author: PER CURIAM. SHORES, Justice

text:
    Robert J, WRIGHT, an Individual, et al. v. ALABAMA POWER COMPANY, a corp.
    SC 2561.
    Supreme Court of Alabama.
    Jan. 6, 1978.
    Rehearing Denied March 10, 1978.
    R. Ben Hogan, III, and George C. Hawkins, Gadsden, Hogan, Smith & Alspaugh, Birmingham, for appellants.
    C. William Gladden, Jr., Birmingham, for appellee.
   PER CURIAM.

This is an appeal taken from a directed verdict entered in favor of the defendant at the close of the plaintiff’s evidence. Plaintiff, Robert J. Wright, sought damages for his injury and his wife sought damages for loss of his consortium, for “willful or malicious failure ... to warn or guard against” a certain fence on Alabama Power Company property which the plaintiff asserted constituted a dangerous instrumentality to members of the public who used Lake Neely-Henry near Gadsden.

The suit grew out of an incident which occurred July 19, 1975. Wright, retired from the Navy Submarine Service, suffered injuries when he collided with a fence partially submerged in the lake while he was riding backward on an inner tube attached by a ski rope to a power boat. The boat was being driven at a high rate of speed by a friend who testified that he saw the fence and stopped the boat, but that the force of the boat’s turn carried the inner tube into a collision course with the fence. The lake was created when Neely-Henry Dam was constructed on the Coosa River by Alabama Power Company. Prior to building the dam, the Power Company purchased land on both banks of the river up to the datum plane of 511 feet above mean sea level.

The fence which Wright struck was a metal and wooden one which was placed on the property before it was purchased by the Power Company. The original fence belonged to Alabama Technical College and extended to the bank of the Coosa River, and was constructed to prevent cattle owned by the trade school from wandering onto adjacent land. When the dam was built and the lake was created, the fence extended into the lake for a distance of some 50 feet and would become partially submerged during periods when the water level reached its peak. At other times, the fence would be out of the water.

The plaintiff argues that Alabama Power Company knew the fence was on the property and willfully determined not to remove it and willfully determined not to place any guards or warnings around or in the vicinity of the fence before flooding the area.

Plaintiff claims the Power Company had knowledge of the existence of the fence because the Company had the land surveyed and cleared of trees and brush before the dam was built and the water level was raised. Plaintiff contends, therefore, that a jury could infer from these facts the requisite knowledge of the condition, from which the jury could infer that the Company knew of the dangerous condition and willfully or maliciously failed to warn or guard against it.

In short, plaintiff contends that there was a scintilla of evidence that the company is liable under the exception contained in § 3 of Act No. 463, Acts of Alabama 1965, approved August 19, 1965, page 663, § 35-15-4, et seq. Code 1975.

Act No. 463 recites:

“To clarify and codify the common law with respect to the duty of care owed by landowners towards persons who may be upon their premises for hunting, fishing, sporting or recreational purposes and not for purposes connected with the landowner’s business.
“Be It Enacted by the Legislature of Alabama:
“Section 1. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry and use by others for hunting, fishing, trapping, camping, water sports, hiking, boating, sight-seeing, or other recreational purposes, or to give any warning of hazardous conditions, use of structures or activities on such premises to persons entering for the above-stated purposes, except as provided in Section 3 of this Act.
“Section 2. An owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, sight-see, or engage in other sporting or recreational activities upon such premises, does not thereby (a) extend any assurance that the premises are safe for such purpose; (b) constitute the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act of such person to whom permission has been granted, except as provided in Section 3 of this Act.
“Section 3. This Act does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to hunt, fish, trap, camp, hike or sight-see was granted for commercial enterprise for profit; or (c) for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike or sight-see was granted to third persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owed a duty to keep the premises safe or to warn of danger.
“Section 4. Nothing in this Act creates a duty of care or ground of liability for injury to person or property.
“Section 5. Nothing in this Act shall be construed as granting or creating a right for any person to go on the lands of another without permission of the landowner.
(i ‡ * * »

More than half of the states now have laws similar to Act No. 463. The first of these was apparently enacted in Michigan in 1953. M.C.L.A., § 300.201; M.S.A., § 13.1485. The Michigan Court of Appeals held in Estate of Thomas v. Consumers Power Co., 58 Mich.App. 486, 228 N.W.2d 786 (1975), that:

“ * * * [TJhis statute does not change the common-law duty of owners and occupiers of property owed to those who come upon such property as mere licensees . . . . The act is merely a codification of tort principles which are universally recognized in common-law jurisdictions.
“ * * * The act in question has the undoubted purpose of furthering recreational activities in Michigan by making certain areas available for such purposes while clearly restating the common-law liability of owners to those who come gratuitously upon their land. . . . The statute neither restricts nor adds to the common-law rights of the plaintiffs.” (228 N.W.2d at 789, 790)

The Alabama Act expressly states that its purpose is “to clarify and codify the common-law with respect to the duty of care owed by landowners . . . (emphasis supplied).

The Act was intended to insure that landowners were not to be held to a standard of due care toward persons upon their land with permission for hunting, fishing and recreational purposes. The first of these acts was passed when forest owners opened their lands to deer hunters after suffering damage to their forests from excessive deer. The forest owners later became concerned about their potential liability for injuries suffered by those who had been invited on their land to hunt deer; therefore, they sought a statutory limitation upon their liability. Copeland v. Larson, 46 Wis.2d 337, 174 N.W.2d 745 (1970). The legislation places persons upon the land with permission or invitation, but for purposes unrelated to the owner’s business, in the status of licensees with the landowners’ duty being the duty owed to licensees.

The plaintiff in this case was on the premises with at least the implied permission of the Power Company. The Power Company does not deny that members of the general public freely engage in water sports on Lake Neely-Henry. The plaintiff is, then, by statute, considered a licensee.

The issue here is: whether the trial court should have submitted the issue to the jury. A similar question as was presented this Court in W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375 (1963). The test to be used to determine the propriety of a directed verdict is found in Rule 50(e), A.R.C.P., which reads as follows:

“The demurrer to the evidence, the motion to exclude the evidence, and the affirmative charge with or without hypothesis, are hereby abolished. The court may direct a verdict, or enter judgment in accordance with the motion for directed verdict, or enter judgment notwithstanding the verdict under this rule, whether or not the party making the motion has the burden of proof, in accordance with the scintilla evidence rule.”

We discussed this rule in detail in Loeb and Co., Inc., v. Martin, 295 Ala. 262, 327 So.2d 711 (1976). In Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975), this Court, referring to Rule 50(e), stated:

“Whether or not the scintilla rule requires a given case to go to the jury is dependent upon the substantive law.”

The duty of care owed by landowners to licensees was generally expressed by this Court in Fowler, supra, as follows:

“The duty of one who owns or is in possession of property towards a licensee is not only to abstain from inflicting intentional, willful or wanton injuries, but to refrain from exposing such licensee to new hidden dangers, such as traps, pitfalls or obstructions which arise through his active negligence, [citations omitted]. * * * A trap or pitfall need not be intentionally set to catch a licensee who has been using the premises. A statement to that effect in Alabama Great Southern R. Co. v. Campbell, supra [32 Ala.App. 348, 26 So.2d 124], must be read in the light of the exact holding in.the case there cited, Hayward v. Drury Lane Theatre, 1917, 2 K.B. 899, 914, where it was said:
“ * * The owner is under no liability as to existing traps unless he intentionally set them for the licensee, but must not create new traps without taking precautions to protect licensees against them. . . . ’
******
“This duty does not restrict the owner or possessor’s right to make use of the property or to make such changes therein as he may desire, but requires him, if he does any positive act creating a new danger to a person who may exercise the license, to give to such licensee reasonable notice or warning of the new danger or to exercise reasonable care to provide safeguards against such new danger. (emphasis added).

The complaint in Fowler charged that the defendant had placed on a roadway under construction, which was used by members of the public with the defendant’s acquiescence, a dangerous obstruction which constituted a trap or pitfall. In that case, the defendant left a steel boom of a crane or dragline extended across one side of the roadway about three feet above a partially completed ditch. The plaintiff was injured when the truck in which he was riding collided with this dragline. On appeal, the defendant argued that the judgment for the plaintiff could not stand, because he was a bare licensee, and the failure of the defendant to place warning lights on the crane boom at nighttime, even though it was known that persons used the road being constructed, did not constitute wantonness. This Court rejected that argument, and held that there was evidence which justified a submission of the issue to the jury.

We are faced with the same problem as was the Fowler court, i. e., whether as a matter of law the facts of this case place a duty on the Power Company to give Wright proper warning.

As we read the Fowler decision, it stands for the proposition that a landowner will generally owe no duty to warn a licensee of a potentially dangerous condition unless he does some positive act which creates a new hidden danger, pitfall or trap, which is a condition that a person could not avoid by the use of reasonable care and skill. See Alabama Great Southern R. Co. v. Campbell, 32 Ala.App. 348, 26 So.2d 124 (1946). Otherwise, a landowner has the right to make use of his land as he may see fit. Fowler, supra. The licensee’s entrance on the land carries with it no right to expect the land to be made safe for his reception, but he must assume the risk of whatever may be encountered. See McMullan v. Butler, 346 So.2d 950 (Ala.1977); Prosser, The Law of Torts, p. 375 (4th ed.). Once he is there, the law only requires the landowner to refrain from wantonly, maliciously or intentionally injuring him; in other words, the landowner is not liable unless he does some act which goes beyond mere negligence.

The pivotal question is whether a partially submerged fence can be classified as a trap or pitfall. Applying the facts of this case to the law, we hold that this fence was not a hidden trap or pitfall. In Great Southern R. Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964), this Court stated:

“Submerged conditions hidden by the water, but adding to the danger of a trespasser entering the pool are not to be regarded as a pitfall or trap. . . .”

