author: MADDOX, Justice.

text:
    Frank J. SMITH et al. v. Sarah CLAYBROOK.
    SC 1465.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    Rehearing Denied Sept. 30, 1977.

      W. 0. Kirk, Jr., of Curry & Kirk, Carroll-ton and J. Russell Gibson, III, of Phelps, Owens & Jenkins, Tuscaloosa, for appellants.

      C. 0. Burkhalter, Gordo and Edward F. Morgan, Tuscaloosa, for appellee.
   MADDOX, Justice.

This is a boundary dispute between coterminous landowners concerning a strip of land approximately 150' X 770', but irregular in width. Plaintiff, Sarah Claybrook, claims the area by deed and by will. She has made all the tax payments on the property in question. Defendants, Frank Smith and Kenneth E. Smith, who are uncle and nephew, claim the area by adverse possession. The lower court heard the case, and upon the advice of the jury, found in favor of the plaintiff, and the defendants appeal. We affirm.

R. D. Claybrook and Sarah L. Claybrook, husband and wife, purchased a 44 acre farm on August 20,1956, described as having the northern boundary line at:

“. . . The North Boundary line of the South half of the Southeast Quarter of the Northeast Quarter, lying West of Alabama highway 17, in Section 22, Township 18 South, Range 14 West.

This boundary line, which is a government survey line, is an open field. There are some cedar trees, which over the years have grown into a hedgerow, to the south of this boundary line. It is the area between the boundary line and the cedar trees which is the subject of this dispute.

There was evidence that the area was set aside by the Claybrooks as a produce garden, and was used at various times to grow corn, millet and watermelon, and that in 1963, the Claybrook’s son, Robert, used the plot to raise corn for his FFA project at school. The Claybrooks did not use the disputed land after R. D. Claybrook’s death in 1967.

Lon Smith, the previous owner of the adjoining Smith farm, died in 1964, and the present owners, Frank Smith and Kenneth E. Smith, are his son and grandson. Frank Smith and Kenneth E. Smith purchased the farm from Lon Smith’s other heirs in February of 1968, but did not record the deed until December 19, 1974.

The Smiths claimed that they used the property in 1971 for serecia, in 1972 for sudex, in 1973 for wheat, and in 1974 for soybeans. Claybrook claims to have had a “For Sale” sign on the land for eleven months in 1971, and that the land was then overgrown and not in use. In 1974, Clay-brook notified the Smiths that they were trespassing and to cease immediately. Claybrook then had the land surveyed and put up a fence on the line established by the surveyor. Frank Smith tore down the fence, claiming the land was his. Clay-brook then filed suit to establish the boundary line.

At the trial, there was much conflicting evidence as to the use of the land. During the period from 1963 to 1967, Claybrook claims he planted corn, millet and watermelon. The Smith’s tenant during the period said that he had planted cotton and hay on the strip.

There was some evidence that there was at one time a hedgerow at the survey boundary line, and that the present row of cedar trees is not the same one as that old hedgerow.

The title to the land was never in dispute, and the Claybrooks have paid the taxes on the land since its purchase.

The defendants’ only claim rests on adverse possession by use of the disputed land. In adverse possession, the burden of proof rests on the ’ claimant, McLester Building Co. v. Upchurch, 180 Ala. 23, 60 So. 173 (1912), to prove that his possession is actual, hostile, open, notorious, exclusive, and continuous for the statutory period. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964).

The trial court did not err in finding that the defendants failed to meet this burden. The defendants obtained possession in 1968, and assuming they adversely possessed the strip, they had done so only for about six years at the time suit was brought, thus they failed to show adverse possession for the statutory time period. Defendants claim, however, that they met the time requirement, if they are allowed to tack on the adverse possession of their predecessors in title. They cite Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), in support of their claim. The facts of Carpenter are not present here. The area in dispute here is not well defined, it was not openly fenced, there is no house built upon it, and the evidence is highly disputed as to whether the defendants’ predecessors in title intended to transfer or did, in fact, transfer the actual possession of the land. The trial judge could have found that the defendants failed to show that there was a continuous and exclusive control over the property upon which tacking could rest. Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967).

In short, the court could have determined that the defendants had shown their possession, at best, to have been sporadic and intermittent, never continuous, and that there was a lack of evidence that they either intended to maintain exclusive control over the property, or attempted to do so.

In summary, the evidence fully supports the findings of the trial court and will not be disturbed on appeal. Duncan v. Sherrill, Ala., 341 So.2d 946 (1977).

The appellants claim that the court misapplied the law, whether the jury was advisory or not, because the court gave an improper charge to the jury. They contend that even if the case was tried pursuant to Title 47, § 2, Code, and if the jury was sitting in an advisory capacity, the trial judge incorrectly applied the law in his own determination of the facts. They say this is so because the trial judge incorrectly charged the jury on the applicable law and that the record shows that the trial judge misunderstood the correct principles to be applied, especially as regards “tacking” of adverse possession.

First, this was not a case where either party was entitled to a trial by jury, as of right. Lucas v. Scott, 247 Ala. 183, 24 So.2d 540 (1945). Second, we have examined the record, especially the trial court’s order denying the motion for new trial, and we are not convinced that the trial judge incorrectly applied the law of this state on “tacking” in determining whether the appellants had met their burden of proving title by adverse possession. We find no error here.

Appellants claim that the court committed reversible error in comments made to witness Ashcraft during the trial. As we have pointed out, the jury was advisory merely, and the comments do not affirmatively show that the trial judge was biased or prejudiced.

Our cases adhere to the principle that the trial judge is vested with a wide discretion in determining whether or not incidents which occur during the course of a trial affect the rights of either party to have a fair trial, and his action may not be reviewed unless it clearly appears that his discretion has been abused. Our cases also recognize that the trial judge is in a better position than this court to determine the probable effect of such incidents. The record before us does not, in our opinion, justify a holding that the trial judge abused his discretion. Boudrow v. H&R Construction Co., 284 Ala. 60, 222 So.2d 154 (1969).

Appellants also claim that the trial court committed reversible error in refusing to admit into evidence an aerial photograph. The photograph was not part of the records of the county office of the Agricultural Stabilization Service, and the witness did not have actual knowledge that the photograph was a true and accurate portrayal of the land in question. Furthermore, a similar photograph, which was properly identified, was admitted into evidence. The trial judge acted within his discretion. Cf., Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    W. P. McKinney et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO., a corp. and Herman F. Grantham.
    SC 2114.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    Rehearing Denied Sept. 30, 1977.
    James M. Prestwood, Andalusia, for appellants.
    A. R. Powell, of Powell & Sikes, Andalusia, for appellees.
   FAULKNER, Justice.

The McKinneys appeal from an order holding that State Farm was not obligated to pay the default judgment they recovered against Herman Grantham. We affirm.

In April, 1968, while married, Betty Grantham and Herman Grantham purchased a Buick. After being refused insurance coverage on the automobile by one company because of the bad driving record of Herman, application for liability coverage was made in the name of Betty to an agency. She was listed as the applicant and Herman was listed as an additional operator. The application was processed through the assigned risk plan because of Herman’s driving while intoxicated conviction. Coverage was assigned to State Farm through the assigned risk pool, and was issued effective December 16, 1969.

Betty and Herman separated in April, 1970, and he moved to Georgia, taking the Buick with him. They were divorced on December 7. Betty gave Herman a bill of sale to the Buick, and he applied for Georgia title registration on October 29, 1971. Title to the car was issued in his name.

Meanwhile, on the day following the divorce, Herman Grantham paid the premium for coverage through December 16, 1971. He was given a receipt by the agency who withheld its commission, and forwarded the balance to State Farm showing that the premium payment was on the policy, on the Buick, issued to Betty Grantham. State Farm was not notified of the divorce; it was not notified of any alleged assignment of the policy, and did not give its consent of assignment.

On November 12, 1971, Herman Grant-ham, while driving the Buick, struck McKinney’s house, causing property damage to their house and bodily injuries to them. Following the accident, Herman reported it to the agency who notified the claims office of State Farm. After its investigation, State Farm denied coverage because Betty did not have an insurable interest in the automobile, and derived no benefit from its operation by Herman. State Farm notified Herman that he would have to defend the suit personally. He did not, and default judgments were entered against him by the McKinneys. They filed this action against State Farm pursuant to T. 28, § 12, Code of Alabama.

