author: HOLMES, Judge.

text:
    NATIONAL SECURITY FIRE AND CASUALTY CO. v. John W. MINCHEW and Merchants Bank of Jackson.
    Civ. 1557.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.
    Bert S. Nettles and Robert H. Allen, Mobile, for appellant.
    Taylor D. Wilkins, Jr., Bay Minette, for appellees.
   HOLMES, Judge.

This is an insurance case.

The dispositive issue on appeal is whether the plaintiff-Minchew had an insurable interest in the destroyed property. We find the trial court’s conclusion that the plaintiff had an insurable interest is supported by the evidence. However, there is not sufficient proof as to the amount of damages and we must affirm conditionally.

The record reveals that the plaintiff obtained a policy of insurance from the defendant insurance company. The policy covered a dwelling house and its contents for loss from fire. The dwelling house and contents were destroyed by fire. The insurance company refused to pay the plaintiff for the loss and suit was brought by the plaintiff against the defendant on the policy. The trial court, after an ore ten us hearing, found for the plaintiff and the defendant-insurance company appeals.

It is the insurance company’s position that the plaintiff did not have an insurable interest in the property at the time of the loss. The defendant-insurance company bottoms its contention on the general premise that prior to the loss, the plaintiff, in a divorce proceeding conveyed his interest in the property to his ex-wife and, therefore, the plaintiff had no insurable interest.

Viewing the evidence as presented to the trial judge with the attendant presumption of correctness, we find the following:

In 1974, the plaintiff and his wife were divorced. By the terms of the decree, all of the plaintiff’s interest in a dwelling house were conveyed to his wife. Thereafter, in 1975, the plaintiff purchased the policy which is the basis of this suit. In 1977, the dwelling and contents were destroyed by fire.

Immediately after the divorce, in 1974, the parties continued to live together. In fact, the evening of the divorce the plaintiff and his wife went for “steaks” with friends. Thereafter, they continued to live together in the dwelling destroyed by the fire and were living together at the time of trial. Put another way, there was evidence that the divorce did not affect their living together and relationship. In fact, there is some inference that the divorce improved their “marriage.”

Both parties testified they recognized each other as husband and wife after the divorce. The following is found in the record:

“Q Did you recognize her as your wife after this divorce?

“A I sure did. Me and her live happy.”

While there is a paucity of evidence regarding a common-law marriage, we find there is sufficient evidence and the reasonable tendencies therefrom to support the trial court’s apparent conclusion that there was such a marriage after the divorce.

It is well settled law in this state that common-law marriages are valid where (1) the parties have capacity to enter into the marital relationship, (2) there is a present agreement between the parties to be husband and wife, and (3) the parties consummate the marriage. Piel v. Brown, Ala., 361 So.2d 90 (1978).

In the case before us there is apparently no disagreement between the parties concerning the elements of capacity or consummation (cohabitation). The defendant, as we perceive his argument, does not contend in brief that there is a lack of proof the husband and wife had mutually agreed to cohabit in a marital relationship, but contends however that, inasmuch as they had intended to later have a ceremony performed, the common-law marriage cannot be recognized.

This contention is not well taken because a common-law marriage need not be solemnized in any particular ceremony in order to be valid. Huffmaster v. Huffmaster, 279 Ala. 594, 188 So.2d 552 (1966). In Huffmaster, supra, the fact that the husband and wife had never “gotten around to getting married,” although they had stated they intended to do so, did not preclude the finding that their marriage at common law was valid. The court’s language is instructive:

“Under this set of circumstances we believe the trial court was justified in finding that a common law marriage existed between these parties. It is axiomatic that such a marriage need not be solemnized in any particular ceremony.
“We are further persuaded by the rule enunciated in King v. King, 269 Ala. 468, 114 So.2d 145, where Justice Lawson said:
“ ‘The mere fact that the parties could not get together on the time when and the place where they were to have another ceremonial marriage is not sufficient to overcome the presumption of the common-law marriage and the evidence which we think tends to show that they had an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, which was consummated by their cohabitation as man and wife and by their mutual assumption openly of marital duties and obligations. . . . ’ ” [Citations omitted.] (279 Ala. at 595-96, 188 So.2d at 554)

In this instance, we find no error in the learned trial judge’s conclusion that a common-law marriage existed between the plaintiff and his wife.

Having found there was a common-law marriage, we must now determine if such fact gives to the plaintiff an insurable interest in the property. We find that it does give rise to such an interest. As the supreme court stated in North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 417, 54 So.2d 764, 771 (1951):

“In Appleman on Insurance Law and Practice, Vol. 4, § 2149, it is said: ‘Despite all the restrictions which the courts have placed around the husband, they seem to have held unanimously that the husband has an insurable interest in the homestead on which he resides with his wife and family, even though title thereto is in the wife. Of course, where the homestead had been jointly deeded to the husband and the wife, even less question could arise.’ . . . [I]t is pointed out that the rule rests upon the basis that the spouse has a pecuniary or beneficial interest and would suffer a disadvantage from its loss.” [Citations omitted.]

It is clear to this court that Sciandra stands for the proposition that the husband has an insurable interest in the homestead even though title to the homestead is held solely in the name of the wife. It is equally as clear that there is sufficient evidence that the dwelling in question was the homestead. We, therefore, find no reversible error regarding this aspect of the appeal.

In addition to the above, the defendant-insurance company contends that there was no proof as to the value of the contents and therefore concludes that there can be no recovery for the contents.

The only evidence as to the value of the contents is the following:

“Q Did your clothes and all burn up in that fire?

“A Yes, everything burned up.”

While this is clearly competent evidence to establish the fact of the loss of the contents of the home, it is not sufficient evidence to sustain proof of the amount of such loss. The plaintiff in a case such as this is not entitled to recover damages where the value of the property destroyed has not been established by evidence. See, e. g., Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 So. 759 (1898). This is so because the insurer’s denial of liability, regardless of the grounds, carries with it the condition that the insured must prove the extent of his loss. Finer Amusements, Inc. v. Citizens Ins. Co. of New Jersey, 327 F.2d 773 (7th Cir. 1964). See also Liverpool & London & Globe Ins. Co. v. Dickinson, 244 Ala. 381, 13 So.2d 570 (1943). Here, the plaintiff established the value of the house at the time of the loss at $32,000, but the record is totally barren as to any evidence indicating the value of its contents.

It is, therefore, the judgment of this court that in view of the above, the judgment of the trial court will stand reversed and the case remanded unless the plaintiff-appellee shall within thirty days file an appropriate remittitur of $2,000. If appel-lee does file such remittitur, the judgment will be restored by such amount and affirmed.

AFFIRMED CONDITIONALLY.

WRIGHT, P. J., and BRADLEY, J., concur.

      . The policy which was introduced into evidence provided $7,000 coverage for the dwell-' ing and $2,000 for the contents. The judgment was for $9,000. There was sufficient evidence regarding the value of the dwelling.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    In re NATIONAL SECURITY FIRE AND CASUALTY COMPANY v. John W. MINCHEW and Merchants Bank of Jackson. Ex parte National Security Fire and Casualty Company.
    78-157.
    Supreme Court of Alabama.
    May 25, 1979.
    Robert H. Allen, Mobile, for petitioner.
    No brief for respondent.
   TORBERT, Chief Justice.

The question presented by this petition for writ of certiorari is whether the Court of Civil Appeals erred in holding that respondent, John W. Minchew, had an insurable interest in a dwelling destroyed by fire. Finding no error, we affirm.

Respondent Minchew obtained an insurance policy from petitioner National Security Fire and Casualty Company (National Security). The policy covered a dwelling house and its contents for loss from fire. Subsequently, the dwelling and contents were destroyed by fire. National Security refused to pay Minchew for the loss. Min-chew then brought suit against National Security under the policy. The trial court heard the evidence ore tenus and returned a verdict in favor of Minchew for $9,000. National Security appealed to the Court of Civil Appeals which conditionally affirmed the judgment upon a remittitur of $2,000. We granted certiorari to review the decision of the Court of Civil Appeals.

The facts as set out in the opinion of the Court of Civil Appeals establish that in 1974 Minchew and his wife were divorced. By the terms of the divorce decree, all of Min-chew’s interest in the dwelling house was conveyed to his wife. Thereafter, in 1975, Minchew obtained the policy in question. In 1977, the dwelling and contents were destroyed by fire. Immediately following their divorce, the couple continued living together and were living together at the time of trial. The Court of Civil Appeals found that there was a common-law marriage as to the couple and Minchew had an insurable interest in the dwelling owned by his wife.

As a matter of public policy, ordinarily one may not insure for his benefit the property of another. North British & Mercantile Insurance Co. v. Sciandra, 256 Ala. 409, 418, 54 So.2d 764, 771 (1951). Therefore, since title to the dwelling is in his wife, Minchew’s insurable interest, if any, exists by virtue of the marital relationship.

National Security contends that the requirements for a common-law marriage are not present in this case since, despite cohabitation, the parties intended to subsequently marry ceremonially.

The requirements of a common-law marriage, as most recently stated by this court in Piel v. Brown, 361 So.2d 90 (Ala.1978), are (1) capacity to enter into the marital relationship, (2) present agreement or consent to be husband and wife, and (3) consummation. Id. at 93. National Security’s argument is that the parties’ intention to subsequently have a ceremonial marriage evidences a lack of present intent to be married; therefore, the second element is not satisfied and a common-law marriage does not exist.