Even though the Green decision involved the death of a trespassing child, the definition of a trap or pitfall with regard to submerged objects found in bodies of water is controlling.

There is another reason we find that the fence, under the facts of this case, cannot be considered a trap or pitfall. It was undisputed that the fence had been in place since Lake Neely-Henry was built. In fact, for much of the year the fence was out of the water; only when the lake reached its high level mark did part of it become submerged. According to the testimony of Wright’s witness, Jimmy Ray McClendon, who was a marine policeman with the Alabama Conservation Department, the fence had been there since he began patrolling the lake. In fact, he testified that one of his duties was to report dangerous conditions, but that he considered the fence to be of no concern since it was open and obvious.

Wright occupied the status of an ordinary licensee who is exposed to a potentially dangerous condition; as such, there is no duty on the Power Company to give Wright a warning about objects existing or conditions brought about by the Power Company’s use of its land — raising and lowering the level of the lake.

The effect of our holding is in line with cases such as McMullan v. Butler, supra, wherein this Court held:

“ * * * Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e. g., waxed floors, slipped rugs, toys in unexpected places, etc., etc.).” (emphasis added).

Our holding should not be construed as saying that a landowner’s positive acts which create a new hidden danger, trap or pitfall would not be actionable. Fowler, supra.

The plaintiff also argues that the trial court erred in allowing the Power Company to file responses to the plaintiffs’ requests for admission more than thirty days after the requests were served on the Power Company. We have recently held that the trial court may, in its discretion, allow late responses to requests for admission. Our review is limited to abuses of discretion. Evans v. Insurance Co. of North America, 349 So.2d 1099 (Ala.1977). We find no abuse of that discretion here.

AFFIRMED.

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

FAULKNER, JONES, SHORES and EM-BRY, JJ., dissent.

SHORES, Justice

(dissenting):

I respectfully dissent. I believe the plaintiffs in this case are entitled to have the jury pass on the issue of the Power Company’s liability to them, even though they are, by virtue of the act set out in the majority opinion, mere licensees. In fact the Fowler case, upon which the majority relies, clearly states that where the landowner “. . . does any positive act creating a new danger to a person who may exercise the license, to give such licensee reasonable notice or warning of the new danger or to exercise reasonable care to provide safeguards against such new danger.” (276 Ala. at 600, 165 So.2d at 382). A jury could find that the Power Company, by causing the fence in this case to be partially submerged, has created a new danger, thereby giving rise to a duty to warn and safeguard against such danger. In fact, this court expressly so held in Fowler, a factually similar case, saying:

“Despite defendant’s knowledge of the traffic, no lights, signs or warning devices of any kind were present to warn a traveler of the presence of the ditch and dragline.
“Under the evidence when reviewed in the light most favorable to the plaintiff, the jury could have determined: (1) That the ‘road under construction’ signs had not been used to block the roadway for a long period of time; (2) that no lights at all were put out by the defendant, the Fowler Company; (3) that the defendant took no steps to stop the use of the road by the general public, which road was used regularly by approximately one thousand cars a week with at least the implied permission of the Fowler Company, and most of the traffic was in the early morning and late afternoon hours of each day; (4) that notwithstanding knowledge of all these conditions, the Fowler Company’s employees consciously left the dragline extending all the way across one half of the much traveled roadway in such a way that it could not be seen in hours of darkness by a reasonably safe driver of a southbound vehicle approaching the obstruction on an uphill grade in time to stop before colliding with the dragline.” (Emphasis Supplied) (276 Ala. at 602, 603, 165 So.2d at 384.)

Likewise, in the present case there is evidence from which the jury could have concluded: (1) that members of the public openly arid freely used Neely-Henry Lake with the knowledge and acquiescence of the Power Company for boating and other water sports (in fact, this is not denied by the Power Company); (2) that no buoys or other warning marked the existence of a fence submerged in the water; (3) that with knowledge that persons did use the lake for skiing and other water sports, and knowing that the fence was there, the Power Company consciously left the fence standing when it flooded the area with water in such a way that the submerged fence could not be readily seen by persons engaging in such sports; and (4) that no effort was made to guard or warn against this dangerous condition. I believe this was sufficient to submit the case to the jury on the plaintiffs’ claim of willful or malicious failure to warn off the dangerous condition or structure.

Because the trial court directed a verdict for the defendant and did not permit the jury to pass on the issues, I would reverse the judgment appealed from.

FAULKNER, JONES and EMBRY, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Robert E. WHITEHEAD v. CLIX PHOTO CENTERS, INC., et al.
    SC 2305.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Robert E. Whitehead, pro se.
    Lawrence B. Voit, Irving Silver, Mobile, for appellees.
   MADDOX, Justice.

Plaintiff, Robert E. Whitehead, brought an action against Clix Photo Centers, Inc., Baranco Color Labs, Inc., N. Barry Wein-stein and Katie P. Weinstein, claiming that Clix Photo and Baranco owed him $6,519.73, the amount of a promissory note, plus interest at 8%. Plaintiff further alleged that defendants Barry and Katie Weinstein had guaranteed payment to the extent of 25% each of the unpaid balance of the note upon default by Clix Photo and Baranco. The defendants answered, generally denying the allegations and pleading special defenses including failure of consideration and fraud. Defendants counter-claimed, alleging that Whitehead’s fraudulent acts were the proximate cause of damages they allegedly suffered in an amount of $70,000.

Whitehead was incarcerated in the federal prison in Atlanta on a federal conviction after he filed his action. He requested, and was granted, the right to prosecute his action pro se, after his counsel withdrew from the case.

Whitehead, on his own behalf, filed motions for summary judgment and requested the court to issue a writ of habeas corpus ad testificandum in order that he might appear at all pre-trial and trial proceedings. Both motions were denied.

The trial court granted Whitehead’s request to appeal in forma pauperis. Rule 24, A.R.A.P. Whitehead took this appeal and raises two issues:

(1) The trial judge erred in denying his motion for summary judgment.

(2) The trial judge abused his discretion in refusing to grant his request for a writ of habeas corpus ad testificandum.

I

The defendants filed a motion to dismiss Whitehead’s appeal from the order of the trial judge denying his motion for summary judgment. The motion to dismiss is well taken. An order denying summary judgment is interlocutory and is nonappealable unless by permission. 6 Moore’s Federal Practice ¶ 56.21[2]; Dick v. First National Bank of Birmingham, 334 So.2d 922 (Ala.Civ.App.1976).

Having dismissed the appeal, we preter-mit consideration of Whitehead’s argument that the trial judge should have granted his petition for a writ of habeas corpus ad testificandum.

The motion to dismiss the appeal from the order denying Whitehead’s motion for summary judgment is granted.

APPEAL DISMISSED.

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


author: BEATTY, Justice.

text:
    Jack E. BRADFORD v. Sam S. STANLEY and Frances Stanley.
    SC 2430.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      T. M. Brantley, Bay Minette, for appellant.
    Fred W. Killion, Jr., Mobile, for appellees.
   BEATTY, Justice.

This is an appeal from a jury verdict in favor of defendants, the Stanleys, in a suit brought by plaintiff, Jack E. Bradford, to recover damages for physical injury done to his real property when defendants’ dam broke flooding plaintiff’s land. We affirm.

A highway separates the property of plaintiff and defendants which is located in Baldwin County, and a natural stream flows through defendants’ property, goes under the highway, and drains into plaintiff’s pond. An unprecedented rainfall occurred in November, 1975 during which plaintiff’s property was damaged by flood waters from the breakage of defendants’ dam. Mud and debris were deposited in plaintiff’s pond and several objects such as a bench, a fence, and some shrubbery were washed away.

The main question for review is whether the jury wrongfully decided the issue of liability. Plaintiff contends that defendants are liable for the damage to his land because of negligent construction and maintenance of the dam. He urges that it is our duty to reverse because it is clear from the evidence that the jury verdict is wrong.

The record reveals extensive evidence on both sides which contested the construction and maintenance of the defendants’ dam, the cause of its failure, and the cause of the damage to the plaintiff’s property. The jury returned a general verdict for the defendants, and the evidence supports this finding. Moreover, it is well-settled in this state that a jury verdict is presumed correct and the jury’s determination of factual issues will not be disturbed unless it appears plainly and palpably wrong. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).

We believe that the rule of Dekle v. Vann, 279 Ala. 153, 182 So.2d 885 (1966) applies to the facts of this case. As to lands outside a municipality, the lower land bears a servitude to the higher surface and must receive water that flows from the higher land. Under the evidence the jury could have found that plaintiff’s property was located downstream from defendants’ land, and the natural flow of water was toward the plaintiff’s pond. In Law v. Gulf States Steel, 229 Ala. 305, 156 So. 835 (1934) we held that landowners cannot recover for damage to property due to an overflow caused by excessive rainfall if the injury would have occurred regardless of the existence of the dam. . Testimony was given in the present case establishing an extremely heavy rainfall about the time and place in question and to flooding and washout conditions elsewhere in the vicinity. Water marks on trees, and debris on defendants’ property surrounding the dam, indicated that flood waters could have come from upstream and in height that exceeded the Stanleys’ dam itself.

In Alabama Fuel & Iron Co. v. Vaughan, 205 Ala. 589, 88 So. 857 (1921), we held that a defendant was not liable to plaintiff for an overflow of his lands from waters of a creek caused, not by defendant’s negligence, but entirely by natural causes in the form of extraordinarily heavy rains. So in this case, the jury could have found that the rains were so extraordinary and unprecedented as to be acts of God. In its legal sense an “act of God” applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them. Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374 (1902). There is testimony in the record to establish that the rainfall in this vicinity in November of 1975 was a record one. It was a jury question to determine whether or not the rainfall was so unprecedented as to be deemed an act of God, Nashville, C. & St. L. Ry. v. Yarbrough, 194 Ala. 162, 69 So. 582 (1915), and that determination here will not be disturbed.

Plaintiff also contends that the trial court committed reversible error in allowing defense counsel to ask a leading question on direct examination:

Q All right. Let’s talk just a minute, if we may — You say you were doing some repair work throughout the county. Do you have any knowledge of any unusual rain that fell around that period of time, please, sir?
A Yes, sir. There was quite a rain. Q All right. And would this have been somewhere around November of ’75, give or take .
MR. BRANTLEY:
I object to him leading the witness. THE COURT:
I think he is just trying to point out the time.
MR. BRANTLEY:
And I’m objecting .
THE COURT:
Overrule.
MR. BRANTLEY:
We except.
MR. KILLION:
Q All right. Go ahead.
A I don’t remember any specific dates. But it. was a record breaking rain as far as my knowledge of .

Whether to allow or disallow a leading question is within the discretion of the trial court and except for a flagrant violation there will not be reversible error. Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974); Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974); Anderson v. State, 104 Ala. 83, 16 So. 108 (1894). We fail to appreciate any prejudice to plaintiff’s case resulting from this question, therefore we cannot hold that the trial court abused his discretion in allowing this question, if it was leading. As the trial court noted, apparently counsel was attempting to fix the time of the occurrence. Besides, the witness did not answer the question, but replied that he could not remember any specific dates.

The plaintiff also maintains that the trial court erred in overruling his objection to a question directed to a defense witness on direct examination:

A All right. Did Mr. Bradford make any statements to you at that time about his pond filling in with dirt or anything? This is before the rain.
MR. BRANTLEY:
Object to the question as leading the witness.
THE COURT:
Overrule the objection.
MR. BRANTLEY:
We except.
MR. KILLION:
You may answer.
MR. BRANTLEY:
He has, in fact, may it please the Court, told the witness what to say. THE COURT:
Overrule the objection.
MR. BRANTLEY:
We except.

It will be observed that the specific objections to the question were that it was “leading the witness,” and “told the witness what to say.” It is true that a leading question is one which suggests the answer sought; such a question also has been described as one which assumes a material fact not therefore testified to. Williams v. State, 34 Ala.App. 603, 42 So.2d 500 (1949). Applying each test to the question asked, we perceive that the question was not leading as that term is used to describe impermissible questions. As Justice Stone stated in Blunt v. Strong, 60 Ala. 572 (1877): “All the authorities agree, that direct and leading questions may be propounded to any witness, to lead his mind and attention up to any subject, upon which he is called to testify; . . . ” That appears to have been the purpose of this question, rather than to suggest any particular answer. And contrary to the' plaintiff’s claim on appeal that the question assumes a fact to which the witness has not testified, the question does not assume the existence of any fact. The reference to the Bradford pond describes the statements inquired about, but as the question was asked, does not assume that the pond was filled. Accordingly, the trial court’s ruling, based upon the objection made, was correct.

The final question for review is whether the trial court erred in not allowing a witness to state the reaction of certain potential buyers of plaintiff’s property who viewed it after the flood:

BY MR. BRANTLEY:
Q But in your judgment the difference in value of the two times was fifteen thousand dollars, is that correct?
A I quoted the people the price before I got out there. I didn’t know the damage was there until I got there.
Q You quoted it before you went there? A Yes.
Q And after the people you showed it to saw the property, what was their reaction to it?
MR. KILLION:
Object to that.
THE COURT:
Sustain.
MR. BRANTLEY:
I think it’s relevant. He’s gone into it. THE COURT:
Sustain the objection.
MR. BRANTLEY:
We except. That’s all.

Plaintiff contends now that this evidence was admissible as a “spontaneous exclamation,” but when objection to “his ■reaction” was sustained, plaintiff did not make any offer to show what response would have been made. When the question does not on its face show the expected answer, for purposes of appeal the questioning party must make an offer of proof. Greer v. Eye Foundation, Inc., 286 Ala. 63, 237 So.2d 456 (1970). The trial court is vested with a reasonable discretion in determining whether a particular declaration falls within the “spontaneous exclamation” exception to the hearsay rule, Jones v. State, 53 Ala.App. 690, 304 So.2d 34 (1974). We fail to see how that discretion could have been abused here when that court was not apprised of either the statement itself or the circumstances under which it was made. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954).

Let the judgment of the trial court be affirmed.

AFFIRMED.

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


text:
    MID-STATE HOMES, INC., a corp. v. James Dee BROWN et al.
    SC 2498.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    R. A. Norred, Birmingham, for appellant.
    No brief for appellee.
   BEATTY, Justice.

The plaintiff appeals from a judgment for the defendants arising out of an action in the nature of an action of ejectment and Title 7, § 959, Alabama Code (Recomp.1958) (now Code oí Ala. 1975, § 6-6-298). We reverse and remand.

An earlier opinion, Mid-State Homes, Inc. v. Brown, 294 Ala. 242, 314 So.2d 836 (1975), furnishes a review of the factual background of the present controversy. In that case this plaintiff had brought an action in the nature of an action of ejectment for this same property, claiming title through the foreclosure of a mortgage and a foreclosure deed in which plaintiff was grantee. The defense was an accord and satisfaction under which the defendants gave the plaintiff a “new” mortgage on the real property in exchange for a quitclaim deed divesting plaintiff of all its interest in the property. We upheld the jury’s verdict for the defendants in that case.

Following that decision, Mid-State brought this present action in July, 1975, alleging:

1. That the Plaintiff has legal title to, and is immediately entitled to the possession of, the following described real estate; to-wit:
Lot No. 11 Block ‘B’ in Lee Ridley Subdivision No. 1 to Scottsboro, Alabama according to the map or plat of said Subdivision as recorded in Plat Book ‘A’, page 176 in the office of the Judge of Probate of Jackson County, Alabama, and being a part of that certain property so described in Deed Volume 198, page 673, of the Deed records of Jackson County, Alabama.
2. That the Defendants entered thereupon, and unlawfully withhold and detain said real estate.

The defendants answered the complaint by denying that the plaintiff had legal title, denied the plaintiff’s right to immediate possession, reviewed the facts of the previous foreclosure, and asserted as a defense the accord and satisfaction previously referred to. Trial ensued before the court without a jury. The following portion of the judgment appealed from explains the basis for the trial court’s finding that the plaintiff could not recover:

The issues are the same in this cause as in the other. The plaintiff contends that the defendants, on March 25, 1968, executed a mortgage to Jim Walter Corporation and that mortgage was assigned to the plaintiff. Upon default in the payment of the indebtedness secured by the mortgage, it was foreclosed, and plaintiff received a foreclosure deed and has legal title to and is immediately entitled to the possession of the real estate described in the complaint.
The defendants contend that plaintiff does not have legal title to the property and does not have such title as to entitle it to sue for the property nor for its possession, nor to entitle it to a judgment against these defendants.
They admit that they executed the mortgage recorded in Book 420 at Page 349 and admit same was assigned to the Plaintiff, but they deny that the assignment was sufficient to enable plaintiff to maintain this suit. They admit that there was an attempted foreclosure of the mortgage, and, in connection therewith, the foreclosure deed was executed.
On March 25, 1968, James and Glenda Brown executed a promissory note payable to Jim Walter Corporation in the amount of $7,603.20, payable in 144 installments of $52.80 per month, secured by mortgage of the same date on property described as:
‘Lot No. 11, Block B of the Lee Rad-ley (sic) Subdivision No. 1 to the town of Scottsboro according to the map or plat of said Subdivision as recorded in plat book “A” Page 176 in the Office of the Judge of Probate of Jackson County, Alabama, and being a part of that property as described in Volume 198 Page 673 of the deed records of Jackson County, Alabama.’
That mortgage was assigned to Mid-State April 12, 1968. On January 28, 1970, the mortgage was foreclosed and a deed of foreclosure was executed conveying the property to Mid-State. At the time of filing this action, the Browns were in possession. These facts were developed by plaintiff, Mid-State, after which it rested. A prima facie case was thereby made. Atlas Subsidiaries of Florida, Inc., v. Kornegay, 288 Ala. 599, 264 So.2d 158.
Defendants, Brown, did not controvert the evidence of Mid-State. They proceeded with their affirmative defense of accord and satisfaction, contending that such defense estopped Mid-State from maintaining this action to recover the real estate. The defense arose from these facts: Subsequent to foreclosure, negotiations between the Browns and Mid-State culminated in the execution, on April 20,1970, of a ‘new’ mortgage by the Browns securing payment of an obligation to Mid-State in the amount of $6,811.20, payable in monthly installments of $58.20. Contemporaneously Mid-State gave a quit claim deed to the Browns dated April 8, 1970.
In Mid-State Homes v. Brown, supra, our Supreme Court has concluded that Execution and delivery of the 1970 quit claim deed divested Mid-State of legal title to Lot 11, Block B.. The ‘new’ mortgage was sufficient to extinguish the obligation secured by the 1968 mortgage. The transaction in which two instruments were executed and delivered constituted an agreement within the definition of ‘accord’. Giving the quit claim deed, accepting the ‘new’ mortgage and forebear-ing its right to immediate possession under the foreclosure deed (it was under no legal obligation to do so) was consideration sufficient to fall within the definition of satisfaction. No reference was made in brief of Mid-State to Title 9, § 4, which provides a release given to the debtor by the creditor, which, if in writing may be without new consideration. The quit claim deed under all the evidence in this case could well have been considered a release.’
Since the evidence of title and the positions of the parties remain unchanged, the foregoing appears to resolve the issue adversely to the plaintiff.
As the title to the disputed land now is, the court finds the plaintiff has not met its burden of proof but, on the contrary, the defendants position previously has been upheld on appeal.

In essence the trial court found that Mid-State had failed to prove any change in the positions of the parties since our earlier decision. A review of the proceedings and the testimony in support convinces us that this finding was incorrect.

Plaintiff introduced the following documentary evidence in support of its claim to the title to this property:

(a) The real property mortgage of March, 1970 from the Browns to Mid-State;
(b) The quitclaim deed of April, 1970 from Mid-State to the Browns;
(c) The promissory note of April, 1970 from the Browns to Mid-State;
(d) The foreclosure deed of August, 1972 to Mid-State.

Furthermore, plaintiff brought out on his cross-examination of James D. Brown the following exchange:

Q Now, after you made this agreement that that the old mortgage would be wiped out and just start over with the transaction, did you make any payments on the mortgage after that?
A On the new one?
Q Yes, sir.
A Yes, sir.
Q How many payments did you make?
A I don’t remember, sir.
Q Do you know the total amount you paid?
A No, sir.
Q Do you remember, did you ever pay anymore than the regular monthly amount?
A Well, I paid insurance.
Q All right, but as far as the monthly installments were concerned, did you ever pay anymore than $52.80 called for by the mortgage?
A No, sir.
Q And can you give us your best judgment for about how long you paid on it?
A No, sir; I sure can’t; I don’t remember on all of it.
Q All right, sir, well, have you made any payments on it since August of 1972?
A I haven’t made any since the foreclosure; no, sir.
Q Now, you are talking about the most recent foreclosure?
A The last one.
Q And you and your wife are still living in the house?
A Yes, sir.
MR. NORRED: I have no further questions.

Brown’s redirect examination tended to confirm that Brown was in default on payments under the “new” mortgage indebtedness:

BY MR. DAWSON:
Q Mr. Brown, be is talking about the foreclosure, the last foreclosure. Is this one where it was foreclosed in 1972, is that correct? It is, isn’t it?
A Yes.
Q And that is the foreclosure of the mortgage which you executed over in Mr. Week’s office?
A Yes, sir.
Q Under the agreement that it was to wipe out the old foreclosure and everything back of that?
A Yes, sir.

Plaintiff contends in brief and this is apparent from its exhibits and the quoted testimony, that it is relying for recovery, not upon the “old” mortgage which was the subject of an accord and satisfaction, but upon the “new” mortgage. That mortgage was foreclosed on August 8, 1972 and a foreclosure deed issued to the plaintiff. The fact that the foreclosure deed recites the same description contained in the “new” mortgage, Lot 11, Block “A,” instead of the correct description which is Lot 11, Block “B” is immaterial, and in fact is not made an issue on this appeal. In our earlier opinion we held that the parties intended in the “new” mortgage to describe the property as Lot 11, Block B. The plat of the subdivision, introduced into evidence, confirms our earlier reasoning. Brown’s testimony confirmed this. The house he purchased is located on Lot 11, Block B.

Contrary to the conclusions of the trial court, this case is not a re-trial of the first case. The first case represented an attempt to recover this same property, but the plaintiff’s title was based upon a foreclosure of the 1968 mortgage. We held that there could be no recovery based upon any rights under a foreclosure deed derived from that mortgage because of the accord and satisfaction out of which the “new” mortgage was created. Our first opinion, however, did not purport to abrogate the “new” mortgage; it only recognized that Mid-State’s legal title obtained under the 1968 mortgage’s foreclosure was divested by the delivery of its quitclaim deed to the Browns in 1970.

The plaintiff’s present case proceeds under a foreclosure of the “new” mortgage and a foreclosure deed based thereunder. That is borne out by both the evidence of that deed itself and by the testimony of Brown. Thus the difference in the two cases lies in the presence in this case of a foreclosure deed under the “new” mortgage which purports to vest the plaintiff with legal title to the real property in question. Thus our earlier decision does not control the present issues. For this reason the case must be reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    Bettye M. BELL and Willie James Bell v. The TRAVELERS INDEMNITY COMPANY OF AMERICA et al.
    SC 2506.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Alfred W. Goldthwaite, Montgomery, for appellants.
    James T. Upchurch, III, Montgomery, for appellee, The Travelers Indem. Co. of America.
   SHORES, Justice.

The Bells, who are husband and wife, filed an action against Travelers and E. C. Dothard, Director of Public Safety for the State of Alabama, seeking a declaration that the action of Travelers in removing Willie Bell, the husband, as a driver under a liability policy covering an automobile belonging to the wife, was void. The trial court upheld the exclusion of the husband and the Bells appealed.

Prior to February, 1975, the Bells were covered by liability insurance with Travelers under a policy made available by Travelers to members of the Alabama Education Association (AEA). Mrs. Bell was a member of AEA, being a public school teacher in Montgomery County.

When this policy came up for renewal, Travelers advised Mrs. Bell that it would not renew the policy unless she first agreed to the removal of her husband as a driver under the policy due to his driving record. The husband had been convicted twice of speeding and once for reckless driving in the two years next preceding the renewal date of the Travelers’ policy.

The wife agreed to the husband’s being removed as a driver under the policy covering her automobile.

Thereafter, while driving the automobile owned by his wife, Mr. Bell was involved in an automobile accident which resulted in injuries to the occupants of the automobile with which he collided.

On appeal, the Bells contend that the exclusion from coverage of the husband is void as against public policy because insurance companies:

“. . . can not avoid their responsibilities by writing a policy for a wife and excluding the husband, a licensed driver, when they know, or have reason to know, that during the term of the policy the husband will very probably sooner or later, at one time or another, operate that vehicle. . . . ”

The Bells argue that Travelers should not be permitted to exclude a spouse from a policy covering the other automobile so long as the spouse sought to be excluded holds a valid driver’s license. Such exclusion, they say, violates public policy in that it creates marital discord. They also argue that the exclusion violates the Constitution of the State of Alabama.

We are not persuaded by either argument. The exclusion is clear and unambiguous and was agreed to by Mrs. Bell. This insurance company, like others, has a right, absent statutory provisions to the contrary, to impose whatever conditions it wishes on its obligations, so long as such conditions do not offend public policy. Northam v. Metropolitan Life Insurance Co., 231 Ala. 105, 163 So. 635 (1935); 29 Am.Jur.Insurance § 264. We find nothing violative of the Constitution or to the public policy of this state in the provision excluding the insured’s spouse from coverage in the policy before us. The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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


text:
    Roy Lee NIX v. Reiko WELLS.
    SC 2510.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    George B. Azar, Montgomery, for appellant.
    Robert C. Black for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   SHORES, Justice.

Nix was injured when his motorcycle collided with Mrs. Wells’ automobile. He filed suit claiming damages and charging Mrs. Wells with negligence and wantonness in the operation of the automobile. The case was tried to a jury which returned a verdict in favor of Mrs. Wells. The trial court denied Nix’ motion for new trial. He appealed. We affirm.

Nix was traveling east on a four-lane highway, and Mrs. Wells was traveling west. Mrs. Wells made a left turn, crossing the eastbound lane; and Nix’ motorcycle struck the right rear fender of the Wells’ automobile. According to Nix, Mrs. Wells made a left turn right in front of him. Mrs. Wells and other witnesses testified that Nix was not within Mrs. Wells’ view when she made the turn; that she had completed the turn into a parking lot and had stopped to permit a pedestrian to pass in front of her; and that only a very small part of the rear of her automobile was still in the highway. Mrs. Wells testified she did not see Nix until after his motorcycle struck her car. Others testified that Nix veered to the right and into the Wells’ automobile.

The evidence was in sharp conflict. Therefore, the trial judge properly submitted the issues to the jury. On appeal, Nix argues that the trial court erred in refusing to grant a new trial. We cannot agree. Having read the record, we agree with the trial court that there is evidence to support the jury’s verdict. The issues were clearly drawn and the jury was appropriately charged. It resolved the issues in favor of the defendant. There was evidence to support the verdict. Therefore, we should not reverse the trial court in refusing to grant a new trial. To do that, we must be convinced by the preponderance of the evidence that the verdict is wrong and unjust. § 12-13-11, 1975 Code; Edmondson v. Blakey, 341 So.2d 481 (Ala. 1976); Myers v. Evans, 287 Ala. 710, 255 So.2d 581 (Ala.1971).

Nix’ only other argument is based upon his assertion that counsel for Wells made various remarks throughout the trial which he contends tended to prejudice the jury against him. We need note only that, inasmuch as no objection was made by Nix to any remarks during the course of the trial, the record presents nothing for our review. Daughtry v. Western Ry. of Alabama, 341 So.2d 702 (Ala.1977).

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    John A. GRIMES v. MASSEY FERGUSON, INC., et al.
    SC 2541.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Rehearing Denied March 3, 1978.

      Lydia Quarles, of Emond & Vines, and Lanny S. Vines, of Emond & Vines, Birmingham, for appellant.
    Clarence L. McDorman, Jr., Birmingham, for appellee, Massey Ferguson, Inc.
    John M. Laney, Jr., Birmingham, for ap-pellee, Phillips Service Center.
    Robert B. Huie, of Huie, Fernambucq, Stewart & Smith, Birmingham, for appel-lee, Marvel Mfg. Co.
   MADDOX, Justice.

Appellant John A. Grimes filed a complaint on August 20, 1975, in which he alleged that the appellees, namely: Massey Ferguson, Inc. (manufacturer of the tractor), Stringfellow Equipment Company (seller of the tractor), Marvel Manufacturing Company (manufacturer of the rotary cutter), and Phillips Service Center (seller of the rotary cutter) were each liable to him in strict tort and breach of warranties in that his use of the machinery that each appellee manufactured or sold to him resulted in his bodily injury.

Each appellee moved for summary judgment based on the fact that the statute of limitations applicable to the complaint had run prior to the date that the complaint was filed. Motions for summary judgment were granted as to each appellee.

Grimes was injured August 20, 1971, while cutting approximately four-foot-high weeds on the property of a neighbor, Miss Samuella Woods, in Millry, Alabama. Grimes claimed that the right front wheel of the Massey Ferguson Model 135 tractor he was operating hit a “sink-hole” causing him to be thrown from the tractor seat. The back right wheel of the tractor came in contact with his left leg, fracturing the shinbone. Grimes was unable to remove himself from the tractor’s path, and his right leg was severely mangled by the Marvel Rotary Cutter attachment which he was pulling behind the tractor. His right leg was subsequently amputated below the knee.

The appellant had purchased the Marvel Rotary Cutter from Phillips Service Center of Butler, Alabama, on August 1,1970. He had purchased the Massey Ferguson tractor from Stringfellow Equipment Company of Lucedale, Mississippi on January 19, 1971. As previously mentioned, the injury occurred on August 20, 1971, and the complaint was not filed until August 20, 1975.

Grimes testified by deposition that he used the tractor in his farming operation. He testified that he bought the rotary cutter “to keep the weeds cut down around the place” and for “cutting stalks in the fall of the year.”

I

The two applicable statutes to be considered by the Court in determining the question as to whether or not the statute of limitations of four years ran prior to the filing of this action, both as to the tractor manufactured by the appellee, Massey Ferguson, and as to the rotary cutter sold by the appellee, Phillips Service Center, are as follows. Title 7A, Section 2-725, Code of Alabama, states:

“Statute of limitations in contracts for sale.
“(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
“(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.
“(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.” (emphasis added),

and Title 7A, Section 9-109, Code of Alabama, states:

“Classification of goods; ‘consumer goods’; ‘equipment’; ‘farm products’; ‘inventory.’
“Goods are:
“(1) ‘Consumer goods’ if they are used or bought for use primarily for personal, family or household purposes;
“(2) ‘Equipment’ if they are used or bought for use primarily in business (including farming or a profession) or by a debtor who is a nonprofit organization or a governmental subdivision or agency or if the goods are not included in the definitions of inventory, farm products or consumer goods;
“(3) ‘Farm products’ if they are crops or livestock or supplies used or produced in farming operations or if they are products of crops or livestock in their unman-ufactured states (such as ginned cotton, wool clip, maple syrup, milk and eggs), and if they are in the possession of a debtor engaged in raising, fattening, grazing or other farming operations. If goods are farm products they are neither equipment nor inventory;
“(4) ‘Inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in process or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment.”

If the tractor and rotary cutter are “consumer goods,” then Section 2-725 provides:

“ . . . however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.” (emphasis added).

If the tractor and rotary cutter are “consumer goods,” the action was timely filed.

The question to be decided by the Court is whether there was a material issue of fact on the question of whether the tractor and rotary cutter are “equipment” as defined by Section 9-109, or whether or not the tractor and rotary cutter are, as the appellant contends, “consumer goods.” We hold that a genuine issue of fact was presented and summary judgment was inappropriately granted.

There are no reported cases to which we have been directed which state that a tractor and rotary cutter are “equipment,” as defined in Title 7A, § 9-109, Code, 1940 (Recomp.1958), but we do not believe the definition is dependent upon the physical characteristics of the goods. The pivotal language in the definition is “used or bought for use primarily for personal, family or household purposes.” Consequently, whether the tractor and rotary cutter were used or bought for use primarily for personal, family or household purposes, as appellant contends, or were used or bought for use primarily in business, including farming, as appellees claim, was a material fact question, which cannot be resolved as a matter of law on this record.

Summary judgment is appropriate only when there is no genuine issue of material fact. Fox v. Title Guaranty & Abstract Co. of Mobile, Inc., 337 So.2d 1300 (Ala.1976). A trial judge may not make material factual findings on a motion for summary judgment. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975).

In reversing, we point out, however, that “equipment” is stated in the negative in our Commercial Code; that is, collateral or goods become “equipment” when they do not fall into any of the other categories. Furthermore, when a good cannot be said to have been purchased primarily for one particular use, then that item is classified as equipment. Anderson, Uniform Commercial Code, § 9-109:4 (1971).

REVERSED AND REMANDED.

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

      . The appeal as to Stringfellow was dismissed by this Court on June 20, 1977, on another ground.

      . “Q Okay. Did you yourself use this tractor in farming business?
      “A Yes, sir.
      “Q And, what type of farming, cultivation and crops did you have in 1971?
      “A Mostly com.
      “Q All right, sir. And, was that on your place or did you work other people’s land?
      “A It was rented land.
      “Q Rented land?
      “A Yes, sir.
      “Q All right. About how many acres did you have in cultivation that year?
      “A I had approximately 40 to 50 acres.
      sf: i(; if; % s(c
      “Q Oh, yes. Now, was this com raised for crops or to sell or both, livestock food I mean, or both?
      “A For both livestock and for sale.”


text:
    CITY NATIONAL BANK OF BIRMINGHAM v. Robyn C. ANDREWS.
    SC 2551.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Clifford M. Spencer, Jr., Birmingham, for appellant.
    Rodney A. Max, of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appel-lee.
   SHORES, Justice.

A chronology of events leading up to this appeal is as follows:

March 18, 1975 — City National Bank of Birmingham. (City National) filed suit against Mrs. Andrews to recover an amount due it by notes executed by El Burrito, Inc. and guaranteed by Mrs. Andrews;

July 24, 1975 — Mrs. Ann Barefield Chambers, Mrs. Andrews’ mother, died leaving a will which left the residue of her property to her three children, Mrs. Andrews and two sons in equal shares, share and share alike;

July 28, 1975 — Mrs. Chambers’ will was filed for probate;

August 4, 1975 — Letters testamentary were issued to Mrs. Andrews, named executrix of her mother’s will;

November 3, 1975 — Mrs. Andrews renounced the devise to her under her mother’s will;

November 7, 1975 — The renunciation of Mrs. Andrews of her part of her mother’s estate was recorded:

November 17,1975 — Judgment entered in favor of City National and against Mrs. Andrews; and

December 19, 1975 — City National filed writ of garnishment against the Estate of Mrs. Chambers.

Mrs. Andrews, as executrix of the estate, answered the writ stating that the estate was not indebted to Mrs. Andrews, relying upon the renunciation. City National contested the validity of the answer; and the trial court held that the renunciation was valid and the estate, therefore, was not indebted to Mrs. Andrews.

The bank appealed.

The bank contends that, because Mrs. Andrews was devised and bequeathed the same share under her mother’s will as she would have received under the laws of descent and distribution, she must be deemed to have taken by descent and distribution, and cannot renounce her inheritance.

The bank’s position is based upon the wills branch of the worthier title doctrine, a common law doctrine which has long been abolished in England, where it evolved by judicial decision in the 16th Century. Hinde v. Lyon, 2 Dyer 124a, 73 Eng.Rep. 271 (1555). The English rule governing wills has been stated as follows:

“A devise of a present or future interest in land to the heir of the testator, either by name or in form, is void if the heir takes by virtue of the devise precisely the same interest he would have taken if the devise had been stricken out of the will.” Morris, The Wills Branch of the Worthier Title Doctrine, 54 Mich.L.Rev. 451, 452 (1956).

Most scholars agree that that doctrine was formulated because, in the Feudal Ages, taking by descent rather than by purchase entitled overlords to tenurial benefits.

“. . . At one time there was an important rule of law, applicable to devises of land to the testator’s heirs, which was to the effect that a devise to the heirs of the testator was a nullity if the interest limited in their favor was identical to that which such heirs would have taken by descent if there had been no devise to them. . . . This rule originated under the feudal system to preserve the feudal incidents of relief, wardship and marriage. These incidents were preserved only if the new tenant of land acquired his interest by descent from the former tenant, rather than by purchase under the terms of a devise. . . .” Restatement of the Law of Property, Vol. 3, § 314, Comment j. (1940).

The doctrine was adopted in some states in this country, although there is disagreement as to whether it still exists today. Restatement of the Law of Property takes the position that the rule is no longer the law in the United States. § 314(2). Whether that is true may be debatable; but the scholars are in agreement that the rule serves no purpose in this country and should not be the law. It has been said:

“At one time it was important to know whether land passed by devise or descent. But today it is impossible to see why it should make any difference whether a person takes the land of a decedent by devise or descent. Hence, although there is some authority to the contrary, the better view is that in so far as the worthier title doctrine is applicable to wills, it is obsolete.” American Law of Property, Yol. 1, § 419, page 440 (1952).

We have found no Alabama case which refers to the doctrine by name; but writers generally agree that Alabama has adopted the rule as one of construction rather than as a rule of law, which it clearly was at common law. The rule was recognized by way of dictum in Wilcoxen v. Owen, 237 Ala. 169, 185 So. 897 (1938), and was applied in a deed' case in Couch v. Anderson, 26 Ala. 676 (1855). However, a distinction should be made between the will branch of the doctrine and the inter vivos branch. See Morris, The Wills Branch of the Worthier Title Doctrine, supra. In the annotation to the Wilcoxen case, in 125 A.L.R. 539, it is pointed out that the doctrine of worthier title in the law of wills has little or no significance today. We find no Alabama case which has applied the rule to void a testamentary disposition of property to the testator’s heirs.

In this state, the cardinal rule in cases involving wills is the ascertainment of the intentions of a testator. Applying the worthier title doctrine to wills has often been said to hinder, rather than aid, in the ascertainment of the testator’s intention. For that reason, in Mitchell v. Dauphin Deposit Trust Co., 283 Ky. 532, 142 S.W.2d 181, 184 (1940), the Supreme Court of Kentucky expressly refused to follow the rule, noting: “. . .it has no place in our jurisprudence.” Other courts have also rejected the rule, with varying comments:

“The purpose for the application of the doctrine of worthier title at common law finds no support in our law. . . .” McNeilly v. Wylie, 389 Ill. 391, 59 N.E.2d 811, 812 (1945).
“The reason for the rule in England, to that effect, does not apply in this State. .” Lucas v. Parsons, 24 Ga. 640, 659 (1857)

We are convinced from our research that the wills branch of the worthier title doctrine has few, if any, defenders. It has been condemned by legal scholars, both within and without the American Law Institute. Commissioners on Uniform State Laws recommends its complete abolition. Uniform Property Act, 9A U.L.A., § 14 (1951). It was abandoned in England where it originated (Stats. 3 and 4, Wm. 4, c. 106, § 3 (1833)). More than one distinguished writer has urged its abolition in this country. See, for example, Harper and Heckel, Doctrine of Worthier Title, 24 Ill.L. Rev. 627. In Morris, The Wills Branch of the Worthier Title, 54 Mich.L.Rev., supra, at 495, summarizes his article.

“What meritorious arguments can be made in favor of the wills branch of the worthier title doctrine? The writer can think of none. The rule invites litigation, ensnares the unwary draftsman and frustrates the wary draftsman. As a rule of law it applies to devises made to people who are the most natural objects of the testator’s bounty. To the writer’s knowledge, every man who has taken up the pen to write on the policy aspects of the rule has concluded that it has no place in our law. Such unanimity of opinion from all segments of our profession is seldom seen.”

Professor Powell, in his treatise, makes this observation:

“. . . It is to be hoped that all jurisdictions will eventually abolish ‘worthier title’ as a rule of law, and leave the construction of the testator’s . . . language to weighted rules of construction.” Powell on Real Property, Vol. 3, § 381, page 318.

We are persuaded that the wills branch of the worthier title doctrine is an anachronism in the law and should not be applied. If applied as a rule of law to this case, it would have the effect of voiding the testatrix’ will; if applied as a rule of construction, it would have the effect of defeating her expressed intentions, simply to serve a purpose which ceased to exist 250 years ago. We are not inclined to abdicate our responsibility to the legislative body. The legislature did not formulate the rule— the courts devised it to protect the feudal dues of overlords at an earlier time. We have no hesitation to abandon it as a judicial rule in a different time.

We hold that the share of the testatrix’ estate passed to Mrs. Andrews by devise and not by descent.

City National argues that if Mrs. Andrews is held to be capable of renouncing her share of her mother’s estate, we should hold the renunciation was not timely made. The bank candidly admits that it did not anticipate nor rely upon any inheritance Mrs. Andrews might receive when it made the loan to El Burrito. It is not disputed that the bank’s judgment against Mrs. Andrews came after she had renounced her share in- the estate; and there is no evidence that the bank was in any way injured by the delay in renouncing by Mrs. Andrews. Furthermore, it has been held that the reasonableness of delay prior to renouncing is an issue for the trier of the fact, provided the heir has not accepted the devise before renouncing. McQuiddy Printing Co. v. Hirsig, 23 Tenn.App. 434, 134 S.W.2d 197 (1939); Bacon, Receiver v. Barber, 110 Vt. 280, 6 A.2d 9 (1939). The trial judge found that the renunciation was timely. We agree.

Only one issue remains. The bank contends that the renounced share must pass to the heirs of Mrs. Andrews by intestacy. It argues that Mrs. Andrews received a one-third share of her one-third renounced share by descent and distribution, or one-sixth of the total residuary estate. We cannot agree.

The devise to Mrs. Andrews was by way of a general residuary clause designating all three children as residuary legatees. Where there is a residuary clause broad enough to include the rejected property, that property falls into the residuary estate. Myers v. Smith, 235 Iowa 385, 16 N.W.2d 628 (1944); In re Myer’s Estate, 137 Misc. 730, 244 N.Y.S. 398 (1930). Should a residuary legatee renounce, the property goes to the heirs intestate only if there is no alternate or joint residuary legatee who is entitled to take. Brown v. Kalene, 230 Iowa 76, 296 N.W. 809 (1941); Lehr v. Switzer, 213 Iowa 658, 239 N.W. 564 (1931). Here, there are two residuary legatees who are entitled to the residuary estate. Consequently, the renounced share of Mrs. Andrews should fall to the residuary legatees and pass by devise rather than to the heirs by descent and distribution.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Billy Joe MIMS v. CITIZENS BANK OF PRATTVILLE, a corp.
    SC 2571.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Harold Howell, Prattville, for appellant.
    Theron 0. McDowell, Jr. and J. Myron Smith, Prattville, for appellee.
   BEATTY, Justice.

The plaintiff appeals from the grant of a summary judgment in favor of the defendant bank. We reverse and remand.

There were two lawsuits involved here. The first was between Citizens Bank of Prattville and Wanda Wright and arose from the following facts.

Wanda Wright was indebted to Citizens Bank on a personal loan made to her by that bank, the loan being secured by a Volkswagon. She became employed by Billy Joe Mims who operated a fruit stand in Pensacola, Florida. Ms. Wright’s payments on that note were in arrears and the Volks-wagon had been totaled out for salvage, so she went to the bank and pledged a two-ton truck as security for a renewal note. At that time this truck was in Florida registered in the name of Willie E. Jackson, from whom Mims was purchasing the fruit stand business and the truck. When Ms. Wright subsequently defaulted on her renewal note, the bank first attempted to seize the truck from Mims’ possession, but being denied, the bank sued Ms. Wright both on the defaulted note and to foreclose the security interest in the truck which they now claimed, alleging that Ms. Wright was in possession of the truck. A default judgment was rendered against Ms. Wright on February 4, 1976 in favor of the bank for the truck or its alternate value, and a writ of seizure was issued on February 26, 1976 based upon that judgment. The writ of seizure was executed while the truck was being operated as a pulpwood hauler by Billy Joe Mims.

Thereafter, on May 24, 1976, Billy Joe Mims filed an action to recover the truck or its alternate value, the reasonable value of its hire or use, and damages for its wrongful seizure which, he alleged, caused injury to his business. A motion for a writ of seizure was also filed and awarded on May 24, 1976. A writ of seizure was issued on May 31, 1976 but the record is unclear on whether this writ was executed, there being no return indicated. In any event, the defendant bank moved to dismiss the complaint but that motion was not acted upon.

Following pre-judgment hearings held on June 3, 1976 during which testimony was taken, the trial court dissolved the writ of seizure issued on May 81,1976 and awarded the truck to the defendant bank. The bank sold the truck. Then, on September 22, 1976 the bank moved for summary judgment. An answer to this motion was filed on September 24,1976, and at that time the plaintiff Mims requested a jury trial. On October 4, 1976 the defendant moved to strike the demand for a jury trial on the ground that it was untimely filed. Then the plaintiff moved for summary judgment on two grounds, viz.: (1) that the judgment in the case of Wanda Wright v. Citizens Bank was obtained by fraud on the court; and (2) that Billy Joe Mims, although a (necessary) party in that case, since it was known by the bank that he had an interest in the truck in question, received no notice of that suit. The trial court granted the defendant bank’s motion for summary judgment and denied the plaintiff Mims’ like motion. Whether the grant of summary judgment in favor of the defendant bank was proper is the question to be decided on this appeal.

On appeal the defendant does not challenge the timeliness of the plaintiff’s demand for a jury trial, nor does it question the plaintiff’s attack upon the judgment in the first action, except to maintain that no evidence of the commission of a tort was offered. If, as defendant asserts, in this action Mims is estopped as a matter of law to assert a claim in the truck by virtue of his conduct or representations, or if Mims, as the bank also contends, has not presented any basis for recovery in tort against the bank, summary judgment for the bank was proper. Was there any evidence in support of the plaintiff, Billy Joe Mims, on either of these assertions? Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

The defendant’s estoppel argument is that Mims led the bank to believe that he had given Ms. Wright authority to pledge the truck. This is established, defendant maintains, through a personal relationship which “could easily lead a third person to believe that there existed a partnership business entity” and that this, coupled with their having been observed conversing outside the bank immediately before the transaction, was sufficient to create an estoppel. Perhaps these facts, together with the fact that the two traveled from Florida to Clan-ton, Alabama, and then to Prattville, and that Wanda possessed knowledge of the truck’s serial number, may have tended to create inferences in the bank’s favor. They may have suggested that the two were in partnership. But, even if they did, these facts were contested. Wanda was the only one of several witnesses who testified to the existence of a partnership with Mims in the produce business. Mims himself testified to a partnership with one Ralph Easterling, denied any partnership with Ms. Wright, and denied giving her permission to pledge the truck. And even had Mims given her that authority, the partnership being one controlled by Florida law it would have been necessary for her to have had authorization from the other partners in order to use the partnership relation to pledge property for personal use:

An act of the partner that is not for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners. Florida Statutes Chap. 620.60(2).

Mims, moreover, testified that the renewal of Wanda’s personal bank note did not inure to his benefit. In addition, it is not clear from the evidence that the bank relied upon the partnership’s credit to renew Ms. Wright’s note. The renewal note contains only one signature, that of Wanda Wright, and the financing statement identifies the debtor as Wanda Wright. The partnership is not mentioned. The record shows, in fact, that Mims did not accompany Ms. Wright into the bank, and was not present when she discussed the renewal note with the bank’s loan officer. Under these facts it would be inaccurate to conclude that an estoppel against Mims was established as a matter of law. The rule of Ashurst v. Ashurst, 119 Ala. 219, 24 So. 760 (1898), cited by the defendant, does not apply. Quite the contrary, under these facts it might be found that Mims himself did nothing to induce the bank to renew Wanda’s note, or that the bank had no right to rely on any conduct of his which is suggested as such an inducement. Mooradian v. Canal Insurance Company, 272 Ala. 373, 130 So.2d 915 (1961). And compare Tit. 20, § 3(3), Alabama Code (Recomp.1958) and Cox v. Cox, 292 Ala. 106, 289 So.2d 609 (1974) pertaining to the negative effect of equitable estoppel on the statute of frauds.

The record discloses that all of the testimony elicited in the pre-judgment hearing was offered by the defendant in support of its motion for summary judgment. Under that motion, if that testimony contained a scintilla of evidence against the movant’s position, that is, if he could not show under that testimony the absence of any genuine issue of material fact, the motion could not be granted. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). That testimony would at least support an inference that the bank knew of Mims’ interest in the truck before it proceeded to obtain its default judgment against Ms. Wright, and therefore wrongfully seized the truck from him when he was not a party to that action. Mims testified to his operation of the truck in the pulpwood business at the time it was seized, and thus his testimony raised an issue of fact on the interference with his business operations. Accordingly, the defendant failed to show the absence of any genuine issue of material fact, and thus summary judgment in its favor was inappropriate. Bennett v. United Auto Parts, Inc., 294 Ala. 300, 315 So.2d 579 (1975). For that reason, and the others we have indicated, the case must be reversed and remanded.

REVERSED AND REMANDED.

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


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    Robert M. SEARCY v. Pierce C. CAIN, Individually, etc., et al.
    SC 2612.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Rehearing Denied March 3, 1978.

      Wm. Dowsing Davis, III, Birmingham, for appellant.
    Walter J. Merrill, of Merrill, Porch, Dost-er & Dillon, Anniston, for appellees.
   BEATTY, Justice.

This is an appeal from a judgment of the Circuit Court of Calhoun County which upheld the suspension of the plaintiff from his position. We affirm.

The plaintiff, Robert M. Searcy, was business manager of Ayers State Technical College until his suspension from that position by its president, Pierce M. Cain. The events leading up to that suspension began on March 1, 1974, when Searcy informed Cain that Searcy knew of some financial irregularities, including work orders and scrap metal money that had not been properly processed. Following this conversation Cain addressed a memorandum to Searcy requesting him to report any knowledge of “any act, transaction, or claim by anyone at this institution that you consider illegal, fraudulent, or an act of embezzlement” made by anyone, including Cain. This memo was delivered to Searcy by Cain personally, with the verbal instruction to respond by March 4 at 4:00 P.M. When this memo went unanswered, Cain sent Searcy another, directing a response by March 8 at 4:00 P.M. On that date Cain read Searcy still another memo in which Cain stated that Searcy would be considered insubordinate and uncooperative if the memo of March 1 were not complied with. This March 8 memo also allowed an extension of time to March 18 for compliance if Searcy had not sought legal counsel, and invited any retained counsel to suggest another compliance date. At the time this March 8 memo was read to Searcy, Cain had an unopened letter he had received from Sear-cy in which Searcy had stated that he had the Attorney General for counsel. But Se-arcy neither requested an extension nor otherwise indicated that he had an attorney.

However, on March 13 Cain received a letter from a firm of lawyers retained by Searcy, this letter reciting:

The only answer Mr. Searcy can give to your question is that he had no knowledge of any illegal or fraudulent acts, nor does he have any knowledge of any acts of embezzlement in connection with the operation of the business office of the Institution.

On March 14, Cain informed Searcy by letter that he was indefinitely suspended for insubordination and lack of cooperation arising from his failure to reply. This letter set out the grievance procedure to be followed should Searcy request a hearing.

A hearing was held before the school’s grievance committee on April 10. Mr. Se-arcy and his counsel were both present. Those proceedings were recorded. Searcy’s counsel cross-examined the school’s witnesses and he himself testified. Upon the conclusion of that hearing the committee upheld the suspension. That decision was appealed to an ad hoc committee which held another hearing on July 22. At that recorded hearing Searcy and his counsel were present. Searcy himself testified he produced other witnesses in his behalf, and witnesses adverse to him were cross-examined. The ad hoc committee sustained the suspension and recommended that the State Board of Education act upon it. The agenda of the meeting of the State Board for August 20 contained that recommendation. Searcy's lawyer was invited to attend that meeting and make an oral presentation. When the Board met on that date it approved a resolution upholding the decision of the ad hoc committee sustaining Searcy’s suspension.

Searcy followed that decision by filing a complaint in circuit court to have his suspension declared void, seeking restoration and back pay. After a de novo hearing ore tenus, his suspension was upheld once again. When his motion for a new trial was denied, Searcy appealed here, alleging violation of his First Amendment rights, a lack of due process, and the lack of evidence to support the judgment of the trial court.

In its judgment the trial court found that the response required of Searcy, still unanswered, was not unreasonable, and that no violation of his First Amendment rights had occurred. The trial court had before it not only the testimony taken in open court, but also requests for admissions of facts and Searcy’s answers to those requests, certified copies of the minutes of the State Board of Education meetings of April 16, 1971, July 18, 1973, and September 26, 1973, covering the grievance hearing at the Institution and the hearing before the State Board’s ad hoc committee.

Searcy’s claim of a lack of procedural due process because of Dr. Austin’s presence on the school’s grievance committee was unproved. The facts fail to disclose any untoward relationship between Austin, Ayers States’ Dean of Instruction, and Cain, or any bias or prejudice entertained against Searcy by Austin. In any case, Searcy did not object to Austin’s chairmanship of that committee or to his participation in its deliberations until the conclusion of the hearing. Under those circumstances any such objection, even if proper, was effectively waived.

Without engaging in a detailed account of the evidence, we may state that the record, which contains the testimony given at those proceedings, together with the exhibits (the letters referred to earlier), clearly discloses an adherence at all levels by the school authorities to the requirements of due process of law. At all times, Searcy has had sufficient notice of the charges and a full opportunity to present evidence and confront the witnesses against him. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1971). Under the tendencies of that evidence the trial court could have found that Searcy had made statements of irregularities in the management of the school’s finances, involving Cain and others connected with the school, statements which reasonably could have been detrimental to the Institution and adverse to the morals of its faculty. To impose a sanction against such conduct is not prohibited by the First Amendment. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Searcy did not deny making the statements; the gist of his defense throughout has been either that he did comply with Cain’s request to the best of his ability, or that he did not know how to respond. Under the evidence, however, we believe the trial court could have found that Searcy had a reasonable opportunity to fully respond and that his answers, when made, were incomplete or evasive, even when he resorted to a vicarious reply by his then attorney. Thus there was no denial of pure speech or comment. A school official’s interest as a citizen in making comment must be balanced against the State’s interest in promoting the efficiency of its employees’ public services, and such statements which present questions of faculty harmony and efficient operation afford a proper basis for disciplinary sanction. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1967). Indeed, Searcy’s employment relationship with Cain involved the closest working relationship for which personal loyalty and confidence were necessary for the proper functioning of the school. Thus the tacit accusations reflected more than a mere difference of opinion between the two or comment on a matter of public concern. Pickering, supra.

We conclude that there was substantial evidence upon which the trial court could have upheld the suspension. And when the trial court’s findings are based upon evidence taken ore tenus, they are presumed valid, a presumption which may be disturbed only when those findings are manifestly erroneous. Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975). Accordingly, the judgment must be, and is, affirmed.

AFFIRMED.

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


text:
    Eunice Mae COTTON v. Gary Michael GAMBLE.
    SC 2715.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      John W. Johnson, Jr., Lanett, R. C. Wallace, Jr., LaFayette, for appellant.
    John V. Denson, of Samford, Denson, Horsley & Pettey, Opelika, for appellee.
   MADDOX, Justice.

Plaintiff, Eunice Mae Cotton, filed suit against Gary Michael Gamble, alleging that his negligent operation of an automobile was the proximate cause of her injuries. The jury returned a verdict for defendant Gamble. Plaintiff Cotton appeals, claiming that the verdict was against the weight of the evidence, and that the trial court erred in allowing a medical doctor called by the defendant as a witness to comment and express an opinion upon the testimony and diagnosis given by the plaintiff’s personal physician.

Plaintiff Cotton was a passenger in an automobile being driven by her fifteen-year-old nephew. The accident occurred when the driver of the vehicle in which plaintiff Cotton was riding attempted to make a lefthand turn across a concrete median at a point on the road just around a curve and over the crest of a hill. Defendant Gamble claimed that he was unable to stop in time to avoid a rear-end collision with the automobile in which plaintiff was a passenger. There was evidence presented that the other two occupants of the vehicle in which plaintiff Cotton was a passenger were not injured. There was no apparent damage to defendant Gamble’s automobile and neither of the two occupants of his car claimed any injuries.

A lengthy statement of the facts is unnecessary to a decision in this case. Suffice it to say that there was evidence from which the jury could infer that defendant Gamble either was not negligent, or that plaintiff’s claimed injury may have been a pre-existing condition, which was neither caused nor aggravated by the accident. In short, there was sufficient evidence to support the jury verdict. W. T. Ratliff Co., Inc. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974).

Plaintiff Cotton next complains that the trial court erred to reversal in allowing a doctor called by the defendant to comment upon the opinion and diagnosis expressed by her own physician in his deposition, which was introduced in evidence at the trial. We find no error here. The doctor called by the defendant as a witness had personally examined the plaintiff on two occasions. Therefore, the facts here are not similar to those in Salotti v. Seaboard Coastline R. R. Co., 293 Ala. 1, 299 So.2d 695 (1974), strongly relied on by the plaintiff-appellant. It is clear from the record that the doctor called by the defendant disagreed with the opinion expressed by plaintiff’s doctor. Clearly, defendant Gamble, at trial, had a right to rebut the evidence contained in the deposition of plaintiff’s doctor which was introduced into evidence. Rule 32(c), A.R.C.P.

Plaintiff Cotton contends that the trial court should have granted a new trial, and points to the trial judge’s order on motion for new trial to support her claim. The rule which trial courts must apply in ruling on motions for new trials on the grounds that verdicts are contrary to the weight of the evidence is succinctly stated in Edmondson v. Blakey, 341 So.2d 481, 484 (Ala.1976), as follows:

“Title 7, § 276, Code of Alabama, authorizes a new trial where the ‘ . verdict or decision is not sustained by the great preponderance of the evidence . ’ This court has often held that it is the trial judge’s duty to grant a motion for a new trial if, after allowing all reasonable presumptions of its correctness, the great preponderance of the evidence against the verdict is so decided as to clearly convince the judge that it is wrong and unjust. W. M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937); City of Ozark v. Byrd, 225 Ala. 332, 143 So. 168 (1932); Jena Lumber Co. v. Marlowe Lumber Co., 208 Ala. 385, 94 So. 492 (1922). A jury verdict should not be set aside, however, merely because it does not correspond to the court’s opinion as to the weight of the evidence or merely because it is against the mere preponderance of the evidence. Dean v. Mayes, 274 Ala. 88, 145 So.2d 439 (1962).
“For this court to overrule the trial court’s denial of a motion for a new trial the evidence must so greatly preponderate as to clearly convince this court that the verdict is wrong and unjust. Kurn v. Counts, 247 Ala. 129, 22 So.2d 725 (1945). We have repeatedly held that verdicts are presumed correct and that no ground stated in a motion for a new trial is more carefully scrutinized than that the verdict was against the evidence. Callahan v. Booth, 275 Ala. 275, 154 So.2d 32 (1963); Dean v. Mayes, supra. In addition, where the trial judge denies a motion for a new trial the presumption in favor of the correctness of the verdict is strengthened. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961).
“Again and again the rule has been stated that a decision of the trial court in denying the motion for a new trial will not be reversed on the ground that the verdict is against the evidence unless, after allowing all reasonable presumptions of correctness, the preponderance of the evidence clearly convinces this court that the trial judge was wrong. Bush v. Stanton, 273 Ala. 615, 143 So.2d 621 (1962). Or, stated differently, where evidence is presented which, if believed, supports the verdict, a motion for a new trial on the ground that the verdict is against the evidence may be properly denied. Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963); Dean v. Mayes, supra.

The judgment of the lower court is due to be affirmed.

AFFIRMED.

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

      . The order denying the motion for new trial reads:
      “The motion for new trial was ably argued. The court feels the motion must [be] denied. It is the court’s opinion there was no question the defendant caused the accident; therefore, the jury must have concluded that the injuries were not caused from the accident. The jury is the sole judge of the credibility of the witnesses and even though the court may not have decided the same way, there was evidence from which the jury could draw its decision.
      “Now there may have been errors on the part of the judge, particularly regarding the expert testimony, which could have led to the decision; however, motion for new trial is denied.”


text:
    Cecil C. WRIGHT, for the use and benefit of Auto-Owners Insurance Company v. SEARS, ROEBUCK AND COMPANY, a corp., and Walter Isham.
    SC 2774.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    John A. Courtney, Mobile, for appellant.
    Fred W. Killion, Jr., Mobile, for appellee, Walter Isham.
   MADDOX, Justice.

Cecil C. Wright appeals the trial court’s granting defendant Walter Isham’s motion to dismiss his complaint which Wright originally filed on January 5,1976, and amended on November 30, 1976, to read as follows:

“Plaintiff claims of the Defendant Twenty-five Thousand and No/100 ($25,000.00) Dollars as damages for that heretofore on, to-wit the 14th day of December, 1974, the Plaintiff contracted with the Defendant for a valuable consideration paid by the Plaintiff to the Defendant to install a heating unit in his home at 5504 Topanga Street, Mobile, Alabama and the Defendant so negligently failed properly to perform his contract with the Plaintiff that a fire was caused or allowed to occur in the homeplace of your Plaintiff, causing considerable and permanent damage thereto; your Plaintiff was caused to expend extra monies for living expenses, repair the homeplace and most of its furniture and furnishings, all of which are the direct and proximate result and consequence of the Defendant’s failing properly to perform the contract with the Plaintiff and all for which the Plaintiff claims damages of the said Defendant in the amount aforesaid, plus interest and costs.”

The trial court determined that the complaint sounded in tort, and that the complaint affirmatively showed that the cause is barred by the one-year statute of limitations contained in Title 7, Sec. 26, Code of Alabama 1940. We reverse.

The sole issue we decide on this appeal is that the complaint should not have been dismissed for failure to state a claim. The complaint should not have been dismissed on this ground. Carter v. Calhoun County Bd. of Ed., 345 So.2d 1351 (Ala.1977). Obviously, the plaintiff has the burden of proving the allegations of his amended complaint, which sound in contract, and his recoverable damages, if proven, would be measured by the law governing damages in contract actions.

REVERSED AND REMANDED.

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


text:
    Mary Alice JONES v. Bobby Ray JONES.
    77-16.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    N. J. Cervera of Cervera & Folmar, Thad Yancey, Jr., Troy, for appellant.
    Oliver W. Brantley of Brantley & Calhoun, J. B. Wiley of Wiley & Wiley, Troy, for appellee.
   SHORES, Justice.

Appellant and appellee are divorced parents of three children who were killed in an automobile accident while passengers in a car owned and operated by an uninsured motorist. Under the divorce decree, the father had custody of two of the deceased children; and the mother had custody of the other one. The father owned two automobiles, insured respectively by State Farm Insurance Company and Farm Bureau Insurance Company.

This action was brought by the father against State Farm and Farm Bureau under the uninsured motorist provisions in his policies. Both companies admitted liability up to the policy limits for the two children living with their father. The insurers then joined the mother as an additional party in an interpleader action. Both father and mother filed motions for summary judgment, the mother claiming one-half of the funds paid into court. No facts are disputed. The court granted the father’s motion and the mother appealed.

The central issue is the mother’s claim to a share in the funds. Title 7, §§ 118 and 119, Code of Alabama 1940 (Now, §§ 6-5-390 and 391, 1975 Code), provide:

“§ 118. Father may sue for injury to minor child. — A father, or in case of his death or desertion of his family, or his imprisonment for a term of two years or more under a conviction for crime, or of his confinement in an insane hospital, or if he has been declared of unsound mind, the mother may sue for an injury to a minor child, a member of the family.
“§ 119. Suits for injuries causing death of a minor child. — When the death of a minor child is caused by the wrongful act, or omission, or negligence of any person or persons, or corporation, his or their servants or agents, the father, or the mother, in cases mentioned in the preceding section; or if the father and mother are both dead, or if they decline to bring the action or fail to do so within six months from the death of the minor, the personal representative of such minor may sue, and in any case shall recover such damages as the jury may assess; but a suit by any one of them for the wrongful death of the minor shall be a bar to another action, either under this section or under section 123 of this title.”

The mother argues that any recovery under § 119 should be for the benefit of both parents and, in the alternative, that § 119 is unconstitutional because it discriminates on the basis of sex.

In Peoples v. Seamon, 249 Ala. 284, 287, 31 So.2d 88, 89 (1947), this court held:

“When a minor child is killed by the wrongful act of another, and he leaves surviving his father, the damages recoverable [under § 119] are for the benefit of the father, where the suit is by the father personally or by an administrator [Citations Omitted] . . . ”

As recently as 1970, the holding of Peoples v. Seamon, supra, was followed in Adkison v. Adkison, 286 Ala. 306, 239 So.2d 562 (1970). The appellant concedes that Peoples and its progeny are contrary to the position which she takes, but argues that those eases should be overruled and a rule established which would permit parents of minor children negligently killed to share in the proceeds of any recovery based upon such negligence. We are not free to adopt such a rule. The language of the legislation supports the construction heretofore adopted by this court. It has long been established by the legislature that, as between the two parents, the father has the primary duty to support and maintain the minor children of the parties. It is free, therefore, to provide that the parent with this primary obligation is entitled to any damages recovered as a result of injury to or death of a minor child.

The appellant next argues that the legislation is invalid under the Constitution of the United States and the State of Alabama, because it discriminates against mothers of minor children. This argument was advanced and rejected in the recent case of Thorne v. Odom, 349 So.2d 1126, 1128, 1129 (Ala.1977), where this court said:

“Initially, we hold that the trial court’s order declaring Title 7, § 118 unconstitutional was erroneous. Contrary to his finding, that statute does not give the father the absolute right over the mother to file such an action, but a conditional right as the remainder of our opinion will show. Additionally, we disagree that the statute imposes an arbitrary distinction. Under the Fourteenth Amendment to the United States Constitution, states may treat different classes of people differently when the classification rests upon a fair and substantial relation to the object of the legislation. Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975); Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The object of § 118 is to provide a right of action for the parent’s damages for loss of services, expense of treatment, etc. for the child’s injury. Section 119, by the same token, allows a right of action in cases of wrongful death. The classification imposed by § 118 is not arbitrary, because the legislature has recognized that, between the two parents, the father has the primary and continuous duty to support and maintain his minor children reasonably according to his means. Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974); Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Stovall v. Johnson, 17 Ala. 14 (1849). This continuing obligation gives the father the priority in receiving any damages because of the injury or death of the child.”

The judgment appealed from is affirmed.

AFFIRMED.

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