text:
    Donald JORY, Plaintiff-Appellee, v. W. Gregory ARNETTE, Jr., Defendant-Appellant.
    No. 6781.
    Court of Appeal of Louisiana, Third Circuit.
    July 24, 1978.
    Writ Refused Aug. 1, 1978.
    Arnette & George, James A. George, Jennings, for defendant-appellant.
    Mary O. Pierson, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this suit defendant’s eligibility to be a candidate for the office of District Attorney for the Thirty-First Judicial District, State of Louisiana, is put at issue.

The facts are without dispute.

Defendant timely filed qualifying papers for the office of District Attorney, Thirty-First Judicial District, State of Louisiana, on July 10, 1978. The primary election for this office will be held on September 16, 1978. Defendant was admitted to the practice of law in the State of Louisiana on September 24, 1973. Plaintiff instituted this suit on July 14, 1978, contesting defendant’s eligibility as a candidate for such office alleging, in essence, that defendant does not possess the requisite professional qualifications as required by Article V, § 26 of the Louisiana Constitution of 1974 in that he has not been admitted to the practice of law in the State of Louisiana for at least five years prior to “his election.”

Following institution of this suit defendant filed a peremptory exception urging that plaintiff’s petition failed to state a cause of action because it was not alleged therein when defendant’s election would be. The trial court sustained this exception, but it continued the matter to the following day, permitting plaintiff to amend his petition to state a cause of action. Plaintiff then filed a supplemental petition and upon trial of the matter the following day defendant reurged his exception, which was overruled. Following trial on the merits, the district court rendered judgment in favor of plaintiff, decreeing defendant ineligible as a candidate for the office of district attorney. Defendant then prosecuted this appeal.

Appellant assigns as error the trial court’s permitting the plaintiff to amend his petition, urging that this amendment and the resultant delay in trial violates the provisions of LSA-R.S. 18:1409, which mandates that an action objecting to candidacy shall be tried on the fourth day after suit is filed. He thus argues that the trial court judgment is null. Principally, appellant urges error in the trial court’s holding that the date of “his election,” i. e., the defendant’s election, as stated in Article V, § 26 of the Louisiana Constitution of 1974, means the date of the scheduled primary election to be held September 16, 1978.

We find no merit in appellant’s first assignment of error. We conclude that the trial court erred in sustaining the exception of no cause of action initially filed by the defendant. The original petition alleges defendant’s ineligibility for lack of the required professional qualifications provided for by Article V, § 26 of the Louisiana Constitution of 1974 and specifically alleges the date of his admission to practice law in the State of Louisiana and the date of the scheduled primary election for said office. It was unnecessary that plaintiff allege when defendant’s election would take place, within the intendment of the cited constitutional provision, in that the latter is a legal conclusion as opposed to a factual allegation. In our opinion, the plaintiff’s original petition is legally sufficient and states a cause of action.

Considering the foregoing conclusion, we deem it unnecessary to consider appellant’s contention that the provisions of LSA-R.S. 18:1409 are mandatory and failure to comply therewith renders null the judgment appealed from for not having been timely rendered. It is axiomatic that the trial court’s error in sustaining the exception which resulted in the delay cannot result in prejudice to the plaintiff.

We do find merit, however, in appellant’s contention that the trial court erred in its conclusion that as a matter of law defendant’s election would occur on the date of the scheduled primary election and he was therefore ineligible as a candidate for the office of district attorney.

Article V, § 26(A) of the Louisiana Constitution of 1974 sets forth the qualifications required of candidates for district attorney in this state. It provides that a district attorney shall have been admitted to the practice of law in the state for at least five years prior to his election and shall have resided in the district for the two years preceding election.

An understanding of the election process as set forth in the recently enacted Election Code (LSA-R.S. 18:1 et seq.), made effective January 1, 1978, is essential in order to define the term “election” insofar as it applies to the office of district attorney.

LSA-R.S. 18:451 concerns qualifications of candidates. It provides:

“A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” [Emphasis added]

Section 561 provides that a person who desires to become a candidate in a primary election shall qualify by timely filing notice of his candidacy which is accompanied either by a qualifying fee or a nominating petition. Sections 466, 467 and 468 establish the date of the qualifying periods and when they shall be opened and closed.

The changes provided in the electoral process by the new Election Code should be understood. The nature of the newly enacted open elections law is that all qualified voters of the state may vote on candidates for public office in primary and general elections without regard to the voter’s party affiliation or lack of it, and all candidates for public office who qualify for a primary or general election may be voted on without regard to the candidate’s party affiliation or lack of it. LSA-R.S. 18:401. The actual election process envisions a primary and general election.

Section 469 of the Election Code provides for reopening of qualifying periods due to the death of a candidate qualified to run in the primary election. This provision states that if a qualification period for candidates reopens within thirty days before the primary election, all votes cast in the primary election for that office are void unless no additional candidates qualify. If all votes cast in the primary election are void due to the death of the candidate, the primary election is held on the date of the general election and the general election follows later on the sixth Saturday after the primary election.

Section 511 of the Election Code states that a candidate who receives the majority of the votes cast for office in a primary election -is elected. If the primary election results in a tie vote, and the number of candidates who would be elected exceeds the number to be elected, these candidates go into a general election. If a candidate is unopposed after the close of the qualifying period, the candidate is declared elected by the people and his name does not appear on the ballot in either the primary or general election.

Section 481 provides that the candidates receiving the two highest number of votes among those not elected in the primary election qualify for the general election.

LSA-R.S. 18:512 provides that the candidate who receives the most votes cast in the general election is elected. If as a result of the death or withdrawal of one or more candidates, the number of candidates for an office in a general election does not exceed the number of persons to be elected to the office, the remaining candidates are declared elected by the people and their name shall not appear on the ballot in the general election. If a tie vote results from a general election, then there is another election on the fifth Saturday after the general election returns are promulgated.

Section 574 provides that the parish board of election supervisors shall meet at the parish courthouse within not less than three nor more than six days after a primary or general election and shall prepare compiled statements of the election returns as shown by the record of votes made by the clerk of court when the machines were opened. Before the fifteenth day after a primary or general election, the secretary of state shall publish in the official journal of the state the names of the candidates for each office in the election and the number of votes received by each as shown by the returns transmitted by the parish board of election supervisors.

LSA-R.S. 18:575 states that election returns compiled and promulgated by the secretary of state shall be the official results of a primary or general election for an office if an action contesting the election is not commenced timely. If the primary or general election is contested timely, the final judgment in the action contesting the election shall determine the result of the election. The result of the contested election shall not be official until the final judgment in the action contesting the election becomes definitive.

LSA-R.S. 18:513 provides that within thirty days after the date of the general election, the secretary of state certifies the name of each candidate elected for a full term to the appropriate official. In the case of a district attorney, sub-paragraph (5) of Section 513(A) applies and the name is certified to the governor who issues a commission to the elected official.

In his petition, plaintiff questions defendant’s eligibility as a candidate for the office of district attorney. Plaintiff thus took upon himself the burden of establishing by a reasonable preponderance of the evidence that defendant does not possess the requisite qualifications as provided in Article V, § 26 of the Louisiana Constitution of 1974, i. e., that he will not have been admitted to the practice of law in the State of Louisiana for at least five years prior to “his election.” Meyer v. State, Dept. of Public Safety Lic. Con., etc., 312 So.2d 289 (La.1975); Mix v. Alexander, 318 So.2d 130 (La.App. 4th Cir. 1975).

Our consideration of the stipulated facts of this case, in light of the Louisiana Election Code and the cited constitutional provision, prompts us to conclude that the plaintiff has failed to establish by a reasonable preponderance of the evidence that defendant’s election to the office of district attorney will occur prior to September 24, 1978, and that the trial judge erred in so holding.

A review of the Louisiana Election Code indicates the possibility of several contingencies, anyone of which would prevent the September 16, 1978 primary election from deciding who is to serve as the district attorney of the Thirty-First Judicial District. The September 16, 1978 primary election will not be decisive if the death of a candidate occurs and qualifications are reopened (LSA-R.S. 18:469), nor will the primary election be decisive if the election results in a tie vote (LSA-R.S. 18:511). Additionally, the results of the September 16, 1978 primary would be inconclusive if an election contest suit were filed, the results of the primary election being final only after judgment in the action contesting the election becomes definitive (LSA-R.S. 18:575). Arguably, these are remote contingencies, however, be that as it may, plaintiff’s burden in the instant case is to prove by a reasonable preponderance of the evidence that defendant’s election will occur prior to September 24, 1978. It is clear that plaintiff has not carried his burden of establishing that defendant will, under all circumstances, be elected prior to the fifth anniversary of his admission to the Louisiana Bar.

We believe that this conclusion and the construction which we accord to the cited constitutional provision and the Louisiana Election Law is consistent with the well recognized principle that laws governing the conduct of elections should be liberally interpreted so as to promote rather than defeat candidacy. Rich v. Martin, 259 So.2d 113 (La.App. 1st Cir. 1975), writ of certiora-ri denied.

Although unnecessary to our decision, we observe that in the instant case the results of the primary election to be held September 16, 1978 will not be official until the promulgation of the election returns by the secretary of state pursuant to the provisions of LSA-R.S. 18:574 and 18:575. This can clearly occur after September 24, 1978, defendant’s fifth anniversary of admission to the Louisiana Bar, as the cited sections provide for promulgation of the returns on or before the 15th day after a primary election and that such promulgation represents the “official” results of a primary election. It is our opinion that under any circumstances a candidate is not elected until the results are official.

For the foregoing reasons, the judgment of the district court is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at his costs.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. Rheeta HASTY.
    No. 50229.
    Supreme Court of Mississippi.
    July 12, 1978.
    Rehearing Denied July 26, 1978.
    Megehee, Brown & Williams, Raymond L. Brown, Pascagoula, for appellants.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
    Before ROBERTSON, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a decision of the Chancery Court of Jackson County, Mississippi, awarding Rheeta Hasty, plaintiff below, $125,000 for injuries she suffered in a collision between the van in which she was riding and one of appellant’s trains.

