or financial condition of the parties, and

“. . . If instead of being voluntary, it was given to satisfy, or as a credit on a debt owing the grantee by the grantor, a proportionate amount of the value of the property conveyed is free from the right of a creditor though then existing to subject it to the debt, and the intent in making the deed is not controlling.
“If the debtor conveys the property and receives value for it, to the extent of that value, the creditor of the grantor is without remedy unless the debtor made the conveyance with the fraudulent intent to hinder, delay or defraud his creditor, and the grantee had notice of that fraudulent intent, and, therefore, participated in the fraud. . . .” Headley v. Headley, 264 Ala. 383, 387, 88 So.2d 341, 345 (1956).

The deed to the property from Mr. Crovo to his wife, made just two days after the accident wherein Ms. Skipper was injured, recited a consideration of “one dollar and love and affection.” Mrs. Crovo testified that the deed was delivered as a part of a settlement pursuant to a divorce between the Crovos. However, no divorce proceeding was ever filed, and the parties continued to live together as man and wife. The trial judge could have believed that no valuable consideration passed, or he could have believed that even had valuable consideration passed, that Mr. Crovo conveyed the property to his wife with the intent to hinder, delay and defraud his creditors, and that Mrs. Crovo had knowledge of that intent. There were inferences in the evidence to support either conclusion. Therefore, we cannot disturb the trial court’s finding, based as it was on evidence adduced at the trial.

Lastly, Mr. Crovo argues that the trial court erred in not declaring a mistrial in this case. It is his contention that permitting the jury to hear evidence regarding conveyances of property by Mr. Crovo to his wife so prejudiced the jury as to render it unable to fairly try the ease. We are not persuaded that this is so. The trial court carefully defined for the jury the issues to be determined by it and those issues which were outside the jury’s consideration. The jury was instructed to totally disregard the issue of fraudulent conveyance, and to disregard and not to give any consideration to the rights of Aetna, as the insurer under the plaintiff’s uninsured motorist coverage, the court telling the jury that those were matters for the court’s consideration and not for the jury. We, therefore, do not believe that Mr. Crovo was entitled to a mistrial.

We find no error to reverse.

AFFIRMED.

MADDOX, FAULKNER, EMBRY and BEATTY, JJ., concur.


author: JONES, Justice. JONES, Justice.

text:
    The GREATER FRIENDSHIP A.M.E. CHURCH et al. v. Arthur SPANN et al.
    SC 1684.
    Supreme Court of Alabama.
    June 11, 1976.
    Rehearing Denied Aug. 27, 1976.

      Stokes & Nomberg, Daleville, for appellants.
    James W. Rane, Abbeville, for appellees.
   JONES, Justice.

This is an appeal from a quiet title proceeding brought by the Greater Friendship African Methodist Episcopal Church of Shorterville, Alabama, against Arthur Spann. The trial Court heard the evidence ore tenus, and entered a decree awarding the disputed property to Spann in fee simple. We affirm.

The disputed land is a five-acre tract which adjoins the Church grounds. In November, 1965, the Henry County Board of Education deeded the tract to the Church, and in November, 1967, the Church deeded the property to Spann. Both deeds recited a consideration of $600. The deed from the Church to Spann was signed by Spann, his brother, Wilbur, and L. C. Cotton, all trustees of the A.M.E. Church.

In its attempt to restore its title to the tract, the Church argued that the deed to Spann was not given for valuable consideration and the approval of the conveyance did not comply with either the A.M.E. Church Discipline or Tit. 10, § 129, of the Alabama Code. To defend his claim to the land, Spann explained that the conveyance from the school board to the Church was only a nominal transaction which was necessary because the school board would not convey real property to individuals. Spann contends that the trustees of the Church had already arranged for a transfer to him when the board granted the tract to the Church and that he assumed and personally repaid a $600 mortgage on the tract to R. E. Phillips.

Our review of this case will consist of the resolution of three issues. First, whether Spann received a valid deed to the land in exchange for valuable consideration. Second, whether the conveyance to' Spann complied with the requirements of Title 10, § 129. Third, whether the provisions of the A.M.E. Discipline regarding alienation of property apply to this case.

The first issue presents purely a factual determination. Spann testified that he became liable on the note and mortgage to Phillips. Several members of the congregation testified that collections had been taken at Church for the repayment of the debt, but other members stated they did not know how the debt was repaid. Phillips testified that he had dealt directly with Spann, that Spann had personally arranged for the $600 loan himself, received the money, and repaid the loan. Although Phillips recalled there were other names on the note, his dealings were solely with Spann. Phillips also testified that Spann paid him in cash. The Church treasurer, L. C. Cotton, testified that he did not know who paid the note to Phillips and no records of the repayment exist.

Cotton further testified that although his name appeared on the deed to Spann, he did not remember deeding the property to Spann and he denied the genuineness of his signature on the deed. Both the deed to Spann and the note to Phillips were admitted into evidence. Both documents bore Cotton’s name, but he claimed he signed only the note.

The trial Judge had the opportunity to examine both signatures and to hear the irreconcilably conflicting testimony. There is evidence to support the findings that the deed was valid and that Spann paid off the note to Phillips. After a complete review of the record, we are unable to conclude that such findings are plainly and palpably wrong or manifestly unjust; therefore, we must sustain them on this appeal from an ore tenus trial. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1974).

The second issue is whether the conveyance to Spann complied with Tit. 10, § 129, Code, which reads:

“The trustees or other authorized agents of any church, conference of churches, society or association, or other corporation organized under section 124 of this title, may sell and convey all or such part of the property thereof, real or personal, as they may be authorized to do by resolution of the church, conference of churches, society or association, or other corporation assembled at a regular meeting or special meeting, and if a special meeting, notice of the time, place and object of such meeting must be given at least ten days prior to said special meeting by posting notice at the place of said regular meetings.”

To support his contention that the conveyance complied with the statutory requirement, Spann introduced the minutes of a meeting conducted at the Church on June 16,1967, at which a resolution to convey the land in question to Spann was introduced and passed by a majority of the members. To counter this record, the Church called several members who testified either that they had no recollection of the meeting or that no such meeting occurred. It is impossible for this Court, from the record before us, to sort out the truth in this matter. Several of the witnesses called by the Church seemed confused when cross examined and others had absolutely no meaningful recollection of relevant events or dates even within a range of three to four years.

Once again, we feel constrained to rely upon the ore tenus rule. Since the trial Judge heard the conflicting testimony and observed the demeanor of the witnesses, we will not set aside his judgment if it can be supported by the evidence. We hold that a finding that the meeting reported in the minutes of June 16, 1967, was actually held and a resolution to sell the property was passed is a reasonable inference from the evidence. Therefore, we sustain the finding.

The third issue is whether the A.M.E. Discipline is applicable in this case to prescribe the procedure for a valid conveyance of church property. Section 3 of the A.M.E. Discipline deals with the transfer of local church property. The section was admitted into evidence and reads as follows:

“Laws About Church Property, Etc.
“Transfer of Property
“The Board of Trustees elected by the local church, in the manner provided by the African Methodist Episcopal Discipline, may take such steps to effect a transfer of property, both real and personal, in accordance with the provisions of the Articles of Incorporation of the African Methodist Episcopal Church, provided that such transfer has been approved by resolution in the quarterly conference of said church, and by the trustees of annual conference in which property is located, and of which the presiding Bishop is president.
“Mortgaging and Selling Property
“If and when the property has been incorporated, all such real estate owned or thereafter acquired by the local incor-porators shall be deeded to it in its corporate name.
“1. The said corporation shall have the power to sell, convey, and dispose of property, both real and personal, in fee simple and otherwise.
“2. The proceeds of such sale shall be in trust for the African Methodist Episcopal Church or disbursed for another improvement of such other properties owned by it or to be purchased by it.
“3. No property shall be sold except with the approval of the quarterly conference by resolution.
“Mortgaging Property
“The Board of Trustees or Incorpora-tors of the church property, elected and organized as prescribed in the Discipline of the African Methodist Episcopal Church, shall have the power to mortgage or encumber property of the charge or corporation for purposes known to be for the best interest of the congregation, provided such action has been authorized by majority vote of the membership present in a Church Conference called for this purpose, notice of such meeting having been given 14 days previously including two Sundays, and subsequently approved by resolution in a regular session of the Quarterly Conference.
“Wherever these laws conflict with the laws of the State in which the property is located, the pastor and trustees shall proceed in a manner to conform with said law.”