However, as long as the requirements of a common-law marriage are satisfied, the marital relation exists notwithstanding a desire ■ or intention to subsequently have a ceremonial marriage. The fact of a contemplated ceremonial marriage only goes to the issue of the parties’ intention to presently be husband and wife. Such a contemplation does not bar per se the existence of a common-law marriage. See Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978); King v. King, 269 Ala. 468, 114 So.2d 145 (1959).

In the instant case, the evidence established that on the evening of their divorce Minchew and his wife went out to dinner with friends then went home together that night. The couple continued living together in the dwelling which was later destroyed in the fire and were living together at the time of trial. Both parties testified that they regarded themselves as husband and wife. Therefore, it appears from the evidence that the parties did intend to be husband and wife notwithstanding the fact that they wanted a ceremonial marriage at some later date. Therefore, there is sufficient evidence to support the trial court’s apparent conclusion that the parties had a valid common-law marriage.

We now come to the question whether Minchew has an insurable interest by virtue of his common-law marriage. It is widely held that a husband has an insurable interest in a homestead the title to which is held by his wife with whom he is living. See, e. g., Northern Assur. Co. v. Stewart, 228 Ala. 201, 153 So.2d 243 (1934) (dicta); Wisdom v. Farm Property Mutual Insurance Association, 199 Iowa 408, 202 N.W. 4 (1925); Basa v. Pierz Farmers’ Mutual Fire Insurance Co., 178 Minn. 305, 227 N.W. 39 (1929). This court, quoting 4 Ap-pleman, Insurance Law & Practice § 2149, stated in North British & Mercantile Insurance Co. v. Sciandra, supra, that, “Despite all the restrictions which the courts have placed around the husband, they seem to have held unanimously that the husband has an insurable interest in the homestead on which he resides with his wife and family, even though title thereto is in the wife.” 256 Ala. at 417, 54 So.2d at 771.

In Northern Assur. Co. v. Stewart, supra, this court, in holding that a husband had an insurable interest in a homestead jointly owned and occupied with his wife, stated the following: “Plaintiff not only was joint owner of the property with his wife, but he had a further interest, in that it constituted the homestead jointly occupied by them, and by the weight of authority this of itself suffices as an insurable interest.” 228 Ala. at 203, 153 So.2d at 245. Thus, it has been recognized, though never expressly held, in the decisions of this court that a husband does have an insurable interest in the homestead owned by his wife. We now hold that he does have such an interest.

The reason advanced for the rule prohibiting one from insuring for his benefit the property of another is that if he has no interest in the property there would be a temptation to destroy it and he would be helped and not injured thereby. Royal Exch. Assur. v. Almon, 206 Ala. 45, 48, 89 So. 76, 78 (1921). Realistically, however, the husband does have a beneficial, if not pecuniary, interest in the homestead and suffers a genuine disadvantage upon its destruction. Accordingly, the policy underlying the rule is not frustrated by permitting the husband an insurable interest in the homestead. It is difficult to conceive that a husband would be “helped and not injured” by the destruction of the very home in which he and his wife live.

We conclude that Minchew did have an insurable interest in the dwelling occupied jointly with his common-law wife even though title thereto was in the wife. Accordingly, the decision of the Court of Civil Appeals must be affirmed.

AFFIRMED.

All the Justices concur.


text:
    W. O. PATTERSON v. Rosemary Z. PATTERSON.
    Civ. 1574.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    Rehearing Denied May 2, 1979.

      Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
    Neil L. Hanley, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals, contending through able counsel, the trial court abused its discretion in the award of alimony and in the division of property. We find no such abuse and affirm.

This court determines that no useful purpose would be served in giving a detailed recitation of the facts. Suffice it to say that viewing the record with the attendant presumptions of correctness, the following is considered pertinent:

The husband is a forty-six year old physician. He earns approximately $90,000 per year. He has a net worth of over $350,000. There were three children born of the over ten year marriage. One of the children has a diabetic condition.

The learned trial court, after a lengthy ore tenus hearing, in pertinent part, awarded the custody of the children to the wife; required the husband to pay to the wife $2,200 per month as alimony and child support; and, in addition, accepting the husband’s calculations as correct, divided the property approximately equally. Put another way, the trial court.made a division of property which was of equal monetary value to each party.

We would note that the husband was required to also provide education expense, medical expense, and insurance. He was also to assume a certain debt which the wife incurred to meet living expenses during the period of separation. In addition, the husband was to provide membership in a “Racquet Club,” maintain the wife’s car, and provide certain home repairs.

This court has carefully reviewed the record in this case and in view of the husband’s income and financial prospects, coupled with the needs of his wife and family, we find no abuse of discretion by the trial court so as to require reversal. See Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977); 8 Ala.Digest Divorce «==>312.6(4).

In addition, we find no error with regard to that portion of the trial court’s decree which requires the husband to assume a debt of the wife incurred for the family’s living expenses during the parties’ separation. Contrary to the husband’s assertion, it is not an abuse of discretion for the trial court to require the husband, who has in the past undertaken the financial burden of providing living expenses for his wife and children, to discharge such a debt incurred by his wife during the parties’ separation which he otherwise would have expressly assumed. See, e. g., Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966).

The wife has requested that this court award an attorney’s fee for representation on appeal. A fee of $500 is hereby awarded.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., con'cur.


author: JONES, Justice.

text:
    Ex parte W. O. PATTERSON.
    78-543.
    Supreme Court of Alabama.
    June 29, 1979.
   JONES, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge. HOLMES, Judge,

text:
    STATE of Alabama v. BALL-CO CONTRACTORS, INC.
    Civ. 1715.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    Rehearing Denied May 2, 1979.

      William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Alabama, for appellant.
    Robert H. Allen, Mobile, for appellee.
   BRADLEY, Judge.

The State of Alabama, Department of Revenue [hereinafter the State] entered an assessment for use tax against Ball-Co Contractors, Inc. [hereinafter Ball-Co] in the amount of $1,711.03 for purchases made between October 1, 1974 and December 31, 1976. Ball-Co filed a petition for redeter-mination which was denied. The use tax assessment was made final and interest of $260.72 was added to the original assessment of $1,711.03. Ball-Co then appealed the assessment to the Circuit Court of Baldwin County under Code of Alabama 1975, § 40-2-22. The circuit court set aside the assessment and taxed the State with costs. It is from this order that the State appeals.

On December 20, 1974 Ball-Co entered into a contract with the Public Building Authority of the City of Prichard. Ball-Co served as general contractor for the construction of the Prichard Municipal Complex. Some $41,945.01 of purchases which were assessed for use tax was made on purchase orders prepared for and bearing the name of the Public Building Authority. The purchases were initially paid for with checks issued by Ball-Co. Ball-Co completed the construction contract and was paid all sums due under the contract and under all change orders issued pursuant to the contract. Ball-Co was never appointed purchasing agent for the Public Building Authority.

The issue to be resolved in this case is whether the purchases made are exempt from state use taxation. This case was decided below on the pleadings and a stipulation of the facts agreed upon by the parties; therefore, we review this case without the traditional presumption of correctness afforded cases where an oral hearing is conducted. We must consider the evidence anew and render a judgment in light of that evidence and applicable legal principles. Henderson v. Nationwide Life Insurance Co., 56 Ala.App. 329, 321 So.2d 671, cert. den. 295 Ala. 405, 321 So.2d 675 (1975); see 2A Ala. Dig. Appeal & Error 931(1).

The Code of Alabama 1975, § 11-56-21 provides as follows:

Each project and the income from all leases made with respect thereto, the bonds issued by the corporation and the income therefrom and all lease agreements and indentures made pursuant to the provisions of this chapter shall be exempt from all taxation in the state. [Emphasis added.]

The word “project” is defined in Code of Alabama 1975, § 11-56-1(10) as “[a] building or buildings located or to be located in the municipality,” and § 11-56-8 lists the powers of public building authorities. Section 11-56-8(5) says the corporation has the power “[t]o acquire, whether by purchase, gift, lease, devise or otherwise property of every description which the board may deem necessary to the . . . construction . . . of a project.” Because Code of Alabama 1975, § 11-56-2 suggests that the chapter concerning public building authorities be liberally construed in conformity with the intent of the legislature, we find that “project” as defined and existing under the exemption section for public building authorities includes purchases necessary for the construction of projects.

We would also note that § 11-56-21 is an exemption statute and should be construed strictly against the taxpayer and favorably for the State. State v. Hunt Oil Co., 49 Ala.App. 445, 273 So.2d 207, cert. den. 290 Ala. 371, 273 So.2d 214 (1973). Furthermore, one seeking an exemption from taxation has the burden of clearly establishing such right. Brundidge Milling Co. v. State, 45 Ala.App. 208, 228 So.2d 475 (1969).

Ball-Co states that in 1968 the State Department of Revenue promulgated Rule G27-916 which established guidelines for determining the tax exempt status of purchases made by industrial development boards. Although Ball-Co recognizes that a public building authority is not an industrial development board, it asserts that the guidelines laid down in Rule G27-916 can be applied to a public building authority to determine whether purchases allegedly made by it are tax exempt.

In answer to Ball-Co’s assertions, the State says that Rule G27-916 does not apply to public building authorities. We agree. In State v. Allied Paper Incorporated, 56 Ala.App. 661, 325 So.2d 171, cert. den. 295 Ala. 420, 325 So.2d 176 (1976), we said:

Rule G27-916 applies only to industrial development boards created under the provisions of the Cater Act and specifically exempts such boards from the payment of State sales taxes on the purchase of tangible personal property so long as the board itself makes the purchase and obligates its credit therefor. There is an additional provision in the Rule that authorizes the purchase to be made by an agent of the board provided the purchase is made in the name of the board and the board’s credit is obligated. [Emphasis added.]