The appellant railroad company first contends that the chancellor’s action in taking jurisdiction of this matter as an attachment in chancery was erroneous and in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, since the appellant foreign corporation was fully domesticated.

The chancellor took jurisdiction of this case pursuant to Mississippi Code Annotated section 11-31-1 (1972), on the ground of the nonresidency of the appellant, a Kentucky corporation. The appellant argues that this action violated its right to equal protection of the laws because as a domesticated corporation under Mississippi Code Annotated section 79-1-23 (1972), it was “. . . to all intents and purposes a corporation of this state, and . . [was] entitled to all the rights and privileges and . . . subject to all the duties, obligations, restrictions, liabilities, limits and penalties conferred and imposed by the laws of this state upon similar corporations incorporated under the laws of this state.”

In Southern Motor Express Company v. Magee Truck Lines, Inc., 181 Miss. 223, 177 So. 653 (1938), the Court held that a foreign corporation domesticated in Mississippi was nevertheless to be considered a resident of its state of incorporation for jurisdictional purposes and was, therefore, subject to the jurisdiction of the chancery court in an attachment suit. The appellant argues that this holding denies it equal protection of the law because under section 79-1-23, it is “. . to all intents and purposes a corporation of this state . . . .”

This argument is not well taken. In Southern Motor Express Co., the Court stated:

Whatever may be the full import of the domestication statutes, we think it may be safely said that they do not operate to make two separate and distinct corporations. The foreign corporation domesticated here still remains one corporation, and it must, therefore, have its domiciliary residence in one state and not in both. Thus, it seems the more reasonable to ascribe that residence to the original state which above others has visitorial and supervisory powers over it, as well as the final authority to dissolve it. (181 Miss. at 228, 177 So. at 653).

The visitorial and supervisory powers and final authority to dissolve the corporation vested in the state of incorporation all provide a firm basis for distinguishing domesticated foreign corporations from domestic corporations for jurisdictional purposes. Therefore, we hold that the appellant was not denied equal protection in this case. See Clark v. Louisville & N.R. Co. et al., 158 Miss. 287, 304-05, 130 So. 302, 308 (1930).

Appellant next contends that its constitutional right to a jury trial was violated by the chancery court in taking jurisdiction of this case. However, this issue has previously been decided adversely to appellant and appellant has not advanced any arguments which would persuade us to overrule those cases. See Illinois Central Railroad Co. v. McDaniel, 246 Miss. 600, 151 So.2d 805 (1963); Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438 (1957); Talbot & Higgins Lumber Company v. McLeod Lumber Company, 147 Miss. 186, 113 So. 433 (1927).

The next contention of the appellant is that the chancellor erred in taking jurisdiction of this cause as “minor’s business,” because section 159 of the Mississippi Constitution does not confer upon the chancery court jurisdiction to decide facts and award damages in a minor’s tort claim for damages.

In response to one of the several pretrial motions to dismiss filed by the appellants, the chancellor observed that he had jurisdiction because the matter involved a minor and the chancery court has jurisdiction over all matters involving minors. It appears that the chancellor was relying upon section 159 of the Mississippi Constitution as authority for his statement. However, such reliance was misplaced. In the recent case of McLean v. Green, 352 So.2d 1312 (Miss.1977), we stated:

While it is true that both complainants were minors, this case neither involved nor required any equitable relief. An analysis of the case law concerning Section 159(d) clearly shows that the jurisdiction of the chancery court over minors is limited to matters involving equitable relief. The action at bar arises from a tort claim, and we have made it clear previously that courts of equity should not assume jurisdiction over claims for personal injury. Evans v. Progressive Casualty Insurance Company, 300 So.2d 149 (Miss.1974); 30 C.J.S. Equity § 28 (1965). One reason for such a rule is that historically tort claims have been tried by jury. In chancery court, with some few statutory exceptions, the right to a jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory. Our constitution, Mississippi Constitution, § 31 (1890), provides that the right to trial by jury shall remain inviolate, but in this case, the chancellor’s assumption of jurisdiction of this common law action has deprived the defendant of this right. Although we hold that the chancellor was in error, Mississippi Constitution, § 147 (1890) prevents reversal solely on the ground of want of jurisdiction. .
Despite the mandate of § 147, we look with disfavor upon and consider it an abuse of discretion for a chancellor to assume jurisdiction of a common law action which properly should be tried in a court of law where the right to trial by jury remains inviolate. But absent other error, we cannot reverse. (352 So.2d at 1314).

The appellants’ fourth assignment of error is that the chancellor based his decision upon facts which were not reflected in the record and said decision is against the overwhelming weight of the evidence. We have carefully considered the arguments advanced by the appellants in support of this assignment of error, but after a thorough review of the record, we are unable to say that the chancellor’s findings were manifestly wrong.

The final assignment of error is that the judgment of $125,000 is excessive. Appellants base this assignment on the fact that the appellee’s medical and hospital bills totaled $10,701.71 and the fact that her fractures were healing properly. On the other hand, as the appellants concede, she had a ten percent permanent partial disability of the spine and a ten percent disability of the lower left extremity and some disability of the right lower extremity. There also was uncontradicted testimony that the appellee had undergone, and was still in, considerable pain and there was evidence that she underwent a personality change as a result of the accident and psychiatric help in the future was indicated. Under the circumstances, we cannot say that the award was excessive.

For the foregoing reasons, the decree of the chancery court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . On the oral argument of this cause, the appellant raised the possibility that the attachment in chancery statute violates procedural due process, citing Miss. Chemical Corp. v. Chemical Const. Corp., 444 F.Supp. 925 (S.D.Miss.1977). However, since this issue was not briefed and since the facts of Miss. Chemical appear to differ from the facts of the case at bar, we decline to consider this issue.


text:
    Bobby F. THORPE v. Rex COSBY et al.
    No. 50452.
    Supreme Court of Mississippi.
    July 19, 1978.
    Hugh L. Bailey, Sr., Winona, for appellant.
    Campbell & DeLong, Roy D. Campbell, Jr., Roy D. Campbell, III, Greenville, for appellee.

      Before PATTERSON, C. J., BROOM and LEE, JJ., and JAMES D. HESTER, Commissioner.
   AFFIRMED.


text:
    Jeanette Fermo ROGERS v. Lawrence E. ROGERS.
    No. 50439.
    Supreme Court of Mississippi.
    July 19, 1978.
    Joe C. Webster, Clarksdale, William H. McKenzie, III, Batesville, for appellant.
    Riser & Smith, Ben Barrett Smith, Bates-ville, for appellee.
    Before PATTERSON, C. J., BROOM and LEE, JJ., and JAMES D. HESTER, Commissioner.
   AFFIRMED.


text:
    Olian James SMITH v. STATE of Mississippi.
    No. 50623.
    Supreme Court of Mississippi.
    July 19, 1978.
    Noble & Noble, James F. Noble, Jr., Brookhaven, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and WALKER, J.
   AFFIRMED.


text:
    Larry WRIGHT v. STATE of Mississippi.
    No. 50628.
    Supreme Court of Mississippi.
    July 19, 1978.
    Sidney J. Martin, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    David Wayne BOYD v. STATE of Mississippi.
    No. 50734.
    Supreme Court of Mississippi.
    July 19, 1978.
    Morgan & Price, John P. Price, G. Terrell Morgan, McComb, for appellant.
    A. F. Summer, /My. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


author: WILLIAM H. BIZZELL,

text:
    W. P. BRIDGES, Jr., et al. v. Steven L. HEIMBURGER.
    No. 50184.
    Supreme Court of Mississippi.
    July 19, 1978.

      Simmons & Simmons, Donald 0. Simmons, Gulfport, for appellants.
    Graves, Riley & Meadows, Joseph R. Meadows, Gulfport, for appellee.
    Before ROBERTSON, P. J., SUGG and WALKER, JJ., and BIZZELL, Commissioner.
   WILLIAM H. BIZZELL,

Commissioner for the Court.

This is an appeal from a decree of the Chancery Court which awarded damages for breach of warranty of title to a lot in Jackson County.

Appellants (Defendants) Bridges and Deweese formerly owned the lot. In 1967 they agreed to sell this and other lots to one Hugh H. Moore. Through mutual error the grantee in the deed was Moore Homes, Inc. but the purchase money deed of trust was executed by Moore individually. On Moore’s failure to make payment Appellants foreclosed in 1968 and repurchased at the foreclosure sale. The legal title of course remained in Moore Homes, Inc. Appellants were not aware of the error and it was not discovered by any of the successive owners and lien holders until 1974.

In 1969 Appellants conveyed this lot by general warranty deed to Doyle Homes, Inc. The record does not show either the sale price or the value of the lot at that time. Doyle Homes, Inc. constructed a home on the lot and in 1970 conveyed by general warranty deed to Appellee (Complainant) Heimburger and his wife. On the same day the Heimburgers executed a deed of trust securing an installment note in the principal sum of $30,250. Heimburger later testified that he paid $200 at closing, so apparently $30,450 represented the total purchase price of house and lot including closing costs. Thereafter and prior to this litigation his wife conveyed to Heimburger all her interest in the lot.

In February 1974 Heimburger contracted to sell the house for $36,500. A closing statement prepared for the proposed sale indicated that after mortgage pay-off, real estate commission and other closing costs his net from the sale would have been $3,493.81. The title defect was discovered in April 1974, just before the scheduled closing, and the sale was not completed. Heimburger employed an attorney and paid him a fee of $1250. The Attorney wrote a demand letter in May and filed a damage suit in June. The Bill of Complaint prayed for a judgment for money damages and attorney fees against Doyle Homes, Inc. and against Appellants Bridges and Dew-eese. Appellants filed a demurrer which was overruled, and then filed their answer. Doyle Homes, Inc. did not answer or appear.