It is uncontested, that the conveyance to Spann did not comply with this section. We must, therefore, address the question of the effect of church discipline on conveyances in general and the applicability of this church discipline to the instant conveyance. The effect of church regulations on conveyancing law has not been adjudicated in Alabama. In the case of Goodhope Colored Presbyterian Church v. Lee, 241 Ala. 195, 1 So.2d 911 (1941), the Court was faced with a conveyance from a church in which church regulations were involved, but the Court found that the conveyance complied with the church regulations; therefore, the Court did not reach the question of whether the church regulation could annul an otherwise valid conveyance.

Other states, however, which have addressed this question, have held that church regulations will be given legal effect even if they add to the statutory requirements for conveyancing as long as they do not contravene state law. Geiss v. Trinity Lutheran Church Congregation, 119 Neb. 745, 230 N.W. 658 (1930); Grupe v. Rudisill, 101 N.J.Eq. 145, 136 A. 911 (1927).

It appears that the Alabama Supreme Court was willing to accept this rule in the Lee case if it had been necessary, and we have found no persuasive authority for any contrary rule. Therefore, we adopt the rule for Alabama law.

This general rule, however, does not operate to defeat Spann’s title. To so operate in this case would violate the established law of resulting trust. Here, the local A.M.E. Church served merely as a conduit through which title passed from the Board of Education to Spann. The trial Court heard competent evidence to support the finding that at the time of purchase both parties (Spann and the local Church) understood and agreed that Spann was the true purchaser of the property; that he and not the Church was obligated to pay the consideration ($600) for the property; and that he personally did in fact pay the full amount of the mortgage ($700 including interest). The evidence supports the further finding that the mortgagee (Phillips) recognized that he was dealing with Spann as the true legal title holder.

These facts constitute all the elements of a resulting trust. A clear statement of the rule is found in J. A. Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35 (1932), as quoted in the later case of Hooks v. Hooks, 258 Ala. 427, 63 So.2d 348 (1953):

“A resulting trust, the holding of title by one with beneficial ownership in another, is a creature of equity, based upon the prima facie presumption that he who pays the whole or an aliquot part of the purchase price for lands becomes the beneficial owner. The doctrine does not rest on an express, but on an implied, agreement, by which the title is taken in the name of another as matter of convenience. No tort or breach of duty is involved in this form of trust. The conveyance, as made, may be in keeping with the common purpose of all parties. '
“But, in the nature of the case, as often declared, this beneficial ownership must arise at the time of the purchase, when the status of title becomes fixed. Since the trust arises from the payment of purchase money, such payment must ordinarily be made at the time of the purchase.”

Under one version of the facts, which the trial Court was free to find, Spann unquestionably could have legally enforced the equitable remedy of resulting trust absent any conveyance whatsoever to him from the local Church. If these facts would support a legal decree awarding title to Spann under the doctrine of resulting trust absent any conveyance, then, surely, title in Spann could not be defeated by an imperfect conveyance. The trial Court’s decree is supported by the evidence; and, in our opinion, the award of title to the property in question to Spann is plainly and palpably correct.

AFFIRMED.

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

ON REHEARING

JONES, Justice.

Appellant filed an application for rehearing which reached the Clerk’s office one day after the time required for such filing under ARAR 40. The appellant mailed his brief on the final day, but did not use certified or registered mail as required by ARAP 25(a). Since this is the first instance of such inadvertence and since the ARAP have been so recently adopted, we grant the appellant’s motion for permission to file the application for rehearing.

We have numerous times invoked Rule 2 (waiver of the rules) so as not to work an injustice during the period immediately following the effective date of the new Rules of Appellate Procedure. The Bar should be on notice, however, that, with the passage of time, the Court will invoke Rule 2 with less frequency and require strict compliance with those rules prescribing time limitations for the initiation of certain actions.

On the merits of the application, the appellant points out testimony in the record which contradicts testimony in favor of the trial Court’s findings. We are aware that the record is fraught with irreconcilable conflicts and that the trial Judge necessarily had to believe one party' and disbelieve the other. However, this is the function of the trier of fact. On appeal, this Court will not re-evaluate those facts unless we are persuaded that the findings were not based upon competent evidence or that they were plainly and palpably wrong or manifestly unjust.

We are not so convinced in this case. The application for rehearing is overruled.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

• HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . Because all three issues were raised and argued by appellant’s counsel, we have addressed each of them in order to more fully develop the factual context of the controversy. It should be noted, however, that our disposition of the third issue is dispositive of the first two.


author: FAULKNER, Justice. ALMON, Justice

text:
    Timothy P. CRUMP et al. v. GEER BROTHERS, INC., a corp.
    SC 1395.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Rehearing Denied Sept. 3, 1976.

      Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellants.
    Hugh W. Roberts, Jr., Tuscaloosa, for ap-pellee.
   FAULKNER, Justice.

This is an appeal from a jury verdict, and judgment of the Circuit Court of Tuscaloosa County, awarding Geer $54,000 damages for negligence of an insurance agent by procuring inadequate coverage of insurance against loss or injury, by fire, and other perils. We affirm.

Geer Brothers, Inc. is a business engaged in selling campers and other recreational vehicles. Crump, an insurance agent, visited Geer several times with intent to sell it insurance. Geer claims that on one of these visits, August 1, 1973, an agreement was reached for Crump to provide “complete and adequate” insurance for the business. No letter, policy, or binder put this into effect. On February 18, 1974, however, Geer was given a “summary of proposed coverage” with coverage of $69,000 for fire and allied perils. This was later increased to $150,000. On May 2, fire destroyed one of Geer’s buildings. Geer claimed that the building was worth $10,000; the inventory therein, $90,000. Crump asserts that even though the fire insurance coverage was increased from $69,000 to $150,000, the destroyed building remained insured for only $10,000, and its contents for $20,000. The other $120,000 of fire insurance covered the other buildings on the property, and their contents.

At the trial, Geer contended that Crump knew of the seasonal nature of the business, and its fluctuating inventory; that once Crump had agreed to procure insurance, he was under a duty to use reasonable skill in doing so, by being sure Geer’s inventory was adequately covered. Crump, on the other hand, contends there was no agreement reached between him and Geer on August 1, 1973. He says the “summary of proposed coverage” dated February 18, 1974, is unambiguous and the sole “expositor” of any agreement between the parties. Furthermore, he contends the evidence is insufficient to support the jury’s finding an agreement to procure “complete and adequate” insurance. Crump also says that the trial court admitted inadmissible evidence; the opposing counsel engaged in improper argument by suggesting to the jury to put themselves in the shoes of Geer; that the issue of personal liability insurance was injected into the trial, to the prejudice of Crump. Finally, he contends that the measure of damages was erroneous because a mark-up was added to the cost of goods in computing the value of the destroyed inventory.

I

This court stated in Timmerman Ins. Agency, Inc. v. Miller, 285 Ala. 82, 229 So.2d 475 (1969):

“ . . . when an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom.”

Here the agent procured insurance, but the questions are, did he procure “complete and adequate” coverage, as alleged by Geer, and did he agree to procure the insurance on August 1, 1973.