Assuming arguendo, however, that Rule G27-916 does apply to the present case, appellee would not benefit from such application because the stipulated facts show that Ball-Co paid for the purchases with its own funds, therefore one of the criteria laid down in the rule for exemption is not met and Ball-Co would not be entitled to an exemption.

Because there is no Revenue Department rule similar to Rule G27-916 applicable to public building authorities we must devise criteria to determine the applicability of § 11-56-21 to the facts of this case.

As suggested by the Department, it would appear that for the purchases in question to be exempt from the use tax, it would be necessary for the building authority itself to make the purchases and pay for them or make the purchases through an authorized agent. In the case at bar the parties stipulated that the purchases were not made by a purchasing agent of the Authority. Therefore, the remaining question is whether the evidence supports the conclusion that the Building Authority made the purchases and paid for them.

The parties stipulated that the purchases on which the use tax was assessed were made “on the purchase orders prepared for and bearing the name of the Public Building Authority of the City of Prichard [emphasis added]” and that the purchases were “initially paid with checks issued by Ball-Co Contractors, Inc.”

A careful analysis of the stipulated facts as set out above leads us to the conclusion that the purchase orders do bear the name of the Building Authority but were not prepared by the Authority, for the stipulated facts clearly state that the purchase orders were prepared for the Building Authority.

When this fact is coupled with the stipulation that Ball-Co initially paid for the purchases, it would not be unreasonable to conclude that Ball-Co made the purchases on invoice forms bearing the name of the Authority and then paid for those purchases with its funds. Such a conclusion is even more plausible when it is remembered that the parties stipulated that Ball-Co was not the purchasing agent for the Authority.

The State argues that the trial court erred as a matter of law in concluding that the appellant was not liable for the tax because the Building Authority had ultimately reimbursed Ball-Co for the purchases. The State says the issue is not who ultimately pays for the purchases but who initially bought and paid for the purchases. The State relies upon cases such as State v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3 (1941), dealing with contracts between the federal government and contractors for the proposition that the ultimate shifting of the economic burden to the public building authority by reimbursement would not relieve Ball-Co from the use tax. We would point out that in State v. King & Boozer, there was a cost-plus contract between the parties. In addition, it was shown that the parties contemplated that the government would reimburse the contractors for state and local taxes; the contractors were to make purchases in their own names and obligate their own credit; and that the government was not bound by the contractors’ purchase contracts. We have no contract in evidence in this case. All we know from the record of this ease is that Ball-Co was the general contractor for the project and that it was paid all moneys due under the contract. Nevertheless, the principle that the ultimate shifting of the economic burden to the tax exempt entity will not relieve a contractor from use tax can support the conclusion that the legislature never envisioned that § 11-56-21’s exemption would apply where a contractor for the authority buys and pays for the goods initially and is later reimbursed.

We are, therefore, of the opinion that where purchases are not made and paid for by the Authority, no exemption from use tax could be given; the general contractor on the Authority building project who made and paid for the purchases would be liable for the tax as assessed by the State.

The judgment of the trial court is reversed and the case is remanded for entry of judgment in accordance with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., concurs in the result.

HOLMES, J., dissents.

HOLMES, Judge,

dissenting:

I respectfully dissent.

The stipulated facts in this case as shown by the record are as follows:

1. On September 21,1977, the State of Alabama, Department of Revenue, asserted a use tax of $1,711.03 against Ball-Co Contractors, Inc. for purchases made between October 1, 1974 and December 31, 1976.
2. After a Petition for Redetermination filed by Ball-Co Contractors, Inc. was denied, the same use tax assessment was made final on January 13, 1978 in the amount of $1,711.03 plus interest of $260.72 for a total of $1,971.75.
3. After the final assessment as made and entered on the records of the Department of Revenue, Ball-Co Contractors, Inc. filed this timely appeal.
4. On December 20,1974, Ball-Co Contractors, Inc. and The Public Building Authority of The City of Prichard entered into a contract by which Ball-Co Contractors, Inc. served as the general contractor for the construction of the Prichard Municipal Complex.
5. Ball-Co Contractors, Inc. was not appointed purchasing agent for The Public Building Authority of the City of Prichard, and does not maintain it was ever appointed purchasing agent for the Public Building Authority.
6. The Public Building Authority of the City of Prichard is a public building authority organized under Code of Alabama 1940 (Recompiled 1958), Title 37, Chapter 18 (now Code of Alabama 1975, Title 11, Chapter 56), and its projects and income are exempt from all state taxation.
7. Of the purchases against which the use tax assessment was made, $41,945.01 were made on purchase orders prepared for and bearing the name of The Public Building Authority of The City of Prich-ard.
8. Of the purchases against which the use tax assessment was made, $41,945.01 were initially paid with checks issued by Ball-Co Contractors, Inc.
9. Ball-Co Contractors, Inc. completed the contract with The Public Building Authority of The City of Prichard and was paid all sums due under that contract and under all change orders issued pursuant to that contract.

The statute as quoted in the majority opinion, to me, clearly states that each project of a public building authority shall be exempt from taxation. The facts as shown above reveal, at least to me, that this is a project of the building authority. The project is owned by the public building authority. The purchase of material and equipment used in the project was made on purchase orders issued by the public building authority. They were paid initially by the contractor. All sums due under the contract were then paid by the public building authority to the contractor.

The facts of this case are precisely what the statute envisions to be exempt. I cannot see how the fact that the contractor initially paid for the items makes the statute inoperative.

Put another way, the majority opinion is a narrow construction of the statute which was not intended by the legislature.

I would affirm the judgment of the trial court.


author: BEATTY, Justice.

text:
    Ex parte BALL-CO CONTRACTORS, INC.
    78-557
    Supreme Court of Alabama.
    June 29, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Grady PAGE and Myra Page v. Paul NORRIS.
    Civ. 1757.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
    Rehearing Denied May 2, 1979.

      J. Allen Cook, Andalusia, for appellants.
    Earl V. Johnson, Andalusia, for appellee.
   HOLMES, Judge.

This is a child custody case.

The Circuit Court of Covington County, after an ore terms hearing, awarded custody of two minor children to the father. The maternal aunt and her husband appeal.

The dispositive issue on appeal is whether the trial court abused its discretion in the award of custody. We find no such abuse so as to require reversal and affirm.

We do not deem it necessary to set out the facts in detail. However, viewing the record with the attendant presumptions, we find the following:

The parents were divorced in 1974 and custody of the children who are now ages twelve and ten was awarded to the mother. The father was given visitation privileges. In September of 1978, the mother died. The mother, in her will, expressed a desire that the children be placed in the custody of her sister (the aunt) and the sister’s husband. The children have been in the aunt’s home since the mother’s death. The petition for custody was filed shortly after the mother’s death.

Suffice it to say the evidence is clear that the aunt and her husband have a stable home, love the children, and want the children in their home. In addition, the children testified they desired to remain in the home of the aunt and her husband. The aunt and her husband have one child.

In addition to the above, the evidence further reveals the husband has remarried and has a small child. The stepmother desires the children to be in their home. The father is gainfully employed, although he earns less than the aunt’s husband. He has a comfortable home with three bedrooms. His wife works. Additionally, the children have regularly visited in his home since the divorce and were treated well by the father and stepmother. There was evidence that the father had committed an assault against the mother prior to the divorce and had pulled a knife on a co-worker. However, there was evidence that since the divorce the father’s conduct has been exemplary.

While other evidence was presented, we consider the above pertinent. Viewing the record in its entirety, it is clear to this court that both the aunt and her husband and the father and his wife love and want what is best for the children. The trial court was faced with a difficult decision.

The law in this state provides that the trial court has wide discretion in matters of child custody and this court can only reverse for plain abuse. See Sheffield v. Sheffield, Ala.Civ.App., 350 So.2d 1056 (1977); Higgins v. Higgins, Ala.Civ.App., 336 So.2d 194 (1976). In this instance, we find no such abuse. For this court to reverse, we would have to substitute our judgment for that of the trial court. This we cannot do. See Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The aunt and uncle, through able counsel who has provided this court with an excellent brief, present persuasive arguments why the best interest of the children would be served by them being in the custody of the aunt and uncle. However, this court cannot say the trial court plainly abused its discretion in awarding custody to the natural father.

We would be remiss in not commenting that the children are indeed fortunate to have the love and affection of not only their father and his wife, but of their aunt and uncle. It would be this court’s hope that all parties concerned would join together and concentrate their efforts on behalf of the children.

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Ex parte Grady PAGE and Myra Page.
    78-539
    Supreme Court of Alabama.
    June 29, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Neil TAYLOR, Jr. v. Shirley TAYLOR.
    Civ. 1675-X.
    Court of Civil Appeals of Alabama.
    April 11, 1979.
    Rehearing Denied May 16, 1979.

      Neil Taylor, Jr., pro se.
    Robert L. Gonce of O’Bannon & Gonce, Florence, for appellee.
   BRADLEY, Judge.

Former husband appeals and former wife cross-appeals from a decree by the Circuit Court of Franklin County which denied the husband’s petition for custody of two minor children and reduced child support payments from $450 per month to $270 per month. The husband contends, on appeal that the so-called “tender years doctrine” is unconstitutional. The wife contends on appeal that the husband failed to show a material change of circumstances sufficient to warrant the reduction of child support payments. We affirm that portion of the decree which denied the requested change of custody and we reverse that portion of the decree which reduced the amount of the monthly child support payments.