The cause was not heard until November 1975. Meanwhile, in November 1974 a quitclaim deed was executed by Moore Homes, Inc. and Hugh H. Moore individually to Doyle Homes, Inc., thus curing the defect in title. At no time was Appellee’s possession disturbed or threatened. After the title problem arose he rented the house for a time and collected a net rental of $2600 but made no further mortgage payments. He apparently made no further serious effort to sell the house. Although at trial he gave the excuse that the lawsuit would have interfered with a sale, it is obvious that his suit for damages could not have affected the sale, rental or occupancy of the property, and after November 1974 there was no title problem. In September 1975 the property was sold at foreclosure for $33,391.00, apparently the total then owing under the deed of trust.

The evidence at the November 1975 hearing is summarized above and was not in substantial conflict. The Chancellor was of the opinion that Appellee Heimburger should recover the amount which he would have netted from the sale except for failure of title, plus reasonable attorney fee. A money judgment was entered against Defendants Doyle Homes, Inc., W. P. Bridges, Jr. and Dewitt Deweese in the amount of $3,493.81 damages plus $1250.00 attorney fee plus court costs. Defendants Bridges and Deweese appealed with supersedeas.

Any liability of Appellants Bridges and Deweese necessarily springs from their 1969 general warranty deed to Doyle Homes, Inc. Mississippi Code Section 89-1-33 (1972) provides that the word “warrant” embraces all of the five common law covenants: seizin, power to sell, freedom from incumbrance, quiet enjoyment and warranty of title. The covenant of freedom from incumbrance is not applicable here. The rules as to liability and damages for breach of the other four covenants are relatively well settled.

The covenant of seizin and the covenant of power to sell (good right to convey) are an assurance that grantor has the estate he purports to convey. These covenants technically were breached when Appellants conveyed to Doyle Homes, Inc., since the legal title was then in a third person. These covenants however are generally regarded as personal covenants, which do not run with the land. Accordingly, Appellants as remote grantors were not liable to Appellee for breach of these covenants. Green v. Irving, 54 Miss. 450 (1877); 21 C.J.S. Covenants §§ 40, 41, 63 and 64; 20 Am.Jur.2d, Covenants §§73 and 74.

The other two covenants, quiet enjoyment and warranty of title, are generally held to run with the land, so that a remote grantor may be held liable for their breach. But these two covenants are broken only by eviction or the equivalent of eviction. Green v. Irving, supra; Brunt v. McLaurin, 178 Miss. 86, 172 So. 309 (1937); 21 C.J.S. Covenants §§ 45, 47, 108, 110 and 112; 20 Am.Jur.2d, Covenants §§ 51, 54 and 97. Accordingly, if Appellee had been evicted, or if there had been a judicial determination of loss of title or some other hostile action equivalent to eviction, he might have a claim against Appellants Bridges and Deweese as remote grantors. But Appellee’s possession was never disturbed or even threatened. The evidence at trial not only showed that the flaw had been cured, but showed further that Appel-lee had originally acquired a good equitable title with right to reformation of the 1967 transaction which created the flaw. Accordingly, because there was no eviction or its equivalent, there was no breach here of the covenants of quiet enjoyment or warranty of title.

Under the foregoing general rules it appears that Appellee had no right to recover against Appellants for breach of warranty. Two other principles should be mentioned, however, which would prevent our affirming this decree. First, in all events, any liability of Appellants Bridges and Deweese would be limited to the value of the property, usually determined by sale price, at the time their 1969 deed was executed. Brooks v. Black, 68 Miss. 161, 8 So. 332 (1890); Meredith v. Pratt, 208 Miss. 412, 44 So.2d 521 (1950); 20 Am.Jur.2d, Covenants §§ 133 and 134. Apparently the lot was vacant at the time Appellants conveyed it to Doyle Homes, Inc.; there is no evidence as to value or as to consideration paid at that time.

A second reason this decree could not be upheld is that profits lost through a failure of resale, on account of some breach of a covenant, are not recoverable. North v. Brittain, 154 Tenn. 661, 291 S.W. 1071, 61 A.L.R. 6 (1927); 20 Am.Jur.2d, Covenants §§ 155 and 156. Appellee did not lose any part of his purchase money. The house cost him $30,450; its sale price at foreclosure prior to the trial was $33,391. This represents an actual gain in the total transaction, even without considering the rentals collected by him during litigation.

The foregoing opinion as to liability necessarily requires a reversal of the judgment for attorney fee. It should be added that even if Appellee were entitled to damages for breach of warranty, he would not be entitled to an attorney fee here. Brooks v. Black, supra. If Appellee’s attorney had performed services to cure or defend the title, the reasonable cost thereof might well be a proper element of damages. But a fee incurred by the Covenantee in bringing an action against the Covenantor for damages will in no instance be allowed. City of Laurel v. Bush, 238 Miss. 718, 120 So.2d 149 (1960); 20 Am.Jur.2d, Covenants §§ 152 and 153; 21 C.J.S. Covenants § 150 b.

The decree of the trial court is reversed and the Bill of Complaint is dismissed on its merits as to Defendants (Appellants) Bridges and Deweese.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.

BOWLING, J., took no part. ¡

      . Sitting pursuant to Chapter 430, Laws of 1970. The above opinion is adopted as the opinion of the Court.


author: SUGG, Justice,

text:
    C. B. WALLACE v. LaRoyce JONES.
    No. 50273.
    Supreme Court of Mississippi.
    July 19, 1978.

      Darden, Sumners, Carter & Trout, Lester F. Sumners, New Albany, for appellant.
    Price & Krohn, Robert G. Krohn, J. B. Mitchell, Corinth, for appellee.
   SUGG, Justice,

for the Court:

ON MOTION TO CORRECT JUDGMENT

The decree of the Chancery Court of Al-corn County ordering specific performance of an option contract for the purchase of land for the consideration of $22,500 was affirmed by this Court without opinion. Jones, the appellee, has filed a motion under Supreme Court Rule No. 19 for assessment of the statutory penalty of five percent prescribed by section 11-3-23 Mississippi Code Annotated (1972). In opposition to the motion, Wallace, the appellant, asserts that the statute violates the equal protection requirements of the Fourteenth Amendment to the United States Constitution. Wallace argues that the statute as applied by decisions of this Court denies litigants equal protection of the law and cites McGee v. Clark, 343 So.2d 486, 346 So.2d 914 (Miss.1977) and Bancroft v. Martin, 144 Miss. 384, 109 So. 859 (1926) in support of his argument.

In McGee the trial court ordered specific performance of an option contract involving land against the defendant, McGee. McGee appealed unsuccessfully and, on motion, five percent damages were allowed.

In Bancroft the trial court dismissed Bancroft’s bill for specific performance of an option contract involving land. Bancroft appealed and this Court affirmed. On ap-pellee’s motion for five percent damages this Court held that no penalty would be assessed because the trial court did not render a decree establishing a claim or lien on land. In his brief, Wallace states:

Jones relies upon McGee because he won. If he had lost he would be entitled to hide behind Bancroft Wallace, the man with the land, gets it in the neck either way. That is not equal justice no matter how long it has gone unquestioned.

The statute provides that five percent damages will be assessed if the judgment or decree affirmed is for: (1) a sum of money, (2) possession of real or personal property, (3) dissolution of an injunction or other restraining process involving real or personal property, (4) the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, and (5) enforcement or establishment of a lien, charge or claim upon property or some interest in property.

The statute makes no provision for the assessment of damages where a plaintiff or complainant appeals who did not obtain a judgment or decree in his favor in the trial court, but limits assessment of damages to those cases in which the judgment or decree appealed from provides for recovery in one of the five categories listed above. If a plaintiff recovers a judgment against a defendant, appeals, and the judgment is affirmed, plaintiff is assessed five percent damages on the amount of the judgment appealed from. Pearce v. Ford Motor Co., 235 So.2d 281 (Miss.1970). The statute does not discriminate against a class of litigants because all unsuccessful appellants, whether plaintiff or defendant, are subjected to five percent damages where the judgment or decree appealed from permits recovery. Consequently, the statute does not discriminate within the classes established by it and permits assessment of damages only when the judgment or decree appealed from permits recovery by one of the parties in the trial court.

We conclude that the statute as applied by our decisions does not violate the due process requirements of the Fourteenth Amendment.

Wallace next argues that' the damages should be assessed, if at all, on $10,500 instead of $22,500. With this we agree.

The option contract provided that Jones pay $22,500 for the land involved in installments and provided that if Wallace dies before all the installments became due, the remaining installments would be forgiven. At the time of the appeal Jones had paid $10,500 toward the purchase price of the property, and will not be required to pay the remaining $12,000 if Wallace dies before the remaining installments accrue. Therefore, the balance due for the purchase of the land is highly speculative and rests upon a contingency indeterminate in point of time.

In M. T. Reed Construction Co. v. Martin, 215 Miss. 472, 63 So.2d 528 (1952) we affirmed a Workmen’s Compensation award but held that the five percent damages would be limited to the installments which had accrued. No damages were allowed on installments accruing in the future because they might be terminated by the death of Martin. See also: Komp Equipment Co. v. Clinton, 236 Miss. 560, 111 So.2d 259 (1959); L. B. Priester & Son v. McGee, 234 Miss. 471, 106 So.2d 394 (1958); United States Fidelity & Guaranty Co. v. Collins, 221 Miss. 319, 96 So.2d 456 (1957); Railway Express Agency v. Hollingsworth, 231 Miss. 688, 74 So.2d 754 (1954).

We therefore conclude that the five percent damages should not apply to installments that might be terminated by the death of Wallace, but apply only to the $10,500 paid by Jones.

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

BOWLING, J., takes no part.


author: PATTERSON, Chief Justice,

text:
    John HINSON v. STATE of Mississippi.
    No. 50510.
    Supreme Court of Mississippi.
    July 19, 1978.
    Sullivan, Smith, Hunt & Vickery, Charles L. Sullivan, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

John Hinson, the appellant, was convicted of kidnapping and sentenced to ten years imprisonment by the Circuit Court of Webster County. The indictment in pertinent part charges:

• [U]pon their oath present that JOHN HENSON (sic) late of the county, aforesaid, on or about the 30th day of January 1975, in the county and state aforesaid and within the jurisdiction of this Court, did wilfully, unlawfully, felo-niously and forcible (sic) seize and confine and kidnap Charlene Hill, a human being, with the intent to cause Charlene Hill to be secretly confined against her will in violation of Section 97-3-53 of the Mississippi Code of 1972 .