Section III of the policy defines “insured”:

“HI. Definition of Insured.
“The unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”

When Betty Grantham gave Herman a bill of sale to the Buick, she no longer had an insurable interest in it. Moreover, assuming there was an assignment of the policy to Herman, State Farm did not give its consent. It could not consent, as it did not know about the transfer of the Buick. This court held in Rogers v. Lumbermans Mutual Casualty Co., 271 Ala. 348, 124 So.2d 70 (1960) that an insurable interest in an automobile exists where the insured derives a benefit from the existence of the automobile, or would suffer a loss from its destruction. Cf. Bendall v. Home Indemnity Co., 286 Ala. 146, 238 So.2d 177 (1970).

The trial court was correct in holding that State Farm was not obligated to defend the suit. Betty Grantham, the named insured, was not liable for the McKinney’s damage and injuries, and did not derive any benefit from the existence of the automobile driven by Herman Grantham. Since Betty had transferred the Buick to Herman, she could suffer no loss if it were destroyed. See Ocean Accident and Guarantee Corp. v. Bear, 220 Ala. 491, 125 So. 676 (1929); Employers National Insurance Co. v. Holliman, 287 Ala. 123, 248 So.2d 717 (1971).

AFFIRMED.

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


text:
    James Bryan ELLIOTT et al. v. Jettie Mayo ELLIOTT et al.
    SC 2145.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    Rehearing Denied Sept. 30, 1977.

      Winston V. Legge, of Patton, Latham & Legge, Athens, for appellants.
    David H. Culver, of Culver & Miller, Huntsville, for appellee, Jettie Mayo Elliott.
    John R. Wynn, Huntsville, for appellee, Central Bank of Alabama.
   MADDOX, Justice.

Plaintiff-appellee, Jettie Mayo Elliott, widow of James D. Elliott, filed suit seeking construction of the will of her deceased husband and declaratory instructions as to whether or not a proportionate part of the estate taxes and the cost of administering the estate should be paid from the widow’s share.

In the proceedings below, the defendants were James Bryan Elliott, Doris E. Maples, Margaret Demetria Nichols, and George Robert Elliott, all children of the deceased by a previous marriage. Central Bank of Alabama, named by the deceased as executor, was also made a party defendant. The children and the bank assert in their answers to the widow’s complaint that the widow’s interest under the residuary clause of the will must bear all the estate taxes, expenses of administration and debts. In its cross-claim against the children, the bank also raised the question of whether the income taxes on income reported for federal and state income tax purposes by the estate should be paid from the widow’s residuary interest or from the interest of the children. In the event the court ruled in favor of the widow, the bank sought a judgment against the children for the amount of taxes, expenses and debts payable to the estate.

The facts were stipulated. James D. Elliott, a resident of Huntsville, died December 19, 1974, leaving a valid will which was duly probated on January 6, 1975. The dispositive portions of the will consisted of ITEMS 1, 2, 3 and 4, and appear, in part, as follows:

“ITEM I
“I direct that all my just debts and funeral expenses be paid by my Executor hereinafter named as soon after my death as may be practicable.
ITEM 2
“I give and bequeath to my beloved wife, JETTIE MAYO ELLIOTT, all my personal effects, including clothing, automobile, jewelry, China, glassware and silverware of every kind and wheresoever located, the same to be hers absolutely.
“I make no disposition of the household furniture, fixtures or other furnishings in our home in as much as these items are the property of my wife, JETTIE MAYO ELLIOTT, the same having been given to her over the period of our married life. I authorize my Executor to honor any claim of ownership made by my wife with respect to such property and vest in my Executor full power and authority to determine the identity of property included in the foregoing.
ITEM 3
“Over the past many years I have been in business with my son, GEORGE ROBERT ELLIOTT and I think I have been most generous to him. He is well-established and has acquired as of this date, an undivided one-half interest in and to the gin, cotton seed, warehouse, cotton poisoning and related business. Therefore, I give, devise and bequeath any business interest that I may own in the gin business at the time of my death to my other children; namely, DORIS E. MAPLES, MARGARET DEMETRIA NICHOLS, and JAMES BRYAN ELLIOTT, share and share alike.
“If I am the owner of any interest in the partnership business operation at the time of my death, I would hope that my named beneficiaries to said interest will give my son, GEORGE ROBERT ELLIOTT, the right and privilege to acquire their interest over a period of five years. Provided, however, if a dispute arises as to the fair and reasonable price, any of said beneficiaries shall be free to sell his or her interest.
“If at the time of my death I have contracted to sell or sold my interest in the partnership business and have any mortgage or other documents securing the proceeds due therefrom, then, in that event, I give and bequeath any remaining proceeds due therefrom to my named beneficiaries, DORIS E. MAPLES, MARGARET DEMETRIA NICHOLS, and JAMES BRYAN ELLIOTT.
ITEM 4
“All the rest and residue of my estate, I give, devise and bequeath as follows:
“(a) Vi of the residue of my estate which is to include any interest that I may own at the time of my death in our home in Huntsville, Alabama, to my beloved wife, JETTIE MAYO ELLIOTT, absolutely and in fee simple.
“(b) I give, devise and bequeath % of the residue of my estate in trust, to THE CENTRAL BANK OF ALABAMA, N.A. (hereinafter referred to as Trustee).
“The trust herein created shall be held and administered by the Trustee as follows:
“1. If my wife, JETTIE MAYO ELLIOTT, survives me, the Trustee shall pay all of the net income of the trust to my wife in quarterly or more frequent installments during her lifetime. If at anytime during such period the net income from said trust estate shall not, in the opinion of the Trustee, taking into consideration her other income from other sources, be sufficient to provide for her support and general welfare, the Trustee shall pay over to my wife such additional sum or sums out of the principal of said estate as the Trustee may deem necessary or desirable for said purposes.
“2. Upon the death of my wife, JET-TIE MAYO ELLIOTT, the Trustee shall distribute the principal and any accrued income of this trust to such person, including my wife’s estate as my wife, JETTIE MAYO ELLIOTT, may direct and appoint by her Last Will and Testament. This general power of appointment shall not be deemed to have been exercised unless my wife, JETTIE MAYO ELLIOTT, makes specific references thereto in her Last Will and Testament. If she fails to exercise this power of appointment, the principal of this trust shall be paid to my children; namely, DORIS E. MAPLES, MARGARET DEM-ETRIA NICHOLS, and JAMES BRYAN ELLIOTT.
“3. Upon the death of my wife, the Trustee shall be authorized to withhold distribution of any amount of property sufficient, in its judgment, to cover any liability that may be imposed on the trust for estate or other taxes until such liability is finally determined and satisfied.
“4. It is my intent and purpose that the trust herein created shall qualify for the marital deduction. I direct that in the establishment and administration of such trust my Executor and Trustee shall not exercise any powers herein conferred on it which would disqualify such trust for the marital deduction, and that all other provisions of this will or any codicil hereto shall be subordinate to such intent and purpose. . . . ” [Emphasis added.]

Based on these stipulated facts, the trial court entered its decree declaring that the share of the widow under the will of the decedent should not be charged with federal or state estate or income taxes unless all other assets of the estate are insufficient to pay the taxes; that the share of the widow should not be chargeable with the expenses of administration, absent insufficient other assets; that the share of the widow should not be chargeable with debts of the estate, absent insufficient other assets. The court also granted the bank a judgment against appellants, James Bryan Elliott, Doris E. Maples and Margaret Demetria Nichols, for all sums properly paid or payable by the bank as executor on account of federal and state estate and income taxes, expenses of administration and debts, to the extent of the value of their share of the decedent’s partnership interest, less the amount of assets, other than assets passing to the widow, available to the estate with which to pay such taxes, expenses and debts.

ISSUES

1. Whether estate taxes, state or federal, shall be a charge against the residue of the decedent’s estate where the residuary devise or bequest is to the widow or in trust for the benefit of the widow.

2. Whether the trial court erred by rendering an incomplete and uncertain judgment or by failing to determine all issues among the parties.

I

Appellants contend that absent testamentary instructions to the contrary, a residuary devise or bequest solely to the decedent’s widow, or in trust for her benefit, is subject to the payment of federal and state estate taxes. Appellants contend that under Item 4 of the will, the decedent conveyed the residuary of his estate in two parts, one quarter to his widow and three quarters in trust to the bank as trustee with income to be paid to the widow. Appellants rely on Title 51, § 449(1), Code, for the proposition that estate taxes are to be paid from the residuary. The pertinent portion of Title 51, § 449(1) is as follows:

“Unless the decedent directs otherwise in his will, all estate taxes, whether state or federal, payable by reason of the death of decedent, shall be paid by the executor or other personal representative out of the estate property, and shall be a charge against the residue thereof . . ..”

Appellants contend that Item 4 of the will is a residuary devise or bequest and to hold otherwise would be contrary to prior law and in direct conflict with a determination made by this court in Davis v. Davis, 289 Ala. 313, 267 So.2d 158 (1972). Appellants submit that the trial court erred in not declaring that estate taxes are to be paid from the residuary devise or bequest under Item 4. The appellee bank’s position is that when the widow is the sole residuary legatee, her interest under the will must first be reduced by debts, expenses of administration and taxes. The bank contends that under the will the gift to the children under Item 3 is a specific legacy, and the gift to the widow under Item 4 is a residuary legacy. Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972). The bank further contends that the widow elected not to dissent from the will and therefore having agreed to accept the residuary of the estate, she cannot now claim that the residuary passes to her free of estate taxes, administration expenses or debts.

The widow’s main argument is that the devise or bequest by Item 4 of the will is not truly residuary. The widow concedes that Item 4 of the will contains language usually denoting or pertaining to a residuary clause in a will; however, she contends that the testator, by subordinating all other provisions of the will in Item 4, paragraph 4, created a preference in Item 4 and removed it from the residue as defined by this Court in American Mortgage Company of Scotland v. Boyd, 92 Ala. 139, 9 So. 166 (1890). In effect, the widow submits that the residuary should not be charged with the decedent’s debts, administration expenses or estate taxes. The widow relies on the purchaser for value theory, citing Steele, et al. v. Steele’s Adm’r., 64 Ala. 438 (1879). In reply, appellants contend that Title 51, § 449(1) places the estate tax burden on the residuary estate and the devise or bequest of the residuary to the widow in the instant case does not constitute a marital deduction gift exemption to Title 51, § 449(1), as this Court found was present in Davis v. Davis. We cannot agree.

We affirm the judgment of the trial court.

In Davis v. Davis, 289 Ala, at page 321, 267 So.2d at page 165, this Court held:

“. . . [T]hat when a marital deduction gift, which does not exceed the limits of the marital deduction, is granted to a widow in a will not containing directions for estate tax payments, the general rule (that all takers in the residue are to share in the payment of estate taxes) does not apply. Instead, an exception, based upon a presumption that the marital deduction gift to the widow was given with the intent to maximize the tax advantages to the estate and to maximize the benefits to the widow within the limits of the gift and the marital deduction, is created wherein the widow’s share is not burdened by such tax. Of course, if the intent of the testator is otherwise, the widow’s share should bear its part of the estate taxes.”

Even though the testator, in Item 4, used the words “all the rest and residue of my estate” and “Vi of the residue” and “% of the residue,” it is significant that in Item 4(b)(4), the testator provided as follows:

“It is my intent and purpose that the trust herein created shall qualify for the marital deduction. I direct that in the establishment and administration of such trust my Executor and Trustee shall not exercise any powers herein conferred on it which would disqualify such trust for the marital deduction, and that all other provisions of this Will or any codicil hereto shall be subordinate to such intent and purpose.”

Since the residue left to the wife does not exceed the allowable marital deduction, and since the testator specifically stated that he intended that the gift to the widow should qualify as a “marital deduction,” it would be difficult to attribute to the testator an intention that his estate should pay an increased estate tax and that his widow’s distributable share should be reduced. Davis v. Davis, supra. See, also, the many cases from other jurisdictions cited in Davis.

II

The trial court specifically decreed:

“1. The share of the widow, Jettie Mayo Elliott, under the Last Will and Testament of James D. Elliott, shall not be charged with federal or State of Alabama estate or income taxes unless all other assets of the estate are insufficient to pay such taxes.
“2. The share of the widow, Jettie Mayo Elliott, shall not be chargeable with the expenses of the administration of the estate unless all other assets of the estate are insufficient to pay such expenses.
“3. The share of the widow, Jettie Mayo Elliott, shall not be chargeable with the debts of the estate unless all other assets of the estate are insufficient to pay such debts.
“4. The Central Bank of Alabama is hereby granted judgment against the cross-defendants James Bryan Elliott, Doris E. Maples and Margaret Demetria Nichols, separately and severally, for all sums properly paid or payable by the Central Bank of Alabama as executor of the estate of James D. Elliott on account of federal and state estate and income taxes, expenses of administration and debts, to the extent of the value of such cross-defendants’ share of the decedent’s partnership interest which was sold by them to the defendant George Robert Elliott, less the amount of assets, other than assets passing to the widow, available to the estate with which to pay such taxes, expenses and debts.”

Appellants claim that the decree is incomplete and uncertain in this respect. We cannot agree. In view of the holding by the trial judge that the testator intended that the share of the widow should not be charged with federal or state estate or income taxes, and in view of our affirmance of that decree, it appears that the trial court’s determination was correct that the widow’s share — “All the rest and residue” after Items 1, 2 and 3 were satisfied— should not be chargeable with the debts or the expense of administration of the estate, unless all other assets of the estate were insufficient to pay the debts and expenses. In Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972), this Court stated:

“The following statement in an opinion by the United States District Court for the Northern District of Alabama appears to be pertinent to the matter under consideration, to wit:
'As previously noted Alabama has adopted the rule that, in case of insufficient assets, the loss falls first on the residuary estate, then on the specific devisees and legatees. But Alabama has also recognized an exception to this rule in the case of a widow, holding in Steele v. Steele’s Administrator, 64 Ala. 438 (1879), that testamentary provisions made for the wife are to be accorded a priority over all other legatees and devisees, being right behind the claims of creditors. This holding has not been overruled, questioned, or distinguished in any succeeding reported decision of the Alabama appellate courts — at least none has been found by either party hereto or by the court in independent research. This Court is bound to conclude that under Alabama law the general bequest to Mrs. Dixon under the will was not subject to abatement on account of the other devises and legacies — and that accordingly the disclaimers by the sons did not add to the interests she was to receive under her husband’s will. It may be noted that the preference given the widow in this regard by Alabama is in line with the weight of authority from other states. See Annot. 2 A.L.R.2d 607 (1948).’ First National Bank of Birmingham et al. v. United States, supra, 328 F.Supp. at 1342, 1343.”

In summary, even though there are factual differences between this case and the Davis case, the legal effect of what the testator did is the same. The trial court, in effect, construed the intent of the testator to minimize his taxes while concurrently maximizing his bequest to this wife. Reading his will, especially Item 4(b)(4) of it, convinces us that the decree of the trial court carries out the testator’s intent.

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

AFFIRMED.

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


text:
    CITY OF MOUNTAIN BROOK, Alabama, a Municipal Corporation v. W. C. BEATY et al., etc., and S. O. Johnson et al.
    SC 2353, SC 2354.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    Rehearing Denied Sept. 30, 1977.
    J. M. Breckenridge, Birmingham, for appellant.
    James J. Robinson, Maurice F. Bishop, Gerald D. Colvin, Jr., Birmingham, for ap-pellees.
   FAULKNER, Justice.

This is an appeal from a decree invalidating ordinance No. 653 of the City of Mountain Brook. We affirm.

On September 2, 1975, the City adopted the ordinance to become effective October 1, the first day of its 1975-76 fiscal year.

Section 1(b) of the ordinance defines “Trade, Occupation and Profession” as follows:

“The words ‘Trade, Occupation and Profession’ shall mean and include the doing of any kind of work, the rendering of any kind of personal services, or the holding of any kind of position or job within the City of Mountain Brook, Alabama, or within the police jurisdiction thereof, by any clerk, laborer, tradesman, manager, official or other employee, including any non-resident of the City of Mountain Brook who is employed by any employer as defined in this section, where the relationship between the individual performing the services and the person for whom such services are rendered is, as to those services, the legal relationship of employer and employee, including also a partner of a firm or an officer of a firm or corporation, if such partner or officer receives a salary for his personal services rendered in the business of such firm or corporation, but they shall not mean or include businesses, professions or occupations for which license fees are required to be paid under any General License Code or General License Schedule of the City or domestic servants employed in private homes.”

Section 2(b) of the ordinance provides:

“It shall be unlawful for any person to engage in or follow any trade, occupation or profession as defined in Section 1 outside of the corporate limits of the . City but within the police jurisdiction thereof on and after the 1st day of October, 1975, without paying license fees for the privilege of engaging in or following such trade, occupation or profession, which license fees shall be measured by one-half of one percentum (¥2%) of the gross receipts of each such person.”

The issue is whether Mountain Brook has any legal authority to levy a tax on income earned beyond its corporate limits, yet within its police jurisdiction. We hold that § 733, T. 37, Code of Alabama, the statute on which the City bottoms its authority, does not give it authority to levy the tax.

T. 37, § 733 authorizes a city to fix and collect licenses for any trade, business and profession within its police jurisdiction limited to one-half the amount charged for a similar license imposed on the same activity within its corporate limits. The statute restricts this authority to business, trade or profession. The legislature intended this section to be a regulatory — not a revenue statute. This court held in White v. City of Decatur, 225 Ala. 646, 144 So. 873 (1932) that the legislature may authorize a municipality, under the police power, to regulate and license businesses outside its corporate limits, and require payment of a sum as is necessary for the protection of the lives, health and property of the citizens, the maintenance of good order, the quiet of the community, and the preservation of public morals. But, said White, “the Legislature is without authority to authorize the levy of a tax for revenue on businesses or occupations not carried on within the corporate limits, as this would amount to taxation without representation and the taking of property without due process of law, and for uses not authorized by the Constitution.” Cf. City of Prichard v. Richardson, 245 Ala. 365, 17 So.2d 451 (1944). The trial court found that the ordinance imposed a tax for general revenue purposes. Our view of the evidence leads us to conclude that the trial court did not err.

We hold that the trial court correctly declared the ordinance invalid and unconstitutional.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    In re Robert H. EVANS v. INSURANCE COMPANY OF NORTH AMERICA. Ex parte INSURANCE COMPANY OF NORTH AMERICA, a corporation.
    SC 2385.
    Supreme Court of Alabama.
    Sept. 2, 1977.

      William B. Eyster, for Eyster, Eyster & Key and J. Glynn Tubb, Decatur, for petitioner.
    W. L. Chenault, for Chenault & Chenault, Decatur, for respondent.
   BEATTY, Justice.

Petition for a writ of mandamus to compel the respondent trial judge to set aside an order admitting the responses to a Request for Admissions because the responses were not timely filed. The writ is denied.

On April 27, 1976, Robert H. Evans filed an action in the Circuit Court of Morgan County against Insurance Company of North America (INA). In that action the plaintiff claimed damages for breach of contract on a policy of insurance which provided for disability payments. The defendant filed a motion to dismiss which was denied on June 3, 1976. Its answer was filed on June 14, 1976 and written interrogatories were propounded to the plaintiff on June 21, 1976. INA’s motion to require answers was filed on July 30, 1976, and Evans’ answers were filed on August 20, 1976.

On September 1, 1976 INA filed an amended answer, and also a request for admissions of facts which was served on Evans’ counsel on that date. No response to that request was filed within thirty days after service. INA then filed a motion for summary judgment on November 10, 1976. That motion was set for hearing on January 14, 1977. The day before that hearing, or one hundred thirty-four days after service of the request, Evans filed his responses, together with his counter-affidavit to defendant’s motion for summary judgment. On the next day, the date set for the hearing, INA moved to strike the responses and the counter-affidavit. The trial judge denied the motion to strike and continued the motion for summary judgment. Following the filing of this petition, this Court ordered the respondent to file his answer, which was duly filed, and the petition was argued and submitted to this Court on June 22, 1977.

The respondent-Evans has moved this Court to dismiss the petition on the ground that it was not filed within the time allowed. He cites us to Tit. 7, § 1074, Alabama Code which provides for a time limit of thirty days. That section, however, does not apply to original petitions for writs of mandamus filed in this Court. It applies to appeals taken to this Court from “any such proceeding,” that is, from applications for extraordinary writs addressed to trial courts, and when the trial court has entered a final judgment. It would have been more appropriate for counsel to have cited us to Tit. 7, § 761 which provides for appeals to this Court from a rule nisi upon an application for an extraordinary writ, for in the instant case no final judgment has been entered by the trial court. Section 761 has been modified by the Alabama Rules of Appellate Procedure, and the time for taking an appeal from the interlocutory order of a trial court upon an application for an extraordinary writ now is forty-two days. Comment, App. Ill, Statutes Modified 501, 504, Alabama Rules of Court (West Pub. Co. 1977).

That section, however, did not establish the time within which an application for a writ of mandamus should be filed in this Court. Mandamus is an extraordinary remedy, and only unreasonable delay is a ground for dismissing a petition for such relief. State ex rel. Bates v. Savage, 34 Ala.App. 633, 42 So.2d 695 (1949); Ex parte Strock, 27 Ala.App. 255, 170 So. 487 (1936); Cf. Taylor v. Major Finance Co., Inc., 292 Ala. 643, 299 So.2d 247 (1974); Folmar v. Brantley, 238 Ala. 681, 193 So. 122 (1940). The defendant’s petition to this Court was filed on February 25, 1977, forty-two days (six weeks) after the trial court’s order of January 14, 1977. This action was within the time period allowed for taking an ordinary appeal, and there does not appear to have been an unreasonable delay on the part of the petitioner, no prejudice having been shown nor any other circumstances which would show unreasonableness. Therefore, the respondent’s motion to strike this petition for a writ of mandamus is denied.

The dispositive issue here is whether the trial court abused its discretion in denying the motion to strike plaintiff’s responses, and this depends upon the establishment of a clear legal right by the defendant and the absence of another adequate remedy. Foshee v. State, 210 Ala. 155, 97 So. 565 (1923). As this Court stated in Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974):

The test to be applied in deciding whether mandamus should be granted to review an interlocutory order has been stated as follows:
‘We have said that the test as to whether mandamus will be issued now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of remedy by appeal. . . ’ (Citation omitted).

The purpose behind Rule 36 is not discovery, but to establish a procedure “for facilitating the proof at the trial by weeding out facts and items of proof over which there is no dispute, but which are often difficult and expensive to prove.” Moore’s Fed.Prac., 2d ed., Par. 36.02. To accomplish this result, the plain terms of Rule 36(a), ARCP allow “a written request for the admission, ... of the truth of any matters . . . that relate to statements or opinions of fact or of the application of law to fact, . . . ’’ This language follows:

. . The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the Court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter . . . but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. . . . (Emphasis supplied).

And then, under Rule 36(b):

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. . . . (Emphasis supplied).

A review of the history of federal Rule 36 reveals that under the original Rule 36 the evidentiary effect of an admission was unclear. Apparently this was because the original rule contained neither a statement on that effect nor any provision under which a party could be relieved from an admission which he had made. See Moore’s Fed.Prac., supra, Par. 36.08. The language of the Alabama rule corresponds to the 1970 amendments to federal Rule 36, which were intended to clarify the matter, and these clearly provide that the admission made in response to the request “is conclusively established” unless (1) there is a motion for amendment or withdrawal of the admission, and (2) the trial court grants that motion.

That the conclusive admissions established by reason of Rule 36 have been sufficient upon which to base summary judgments is well established. Goodman v. Mead Johnson & Company, 388 F.Supp. 1070 (D.C.1974). On that point the court in Freed v. Plastic Packaging Materials, Inc., 66 F.R.D. 550, 552 (D.C.1975) pithily noted:

. Rule 56(c) provides that Summary Judgment shall be rendered if, among other documents, ‘[the] admissions on file . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ The form of the admissions is unimportant. It is well settled that admissions obtained under Rule 36, including matters deemed to be admitted by a party’s failure to respond to a request for admissions, can form the basis for granting Summary Judgment. (Citations omitted). (Emphasis supplied).

It is significant that in Freed the plaintiff’s request to the defendant under Rule 36 was properly served by mail but never received. The Freed court referred to a similar case, In Re: Mack, 330 F.Supp. 737 (D.C.1970) as containing the controlling law:

. Failure to receive a request for admissions will not prevent a summary judgment based thereon; however, the record must show the request was mailed to the last known street address of the party concerned in compliance with F.R. Civ.P. 5(b). (Citations omitted).
While there may have been confusion before, the amended rule now declares that any matter admitted is conclusively established. It makes no difference whether the requested admissions are received and unanswered or never received. Thus, where a request for admissions is properly served to which no timely response is made, all matters therein are admitted and may well form the basis for Summary Judgment. The Rules of Procedure permit no other considerations.

These decisions give considerable dimension to the nature of the party’s right when he moves later for summary judgment based in whole or in part upon the matter admitted under Rule 36. They are particularly instructive in a situation like that before us, which reveals no problem regarding either service or knowledge. The plaintiff here, moreover, filed no motion or any other request for an extension of time. He did not make any objection to the matters contained in the request. All he did was file his answers the day before the defendant’s motion for summary judgment was to be heard, one hundred thirty-four days after service of the request.

Notwithstanding this background, the respondent has cited us to a number of federal cases for the proposition that the trial judge is vested with discretion to allow tardy responses to requests for admissions. Some of the cases he cites did not pertain to the effect of Rule 36. Of those which did consider its effect, the trial court was upheld in allowing the untimely responses. French v. United States, 416 F.2d 1149 (C.A.9th 1969); United States v. Gannon, 363 F.Supp. 1045 (D.C.Del.1973) (denial of requested admission filed ten days late); Pleasant Hill Bank v. United States, 60 F.R.D. 1, 3 (D.C.Mo.1973) (request dated October 25, 1972, response February 9, 1973). These allowances were made without any previous motion or objection by the other party, as is the case here. It is also notable that the court in each case found that no trial delay was caused by the allowance of the late responses and no prejudice to the opponent was shown. This is a reasonable premise upon which to base a decision allowing the responses, since the purpose of the Rule, as we have stated, is to facilitate the trial. If the trial is not delayed by the late party to the prejudice of the party requesting the admissions, there could be no reasonable ground for imposing upon him the onerous burden which otherwise the admissions might cast upon him, such as having summary judgment granted against him instead of being allowed a trial by jury. This application of the Rule was utilized in a case in which the responses were ten months late, Brennan v. Varrasso Bros., Inc., 17 FR Serv.2d 718 (D.C.Mass. 1973). There, after the failure of the defendant to respond to his request, plaintiff had released witnesses, and established prejudice by showing the court the difficulty to be experienced in attempting to locate them in order to prove the matters tardily denied (thus previously admitted) by the defendant. See also Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (1966).

We do not perceive any divergence of authority in the cases to which we have alluded above. Goodman, Freed and Mack pertain to the evidentiary nature of the request for admissions when the matter contained in the request is admitted, however that admission occurs, that is, whether by response or by failure to respond. French, Cannon and Pleasant Hill Bank, however, deal with an entirely different question, i. e., whether the matter has been admitted, or to put the question in another way, whether the trial court has any discretion in determining whether the matter is admitted. That such discretion exists under Rule 36(b) is established not only by the language of that rule

the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits .

but by the federal precedents calling for the exercise of that discretion even in the absence of a motion, withdrawal or amendment. French, Cannon and Pleasant Hill, supra. This position does not run counter to our recent decision in Billingsley v. Gordon, 340 So.2d 743 (Ala.1976), because the majority opinion dealt with the failure of the trial judge to comply with Rule 56(c), ARCP.

No hard and fast rule can be adopted in these instances. A ten-day failure may, indeed, cause a delay which works to the prejudice of the requesting party. On the other hand, a ten-month failure may result in no prejudice at all. The question, then, is not whether the party requested has proved extenuating circumstances as an excuse for his delay; it is whether the requesting party has been prejudiced by any delay caused by the failure to respond. This is the issue addressed to the trial court, and the issue addressed to this Court is whether, in the exercise of his discretion, the trial court has abused that discretion.

The petitioner here claims undue injury, and therefore prejudice, because it “has been denied its right to an affirmative ruling on its motion for summary judgment and will now have to incur the expenses and time of trying the case on the merits.” But the trial court has not ruled upon the motion for summary judgment, and so we cannot determine whether any right to such a judgment has been infringed. The merits of the controversy have been preserved for decision, insofar as the record discloses, and the defendant-petitioner has not shown any prejudice to it resulting from the delay. It may proceed to an adjudication on the merits by way of summary judgment or trial, depending upon future proceedings. In any case, it would be speculative at this juncture for this Court to conclude now, before the trial court has had an opportunity to rule upon it, that the defendant had a clear legal right to a summary judgment which was denied to him through the exercise of a discretionary power possessed by the trial judge. We do conclude under the facts before us that the defendant has failed to show any prejudice resulting from the plaintiff’s delay in furnishing the responses, and therefore has failed to establish any abuse of discretion by the trial judge.

We do not, however, foreclose later review of any action below pertaining to unnecessary expenses sustained by the defendant as a result of the plaintiff’s untimely compliance, see Rule 37(c), ARCP, or review by way of possible appeal of any other error alleged to be prejudicial arising out of this controversy. Specifically, if the defendant succeeds in proving the facts which it sought by request for admission, the sanctions under Rule 37(c) ARCP, should include all expenses which it incurred because of the plaintiff’s failure or refusal to admit its request.

The petition for the writ of mandamus is due to be denied.

WRIT DENIED.

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


author: ALMON, Justice.

text:
    In the Matter of William Lee HAYMES v. STATE of Alabama.
    SC 1980.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Cecil Wayne Morris, Huntsville, for appellant.

      William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   ALMON, Justice.

The Family Court Division of the Circuit Court of Madison County declared William L. Haymes, age 13, to be a juvenile delinquent. The child was ordered to serve 30 days detention in the Madison County Juvenile Detention Home and was placed on a 2 year probation conditioned upon his payment of $500.00 restitution to the injured party.

On the evening of December 27, 1975, between 10:30 and 11:30 P.M., William Haymes and Brian James Yoight took a mop from outside a local educational television station. William broke off part of the handle and Brian lit the mophead with a book or box of matches. The mophead smoked and smouldered. The two boys then rode on a single bicycle to the residence of Jerry Slaby.

According to Brian, William said, “We’re going to smoke out all the people on the mountain,” and both boys laughed. Brian testified that, upon arriving at the Slaby residence, William took the smoking mop-head and went over by a doghouse located within a few feet of a garage. (Brian had been declared a delinquent about an hour prior to his testimony.)

Contrary to Brian’s testimony, William testified that it was not he who took the mophead over to the doghouse, but rather, Brian who did.

Later that night the doghouse and garage burned, causing several thousand dollars in damages.

On appeal, Haymes contends (1) that the petition is constitutionally defective for not giving adequate notice, (2) that the mop-head admitted into evidence was not shown as being in substantially the same condition as at the time of the fire, (3) that the lower court’s decree is palpably wrong, and (4) that the lower court does not have authority to require a delinquent child to pay restitution or costs.

The petition alleged that Haymes:

“did willfully set fire to, or burn, or cause to be burned, or aid or procure the burning of a dwelling house, or any kitchen, shop, barn, stable, or other out house within the curtilage of a dwelling house, the property of another, to-wit: a garage located at 3911 Cooper Street. This incident took place in the city of Huntsville, Madison County, Alabama, on, to-wit: December 27, 1975.”

Appellant argues that because the petition would be defective for not naming the owner of the property if this were a criminal case, citing Smoke v. State, 87 Ala. 143, 6 So. 376 (1888), it is also defective in this case, citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In Smoke, the appellant had filed a demurrer to the indictment. Here, we find no demurrer or other motion addressing the petition.

Had Haynes been an adult, the indictment would have been sufficient absent a demurrer. See also Rudolph v. State, 286 Ala. 189, 238 So.2d 542.

We are further satisfied that no injury resulted. Haymes was represented by counsel at the reading of the petition and at the subsequent hearing.

Appellant contends that the record does not show that a mophead introduced by the State was in substantially the same condition as at the time of the fire. The applicable rule of law is as follows:

“The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the offense . . . .” Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552, 554 (1953).

See also King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970), and Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958).

We believe, based on the testimony of Mr. Slaby, that the mophead was properly admitted into evidence:

“Q. When you came back, did you have an occasion to examine the area about the garage and doghouse?
“A. Yes, sir. For two — Maybe between two or three weeks, I left it as it was. I was too upset. And then I started to clean up that area and the City took off this debris. And I found under the doghouse a mop.
“Q. When that period of time had passed, after you found your garage burned and you did go out and look around that area, let me show you this item that has been marked for identification as State’s Exhibit 1 in this case and ask you if you found this item about your garage or doghouse?
“A. Well, that’s the mop, yes.
“Q. Okay, and did you find it about your doghouse?
“A. Yes, sir. It was under the plywood which I kept for keeping the weather away from the doghouse.
“Q. And you found this there on your property?
“A. Yes, sir.”

The testimony was taken orally before the trial judge. We have consistently followed the practice of not disturbing a trial judge’s conclusions of facts unless his judgment is unsupported by the evidence or is palpably wrong. Guenther v. State, 279 Ala. 596, 188 So.2d 594 (1966). There was ample evidence to support the trial judge’s conclusion, and we are not convinced that the judgment was palpably wrong.

Appellant asserts that the circuit court does not have jurisdiction or authority to require a delinquent child to pay restitution in the amount of $500.00 or court costs of $15.00.

As to the court costs this contention overlooks Act No. 2282, Acts of Alabama, 1971, p. 3683. This act in pertinent part provides:

“Section 1. The Family Court Division of the Circuit Court of any county having a population of not less than 175,000 nor more than 300,000 according to the last federal decennial census may assess and collect a fee in the amount of $15.00 for the filing of each case in such court wherein a juvenile is adjudged to be delinquent under the provisions of Chapter 7, Title 13, Code of Alabama.
“Section 2. The fee so collected shall be paid into the general fund of such counties by the 10th of the month following collection thereof.
“Section 3. Any person convicted of violating any of the offenses or provisions of Chapter 7, Title 13, Code of Alabama, may be fined by the Judge of said court in an amount not more than $500.00.”

We think the broad powers given juvenile courts in Tit. 13, § 351, Code of Alabama 1940, Recompiled 1958, are adequate to authorize the court to require restitution. § 351 gives juvenile courts jurisdiction and power possessed by equity courts. This court being a circuit court, of course, has equity power independent of § 351. This section further provides juvenile courts have authority “to make and enter such judgment and orders for his custody, discipline, supervision, care, protection and guardianship, as, in the judgment of the court will properly conserve and protect the welfare and best interests of the child.” See also § 354 of Tit. 13.

The judgment in this cause is hereby affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Grace BROTHERS v. Pauline MOORE et al. In re ESTATE of Mattie L. MOORE, Deceased.
    SC 2063.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      Jack W. Torbert of Simmons & Torbert, Gadsden, for appellant.
    James F. Hinton, Gadsden, for appellees.
   TORBERT, Chief Justice.

Grace Moore Brothers, individually and as administratrix of the Estate of Mattie L. Moore, petitioned the trial court to set aside a deed which had been executed in 1961 by Mattie L. Moore. The case was heard ore tenus and after an extensive hearing the court upheld the validity of the deed and denied the relief sought. Mrs. Brothers then filed a motion for rehearing or alternatively a motion for a new trial, which was denied. The denial of the motion in the alternative is the basis for this appeal.

J. A. Moore and Mattie Moore were the parents of seven children, two of whom were Grace Moore Brothers and Grady Moore. In 1939, J. A. Moore, fearing a judgment decree, conveyed all of his real estate holdings to various members of his immediate family. The 40 acres in issue here was conveyed to Grady Moore. J. A. Moore died in June 1947 and in December 1947 Grady Moore and his wife Pauline conveyed the same 40 acre tract to Mattie Moore. Apparently there was no consideration involved in either of these conveyances. After J. A. Moore died Grady and Pauline Moore moved into the same house with Mattie Moore in order to care for her. Shortly thereafter, Grady and Pauline took up residence in a house next door to Mattie Moore and lived there for the remainder of Mattie Moore’s life.

Mattie Moore executed a deed for the 40 acres to Grady and Pauline Moore on March 4, 1961. The deed was prepared and witnessed by a Notary Public. This deed was not filed for record until December 13,1972. From March 1961 until December 1972 the 40 acre tract continued to be assessed in Mattie Moore’s name and the taxes on the property were paid on her behalf by Grady Moore.

Mattie Moore died on February 17, 1971 and Grady Moore died on December 9,1972. The defendants in this case were Pauline Moore and the two children of Grady Moore.

In the court below, the appellant based her case on three theories, those theories being Mattie Moore lacked the mental capacity to execute the 1961 deed, Grady and Pauline Moore held the land as constructive trustees for the heirs of Mattie Moore, and the deed was procured through the exercise of undue influence by Grady Moore over his mother.

The primary and almost exclusive thrust of the evidence put on in the trial court concerned the issue of mental capacity. There was contradictory evidence presented on this issue and it is apparent that the trial court after having heard all the evidence ruled that Mattie Moore did have the mental capacity in 1961 to convey the property. In cases such as this, the ore tenus rule requires that this Court uphold the trial court’s finding unless it is plainly erroneous or manifestly unjust. Jones v. Ball, 294 Ala. 664, 320 So.2d 665 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975); Smith v. Gill, 293 Ala. 736, 310 So.2d 214 (1975). On the issue of competency we uphold the finding of the trial court.

The second contention of the appellant is that the property was held in constructive trust. A constructive trust is a creature of equity which operates to prevent unjust enrichment. A constructive trust will be found when property has been either acquired by fraud, or where in the absence of fraud it would not be equitable to allow it to be retained by him who holds it. Sims v. Reinert, 285 Ala. 658, 235 So.2d 802 (1970); Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963). The issue of whether or not a constructive trust results is one of fact and as stated previously where the evidence is heard ore tenus the trial court’s finding of fact will not be disturbed unless it is clearly erroneous or manifestly unjust. We find that the evidence in this case supports the trial court’s finding that there was no constructive trust.

A consideration of the last issue raised, regarding the alleged undue influence of Grady Moore over Mattie Moore, must be viewed in light of their relationship of parent and child. This relationship is considered confidential and it is presumed that in all transactions between parent and child, the parent is the dominant party. However, this presumption is not conclusive and where it is made to appear that the child rather than the parent is the dominant party then the law raises a presumption of undue influence and casts upon the child the burden of proving that the transaction was fair, just, and equitable in every respect. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970); Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960).

The evidence produced below tended to show that Grady Moore lived next door to his mother from 1947 until her death in 1971, that Mattie Moore suffered a stroke in 1955, that she could neither read nor write, that in 1961 Mattie Moore was 81, that Mattie Moore depended on Grady Moore for advice, and that Grady Moore handled all of her business affairs. No evidence was adduced that would allow any conclusion other than that Grady Moore was the dominant party in the deed transaction with his mother in 1961. Accordingly, the law raised a presumption that Grady Moore exercised undue influence over his mother in the conveyance of this property. Therefore, the burden to refute this presumption by satisfactory evidence was upon the defendants below.

The evidence adduced to refute this presumption was the testimony of Grady Moore’s wife, Pauline, and the testimony of Grace Brothers. Pauline Moore, on direct examination by plaintiff’s attorney, testified that in 1961 she and Grady Moore promised to pay Mattie Moore $2000.00 for the 40 acres and that this amount was paid in cash. She testified that there was no written evidence of the payment of $2000.00 because Mattie Moore did not want anyone to know about the sale for fear that she would lose her welfare payments. While no evidence was presented directly as to whether the $2000.00 represented a fair price for the 40 acres, the record indicates that another similar 40 acres was included in the estate inventory at a value of $2000.00.

Other evidence presented to meet the legal presumption of undue influence was the testimony of the plaintiff, Grace Brothers, to the effect that she did not believe Grady Moore would defraud his mother [Mattie Moore] nor would he use “any undue influence” on her.

It is well established that what constitutes undue influence to procure a deed depends on the facts and circumstances of each case. Terry v. Terry, 336 So.2d 159 (Ala.1976); Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Tipton v. Tipton, 249 Ala. 537, 32 So.2d 32 (1947). In such cases, the finding of the trial court will not be overturned upon review unless clearly in error. Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975); Smith v. Gill, 293 Ala. 736, 310 So.2d 214 (1975).

As to this issue raised on appeal, we hold that, in light of the foregoing documentary evidence and testimony, sufficient evidence was adduced to at least make this a question for the trial court. Thus, we consider the trial court’s decree to be supported by credible evidence and free from reversible error.

AFFIRMED.

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


text:
    James H. WOODHAM v. NATIONWIDE LIFE INSURANCE COMPANY, a corporation, and Max Bynum.
    SC 2093.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      Leo E. Costello, Birmingham, for appellant.
    Edgar M. Elliott of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, for appellees.
   ALMON, Justice.

James H. Woodham, appellant, brought suit against Nationwide Life Insurance Co., and Max Bynum, Agent for Nationwide, appellees, alleging misrepresentation. Summary judgment was granted in favor of appellees. We reverse.

Appellant, who had previously been employed by Fontaine Trucking Company, was employed by Mr. Glen H. Jarvis, President of Pinson Truck and Equipment Company. Pinson Truck had a group hospitalization insurance policy with Nationwide. Appellant claims that he was told by Bynum and Nationwide that he and his dependents were covered under a group policy with Nationwide and as a result he failed to continue his coverage with Blue Cross-Blue Shield which had been extended to him by his former employer.

On or about June 28, 1973, appellant’s wife called him at work and told him their baby girl had to be admitted to the hospital. The child had rheumatic fever. According to the deposition of the appellant, the following transpired:

“Q. And now then, relate for me what happened there in the office after your wife had gone to admit the child to the hospital.
“A. Mrs. Jarvis got the files out on the insurance and everything and she said, ‘Jimmy, I don’t think that your insurance is into effect.’
“She said, ‘You lack a couple of days on it.’ Which would have been Sunday. That was on a Friday night. Best I recall it was Friday evening and it went into effect that Sunday.
“She said, ‘I don’t believe it is.’
“She said, ‘We’ll call Max [Bynum, agent for Nationwide Life Insurance Co.] out here and make sure about the thing, you know.’
“So she called Max out there and he was out there within thirty minutes, I reckon, and he went over everything and he said, ‘Yes.’
“Q. Were you still there?
“A. I was still in the office. All of us was in there.
“Q. All right. Go ahead.
“A. He says, ‘Yes, it will cover it.’ And while I was in the office the admitting nurse at the hospital called the shop there to find out what coverage was, you know, what it would cover. And she herself talked to Max about it on the telephone and he told her to admit the baby, that it would cover it. Because at the time, why I said it didn’t matter to me, I had quit Fontaine Trucking Company and I had a Blue Cross and I knew I still had a grace period on that. And I said, ‘Well if it a in’t no good, ’ I said, ‘turn my Blue Shield-Cross in.’
“And Max said, ‘No.’ ” (Emphasis added.)

According to appellant’s depostion, Bynum also called the Nationwide office in Atlanta to confirm his conclusion that appellant was covered. The answer from Atlanta was in the affirmative.

Nationwide later determined that the policy did not become effective until July 1, 1973, and, moreover, that any eligible member had to be in good health at the time the policy became effective before the member would be covered.

On motion for summary judgment, the burden rests on the movant to show there was no genuine issue respecting any material fact. Rule 56, Alabama Rules of Civil Procedure. Nationwide contends that as to it, the summary judgment was correct because no genuine issue of material fact exists regarding reliance on the misrepresentation or damages. Bynum admits there is a question of reliance, but also contends no issue of fact exists as to damages. Both reliance and damages are elements to be proven in an action for misrepresentation. Tit. 7, § 108, Code of Alabama 1940, Recompiled 1958; Davis Bluff Land & Timber Co. v. Cooper, 223 Ala. 137, 134 So. 639 (1931); Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970).

Nationwide’s motion for summary judgment, filed March 27, 1975, was supported by excerpts from the depositions of the appellant including the above quotation, the appellant’s wife, and the appellant’s employer, Mr. Glen H. Jarvis, together with the appellant’s application for insurance and a letter dated October 24, 1973, from the manager for Nationwide to Pinson Truck and Equipment Company, employer of appellant, telling the company that the appellant’s daughter was not covered. Appellant responded by submitting additional excerpts from his deposition. The trial court indicated in its order that it had considered the entire depositions.

After the trial court granted Nationwide’s motion (June 2, 1975), the appellant, on a motion to reconsider, submitted his own affidavit and a letter from Mr. Pervy W. Matthews, manager for Blue Cross-Blue Shield, indicating that the appellant had 30 days from July 13, 1973, in which to reinstate his Blue Cross-Blue Shield coverage.

Bynum was added as a party defendant on December 27, 1974, but was not served until July 24,1975. Bynum filed his motion for summary judgment July 30, 1976, supported by the same material used by Nationwide in its motion. Appellant responded with the same material he had previously admitted, together with an affidavit of Pervy W. Matthews.

Nationwide argues that with regard to its motion the trial court was not required to consider the material that appellant submitted on his motion for rehearing citing, inter alia, Southern Rambler Sales, Inc. v. American Motors Corp., 375 F.2d 932 (5 Cir. 1967), and that without that additional material, appellant showed neither reliance nor damages.

We believe the above quoted part of the appellant’s deposition shows reliance. The appellant alleges there that he would reinstate his Blue Cross-Blue Shield policy if his insurance with Nationwide did not cover his daughter.

Nationwide notes that appellant admits he would have put his daughter in the hospital regardless of the insurance coverage. While that is true, appellant’s reliance on Bynum’s representation relates to whether or not he would reinstate his Blue Cross-Blue Shield policy, not to whether he would place his daughter in the hospital.

As to damages, Nationwide contends that the appellant failed to show that his Blue Cross-Blue Shield policy would have covered his daughter. In Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 296 So.2d 183 (1974), which Nationwide and Bynum contend is controlling, the Court of Civil Appeals reversed a “verdict and judgment” because the plaintiff failed to prove that the representation by the insurance agent that the plaintiff was covered caused any damage. The plaintiff did not show he could have obtained coverage elsewhere.

At trial, appellant will have to prove that his daughter would have been covered by the Blue Cross-Blue Shield policy had he reinstated it. However, on summary judgment the question is not whether the appellant has proved damages, but only whether he had presented a scintilla of evidence that a question of fact exists as to damages. Rule 56, ARCP (see comments to rule). The appeal in Old Southern Life Insurance Co., supra, was from a “verdict and judgment,” not a summary judgment.

We again quote from appellant’s deposition:

“. . . Because at the time, why I said it didn’t matter to me, I had quit Fontaine Trucking Company and I had a Blue Cross and I knew I still had a grace period on that. And I said, ‘Well, if it ain’t no good,’ I said, ‘turn my Blue Shield-Blue Cross in.’
“And Max said, No.’ ”

What has been said with regard to Nationwide also applies to Bynum.

The judgments are therefore reversed and the cause is remanded.

REVERSED AND REMANDED.

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


text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC., a Corp. v. Ludie C. MOORE and Iva Nell Strickland.
    SC 2141.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      Robert H. Smith, of Collins, Galloway & Smith, Mobile, for appellant.
    Maury Friedlander, of Marr & Friedlan-der, Mobile, for appellee, Ludie C. Moore.
    Billy C. Bedsole, of Stockman, Bedsole & Kimbrough, Mobile, for appellee, Iva Nell Strickland.
   ALMON, Justice.

Ludie C. Moore filed a declaratory judgment action against Iva Nell Strickland and Alabama Farm Bureau requesting the court to determine the rights of the parties under an insurance policy issued by Farm Bureau to Moore. Prior to this action, Strickland had obtained a $25,000 judgment against Moore for negligently knocking her through a plate glass window on the front of J. V.’s Lounge in downtown Mobile. Moore’s policy covered him up to $25,000 for bodily injury caused by him, except for “bodily injury or property damage which is either expected or intended from the standpoint of the insured.” (Emphasis added.) The policy also provided that the

“. . . company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, . . .”

Farm Bureau, upon notification of the Strickland-Moore suit, declined to defend, contending that the injury was intentionally caused and not covered by the policy. In this action (Moore’s suit against Farm Bureau for declaratory judgment), Farm Bureau contends that it is not collaterally es-topped to assert non-coverage because (1) the issues in the two actions are not the same, (2) an inherent conflict of interest existed between itself and Moore, and (3) a defense of fraud and collusion is not affected by the doctrine of res judicata. The lower court thought otherwise and granted summary judgment in favor of Moore. We reverse.

In the Strickland v. Moore law suit, the original complaint alleged in Count 1 that Moore committed an assault and battery on Strickland and in Count 2, that Moore negligently bumped Strickland causing her to fall through the window. Farm Bureau investigated the claim and concluded that Moore had intentionally knocked Strickland into the window. Without going into the details we note that in opposition to the motion for summary judgment submitted by its co-defendant, Strickland, Farm Bureau submitted the affidavit of Officer Smith of the Mobile City Police Department.

“. . . She told me that she had been in the J V Lounge and while there met a man by the name of Ludie Moore. During the course of drinking and talking she and Ludie Moore began arguing, using profanity. Moore got up and left going out the front door. She told me that she followed him out. They continued arguing on the street for a few minutes and then Moore grabbed her bodily shoving her through a plate glass window in front of the place, pushing her head through it.
“Ludie Moore was arrested on the scene of the incident and charged with assault and battery. Sometime after-wards the case against Ludie Moore came up in the Municipal Court, City of Mobile, at which time it was nol prossed. On the morning of the Municipal Court hearing Nell Strickland informed me that she did not want to prosecute. When I inquired as to why, she stated that she had been informed by someone whose name she did not mention that if she did not prosecute, that Ludie Moore’s homeowner’s insurance would pay for her injuries and subsequently she did not want to testify and did not and the case was nol prossed.” T. 133-134.

The day of the trial Strickland withdrew Count 1 alleging assault and battery, leaving only Count 2 in negligence. At the same time she withdrew her demand for a jury trial. During the trial Moore was examined and cross-examined as to whether he “expected or intended” the injuries. In the closing argument, Strickland claimed to have proven $70,000 to $80,000 damages, but asked for $24,000; she had sued for $50,000.

This case presents a difficult first impression question. Moore’s negligence has been litigated once. Farm Bureau, as Moore’s insurer, had an opportunity to defend and at first glance would appear to be bound by the result. Indemnity Co. of America v. Bollas, 223 Ala. 239, 135 So. 174 (1931). Such a view is presented in Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 448-449, 197 N.E. 75, 77 (1935):

“The grounds on which liability has been imposed upon the insured are to be determined from an investigation into the matters decided in the action which established that liability and not from facts subsequently developed in an action by the insured against the insurer. This is clear from the language of the policy itself wherein the defendant agreed to pay, not such damages as might be imposed upon the plaintiff for bodily injuries which were in fact accidental, but all sums which the assured should ‘become liable to pay as damages imposed upon him by law for bodily injury accidentally sustained. * * * ’ The defendant further bound itself by the policy to defend ‘any claims, suits or other legal proceedings alleging such injuries and demanding damages on account thereof, although such claims, suits, legal proceedings, allegations and demands are wholly groundless, false or fraudulent.’ The object of the policy is protection against law suits and legal liability. This object could not be attained if the insured were compelled to try over again in an action against the insurer the same issues upon which he has been found liable in the original action. Where an action against the insured is ostensibly within the terms of the policy, the insurer, whether it assumes the defense or refuses to assume it, is bound by the result of that action as to all matters therein decided which are material to recovery by the insured in an action on the policy. [Citations omitted.]”

Yet, Farm Bureau was caught between a rock and a hard place, as its interests were in one way adverse to those of the insured. Its interests could be protected by proving that the injuries were intentionally inflicted while Moore’s liability would be increased by such proof. See Glens Falls Insurance Co. v. American Oil Co., 254 Md. 120, 254 A.2d 658 (1969).

“ ‘It is true, as a general rule, that a judgment or decree is binding on parties and privies; but, technically speaking, there can be no privity, where there is not an identity of interest.’ Winston v. Westfeldt, 22 Ala. 760, 771, 58 Am.Dec. 278.” Rowe v. Johnson, 214 Ala. 510, 512, 108 So. 604, 605-606 (1926).

Moreover, even if Farm Bureau decided to defend Moore with the full intent of protecting Moore’s interests, Moore could legitimately have preferred independent counsel.

We also have problems deciding exactly what was decided in the Strickland v. Moore decision other than the extent of Moore’s liability. The assault and battery count was dropped immediately before trial (without notice to Farm Bureau). Does that, by deduction, mean that an intentional tort was not committed? Is a jury, or in this case a judge, going to say that Moore is not liable because he intended the act, a possibility not within the liability charged? See Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 267 A.2d 7, 10 (1970).

Assume for the moment that the assault and battery count was left in the complaint and a jury awarded a general verdict. Is the insurance company liable?

Assume further that the negligent count is dropped leaving only the assault and battery count, and Moore again loses. Would Farm Bureau automatically be excluded from liability? Possibly not. While Moore may have intended to push Strickland, he may not have intended or expected the bodily injury. Hartford Fire Insurance Co. v. Blakeney, 340 So.2d 754 (Ala.1976); Armstrong v. Security Insurance Group, 292 Ala. 27, 288 So.2d 134 (1973).

“. . . The exclusion of intentional injury is somewhat unique with respect to the problem of coverage. The usual coverage issue depends upon status, time, place, identity of the instrumentality, and the like. But in the case of the exclusion of intentional injuries, the injuries, which otherwise are within the coverage, are excepted therefrom because of a state of mind, and indeed a state of mind which the injured claimant may but need not allege or prove, to prevail against the insured. Since a claimant who charges intentional injury may thus recover even though the intent to injure is not proved, his complaint, on its face, is simultaneously within both the basic covenant to pay and the intentional-injury exclusion from that coverage.” Burd v. Sussex Mutual Ins. Co., supra, 56 N.J. at 393, 267 A.2d at 12.

For the doctrine of collateral estop-pel to apply, as distinct from res judicata which is not at issue in this case (see Webster v. Gunter, 336 So.2d 170 (Ala.1976), Almon, J., concurring specially), inter alia, the identical point must have been in issue, and the judgment must have been rendered on that point. Ivey v. Wiggens, 271 Ala. 610, 126 So.2d 469 (1961). Note State Farm Mut. Auto Ins. Co. v. Birmingham Elec. Co., 254 Ala. 256, 48 So.2d 41 (1950) though it turns on identity of parties. The question of whether the injury was expected or intended was not the issue in Strickland v. Moore and the judgment was not rendered on that point. Moreover, the concept of privity assumes identity of interests, and such was not the case. Rowe v. Johnson, supra.

The Miller case, supra, appears to be based on a contractual duty to defend as well as collateral estoppel. Other courts have based their decisions in similar circumstances entirely on the contractual duty to defend as distinct from the duty to pay. E. g., Gray v. Zurich Ins. Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168 (1966); Lowell v. Maryland Casualty Co., 65 Cal.2d 298, 54 Cal.Rptr. 116, 419 P.2d 180 (1966); Missionaries of Co. of Mary, Inc., v. Aetna Cas. & S. Co., 155 Conn. 104, 230 A.2d 21 (1967). However Gray and Lowell assumed that “if the insurer adequately reserves its right to assert the noncoverage defense later, it will not be bound by the judgment.” Gray, supra, 54 Cal.Rptr. at 114, 419 P.2d at 178.

We noted in our recent decision of Ladner and Company v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala., 1977), insurer’s duty to defend is more extensive than its duty to pay. However, we reject the proposition that an insurer’s liability to pay for damages may stem from a breach of its duty to defend. The two duties are to that extent independent. In other words, an insurance company may be liable for attorney’s fees for breaching its duty to defend any groundless, false and fraudulent suits that potentially come within the policy where the suit is won by the insured, but such a breach in a suit lost by the insured does not automatically mean that the insured will be liable for total damages; the latter will turn on whether the insured had coverage.

We conclude therefore that neither the doctrine of collateral estoppel nor the insurer’s contractual duty to defend should prevent a specific determination of whether the bodily injury was expected or intended. Great Am. Ins. Co. v. Ratliff, 242 F.Supp. 983 (E.D.Ark., 1965).

The remaining question is whether under the facts of this case Farm Bureau has shown a scintilla of evidence that the bodily injury was either expected or intended. We believe it has.

We see no need to reach the issue of fraud and collusion. The judgment in this cause is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, JONES and EMBRY, JJ., concur.

      . For a review of the basic issue, see The Effect of Collateral Estoppel on the Assertion of Coverage Defenses, 69 Columbia L.Rev., 1459 (1969).

      . The trial judge denied a motion to realign the parties.

      . Appellee submits that the affidavit was inadmissible hearsay and could not have been considered by the trial judge. At the least, we believe this would be an admission against interest. Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788 (1942).

      . In determining whether an insurance company has breached its duty to defend, a judge or jury may look beyond the complaint. Ladner and Company v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala., 1977).