author: SHORES, Justice.

text:
    Robert PRESCOTT and William H. Bray v. Joyce Carolyn MARTIN. Robert PRESCOTT and William H. Bray v. William E. MARTIN.
    SC 881, 1484.
    Supreme Court of Alabama.
    March 26, 1976.
    Rehearing Denied May 7, 1976.

      John Self and A1 Tidwell, Hamilton, for appellants.
    Phelps, Owens & Jones, Tuscaloosa, for appellees.
   SHORES, Justice.

This appeal consists of a consolidation of two cases, both naming Ruth Lowery Leonard, William Herschel Bray, and Robert Prescott as defendants. One suit was initiated by Joyce Carolyn Martin and the other by her husband, William E. Martin. The plaintiffs obtained judgments in the amounts of $50,000 and $3,500 respectively. No verdict was returned against Mrs. Ruth Lowery Leonard in either case. The remaining defendants brought this appeal.

On the day on which the relevant events took place Mrs. Martin was traveling south on Alabama Highway 17, following a car driven by Mrs. Vail and being followed by a car driven by Mrs. Leonard. Behind all three cars was a truck owned by defendant Prescott and driven by defendant Bray. The highway is a two-lane highway at the point at which the accident occurred. Mr. Bray proceeded to pass all three cars and continued south. As the truck pulled back into the southbound lane in front of Mrs. Vail, she applied her brakes and pulled off the road, the result of which was a three-car collision. It was her testimony that the truck cut in and forced her off the road.

A witness to the accident, Mr. Steward Frizzell, testified that he was traveling north on Highway 17 when he saw the truck approaching him in his lane. Mr. Frizzell pulled off the highway and observed the first car in the southbound lane brake and skid. He heard the resulting collision but did not see it.

Mrs. Martin received neck injuries and was subsequently treated by a Dr. Fernandez. She testified that she had medical problems with her neck prior to the date of the accident, which at that time were treated by Dr. J. G. Galbraith.

The appellants argue: that there was not a scintilla of evidence of negligent or wanton conduct since Bray never came into contact with any of the cars and was out of the way when Mrs. Martin tried to go around Mrs. Vail; that the acts of Bray could not have been the proximate cause of the plaintiff’s (Mrs. Martin) injury since he could not have foreseen that the Vail car would leave the road and stop, resulting in a collision of all three cars; that Mrs. Martin was contributorily negligent ; that the negligence of Mrs. Leonard was an independent intervening cause insulating the defendants from liability; that the trial court erred in failing to give charges as to the defense of an intervening cause; that the trial court erred in refusing to give the requested charge as to contributory negligence; that the trial court erred in charging the jury that the plaintiff could recover for all past, present and future injuries and that the jury should not reduce the damages because of prior conditions; that the deposition testimony of Dr. Fernandez, who treated the plaintiff after the accident, and that of Dr. Galbraith, who treated the plaintiff for neck problems before the accident, were improperly admitted as the testimony of each was based upon the opinion of the other; that the trial court erred in refusing to grant the defendants’ motion for reduction of judgment; that Mrs. Martin’s testimony from a summary of her work record was not the best evidence of such; that the plaintiffs’ counsel made improper reference to insurance; and, that the verdict and judgment in this case are excessive.

We will consider each issue in the order in which it was raised.

Was there a scintilla of evidence ta justify submission of the negligence and wantonness counts to the jury? We must answer in the affirmative. A review of the evidence reveals that there was a scintilla from which the jury could find negligence and wantonness. There was evidence from which the jury could infer that defendant Bray passed all three cars without a sufficient span of road in which to do so safely under the circumstancces. The evidence also reveals that he did not sound his horn prior to passing the automobiles and made no effort to pull back into the southbound lane between any of the cars. Upon arriving at a point “pretty close” to the crest of the hill he cut back into the southbound lane. The plaintiff, Mrs. Martin, and witnesses Vail, Leonard and Jones (passenger of Leonard) testified that the truck cut in front of Mrs. Vail sharply. We have said that “wantonness” can be the doing of an act which is likely to put persons in the position of danger with conscious disregard of known conditions of danger. Crocker v. Lee, 261 Ala. 439, 444, 74 So.2d 429, 434 (1954).

In determining the sufficiency of evidence to go to the jury, we of course apply the scintilla rule. The evidence, as we review it, does furnish a “ . gleam, glimmer, spark, the least particle, the smallest trace” ... in support of the wanton count. Kilcrease v. Harris, 288 Ala. 245, 252, 259 So.2d 797, 802 (1972). Moreover, we must not disturb the jury’s verdict unless we are convinced by a preponderance of the evidence that the verdict is wrong and unjust. Tallapoosa River Electric Coop., Inc. v. Burns, 271 Ala. 435, 124 So.2d 672 (1960). We are not so convinced in the instant case. The issue of wantonness was properly submitted to the jury.

The defendants argue that the evidence fails to show that Bray’s conduct was the proximate cause of Mrs. Martin’s injury, since the accident in which injuries were received was not a foreseeable result of his actions. The rule in this state “ . . .is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow . . . ” Armstrong, Admr'x v. Montgomery Street Railway Co., 123 Ala. 233, 249, 250, 26 So. 349, 354 (1898); Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625 (1928); Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So.2d 300 (1954). There was evidence from which the jury could find that the collision and resulting injuries to Mrs. Martin were a foreseeable result of defendant Bray’s conduct.

It is next contended that the negligence of Mrs. Leonard was an intervening cause, insulating the defendants from liability. In this connection, the defendants assert that the trial court erred in its refusal to give several of the defendants’ requested charges relating to intervening cause. Reviewing the record, we find that the trial court gave sufficient instruction on the issue of intervening cause. “. . . The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly 'given to the jury in the court’s oral charge or in charges given at the request of the parties. . . .’’ ARCP, Rule 51. We find no error in refusing these charges, and find the issue of causation properly submitted to the jury.

The defendants next find fault with a charge given to the jury at the plaintiffs’ request which would permit the jury to compensate Mrs. Martin “ . . . for her past, present and future disability.” The defendant maintains that this statement coupled with a further instruction that the jury should not reduce the award of damages because of a prior condition could have led the jury to believe they could compensate Mrs. Martin for injuries existing at the time of the accident. Taking the oral and written charges as a whole, we find no error. The judge merely informed the jury that they could award Mrs. Martin all damages proximately resulting from defendants’ negligence even if her injuries were of a more serious nature because of a pre-existing condition. Moreover, the court gave the following requested charge:

“The Court charges the jury that the Plaintiff Joyce Carolyn Martin would not be entitled to recover damages for any condition or ailment which existed prior to the accident made the basis of this suit.”

We find no error with respect to this charge.

The defendants next object to the deposition testimony of Drs. Fernandez and Galbraith allowed in over their objection. Dr. Fernandez treated the plaintiff subsequent to the accident and Dr. Galbraith treated those injuries existing prior to the accident.

Dr. Fernandez was asked, based upon the assumption that after her last surgery and prior to this accident that she was able to do her work, whether this accident was the causative factor of her present inability to work. He answered:

“I feel the accident was the causative factor in an individual that had some pathology in the neck already. Of course, if the individual had been doing this type work and I do have a report from Dr. Galbraith saying she had a previously healed disc lesion and had been doing well. I would say this hyper-extension type injury she suffered was the one that altered the balance enough for her not to be able to do the work she had been doing.”

The defendants insist this testimony is improper since it is an opinion of his patient’s condition based upon an opinion of another physician, citing Clark v. Hudson, 265 Ala. 630, 93 So.2d 138 (1956), and Prince v. Lowe, 263 Ala. 410, 82 So.2d 606 (1955). The record, however, reveals an objection to the hypothetical question only, which we consider proper. Dr. Fernandez’s reference to Dr. Galbraith’s opinion was not responsive to the question and would have been excluded upon proper motion. Southern Ry. Co. v. Jarvis, 266 Ala. 440, 97 So.2d 549 (1957). However, “ . . . The court cannot be put in error for allowing a nonresponsive answer to go to the jury when there was no motion to exclude. . . .” Howell v. Howell, 210 Ala. 429, 432, 98 So. 630, 633 (1923). We find no error in the remaining questions to Dr. Fernandez. The objectionable testimony from Dr. Galbraith’s deposition was excluded upon motion of the defendants. No further motion was made by the defendants, thus there is no error of which defendants can complain.

Prior to the trial, the plaintiffs were paid $2,208.10 by Mrs. Leonard’s insurer, State Farm Automobile Insurance Company. This payment was made in the form of a “RECEIPT FOR EXPENSE ADVANCE” which contained the following language:

“ . . . This amount is to be credited to any final settlement or to the amount payable under our policy for any judgment which you may obtain as a result of your accident on 6-29-72 at Carrollton, Alabama.”

The defendants made a motion for a reduction of judgment based on this receipt. Citing Boles v. Steel, 48 Ala.App. 268, 264 So.2d 191 (1972), the defendants argue that the advance payment should have been credited against the final judgment. In Boles, the plaintiff had received an advance payment under an identical receipt from the defendant’s insurer. A judgment exceeding this amount was subsequently obtained against the defendant. The Court of Civil Appeals found statutory authority for providing such a credit against a judgment via post judgment motion for satisfaction. The plaintiffs assert that Boles is distinguishable in that the rule there applies only when there is a joint verdict against the defendants, one of whom has made an advance payment; that the principle applies only when a judgment is obtained against a defendant who has made such a payment. In both Boles and the case heavily relied upon in the Boles opinion, Edwards v. Passarelli Bros. Automotive Service, 8 Ohio St.2d 6, 221 N.E.2d 708 (1966), the defendant’s insurer made advancements under a “Receipt for Advance Payment” and ultimately judgments were obtained against these defendants. The precise question becomes, therefore, may a defendant against whom a judgment is had obtain a credit on the judgment for advance payments made by a codefendant against whom a judgment was not rendered ? The Court of Civil Appeals held that a credit was proper “ . . . when such payments are paid upon agreement that they shall be credited to any settlement or judgment thereafter obtained against the insured defendants.” (Emphasis added) 48 Ala.App. 271, 264 So.2d 194. In Boles, there were multiple defendants involved, both of whom were insured by State Farm. The court found it unnecessary to determine against which of the policies the credit was claimed, “ . . . since State Farm insured both defendants who were determined by the verdict and judgment to be joint tort-feas-ors.” 48 Ala.App. 272, 264 So.2d 194.

The facts in the instant case differ from Boles in that (1) the facts do not reveal whether State Farm insured both defend" ants, and (2) the judgment is not against both defendants. We find the distinction to be controlling and thus conclude that no credit is due the defendants.

The next issue concerns testimony given by the plaintiff using a work summary to refresh her recollection. The defendants argue that the summary was not the best evidence and that the summary could not have been used to refresh her recollection. The best evidence rule cannot preclude Mrs. Martin’s testimony concerning her earnings and hours worked. The contents of a writing was not in issue, this was merely testimony of a non-written transaction. Sayen v. Rydzewski, 387 F.2d 851 (7th Cir. 1967); Mars v. Meadville Tel. Co., 344 Pa. 29, 23 A.2d 856 (1942).

The defendants argue that the work summary did not meet the requirements of a memorandum to refresh recollection under our law. A review of the record, however, reveals no objection to the use of the memo to refresh Mrs. Martin’s memory. The defendants, therefore, cannot now complain of error. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972). The defendants did object to the introduction of the summary and we consider its admission to be error. The rule in this state “ . . .is that if the witness testifies to facts within his knowledge and memory, although refreshed by the memorandum, the memorandum is not admissible. ...” Parsons v. State, 251 Ala. 467, 478, 38 So.2d 209, 217 (1948). Yet, this court has said that when a memorandum used to refresh memory has an extensive number of items, it is proper for the memo to go to the jury, not as evidence, but as an aid to their own recollection. Floyd v. Pugh, 201 Ala. 29, 77 So. 323 (1917). In the instant case, the memorandum was introduced into evidence. Injury is presumed from the erroneous admission of evidence, unless the entire record affirmatively shows the absence of such injury. Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358 (1902); Birmingham Railway, Light & Power Co v. Beck, 1 Ala.App. 291, 55 So. 428 (1911).

An examination of the record reveals that the witness testified as to facts within the memorandum without objection to the use of the memo to refresh her memory. The facts to which the memo attests, therefore, were already in evidence before the memo itself was admitted. In addition, we consider the rule which allows the jury the use of such a memorandum to help remember the testimony of the witness. We find that the presumption of injury is rebutted by the record and the error,' therefore, is harmless.

The next issue concerns the following question propounded to Mrs. Martin: “Now between December 6, 1971 when you returned to work following your surgery and June 29th. of ’72 when this accident happened were you able to do this work?” The defendants argue that this question called for a conclusion and thus invaded the province of the jury. We disagree. A lay witness may testify in Alabama as to his inability to do work. St. Louis & S. F. R. R. Co. v. Savage, 163 Ala. 55, 50 So. 113 (1909).

The following statement was made by plaintiffs’ counsel during closing argument : “ T don’t ask you to hurt anybody and you won’t. You return fair compensation to her and that is $200,000.00. You won’t hurt anyone.’ ” There is no question but that the issue of a defendant’s insurance against liability is a forbidden fact in the trial of a case, unless an exception permits its introduction. See generally Comment, EVIDENCE: REVEALING THE EXISTENCE OF DEFENDANT’S LIABILITY INSURANCE TO THE JURY, 6 Cumb.L.Rev. 123 (1975). Nor do indirect references escape the prohibition of this evidentiary rule. Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781 (1956).

In the instant case, however, the objection to the statement was sustained. No motion for mistrial was made. It is the defendants’ position that no motion for mistrial is necessary where such a prejudicial issue is injected into a case. The rule to which the defendants refer is found in Anderson v. State, 209 Ala. 36, 44, 95 So. 171, 179 (1922):

“An exception to the general rule requiring appropriate objection or motion invoking corrective instruction or action by the trial court is where the remark or argument of counsel is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence ...”

We are not of the opinion that the statement in the instant case is so strongly prejudicial as to be beyond cure by the trial court. We also recognize that the trial court has a great deal of latitude in determining the prejudicial effect of statements made in argument. Central of Georgia Railway Company v. Phillips, 286 Ala. 365, 240 So.2d 118 (1970). See also: McClard v. Reid, 190 Tenn. 337, 229 S.W. 2d 505, 506 (1950).

Since the statement was of such a nature that it could be and was cured by the trial court, and since no motion for mistrial was made, there is no error for this court to consider. See, e. g., Montana v. Nenert, (Mo.App.1950), 226 S.W.2d 394, 400, 401, and Logwood v. Nelson, 35 Tenn. App. 639, 250 S.W.2d 582, 586 (1952).

The final argument of the defendants is that the verdict was excessive. The authority of the courts to disturb the verdict of the jury on the ground of ex-cessiveness is to be exercised with great caution and discretion. Central of Georgia Railway Company v. Phillips, supra. The jury verdict will not be disturbed “ . . . unless so excessive or so grossly inadequate as to indicate passion, prejudice, corruption or mistake.” Montgomery City Lines v. Davis, 261 Ala. 491, 494, 74 So.2d 923, 925 (1954). Additionally, where the trial court refuses to grant a new trial because of the excessiveness of the verdict, “ . . . the favorable presumption attending the jury’s verdict is thereby strengthened.” Carlisle v. Miller, 275 Ala. 440, 444, 155 So.2d 689, 692 (1963).

The evidence relating to Mrs. Martin’s injuries and damages does not convince us that the verdict was excessive. There was proof of medical expenses incurred and future medical expenses are anticipated. There was also evidence that Mrs. Martin would be unable to continue her employment in the future or to engage in any similar employment; and that she could not do her normal housework. There was also evidence of wantonness, previously discussed, to justify punitive damages.

We find no error to reverse.

AFFIRMED.

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

      . In addition, we note that in Alabama Pattern .Jury Instructions, Civil § 33.02 (1974), the committee recommended that “ . no ‘intervening or superseding causes’ in-struetion be given.” The rationale of the committee was that such an instruction would add nothing to the charge on “proximate eause” and would probably confuse the jury.


source: Caselaw Access Project

author: MERRILL, Justice.

license: Public Domain

text:
    Annie Battle GUNNELS v. William Wallace JIMMERSON et al.
    SC 1362.
    Supreme Court of Alabama.
    April 16, 1976.

      Samuel L. Adams, Dothan, for appellant.
    Lee & Mclnish, and Stephen T. Ether-edge, Dothan, for appellees.
   MERRILL, Justice.

Plaintiff-appellant, Annie Battle Gunnels, filed a declaratory judgment proceeding against her son and Dothan Federal Savings and Loan Association asking that she be declared the owner of certain funds on deposit with the Association. The trial court denied relief. We affirm.

In June, 1971, Annie Battle (Gunnels) inherited from her deceased husband, Monroe Battle, approximately $12,000.00. She and her son, William Wallace Jimmerson, in July, 1971, deposited $10,000.00 of the inheritance in the Dothan Savings and Loan Association, and both signed a contract of deposit “as joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety.” The signature card, signed by each of them, stated in part: “It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall he conclusively intended to he a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account.” A four-year certificate of deposit was issued to them and the signature card permitted withdrawal by either of them.

In May, 1974, Mrs. Battle began dating Mr. E. L. Gunnels. On June 4, they went to the First National Bank of Dothan and she changed a joint checking account of approximately $2,000.00 from her name and her son’s name to her name. She and Gunnels then went to the Dothan Savings and Loan Association and she withdrew the $10,000.00 from the joint account and placed the money in an account solely in her name. That same night, Jimmerson was having dinner at his mother’s home and discovered that the changes had been made in the checking and savings accounts. A “discussion” (son) or a “quarrel” (mother) followed. Either way, the next day, June 5, Mrs. Battle and Jimmerson went to the bank and Mrs. Battle withdrew the money she had in the checking account in her own name. They then went to the Dothan Savings and Loan Association, talked to Homer Carson, the then President of the Association, and opened a new savings account, which is the one involved in this suit. Jimmerson placed $1,766.45 of his own money in the account and his mother replaced the $10,000.00 she had withdrawn and changed the day before. The new account was a joint account with both signatures required for a withdrawal. The signature card contained the following:

«* * * is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties is and shall be conclusively intended to be a gift at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account. * * *”

On July 19, 1974, Mrs. Battle married Mr. Gunnels. This suit was filed August 30, 1974. At the time of trial, Mrs. Gunnels had the certificate of deposit. It was stipulated that the money involved came from Mr. Battle, and that her son, Wallace Jimmerson, was not related to Mr. Battle.

Mrs. Gunnels testified that on June 5, her son came to her home, “forced me to get dressed and to go back and put his name back on it.” (The certificate of deposit.) Her son denied that he forced his mother to put the money back in a joint account, and testified that she made the suggestion that they go to the Dothan Savings and Loan Association to change the account.

Homer Carson testified that Mrs. Battle did not appear to be upset; that she requested the joint account be opened; that in his opinion, Mrs. Battle fully understood the transaction because the three of them discussed the type of account desired before the signature card was signed, and that Mrs. Battle appeared to know what she was doing at that time. There was evidence that neither Mrs. Battle nor her son had ever made any withdrawal from the Dothan Savings and Loan Association account except the changes Mrs. Battle had made. Mrs. Battle (Gunnels) testified that she had never made a demand on either her son or the Association for the money. There was no evidence that any fraud was practiced on Mrs. Battle to get her to create either of the accounts.

The trial court, after listing the facts and conclusions in its opinion, denied the request for a declaratory judgment.

Before any right to a savings account deposit can be said to pass from a donor to a donee, there must he a donative intention. The donor must intend that either the legal or equitable title to the fund shall pass to the donee; and there must be some act performed by the donor which indicates his intention to vest in the donee some right to the property during the life of the donor. First National Bank of Birmingham v. Hammel, 252 Ala. 624, 42 So. 2d 459. The intent of the donor, Mrs. Gunnels, was clearly stated in the provisions on the signature cards which she twice signed that it was "conclusively intended to be a gift.”

The general rule of contract law is that when the parties reduce their agreements to writing, the writing is the sole expositor of the transaction and the intention of the parties, in the absence of mistake or fraud or ambiguity. Collier v. Brown, 285 Ala. 40, 228 So.2d 800.

One who has executed a written contract in ignorance of its contents cannot set up his ignorance to avoid the obligation in the absence of fraud or misrepresentation. Eley v. Brunner-Lay Southern Corp., Inc., 289 Ala. 120, 266 So.2d 276.

Here, there . was no ambiguity and no evidence of mistake, fraud, misrepresentation, or deceit in the transaction. Mrs. Gunnels’ contention that she was ignorant of the terms of the contract, without evidence of fraud or misrepresentation, cannot avoid the contract. It is settled that where there exists between the parties a written contract, parol evidence cannot be received to explain, contradict, vary, add to or subtract from its terms. Lightsey v. First National Bank of Birmingham, 273 Ala. 416, 142 So.2d 681.

Appellant contends that since she always had possession of the certificate of deposit, there was no delivery of the money or the certificate from her to her son. Common sense teaches that a certificate of deposit cannot be manually possessed by two parties at the same time, and the co-owners with an equal right to possession of the evidence of title—the certificate of deposit—possession by one was possession for the benefit of both. This rule was stated in Graves v. Graves, 42 Ill.App.2d 438, 192 N.E.2d616 (1963), as follows:

“* * * Each of the co-owners had an equal right to possession of the evidence of title,—the passbooks,—and since they could not all have manual possession of such at the same time, possession by one was possession for the benefit of all. * *

This rule is also stated in Estate of Hayes, 131 Ill.App.2d 563, 268 N.E.2d 501 (1971).

Finally, it is argued that “the trial court erred in not declaring the right of the parties to the money in question.”

The following is the prayer, or in this instance, the demands of plaintiff:

“WHEREFORE, Plaintiff demands:
“(1) That a judgment be entered herein declaring that she is legally entitled to said fund of approximately $12,000.00.
“(2) That the Defendant Dothan Federal Savings and Loan Association be restrained and enjoined from paying said fund or any part thereof to the Defendant William Wallace Jimmerson or any person other than the Plaintiff.
‘(3) That the Plaintiff have judgment for costs.
“(4) That the Court grant unto the Plaintiff such other, further, or different relief as she may be entitled.”

Paragraph (1) was denied; that made (2) and (3) inoperative. Paragraph (4) did not impose upon the trial court a duty to decide some question that might arise in the future but which was not raised in the instant case either by the pleadings or the evidence.

On appeal, this court does not weigh the evidence as regards its reasonably satisfying effect on the issue tendered, but in considering it, we indulge all favorable presumptions to sustain the trial court’s conclusion and will not disturb it unless plainly erroneous or manifestly unjust. Maxwell v. City of Birmingham, 271 Ala. 570, 126 So.2d 209; Decker v. Hays, 282 Ala. 93, 209 So.2d 378. The reasons to disturb are not here present.

AFFIRMED.

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


author: MERRILL, Justice. JONES, Justice

text:
    S. A. ALSUP v. COMMERCIAL GUARANTY BANK OF MOBILE, an Alabama Banking Corporation.
    SC 1447.
    Supreme Court of Alabama.
    March 26, 1976.
    Rehearing Denied May 7, 1976.
    Collins, Galloway & Smith, Mobile, for appellant.
    Sam W. Pipes and Wesley Pipes, Mobile, for appellee.
   MERRILL, Justice.

This appeal is from an order of the trial court granting plaintiff’s motion for a new trial. Defendant appealed. We affirm.

Appellant-defendant Alsup owed appel-lee, Commercial Guaranty Bank of Mobile, $125,000.00 plus interest as a result of a promissory note executed by appellant to the bank on July 16, 1971. In payment of the original note, the bank received, from time to time, other notes and cash.

Pertinent to this cause is a note received by the bank on November 2, 1972. This note was in the amount of $130,265.39. In payment of this note, the bank received an interest payment of $3,915.18 from one Frank Carrón of Capital Service Company and a note, dated February 9, 1973, made by Trustee Life Insurance Company in the amount of $129,000.00.

The note dated February 9, 1973, purportedly was signed by Alsup. The bank sued him on the note. Alsup denied that he signed the note. At trial, the bank introduced several witnesses at the trial, including a handwriting expert, who testified to the fact that the note bore appellant’s signature.

The jury found for the defendant. The trial court granted the motion for a new trial and defendant appeals.

It has long been a policy of this court that decisions granting new trials will not be reversed unless the evidence plainly and palpably supports the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891). In the recent case of Hubbard Bros. Construction Co., Inc. v. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169, this court quoted from Cobb v. Malone, supra, and then cited principles from later cases:

“ ‘ * * * 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. And decisions granting new trials will not be. reversed, unless the evidence plainly and palpably supports the verdict. * * * ’
“Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); App. & Error «=>933(1), Vol. 2A, Alabama Digest.
“When the trial court grants a new trial motion, without specifying the grounds therefor, the ruling must be sustained on appeal if any good ground is presented by the motion. Johnson v. Hodge, supra; App. & Error «=>854(6), supra.
“When the trial court grants a new trial, without specifying the grounds therefor, and one of the grounds is that the verdict is contrary to the evidence, the appellate court presumes that it was because the trial court concluded the verdict was contrary to the great preponderance of the evidence or the verdict was unjust in the light of the evidence. Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972); Kennedy v. General Transport Company, Inc., 293 Ala. 455, 304 So.2d 896 (1975); App. & Error «=>933(1) (4), supra.”

Here, there was substantial evidence before the court to indicate that Alsup signed the note. The evidence was undisputed that the bank would not accept the note of Trustee Life Insurance Company without the additional signature of Alsup. In-light of these two statements, it cannot be said “that great weight of the evidence plainly and palpably supports the jury’s verdict.” The order granting the new trial is due to be affirmed.

Each of the parties argue points which will undoubtedly arise again on a new trial. Defendant contends that he is entitled to show that when the bank took the note of Trustee Life Insurance Company, it extinguished his debt, citing Dennis v. Williams, 40 Ala. 633. In Dennis, after discussing the matter, noting an abundance of “contrariety of decision,” and citing cases, this court observed:

“ * * * All the authorities agree, that if the note on a third person was in fact received in discharge of the original indebtedness, in the absence of fraud, the same is extinguished. * * * ”

Plaintiff contends for the doctrine in the case of Thompson v. Fourth National Bank of Montgomery, 215 Ala. 476, 111 So. 29[5], that where forged bills of lading were offered and taken as security to a corporation’s note, and given to secure the cancellation of the personal note of an officer of the corporation, the cancellation of the note was inoperative, even though the maker of the personal note did not participate in the fraud.

We do not know what facts will be presented on the next trial, but, under appropriate facts, both of these principles would have application.

AFFIRMED.

MADDOX and SHORES, JJ., concur.

HEFLIN, C. J., and JONES, J., concur in the result.

JONES, Justice

(concurring in the result).

In concurring in the result in this case, I wish to make clear that I have not changed my personal view expressed in the dissenting opinion in Hubbard Bros. Construction Co., Inc. v. Halstead Contractor, Inc.

HEFLIN, C. J., concurs.


author: MADDOX, Justice.

text:
    F. Porter KNOWLES and Annie Porter Knowles v. GOLDEN STREAM FISHING CLUB, INC.
    SC 1156.
    Supreme Court of Alabama.
    April 16, 1976.
    Paul J. Miller, Jr., Phenix City, for appellants.
    Roy L. Smith and Sydney S. Smith, Phenix City, for appellee.
   MADDOX, Justice.

This is a boundary line dispute. The parties are adjoining landowners. ■ The Fishing Club bases its claim on record title, and on the fact that from 1913, the Club or its predecessors in title, had paid the taxes on the property. The Knowles claimed title by adverse possession. They contended that a fence marked the true boundary line and that they had for more than forty years exercised control over all the land lying east of the fence, including the disputed portion.

The evidence shows that the subject property is densely wooded. A civil engineer prepared a plat of the property in 1933 and placed iron pins on the property, which the trial judge found “remained in place on the dividing line . . . until after this suit was filed in this case, and that F. Porter Knowles, one of the defendants, admitted pulling said iron pins up and removed them from said locations where they had been placed by said Hugh Mc-Math (civil engineer) at said locations which had been the dividing line insofar as the plaintiff (Fishing Club) was concerned between the parties hereto without any notice from the defendants that they claimed any lands to which the plaintiff had deeds thereto West of said line . . ..”

There was evidence introduced by the Knowles that they had cut and sold timber from the disputed parcel on at least two occasions during the past 30 years. There was also evidence that the Knowles grazed cattle upon the land from time to time.

The trial court found, upon consideration of the evidence, that the Knowles had failed to establish title by adverse possession.

Under the law of Alabama, a person claiming title by adverse possession against the holder of the legal title, has the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970). As this Court there said:

“* * * Adverse possession becomes a perfect title on the theory that the true owner has by his own fault and neglect failed to assert his right against the hostile holding, but all presumptions and intendments are favorable to the title, and possessions are not presumed to be hostile thereto. White v. Williams, 260 Ala. 182, 69 So.2d 847; Stewart v. Childress, 269 Ala. 87, 111 So.2d 8.
“We are also persuaded that the trial court’s decree must be affirmed here on the principle that where the evidence is taken ore tenus, and is conflicting, every presumption is indulged in favor of the findings made below. There is nothing here to support a charge that the finding is palpably erroneous. On the contrary, there is overwhelming evidence in support of the trial court’s finding, including its finding that the land involved was ‘wild land’, that it is sometimes known by its ‘plat’ name and is the same as the governmental survey designation.”

The factual setting in Prestwood and in this case are somewhat similar. We reach the same result here as this Court did in Prestwood.

AFFIRMED.

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


author: PER CURIAM.

text:
    Bryan McAFEE v. Robert L. MILAM, as Chairman of the Morgan County Democratic Committee.
    SC 1769.
    Supreme Court of Alabama.
    April 19, 1976.

      John A. Caddell and Noble J. Russell, Decatur, for appellant.
    No brief for appellee.
   PER CURIAM.

This case is before the court on appeal from the trial court’s refusal to issue a writ of mandamus or other extraordinary remedial writ as sought by appellant, the Honorable Bryan McAfee. As a prospective candidate to succeed himself as Judge of Probate of Morgan County, appellant McAfee sought issuance of the writ against appellee, in his capacity as Chairman of the Morgan County Democratic Executive Committee, to compel appellee to accept and process McAfee’s previously tendered qualifying papers and fee and to certify McAfee as a duly qualified candidate in the May 4th Democratic primary.

This appeal is submitted on an agreed statement of the case as is provided in Rule 10(e) of the Alabama Rules of Appellate Procedure (ARAP). This case is further being handled on an expedited basis following suspension of the rules as is provided in Rule 2(b) of ARAP.

Judge McAfee, who is over seventy years of age, tendered his' qualifying papers and fee on March 17, 1976, two days prior to the March 19 deadline. The county chairman declined to accept the papers and fee, on the ground that the second sentence of section 6.16 of Amendment 328 to the Constitution of Alabama prohibits any person seventy years of age or older from being elected to a judicial office. On March 18, McAfee initiated proceedings in the Circuit Court of Morgan County seeking issuance of an extraordinary writ to compel appellee to accept his qualifying papers and fee and to properly certify him as a qualified candidate. Following a hearing on March 19, 1976, the trial judge denied the petition for the issuance of the writ.

The issue presented to this court is whether the second sentence of section 6.16 of Amendment 328 prohibits, a person seventy years of age or older from seeking election to the office of probate judge. This court concludes that it does and affirms the trial judge.

Appellant presents two major arguments which, he asserts, support his contention that the second sentence of section 6.16 does not apply to probate judges and, therefore, does not prohibit his seeking reelection to that position.

Appellant first argues that section 6.16 must be construed in pari materia with section 6.07 (Section 146, Constitution, 1958 Recompiled Code-1973 Cumulative Supplement), which establishes the qualifications of judges. Section 6.07 reads:

“Judges of the supreme court, courts of appeals, circuit court and district court shall be licensed to practice law in this state and have such other qualifications as the legislature may prescribe. Judges of the probate court shall have such qualifications as may be provided by law.”

Appellant maintains that to apply section 6.16 to persons seeking the office of probate judge would be to impinge on an otherwise absolute grant of power established in the legislature by section 6.07 to set qualifications for the office of probate judge. Such construction, appellant argues, would defeat the intentions of the framers of the Constitution to place this absolute authority in the legislature. This court does not agree.

Section 6.07 establishes as a qualification for judges of the Supreme Court, the courts of appeals, circuit courts and district courts that they be licensed to practice law. Otherwise the legislature is given the authority to set all qualifications for these judicial positions as well. Using appellant’s argument, construing section 6.16 to apply to any judge as a qualification to hold office would be an impingement on the power otherwise granted to the legislature to set such qualifications. This court does not believe that the framers of the Judicial Article intended to treat section 6.-16’s age prohibition as a qualification for office, but rather that it was included as prohibitive language dealing only with retirement. This conclusion follows from the fact that age is not mentioned in the qualification section but is saved for inclusion solely in the section which treats judicial retirement. Therefore the language of section 6.07 does not compel the construction of section 6.16 which appellant seeks.

Appellant’s second argument is that the trial judge erroneously failed to look to the whole body of the Judicial Article in construing section 6.16 but instead lifted one section out of context and applied it in isolation from the language of the article as a whole. Appellant asserts that if the second sentence of section 6.16 is construed in the Context of the article as a whole and in light of its historical and institutional setting, then it must be found that section 6.16 was not meant to apply to the office of probate judge. To support this argument, appellant notes the many instances in the article where an express exception is included in the language of a provision to exclude probate judges from its operation. See, e. g., Alabama Constitution Amendment 328, sections 6.08(b), 6.09(a), 6.10 and 6.14 (appearing as sections 147(b), 148(a), 149, and 153, Constitution, 1958 Recompiled Code-1973 Cumulative Supplement). He also points out language in the Final Report of the Alabama Constitutional Commission which, he suggests, shows the framers’ intent to have probate judges treated differently from the “litigious” or “forensic” judges of the other courts. Appellant asserts that “as the Commission viewed matters, probate courts were not really part of the ‘judicial system’ and officers called probate judges were not really jurists who should be held to the same standard as real judges.” (Emphasis in original, Brief of Appellant, at p. 36). Although this court recognizes that probate judges perform many executive and administrative functions and, therefore, are unique in the judicial realm, this court cannot agree with appellant that the Judicial Article was not meant to include probate judges in its overall operation and that probate judges are not “real” judges. Further, this court does not agree with the interpretation of the appellant as to the views of the Alabama Constitutional Commission.

As this court interprets the whole of the Judicial Article, it creates a unified judicial structure composed of the Supreme Court, the courts of appeals, circuit courts, district courts, probate courts and municipal courts. The Judicial Article recognizes the unique functions of the probate court by expressly excepting these courts from certain provisions. This pattern of including express exceptions indicates that the framers intended for probate courts to be treated as part of the unified system in those instances where no express exception was provided.

This court finds that the second sentence of section 6.16 does include within its operation the office of probate judge and therefore prohibits any person seventy years of age or older from being elected to that office. The trial court was correct in denying the writ of mandamus and is affirmed.

AFFIRMED.

HEFLIN, MERRILL, MADDOX, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

BLOODWORTH and ALMON, JJ., not sitting.

      . This provision appears in the unofficial Code of Alabama (1958 Recompiled-1973 Cumulative Supplement) as section 155 of the Alabama Constitution. It reads: “No person shall be elected or appointed to a judicial office after reaching the age of seventy years provided that a judge over the age of seventy may be appointed to the office of supernumerary judge if he is not eligible to receive state judicial retirement benefits.”


text:
    Ella C. McGRUDER v. B & L CONSTRUCTION COMPANY, INC., et al.
    SC 1458.
    Supreme Court of Alabama.
    April 16, 1976.

      J. Wm. Thomason, Bessemer, for appellant.
    H. Powell Lipscomb, III, Bessemer, for appellee, Helen R. Justice.
    DeWayne N. Morris, Birmingham, for appellees M. E. Brown and B & L Construction Co., Inc.
   MERRILL, Justice.

Appellant, Mrs. Ella C. McGruder, appeals from an order of the trial court dismissing her complaint. We affirm because this same suit has been here previously and a former judgment of dismissal was affirmed.

In August, 1967, B & L Construction Company, Inc. (hereinafter B & L) contracted with appellant and her husband (now deceased) to install metal siding on their home. Appellant and her husband executed a contract promising to pay $2,390.00 and a “mortgage deed’’ purporting to secure the repayment. Appellant alleged that she signed the instrument solely based on representations of the owner of B & L, M. E. Brown, which were fraudulent. Brown transferred the note and mortgage to Helen R. Justice, also a defendant-ap-pellee.

B & L impliedly warranted that the siding was reasonably fit for its intended purpose. In July, 1973, the metal siding began to fall from the residence. In August, 1974, appellant notified B & L about the falling siding.

In 1974, appellant filed an action against the same defendants as those named herein claiming substantially the same relief that she currently claims. The trial court dismissed the suit. On appeal, B & L, Brown and Justice argued that the judgment of dismissal should be affirmed because the complaint showed on its face that it was barred by the statute of limitations of six years. This court affirmed. McGruder v. B & L Construction Co., Inc., 293 Ala. 354, 303 So.2d 103.

On March 4, 1975, appellant filed the complaint in the instant case against B & L, M. E. Brown and Helen R. Justice, along with unnamed defendants. Appellant sought an injunction to restrain Mrs. Justice from proceeding with any action to foreclose the mortgage on the property described therein, pending final determination of the cause. Appellant also sought to determine whether she was obligated to satsify the indebtedness secured by the aforementioned mortgage. Finally, she demanded separate monetary judgments from Brown and/or B & L and Justice.

On December 26, 1974, appellant mailed a letter to Mrs. Justice asserting that any claim Mrs. Justice had on the mortgage was waived because Mrs. Justice failed to assert a compulsory counterclaim in the prior action as required by Rule 13, ARCP. Despite the letter, Mrs. Justice began proceedings for a foreclosure sale of the property, and it is this foreclosure appellant sought to stop.

The trial court granted the motions to dismiss of B & L, Brown and Justice. Mrs. McGruder appealed.

It has long been the policy in the courts of Alabama to provide a claimant a day in court, but he will nol; be allowed to continue to relitigate his claim. The underlying principle of res judicata or estop-pel by judgment is based upon public policy and necessity, because it is to the interest of the state that there should be an end to litigation, and that the individual should not be vexed twice for the same cause. Savage v. Savage, 246 Ala. 389, 20 So.2d 784.

The doctrine of res judicata rests upon the primary principle that matters once adjudicated are settled and determined. Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 110 So. 566; Suggs v. Alabama Power Co., 271 Ala. 168, 123 So. 2d 4. Those cases are also authority for the rule that to sustain a plea of res judi-cata or judgment by estoppel, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point.

All of these elements were present in the first case, McGruder, 293 Ala. 354, 303 So.2d 103. Appellant has had her day in court and the same issues were adjudicated, settled and determined, and that is dispositive of this case. We note that our cases also state that a judgment in a former action between the same parties is not only conclusive of the questions actually litigated, but which could have been litigated in the former suit. Reid v. Singer Sewing Machine Co., 218 Ala. 498, 119 So. 229; Hathcock v. Mitchell, 277 Ala. 586, 173 So.2d 576.

Appellant contends strongly in brief that Mrs. Justice is barred from foreclosing the mortgage because under ARCP 13(a) she was required to assert this claim in the first case and she did not; therefore, she is barred from asserting’ any claim on the property later. That question was presented and settled in Lawhorn v. Atlantic Refining Co., 299 F.2d 353 (5th Cir., 1962) where the court said:

“Undoubtedly, the general rule—as F. R.Civ.P. 13(a) plainly implies—is that one who has a counterclaim arising out of the same transaction or occurrence and does not advance it will be thereafter precluded from asserting it. This rule is predicated on the policy that all such related disputes between the parties should be settled in a single lawsuit. This policy is usually effectuated by relying on notions [sic] of res judicata, waiver or estoppel. We find no necessity in this case of bringing into play these specific legal concepts because the Rules themselves, under a fair construction, bring about the same result.
“Taking the Rules at face value, it is clear that a plaintiff must have a claim before a defendant is required to assert a compulsory counterclaim. A counterclaim must be pressed only when it is related to the ‘ * * * subject matter of the opposing party’s claim * * *.’ F.R.Civ.P. 13(a) (emphasis added). That is what makes it a counterclaim. And it is only to such a counterclaim that the Rule attaches a compulsory character. When Atlantic’s motion to dismiss was successful, it was a judicial determination that Lawhorn had no claim upon which relief could be granted. If there was no claim, no counterclaim was required.”

Appellant concedes in brief that Lawhorn “supports the trial court’s ruling” and that it “is highly persuasive authority for Ap-pellee Helen R. Justice’s position,” but argues that it should not be followed. We cannot agree and we note that Lawhorn has been followed in more recent federal decisions. We follow the decision, and since appellant had no legal claim, the counterclaim of Mrs. Justice was not required.

AFFIRMED.

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


author: BLOODWORTH, Justice. MADDOX, Justice JONES, Justice JONES, Justice

text:
    Edwin E. LAMBERT v. LIBERTY MUTUAL INSURANCE COMPANY, a corp. and St. Paul Insurance Co., a corp.
    SC 1255.
    Supreme Court of Alabama.
    March 26, 1976.
    Rehearing Denied May 7, 1976.

      Hare, Wynn, Newell & Newton and James J. Thompson, Jr., Birmingham, for appellant.
    Lyman H. Harris, Birmingham, for ap-pellee, Liberty Mut. Ins. Co.
   BLOODWORTH, Justice.

This is an appeal from a summary judgment in which it was held that appellant Lambert, an employee of Seaboard Coast Line Railroad and an “insured” under the uninsured motorist coverage provided by Seaboard’s “fleet” insurance policy with Liberty Mutual, cannot “stack” Seaboard’s coverages on any vehicle other than the one in which he was riding at the time of his accident.

On February 7, 1973, appellant Lambert (plaintiff below) was injured while riding as a passenger in a vehicle owned by Seaboard which collided with a vehicle driven by an uninsured motorist.

Appellee Liberty Mutual insured Seaboard’s entire fleet of 1,699 vehicles under one policy. Since the vehicles are located in several states, the insurance policy contains different endorsements to provide coverage, in accordance with the requirements of the different states. Approximately fifty of the vehicles are principally garaged in Alabama. The policy requires a separate premium of $4.00 for each vehicle for the uninsured motorist coverage and sets policy limits of $10,000 per vehicle for each person injured. Although Seaboard is the “named insured” under this policy, Lambert is also an “insured”—for purposes of uninsured motorist coverage— by virtue of his occupancy of an insured vehicle, because the uninsured motorist provisions of the policy define “insured” to include any other person while occupying an insured highway vehicle; . . . ”

Lambert is the “named insured” in a policy of insurance issued to him by St. Paul Insurance Company which provided uninsured motorist coverage on Lambert’s two personally owned vehicles, with limits of $20,000.

Lambert entered suit against both insurers claiming $1,000,000 in uninsured motorist coverage by seeking to “stack”:

(1) $20,000 under the St. Paul policy;
(2) $10,000 under the Seaboard policy issued by Liberty Mutual for the vehicle in which Lambert was riding as a passenger; and,
(3) the maximum of Seaboard’s coverage under Liberty Mutual’s policy on all of Seaboard’s vehicles in all states.

The trial judge granted Liberty Mutual’s motion for summary judgment by:

(1) rendering judgment for $19,000 under the St. Paul policy (reduction of $1,000 from policy limits was by agreement);
(2) rendering judgment for $10,000 under Seaboard’s policy with Liberty Mutual for the vehicle in which Lambert was riding as a passenger; and,
(3) denying judgment to Lambert under the policy with Liberty Mutual on all the other Seaboard vehicles.

It is from the third portion [(3)] of the summary judgment that appellant Lambert appeals. No question is raised on this appeal as to the other two portions of the judgment.

Consequently, the issue is whether Lambert, who is not the “named insured” and who has not paid any premium but who is an “insured” solely by virtue of his occupancy, is entitled to “stack” coverages under the Seaboard-Liberty Mutual policy on all Seaboard’s vehicles. We hold that he is not and affirm the judgment of the trial judge.

Lambert contends that there is no difference between a “fleet” or “commercial” policy and a “family combination automobile” policy insofar as “stacking” is concerned under uninsured motorist coverage. Therefore, since this Court has held “stacking” is permitted under the “family combination automobile” policy, he contends, we ought to extend the doctrine to “fleet” policies as well. In support of his contention, Lambert cites: State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974); Employers Liab. Assurance Corp. v. Jackson, 289 Ala. 673, 270 So.2d 806 (1972); State Farm Mutual Automobile Ins. Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971) ; Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970).

Liberty Mutual, on the other hand, contends that in none of these cases are we presented with the precise issue in this case. Liberty Mutual cites two cases which have directly considered this issue : Cunningham v. Ins. Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972), and Witcher v. Travelers Indemn. Co., Civil Action No. 73-1023, (N.D.Ala., Sept. 10, 1974) (Lynne, J., unreported). Both cases denied passengers (who were “insureds” by virtue of permissive occupancy) the right to “stack” under fleet policies. Liberty Mutual adds that Lambert has cited no precedent in point for the proposal he espouses. Liberty Mutual states that, after extensive research, it has not found any case in any jurisdiction which permits stacking under a commercial or fleet policy of insurance covering fleet vehicles when they were not being occupied by the named insured at the time of his accident.

Moreover, Liberty Mutual contends that it should not be liable for more than $10,000 under the fleet policy because Lambert was occupying only the one vehicle as a passenger at the time of the accident, and because the premium was paid by the employer Seaboard, not by Lambert.

Our previous Alabama cases allowing stacking have fallen generally into two separate categories.

This Court first allowed stacking in a case in which the insured-passenger sought to stack coverage under his own personal uninsured motorist policy onto coverage under a policy owned by the driver. In Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970), this Court held that the passenger, who was injured in a collision with an uninsured motorist, was not only entitled to coverage under his own uninsured motorist policy but was also entitled to coverage under the driver’s policy.

Under the second category of cases in which this Court has permitted stacking, the injured party seeks to stack coverages under separate uninsured motorist coverages on multiple vehicles insured under one policy which lists him as the named insured. In Employers Liab. Assurance Corp. v. Jackson, 289 Ala. 673, 270 So.2d 806 (1972), the doctrine of stacking coverages was extended to cover this second category of cases. Under the rule set out in Jackson, the insured is permitted to stack benefits under the uninsured motorist provisions of his personal policy where he has paid separate premiums for each vehicle insured under one multi-vehicle policy.

Now, by this appeal, Lambert urges this Court to extend the concept of stacking to cases falling in a third factual category. Lambert contends that an injured insured should be allowed to stack coverages on multiple vehicles insured under one policy where the policy in question has been purchased and is owned by another party, that party being the named insured. This contention presents a question of first impression in Alabama. However, in at least two cases the United States District Court for the Northern District of Alabama has been presented with this issue. That court held in both cases that it would not extend the doctrine of stacking to cover cases falling under this third category. See Long v. United States Fidelity and Guar. Co., 396 F.Supp. 966 (N.D.Ala.1975) (Lynne, J.); Witcher v. Travelers Indemn. Co., Civil Action No. 73-1023 (N.D.Ala., Sept. 10, 1974) (Lynne, J., unreported.)

The rationale underlying the doctrine of stacking as it has evolved in Alabama has been recently articulated by this Court in Great Cent. Ins. Co. v. Edge, 292 Ala. 613, 298 So.2d 607 (1974). In that case, a named insured, while a pedestrian, was struck and injured by an uninsured motorist. He was allowed to stack coverages on several vehicles insured under the same policy even though the policy included a limiting clause which arguably prohibited such recovery. In the language of that opinion, “the law of this state with respect to uninsured motorist coverage precludes an insurer from collecting a premium for certain coverage, then taking that coverage away by a limiting clause, under the rationale that a contrary holding would be in violation of the uninsured motorist insurance statute.” Id. at 616, 298 So.2d at 609. The Court added that its opinion in Jackson “focused on the real issue, that being the fact that the insured had paid two premiums—that in effect the [insureds] had purchased two policies of insurance on one form and that the public policy expressed in the uninsured motorists’ insurance statute prevented the insurance company from limiting its liability under such circumstances.” Id. at 617, 298 So.2d at 610.

I.

Not only may these stacking cases be analyzed in terms of their statutory underpinnings, they may also be analyzed as a -further application of the established rule in Alabama that “the insured is entitled to the protection which he may reasonably expect from the terms of the policy he purchases.” Aetna Cas. & Sur. Co. v. Chapman, 240 Ala. 599, 602, 200 So. 425, 427 (1941) (emphasis added).

As Professor Keeton analyzes it, the principle of reasonable expectations insures that “[t]he objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” R. Keeton, Basic Text on Insurance Law § 6.3(a), at 351 (1971).

By permitting the insured to stack his coverages, this Court has simply honored the reasonable expectation of the “named insured” that his payment of an additional premium will result in increased coverage for those falling within the definition of the “named insured,” and where an expectation of this nature is in conflict with a limiting clause in the policy, the resulting ambiguity must be resolved in favor of the insured due to the nature of insurance contracts. See generally Note, Insurance-Stacking-Multiple Recovery Permitted under Single Policy Insuring More Than One Vehicle, 7 U.Rich.L.Rev. 385 (1972). As explained by Professor Keeton, “[i]nsurance contracts continue to be contracts of adhesion under which the insured is left little choice beyond electing among standardized provisions offered to him . . . .” R. Keeton, Basic Text on Insurance Law § 6.3(a), at 350 (1971). Recognition of this circumstance is at least an implied element in this Court’s opinions in cases such as Edge and Jackson. Such recognition is implicit in language such as the following statement: “the [insurer] should pay in two instances because the insured had paid a premium in two instances for uninsured motorist coverage.” Employers Liab. Assurance Co. v. Jackson, 289 Ala. at 679, 270 So.2d at 810.

However, what may be a reasonable expectation for the purchaser and “named insured” under a policy may not necessarily be so for an insured such as Lambert who has become an insured by virtue of his riding as a passenger in an insured vehicle. Differences between the coverages provided for these two classes of insureds are quite significant as has been pointed out by the Kansas Supreme Court in Sturdy v. Allied Mut. Ins. Co., 203 Kan. 783, 791, 457 P.2d 34, 40 (1969):

“[T]he policy . . . defines two' separate classes of persons as being ‘insured’ under it: First, the named insured (and any relative); and second, any other person while occupying an insured automobile. To be insured, the latter must actually be occupants of an insured vehicle. Their coverage is tied to and limited to actual occupancy of a particular automobile. This is not true of the named insured. His coverage . . . is not tied to or limited by occupancy of an automobile. . . .
“Thus we see that the policy provides the named insured with two kinds of coverage: While he is in his insured automobile, and wherever else he may happen to be when he suffers bodily injury due to an uninsured motorist. This latter constitutes a broad reservoir of coverage.”

If an insured of the first class [i. e., “named insured”] is already covered under all circumstances against the risk of uninsured motorist injuries, what additional personal coverage will he acquire by the payment of an additional premium for coverage on a second vehicle ? The answer is that were it not for the privilege of stacking, no additional personal coverage would be afforded the “named insured” in exchange for his additional premium.

The Supreme Court of Virginia in considering the precise issue presently before this Court also recognized this circumstance as evidenced by the following language :

“The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages. However, this argument and reasoning does not apply to a permissive user of a vehicle . .”

Cunningham v. Ins. Co. of North America, 213 Va. 72, 77, 189 S.E.2d 832, 836 (1972). The well reasoned opinion in Cunningham, authored by Justice Harrison, has been expressly adopted by several other courts which have considered this same issue. E. g., Long v. United States Fidelity and Guar. Co., 396 F.Supp. 966, 969-70 (N.D.Ala.1975) (Referring to the above-quoted excerpt from Cunningham, Judge Lynne wrote, “This reasoning is sound.” 396 F.Supp. at 970); Moomaw v. State Farm Mut. Auto. Ins. Co., 379 F.Supp. 697, 703 (S.D.W.Va.1974).

We agree with the Virginia Supreme Court that the rationale upon which stacking under multi-vehicle policies has been justified for insureds of the first class is inapplicable to insureds of the second class. Although an insured of the first class is covered under uninsured motorist policy provisions in whatever vehicle he may be occupying, an insured of the second class is similarly covered only if the particular vehicle he occupies is specifically included under the coverage of some policy. Thus, the payment of an additional premium to cover additional vehicles obtains a substantial benefit insofar as insureds of the second class are concerned. Not being a party to the contract, the expectations of an insured of the second class as to the extent of his coverage do not result in contract ambiguity and are not sufficient to avoid the effect of the policy’s limiting clause.

Can it be seriously contended that Seaboard expected that the $4.00 premium-it paid for uninsured motorist coverage on each of its 1,699 vehicles would purchase coverage for all permissive occupants of its vehicles to -the tune of $16,900,000? Clearly, such an expectation would not have been a reasonable one under the terms of the commercial fleet policy here in question. The status of Lambert (for purposes of uninsured motorist coverage) as an insured solely by virtue of his occupancy of the vehicle, is clearly distinguishable from the status of a named insured who is entitled to stack coverages by virtue of his personal payment of an additional premium for each vehicle insured under a multi-vehicle policy.

For the reasons given, we decline to extend the privilege of stacking to insureds of the second class. In so ruling we thereby affirm the decision of the trial court.

II.

In State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), we construed our uninsured motorist statute as mandating uninsured motorist coverage for all “persons insured thereunder” under the automobile liability policy. We held that because a brother and mother of a policyholder were “insureds” under the omnibus clause of the liability policy they must also be covered under uninsured motorist provisions and therefore they would not fall under an “exclusion” for injury suffered while occupying a vehicle owned by the “named insured” or any member of the same household and not covered under the policy.

There, we were dealing with an “exclusion” from uninsured motorist coverage; here, we are dealing with a limitation as to the amount of coverage to be afforded a passenger who is conceded by both sides to be an “insured” under the omnibus clause of uninsured motorist coverage. It was “coverage” there and “stacking” here.

We see no conflict with the result we reach here and in Reaves. This “insured” is simply not a “person insured thereunder” so that coverage is mandated for him under the statute, as we held in Reaves. The plain terms of the policy limit the amount of coverage provided for this “insured.” There is no conflict between the statute, or Reaves, and this provision.

AFFIRMED.

MERRILL, FAULKNER, ALMON, and EMBRY, JJ., concur.

JONES and SHORES, JJ., concur in Part II.

MADDOX, J., concurs specially.

HEFLIN, C. J., concurs in the result.

MADDOX, Justice

(Concurring specially).

I concur in Part II of the opinion insofar as it holds that Lambert was not a “person insured thereunder,” as those words have been construed by this Court.

I express no opinion on the question whether Lambert could “stack” had he been a “person insured thereunder.” As I view it, this Court has not yet decided that particular coverage question under a fleet policy, and I do not think we ever reach it here. Since the majority does state that Judge Lynne’s unreported case of Witcher v. Travelers Indemnity Co. of North America, Civil Action No. 73L1023 (U.S.Dist.Ct.N.D., Ala., Sept. 7, 1974) considered this exact issue, I would like to point out a couple of things about the Witcher case. Judge Lynne there said:

“THE COURT: The Court concludes as a matter of 'law that the Plaintiff is not entitled to ‘stack’ the uninsured motorist coverage under the commercial insurance policy attached as Exhibit A to the stipulation. No case decided by the Supreme Court of Alabama which has been cited to the Court or which the Court found in its own research has addressed this particular issue. It is the opinion of this Court that Alabama would follow Cunningham versus Insurance Company of North America [213 Va. 72], 189 Southeastern 2nd 832 (Supreme Court for Virginia, 1972). In the Alabama cases of Safeco Insurance Company of American versus Jones, 286 Ala. 606, 253 Southern 2nd 736 (1970); Phoenix Insurance Company versus Stuart, 289 Alabama 657, 270 Southern 2nd 792 (1972); Employers Liability Assurance Corporation, Limited versus Jackson, 289 Alabama 673, 270 Southern 2nd 806 (1972); Great Central Insurance Company versus Edge, [292] Alabama [613], [298] Southern 2nd [607], BR1572 (August 8, 1974), the Court was dealing with the right of a named insured to ‘stack’ uninsured motorist coverages. Neither of them considered the right to ‘stack’ uninsured motorist coverages under an employer’s commercial ‘fleet’ policy, the question addressed by the Supreme Court of Virginia in Cunningham. It is noteworthy that both the Supreme Court of Virginia in Cunningham and the Supreme Court of Alabama in Safeco relied upon the rationale of Sturdy versus Allied Mutual Insurance Company [203 Kan. 783], 457 Pacific 2nd 34 (Kansas, 1969).
“This Court concludes that the Supreme Court of Alabama would follow Cunningham and limit plaintiff’s recovery to the sum of $10,000.”

It is apparent that Judge Lynne referred only to the right of the “named insured” to stack, in the Witcher case. I cannot •tell from the information supplied this Court by the appellee whether Witcher was a “person insured thereunder” under the primary liability provision of the fleet policy there involved. I do not have a copy of that policy. In any event, when “stacking” is an issue, whether a person is a “person insured thereunder” under the liability policy—named insured or otherwise—I believe that State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), addressed that issue. Having said this, I will await the case, should it arrive, where an individual is a “person insured thereunder” under the primary liability policy containing fleet coverage.

JONES, Justice

(concurring specially) :

I agree that the trial Court correctly granted summary judgment denying “stacking” in this case, and I concur with Part II of the opinion. Whether “stacking” is permitted is essentially a question of coverage under the primary liability provisions of the policy.

The Uninsured Motorist Statute (Tit. 36, § 74(62a), Code), an analysis of which is crucial to a determination of this issue, provides:

“No automobile liability policy insuring against loss resulting from liability imposed by law . shall be delivered ... in this state unless coverage is provided therein . . . for the protection of persons insured thereunder . . . .”

The term “persons insured thereunder” refers specifically to those persons insured “against loss resulting from liability” under the “automobile liability policy.” If Lambert is an insured—named or otherwise— under the primary liability provisions, the statute mandates coverage for uninsured motorist protection to the same extent and in the same manner as all other insureds under the basic liability coverage. See State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974).

If, on the other hand, he is an insured for uninsured motorist purposes purely by virtue of the omnibus clause of the uninsured motorist pro-visions, which coverage is not required by the uninsured motorist statute in the first instance, then the extent of coverage for uninsured motorist protection can be limited by the terms of the contract.

In other words, if, under the facts before us, Lambert fits the definition of an insured as a person “insured thereunder,” that is, the liability provisions of the policy, he is entitled to “stacking.” General Mutual Insurance Company v. Gilmore, 294 Ala. 546, 319 So.2d 675 (1975). But, if he must resort to the omnibus clause of the uninsured motorist provisions to come within the definition of “insured,” the limits of $10,000 per person provided for such coverage is effective and “stacking” will be denied. Where the insurer elects to broaden the definition of “insured” in the uninsured motorist coverage to include persons not embraced in the term “insured” in the primary coverage, it likewise can elect to limit its liability to such additional insureds. The limitation of $10,000 per person does not run the risk of being in derogation of the statute because it applies to coverage not mandated by the statute. State Farm Mutual Automobile Insurance Company v. De La Cruz, 283 Ala. 167, 214 So.2d 909 (1968).

The facts, as stipulated by the parties, show that Lambert is an insured by virtue of his occupancy of the vehicle, which is not within the definition of an omnibus insured under the primary liability provisions of the policy, but he is within the definition of omnibus insured under the uninsured motorist provisions. Therefore, Lambert is not entitled to recover under the terms of this policy in excess of $10,000.

On Rehearing

APPLICATION FOR REHEARING OVERRULED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

I concur in the overruling of the application for rehearing. In view of the earnest insistence of appellant’s counsel that the plaintiff was an employee of the named insured, Seaboard, and that an employee is an insured under the express terms of the primary liability coverage, L feel that a brief extension of the opinion is in order.

First, there is no evidence in the record that Lambert, at the time of the injury in question, was an employee of Seaboard. To be sure, the record does contain a Request for Admission which asks the defendant to admit that Lambert was an employee of Seaboard. There was no denial or answer to this request; therefore, the fact of Lambert’s employee/employer' relationship with Seaboard is admitted under Rule 36, ARCP, which provides:

“ . . . the matter is admitted unless, within 30 days . . ., the party to whom the request is directed serves upon the party requesting the admission a written answer or objection . . .”

The record, however, fails to disclose that this fact was ever introduced into evidence or in any manner called to the trial Court’s attention, nor was it included in the stipulation of facts presented by the parties to the trial Court.

Second, even assuming the employee/employer relationship, we find the legal requisites for stacking fail because Lambert is not an insured under the primary liability coverage according to the insuring provisions. The only reference to “employee” under the section “Persons Insured” is in subsection (c) (2) which reads:

“(c) any other person while using an owned automobile . . . with the permission of the named insured, provided his actual operation or (if he not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
(1) . . .
(2) an employee of the named insured . . . . ”

This reference to “employee” as an insured is clearly tied to the phrase “while using an owned automobile with the permission of the named insured,” which is further conditioned on injury or damage “arising out of the loading and unloading thereof.” The mere fact that Lambert was an employee of Seaboard does not make him an insured for whom uninsured motorist protection is mandated by the Uninsured Motorist Statute. It follows, then, that Lambert’s coverage for uninsured motorist protection is purely by virtue of the uninsured motorist provisions of the policy; and the express limitations of such coverage ($10,000 per person) is valid.


author: BLOODWORTH, Justice.

text:
    C. O. OSBORN et al. v. E. W. RILEY et al.
    SC 1171.
    Supreme Court of Alabama.
    March 26, 1976.
    Rehearing Denied May 7, 1976.

      Charles Cleveland and Douglas P. Cor-retti, Birmingham, for appellants.
    Whitmire, Morton & Coleman, Birmingham, Prentiss M. Rainey, Springville, Nash, NeSmith & Walker, Oneonta, for appellees.
   BLOODWORTH, Justice.

Appellants are Aetna Casualty and Surety Company and the executors of the will of C. O. Osborn. They appeal from a judgment on a supersedeas bond rendered by the Circuit Court of St. Clair County in favor of appellees, the Rileys. That judgment, rendered on January 27, 1975, ordered Osborn, as the principal, and Aetna, as the surety, to pay the Rileys the sum of $20,000 plus court costs.

The litigation in this cause began in the spring of 1973 when the Rileys brought suit against C. O. Osborn, James G. Clark, Jr., and Ray Wyatt seeking to set aside, because of undue influence, a deed by which the Rileys had conveyed a large tract of land to Osborn. On May 7, 1973, the circuit court declared the deed to be null and void on the basis of the court’s finding of undue influence.

On May 21, 1973, Osborn, intending to appeal, filed with the circuit court an ex parte application to fix the amount of a supersedeas bond. That same day, the court granted the application, setting the supersedeas bond at $5,000 conditioned on the requirement that Osborn pay any judgment the appellate court might render as well as “such costs and damages as any party may sustain by reason of the wrongful appeal and suspension of the decrees.” Osborn obtained a $5,000 supersedeas bond from Aetna Casualty and Surety Company, which was approved by the Register and filed that same day.

On May 28, 1973, after receipt of the decree fixing the supersedeas bond at $5,-000, the Rileys filed a motion to increase the amount of the supersedeas bond based on their contention that $5,000 was inadequate to supersede the decree. This motion was presented to the trial court on May 28, 1973, and set for hearing on June 6, 1973. A copy of the motion and order was served on appellant Osborn’s attorneys.

On June 6, 1973, the motion came on to be heard with the attorneys for the parties present. After considering the matter, the court modified its earlier decree and increased the amount of the su-persedeas bond from $5,000 to $20,000. No objection was made thereto by appellant Osborn, but he made the bond with Aetna as surety.

On appeal, this Court affirmed the circuit court’s judgment. [See Wyatt v. Riley, 292 Ala. 277, 293 So.2d 288 (1974).]

Osborn’s appeal having been unsuccessful, the Rileys then filed suit on Osborn’s bopd with Aetna, demanding payment of damages in the amount of $20,000. The Rileys contended that Osborn’s failure to successfully prosecute his appeal and his failure to pay all of the Rileys’ costs and damages constituted a breach of the condition of the supersedeas bond. Osborn defended on the grounds that the Rileys did not prove that they were damaged by virtue of Osborn’s appeal or that the appeal was wrongful. The circuit court rendered judgment in favor of the Rileys in the amount of $20,000 plus costs. That judgment is now challenged by Aetna and by the executors of Osborn’s estate (Osborn being deceased).

First, appellants claim that the circuit court’s order of June 26, 1973, which increased the supersedeas bond from $5,000 to $20,000, is void for lack of jurisdiction. Appellants rely on Tit. 7, § 766, Code of Alabama of 1940 (Recomp. 1958), which provides that an appeal “shall he shown (c) By giving and having approved a supersedeas bond . . . . ” Appellants contend that the filing of the first supersedeas bond on May 21, 1973, perfected their appeal to this Court, thereby invoking our jurisdiction and divesting the trial court of any further jurisdiction in the premises.

To support this contention, appellants cite a line of cases which hold that the filing and approval by the clerk of a super-sedeas bond is sufficient to perfect an appeal and to transfer jurisdiction to the appellate court. But, the primary issue in all the cases cited by appellants is the question of the trial court’s right to rule on a motion for new trial after jurisdiction over the cause has been transferred to an appellate court by the filing of a supersedeas bond. The unanimous holdings of these cases is that, under such circumstances, the lower court’s jurisdiction to consider a motion for new trial is suspended. See: Johnsey-Reed Bros. Coal Co. v. Sanders, 275 Ala. 339, 154 So.2d 923 (1963); MacMahon v. Dozier, 237 Ala. 574, 187 So. 710 (1939); Lewis v. Martin, 210 Ala. 401, 98 So. 635 (1923); Sharp v. Edwards, 203 Ala. 205, 82 So. 455 (1919).

However, this authority is not controlling under the instant facts, since no motion for new trial is involved here. Moreover, other cases included in that same line of authority do not support appellants’ application of the rule to these facts. In Barran v. Roden, 263 Ala. 305, 307, 82 So.2d 398, 399 (1955), this Court set out a limitation on the rule that, after an appeal is taken, the trial court cannot rule on any matter involving the appeal:

“ . . . The rule is stated to be that after an appeal is taken, the lower court ‘may proceed in matters which are entirely collateral to that part of the case which is taken up (by the appeal) but it can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.’ This is a limitation on the rule that after an appeal is taken the trial court cannot, pending that appeal, pass upon any matter involved on the appeal. .
“As to those matters which are entirely collateral to the questions involved on appeal, the court and parties are free to proceed notwithstanding the appeal if taken, or without affecting the right to appeal if not then taken. 4 C.J.S., Appeal'and Error, § 212e, p. 401.”

Accord: Francis v. Scott, 260 Ala. 590, 72 So.2d 93 (1954); Ex parte Taylor, 251 Ala. 387, 37 So.2d 656 (1948); Ex parte City Council of Montgomery, 114 Ala. 115, 14 So. 365 (1896).

Clearly, the filing of the first su-persedeas bond on May 21, 1973, did constitute the taking of an appeal as of that date under the authority of Tit. 7, § 766. Consequently, all jurisdiction over those matters adjudicated, and from which the appeal was taken, was transferred to the appellate court on May 21, 1973. However, as has been established in cases such as Barran v. Roden, it is equally clear that the trial court retains its power to pass on matters collateral to the matter appealed. Some guidance for the determination of what constitutes a collateral matter for these purposes may be gleaned from this Court’s opinion in Allen v. Allen, 80 Ala. 154 (1885), in which the following language appears:

“We do not doubt that, when a decree has been rendered by a court of equity, and an appeal has been prosecuted to this court from such decree, a chancellor would no longer have such jurisdiction of the cause as would enable him to render any further decree affecting the rights and equities of the parties in the same cause during the pendency of the appeal.
“The present motion, however, is a separate and distinct proceeding from the chancery suit which culminated in the decree from which the appeal in question was taken. It is based upon grounds which have nothing to do with the equities involved in and settled by that decree, and which have even originated subsequent to its rendition. The purpose of the motion is not to raise any question going behind the decree or concluded by it, but only to prevent any abuse of the process of the court by the agency of which it is sought to enforce the execution of the decree. It is manifest that whatever course may be taken by the appellate court as to the decree appealed from, whether it be affirmed or refused, the questions arising from this motion would neither be discussed nor determined.”

80 Ala. at 155-56.

Much like the motion in controversy in the Allen case, the Rileys’ motion for an additional supersedeas bond is part of a proceeding that is separate and distinct from the decree appealed from. The question presented by the Rileys’ motion, that is, whether the original $5,000 super-sedeas bond adequately protected the Ri-leys’ interest in the court’s order entered in their favor, does not involve the rights and equities relative to the question of whether their deed should have been set aside. The Rileys’ motion does not raise any question going behind the decree appealed from, nor does it raise any question decided by that decree. In short, the Rileys’ motion presented a question which is clearly collateral to the questions raised by Osborn’s appeal of the court order setting aside the deed.

Moreover, in Ex parte Farrell, 196 Ala. 434, 71 So. 462 (1916), this Court quoted with approval the following language from the Virginia case of Cralle v. Cralle, 81 Va. 773 (1886):

“ . . . the effect of an appeal, when fully perfected by the execution of the proper supersedeas bond, is to deprive the subordinate court of all power over the parties and subject-matter of controversy . . .; and the only orders, therefore, which that court can rightfully make are such as are needful for the preservation of the res and the rights of the parties pending the appeal.”

Id., 196 Ala. at 436-437, 71 So. at 463. So, it is that the Rileys’ motion for additional bond involved a matter necessary for the full protection of their rights pending Osborn’s appeal, hence the language approved in Farrell is applicable under the facts of the instant case.

Tit. 7, § 794, Code of Alabama of 1940 (Recomp.1958), makes the amount of a supersedeas bond, under circumstances such as those of the instant case, a matter within the trial court’s discretion. In Ex parte Edwards, 20 Ala.App. 567, 104 So. 53 (1925), the Court of Appeals held:

“. . . the law does not vest in this court the power to fix the amount, but vests that authority and power in the trial court, and does not vest in this court the authority or power to revise the erroneous action of the trial court by mandamus.”

20 Ala.App. at 569, 104 So. at 54.

If the amount of a supersedeas bond is a matter within the trial court’s discretion, so, it would seem, is a later modification or revision of that amount, particularly when it is within thirty days of the original order. Thus, jurisdiction over the Rileys’ motion was retained by the circuit court not only because of the collateral nature of the motion, but also because of this statutory provision.

Promptly after learning of the ex parte proceeding in which Osborn’s request for supersedeas bond was granted, the Ri-leys made their motion for an increase in the bond. Nor does it appear that any objection was made to the trial court in regard to the Rileys’ motion. The trial court received the motion well within the thirty-day grace period during which the cause remained “within the breast of the court.” Ward v. Blackwell, 269 Ala. 632, 634, 115 So.2d 41, 42 (1959). We find no reversible error in the trial court’s order increasing the amount required for Osborn’s supersedeas bond.

The second issue raised by this appeal concerns the cross-examination of Mr. Riley. Mr. Riley testified on direct examination that he paid his attorneys $22,500 “in connection with the appeal.” When asked whether any of the $22,500 was paid for trying the case before the circuit court, Mr. Riley replied, “I don’t think so.” Counsel for appellants then sought to adduce testimony regarding the total amount of legal fees paid by Mr. Riley in connection with the trial of the case and the prosecution of the appeal, but the court sustained appellees’ objection to the question. Appellants argue that if they could have shown that the Rileys paid a $22,500 legal fee for the appeal but paid no fee for the trial, then it would be apparent that not all of the $22,500 was paid for services connected solely with the appeal.

The total amount Mr. Riley paid his attorneys for their services for the trial of the case as well as for the appeal is not, in itself, relevant to a determination of the damages caused the Rileys 'by the appeal. That line of questioning becomes relevant only to the extent that it relates to the question of the amount of legal fees paid solely for the appeal. We agree with the appellants that proof that $22,500 was the total amount of legal fees paid by the Rileys would in itself constitute circumstantial evidence that not all of the $22,500 was paid for services connected with the appeal. However, if the court’s refusal to allow cross-examination on this point was error (a question that we need not reach on the facts of this case), it was harmless error. The information that appellant claims to have sought by cross-examination on this point, that is, whether the $22,500 included legal services at trial, was directly asked the witness on cross-examination in the following exchange:

“Q What did you pay ?
THE COURT: How much? I will let you ask this: How much of the twenty-two thousand five hundred dollars was paid on the basis of this appeal.
“Q How much of the twenty-two five was paid on the appeal?
“A I don’t recall.
“Q Don’t recall. All right. Could some of the twenty-two five have been for trying the case here before Judge Waid?
“A I don’t think so.
“Q Do you know ?
“A No. I don’t know.”

Moreover, counsel for the Rileys (on the appeal) testified that they were paid $22,-500 for the appeal only.

The third issue presented for our review arises from appellants’ contention that the Rileys suffered no injury as a result of the appeal and the accompanying suspension of their judgment during the pendency of the appeal. It is undisputed that, during the appeal, appellees were in possession of the land over which the dispute arose. Appellants contend that because the appellees were in possession of the land over which the dispute arose, it cannot be argued that they were harmed by the suspension of the court’s decree.

These arguments are not persuasive in view of the rule of our cases. The purpose of a supersedeas bond is “to keep the parties in status quo pending the appeal. This purpose . . . reach[es] not only to possession of the property, but every other consequence of the judgment, including costs, and the evidential status and value of the judgment pending appeal. Delay in the settlement of the title in the plaintiff was consideration enough to support the bond.” Fidelity & Deposit Co. v. Torian, 221 Ala. 131, 133, 127 So. 829, 831 (1930). It was there held that there could be recovery on the bond notwithstanding appellant was not in possession. In the instant case, the appellees were damaged not only by a delay in the settlement of title, but also by the expense of defending their judgment.

As was stated in Torian, supra, although the appellant “was never in possession, [she] did secure by the bond whatever benefit she may have considered the suspension of the judgment afforded her pending the appeal and operated as a detriment to appellee in postponing the settlement of his title.”

The fourth and final issue raised on appeal challenges Alabama case law allowing the recovery of attorney’s fees paid for defending the appeal as an element of damages to be recovered under the super-sedeas bond in a suit of this character. Appellants argue that neither the statute providing for supersedeas bonds, nor the decree in the instant case, specifically includes attorneys’ fees as an element of damages. In the absence of express statutory or contractual provision to the contrary, appellants contend that there is no “inherent right to have attorney’s fees, paid by the opposing side.” On the basis of case law from other jurisdictions which is in conflict with the existing Alabama rule, appellants urge this Court to hold that damages in suits on supersedeas bonds in a suit of this character should include only those damages resulting from the stay of execution of the judgment. Specifically appellants ask that we overrule our case of Drake v. Webb, 63 Ala. 596 (1879) and those cases following it.

Appellant refers the Court to its recent opinion in White v. State, 294 Ala. 502, 319 So.2d 247 (1975), in which this Court held that attorneys’ fees were not recoverable as “just compensation” in eminent domain proceedings. However, the issue in White was a matter of first impression in Alabama. In contrast, the issue in the instant case involves the recovery of attorney’s fees as an element of damages under the supersedeas bond, in a suit of this character, and is the subject of a long-standing rule in this state. See, e. g. Dempsey v. Gay, 227 Ala. 20, 148 So. 438 (1933); Fidelity & Deposit Co. v. Torian, 221 Ala. 131, 127 So. 829 (1930); Caldwell v. United States Fidelity & Guar. Co., 205 Ala. 463, 88 So. 574 (1921); Drake v. Webb, supra; Wheeler v. Fuller, 4 Ala.App. 532, 58 So. 792 (1912). [See Anno: “Attorneys fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond” 37 ALR2d 525.]

In Drake v. Webb, supra, Justice Stone makes the following statement as the rationale for the Alabama rule:

“We find nothing in the condition of the present bond which we consider unreasonable. The damages imposed are not a tax, or clog, placed on the appellant’s right of appeal. That he could have had without a supersedeas bond, on giving security for costs of appeal. Such security for costs would have imposed on his surety no other liability than to pay the costs of appeal, if unsuccessful. This is a mere regulation of the right of appeal, for the security of the officers of court. But, when an aggrieved suitor desires to go further, and suspend the execution of a judgment or decree rendered against him, this is not simply a question of the right of appeal. It goes much beyond that. Very great damage may result from the appeal and the suspension. The condition of a bond, entailing these consequences, should be so adjusted and prescribed, as to secure the ap-pellee against all loss or damage that may result proximately from the appeal and supersedeas. Attorney’s fees are proximate damages, cast on the appellee by the appeal, and are, therefore, within the condition of the bond. We are not able to distinguish, in principle, between this question and the kindred one which arises in suits on injunction and detinue bonds.”

63 Ala. at 600.

In the absence of any substantial countervailing arguments, we decline to overturn the rule of the above-cited cases. We are mindful that “ [consistency of decision and adherence to precedent have always been the guiding light of a proper functioning judiciary.” United States Steel Corporation v. Goodwin, 267 Ala. 612, 613, 104 So.2d 333, 334 (1958).

AFFIRMED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.