A careful review of the record discloses no evidence, none at all, of secret confinement. Neither is there any credible evidence that Charlene Hill was unlawfully or forcibly restrained by the appellant. The defendant’s motion for a directed verdict at the conclusion of the state’s evidence should have been sustained.

REVERSED AND THE APPELLANT DISCHARGED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COF-ER, JJ., concur.

BOWLING, J., took no part.


author: BLOODWORTH, Justice.

text:
    SEMO AVIATION, INC., et al. v. SOUTHEASTERN AIRWAYS CORP. et al. SOUTHEASTERN AIRWAYS CORP. et al. v. DIXIE FLIGHT CENTER, INC., et al.
    SC 2755, SC 2780.
    Supreme Court of Alabama.
    May 19, 1978.
    Rehearing Denied July 21, 1978.

      Robert G. Tate and T. Thomas Cotting-ham, Birmingham, for appellants Semo Aviation, Inc., et al.
    William M. Acker, Jr., and Carleton P. Ketcham, Jr., Birmingham, for appellees and cross-appellants, Southeastern Airways Corp., Eugene Hovis and Martha Hovis.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellees, Dixie Flight Center, Inc., Art Berard and Ralph Smelzer.
   BLOODWORTH, Justice.

Defendants, Semo Aviation, Inc., a Missouri corporation, and Glenn Hopwood, President of Semo, appeal from a jury verdict for plaintiffs, Southeastern Airways Corp., an Alabama corporation, Eugene Hovis, and his wife Martha Hovis, and from a denial of motions for judgment notwithstanding the verdict or, alternatively, new trial. Plaintiffs cross-appeal from the jury verdict for defendants, Dixie Flight Center, Inc., a Tennessee corporation, Ralph Smel-zer and Art Berard, and ■ from the trial court’s denial of plaintiffs’ new trial motion in the event this Court should reverse defendants’ appeal. We affirm. Therefore, plaintiffs’ cross-appeal is moot.

Plaintiffs, Martha and Eugene Hovis, were Alabama residents at the time this lawsuit arose and were the sole stockholders in Southeastern Airways Corp., a corporation engaged in the air charter business in Double Springs, Alabama, and elsewhere. In the summer or early fall of 1974, plaintiffs sought to obtain air mail contracts from the United States Postal Service, and submitted bids on four such contracts. In October, 1974, plaintiffs were awarded two of the routes. Plaintiffs needed four additional planes to service these routes, and began to look for the additional airplanes.

In November, 1974, Art Berard of Dixie Flight Center, Inc. (an airplane brokerage firm in Memphis, Tennessee) having learned of plaintiffs’ interest in securing additional planes, telephoned plaintiff Hov-is from Memphis on at least two occasions. The testimony is in conflict as to which representations were made to Mr. Hovis in each call. However, the evidence reflects that during one of the conversations, Mr. Berard told Mr. Hovis that he had located four planes, owned by Semo, which Hovis might wish to purchase. A meeting was arranged in Memphis to discuss the matter. At that meeting, Mr. Hovis agreed, after seeing “spec, sheets” on the four planes, that the planes appeared to meet his needs. Several days later, Mr. Hovis and his attorney and a mechanic met Mr. Smelzer, President of Dixie, and Mr. Berard of Dixie in Holly Springs, Mississippi, and all flew to Malden, Missouri, to view the planes. While in Malden, Mr. Hovis met Mr. Hop-wood, president and owner of Semo, and entered into a contract to purchase the planes. There is testimony to the effect that Hovis’ agreement to purchase the planes was made upon the condition that Semo would “annual” the planes, clean them, and deliver them to Double Springs, Alabama, on November 29, 1974. There is also testimony that Hopwood agreed to do the “annuals,” while Smelzer and Berard agreed to clean the planes. Hopwood testified that Semo never agreed to perform annual inspections.

On November 29, 1974, the date the parties had agreed upon for delivery of the planes, Berard came to Double Springs to pick up the checks for the planes. At that time, Berard delivered written invoices and “spec, sheets” on the planes and copies of the bills of sale. Hovis refused to pay for the planes, however, since the planes had not been delivered. On December 2, 1974, Hovis came to Memphis, Tennessee, where the four planes were delivered, the papers were signed, and the planes paid for. Subsequent to delivery of the planes, numerous defects developed in them, which defects, plaintiffs allege, caused plaintiffs to incur various penalties and expenses and to lose the U.S. Postal Service contracts.

Plaintiffs then brought suit against the Semo defendants, as sellers and principals, and the Dixie defendants, as agents, alleging fraud and misrepresentation as well as breach of warranties. The defendants were served pursuant to Tit. 7, § 199(1), Code 1940, an Alabama “long-arm” statute. The case was tried to a jury which returned a verdict in favor of plaintiffs and against the Semo defendants for $95,000, and a verdict in favor of the Dixie defendants. After Semo’s motion for new trial was overruled, this appeal ensued.

“Long-Arm” Jurisdiction

The Semo defendants contend that the trial court did not secure in personam jurisdiction over them, pursuant to Tit. 7, § 199(1). They further contend that even if they fell within the statute’s intendment, the assertion of jurisdiction violated due process. We cannot agree.

The then applicable Tit. 7, § 199(1) provided, in pertinent part, as follows:

“Any nonresident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall do any business or perform any character of work or service in this state shall, by the doing of such business or the performing of such work, or services, be deemed to have appointed the secretary of state, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident, upon whom process may be served in any action accrued, accruing, or resulting from the doing of such business, or the performing of such work or service, or relating to or as an incident thereof, by any such nonresident, or his, its or their agent, servant or employee. And such service shall be valid whether or not the acts done in Alabama shall of and within themselves constitute a complete cause of action. . . . ”

Until quite recently, an analysis of this question would have, as Semo defendants suggest it still does today, consisted of a bifurcated inquiry. Initially, a court would decide if assertion of in personam jurisdiction over a non-resident defendant was authorized by the terms of the statute. If a court decided it was not so authorized, the inquiry would be ended, and the court would not assert jurisdiction. E. g. New York Times Company v. Conner, 291 F.2d 492 (5th Cir. 1961). Under this analysis, the question would often revolve around the issue of whether the defendant was “doing business” in Alabama or whether his action “accrued” here. See id. If, on the other hand, the assertion of jurisdiction was proper under the terms of the statute, a court would then decide whether the assertion of jurisdiction violated due process. See id.; Elkhart Engineering Corp. v. Dornier Werke, 343 F.2d 861 (5th Cir. 1965).

More recently, however, this Court as well as the Fifth Circuit has eschewed this two-step inquiry and has instead held that the scope of substituted service under the statute is as broad as the permissible limits of due process. DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala.1977); Schoel v. Sikes Corp., 533 F.2d 930 (5th; Cir. 1976). The rationale is now officially sanctioned by Rule 4.2, A.R.C.P., which brings together the various Alabama “long-arm” statutes into one rule. See “Committee Comments” to Rule 4.2.

“Alabama at present has six separate ‘long-arm’ statutes. See Tit. 7, sections 192, 193, 199, 1990/2), 199(1), 199(2), Code 1940. ARCP 4 as originally adopted, among other things, brought together these statutes in one rule. There has been great debate in Alabama legal literature relating to the scope of Alabama’s ‘longest’' longarm statute, Tit. 7, Sec. 199(1), Code 1940 and whether or not it extends as far as the due process clause allows. See, e. g., Note, Alabama’s Nonresident Jurisdiction Statutes; The Reach of the Long-Arm, 24 Ala.L.Rev. 777 (1972); Note, Conflict of Laws — The Limits of Alabama’s ‘Long-Arm’ Statute Falls Short of Those Allowed By Due Process, 20 Ala.L.Rev. 326 (1968); Harrison, Recent Trends In the Field of Conflict of Laws, 15 Ala.L.Rev. 1 (1962).
“A large part of the confusion has resulted from the ‘doing business’ language in Sec. 199(1), coupled with judicial pronouncements that Sec. 199(1) was as broad as the due process clause allowed. When considering this revised rule, some members of the committee felt that the adoption of ARCP 4.2(a) would constitute an expansion of in personam jurisdiction of Alabama courts, and therefore was without the authority of the enabling act. However, other members of the committee and -the final consensus of the committee was that since the Alabama supreme court had twice stated, and the fifth circuit has at least four times recognized, that Sec. 199(1) is as broad as the permissible limits of due process, justification for revamping this important area of Alabama law by rule existed and revision would be undertaken. See New York Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25 (1962), rev’d on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (‘The scope of substituted service is as broad as the permissible limits of due process.’); Ex Parte Martin, 281 Ala. 135, 199 So.2d 836 (1967); Elkhart Engineering Corp. v. Dornier Werke, 343 F.2d 861, 865 (5th Cir. 1965); New York Times v. Conner, 310 F.2d 133 (5th Cir. 1962). Sells v. International Harvester Co., 513 F.2d 762 (5th Cir. 1975) invokes the standard Sullivan, supra, doctrine as to the extension of Alabama’s long-arm jurisdiction to the outer limits of due process in a context where legislative definition of a transactional basis for the assertion of jurisdiction may have been absent. This revision affords adequate definition of transactional bases for assertion of jurisdiction, thus filling any void that may have existed at the time of the decision in Sells, supra.” Id.

At this time, therefore, the issue becomes, from the outset, whether the assertion of jurisdiction over the defendants violates due process. Thus, Alabama may assert jurisdiction over nonresident defendants if they have sufficient “minimum contacts” with this state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Moreover, an estimate of the inconvenience which would result to the corporation from a trial away from its home or principal place of business is relevant in this connection. Id.