The evidence is conflicting about when an agreement to procure insurance was reached. But the evidence is clear that insurance was procured. It appears that there just was not enough. “Complete and adequate” coverage, then, appears to be the principal bone of contention.

Mr. Geer testified that several discussions with Crump were had concerning the necessity of adequate insurance. Crump was advised by Geer of the seasonable nature of the business, and the fluctuating inventory. Crump had access to the financial records of the business, and he examined the Geer warehouses. To show that he relied on the skill of the agent, Mr. Geer testified:

“Well, I did not put it in so many words as to knew (sic) exactly what I had, because I did not research each individual item, and go into great lengths. I explained to Mr. Crump that I was not an insurance expert, that I was sort of at his mercy — he could mess me up, he could charge me extra money, he could waste my money — he said T will not do that; ’ he said, T will write you the right insurance,’ and these kind of things. I did not question so many of his details. I did not know what questions to ask him.”

Crump, on the other hand, contends that Geer knew how much coverage he had; that he had explained the coverage to Geer, and that the insurance contract was unambiguous. He testified that after the fire, he told Géer he should be pleased that the coverage on the burned building had been increased to $30,000. Geer testified he agreed that $10,000 was sufficient for the building, but inventories fluctuated rapidly, and $20,000 was insufficient for the contents. Geer’s evidence tended to show that in his dealings with Crump he was under the impression he had $100,000 coverage on inventory and warehouse.

To reverse the trial court, we would have to be convinced that the evidence was insufficient to support the verdict. Moreover, in view of the trial court’s denying a motion for new trial, the presumption of the jury verdict is strengthened. From a review of the evidence, we cannot hold that the trial court abused his discretion by not granting a new trial. The rule announced in Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1890) provides that:

“. . . the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”
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“[The trial judge] has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor, or convenient failure of memory, to avoid impeachment, or for other improper purpose. The appellate court, possessing none of these aids and advantages, and receiving the evidence on paper only, is less qualified to determine what evidence is unworthy of belief, or what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses.”

II

Crump alleges the trial judge erred by overruling his objections to questions propounded to Geer. He states that they called for a conclusion of the witness, conjecture, and invaded the province of the jury.

The questions are:

“If you had been on the reporting form, or if you had been on — well, how much would the coverage have been in May of 1974, had you been on a reporting form basis?”
“O.K. Well, was it your understanding, from your dealings with Mr. Crump, that you had more than $20,000 coverage on your inventory that was lost.”
“Were you led to believe by your negotiations with Mr. Crump, that on the warehouse that burned and the contents, that you had increased your coverage over what Gurley Barber and Harris had — ”
sk * * * * *
“All right, sir. Were you led to believe from the negotiations with Mr. Crump, that the coverage that would be on the inventory and the building that burned, would be equal to what was in the building at the time of the fire?”
“Was it your understanding from your dealings with Mr. Crump, and in your negotiations with Mr. Crump were you led to believe, that you had $100,000 on the premises that was destroyed?”
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“Is it understood from your negotiations with Mr. Crump, that that included the fire coverage?”
“In your negotiations and dealing with Mr. Crump, were you under the impression that he was suggesting that you would have a $100,000 on that location?”

This court stated in Mobile, J. & K. C. R. R. Co. v. Hawkins, 163 Ala. 565, 51 So. 37 (1909) that:

“A witness may state a conclusion of fact; he is not required to state every fact separately from every other fact; he may state facts either separately or collectively. It is conclusions of law that he may not attempt to state; nor will he be allowed to draw a conclusion, or to state a conclusion which is to be drawn from several other facts — that would be the province of the jury; but it is not only permissible for a witness to sometimes state a conclusion as to a fact, but often absolutely necessary that he do so, if he testify at all relative to the fact. The rule prohibits merely the drawing or stating of conclusions of law, which are questions for the court, and of certain conclusions of fact which, under the issues and the evidence, are exclusively questions for the jury, and to be determined from all the other facts or evidence in the case. These conclusions of fact are denominated by our court ‘shorthand rendering of facts,’ to distinguish them from mere gratuitous opinions, motives, and conjectures of the witness.”

We hold that the trial court did not err by overruling objections to the questions. It is true that a non-expert witness may not give his opinion on the legal effect of a legal document, but that is not the effect here. The effect of Geer’s testimony was a shorthand statement of the facts about the agreement to procure insurance. Cf. Hughes v. Merchants Nat. Bank of Mobile, 256 Ala. 88, 53 So.2d 386 (1951).

HI

Crump alleges error when the trial court overruled his objection to the following questions propounded to him by Geer’s counsel:

“. . . And Mr. Crump, I am talking about the conversation that they started, that they opened the door on: Didn’t you say T am' personally covered with insurance to cover my errors’ and ‘Didn’t you tell them about insurance that you personally had to cover any errors?”

The trial court overruled Crump’s motion for mistrial. The questions were also included in Crump’s motion for new trial. The questions to the witness leading to the objections are cataloged as follows:

“Q. All right, sir. Now, the conversation you had with Mr. Geer, and you inferred that: ‘wasn’t it fortunate that we raised the coverage on the premises?’
“A. Yes, sir.
“Q. You never did raise the coverage on the inventory in the burned building, did you?
“A. No, sir. Mr. Geer had carried Fifteen Thousand Dollars prior to August—
“Q. Excuse me, sir, but didn’t you also —Didn’t he say, ‘Well, Tim, we have got a Hundred Thousand Dollars:’ Did he mention that to you, in coverage?
“A. Yes, sir.
“Q. All right, sir. And didn’t he act very much surprised when he found out, when you told him he did not have a Hundred Thousand Dollars coverage?
“A. Yes, sir, he was surprised.
“Q. And didn’t, Mr. Crump, right there on the occasion of the fire, you said, ‘Aaron, if you think that you had a Hundred Thousand Dollars insurance, and should have had a Hundred Thousand Dollars insurance, and that I was supposed to afford you with a Hundred Thousand Dollars coverage: go ahead and file your suit.’? Or, words to that effect?
“A. I might have said words to that effect — I very probably did.
“Q. And didn’t you say also — And, Mr. Crump, I am talking about the conversation that they started, that they opened the door on: Didn’t you say, ‘I am personally covered with insurance to cover my errors.’?
“MR. McEACHIN: We object to that. The question calls for highly prejudicial evidence which is irrelevant to the issues and designed to impress upon the jury that Defendants were covered by insurance and the evidence would create an atmosphere of prejudice against the Defendants and is highly prejudicial and irrelevant.
“THE COURT: I’ll overrule.
“MR. ROBERTS: Didn’t you tell them about insurance that you personally had to cover any errors?
“THE WITNESS: I—
“MR. McEACHIN: We object, and at this time move for a mistrial. The question calls for highly prejudicial evidence which is irrelevant to the issues and designed to impress upon the jury that Defendants were covered by insurance and the evidence would create an atmosphere of prejudice against the Defendants and is highly prejudicial and irrelevant.
“THE COURT: Overrule your motion for a mistrial, and also your objection.
“THE WITNESS: I said that people, did make mistakes, and this was — I told them that people did make mistakes, that I did not feel that I had made one, but—
“A. Did you mention to him that you had—
“THE COURT: Just a minute, now: Don’t mention anything else about coverage on him.”

Geer contends that by propounding the question about insurance to Crump he was bringing out the remainder of the conversation between them. When part of a conversation is put into evidence, the opposing party may rightfully call for the whole conversation or all that was said in connection with that statement. Gibson v. State, 91 Ala. 64, 9 So. 171 (1890). Moreover, a defendant’s mentioning his liability insurance is not inadmissible if it is associated with or interwoven with another part of his statement admitting fault, so as to be inseparable. Pittman v. Calhoun, 233 Ala. 450, 172 So. 263 (1937); Smith v. Baggett, 218 Ala. 227, 118 So. 283 (1928).