After an eight year marriage the parties to this appeal were divorced by a final decree dated June 27,1977. Their marriage produced two sons, Haffred Neil Taylor, III, born July 5, 1971, and Christopher Eric Taylor, born December 26, 1974. The divorce decree awarded custody of these sons to the mother and ordered the father to pay the sum of $450 per month child support. No appeal from this decree was taken by either party.

In December 1977 the father (who is an attorney) filed a petition to modify the divorce decree, seeking a reduction of the child support payments. The father’s petition alleged as changed circumstances that he was insolvent and no longer able to make the required payments. The following month he amended his petition to include a request that he be granted custody of the two minor children.

After an ore tenus hearing in May 1978, the trial court entered a decree dated May 12, 1978 reducing the monthly amount of child support from $450 to $270. The father’s request for custody was denied. His motion for a new trial was never ruled on by the trial court.

The father appeals from that portion of the trial court’s decree which denied his request for custody. He contends that there exists no legally sufficient basis for the presumption traditionally entertained by the courts in Alabama that, all other things being equal, the interests of a child of tender years of either sex would be best served by having his or her custody awarded to the mother. The father argues that this “tender years doctrine” is impermissible under the equal protection and due process clauses of both the state and federal constitutions; and that the courts of this state should adopt as a substitute for that doctrine a sex-neutral rule of law designed to insure that custody of minor children is awarded to the more fit parent, without regard to whether that parent is the mother or father.

On the other hand the mother argues that while the constitutionality of the tender years doctrine may have been an issue in the original divorce/custody proceeding, it is not an issue on the father’s petition to modify. The mother contends that the issues to be decided on this appeal are: (1) whether the trial court abused its discretion in concluding that the father had failed to prove a material change of circumstances sufficient to warrant changing custody of the children; and (2) whether the trial court erred in reducing the amount of child support payments. She asserts that the trial court correctly resolved the custody issue but erroneously allowed a reduction of child support payments.

Our review of this ease is predicated on several well-established principles. The trial court is vested with great discretion in making an award of child custody and setting the amount of child support and will not be reversed except for palpable abuse. Hawkins v. Hawkins, Ala.Civ.App., 346 So.2d 967 (1977); Stilwell v. Stilwell, Ala.Civ.App., 357 So.2d 355 (1978); Travis v. Travis, Ala.Civ.App., 345 So.2d 321 (1977).

Where a judgment or decree is entered by the trial court after hearing the testimony ore tenus, such judgment or decree is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment or decree is found to be plainly and palpably wrong. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

The modification of a decree awarding custody of a child must be based upon allegation and proof of a material change of circumstances affecting the best interests of the child since the last decree. The proponent of the change in custody has the burden of proving the material change in circumstances. McEntire v. McEntire, Ala. Civ.App., 345 So.2d 316 (1977).

We think the trial court’s conclusion regarding the custody of the children is supported by the evidence presented at the hearing. The father contended below that the mother was not properly caring for the children and that the children were suffering from numerous health problems such as ear infections, impetigo, weight loss, nausea, etc.; and that the mother had failed to follow doctors’ instructions regarding corrective measures prescribed to correct curvature of the bone in the lower legs of both children. However, the testimony of the owner of the day-care center attended by Chris, and by Neil, III when he is not in school, indicates that the children are normal, well-adjusted, happy, intelligent, well-dressed, clean, well-cared for, and have no unusual health problems. The testimony of the mother indicates that she provides the children with a proper home in a nice residential area, at least two meals a day at home, good clothes, and proper medical care. Her testimony further indicated that Neil, III is making good grades in school, and that she has discussed his progress with Neil, Ill’s teacher on several occasions. She stated that she had removed the twister cables from Christopher’s legs on the advice of the physician treating the child.

Under these circumstances and the. other evidence presented, we cannot agree that the trial court erred in finding no change of circumstances sufficient to warrant a change of custody.

Moreover, from the record there appears serious doubt as to whether the “tender years doctrine” (of which the father complains) formed any part of the basis for the trial court’s denial of the requested change of custody. To support his request for reduction of the child support payments, the father pleaded and presented substantial evidence (discussed further herein) tending to prove that he was “insolvent.” Thus, the father’s argument reduces to a contention that the trial court erred by failing to award custody of two minor children to a party who simultaneously contended both that he could provide for the children, and that he was presently unable to provide for himself. We cannot agree that the trial court erred in refusing to accept these contradictory assertions.

Even if it is assumed that the tender years doctrine played a substantial role in the trial court’s decision, the father’s attack on the constitutionality of that doctrine must fail. The policy supporting the tender years presumption was reiterated by this court in Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975), cert. den. 295 Ala. 425, 326 So.2d 129 (1976), where, as here, the appellant attacked that presumption on equal protection grounds. We noted therein that the paramount consideration in determining issues of child custody is the welfare of the child. That opinion also discussed the operation and effect of the tender years presumption and concluded that the doctrine was constitutionally sound. Thompson, supra. We adhere to that position.

Our review of the second issue raised by these appeals is also premised on several well-established principles. A divorce decree providing for child support will not be modified unless changed conditions which would justify such modification are shown. Snead v. Snead, 279 Ala. 344, 185 So.2d 135 (1966). The trial court can in its discretion modify the amount of child support to be paid in the future as changed conditions may justify. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964); and the exercise of such discretion is to be disturbed on appeal only if there is such an abuse of discretion as to make the decision plainly and palpably wrong. Travis v. Travis, Ala. Civ.App., 345 So.2d 321 (1977). The burden of proving a material change of circumstances sufficient to warrant a modification of child support is on the petitioner. McEntire, supra; Osborne v. Osborne, 57 Ala. App. 204, 326 So.2d 766 (1976).

The guide to be followed by both trial courts and reviewing courts in determining the sufficiency of the amount of child support is the needs of the children, tempered by the ability of the parent to pay. Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976); Townsend v. Townsend, Ala.Civ.App., 337 So.2d 4 (1976).

Applying these principles, we think the trial court erred to reversal in its decision to reduce the monthly child support payments from $450 to $270. The mother testified that her current weekly take-home pay was $104.64, and that the monthly expenses for her and the two children were approximately $800 per month. The record further reveals that although the father’s income for the year 1976 was $22,554.60, his current income is approximately $12,000 per year.

Other testimony in the record explains the reason for the sudden drop in appellant’s income. Prom 1968 until March 1977, the appellant, H. Neil Taylor, Jr. was a partner in his father, Neil Taylor, Sr.’s, law firm. The net profits from that partnership were shared fifty-fifty between the two partners. Approximately one month before the trial of the original divorce action, the partnership was dissolved and appellant became an associate of his father’s firm, receiving $2,500 for his partnership interest. Thereafter appellant’s income dropped to its current level of approximately $1,000 per month; an amount which appellant testified he is “unable to live on” because of debts left over from the marriage, court-ordered payments arising from the divorce proceedings, and unusually high personal expenses (appellant has several physical handicaps/afflictions including asthma, bad knees, poor eyesight, a missing foot, and missing fingers and toes, and consequently incurs larger than normal medical expenses, clothing expenses, etc.).

Appellant’s father, Neil Taylor, Sr., testified that his son was demoted to associate status because his son was unable to devote full time to the firm’s business during the eight months prior to the original divorce decree when appellant had custody of the two children (October 1976 through June 27,1977). The elder Mr. Taylor’s testimony indicated that because of his son’s handicaps, his son’s earning capacity has never been and is not now commensurate with the income the son has received from the law firm. During the course of the original divorce proceedings, the partnership’s income tax records, etc. were subpoenaed by his son’s wife. Mr. Taylor, Sr., “knew this was going to continue from here on out if he [appellant] continued as my partner. I had carried the burden of supporting Neil, Jr. in a style in excess of what he could afford to live on . . . so it got to the point where it is necessary that each person travel on his own.” Therefore the partnership was dissolved.

Neil Taylor, Sr. further testified that since his son was demoted he has provided or paid for some or all of the following necessities for his son: food, clothing, transportation, utility bills, medical expenses, insurance premiums, money to make child support payments, etc. This assistance is largely in the form of loans which are charged against the son’s salary. Appellant’s father also currently holds several outstanding mortgages owed by his son.

This court is mindful of the great weight to be given the determination of the trial court who heard the evidence ore tenus. However, the evidence presented by the record in this cause leads us to the conclusion that the father has failed to prove any material change of circumstances since the date of the original decree relative to either reduced needs of the children or decreased ability of the father to support his children.

The husband’s demotion from partner to associate, along with the concomitant reduction of his income, occurred prior to the trial of the original divorce action. His salary was $1,000 per month since the time of the demotion in March 1977 and continued at that rate through the time of the hearing on the petition to modify in May 1978. Appellant himself testified that he was financially distressed at the time of the initial separation from his wife (in October 1976), and that he “went broke holding the children.” (He had custody of the children from October 1976 until the date of the original divorce decree in June 1977.) Nor does there appear any evidence of record which would support a finding that the needs of the children have diminished to any material extent.

In view of the absence of any changed circumstances since the entry of the original divorce decree, we hold that the trial court erred in reducing the amount of monthly child support. That portion of the trial court’s judgment refusing to change the custody of the children from the mother to the father is affirmed; that portion of the judgment reducing the child support payments from $450 per month to $270 per month is reversed.

The wife has requested an award of attorney’s fees for this appeal. An award of $500 is hereby granted.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


author: PER CURIAM.

text:
    Ex parte Neil TAYLOR, Jr.
    78-600
    Supreme Court of Alabama.
    June 29, 1979.
   PER CURIAM.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: HOLMES, Judge. WRIGHT, Presiding Judge,

text:
    BITUMINOUS CASUALTY CORPORATION, a corporation v. Terry HARRIS, d/b/a Terry Harris Furniture Company.
    Civ. 1748.
    Court of Civil Appeals of Alabama.
    April 18, 1979.
    Rehearing Denied May 16, 1979.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellee.
   HOLMES, Judge.

This is an action on an insurance policy.

Plaintiff filed suit against the defendant-insurance company on a fire insurance policy. At the close of plaintiff’s evidence, the defendant moved for a directed verdict. The trial court denied the motion and subsequently, the jury returned a verdict for the plaintiff.

The dispositive issue on appeal is whether the trial court erred in overruling defendant’s motion for a directed verdict. We find that it did not and affirm.

The record reveals the following: The plaintiff was the owner of a retail furniture store located at 430 Chestnut Street in Gadsden, Alabama. In 1973, the defendant issued a fire insurance policy insuring the plaintiff’s inventory for a term of three years. While the policy was in force, plaintiff’s inventory was burned.

The record further reveals that a few days prior to the fire, the plaintiff decided to liquidate his business and to that end, he sold most of his merchandise. He closed his store and moved the remaining furniture to a nearby warehouse, located at 422 Chestnut Street, which the evidence indicates was within 100 feet of plaintiff’s business.

After the fire, plaintiff asserted a claim for policy proceeds and subsequently brought this action upon defendant’s denial of liability.

Throughout this proceeding, and at the time of defendant’s motion for a directed verdict, the defendant has insisted that the policy does not insure plaintiff’s property while located at any other place than the premises described in the contract, i. e., 430 Chestnut Street. The defendant contends that because the plaintiff moved his merchandise to a warehouse located next door to his business, the policy, as a matter of law, did not insure against the damages occasioned by the fire.

The plaintiff maintains that notwithstanding the removal of his furniture from the described premises, the property which was destroyed was nevertheless insured because the express language of the contract insures the property within 100 feet of the described premises. In the alternative, the plaintiff contends that the policy language in question is ambiguous and thus is to be construed in his favor. In either case, plaintiff argues that defendant’s motion for a directed verdict was properly overruled because, as a matter of law, the contract does not preclude recovery in this instance. We agree.

The contract provision in question, which is dispositive, provides as follows:

COVERAGE B — PERSONAL PROPERTY: When the insurance under this policy covers personal property, such insurance shall cover only business personal property owned by the insured and usual to the occupancy of the insured, including bullion, manuscripts, furniture, fixtures, equipment and supplies, not otherwise covered under this policy, and shall also cover the insured’s interest in personal property owned by others to the extent of the value of labor and materials expended thereon by the insured; all while in or on the described buildings, or in the open (including within vehicles) on the described premises or within 100 feet thereof. (Emphasis supplied.)

For the reasons set forth below, this court is of the opinion that the language of this clause is ambiguous.

At the outset we observe that the determination of whether an ambiguity in fact exists in a particular policy is a question of law for the court’s resolution. Burton v. State Farm Fire & Cas. Co., 533 F.2d 177 (5th Cir. 1976); Aetna Life Ins. Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904 (1972). If an ambiguity is found to exist, it is the province of the court to ascertain the meaning of the uncertain provisions. Associated Doctors Health & Life Ins. Co. v. Hanks, 44 Ala.App. 92, 203 So.2d 148 (1967).

The rules of judicial construction require this court to interpret an insurance contract according to the rules of construetion applicable to all contracts. Aetna, supra. Accordingly, the words of an insurance policy are to be given their rational and practical meaning. ProTransCo, Inc. v. Oceanus Mut. Underwriting Ass’n. (Bermuda) Ltd., Ala.Civ.App., 349 So.2d 585 (1977).

Furthermore, uncertainties as to the scope of coverage are to be resolved in favor of the insured, ProTransCo, supra, particularly where the meaning of an ambiguous endorsement is at issue. U. S. Fire Ins. Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970).

It is clear to this court that the above noted endorsement is unquestionably ambiguous as it applies to the facts in the instant case. Under one interpretation, coverage is afforded an insured where his property is located within 100 feet from the insured premises without regard to whether that property is in the open or stored in another building. Under another view, that urged by the defendant, the insured property must be “in the open” and “within 100 feet” of the described premises in order to be insured. If the latter interpretation is correct, plaintiff cannot recover in this instance because, although his property was within 100 feet of the described premises, it was in a warehouse and not in the open.

We are of the opinion that under a rational and practical reading of the policy provision in question, coverage exists in three situations: (1) when the property is in or on the described building, or (2) when the property is in the open on the described premises, or (3) when the property is within 100 feet of the described premises.

In order for this court to accept the interpretation of the contract urged by the defendant, we would of necessity be required to rewrite the express language of the contract so that the third alternative noted above would provide that in order to be insured, the property must be “in the open within 100 feet” of the described premises. This court cannot rewrite the language of the policy. See, e. g., Cheek v. Vulcan Life & Acc. Ins. Co., 52 Ala.App. 192, 290 So.2d 654 (1973), writ denied, 292 Ala. 715, 290 So.2d 658 (1974).

In addition, we note that had the defendant desired the policy to provide the construction it now urges upon this court, it could easily have so drafted the contract to that end. See, e. g., Wiregrass Construction Co., Inc. v. Tallapoosa River Elec. Coop, Inc., Ala.Civ.App., 365 So.2d 95 (1978).

To further substantiate what we have said, the construction which we adopt is consistent with the oft stated rule that ambiguities are to be resolved in favor of the insured. ProTransCo, supra.

For the foregoing reasons, we hold that the defendant was not entitled to a directed verdict and thus the trial court’s denial of its motion was not error.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I am constrained to respectfully dissent from the decision of the majority.

The motion of defendant for a directed verdict on the ground of absence of coverage under the terms of the policy presented a question of law for the court. That question, of course, initially required an examination of the specific provisions of the policy in controversy. Unless those provisions or the terms used therein, when viewed by reasonably intelligent persons, in light of the whole policy and its purpose, leaves it genuinely uncertain as to their proper meaning and intent, there is no ambiguity and no basis for construction by the court. Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So.2d 698 (1963); Aetna Life Insurance Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904 (1972). The words and verbiage, with the given punctuation and phrasing, of an insurance contract are to be construed in their natural, usual, and proper grammatical import. If when so considered, they are reasonably certain in their meaning they are not ambiguous as a matter of law and the rule of construction in favor of the insured does not apply. Canal Insurance Co. v. Stidham, 281 Ala. 493, 497, 205 So.2d 516 (1968). An ambiguity is not created merely because the insurer and insured disagree as to the meaning of written provisions in a contract.

Ambiguity may not be created by giving a strained, unnatural or unreasonable construction to the words of a contract. Aetna Life Insurance Co. v. Hare, supra. There can be no reasonable disagreement that punctuation or lack of it, can affect and even determine the meaning of words and phrases within sentences. To disregard them is likely to alter the intent of the words. Punctuation may be said to be the road signs to point the way to the meaning of the words used by the writer.

It is clear to me that defendant insured plaintiff’s inventory of furniture located at 430 Chestnut Street in Gadsden, Alabama, which is a brick retail store building. When destroyed by fire, the furniture was in a sheet metal or tin warehouse behind 422 Chestnut Street. That warehouse contained stored furniture and a truck belonging to another furniture retailer whose store address was 422 Chestnut Street. Under the usual numbering of business addresses, there would be the three other businesses or business places between the insured premises and those at 422 Chestnut. If the decision of ambiguity of the policy and the jury verdict is accepted, the policy would cover the furniture at any business house on Chestnut Street, even across the street, within 100 feet of 430 Chestnut Street. It would not matter what type of building it occupies nor what increased risk might be in or near it. I submit that it cannot reasonably be concluded that such a circumstance was intended by the parties to the policy.

The point I emphasize is that when the purpose of a fire insurance policy is considered along with the declaration that 430 Chestnut is the insured premises, the words and phrases of Coverage B, as punctuated, are reasonably capable of having only one meaning. I believe reasonable grammatical construction of the last two clauses of Coverage B requires the conclusion that the first clause applies to property while located in or on the described buildings; the second clause to the property while in the open on the described premises (430 Chestnut) or while in the open within 100 feet of the described premises.

I would hold as a matter of law that there is no ambiguity in Coverage B when viewed in light of the entire policy. The court therefore erred in submitting the construction of the policy to the jury. The issue argued in appellant’s brief that the court erred in submitting the construction of the policy to the jury even if there was an ambiguity, was not properly saved for appeal in my view of the record. Defendant made no objection to the court’s oral charge.


author: SHORES, Justice.

text:
    Ex parte BITUMINOUS CASUALTY CORPORATION, a corp.
    78-578
    Supreme Court of Alabama.
    June 29, 1979.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    WOODBURY BUSINESS FORMS & SYSTEMS v. Jim COLEMAN and Skinner Printing Company.
    Civ. 1842.
    Court of Civil Appeals of Alabama.
    May 9, 1979.
    Rehearing Denied June 20, 1979.
    Robert S. Lamar, Jr., Montgomery, for appellant.
    John D. Cates, Jr., Montgomery, for ap-pellees.
   BRADLEY, Judge.

Woodbury Business Forms and Systems [hereinafter Woodbury] appeals from a final decree denying damages and injunctive relief against Jim Coleman [hereinafter Coleman] and Skinner Printing Company [hereinafter Skinner]. The decree denied Woodbury’s demand for an accounting, and for a return of books, catalogues and customer lists. The trial court found Wood-bury indebted to Coleman for $882 and taxed costs against Woodbury.

The facts are revealed from a deposition, the record, and attached exhibits.

Woodbury, a Georgia corporation, employed Coleman as a manager of its Montgomery branch in December of 1975. Woodbury engages in the business of selling business forms, systems and related products. Woodbury agreed to hire Coleman on a trial basis. Coleman had previously owned his own business which became defunct. Coleman had orders from customers he dealt with in his own business that he was unable to fulfill because of his business’ financial problems. Woodbury agreed to fill the orders for him.

A letter dated December 19, 1975 was sent to Coleman which covered items agreed upon concerning his employment. Among those items was a description of Coleman’s sales territory. The letter was sent to Coleman, signed by him and returned on December 29 1975. Woodbury’s stamp with the date appears on the letter. The letter was also signed by Mr. Shagi-naw, an executive of Woodbury. A part of the letter stated Coleman would be required to sign the salesman’s contract before being placed on the payroll. The salesman’s contract was signed by Coleman. The agreement was post-dated July 1, 1976, at which time it would become effective after a trial period. It provided in pertinent part:

In consideration of the remuneration herein agreed to be paid to the sales representative by the Company, and in consideration, by both parties, of all the terms and conditions stated herein and the Sales Policies of the Company, it is agreed as follows:
7. In part consideration of the remuneration herein agreed to be paid and the Company’s agreement to disclose confidential information from time to time to the sales representative, and in consideration of similar covenants made by other sales representatives of the Company, the sales representative agrees with the Company and with such other factory representatives:
That for a period of twelve months from date of leaving employ of the Company for whatever reason, he will not sell in [competition], direct or indirect, with the Company to the accounts to which he had been assigned as sales representative of the Company. For the purposes of this Section 7 the term “accounts to which he has been assigned as sales representative of the Company” shall be construed to mean any account which the sales representative has called on and to whom the Company has shipped one or more orders during the twelve months immediately preceding the date of his leaving the employ of the Company.

At the time of the signing of the agreement, Woodbury had not been actively soliciting in Alabama, except perhaps in and around the Opelika area.

Coleman brought many of his own accounts to Woodbury. While working for Woodbury, Coleman gained only three or four new accounts.

Coleman resigned from Woodbury officially on February 1, 1978 by a letter. He did not give any formal prior notice.

After Coleman left, Woodbury had problems continuing to service Coleman’s territory. Mr. Shaginaw testified in deposition that Woodbury did not have anyone to replace Coleman. Woodbury tried to keep contact with customers by phone. In April Woodbury hired a new employee who services the territory two or three days a week. There is presently no Montgomery office.

On February 1,1978 Coleman began work as a salesman for Skinner, a corporation with its principal place of business in Alabama. Skinner engages in commercial printing, office supplies, and furniture. Coleman had worked for Skinner before in 1968 and 1969. The owner of Skinner testified Coleman brought accounts with him when he began his employment the first time with Skinner in 1968-69. Further testimony indicates Skinner lost about ninety-nine percent of the accounts when Coleman left the first time.

When Coleman began to work for Skinner, he serviced accounts which he serviced while he was employed with Woodbury. The owner of Skinner testified he thought accounts to whom Coleman now sold for Skinner were accounts Coleman handled while he was employed by Woodbury. Some of the accounts which Coleman now services for Skinner were handled during 1968 and 1969 when Coleman worked for Skinner the first time.

Coleman testified he has not serviced any new accounts which he acquired while working for Woodbury. Coleman testified he had serviced the greatest portion of accounts he now has since 1968. Since he has worked for Skinner, he has picked up a few accounts; however, they were referrals from accounts he already had.

Coleman admits he knew of the contents of the sales contract he signed when he began his employment with Woodbury. He also realized national companies were not enforcing similar contracts because of “public relations.”

In its brief Woodbury says the issues for decision by this court are: (1) whether the provisions of the sales contract between Woodbury and Coleman are valid and enforceable under Georgia law; and (2) whether the trial court erred in refusing to enjoin Coleman from violating the sales contract and Skinner from aiding and abetting in such violation.

We review this case with a presumption in favor of the findings of fact made by the trial court and will not reverse the trial court’s judgment unless we determine it to be plainly and palpably wrong or unless the trial court erroneously applied the law to the facts. Alabama Farm Bureau Mutual Insurance Co. v. Davis, Ala.Civ.App., 354 So.2d 15 (1978); 2A Ala.Dig. Appeal & Error 931(1).

Paragraph thirteen of the sales contract stated that if any question arose concerning the validity of the contract, it was agreed by the parties that Georgia law would govern without reference to the place of execution or performance of the contract. The trial court applied Georgia law. We will review the validity and enforceability of the sales contract by looking also to Georgia law. Evans v. Kittrell, 33 Ala. 449 (1859).

The trial court specifically found paragraph seven of the sales contract invalid and unenforceable because it was in “partial restraint of trade” and unreasonable under the facts of the case. It further found an injunction would result in severe detriment to the defendant Coleman, and this detriment would far exceed any benefit which Woodbury would derive or the interest it has to protect.

We note paragraph seven of the contract is better known as a “restrictive covenant.” Contracts which are in “general restraint” of trade are against public policy and thus void. Ga. Code Ann. § 20-504 (Cum.Supp.1976). Restrictive covenants in employment contracts against competition are considered in “partial restraint” of trade and are more closely scrutinized than covenants relating to the sale of a business. Orkln Exterminating Company of South Georgia v. Dewberry, 204 Ga. 794, 51 S.E.2d 669 (1949). Such covenants will be upheld only if strictly limited in time and territory and if otherwise reasonable considering the business interest of the employer to be protected and the effect on the employee. McNease v. National Motor Club of America, Inc., 238 Ga. 53, 231 S.E.2d 58 (1976).

Whether the restraints imposed by an employment contract are reasonable is a question of law for determination by the court. Orkin, supra.

In brief Woodbury relies principally upon the case of Kirshbaum v. Jones, 206 Ga. 192, 56 S.E.2d 484 (1949), for the proposition that a restrictive covenant against competition need not contain a specific geographical territorial limitation in addition to a prohibition against soliciting customers of the former employer for the new employer.

The restrictive covenant in Kirshbaum did not contain a specific geographic territorial limitation, but did contain a prohibition against “ ‘solicitpng] or attemptpng] to solicit the business or patronage of any of the customers of the employer heretofore served by the employee during his term of employment.’ ”

Although the employment contract was not to be effective until July 1, 1976, it was signed on or about the same time as the letter agreement dated December 19, 1975. The letter agreement set out the territory within which Coleman was to work. Wood-bury takes the position the letter is not part of the employment contract; and therefore the only limitation on geographical territory would be that territory which contained Woodbury’s former customers. This is the same factual situation that existed in Kirshbaum. Accordingly, it would appear that the rule established in Kirshbaum would be controlling in the case at bar. It would, except for a recent Georgia Supreme Court case styled Fuller v. Kolb, 238 Ga. 602, 234 S.E.2d 517 (1977).

In the Fuller case, the employment contract provided that the employee agrees that:

“ ‘[F]or a period of two years subsequent to the termination of this agreement, he not render public accounting services, either as a practitioner, or as an employee of another practitioner, for any organization or individual which was a client of Fuller and DeLoach or of a predecessor firm at the time of termination or which had been a client within a year thereto

The facts in the cited case show that the employee quit his job with Fuller and went into business for himself and, subsequently, performed accounting services for several of appellant’s former clients. There were no specific territorial limitations in the employment contract.

The Georgia Supreme Court said:

The covenant which we are asked to consider in this case, as it is written, has no territorial limitation. The absence of such a limitation renders it void. See Colonial Life & Accident Ins. Co. v. Byrd, 227 Ga. 198,179 S.E.2d 746 (1971); Edwin K. Williams & Co.-East v. Padgett, 226 Ga. 613,176 S.E.2d 800 (1970). The problem inherent in restrictive covenants which do not have territorial limitations is one of notice to the former employee.
Appellant argues that this case should be controlled by Kirshbaum v. Jones, 206 Ga. 192, 56 S.E.2d 484 (1949). In Kirsh-baum, the court upheld a restriction which was written without a territorial limitation. There the court found “[w]ith respect to the territorial limitation, the employee was prohibited from soliciting the employer’s customers whom he had served, and the territory would necessarily be limited to that specific area.” (Emphasis supplied). The opinion in Kirsh-baum does not point out . . . the locality involved in that case. Appellant observes, and we agree, that Kirshbaum is in apparent conflict with later cases such as Colonial Life and Williams, supra. Therefore, Kirshbaum is disapproved insofar as it intimates that a restrictive covenant in an employment contract is enforceable without an explicit territorial limitation.

Applying the rule in Fuller, we find the restrictive covenant void, for it did not contain a specific territorial limitation.

Accepting for argument’s sake, however, Coleman’s argument that the letter agreement setting out the territorial limitations should be construed as being a part of the employment contract because the two were executed contemporaneously and, therefore, that the combined employment agreement does contain a specific territory in addition to a time limitation, Woodbury still could not enforce the covenant to not compete.

The letter agreement provides in part as follows:

TERRITORY
The Montgomery Branch will consist of the following counties: Montgomery, Bullock, Macon, Elmore, Autauga, Dallas, Lowndes, Butler, Crenshaw and Troy. The area outside these counties may be assigned to this branch as the need arises. It is also understood that your present customers in Opelika and Auburn, Alabama (Lee County) will be assigned to this branch. [Emphasis added.]

It should be noted that not only does the letter provide for specific cities and counties in which Coleman was to solicit customers, but it also provided that: “the area outside these counties may be assigned to this branch as the need arises.” This provision in the letter agreement is too broad. It appears to be designed as a catchall and would permit Woodbury to serve areas in which it has only a hope of doing business.

In Orkin, supra, it was held that a provision in an employment contract prohibiting a former employee from soliciting customers of his employer in certain named cities and within a seventy-five mile radius of each of the named cities is broader than reasonably necessary, particularly where the employer has never had customers in the area outside the cities and the extension of the business into those areas rests only on a hope and desire that new business could be generated in those new areas. The Orkin court said such a contract is unreasonable, i. e. it is not necessary for the employer and is oppressive to the employee; consequently, it is contrary to public policy and void.

Likewise, in the case at bar, the letter agreement allowed the employer to extend the territorial limits into areas where it had no customers and had only the hope of obtaining new customers. Such a territorial limitation is contrary to the Orkin rule and is void.

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

AFFIRMED.

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

On Rehearing

Counsel for the appellant, Woodbury, argues that Fuller v. Kolb, 238 Ga. 602, 234 S.E.2d 517 (1977) is not controlling in the instant ease because of the existence of the “full bench rule.” In effect, the “full bench rule” required a unanimous decision of the supreme court to overrule a unanimous decision of that court. Woodbury contends Kirshbaum v. Jones, 206 Ga. 192, 56 S.E.2d 484 (1949) is controlling precedent in that it was rendered by a full bench; consequently, Fuller could not overrule it because only six justices participated in Fuller which is less than required by the rule.

We point out the case of Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975), which said the “full bench rule” has been repealed and that the repeal occurred sometime ago. Furthermore, the court noted Ward v. Big Apple Super Markets, 223 Ga. 756, 158 S.E.2d 396 (1967) in which the court agreed the “full bench rule” had “not had legal existence since the adoption of the 1945 Constitution . . . Art. VI, Sec. II, Par. VII’of that Constitution (Code Ann. § 2-3707) expressly withdrew the power from the General Assembly to enact regulations governing the manner in which this court could hear and determine cases

We therefore reaffirm our holding that Fuller is controlling in this case and find no merit in Woodbury’s argument on rehearing.

APPLICATION FOR REHEARING OVERRULED. OPINION EXTENDED.

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


author: WRIGHT, Presiding Judge.

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HAMILTON, Alabama v. The ALABAMA NATIONAL BANK OF MONTGOMERY, Alabama, a corporation, Oscar F. Pugh, Administrator of the Estate of Excel B. Pugh, Deceased.
    Civ. 1711.
    Court of Civil Appeals of Alabama.
    June 20, 1979.

      John D. Self, Hamilton, for First Federal Sav. & Loan Assn, of Hamilton, Ala., appellant, cross-appellee.
    J. Douglas McElvy, Tuscaloosa, for The Alabama Nat. Bank of Montgomery, appel-lee, cross-appellant.
    Nelson Vinson, of Vinson & Guyton, Hamilton, for appellee, Oscar F. Pugh, Administrator of the Estate of Excel B. Pugh, deceased.
   WRIGHT, Presiding Judge.

This controversy arose out of the following facts: Plaintiff was appointed administrator of his son’s, Excel Pugh’s, estate on December 2, 1974. At the time of his death, Excel Pugh owed Alabama National a debt which was insured by a credit life policy. The insurance proceeds exceed the balance owed on the debt by $2,501. On February 10, 1975, after receiving notice of death and inquiry as to the benefits of the policy, Alabama National issued a check for $2,501 payable to “The Estate of Excel Pugh,” and sent the check to an address in Winfield, Alabama, indicated in the file as that of the deceased. The check came into the possession of Ruby Pugh, a former wife of Excel Pugh who had been divorced from Pugh prior to his death. The check was presented at First Federal Savings & Loan of Hamilton (FFS&L) in Winfield by Ruby Pugh, and endorsed “The Estate of Excel Pugh.” A savings account was opened in the name of Douglas Wayne Pugh or Ruby Pugh equal to the amount of the check by FFS&L. Douglas Wayne Pugh was a minor child of the deceased. FFS&L endorsed the check “All Prior Endorsements Guaranteed,” and deposited it in the Winfield State Bank from whence it was forwarded through commercial channels to Alabama National for payment on February 14, 1975. Plaintiff learned of the existence of the credit life policy on October 26, 1977, and called upon Alabama National for payment of the proceeds. Alabama National did not receive a copy of letters of administration on the estate of Excel Pugh until October 31, 1977. It immediately called upon the Winfield bank and FFS&L for payment. They refused. Plaintiff filed suit against Alabama National and FFS&L. Alabama National filed cross-claim against FFS&L. The trial court found in favor of plaintiff in the amount of $2,501 against defendants, and against FFS&L for $2,501 in favor of Alabama National on its cross-claim. FFS&L filed an appeal. Alabama National moved to dismiss the appeal on the ground of lack of notice under Rule 3(d)2, ARAP. If the motion is to be denied, Alabama National seeks to cross appeal for failure of trial court to award it attorney fees. Plaintiff in brief also claims error in failure to grant it interest in the judgment.

Plaintiff did not appeal the trial court’s judgment. He has no right here to complain of error. The motion of Alabama National to dismiss the appeal is denied. Failure to properly serve copies of notice of appeal as directed by Rule 3(d), ARAP is not jurisdictional. (Rule 2, ARAP. Commentary to Rule 3.) The motion to dismiss fails to sufficiently support its allegation of lack of service of notice. Neither may an appeal be prosecuted as an alternative to a favorable ruling on a motion to dismiss. Alabama National’s right to appeal was not derivative from that of FFS&L. It had its own appeal of right under Rule 3 if it desired to do so. It failed to comply with that rule. We do not decide whether Alabama National had sufficiently saved error by failing to file a post-trial motion under Rule 59, ARCP.

The primary issue is whether judgment in favor of Alabama National and against FFS&L as the guaranteeing endorser of the check was erroneous. We hold that it was not.

The cross-claim of Alabama National claimed right of recovery under either § 7-3-417 or § 7-4-207, Code of Alabama (1975). FFS&L contended in defense that Alabama National should not recover because of its negligence in drawing the check to “The Estate of Excel Pugh,” and by mailing it thereafter to an address other than that of the administrator. The evidence fails to support the charge of negligence as provided by § 7-3-406, Code of Alabama (1975). To the contrary, there was substantial evidence to the effect that Alabama National followed accepted banking practice in its actions. We wrote to such a charge of negligence filed as a defense against the suit of the payor bank in the case of East Gadsden Bank v. First City-National Bank of Gadsden, 50 Ala.App. 576, 580, 281 So.2d 431, 435 (1973). We said “such defense would only be available if the collecting bank had paid the check in accordance with reasonable commercial standards.” The evidence is clear that FFS&L accepted an endorsement of one not legally the payee without requiring proof of identity, and then guaranteed all prior endorsements when forwarding the check for collection. Such an acceptance was stated to be contrary to reasonable banking standards.

FFS&L further presents as a defense failure of Notice of Dishonor under § 7-3-501(2). That defense too must fail. Section 7-3-416(5) provides that “[w]hen words of guaranty are used . . . notice of dishonor . . are not necessary to charge the user.” It is further to be noted that § 7-3-511(1) provides that “notice of dishonor is excused when the party is without notice that it is due or when the delay is caused by circumstances beyond his control and he exercises reasonable diligence after the cause of the delay ceases to operate.” The evidence was that Alabama National gave notice of dishonor promptly upon learning of the forged endorsement. We pointed out the duties of the collecting bank and of the payor bank in accepting endorsements of check in the case of Birmingham Trust National Bank v. Central Bank & Trust Co., 49 Ala.App. 630, 275 So.2d 148 (1973).

FFS&L also contends that the provisions of § 7 — 4-207 as to warranties of customer and collecting bank when presenting or transferring items for payment do not apply to it, because it is not a collecting bank. We pretermit deciding the correctness of that contention because Alabama National is not limited in this case to recovery upon the statutory warranties of § 7-4-207, but is entitled to recover under the express contract of guarantee of endorsement given by FFS&L. § 7-3 — 416, Code of Alabama (1975). However, were it necessary to affirming the judgment in this case, we would consider whether FFS&L, by accepting the endorsement of the check, crediting its amount as a deposit in an account and forwarding it through commercial banking channels for collection, was acting in the capacity of a collecting bank or at least a customer as defined by § 7-4-104(l)(e), and should be subject to the provisions of § 7-4-207.

As we affirm the judgment in favor of Alabama National and against First Federal Savings and Loan of Hamilton upon authority of § 7-3 — 416 and not upon authority of § 7-4-207, there is no power in this court to grant attorney fees. We find no statutory authority to do so in § 7-3 — 416 or that contained in § 7 — 4-207(3).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charles B. CURTIS v. ALABAMA ELK RIVER DEVELOPMENT AGENCY, INC.
    Civ. 1717.
    Court of Civil Appeals of Alabama.
    June 20, 1979.
    Phillip Smith of Giles, Anderson & Smith, Huntsville, for appellant.

      Winston V. Legge, Jr. of Patton, Latham & Legge, Athens, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff was an employee of Alabama Elk River Development Agency, Inc. He brought suit against Elk River seeking recovery under the Workmen’s Compensation Act for alleged injuries received during the course of his employment. Elk River moved to dismiss the action on the ground that it was an agency of the state and immune from actions against it under art. 1, § 14 of the Alabama Constitution. The motion to dismiss was granted and plaintiff appeals. We affirm.

The Elk River Development Agency, Inc. (Elk River) was established by act of the legislature in Í965, now appearing in the Code of Alabama (1975) as § 33-12-1. Its establishment was further specifically authorized by Amendment 243 to the constitution, also ratified in 1965. Section 33-12-1 begins, inter alia, as follows:

[TJhere is hereby authorized and shall be established as hereinafter provided a state development agency for the Alabama portion of the Elk river watershed. The agency, when incorporated in accordance herewith, shall be an instrumentality of the state of Alabama.

There are provisions in the act providing that the agency may sue and be sued in its corporate name and that its employees “shall not be subject to the state merit system but they shall be members of the employees retirement system of Alabama the same as other employees in state service.”

Plaintiff in contending that Elk River is not protected from suit by § 14 of the constitution relies primarily upon statements by our supreme court in the cases of Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971), and Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115 (1966). In those cases the issue presented was whether the creation of those authorities was violative of the Alabama Constitution, primarily §§93 and 213. The court in Knight, in large part, relied upon what it had said in Ed-monson. Section 93 of the constitution forbids the “State” from engaging in certain activities such as works of internal improvement, lending money or extending credit in aid of such, etc. Section 14 prohibits the “State” from being made a defendant in any court. The court in Edmonson said that the “State” as referred to in the constitution is an entity separate and distinct from its political subdivisions such as cities and counties and from public corporations established by acts of the legislature. The actions of such corporations are not acts of the “State” because they are made “independent entities” by the terms of the creating act.

It must follow that if a public corporation is a separate entity and its acts are not the acts of the “State” within the prohibitive provisions of §§ 93 and 213, neither is such corporation the “State” under the provisions of § 14 prohibiting suits against the “State.”

However, the fact that Elk River, as a public corporation, is not protected from suit by § 14 does not bring its employees within the provisions of the Workmen’s Compensation Act. The benefits of that act extend only to those stated therein or not excluded therefrom. It has long been established that employees of the State, its agencies and departments are not within the provisions of the Workmen’s Compensation Law, but must depend for relief upon such as may be had through the State Board of Adjustment. Employers Insurance Co. v. Harrison, 250 Ala. 116, 33 So.2d 264 (1947); Breeding v. Tennessee Valley Authority, 243 Ala. 240, 9 So.2d 6 (1942); § 41-9, art. 4, Code of Alabama (1975). Plaintiff is an employee of an agency of the State and must seek compensation for his injury from the State Board of Adjustment.

The judgment dismissing plaintiff’s action for workmen’s compensation was correct.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Nicholas BERRYHILL v. STATE of Alabama.
    Civ. 1809.
    Court of Civil Appeals of Alabama.
    June 20, 1979.
    Robert W. Walker of Walker & Mus-grove, Florence, for appellant.
    No appearance for the State.
   WRIGHT, Presiding Judge.

This is an action brought under § 28 — 4-285, Code of Alabama (1975) to condemn as contraband a truck used to transport alcoholic beverages for resale in a dry county. A motion to suppress the evidence because of an illegal search and seizure was heard and denied. Judgment of forfeiture and condemnation was entered. Defendant claimant appeals. The issue is whether the court erred in denying the motion to suppress. We find it did err and reverse.

The testimony disclosed that after dark on the evening of November 11, 1978, the sheriff of Lawrence County a dry county, while patrolling in an automobile with some deputies on Highway 20, came upon a truck travelling that highway. He noted that it was a covered van. It appeared to have been recently painted a deep blue color and carried a Florida license plate. It was clean and had no road film even though it had rained earlier. Being familiar with the method of operation of bootleggers and whiskey haulers in the area, the sheriff was suspicious of the truck and decided to stop it and check the license of the driver. After stopping the truck, the sheriff proceeded to the driver’s side and requested a license inspection. In the meantime, a deputy had approached the truck and shined his flashlight upon the van door. He observed an opening “about the width of a penny.” Upon shining his light through the opening he could see Budweiser beer. The driver was then arrested. The truck was carried to the courthouse, opened without aid of a search warrant, and found to contain 608 cases of beer and twenty-five cases of liquor.

We consider this appeal only on brief of appellant. The state has not favored us with a brief.

We begin our decision by observing that although a motion to suppress, or the exclusionary rule, is available only in criminal proceedings, it has been held that a forfeiture proceeding such as this is criminal in nature though civil in form and subject to the protections of the fourth amendment to the United States Constitution. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). One 1958 Plymouth Sedan v. Commonwealth of Pa., 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). In the latter case, it was pointed out that forfeiture of property is a penalty for the criminal offense as much as a fine. The court said, “It would be anomalous indeed ... to hold that in the criminal proceeding, the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated the same evidence would be admissible.” It is to be noted that our Alabama Supreme Court has held that § 28-4-285 is highly penal and is to be strictly construed. Franklin v. State, ex rel. Trammell, 275 Ala. 92, 152 So.2d 158 (1963).

Stopping and Searching

It was held in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) that the most basic constitutional rule in this area is that searches conducted without a warrant are per se unreasonable under the fourth amendment, subject only to a few specifically established and well-delineated exceptions. We do not have before us the position of the State as to which of the exceptions to the rule the warrantless search and seizure of the truck in this case might come under. However, from the testimony produced below, it would have to be founded upon a contention that the stopping of the vehicle was permissible for probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) established the rule that an automobile could be stopped and searched by a competent official, authorized to search, without a search warrant, if he had probable cause for believing that it carried contraband or illegal merchandise.

The sheriff in this case testified that because of the clean, fresh-painted appearance of the truck and the Florida license, he formed a suspicion that it might be being used to transport illegal liquor. He said he then stopped it just to check the driver’s license. This testimony presents two aspects of the stopping — that of suspicion of transporting merely because of the paint, cleanliness and a Florida tag and to check the license. It must be inferred that the latter reason was merely an excuse to stop and find further support for his suspicion. It cannot reasonably be inferred that the sheriff was in fact concerned about whether the driver of the truck was properly licensed. Assuming however, for argument, that the sheriff had a legal right to stop the truck for the purpose of checking his driver’s license, there still remains the question of whether there existed probable cause for a- warrantless search for prohibited liquor. Even if there existed an “articulable and reasonable suspicion” sufficient to stop and detain, there could be no warrantless search without probable cause. Kinard v. State, 335 So.2d 924 (Ala.1976). There can be no reasonable argument that the matters articulated as arousing the sheriff’s suspicion — i. e., the fresh paint, the clean vehicle and Florida tag, can be elevated to the dignity of probable cause for believing that the truck was carrying prohibited liquor. The sheriff was honest when he said or implied that his “suspicion” was largely due to a feeling or hunch. Such feelings, instinct, or hunch of a law enforcement officer are not to be denigrated. This court recognizes the value of these impulses in police work. They are often proved correct. On the other hand they often prove totally wrong. They are not sufficient to establish probable cause. Carroll v. U. S., Supra.

The Plain View Exception

From the testimony of the sheriff and the ruling of the court on the motion to suppress, it is assumed by claimant that the plain view exception to the rule requiring a warrant for a search is applicable in this case. We are unable to see a basis for application of the “plain view” exception in this case. First, the disclosure of contraband in a closed and locked van by shining a flashlight through an aperture the width of a penny cannot be classified as “plain view.” Such disclosure was in fact the result of a search. Second, we have already said that there was no legal justification for stopping the vehicle nor for the intrusion into a closed and locked van by shining a flashlight through a small crack in the door. The court said in Coolidge, “[w]hat the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification ■ . . ., and permits the warrantless seizure.” The court said in Kinard that “it is well-settled law that a search cannot be made legal by what is turned up by the search.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Therefore, to summarize, the “plain view” exception does not apply because there was not present the prior justification of probable cause for the stopping and detaining of the vehicle. Kinard v. State, Supra. For the same reason, the stopping and searching of the vehicle was illegal and violative of the fourth amendment. Carroll v. United States, Supra.

The court erred in denying the motion to suppress. The judgment of condemnation is reversed and the cause is remanded for further proceeding not contrary to this decision.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . These are enumerated as six by Justice Bloodworth in the case of Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), and as seven in his article entitled “Where Search and Seizure is Today” in 40 Ala.Law. 444 (October 1978).

      . The recent cases of U. S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. U. S., 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973): and Delaware v. Prouse, - U.S. -, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) have established that a roving patrol or casual stop and detention of a driver of an automobile in order to check his driver’s license or registration of the automobile violates the fourth amendment unless there is at least articulable and reasonable suspicion that the driver is unlicensed, the automobile unregistered or that the vehicle or an occupant is otherwise subject to seizure for violation of the law.

      . The “plain view” exception is “articulated” in Coolidge and quoted therefrom in Kinard.


text:
    Damon DENNIS, Jr. v. Annetta Renee SCARBOROUGH.
    Civ. 1814.
    Court of Civil Appeals of Alabama.
    June 20, 1979.

      Reggie Stephens, and Michael Scheuer-mann, Mobile, for appellant.
    Michael Gillion, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from jury verdict and judgment for defendant in an action for damages arising from an automobile accident.

The issue presented is that the verdict and judgment thereon are contrary to the great preponderance of the evidence.

It continues to be the law that only error asserted and ruled upon by the trial court may be asserted on appeal. Rule 4(a)(3), ARAP. The issue of the weight of the evidence when there is a jury verdict can be raised only by a post-judgment motion. Plaintiff filed no such motion. There is no ruling of the trial court available for presentation on appeal. Woods v. Westbrook, 356 So.2d 153 (Ala.1978); Porter v. Alabama Farm Bureau, 279 Ala. 499, 187 So.2d 254 (1966).

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.