“Thus, the inquiry into the State’s jurisdiction over a foreign corporation appropriately focused not on whether the corporation was ‘present’ but on whether there have been
“ ‘such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.’ ” Id., at 317, 66 S.Ct., at 158.
“Mechanical or quantitative evaluations of the defendant’s activities in the forum could not resolve the question of reasonableness:
“ ‘Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ Id., at 319, 66 S.Ct., at 160.
“Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction. The immediate effect of this departure from Pennoyer’s conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction .over nonresident defendants. See, e. g., Green, Jurisdictional Reform in California, 21 Hastings L.J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533; Developments, supra, at 1000-1008.”

Shaffer v. Heitner, supra at 97 S.Ct. 2580.

We hold that the Semo defendants did have the requisite minimum contacts. First, the agreement to buy the planes between Hovis and the defendants was entered into on the condition that the planes would be delivered in Alabama and that Hovis would use the planes to service his mail contracts here. Second, Mr. Berard of Dixie came to Alabama to pick up Hovis’ checks for the planes and to deliver the written invoices and “spec, sheets.” Third, several phone calls were made to Hovis in Alabama during the negotiation of the contract. Fourth, a number of calls were made by the defendants to an Alabama bank to help Hovis secure the necessary financing to purchase the planes. Fifth, Mrs. Hovis stated in her affidavit that Semo was flying regularly scheduled flights into Alabama pursuant to a mail contract of their own.

Agency

In order to reach such holding, of course, it is necessary that we find that there is sufficient evidence in the record to support Smelzer’s and Berard’s agency when they made the various representations and contracts with Hovis, so that Semo is bound under the doctrine of respondeat superior. This, we have no trouble doing.

In Alabama, agency is determined by the facts, and not by how the parties may characterize the relationship. Cox v. Howard Hall Company, Inc., 289 Ala. 35, 265 So.2d 580 (1972); King v. Earley, 274 Ala. 116, 145 So.2d 831 (1962). If the facts establish the relationship of principal and agent, the intention of the parties is immaterial, and the character of the relationship is not affected by an agreement between the parties that an agency does not exist, or that some other relation does exist. Cox v. Howard Hall Company, Inc., supra; Rust Engineering Co. v. State, 286 Ala. 589, 243 So.2d 695 (1971).

We think the facts in the case at bar do warrant a finding of agency by the jury. Art Berard the agent of Dixie initiated the phone call to Hovis in which he informed Hovis that he had some planes which Hovis might wish to purchase. It is undisputed that those planes belonged to Semo. It is also undisputed that during Hovis’ trip to Memphis where he met with Berard, Berard showed him “spec, sheets” on Semo’s planes. Perhaps most important of all is the fact that the written invoices delivered by Berard to Hovis in Double Springs, Alabama, bore the inscription “Dixie Flight Center as Broker for Semo Aviation, Inc.,” and were signed by Art Berard of Dixie and Gene Hovis of Southeastern.

In this regard, we think the following quotation from King v. Earley, supra, is especially apt:

“Concerning ‘brokers’ we find the following set forth in Portsmouth Cotton Oil Refining Co. v. Madrid Cotton Oil Company, 195 Ala. 256, 71 So. 111:
“ * * What was said in the case of Stratford v. City Council of Montgomery, 110 Ala. 619, 625, 20 So. 127, 128, defining a commercial broker, is accurate and apt: “A ‘broker’ is defined as ‘an agent employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation for a compensation commonly called “brokerage.” ’ Story on Agency (8th Ed.) § 28. Every broker is, in a sense, an agent, but every agent is not a broker. There are, however, so many incidents common to both relations that it is difficult to define the precise line of demarcation.” ’
“ ‘Mr. Mechem, in his excellent work on Agency (volume 2 [2d Ed.] p. 1966, § 2397), has well stated the law as to the authority of commercial brokers to bind their principals: “A broker in the ordinary case is known to be an agent acting under a limited authority. He is usually authorized to buy or sell a particular thing in specified quantities and at a limited price. He is often described in the books as a special agent, and in order to bind his principal he must keep within the limits of the authority conferred upon him. Secret or private instructions, as that term has heretofore been defined, which conflict with the usual or apparent powers will no more affect the rights of third persons who in good faith deal with the broker in ignorance of them than in the case of dealing with any other agent, though their violation may make the broker liable to his principal.” ’ ”

Is there, then, an inconsistency in the verdict? The question arises in the context of whether the verdict against the principal, Semo, and in favor of its agent, Dixie, offends the doctrine of respondeat superior. We hold it does not. The rule that a verdict cannot stand which finds against the principal and for his agent is limited to cases of vicarious liability where the principal’s liability is predicated solely on the acts or omissions of his agent. See Otts v. Gray, 287 Ala. 685, 255 So.2d 26 (1971). Where, as here, however, the principal significantly contributed to the misdeeds, if it did not entirely control the agent’s acts, this rule has no applicability.

Conflict of Laws

The Semo defendants next contend that the trial court erred in applying Alabama law to the fraud and misrepresentation counts. They contend that since this Court’s choice of law rules regarding torts is to apply the law of the place of the tort, then the trial court should have applied Tennessee law, which, they allege, is the place of the alleged misrepresentations, and which they say does not impose liability for mistaken or innocent misrepresentations. We cannot agree. Rule 44.1, A.R.C.P. requires, at a minimum, that “reasonable written notice” be given when a party intends to plead foreign law. It is stated in Moore’s Federal Practice that the reasonableness test of Rule 44.1 is similar to that employed in Rule 30 regarding the time for taking depositions, and suggests that reference be made to that discussion, viz:

“In determining the reasonableness of a notice of the taking of a deposition, the court should consider not only the question of whether there is reasonable notice to the adversary so he can appear for cross-examination, but also the closeness of the trial date. Where notice was given only a few days before the day set for trial, the court sustained a motion to vacate the notice and ordered that depositions that had been taken or might be taken could not be used at the trial. Spangler v. Southeastern Greyhound Lines (E.D.Tenn.1950), 10 F.R.D. 591, 14 F.R. Serv. 30a.31, Case 1.”

4-A Moore’s Federal Practice, ¶ 30.57[3]. It can be seen from this discussion that two very relevant factors are reasonable notice to the adversary and closeness of the trial date.

We think that where, as here, the Semo defendants raised this issue for the first time in chambers on the day of the trial, having had a number of months for trial preparation, the notice was simply not reasonable, as is required by the Rule.

Sufficiency of the Evidence

Semo defendants finally contend that there was no evidence to support a verdict in favor of Mr. and Mrs. Hovis. Again, we cannot agree. A verdict is presumed to be correct. First Southern Federal Savings and Loan Association of Mobile v. Nicrosi, 333 So.2d 780 (Ala.1976). The refusal of the trial court to grant a new trial because of the insufficiency of the evidence strengthens the presumption that the verdict is correct. Id. Where, on appeal, the sufficiency of the evidence to support the verdict is at issue, only those tendencies of evidence most favorable to the verdict are reviewed, and such inferences as the jury or court are free to draw are indulged. Id. Having reviewed the evidence in this posture, we cannot say that there was insufficient evidence to support a verdict for the Hovises. We think the evidence is more than ample to support a verdict for the Hovises. Both Mr. and Mrs. Hovis personally guaranteed the loans which they obtained to purchase the four planes. Additionally, misrepresentations were made directly to both of them by the defendants. Moreover, the financial travail caused the Hovises led to the loss of their jobs and property.

This case is, therefore, due to be and is, hereby affirmed. In view of the resolution we reach, it is unnecessary to consider plaintiffs’ cross appeal.

AFFIRMED.

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


author: PER CURIAM. ALMON, Justice EMBRY, Justice

text:
    Kenneth HANSON v. Elton COUCH and Moore Business Forms, Inc.
    SC 2619.
    Supreme Court of Alabama.
    June 16, 1978.
    Rehearing Denied July 14, 1978.

      Charles Y. Boyd, of Rhea, Boyd & Pitts, Gadsden, for appellant.
    Eugene D. Martenson, of Huie, Fernam-bucq, Stewart & Smith, Birmingham, for appellees.
   PER CURIAM.

This is an appeal by Kenneth Hanson from a judgment entered in favor of defendants Elton Couch and Moore Business Forms, Inc., pursuant to an order of the trial court granting defendants’ motion for judgment notwithstanding the verdict.

Hanson filed suit against Couch and Moore Business Forms seeking damages for malicious prosecution. The complaint alleged that Couch, acting as an agent of Moore Business Forms, caused a warrant to issue against Hanson for the malicious destruction of private property; that the case was “no billed” by the grand jury; and that the action was commenced and prosecuted by defendants maliciously and without probable cause. Couch and Moore Business Forms answered generally, denying the allegations of the complaint.

Trial was before a jury and at the conclusion of the evidence Couch and Moore Business Forms moved for a directed verdict. The motion was denied, the case went to the jury, and a verdict was returned in favor of Hanson in the amount of $75,000. Thereafter Couch and Moore Business Forms filed motion for judgment notwithstanding the verdict or, in the alternative, new trial. The trial court granted judgment notwithstanding the verdict, stating in its order:

“The Court finds that there were no disputed facts in this case and that all facts were presented to the attorneys for advice prior to initiating criminal action against plaintiff. The law is that full disclosure of the facts to an attorney and reliance on advice from him negates want of probable cause. Lewis v. Dothan Drug, 247 Ala. 279 [24 So.2d 119]; Bell v. Seals Piano & Organ Co., 201 Ala. 428 [78 So. 806]; Crimm v. Crimm, 39 Ala.App. 413 [101 So.2d 845],
“Where the facts are undisputed, and in this case consisted of a film which was viewed, the question of probable cause is to be determined by the Court.
“Roughton v. Jackson, 33 [37] Ala.App. 17 [64 So.2d 112]. The Court so determines there was probable cause from viewing the film.
“It is ORDERED that said motion of defendants be, and it hereby is granted; and judgment heretofore entered in favor of the plaintiff and against the defendants is hereby vacated and set aside.
“It is further ORDERED the judgment for defendants shall be entered by the Clerk.”