In Hunt v. Ward, 262 Ala. 379, 79 So.2d 20 (1955), this court said:

“ ‘ “It is unquestionably well settled that proof that a defendant had indemnity insurance is not admissible as an independent fact, but we have had cases where it is (admissible) when collateral to other material facts or so associated with or interwoven as to be inseparable that it becomes admissible and can only be eradicated or neutralized as bearing upon the defendant’s liability by a limitation upon the effect of such evidence.” ’ ”

In this case, there were two questions propounded to the witness on the subject of liability coverage. They were asked under color of right or show of right to do so. We opine that a mistrial was not warranted. See Burnett v. Bledsoe, 276 Ala. 139, 159 So.2d 841 (1964). We observe that the trial court admonished counsel not to mention coverage again, after having ruled on objections, and the motion for mistrial.

IV

Crump objected to testimony of Geer’s witness, Marion Posey, concerning damages. Posey was in business with Geer. His background was in accounting, and he was called as an expert in that field. Geer says an accounting expert was necessary to explain to the court and jury the complicated procedures involved in extrapolating the market value of the merchandise stored in the warehouse destroyed by fire. Posey testified he was familiar with the stored merchandise, had participated in their inventory, and was familiar with the accounting procedures. He was permitted to testify about the cost of the merchandise, and a 27.9% mark-up to the cost. Crump objected to this testimony.

As a general rule, the measure of damages for injury to property is the difference between the reasonable market value before and after the injury (market value may be defined as the price that a willing seller would sell, and a willing buyer would buy, neither being compelled to sell or buy). However, evidence of the amount required to make necessary repairs to a damaged automobile is a factor which a jury was authorized to consider in arriving at the true measure of damages. Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708 (1950). In Southern Hardware Supply Co. v. Standard Equipment Co., 158 Ala. 596, 48 So. 357 (1909), this court said, “The general rule as to the measure of damages for property destroyed ... is the market value of same at the time of the injury or destruction, and the interest.”

Posey, having knowledge of the merchandise stored, and the price at which it was sold, was competent to give his opinion as to its value. Sussex Fire Ins. Co. v. Barton, 225 Ala. 570, 144 So. 439 (1932). Mark-up, when added to cost, results in selling price. If Posey was competent to testify as to “price sold,” it follows he could testify what the mark-up was, when he had already testified as to the cost of the merchandise. The weight given this testimony was for the jury. Sussex.

V

During the summation to the jury, Geer’s counsel said,

“Now, I cannot ask you by law, to put yourselves in the position of this man (indicating): But I can ask you to exercise your good judgment— .
“But I can ask you to exercise your good judgment, and put yourself in a position of an insured, who has presented this item right here (indicating), or any of these other summaries.”

We are of the opinion that if there was error, it was error without injury. In Hayles v. Jeter, 279 Ala. 283, 184 So.2d 363 (1966), counsel for plaintiff stated, “ T ask you, gentlemen, to put yourself in Plaintiff’s place . . . ’”

This court said:

“We do not say such argument would be proper. We do not, however, have before us enough of the argument to say that the bare invitation constituted such a forbidden appeal to the sympathy of the jurors as to prejudice defendant to the extent that this judgment must be reversed.
“With respect to remarks of counsel, much discretion is allowed the trial court . We are not persuaded that reversible error has been shown.”

The trial court instructed the jury that the statement was not evidence. He said:

“Well, I overrule, and I instruct the jury that everything the lawyers say is just argument: It is not in evidence, and that is not to be taken as evidence. That is just argument — their argument of the case.”

This should have cured any injurious effect the argument may have had.

VI

Finally, Crump contends the trial court erred by denying his motions for a directed verdict, and judgment notwithstanding the verdict. We hold the trial court did not err. A critique of Rule 50 A.R.C.P. was given by this court in Loeb and Co., Inc. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976). There we discussed the Reasonable Man Test, and the scintilla evidence rule, and reversed the granting of a motion for directed verdict. Here, we apply these rules, and hold that the denial of the motions was proper.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH and EMBRY, JJ., concur.

ALMON, J., concurs specially.

ALMON, Justice

(concurring specially):

I concur specially in the majority opinion, feeling constrained to note my reservation on the measure of damages. If appellant had adequately insured the appellee, then under the policy the appellee would have been entitled to “actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality . . . without compensation for loss resulting from interruption of business or manufacture.”

Under the charge and evidence submitted to the jury, damages were to be the difference between the reasonable market value before and after the fire, which under the circumstances of this case included profit. Appellants made no objection to the court’s oral charge on this point. Consequently, the issue is not before us. Nevertheless, I think a brief comment is in order.

“As a general rule the liability of the agent with respect to a loss, by reason of his breach of duty, is that which would have fallen on the company had the insurance been properly effected, together with such other damages as proximately result from the breach, and less the amount of unpaid premiums of cost of the insurance.” 44 C.J.S. Insurance § 172.


author: FAULKNER, Justice.

text:
    F. O. MAJORS and Trudie G. Majors v. STATE of Alabama ex rel. Charles H. PAYNE, Commissioner of Insurance.
    SC 1703.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Rehearing Denied Sept. 3, 1976.
    J. Ronald Storey, Dothan, for appellants.
    Alton, Leavell & Morgan, Montgomery, for appellee.
   FAULKNER, Justice.

This is an appeal from an order quieting title to certain real estate, situated in Houston County, Alabama, in Payne, as Receiver of Alliance Insurance Company, a bankrupt corporation. We affirm.

December 30,1960, F. 0. Majors (founder, president, and chief executive officer of Alliance Insurance Company) and his wife, Trudie, conveyed by warranty deed, a house and lot to Alliance Insurance Company. The conveyance was subject to a mortgage on the property to H. A. Hicks. On December 31, Majors, as president of Alliance, executed a “bond for title” in favor of himself individually, and his wife. The recited sales price was $20,000, payable in monthly installments of $125.96 for 22 years. At the end of this period, Alliance was obligated to convey the property to Majors and his wife. Majors paid the monthly payments until February, 1969. On this date the outstanding balance was $14,962.42.

On August 1, 1971, Alliance paid the balance due on the mortgage to Hicks, and the mortgage was satisfied.

After the conveyance to "it, Alliance carried the property on its books as an asset. The value of the property was used to offset Alliance’s reserve liabilities. On November 14, 1961, the Majors executed a mortgage on the property to W. S. and A. E. Rice. They foreclosed the mortgage on June 26, 1972. Following this, the Rices quit-claimed the property to IRM Corporation on March 10,1975. The IRM Corporation is a Florida corporation, whose officers and principal stockholders are the sons of Majors, and his secretary. The principal business office of IRM is located in a Panama City, Florida beach motel where Majors, his wife, sons, and secretary reside.

Prior to executing the mortgage foreclosure by the Rices, Majors was notified by Alliance, on February 20, 1970, that his account was delinquent. In June, 1972, Majors was advised by the Receiver that the “bond for title” was in default, was declared void, and all payments on it were considered rent.

On April 21,1975, the Receiver petitioned to have title to the property quieted in Alliance, to void the mortgage from the Majors to the Rices, to void the foreclosure deed in favor of the Rices, to void the quit-claim deed to IRM Corporation, and to find that the Majors have no interest in the property. The Majors cross-claimed by asking the court to declare the Majors were either holders of the fee simple title, or holders of an equity of redemption. They further asked that the court find IRM the holder in due course or equitable holder in due course of the Rices’ interest. The trial court heard the case ore tenus, and granted relief prayed for by the Receiver, and denied the cross-claim.

The primary issue for our determination is whether the trial court was correct.

The principal contention of the Majors is that the court construe the “bond for title” as a “mortgage,” and thus enable them to be record title owners with a mortgage to Alliance. We reject this contention.

A “bond for title” has the legal effect of a contract to convey land. Sanders v. Danley, 289 Ala. 324, 267 So.2d 169 (1972); Wainwright v. Rolling Acres, Inc., 289 Ala. 593, 269 So.2d 123 (1972). Here, Majors received notice from the assistant treasurer of Alliance on February 20, 1970, that his account was delinquent; he received notice from the Receiver in June, 1972, that the “bond” was in default. Under the terms of the “bond for title,” default in payments voided the contract as it related to the purchase of the property at the option of Alliance. The Receiver, standing in the place of Alliance, exercised the option. Even if we treated the “bond” as a “mortgage,” under the facts and circumstances of this case, the time for “equitable redemption” had expired. No clear reason existed for extending this time beyond the statutory period. Cf. Caudle v. First Federal Savings & Loan Association, 295 Ala. 274, 327 So.2d 911 (1976); W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 66 So.2d 77 (1953).

The trial court found that Majors had no interest in the property which he could mortgage to the Rices. Therefore, their foreclosure, and transfer to IRM Corporation cannot affect the title to the property. As the court tried the case ore tenus, we would have to substitute our judgment on the evidence for his, to reach a different result. His findings are cloaked with a presumption of correctness, and will be disturbed only when manifestly unjust. Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975); Smith v. Gill, 293 Ala. 736, 310 So.2d 214 (1975).

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    Ade HARBOUR v. COLONIAL FAST FREIGHT LINES, INC., et al. Katherine HARBOUR v. COLONIAL FAST FREIGHT LINES, INC., et al. Mary K. HARBOUR v. COLONIAL FAST FREIGHT LINES, INC., et al. William H. ATKINS, as Administrator, etc. v. COLONIAL FAST FREIGHT LINES, INC., et al.
    SC 1491-1494.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Rehearing Denied Sept. 17, 1976.

      James S. Hubbard, Anniston, and Burns, Shumaker & Davis, Gadsden, for appellants.
    Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee, Colonial Fast Freight Lines, Inc.
   EMBRY, Justice.

This appeal will determine if the issue, of whether an owner-lessor is acting within the line and scope of his employment with the lessee motor freight common carrier, is one of fact, when a freight haul of the carrier is interrupted to allow repairs to the leased truck-tractor, and third parties are injured from operation of the tractor immediately before the freight haul is resumed.

Appellants, Ade Harbour, Katherine Harbour, Mary K. Harbour and William H. Atkins, as administrators of the estate of Crecía Ann Atkins, deceased, were plaintiffs below in an action against Colonial Fast Freight Lines, Inc. and Peggy Jo Jones Matthews, as administratrix of the estate of Billy Parker Matthews, deceased. The claims of plaintiffs arose from a collision of the automobile, occupied by Katherine and Mary Harbour and Crecia Atkins, with the truck-tractor owned and operated by Billy Matthews and leased exclusively to Colonial.

The trial court, in each action, granted Colonial’s motion for summary judgment and entered final judgment in its behalf, finding no just reason for delay in the entry of that judgment. Plaintiffs appeal from those judgments. We reverse and remand.

Matthews owned a truck-tractor leased exclusively to Colonial, a certificated motor freight common carrier. By the terms of the lease, Matthews furnished the tractor, and its operator, for prompt and dependable hauling of freight for Colonial; he was to maintain it in proper operating condition; to make repairs and pay operating and maintenance cost at his own expense. Matthews agreed: to be an independent contractor; agreed there was no relationship of employer and employee with Colonial and him at .any time, under any circumstances, for any purpose, and he was solely responsible for the direction and control of his employees in fulfilling his obligations under the contract.

On a Friday in December 1973, the Matthews Freightliner picked up a loaded trailer at Colonial’s Birmingham terminal containing freight destined for delivery by Colonial to Elgin, South Carolina. That same day, the loaded trailer was unhitched and parked near Matthews’ home at Hokes Bluff, Etowah County, Alabama, a point located geographically between Birmingham and Elgin. On Sunday, a mechanic paid by Matthews repaired the Freightliner tractor. While Matthews was road testing it, preparatory to his departure for Elgin later that day, the collision with the Harb-our auto occurred; the injuries and deaths resulted.

The issue is whether under the facts it can be said, as a matter of law, Matthews was not acting within the line and scope of his employment with Colonial at the time of the accident.

The controlling principle here is: If, under any conceivable set of provable circumstances the plaintiff may recover, according to a cognizable theory of law, motions for summary judgment must be denied. Rule 56, ARCP; Horton v. Northeast Alabama Regional Medical Center, Inc., 10 ABR 1350 (1976).

Under the lease, Matthews was the employee or servant of Colonial, the employer or master. Stevens v. Deaton Truck Line, Inc., 256 Ala. 229, 54 So.2d 464 (1951). The existence of that relationship does not, however, establish that at the time of the accident Matthews was acting within the line and scope of his employment; in furtherance of the purposes of the lease with benefits inuring both to him and to Colonial. The relationship remains unaffected by an agreement between the parties that an agency does not exist. Cox v. Howard Hall Co., 289 Ala. 35, 265 So.2d 580 (1972); King v. Earley, 274 Ala. 116, 145 So.2d 831 (1962). Whether Matthews was acting within the scope of his duties, under his servant or employee relationship to Colonial as master or employer, is a question of fact — a genuine issue as to a material fact. Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970); Trans-America Insurance Co. v. Wilson, 262 Ala. 532, 80 So.2d 253 (1955).

Colonial takes the position that, except while hauling freight for it, Matthews’ operation of the tractor could not result in Colonial being liable to plaintiffs; that he was fulfilling an obligation under the lease in causing the repairs to be made, and road testing the tractor; there was no furtherance of the business of Colonial in doing so. Whether Colonial’s position is correct is not a settled matter of law under these facts. Whether Matthews was furthering his and Colonial’s mutual business while performing one of his obligations under the lease (i. e., acting within the line and scope of his employment), or was acting solely for his own benefit, is a question that the minds of reasonable men may answer differently when considering the same facts. See Cox and Stevens, supra.

Those cases and Thomas v. Hubbert, 280 Ala. 302, 193 So.2d 746 (1966); Anderson v. Howard Hall Co., 272 Ala. 466, 131 So.2d 417 (1961); Hays v. Deaton Truck Line, Inc., 264 Ala. 442, 87 So.2d 825 (1956), and Deaton Truck Line, Inc. v. Acker, 261 Ala. 468, 74 So.2d 717 (1954), cited by Colonial to support its position, are each distinguishable on a single essential point; the operator of the tractor in question was engaged in activity solely for personal benefit.

There are genuine issues as to material facts, therefore, the judgments are reversed and the cases remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON and SHORES, JJ., concur.


author: ALMON, Justice.

text:
    Garland THOMPSON and Z. G. Thompson v. ALABAMA POWER COMPANY, a corporation.
    SC 1448.
    Supreme Court of Alabama.
    Aug. 20, 1976.
    Kenneth R. Cain, Ozark, for appellant.
    Balch, Bingham, Baker, Hawthorne, Williams & Ward and Edward S. Allen, Birmingham, for appellee.
   ALMON, Justice.

This appeal is from a final judgment in an action originally filed in trespass and subsequently amended to add a count for declaratory judgment.

Prior to the filing of the cause now before this court, and also prior to the injury complained of, the appellee, Alabama Power Company, filed an application for condemnation in the Probate Court of Houston County naming appellants, Garland Thompson and Z. G. Thompson, as defendants. The application sought to condemn certain ways and rights of way for appellee’s towers, poles, wire lines, and other appliances. The application also sought “to acquire such timber outside of said ways and rights-of-way as may injure or endanger such towers, poles and wire lines and other appliances by falling or otherwise and the right and authority to clear and remove said timber.” (This is commonly referred to as the right to “danger trees” or “fall line trees.”)

The probate court granted appellee the danger tree rights sought. The danger tree rights were also granted by the circuit court upon appeal.

Subsequently, in the separate action which is the subject of this appeal, the parties stipulated that the trespass claim was for damages which occurred subsequent to the final order of condemnation in both the probate court and circuit court. The appellants struck their jury demand and added to their complaint a count seeking a declaration that the condemnation statutes allowing appellee to condemn in one proceeding the right to cut danger trees in the future are unconstitutional and declaring that the appellants are entitled to further compensation when danger trees are cut adjacent to the condemned right of way in the future. All of the issues were submitted to the trial court for final decree on the stipulated facts.

This appeal is from the trial court’s final judgment, which held that:

1. Both the trespass and declaratory judgment claims were barred by the prior condemnation proceeding.
2. The condemnation statutes in question allow acquisition of the right to cut danger trees in the future without additional payment at the time of cutting.
3. The condemnation statutes are constitutional, the matter of compensation for danger tree rights being a subject of compensation in the condemnation proceeding in which such rights are acquired.

Appellant contends that the condemnation procedures followed in this cause, Tit. 10, § 184 and Tit. 48, § 336(1), Code of Alabama, 1940, Recompiled 1958, are unconstitutional because they do not provide for additional compensation for the future cutting of timber on appellant’s property. We disagree with the appellant’s assessment.

In Wiggins v. Alabama Power Co., 214 Ala. 160, 107 So. 85 (1926), this court held the right to cut danger trees in the future could be condemned at the same time the right of way itself was acquired by condemnation. In the words of the court:

“. . . this right to remove danger trees from adjacent lands, as incident to the enjoyment of the right of way and appurtenant thereto, is a servitude upon the adjacent lands, which must be acquired and paid for as part of the right of way condemned.
“The right in question is a continuing servitude upon the adjacent lands; applies not only to trees standing at the time of condemnation, but to such as grow in the future. The measure of damages is the injury to the value of adjacent lands by reason of this continuing easement, as well as by the cutting of trees presently standing.” (Emphasis added.) 214 Ala. at 161, 107 So. at 86.

We conclude that the measure of damages includes consideration of the value of any future trees cut.

The judgment in this cause is due to be and is hereby affirmed.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


text:
    EMPLOYERS NATIONAL INSURANCE COMPANY, a corp. v. Eddie HATCHER et al. CAVALIER INSURANCE CORPORATION, a corp. v. Eddie HATCHER et al.
    SC 1371, SC 1424.
    Supreme Court of Alabama.
    Aug. 20, 1976.

      Gamble & Gamble, Selma, for Cavalier Ins. Co.
    Lyman H. Harris and Charles C. Pinck-ney, Birmingham, for Employers National Ins. Co.
    Charles H. Sims, III, Selma, for Eddie Hatcher.
    Philip Henry Pitts, Selma, for Frank Powell, father of Wyman Keith Powell, a minor, deceased.
   ALMON, Justice.

Two declaratory judgments arising out of an automobile accident have been consolidated for this appeal.

Appellee, Eddie Hatcher, was at the time of the accident the proprietor of an automobile repair shop in Selma. On the Saturday before the accident Mrs. Webster Duncan discussed with him the necessity of having her automobile repaired. Appellee told her he could not work on the automobile that day but that he would pick it up the following Monday. It was agreed that he would pick up the automobile on Monday and that Mrs. Duncan would leave the key in the dashboard ashtray. In repairing Mrs. Duncan’s automobile on previous occasions, ap-pellee had picked it up at the Duncan home and returned it upon completion of the repairs.

On Monday, January 28,1974, at approximately six o’clock in the afternoon, appellee drove his own automobile inside the repair shop and closed the doors. While he was waiting for a taxi to take him to Mrs. Duncan’s home, a friend came by and gave him a ride.

Mrs. Duncan arrived home from work shortly after seven o’clock. She noticed her automobile was gone and she assumed ap-pellee had taken it to his shop.

When appellee left Mrs. Duncan’s home driving her automobile, he intended to drive it to his own home for the night and then to the shop for repairs the following morning. However, shortly after leaving the Duncan home, he decided to drive to Smith’s Florist and pick up a check which was owed him on repair work he had done for Mr. Smith. While on his way to Smith’s Florist, appel-lee had the accident which is the subject matter of this suit. At the time of the accident, he was headed in a direction away from his home and away from the Duncan home.

Both Employers National Insurance Company, which insured Mrs. Duncan’s automobile and Cavalier Insurance Corporation, which insured appellee’s personal automobiles, filed declaratory judgment actions seeking to establish that appellee was not covered in the accident by their respective policies.

The evidence in the two cases was presented jointly. The trial court held that appellee was covered by both policies and both insurance companies have appealed.

We shall first consider the Cavalier policy. The private passenger automobile policy issued by Cavalier to appellee included the following provision under paragraph V — Use of Other Automobiles:

“(d) This insuring agreement does not apply ... (2) to any accident arising out of the operation of an automobile sales agency, repair shop, service station, storage garage or public parking place;

Cavalier submits that Maryland Casualty Co. v. Allstate Insurance Co., 281 Ala. 671, 207 So.2d 657 (1968) is controlling and we agree. In Maryland Casualty an accident occurred while a gasoline service station employee was driving a customer home in the customer’s automobile prior to servicing it. The Maryland Casualty policy contained an “arising out of an automobile repair shop” exclusion very similar to Cavalier’s. This court held the language of the exclusion to be clear and unambiguous and held that the accident was within the exclusion.

In the instant case Eddie Hatcher picked up a customer’s automobile for the convenience of the customer, and with the expressed intent of repairing it. As this court stated in Maryland Casualty, “[t]his was simply ‘good business’ on . [his] part and was a customary practice of his for the convenience of his customers.” 281 Ala. at 677, 207 So.2d at 662.

Appellee points out that the accident occurred during non-business hours. Hence, he concludes that the exclusion does not apply. We cannot agree. The exclusion states that the policy does not apply to an accident arising out of the “operation” of an automobile repair shop. There is no question that Hatcher was the proprietor of such a shop. Any accident which occurred while he was performing an act in furtherance of his business is an accident which arose out of the operation of the business. The fact that Hatcher picked up the automobile after the shop was closed does not remove the accident from the scope of the exclusion.

Appellee next submits that the exclusion should not apply because Hatcher was on personal business at the time of the accident. Again, we cannot agree. It is true that appellee had deviated from the direct route to his home. However, the purpose of the side trip was to pick up a check which was owed him on “repair work.” It is very obvious that this arose out of the operation of the repair shop.

The policy of liability insurance issued by Employers National Insurance applicable to Mrs. Duncan’s automobile included the following provisions:

“Person Insured
“Under the Liability and Medical Expense Coverages, the following are insureds: (a) with respect to an owned automobile, (1) the named insured, (2) any other person using such automobile with the permission of the named insured, provided his actual operation . thereof is within the scope of such permission . . . .”
“Exclusions
“This policy does not apply . . -(g) to any automobile or trailer while maintained or used by any person while such person is employed or otherwise engaged in the automobile business . . . .”
“Definitions
“ ‘automobile business’ means the business or occupation of selling, repairing, servicing, storing or parking automobiles;

Although the exclusion in the Employers National Insurance policy differs from that in the Cavalier or Maryland Casualty, it is, as appellee admits, very similar. The reasoning set out above as to why the Cavalier exclusion is applicable applies equally well to the Employers National Insurance exclusion. We think there can be no question that Hatcher was “engaged in the automobile business” at the time of the accident.

Finally, appellee invokes the “ore tenus rule” that where evidence is heard orally by the trial court, the findings of the court have the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous. Hayes v. Kennedy, 292 Ala. 362, 294 So.2d 739 (1974). This rule is without application where the trial court erroneously applies the law to the facts before it. Messer v. Messer, 280 Ala. 395, 194 So.2d 552 (1967). No questions have been raised concerning the trial court’s factual findings in the instant case, but we do find error in its application of the law to the facts.

We conclude that neither policy covered the accident in the instant case.

The judgment is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


text:
    Charles F. HACKMEYER et al. v. Frances W. McCONNELL.
    SC 1421.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    Collins, Galloway & Smith, Mobile, for appellants.
    R. F. Adams, Ben H. Harris, Jr., Mobile, for appellee.
   MADDOX, Justice.

This suit is brought by the payee of a $20,000 promissory note to recover the value of the note from the executors of the estate of the maker of the note. The case was tried without a jury before Judge Boll-ing of the Circuit Court of Mobile who entered judgment for the payee. We affirm.

The maker of the note, John Tillman Hackmeyer, died on July 10, 1973. He had been a single man since 1955, the year he met Mrs. McConnell, the payee. They saw each other on the average of three times a week between 1955 and the date of Mr. Hackmeyer’s death. Their relationship was such that Mrs. McConnell was permitted to select Mr. Hackmeyer’s burial clothes and the pallbearers for his funeral. Three or four years before Mr. Hackmeyer died, he asked his brother to place a sealed envelope marked “My Last Will and Testament” in a safe-deposit box that his brother rented. Inside the large envelope was an envelope addressed “Mrs. Frances McConnell.” The second envelope contained the $20,000 promissory note in question.

The promissory note was in the safe-deposit box before and after Mr. Hackmeyer’s death. The only people who had access to the safe-deposit box were Mr. Hackmeyer’s brother, and wife. Approximately a year before his death, Mr. Hackmeyer took the papers from the box, and later returned them. Mr. Hackmeyer’s brother and Mrs. McConnell first learned of the promissory note when the papers were taken from the safe-deposit box.

The executors of Mr. Hackmeyer’s estate contend that the promissory note was an attempted gift which failed because of lack of delivery during Mr. Hackmeyer’s life. The trial judge rejected this and upheld the validity of the note. He found that by putting the note in the safe-deposit box, Mr. Hackmeyer constructively delivered it to Mrs. McConnell.

In Jones v. Deyer, 16 Ala. 221 (1849), it is said:

“ * * * Where there are circumstances which raise a doubt whether the donor who still retains possession of property did not intend to part with all control over it, the ease should be left to the jury.” (Emphasis added.)

The evidence supports a finding by the trial judge that there was a construe-tive delivery — that is a voluntary transfer of possession and a relinquishment of control over the instrument. The evidence is clear that John Tillman Hackmeyer could not have gotten the note out of. his brother’s safe-deposit box without his brother’s permission.

The case was heard orally by the trial judge. Therefore, his findings have the effect of a jury verdict and will not be disturbed unless plainly and palpably wrong. Kendall v. Kendall, 268 Ala. 383, 106 So.2d 653 (1958).

For the reasons above stated, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    William EVERSOLE, a/k/a Bill Eversole, d/b/a Emerald Equipment Company, Inc. v. Flois B. BRICE et al.
    SC 1776.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    Kenneth Cooper, Bay Minette, for appellant.
    Richard Bounds, Mobile, Tolbert M. Brantley, Bay Minette, for appellees.
   MADDOX, Justice.

This appeal involves a dispute over a contract to sell land. The buyer, Eversole, initially sued the seller, Brice, for breach of contract and sought recovery of $3,200 he had paid to the seller. The buyer later amended his complaint and asked the trial court to grant him specific performance of the contract. The trial court denied specific performance, but did award a judgment for $3,200 to the buyer, and taxed the costs against the seller. We affirm.

The evidence shows that Eversole and Brice agreed in writing, on November 1, 1972, that Eversole would buy two parcels from Brice for $24,500. Eversole paid $200 down, and the balance of $24,300 was due “upon closing which shall be 30 days from today.” Mrs. Brice, wife of the seller, and a joint owner, did not join in the contract. Eversole did not pay the $24,300 by December 1,1972. However, on December 8,1972, Eversole did give Brice $3,000, and Brice executed the following:

“Bay Minette, Alabama December 8, 1972
“Receipt is hereby acknowledged of payment of Three Thousand and No/100 ($3,000.00) Dollars, by check, on this date, from Bill Eversole, of Emerald Equipment Company, Inc., of Pensacola, Florida. The said sum is to be applied upon the purchase price of:
“two parcels of property now owned by me in Section 19, Township 9 South, Range 3 East, which my wife and I purchased from Nathaniel P. Chesnut, Lois Chesnut and Marian B. Hirsh, and “a third parcel described as Lots 48 and 49, lying in section 21, Township 9 South, Range 2 East, with a cottage thereon and being 100-foot frontage on Mobile Bay.
“/s/ Flois B. Brice_ Flois B. Brice”

Eversole claims that the receipt executed on December 8, added a third parcel to the original contract and gave him an extension of time to make financial arrangements to pay the purchase price. Brice admits receiving the $3,000, but contends it was a binder to be forfeited by Eversole unless he promptly paid the rest of the purchase price.

Two months later Brice informed Ever-sole that the deal was off, and that he was keeping the $3,200. Brice and his wife, from whom he was later divorced, sold parcel one to Paul Riviere, Inc. on June 23, 1973. Riviere was made a defendant but no judgment was rendered against it.

It is apparent that the trial judge’s findings are to the effect that the $3,200 awarded the buyer was not liquidated damages, and that, even though the buyer was not entitled to specific performance, he was entitled to recover for the seller’s breach. Under the facts of this case, we hold that the trial judge’s findings are supported by competent evidence. Vol. 2A, Alabama Digest, Appeal and Error &wkey;931(l), p. 243.

AFFIRMED.

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


text:
    ALABAMA FARM BUREAU INSURANCE COMPANY v. Terry McCURRY et al.
    SC 1599.
    Supreme Court of Alabama.
    Aug. 13, 1976.
    Rehearing Denied Sept. 17, 1976.

      Hill, Hill, Carter, Franco, Cole & Black, John M. Milling, Jr., and J. Thaddeus Salmon, Montgomery, for appellant.
    Wilson, Propst & Isom, Anniston, for ap-pellees Terry McCurry and Sandra McCur-ry-
    C. William Gladden, Jr., Birmingham, for appellee, Auto-Owners Ins, Co.
   SHORES, Justice.

The facts out of which this litigation arose are largely undisputed. The McCur-rys bought two lots and built a house on them. They obtained a construction loan from the First National Bank of Piedmont and secured the loan by a mortgage on the property. They also obtained insurance from Farm Bureau, which issued a policy in the amount of $20,000 to the McCurrys and the First National Bank as mortgagee, with an effective date of December 1, 1973, through December 1, 1974.

After the house was completed, but before the McCurrys moved in and before the loan for permanent financing was closed, they insured the property for $36,000 with Auto-Owners Insurance Company. The Auto-Owners policy was issued April 15, 1974. On May 1, 1974, at approximately 2:00 p. m., McCurry called the local office of Farm Bureau and advised that he had procured other insurance and wished to cancel the Farm Bureau policy. The insured premises were totally destroyed by fire some five hours after this call, at around 7:30 p. m., May 1, 1974.

On May 10,1974, after notice of the fire, Farm Bureau wrote the McCurrys a letter stating that the Farm Bureau policy had been cancelled as of May 1 and enclosed a check for premium refund from May 1 to the end of the policy period. The McCurrys refused the refund.

Thereafter, the McCurrys made demand on both Farm Bureau and Auto-Owners for payment of the loss. Auto-Owners agreed to pay a part of the loss, $22,254.65, the amount of the mortgage debt due the First National Bank, although it was not the mortgage payee under the Auto-Owners policy. Collateral Investment Company was the named mortgagee under the Auto-Owners policy, but it never closed the permanent loan with the McCurrys. The McCurrys used this amount to pay the mortgage debt to First National and in return received from First National an assignment of its rights under the Farm Bureau policy.

The McCurrys then filed a bill for declaratory judgment against Farm Bureau and Auto-Owners asking the court either to require Auto-Owners to pay the full amount of its policy or, alternatively, to require both companies to pay their respective pro rata share of the loss. Farm Bureau denied any liability and Auto-Owners denied any more than its pro rata share, contending that Farm Bureau should pay its pro rata share.

After hearing the evidence, the trial court found that both policies were in effect at the time of the loss; that the Farm Bureau policy could not be cancelled before 2:01 p. m. on May 2, 1974; that the “other insurance” provision of the Farm Bureau policy was ineffective under the facts of this case; that both policies contained a “pro rata” clause, and ordered Auto-Owners to pay the McCurrys $24,600 (against which it was granted a credit of $22,254.65 already paid) and Farm Bureau to pay $13,860.

Farm Bureau appealed and raises the same issues here as it relied upon below:

The “other insurance” defense. Farm Bureau argues that the trial court erred in not granting its motion to dismiss and motion for summary judgment, since it is not disputed that the McCurrys had other insurance at the time of the fire. The Farm Bureau policy contains the following provision:

“Other Insurance. Unless otherwise provided in writing added hereto, other insurance covering on any building which is covered under this policy, is prohibited. If, during the term of this policy, the Insured shall have any such other insurance, whether collectible or not, and unless permitted by written endorsement added hereto, the insurance under this policy, insofar as it applies to the building(s) on which other insurance exists, shall be suspended and of no effect.”

It is Farm Bureau’s contention that coverage under its policy was automatically suspended when the Auto-Owners policy became effective. This result is compelled, argues Farm Bureau, if the quoted provision is to have any meaning. We cannot agree. It is true that such provisions have frequently been held valid. But one must look to the reasoning behind the inclusion of such provisions in insurance policies to find the reason why courts, in appropriate cases, have upheld them. The basic purpose of such provisions is to check fraud. It was recognized very early that unlimited property insurance could serve as an inducement to an insured to destroy his own property to his profit.

As early as 1917, this court recognized the reason for the provisions limiting one’s ability to overinsure and said in Insurance Company of North America v. Williams, 200 Ala. 681, 683, 77 So. 159, 161 (1917):

“The purpose of overinsurance limitations in policies is to prevent fraud. The public, as well as the assurer, is interested in preventing a situation in which a fire would be profitable to the assured. Such clauses in insurance policies ought to receive a fair and reasonable interpretation, according to their terms and obvious import. . . . ”

We think that statement is still sound, but do not agree that procuring additional insurance with no intent to defraud automatically suspends coverage as Farm Bureau asserts.

In Home Insurance Company v. Shriner, 235 Ala. 165, 177 So. 890 (1937), this court refused to hold that such a provision defeated coverage where there was no evidence of a fraudulent intent on the part of the insured in procuring other insurance. There, the court said:

“If the insured at the time of the fire does not know that he is overinsured, is ignorant that he is not carrying his pro-, portion of the loss as agreed upon, the fact that there is such unknown to him is not an inducement to him to destroy his property, and not within the purpose of the policy requirement. Phoenix Ins. Co. v. Boulden, 96 Ala. 609, 614, 11 So. 774. ..” (Emphasis Supplied) (235 Ala. at 172, 177 So. at 895.)

There was no evidence that the McCurrys intended to defraud either Farm Bureau or Auto-Owners in this case. The trial court so found. But there are additional reasons why Farm Bureau cannot prevail in its argument. First, the policy issued by Farm Bureau extended protection to the First National Bank of Piedmont as mortgagee of the property, and provided:

“Loss, if any, on building items under this policy, shall be payable to the mortgagee ... as interest may appear, and this insurance, as to the interest of the mortgagee . . . shall not be invalidated by any act or neglect of the mortgagor as owner . . . ” (Emphasis Supplied)

If no act of the owner (McCurry) can invalidate the coverage extended to the mortgagee (First National Bank of Piedmont) by the policy, it follows that the owners' procurement of other insurance cannot have this effect.

Secondly, the Farm Bureau policy contained the following provision:

“Pro rata liability. [The Insurer] shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.”

This provision, when read with the prohibition against other insurance, creates an ambiguity which must be resolved against the insurer. American Insurance Company v. Newberry, 215 Ala. 587, 112 So. 195 (1927).

Farm Bureau next argues that if its policy was not cancelled by virtue of the other insurance provision, it was cancelled by McCurry himself on May 1. The trial court, after hearing the evidence, determined that the policy had not been can-celled by McCurry. We agree. Indeed, under the terms of the policy, McCurry could not cancel the coverage extending to the mortgagee. Additionally, the cancellation provisions of the policy were not complied with. The policy specifies the methods by which it can be cancelled.

“Canceipjation. This policy may be canceled by the named insured by mailing to the Service [Farm Bureau] written notice stating when thereafter such can-ceipjation shall be effective. This policy may be canceled by the Service by mailing to the named insured, at the latest address shown in the records of the Service, written notice stating when not less than ten days thereafter such can-ceipjation shall be effective.”

Farm Bureau concedes that these provisions were not complied with but contends that the policy could be cancelled by other methods. It is true that the method of cancellation provided for in a policy of insurance is not necessarily exclusive and that the parties to such a policy may mutually agree to cancellation by other means. Such a procedure must be mutually agreed upon. 29 Am.Jur.2d, Insurance, § 408, et seq. Whether there is such assent is a question of fact. The trial court, in the instant case, determined that there was no cancellation. We cannot conclude that the trial court was wrong in this determination.

Lastly, Farm Bureau contends that the McCurrys cannot pursue the proceeds of the policy under the assignment from the First National Bank of Piedmont. It contends that the assignment is void because, since the mortgage was paid, they “. cannot thereafter take an assignment of a debt and mortgage that no longer exists.” The McCurrys are not attempting to collect a debt and mortgage that have been paid. They are attempting to enforce the rights of the First National Bank under the Farm Bureau policy. The assignment recites in part:

“. . . the First National Bank of Piedmont . . . does hereby transfer and assign unto Terry McCurry and Sandra McCurry ... all of the right, title and interest of [the bank] . in and to any and all claims or causes of action held by [the bank] against the said Alabama Farm Bureau . . . based upon the aforesaid policy of insurance.”

The bank was a named insured under the policy, which covered the interests of the owners and the mortgagee. The bank was a named loss payee under the policy. In fact, since the mortgage debt exceeded the policy amount, it was, as a practical matter, the sole loss payee at the time of the loss. It, therefore, had a valid claim under the policy which is assignable. In 43 Am. Jur.2d, Insurance, § 689, the rule is stated as follows:

“There seems to be no dissent, except in a very few early cases, from the judicial or statutory rule that after a loss in respect of insured property has been incurred, the claim to recover that loss may be effectively assigned by the insured, so as to vest in the assignee the absolute right to the insurance, provided, of course, the insured himself had that right at the time when the loss was incurred, and the assignment itself was otherwise valid. . . . It is likewise the general rule that after the event has occurred by which liability ... is fastened upon the insurer, the policy or rights thereunder may be assigned with or without the consent of the insurer; in such case, it is not the personal contract which is being assigned, but a claim under or a right of action on the policy. . . .”

We find no error to reverse. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

MADDOX, JONES, EMBRY and BEAT-TY, JJ., concur.