From the entry of that judgment, Hanson perfected this appeal. Couch and Moore Business Forms filed a cross appeal, challenging the trial court’s failure to rule on their alternative motion for new trial.

This action arose from a prolonged labor dispute between Moore Business Forms and its employees. Hanson, an employee of Moore Business Forms, was considered a spokesman for the striking employees. The incident which led to the issuance of the warrant occurred on the morning of March 28, 1974, when a tractor-trailer truck owned by Moore Business Forms tried to deliver products at its Heflin, Alabama, plant site where a picket line had been set up by the striking employees. On this occasion air hoses and electrical cables between the tractor and trailer were cut. Some of the events were filmed by a cameraman hired by Moore Business Forms.

The dispositive question on this appeal is whether the trial court erred by entering the order granting judgment notwithstanding the verdict in favor of the defendants Couch and Moore Business Forms.

A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ala.R.Civ.P. 50, Committee Comments. Granting the motion for judgment notwithstanding the verdict says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the proper judgment. 5A Moore’s Federal Practice ¶ 50.07[2], at p. 50-76.

When reviewing the propriety of a trial court’s order granting a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party who secured the jury verdict. Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir. 1976); White v. Packer, 345 So.2d 312 (Ala.Civ.App.1977). See Justice Maddox’s dissent in Bethune v. City of Mountain Brook, 336 So.2d 148, at p. 151 (Ala.1976). Such motion should be denied if there is any conflict in the evidence for the jury to resolve and the existence of such conflict is to be determined by the scintilla rule. White v. Packer, supra; McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

With these principles in mind, we proceed to address the following questions raised on appeal:

1. Did the trial court err in finding reliance on advice of counsel a complete defense; and

2. Did the trial court err in ruling on the question of probable cause as a matter of law?

We answer both questions in the negative and therefore affirm the decision of the trial court for the reasons hereinafter discussed.

I

Advice of Counsel

It is well settled in this state that advice of counsel, honestly sought and acted on in good faith, supplies an indispensable element of probable cause for legal action and is a complete defense to an action for malicious prosecution. Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969); Broussard v. Brown, 353 So.2d 804 (Ala.Civ.App.1978). To prevail on this defense, it must be shown factually that the attorney’s advice was given on a full and fair statement of all the facts and circumstances known to the prosecutor, in this instance, Couch. Birwood Paper Co. v. Damsky, supra; Broussard v. Brown, supra.

A review of the record shows that Couch sought the advice of two attorneys employed by Moore Business Forms prior to initiating the criminal action against Hanson. Couch testified that both attorneys “had viewed the film and the evidence and made this decision” that Couch had just cause to swear out the warrant against Hanson. The attorneys themselves testified that they viewed the film several times and researched the legal issues involved before advising Couch concerning the warrant. One attorney further testified that he consulted with Couch concerning Hanson’s conduct during the time of the cutting of the air hoses and talked personally with witnesses who later testified at the trial of this cause about the events in question prior to giving his advice to Couch.

Thus we believe that the evidence clearly shows that Couch provided his attorneys with the relevant facts of which he had knowledge concerning the hose-cutting incident leading to the warrant.

II

Probable Cause

Hanson secondly contends that the trial court committed reversible error in finding the evidence on the issue of probable causé undisputed and determining, as a matter of law, that probable cause arose from viewing the film. Therefore, on this aspect of the appeal, we focus primarily on whether the trial court could rule on the issue of probable cause as a matter of law.

Probable cause, as the term is used in malicious prosecution actions, is defined as:

“ ‘. . . such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.’ ”

Birwood Paper Co. v. Damsky, supra, 285 Ala. at p. 134, 229 So.2d at p. 521. Consequently, this court has found that the question in an action for malicious prosecution arising from a criminal charge is whether the defendant, at the time he instituted the prosecution, had probable cause to believe that the accused was guilty. S. S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977); Gulsby v. Louisville & Nashville R.R. Co., 167 Ala. 122, 52 So. 392 (1910).

In Key v. Dozier, 252 Ala. 631, 634, 42 So.2d 254, 256 (1949), this court said:

“. . [I]f the facts on the issue of probable cause are not in dispute, whether such facts amount to probable cause is a question of law for the court. . But it is equally true that if the facts or any necessary particular fact on the issue of probable cause is in dispute, then there must be a submission to the jury to find the facts.” (Citations omitted.)

Thus, the issue raised here is whether material facts showing the existence of probable cause at the time of the institution of criminal proceedings by Couch against Hanson were in dispute so as to require a determination by the trier of facts, the' jury. We think not. The film established probable cause for the issuance of the warrant. We therefore find that the trial court could properly rule as a matter of law that the proof in the present case showed probable cause at the time of the decision to swear out the warrant against Hanson.

For the reasons stated above, we think the evidence in this action on both issues raised was so conclusive as to allow the trial court to set aside the verdict of the jury and substitute its own judgment in lieu thereof. Accordingly, the judgment in favor of Couch and Moore Business Forms entered pursuant to the order granting their motion for judgment notwithstanding the verdict is affirmed.

The Cross Appeal

According to Rule 50(c)(1), Alabama Rules of Civil Procedure, if a motion for judgment notwithstanding the verdict is granted:

“. . . the [trial] court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. . . . ”

As is evident by the trial court’s order set forth earlier in this opinion, the trial court failed or declined to rule on the defendants’ alternative motion for new trial. Where the trial court has failed to rule on the motion for a new trial, one alternative is to remand the case in order for the trial court to make such a ruling. White v. Packer, supra. However, in light of the decision herein reached, we see no useful purpose to be accomplished by such action in this case.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH and MADDOX, JJ., concur.

ALMON, J., concurs specially, with whom SHORES, J., joins.

EMBRY, J., dissents, with whom FAULKNER, JONES and BEATTY, JJ., join.

ALMON, Justice

(concurring specially):

I concur in Part II of the opinion and in the result of the case.

SHORES, J., concurs.

EMBRY, Justice

(dissenting):

I respectfully dissent.

Advice of Counsel

It is well settled in this state that advice of counsel, honestly sought and acted on in good faith, supplies an indispensable element of probable cause for legal action and is a complete defense to an action for malicious prosecution. Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969); Broussard v. Brown, 353 So.2d 804 (Ala.Civ.App.1978). To prevail on this defense, it must be shown factually that the attorney’s advice was given on a full and fair statement of all the facts and circumstances known to the prosecutor, in this instance, Couch. Birwood Paper Co., supra; Broussard, supra.

Hanson challenges the trial court’s finding that all facts were presented to the attorneys resorted to by Couch for advice prior to initiating the criminal action against Hanson. He contends the record contains evidence which conflicts with the trial court’s finding; and he cites Couch’s testimony as an example of such. I agree.

Couch testified that after the air hose cutting incident, he sought the advice of two attorneys employed by Moore Business Forms and was advised by both that he had just cause to swear out the warrant against Hanson. However, Couch further testified he did not go over with the attorneys the facts about what he did, or did not, see on the occasion on which the warrant was based. The following is an excerpt from Couch’s testimony to this effect:

“Q. Now, did you go over these facts, as you have related to us today, about who you saw out there, and what you did or did not see?
“A. No.
“Q. Oh, you didn’t relate that to the attorneys?
“A. He saw the film just like we did; he viewed the film.
“Q. Then, are you telling us this whole warrant was sworn out just on that film ?
“A. Yeah.”

I find Couch's testimony sufficient, under the scintilla rule, to create a question for the jury and sufficient to support its verdict. Prior cases of this court have long held “ * * * whether a full and fair statement of the facts was made to counsel, is usually one for the jury. * * * ” Abingdon Mills v. Grogan, 175 Ala. 247, 57 So. 42 (1911). The reason for the rule was aptly stated by the Court of Appeals in Alabama Dry Dock & Shipbuilding Co. v. Bates, 33 Ala.App. 81, 30 So.2d 273 (1947):

“This is indeed a sound and reasonable rule. Should the jury be deprived of passing on this matter, the defense of ‘advice of counsel’ could be made an unfair and unfounded excuse for unwarranted prosecutions.”

Finding, as I do, that this was a proper jury question and the verdict supported by evidence, I say, the trial court erred in finding that all the facts were presented to the attorneys.

Probable Cause

Hanson contends the trial court committed reversible error in finding the evidence on the issue of probable cause undisputed and determining, as a matter of law, there was probable cause from viewing the film.

Probable cause, as used in malicious prosecution actions, is defined as:

“ ‘ * * * such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.’ * * * ” Birwood Paper Co. v. Damsky, supra.

On this aspect of the appeal, I focus primarily on whether the trial court could rule on the question of probable cause as a matter of law.

In S. S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977), this court said:

“Where evidence of the lack of probable cause is presented by plaintiff and the facts of the case are not in dispute, a question of law is presented to be decided by the court, (citations omitted). However, where the material facts are disputed, the issue of probable cause must go to the jury, (citations omitted) * * * ” (emphasis added)

Thus, the issue raised is whether material facts showing the existence of probable cause were in dispute so as to require a determination by the trier of facts, the jury. I think so.

Ever mindful that we search only for a scintilla of evidence in support of the theory of the complaint to sustain the jury verdict, I do not think the trial court could properly rule, as a matter of law, the proof in the instant action showed probable cause.

The trial court was of the opinion the film, in and of itself, established probable cause. However, this does not negative the existence of disputed facts on this issue. Again I resort to the testimony of the prosecutor, Couch, who viewed the film. Couch gives this account of the content of the film:

“Q. Did Mr. Hanson appear in that film?
“A. He did.
“Q. Did that film show him doing anything with those hoses?
“A. No.
“Q. It did not?
“A. (Witness shakes head from side to side)
“Q. Did it show him touching those air hoses?
“A. No, not that I could tell.
“Q. Well, did it show him climbing up on the back of that truck?
“A. No.
“Q. Did it show him with a knife?
“A. No.
“Q. Well, did it show him doing anything to that truck?
“A. It showed him being in a position.
“Q. It showed him in a position?
“A. Between the truck and trailer, or tractor and trailer.
“Q. Now, what do you mean by position?
“A. He was walking along between the tractor and trailer.
“Q. Well, now, who else does it show out there at the scene?
“A At the scene?
“Q. Yeah, around that tractor?
“A. It showed a number of people.
“Q. About how many people?
“A. I guess about twelve or fifteen.
“Q. Well, did any of these people walk along between the tractor and the trailer?
“A. Nobody except Mr. Hanson.
“Q. He is the only one that walked out there?
“A. That is correct.
“Q. Where were the rest of the people?
“A. There were on the other side of the tractor.
“Q. Does this film show him reach out and grab a hose, or reach out and cut a hose, or anything?
“A. No.”

Add to this Hanson’s testimony:

“Q. Did you ever do any damage to any electrical_I mean, any kind of cables, or anything out there?
“A. No, sir, I didn’t.
“Q. Did you ever touch those cables?
“A. No, sir.
“Q. Now, did you ever have a knife out there?
“A. No, sir.”

Considering this evidence I conclude the trial court erred in ruling, as a matter of law, there was probable cause after the jury had found otherwise. That erroneous ruling precluded Hanson from relitigating one of the essential elements of his cause of action: probable cause.

For the reasons stated above, I do not think the evidence in this action, on either issue raised, was so conclusive as to allow the trial court to set aside the verdict of the jury, and, in place thereof, substitute its own judgment. I would reverse and remand.

The Cross Appeal

In view of the majority opinion I need not address the questions presented by the cross appeal.

FAULKNER, JONES and BEATTY, JJ., concur.


author: ALMON, Justice.

text:
    Mary Jeanelle Grimes TURNER and Benjamin Howard Grimes as Executors of the Estate of Mrs. Ida L. Grimes, Deceased, etc. v. The COUNTY BOARD OF EDUCATION OF DALE COUNTY, Alabama, and The Ozark City Board of Education.
    77-31.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied July 21, 1978.

      Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellants.
    Euel A. Screws, Jr., Montgomery, for ap-pellee, The County Board of Education of Dale County, Alabama.
    C. R. Lewis of Lewis & Hornsby, Dothan, for appellee, Ozark City Board of Education.
   ALMON, Justice.

Appellants, Mary Jeanelle Grimes Turner and Benjamin Howard Grimes, individually and as executors of the estate of Ida L. Grimes brought an action seeking specific performance of a covenant in a deed or in the alternative damages. The suit was filed against the County Board of Education ' of Dale County and the Ozark City Board of Education, appellees.

The case was tried without a jury. At the close of the appellants’ case the court entered judgment for the appellees on the grounds that the claim was barred by the statute of limitations and there was no consideration for the covenant. We affirm.

On July 8, 1961, Ida L. Grimes gave an option to purchase approximately twenty-five acres of land to the Dale County Board of Education. The option was exercisable by paying $8,000.00 within thirty days.

On August 5,1961, Mrs. Grimes executed a deed to the Dale County Board of Education conveying the land. The deed recites as consideration $8,000.00 and the following:

“It is understood that, as part of the consideration of this deed, grantee is to construct or have constructed a road across the East and North sides of the lot herein to be of a minimum width of sixty feet; . .
“It is further agreed, that in the event Grantee fails to begin construction of a school building on the above-described lot within two (2) years from the date of execution of this deed, then Grantee shall re-convey title to the above lot to Grantor upon re-payment of the purchase price above set out and the additional expenses incurred by Grantee in attorneys’ and Engineer’s fees.”

East Gate Junior High School was constructed on the property in 1962. The Ozark City School Board now owns the property, receiving it from Dale County School Board by deed dated June 15, 1965.

Mrs. Grimes died on April 13, 1973, survived by two children, the appellants. The road in question was never built. Appellants commenced this lawsuit on May 28, 1975.

The issues in this case are: (1) had the statute of limitations run by the time appellants filed suit, and, if so, (2) should the doctrine of equitable estoppel apply to prevent appellees from asserting the bar. Because we find that the suit is barred by the statute of limitations we express no opinion on whether the covenant was supported by consideration.

This cause is governed by a ten-year statute of limitations. Tit. 7, § 20, Code of Alabama 1940, Recompiled 1958. The statute of limitations begins to run from the time the plaintiff’s cause of action accrues. The accrual of a cause of action occurs as soon as the party aggrieved is entitled to begin a prosecution thereon, e. g., Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (1976).

Mrs. Grimes could not bring suit until a violation of the covenant occurred. Although the deed fails to establish a time of performance of the covenant, in McKee v. Club-View Heights, Inc., 230 Ala. 652, 162 So. 671 (1935), the court stated:

“It is familiar law, that where a contract or conveyance expresses no time for the performance of an act contemplated by such contract or conveyance, a reasonable time is implied. What constitutes a reasonable time depends upon the subject matter, the nature of the act to be performed, and the situation of the parties. If the facts are undisputed, the question is one of law for the court. If the facts are in dispute and the question rests in inference, it is one of fact. [Citations omitted.]” 230 Ala. at 655, 162 So. at 674.

The trial court ruled that a reasonable time to begin construction of the road occurred prior to the passage of three years and nine months; between August 5, 1961 (the date of the deed) and May 28, 1965 (ten years prior to the date suit was filed). We quote from the court’s decision:

“In determining what is a reasonable time, this depends upon the subject matter, the nature of the act to be performed and the situation of the parties. And also, I think, in dealing with what is a—since you’re dealing with the word reasonable as to time, you can also deal with the word reasonable as to people. What would a reasonable ordinary prudent person under the circumstances think a reasonable time to perform would be. In this particular case, the deed was signed on August 5th, 1961. From August 5th, 1961 to May 28th, 1965, is approximately three years and nine months. During that period of time, the school was started and completed. No one ever began any construction on the road. It is the judgment of that Court—of this Court that three months and nine years [sic] during that period of time a reasonable prudent person would have realized that there had been a breach of the contract and that a cause of action would have arose, and that the agreement to—covenant to build a road, if, in fact, it was an obligation of the County School Board or later on the City School Board, was not some event that was supposed to occur ten or fifteen years later. That it was an event that a reasonable person would have assumed would have occurred, at least, within three years and nine months from the execution of the deed especially considering the fact that the school was built and nothing at all transpired—transpired concerning the road.”

We have reviewed the evidence and are in accord with the court’s finding of what constituted a reasonable time to begin construction of the road.

Appellants also claim the appellees are estopped to assert the statute of limitations as a bar to the suit. They maintain the appellees gave assurances to Mrs. Grimes calculated to lull her into inaction, and to postpone her taking action in respect to the construction of the road.

Appellants rely on City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), wherein the City of Montgomery was es-topped to set up as a defense to a suit by Weldon that the plaintiff had failed to comply with the statutory requirement of filing a verified claim within six months because agents of the City had assured Weldon that his claim was sufficiently filed and perfected and urged him not to hire an attorney or to take action for a year. 280 Ala. at 466, 195 So.2d 110.

There is evidence of correspondence between Mrs. Grimes’ attorney, John T. Dawson, and Charles L. Woods, attorney for the Ozark City School Board. Mr. Dawson wrote a letter dated December 22, 1972, notifying the city school board of Mrs. Grimes’ intentions to pursue legal remedies, if necessary to enforce the covenant. Mr. Woods responded by letter dated February 26, 1973, indicating that the proposed road, if built, would violate the city plan and the City Planning Commission would not approve its construction. Mr. Woods suggested two alternatives to settle “this long overdue covenant;” either release the covenant for monetary damages, or for Mrs. Grimes to sell the balance of her land to the school board with the sale price including a release of the covenant.

Mr. Dawson wrote Mr. Woods a letter dated June 28, 1974, stating that a need exists to determine the amount of damage to his client and, at Mr. Woods’ request, he would wait thirty days for an offer from the school board before instituting legal action. By letter dated July 22, 1974, Mr. Woods stated that the school board did not want to make an offer of settlement until the City Planning Commission had made an official decision. The letter states:

“If we are able to obtain the approval of the Ozark Planning Commission for a proposed street, then we would probably be in a position to move forward in that direction. On the other hand, if they are refused any action by the Planning Commission of the City of Ozark toward building a proposed street they would then be in a position to make at least some offer of settlement .

The letter further states that an official answer from the Commission should be forthcoming within two weeks and requests that no action be taken by Mr. Dawson’s clients for at least three weeks. The record does not reveal when, if ever, the Commission announced its official decision. Over ten months later, suit was filed on May 28, 1975.

These facts are distinguishable from those in Weldon. We have examined the evidence in light of recognized principles governing estoppel to assert the statute of limitations and conclude they are not sufficient to invoke the doctrine. See 130 A.L.R. 8 and 24 A.L.R.2d 1413.

It is of particular significance that the appellants had employed counsel who were negotiating a settlement with counsel for one of the appellees at a time prior to the running of the statute of limitations.

To hold that the doctrine of estoppel is applicable to this and similar situations would establish an unsound precedent.

The appellants further contend the court was in error for sustaining objection to certain testimony of witnesses W. W. Whittle and A. M. Turner., Appellants assert that this evidence was excluded because of the dead-man’s statute. Tit. 7, § 433, code of 1940, Recompiled 1958.

After reviewing the record it is clear that the court correctly excluded portions of the witnesses’ testimony as hearsay.

The excluded testimony would have tended to show why Mrs. Grimes sold the property and that she sold it at a greatly reduced price. Presumably this was to show the importance of the road to Mrs. Grimes.

Assuming the evidence to have been admissible we fail to see the relevance to the statute of limitations issue. Rule 45 ARAP.

The judgment is affirmed.

AFFIRMED.

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


text:
    Carl and Thelma CRAPPS v. B. W. BOYD.
    SC 2572.
    Supreme Court of Alabama.
    July 21, 1978.
    Phil A. Laird and Henry C. Wiley, Jr., of Elliott, Laird & Wiley, Jasper, for appellants.
    Hugh Beaird, of Selman, Beaird & Sel-man, Jasper, for appellee.
   ALMON, Justice.

The Crapps appeal from a judgment of the Circuit Court which establishes a common property line between the Crapps and Boyd. We affirm.

The Crapps instituted this action to establish the boundary line in accordance with the description in their deed. Boyd filed an answer and counterclaim, praying that the line be established according to the description in his deed and claim of adverse possession. Both descriptions were inexpertly drawn and attempt, e. g., to define a meandering line in three separate forty acre tracts of land.

The primary contention of error is the inaccuracy of a survey which the trial court relied upon in part to fix the boundary line. We agree that the survey is inaccurate, however, there was ample evidence of Boyd’s adverse possession of the lands decreed to him. This is a case where perhaps no one is absolutely certain of the line. The trial judge was called upon to fix the line. He did so, after a personal inspection, and we cannot say he is incorrect.

We have examined the voluminous testimony in the record and the evidence supports the trial court’s judgment. Cameron v. Cain, 295 Ala. 164, 325 So.2d 157 (1976); Casey v. Keeney, 290 Ala. 94, 274 So.2d 68 (1973).

The judgment is hereby affirmed.

AFFIRMED.

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


text:
    Charles Edward BARNES v. Norman Eugene TARVER and American Motorist Insurance Company, a corporation, and Liberty Mutual Insurance Co., a corporation.
    SC 2585.
    Supreme Court of Alabama.
    July 21, 1978.

      B. F. Stokes, III, of Gibbons, Stokes & Clark, Mobilé, for appellant.
    James J. Duffy, Jr. and John N. Leach, Jr., Mobile, for American Motorist Ins. Co., appellee.
    Michael D. Knight, Mobile, for Liberty Mut. Ins. Co.
    Charles S. Street, Mobile, for Norman Eugene Tarver.
   ALMON, Justice.

Appellant Barnes brought a negligence action against Tarver for personal injuries. Barnes, a pedestrian, was hit by an automobile driven by Tarver.

Tarver was uninsured. Barnes is insured under his insurance policy issued by American Motorist Insurance Company, and under an insurance policy issued by Liberty Mutual Insurance Company to Poole Truck Line, Inc.

Barnes amended his complaint to add American Motorist and Liberty Mutual, Ap-pellees, as additional parties defendant seeking to recover under the uninsured motorist provisions of the policies. After answering the complaint, the two insurance companies filed a cross-claim against co-defendant Tarver for any payments they were liable to pay Barnes. These cross-claims were based on the insurance companies’ right of subrogation provided for in the insurance contracts.

The accident occurred around 6:00 P.M. on November 17, 1974, in front of Barnes’ house. He lived in Calvert, Alabama, on U. S. Highway 43. At that time Barnes was a truck driver and owned a tractor-trailer which he leased to Poole Truck Line, Inc. The rig was parked across the two-lane highway from his home. While sitting in his living room, Barnes saw a fire in or under his truck. He went outside to investigate and while crossing the highway was struck by an automobile driven by Tarver.

The jury, after considering evidence of negligence and contributory negligence, returned a verdict for defendant Tarver. Judgment was also rendered by the court for Tarver on the cross-claim filed by American Motorist and Liberty Mutual.

Barnes complains that the trial judge erroneously charged the jury on the subrogation rights of the insurance companies. He objected to the following portion of the oral charge:

“The last issue is that the Defendant Tarver had no liability insurance available; that he was an uninsured motorist. All right, lastly I must tell you this that in the event the uninsured motorist coverage is available to the Plaintiff in this case the Defendants American Motorist Insurance Company and the Liberty Mutual Insurance Company would be entitled to a judgment against the Defendant Tarver up to the limit of their respective uninsured motorist coverage. In other-words [sic], you have a situation of where under the terms of their agreement, their contracts with the Plaintiff, they would be substituted to the extent and limits of their liability for the Defendant’s liability to the Plaintiff if you determine and then — .”

Although the court mentioned the issue of subrogation, it was not submitted to the jury for its decision. The court admonished the jury not to consider the ultimate impact that uninsured motorist coverage or subro-gation might have on the parties, but to consider and decide solely the issue of Tar-ver’s liability to Barnes. We quote from the court’s charge:

“The first thing I am going to do is to, I will give you the evidence in this case which you will take to the jury room with you. I am going to give you a verdict form and this has only to do with whether or not Charles Edward Barnes recovers against Norman Eugne Tarver for personal injuries. I don’t want you to think one thing about this uninsured motorist’s coverage in this deliberation and then when you return a verdict to me, I will decide at that time whether to send you out again and ask you to answer yes or no to one question which I shall ask you. At that time — I don’t want you to be concerned with that now. I want you to retire and consider your verdict as to whether for or against the Defendant Tarver on the count of the accident which occurred at the time and place which has been testified to you.”

Nevertheless, it is contended that the instruction was error because the insurance companies were not subrogated to the rights of Barnes. Two reasons are asserted for this proposition: (1) the insurance companies denied Barnes’ claim, thereby waiving their rights of subrogation, and (2) payment of a claim by the insurance companies is a condition precedent to the right of the insurer to become subrogated.

There was no evidence that the insurance companies denied Barnes’ claim other than the fact that the insurance companies were party defendants. This was not an issue in the lawsuit.

There is no allegation that Barnes submitted a claim which was denied nor was evidence adduced to that end. Furthermore, the nature of uninsured motorist coverage distinguishes this case from the case Barnes relies on, Poole v. William Penn Fire Ins. Co., 264 Ala. 62, 84 So.2d 333 (1955).

In Poole the action was by Poole against a fire insurer to recover the loss of an ambulance caused by a tort-feasor. Poole filed a claim which the insurer denied. Poole sued the tort-feasor, received $3,000.00, and executed a release. Poole then instituted a suit against its insurer on the policy. The insurer claimed the suit was barred because (1) the release executed by Poole cut off insurer’s subrogation rights, and (2) the consideration for the release amounted to full coverage of the policy and constituted a discharge of insurer’s liability. The court held that the denial of the claim by the insurer waived its right to subrogation and Poole’s action on the policy was not barred. The court noted it was the insurer’s own conduct which forced Poole to proceed against the tort-feasor to save himself. 264 Ala. at 66, 84 So.2d 333.

The right of the insured in Poole to the benefits of the policy depended in no way upon the legal liability of the tort-feasor. The right of Barnes to recover against the insurance companies under uninsured motorist coverage depends upon the legal liability of Tarver to Barnes. State Farm Mutual Ins. Co., Inc. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973); Widiss, Uninsured Motorist Coverage, § 2.17, p. 40 (1969). Every jurisdiction which has considered the issue holds that the burden of proving entitlement to coverage under an uninsured motorist endorsement is upon the claimant. See, e. g., Widiss, supra, and § 2.18 (1976 Supplement). The Court of Civil Appeals is in accord. State Farm Mutual Ins. Co., Inc. v. Griffin, supra.

We hold under these facts that mere participation in the trial by the insurance companies when joined in the suit by the claimant does not amount to a denial of liability which thereby waives their right of subrogation. Once drawn into the trial, the insurance company is not bound to sit idly by, unable to defend itself. See Oliver v. Perry, 293 Ala. 424, 304 So.2d 583 (1974).

Likewise, Barnes’ contention that it is error to submit to the jury the issue of subrogation prior to payment by the insurance company is without merit. Barnes relies upon the language of the opinion of the court in Aetna Ins. Co. v. Hann, 196 Ala. 234, 72 So. 48 (1916), to the effect that:

“Before subrogation or substitution can be decreed, or the right thereto declared to exist, the insurer must have paid the insured his loss according to the contract.” 196 Ala. at 240, 72 So. at 51.

While there is no disagreement that the court in Aetna correctly stated the substantive law, its application to this case is misconceived. The claim asserted by American Motorist and Liberty Mutual against Tar-ver is a cross-claim allowed by Rule 13(g), ARCP. Although this procedural device accelerates the issue of liability in respect to the time required for adjudication of the rights of the parties, it does not impinge upon their substantive rights. The right to the insurer’s subrogation is dependent upon its liability to Barnes, which in turn is dependent upon Tarver’s liability to Barnes. The resolution of all these issues in one lawsuit does not abridge Barnes’ substantive rights. In fact, the power of the court to decide in one lawsuit the issues of the insurer’s subrogation and liability on a policy of insurance was recognized long before the adoption of the Rules of Civil Procedure. Liverpool & London & Globe Ins. Co. v. Federal Land Bank of New Orleans, 233 Ala. 591, 173 So. 91 (1937). In so holding, the court in Liverpool distinguished Aetna Ins. Co. v. Hann, supra, 233 Ala. at 593, 72 So. 48.

We are aware of the rule that the presence of insurance coverage is not ordinarily permitted to be injected into the trial of the case. However, in this case Barnes, the party who complains on appeal that insurance coverage was erroneously injected into the trial, is the party responsible for the fact and therefore cannot rightfully assert that fact as error. Although the insurers’ cross-claims were procedurally allowable, the trial of such issues in one case is not required. The desire of judicial efficiency is not an end unto itself. If the trial of issues joined by Rules 13 and 14 will prejudice the rights of parties to the suit, Rule 42(b) provides a procedure to try the claims separately. No such motion was made by Barnes.

Barnes further contends that the trial judge failed to comply with Rule 49(d) ARCP. We consider this question to be moot. Because the jury found for defendant Tarver there was no need to submit to the jury the question of subrogation. Thus, interrogations were not submitted to the jury.

The judgment is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, J J. concur.

      . Tit. 36, § 74(62a), Code of Ala. 1958, Recompiled, (§ 32-7-23, Code of Ala. 1975), provides that uninsured motorist coverage is for the protection of persons who have such coverage and “who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom . . ”