text:
    Homer D. LAND, Sr. v. Thomas A. NIEHAUS, Individually and as father and next friend of Theresa L. Niehaus, a minor.
    SC 1753.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    S.G. Culpepper, Jr., and Charles S. Coody, Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Joseph T. Carpenter and Philip S. Gidiere, Jr., Montgomery, for appellee.
   EMBRY, Justice.

In this case one issue is whether, as a matter of law, a parent can be guilty of negligent entrustment of a motorcycle to his minor son when the parent had no legal title or interest in it and had not purchased it for the child nor contributed toward its purchase.

The other issue is whether the evidence authorizes a jury to find the parent guilty of negligent failure to control, discipline or supervise the minor child when injury results to another as a proximate consequence of such negligence.

Theresa Niehaus, a seven year old girl, suffered severe brain and spinal cord injuries when she was struck by a motorcycle operated by Homer Land, Jr., who was barely seventeen years old at the time. Homer Land, Jr., had a long-established propensity for driving motorcycles in a reckless manner; had committed numerous traffic violations; had convictions for driving without a license and had no license to drive at the time of the accident. Land, Jr., lived with his parents who had knowledge of these things and had made repeated efforts, in various ways, to discipline him, all of which failed. He was in and out of professional centers that provided aid to problem children, and had been incarcerated in the Montgomery County Youth Facility. Land, Sr., could control him in some ways and employed his son on a part-time basis in his business; had the ability to take a motorcycle away from his son; knew his son had possession of the motorcycle involved in the accident, and knew the boy had operated it before the accident. There is evidence Land, Jr., operated the motorcycle on the street in front of his father’s house in the days before the accident.

Theresa L. Niehaus, by her father and next friend Thomas A. Niehaus, filed this action against Homer D. Land, Sr., and Jr. The complaint contained four Counts:

“COUNT I
“5. On or about and before the 14th day of December, 1974, the defendant, Homer D. Land, Sr., negligently entrusted a motorcycle to his minor child, Homer D. Land, Jr., knowing at the time that said Homer D. Land, Jr. was incompetent to drive a motorcycle and was likely to cause harm to others.
“COUNT II
“6. On or about the 14th day of December, 1974, the defendant, Homer D. Land, Sr., knowing the habitual tendency of his minor child, Homer D. Land, Jr., to recklessly and wantonly drive a motorcycle, negligently failed to exercise proper discipline, control, and supervision over said child.
“COUNT III
“7. On or about the 14th day of December, 1974, upon a public highway in Montgomery County, State of Alabama, to-wit: Johnstown Drive, the defendant, Homer D. Land, Jr., negligently caused or allowed a motorcycle to strike and collide with the person of Theresa L. Niehaus, a minor.
“COUNT IV
“8. On or about the 14th day of December, 1974, upon a public highway in Montgomery County, State of Alabama, to-wit: Johnstown Drive, the defendant, Homer D. Land, Jr., wantonly caused or allowed a motorcycle to strike and collide with the person of Theresa L. Niehaus, a minor.

Defendants filed a 12(b)(6) motion to dismiss, which was denied. Later, another was filed on the specific ground that Count II failed to state claims for relief which could be granted under the laws of Alabama. It was denied; then defendants filed a motion for summary judgment as to Count I on the ground that Land, Sr., was not the owner of the motorcycle which he allegedly negligently entrusted to his son, Land, Jr., that struck and injured Theresa Niehaus. Affidavit of Land, Sr., was offered in support and not controverted.

Next, the guardian ad litem for Land, Jr., moved that Land, Jr. be dismissed as a defendant or, in the alternative, the claim against him be severed from that against his father. This motion was grounded on the assertions that the claims did not arise from the same transaction or occurrence; did not involve common questions of law or fact; evidence to support the claim against Land, Sr., would not be admissible to support the claim against Land, Jr., and trial of the claims together would be prejudicial to rights of Land, Jr. The claims were severed and trial proceeded against Land, Sr. At the close of the evidence he moved for directed verdict as to Count I on the same grounds as he had previously moved that it be dismissed and on the basis of which he sought summary judgment. He sought a directed verdict as to Count II on the same grounds previously asserted in motions to dismiss. A verdict for $120,000 damages was returned and judgment entered thereon. No motion for new trial was filed. This appeal is from the judgment.

Regarding Count I, defendant asserts that because he neither owned the motorcycle nor allowed it to be kept at his residence, this then, conclusively establishes his lack of control over the vehicle and thus eliminates any question of fact regarding that issue. He cites Gardiner v. Solomon, 200 Ala. 115, 75 So. 621 (1917), and Pollard v. Pollard, 207 Ala. 270, 92 So. 488 (1922), in support.

Gardiner involved suit against a parent, owner of an automobile, on the theory that her son was her agent, making her liable on a respondeat superior basis for his reckless driving. A verdict in favor of plaintiff was reversed on the grounds there was no evidence to establish agency. This court stated an exception to the rule of respondeat superior where the owner of a vehicle is responsible for its negligent use if he entrusts it to one who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality and the owner has knowledge of the driver’s incompetency. From this language appellant deduces that ownership of the vehicle is an indispensable element of the doctrine of negligent entrustment.

To buttress this argument appellant cites Pollard, supra, for the proposition that as a matter of law, a parent has no control over property owned by a minor child. In that case, the daughter, a minor, sued her mother in trespass for lending the daughter’s wheelchair to another person. The court held that while the parent of a minor child may protect personal property which is independently owned by the child, the parent may not tortiously interfere with the property. The court based its reasoning, partially, on the common law rule that a natural guardian has no possession or control over her daughter’s property. The Pollard case is clearly distinguishable on the facts.

To answer defendant’s interpretation of Gardiner, ownership of a vehicle is not the only test under the negligent entrustment theory. In Shipp v. Davis, 25 Ala.App. 104, 141 So. 366 (1932), a case similar to the present one, the Court of Appeals stated that “ * * * a person who is not the owner and is not in control of certain property is not liable for negligence in respect of such property.” (emphasis added). In the face of conclusive evidence that the parent did not own the car, that court also emphasized the fact that the parent had neither control nor dominion over it, such fact releasing the parent from liability in the absence of an agency relationship.

There was evidence from which the jury could find that Land, Jr., was a reckless driver, that his father had actual knowledge of his incompetency as a driver and that his use of the machine was permissive. The very fact that Land, Sr., could require his son to keep the vehicle and ride it in an area other than close to his own home is evidence from which a jury could conclude that he had sufficient control over the vehicle and its use to find him liable for negligence in its use.

The issue, presented by Count II, of negligent failure to control or discipline his child also presents a question of fact for the jury. The evidence was controverted and there was substantial evidence from which the jury could reasonably reach its conclusion, as it did.

When proof in a negligence suit reveals a state of facts, whether controverted or not, from which different inferences and conclusions may be reasonably drawn, the resolution of the question is one for the jury. Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974). The jury’s verdict will not be disturbed, not being plainly erroneous or manifestly unjust. Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972).

AFFIRMED.

BLOODWORTH, JONES and SHORES, JJ., and SIMMONS, R. C. J. (Retired Circuit Judge, sitting by designation of the Chief Justice), concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Charles Walton HAM v. Joyce HOOD.
    SC 1917.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Robert Straub, Russell & Straub, Decatur, Timothy M. Conway, Jr., Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellant.
    W. H. Rogers, Moulton, for appellee.
   BLOODWORTH, Justice.

Defendant Charles W. Ham appeals from a $70,000 jury verdict and judgment awarded plaintiff Joyce Hood as a result of an automobile accident. All of the error which defendant insists constituted reversible error pertains to the trial judge’s conduct of the trial. We reverse and remand because of the trial court’s refusal to admit testimony that defendant’s headlights were “burning after the accident.”

Defendant’s automobile collided with a pickup truck in which plaintiff was a passenger on Alabama Highway 157 in Lawrence County on October 15, 1974, at about 6:00 p. m. in rainy weather. The accident occurred where a driveway to Wiley’s Store enters the highway. The plaintiff, Joyce Hood, and her husband, who was driving, left the store in their pickup truck, drinking soft drinks. They both testified that their truck stopped short of the paved portion of the highway, and that they were in the driveway when hit by defendant. The defendant Charles Ham and another eyewitness testified that the Hood truck did not stop at the highway but drove out in front of Mr. Ham. Mr. Ham was driving 40 to 50 m. p. h. down the highway. It was about dark. Defendant and Printiss Orr, a bystander, testified that defendant had his lights on. Another witness testified that defendant’s lights were not on just before the accident. This was a critical issue and the evidence on this issue appeared divided between plaintiff and defendant.

Defendant called the wrecker driver to testify that when he arrived at the scene at 7:00 or 7:30 p. m. it was necessary to cut the cables in order to turn defendant's headlights off. The trial court refused to allow the witness to testify on the ground that his testimony would be “too remote.”

Defendant contends that this proffered testimony was circumstantial evidence of conditions following the wreck and should have been admitted for the purpose of corroborating defendant’s contention that his lights were on at the time of the accident. Plaintiff counters that it would be “too remote” to allow a witness to testify that the lights were burning a considerable time after the accident. Moreover, she contends, this evidence was “discretionary” with the judge. Plaintiff cites these cases as sustaining her position: Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963); Chambers v. Cox, 222 Ala. 1, 130 So. 416 (1930); Bradley v. Deaton, 208 Ala. 582, 94 So. 767 (1922).

While we recognize the general rule that admissibility vel non of such evidence is discretionary with the trial judge, such discretion is not unbridled. See Sorrell v. Seheuer, 209 Ala. 268, 96 So. 216 (1923).

Moreover, where, as here, such evidence was critical to the case, and the evidence was otherwise divided on this issue, we hold it was an abuse of discretion for the trial judge to disallow such testimony.

We can see little distinction between permitting a witness to testify what was the condition of the vehicle after the wreck, or what was the position of the vehicles after the accident, or what was the length and course of skid marks leading up to point of impact, or what was the point of impact, in proper cases, and permitting a witness to testify, as in this case, that the headlights were burning after the wreck and that the cable had to be cut in order to turn off the lights. See Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972); Holuska v. Moore, 286 Ala. 268, 239 So.2d 192 (1970).

It has been expressly held, in an automobile damage suit, that evidence was admissible to show the brakes of the automobile were in the same condition a week or so before the collision as they were found to be in after the collision. This Court wrote (per Bouldin, J.), “ . . . [Tjhat the brakes were in the same condition a week or two before the collision [as] they were found to be in after the collision, tended to show their condition at the time of the collision.” Newton v. Wilder, 225 Ala. 339, 142 So. 831 (1932).

This testimony that the headlight cables had to be cut in order to turn the lights off tended to show the condition of the headlights at the time of the collision.

We have not written to the other issues raised on this appeal as we believe they are not likely to arise again in the same context on the retrial.

REVERSED AND REMANDED.

HEFLIN, C. J., and MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Mildren GARREN v. COMMERCIAL UNION INSURANCE COMPANY et al.
    SC 1743.
    Supreme Court of Alabama.
    Dec. 10, 1976.

      Edward L. Hardin, Jr. and John W. Haley, for Hardin, Stuart, Moncus & Noojin, Birmingham, for appellant.
    Danny D. Henderson for Camp, Williams & Spurrier, Huntsville, for appellee, S & R Folding Machine Co., Inc.
    Harold F. Herring and E. Cutter Hughes, Jr., for Lanier, Shaver & Herring, Huntsville, for appellee, Commercial Union Ins. Co.
   EMBRY, Justice.

The controlling principle in this case is that, in a negligence action brought by an injured employee against third parties pursuant to Code of Ala., Tit. 26, §§ 312 and 313(42), the statute of limitations begins to run from the date of the injury, which is defined in § 313(42) as the date of the last exposure to the hazards of the disease which gave rise to the injury. We find the trial court’s judgment in accord with this principle and affirm.

Plaintiff, Mildred Garren, claims to be permanently and totally disabled as a consequence of continuously breathing dust and lint discharged from a contour trim machine which she operated for several years prior to the date of her last employment with the Van Heusen Company. She first became aware of her pulmonary problem in the summer of 1973. Her illness became progressively worse and forced her to quit work April 23, 1974. She filed suit April 22, 1975, against the manufacturer of the machine, S & R Folding Company, on a products liability theory, and against her employer’s insurance carrier, Commercial Union Insurance Company, on the theory that it had negligently rendered safety inspections. Before filing this action, plaintiff had received $17,710.37 in Workmen’s Compensation benefits.

Both defendants were granted partial summary judgments on the grounds that plaintiff’s claims for relief, seeking to recover damages for injuries suffered more than one year prior to April 22, 1975, are barred by the one-year statute of limitations; further, any damages to which plaintiff might otherwise be entitled could not include those for any injuries suffered by plaintiff more than one year prior to April 22, 1975. Plaintiff appeals from these partial summary judgments. Rule 54(b), ARCP. We affirm.

Code of Ala., Tit. 7, § 26 presents a one-year period in which to bring actions for personal injuries. It is applicable to actions against third parties where recovery is sought for injuries sustained as a result of continuous exposure to harmful events, such as repeated blasting or flooding. Lehigh Portland Cement Co. v. Donaldson, 231 Ala. 242, 164 So. 97 (1935); Birmingham Electric Co. v. Meacham, 27 Ala.App. 471, 175 So. 316, cert. den. 234 Ala. 506, 175 So. 322 (1937). The statute of limitations begins to run when injury occurs or damage accrues, not from the date of the act causing injury or damage. Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962). The date of injury is the last day on which plaintiff was exposed to the danger. Tit. 26, § 313(42).

The clear meaning and application of the limitations period as set out in § 313(42) and reaffirmed in the cases cited runs contrary to any interpretation of Tit. 26, § 312, which would grant the plaintiff an additional six month recovery period when the insurance carrier intervenes. Defendant insurance carrier, Commercial Union, was granted a motion to intervene as a party plaintiff in the suit against S & R Folding Machine Company, Inc. Title 26, § 312, provides:

“ * * * In the event the injured employee, or in case of his death, his dependents, do not file suit against such other party to recover damages within the time allowed by law, the employer or the insurance carrier for the employer shall be allowed an additional period of six months within which to bring suit against such other party for damages on account of such injury or death, in the event the employer or the insurance carrier shall have paid compensation to such employee * * * If

An action under Tit. 26, § 312, is purely statutory in form and remedial in nature. That portion of the statute quoted permits a subrogee to bring an action against a third party if the injured party does not bring such an action, and not until the period within which that party has to bring the action has lapsed. Hartford Accident & Indemnity Co. v. Rigdon, 418 F.Supp. 540 (S.D.Ala.1976). It neither creates nor enlarges the substantive rights of the injured employee nor does it extend the period of limitation for the employee.

We emphasize that we affirm the partial summary judgment granted by the trial court. This opinion is not to be considered as limiting plaintiff’s right to proceed with her claim for damages accruing within the one year period of limitations—during one day.

AFFIRMED.

BLOODWORTH, JONES and ALMON, JJ., and SIMMONS, R. C. J. (Retired Circuit Judge, sitting by designation of the Chief Justice), concur.


author: JONES, Justice.

text:
    The CENTRAL NATIONAL INSURANCE GROUP OF OMAHA, a corporation, and the Protective National Insurance Company of Omaha, a corporation, v. William J. GRIMMETT.
    SC 1977.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    O’Bannon & Gonce and Robert M. Hill by Robert M. Hill, Florence, for appellants.
    Robert H. McKenzie of Holt, McKenzie, Holt & Patterson, Florence, for appellee.
   JONES, Justice.

The primary issue in this case is whether the acceptance of late premium payments by Wright’s Insurance Agency with knowledge that, during the period of default, William J. Grimmett had been involved in an accident estops the Central National Insurance Group from denying coverage. We hold that it does and affirm the trial Court.

Grimmett purchased an insurance contract from Central through its agent, Wright. The policy expired on September 10, 1974. Prior to this expiration, in either July or August, Grimmett received written notification by mail that his policy would lapse on September 10. Grimmett testified that he laid this notice down and forgot it.

Subsequently, on September 11, 1974, Grimmett was involved in an automobile accident. Grimmett reported his accident to Wright’s Insurance Agency the next day and was informed that his policy had lapsed. Grimmett then paid $96 to Wright’s Insurance Agency to renew his policy. Four days later, Grimmett met with B. B. Wright and made out an accident report. An adjuster made an estimate of the damage.

Grimmett never received any written or oral notice from the insurer, Central, or its agent, Wright, that the insurer was denying coverage. Grimmett made additional payments between the date of his accident and the date he received his renewal policy. He received his renewal policy in December.

Both parties rely on the case of Alabama Farm Bureau v. Hicks, 272 Ala. 574, 133 So.2d 231 (1960). In Hicks, this Court stated that when an insurance company accepts payment for a premium on a lapsed policy with knowledge that an accident occurred during the period of lapse, three options are available to the insurer. First, the insurer may return the premium for the lapsed period; second, it may apply the premium from the date it was received forward, that is, in the case at hand, September 12 on; or, third, it may retain the premium and cover the collision loss. 272 Ala. at 576,133 So.2d 231. See also State Farm v. Anderson, 294 Ala. 451, 318 So.2d 687 (1975).

Obviously, Central did not choose the first option. Counsel for Central urge this Court to hold that the insurer chose the second option. To adopt this position, however, would ignore the actions of Central’s agent, Wright, who accepted Grimmett’s payments in the amount of $96 and $30. Furthermore, Wright failed to notify Grim-mett that they intended for coverage to start on September 12 until 90 days had passed and after Grimmett had been led to believe that he indeed had coverage for his accident.

Therefore, it becomes apparent that, although Central may have chosen the second option — applying the premium from the date of payment forward — they failed to inform Grimmett of their intent until after his premium payments had been made. As this Court stated in Washington National Insurance Company v. Scott, 231 Ala. 131, 132, 164 So. 303, 304 (1935), “Waiver, strictly speaking is a matter of intent. But, in such case, no proof of actual intent is required.”

We find in the case at bar that, although Central may not have intended to waive its rights, this intention was not conveyed to the insured Grimmett. Indeed, Grimmett was led to believe the opposite — that the insurance company intended to waive its rights and provide coverage.

We hold that, before an insurance company may avail itself to the second option provided in Hicks, this intent must be clearly conveyed to the insured before premium payments are accepted. We, therefore, hold that the judgment of the trial Court should be affirmed.

AFFIRMED. •

BLOODWORTH, ALMON, SHORES, and EMBRY, JJ., concur.


text:
    Doris Williams ROGERS et al. v. Robert C. NEWTON.
    SC 1604.
    Supreme Court of Alabama.
    Dec. 17, 1976.

      J. A. Hornsby, Gadsden, for appellants.
    Wayne Copeland, Gadsden, for appellee.
   JONES, Justice.

This ease involves a claim to quiet title. The trial Court, after hearing the evidence ore tenus, quieted title in favor of plaintiff, Roger C. Newton. Doris Rogers and Lilian Price appeal to this Court. We affirm.

On June 30, 1967, Newton executed a lease-sale contract with H. P. McDonald and his wife, Mary. The McDonalds agreed to make regular monthly payments to Newton. These payments were irregular, however, over a period of about six years; and Newton, on at least two occasions, notified the McDonalds of his intention to forfeit their rights under the contract and take possession of the property. On these occasions, the McDonalds made an attempt to catch up the arrears and Newton permitted them to stay on the property.

On December 21, 1973, Mary McDonald died. H. P. McDonald continued in possession until April or May. McDonald made only two monthly payments subsequent to his wife’s death. The house was abandoned by McDonald and, subsequently, he executed a quitclaim deed in the property to Newton. At the time McDonald abandoned and quitclaimed the property, he- was in arrears some sixteen payments.

Doris Rogers and Lilian Price are sisters of the deceased, Mary McDonald. Their rights in the property are based upon their status as heirs to Mary McDonald’s estate. Testimony was offered by these sisters that, after Mary’s death, they attempted to protect whatever interest they might have in the property.

It is the contention of the sisters that Newton, by accepting payments after giving the McDonalds notification of his intention to rescind, waived his rights to rescind the contract. Furthermore, they contend that Newton did not give proper notice to them as heirs of Mary McDonald.

It is established Alabama law that receipt of money from a vendee by the vendor for the sale of real property is a renewal of the contract as to any past grounds of forfeiture. Nichols v. Graham, 265 Ala. 412, 91 So.2d 826 (1956). Appellants, however, urge this Court to adopt the application of this rule to subsequent defaulting acts by a vendee. This we cannot do for it would penalize the goodhearted vendor for allowing a defaulting vendee to make up his previous defaults. The mere fact that a seller has permitted the curing of previous defaults is not an end unto itself to cure future defaults of the same nature. Nelson v. Sanders, 123 Ala. 615, 26 So. 518 (1898).

The trial Court, hearing the evidence ore tenus, concluded that proper notice had been given to all parties concerned. We find ample evidence in the record to support this finding. Thus, under the rule of ore tenus, we are constrained from reviewing this finding. The conclusion of the trial Court in its findings of fact, unless unsupported by any competent evidence, or unless plainly and palpably wrong or manifestly unjust, must not be disturbed on appeal. Patronas v. West Dauphin Corporation, 280 Ala. 442, 194 So.2d 845 (1967). The holding of the trial Court' is affirmed.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Sylvia P. MAZER et al. v. JACKSON INSURANCE AGENCY, a corporation, et al.
    SC 1701.
    Supreme Court of Alabama.
    Dec. 17, 1976.
    Joseph W. Mathews, Jr., Birmingham, for appellants.
    Douglas P. Corretti and Samuel Maples, Birmingham, for appellees.
   BLOODWORTH, Justice.

Plaintiffs appeal from denial of injunc-tive and declaratory relief sought by their complaint, in which they aver defendants breached a promise to maintain a 100-foot buffer zone between defendants’ office park and their residences. We reverse and remand on the basis of estoppel.

In 1955, defendants, Ervin Jackson, Jackson Insurance Agency, and East Lawn Corporation (“Developers”) were planning the development of approximately 75 acres in Jefferson County as an office park. Part of the acreage was in the Mountain Brook police jurisdiction and part was in the Homewood police jurisdiction. The Developers decided to try to get all of the property into the city limits of Mountain Brook for their own convenience in dealing with only one city government.

The proposed annexation by Mountain Brook of the acreage within the Homewood police jurisdiction was opposed by the Homewood city government and by residents of Homewood including some of the plaintiffs in this case. Plaintiffs (“Homeowners”) are Homewood residents who live on Devon and Poinciana Drives and whose backyards border on the office park area.

In seeking to convince the Jefferson County legislative delegation that it ought to introduce a bill authorizing the proposed annexation, the Developers requested the Mountain Brook Planning Commission to pass a resolution containing certain assurances to the Homeowners. On June 30, 1955, the resolution was passed. It stated, however, that it represented only the present judgment of the Commission and that the Commission “ . . . cannot legally bind its present members or its future members on how they will vote on such a matter . ..” Some of the Homeowners attended the meeting at which the resolution was passed, but there is no evidence that they had actual knowledge of this qualification.

Notwithstanding passage of the resolution, the legislative delegation did not act on the annexation until after the Developers sent a memorandum, dated August 15, 1955, to the adjoining property owners on Devon and Poinciana Drives. (Devon and Poinciana are located, respectively, on the southern and western sides of the office park area.) The memorandum set forth the assurances in the resolution without mentioning that the resolution was not legally binding on the Commission:

“With reference to the 40 acres which lie west of new Highway 91, ten acres was originally put in Mountain Brook and the other thirty acres we requested to be put in Mountain Brook because that is the only direction in which we can flow traffic and keep it out of a residential area. The Mountain Brook Planning Commission, at our request, passed a resolution that should a change in zoning be granted at a future date, that it would be done only under the three following conditions:

“1. At least 150 feet adjoining this property on the west and south side of the 30 acres would remain residential property of the same character as the houses adjoining it in Homewood, or, “2. That in any change of zoning on this property a buffer zone be maintained of 100 feet along the western and southern portion of the 30 acre tract on which there would be no building or parking permitted, this 100 feet being left in natural woodland, or,
“3. A variation or change from the above two requirements could be accomplished should at least 90% of the owners of the abutting property agree on any more suitable or more acceptable plan.
“The reason for Number 3 is this: That it will be our desire and purpose to develop this property in a manner which would be an asset to all of the surrounding property owners and after the studies made by our Engineer and landscape Architect, you, the property owners, may much prefer what we propose than either Numbers 1 or 2, but if there should be a change from Numbers 1 or 2, 90% of you people would have to agree.
“In requesting that our property be annexed to Mountain Brook, we presented the above facts to the Legislative Delegation so that they might have them in their deliberations concerning the matter.
“In closing we ask your patience in watching this development. We ask your good will towards us and we feel that when the job is over, that each occupant of the property on Poinciana and Devon will be very happy indeed over the conclusion. . . . ”

The memorandum was signed by Ervin Jackson, one of the defendants in this suit.

After the memorandum was sent, the annexation bill was passed, and the office park development was begun. By 1974, only the 100-foot buffer zone of natural woodland mentioned in the memorandum separated the Homeowners’ backyards from the office park. Prior to the commencement of this suit, the Mountain Brook Planning Commission rezoned the buffer zone from “residential” to “office park,” and the Developers announced plans to clear-cut the buffer zone and to construct an addition to the office part on it. Consent from 90 percent of the adjoining property owners on Devon and Poinciana was not obtained.

The Homeowners then filed this suit for a declaratory judgment and for preliminary and permanent injunctions against the Developers. The complaint avers that the action proposed by the Developers would constitute a breach of a promise to maintain the 100-foot buffer zone. When the trial court denied relief, the Homeowners appealed.

The Homeowners contend that the Developers are estopped from developing their property in a manner inconsistent with the assurances contained in the memorandum. They argue that they relied on the assurances in ceasing to oppose annexation and that the memorandum misrepresented the situation by treating the assurances as facts and by not mentioning that they were not legally binding on the Planning Commission.

The Developers respond that the Homeowners have failed to prove an essential element of both promissory and equitable estoppel, viz., detrimental reliance on the alleged promises and misrepresentations. They argue further that they made no promises to the Homeowners. The Developers also contend that enforcement of the provisions of the memorandum would deprive them of all legitimate uses of the 100-foot buffer zone and that refusal to enforce the provisions would not lessen the value of the Homeowners’ property.

The Homeowners respond that use as a buffer zone is a legitimate use of land and that elimination of the buffer zone would make their properties less desirable as residences.

We hold that the Developers are es-topped from developing the buffer zone in any manner inconsistent with the representations made and assurances given in the memorandum of August 15, 1955.

The purpose of equitable estoppel and promissory estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general technical rule of law when his own conduct renders the assertion of such rights contrary to equity and good conscience. First National Bank of Opp v. Boles, 231 Ala. 473, 479, 165 So. 586, 592 (1936).

Equitable estoppel is

. . . based upon the ground of public policy and good faith, and is interposed to prevent injustice and to guard against fraud by denying to a person the right to repudiate his acts, admissions, or representations, when they have been relied on by persons to whom they were directed and whose conduct they were intended to and did influence. The doctrine of estoppel is far reaching in its effect, extending to real as well as personal estate, and embracing almost every enterprise in which men may be engaged.’ (Italics supplied.)”

Id., quoting 21 C.J. § 120 pp. 1117-18.

Except for the nature of the conduct on which the estoppel is based, the elements of equitable and promissory estoppel are essentially the same.

Promissory estoppel is defined in Bush v. Bush, 278 Ala. 244, 245, 177 So.2d 568, 578 (1964):

“ ‘A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’ Restatement of the Law of Contracts, § 90, page 110.”

This principle has long been recognized in Alabama jurisprudence. See Johnson v. Blair, 132 Ala. 128, 31 So. 92 (1901).

The basic elements of equitable es-toppel are stated in Dobbs, Remedies § 2.3 (1973):

“An estoppel . . . has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.”

A more detailed statement of the elements generally required to support an es-toppel is given in 3 Pomeroy, Equity Jurisprudence § 805 (5th ed. 1941):

“ . . .1. There must be conduct —acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. ... 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it. . ”

This language is quoted with approval from Pomeroy’s fourth edition in Jacksonville Public Service Corp. v. Calhoun Water Co., 219 Ala. 616, 618-19, 123 So. 79 (1929).

The undisputed facts of this case support both equitable and promissory estoppel.

The memorandum misrepresented the effect of the Planning Commission’s resolution. It failed to mention that the Commission was not legally bound by the resolution and specifically stated that “ . . . if there should be a change from Numbers 1 and 2, 90% of you people would have to agree.” The truth was that the Commission was free to rezone the buffer zone at any time and in any manner without any regard for the resolution. The resolution, in fact, afforded the adjoining property owners no guarantee of protection.

It is not clear from the record whether the Developers knew the truth at the time the representations were made, but knowledge of the truth must necessarily be imputed to them, since they proposed the resolution and purported to represent the resolution’s provisions to the adjoining property owners.

As noted previously, there is no evidence indicating that the Homeowners knew the truth at the time of their reliance upon the Developers’ representations. Although some of the Homeowners were present at the meeting at which the resolution was passed, there is no evidence that the qualification was called to their attention. The circumstances of this case, justify their reliance on the Developers’ representations. Cf. White v. Glenn, 205 Ala. 303, 87 So. 331 (1921). See Pomeroy, supra at § 810a.

The memorandum did not state the assurances as promises from the Developers, but as provisions of the Planning Commission’s resolution. Nevertheless, the memorandum contained sufficient promissory elements to support a promissory estoppel. The memorandum stated, for instance, that the resolution was passed at the Developers’ request. It also stated that it was the desire and purpose of the Developers to develop their property ”in a manner which would be an asset to all of the surrounding property owners. . . . ” Furthermore, Ervin Jackson testified that part of his purpose in writing the memorandum was “ . to assure the residents of the good faith of the developers that they would not develop the property in a manner inconsistent with assurances one, two or three . . . ” and that the memorandum represented the assurances to the adjoining residents about the Developers’ contemplated use of their property. The clear implication of the language of the memorandum was that the assurances represented the future intentions of the Developers with regard to their property. Jackson’s testimony supports this inference.

An express promise is not necessary to establish a promissory estoppel. It is sufficient that there be promissory elements which would lull the promisee into a false sense of security. See Dobbs, supra. This principle is illustrated by Bush v. Bush, supra. There this Court stated:

“Under this doctrine of action in reliance, if Mama Bush did make the will with the reasonable expectation that John and William Bush would act to their detriment in reliance on the will, and they did so act, then the promise; that is, the will; would be binding on Mama Bush and respondents if injustice can be avoided only by enforcement of the promise.”

278 Ala. at 245-46,177 So.2d at 570. A will is not an express promise, but is an expression of a future intention, and that expression is subject to being changed whenever the future intention of the testator changes. Nevertheless, this Court has held that under certain circumstances a provision in a will contains sufficient promissory elements to support a promissory estoppel. The memorandum in this case implied that the assurances represented the future intentions of the Developers and is therefore, like the will in Bush, a basis for promissory estoppel.

Both promissory and equitable es-toppel require that the promise or representation of the party estopped be made with the intention, or at least the reasonable expectation, that it will be acted on by the other party. Ervin Jackson testified that the adjoining residents on Devon and Poinciana opposed the annexation and that the resolution was proposed to facilitate the annexation. Furthermore, as noted previously, Jackson testified that one of the purposes of the memorandum was to assure the residents of the Developers’ good faith. Common sense and the evidence compel the conclusion that the Developers intended that the residents of Poinciana and Devon cease their opposition to annexation in reliance on the assurances stated in the memorandum.

The evidence also shows that the Homeowners actually did rely on the assurances as stated in the memorandum by ceasing to oppose annexation. It is not clear what effect the elimination of this opposition had on the legislative delegation, but it seems clear that the legislative delegation was concerned with protecting the adjoining residents and that the Developers were concerned enough by the opposition to procure the resolution and to write the memorandum. Regardless, however, of the actual effect of the elimination of the opposition, the Homeowners’ ceasing to exercise their right to lobby against proposed legislation before their elected representatives was forbearance of a definite and substantial character. After all, our representative form of government is based on the assumption that the voice of the electorate carries substantial weight with its representatives.

The result of the annexation was that the office park property and the buffer zone were removed from the jurisdiction of Homewood and placed under the jurisdiction of Mountain Brook. Although the Homewood residents could and, on occasion, did appear before the Mountain Brook Planning Commission to oppose changes in the zoning of the buffer zone, the annexation substantially reduced their power to influence the decisions of the officials who would thereafter control the zoning of the buffer zone. Thus, the annexation, which the Homeowners ceased to oppose in reliance on the assurances and representations of the Developers, was detrimental to the Homeowners.

Finally, if the Developers are permitted to ignore the assurances given in the memorandum, the Homeowners will lose the protection that was the sole reason for their ceasing to oppose annexation and will thereby suffer a serious injustice. At the very least, their property will be less desirable as residences. Moreover, even one of the Developers’ own witnesses testified that the buffer zone could be developed in a manner that would lessen the economic value of the Homeowners’ property. It is true that some of the Developers’ evidence indicated that the development would not necessarily lessen the economic value of the adjoining residences, if developed in a certain manner, but what assurances do the Homeowners have that the buffer zone will be developed in such a manner? Their only assurance of protection to their properties is the memorandum of August 15, 1955.

Enforcing the assurances of that memorandum does not deprive the Developers of all legitimate uses of their property. As the Homeowners contend, use as a buffer zone is a legitimate use, and it is a use which in this instance made possible the very lucrative use of the remaining property. Furthermore, under the memorandum, the Developers are free to develop the buffer zone in any manner that meets with the approval of 90 percent of the adjoining property owners.

REVERSED AND REMANDED.

JONES, ALMON and EMBRY, JJ., concur.

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


author: ALMON, Justice.

text:
    Dale H. DAVIS v. Robert T. LINDEN et al.
    SC 1817.
    Supreme Court of Alabama.
    Dec. 17, 1976.

      Francis A. Poggi, Jr., Fairhope, for appellant.
    Lloyd E. Taylor, Fairhope, for appellees.
   ALMON, Justice.

The Circuit Court of Baldwin County sitting without a jury held that the appellant-defendant was unlawfully obstructing a public road. The court gave the appellant thirty days to remove the obstructions.

Appellant contends that the evidence was insufficient to support the judgment of the court. We disagree and affirm.

The road in question is a rural road bordered by farmland. The road follows a section line south from County Road 54 for approximately one-half mile.

The appellant’s land lies along the entire east side of the road and along the northern half of the west side. The land of Robert Linden (an appellee) borders the southern half of the west side. As the road terminates, it abuts the land of Lloyd E. Taylor and Alan Dale Taylor (appellees), which lies south of that part of the appellant’s land situated on the east side of the road.

The sole question is whether the road became public because of general use by the public for twenty years or more. “The case presents purely a question of fact — whether the road is in fact a public road or only a private . . . road ..” Williams v. Prather, 239 Ala. 524, 526, 196 So. 118, 119 (1940). We would not reverse the trial judge’s findings based on testimony taken ore tenus without a showing that they are plainly wrong or manifestly unjust. Hinds v. Slack, 293 Ala. 25, 299 So.2d 717 (1974).

Lester D. Linden, age seventy-one, testified that in 1905 his father purchased what is now the Davis property; the record is not entirely clear whether this included the Davis property west of the road or just the Davis property east of the road. Lester later acquired the property from his father, lived on it, and farmed it until approximately 1947 when he sold it. According to Lester the road was used for approximately five years as a regular mail route together with an “old trail road” along the south side and east side of the Davis property. (Robert T. Linden, Lester’s brother, later testified that the road was used by the mail man beginning in 1914.) The trail road on the south side and the east side is not in question and apparently was abandoned long ago.

On cross-examination Lester Linden testified as follows:

“Q. Did the general public use it?
“A. If they wanted to.
“Q. Anybody?
“A. Anybody, yes sir.
“Q. Where were they going?
“A. Where do people go? — Hunting and fishing.
“Q. Where do they fish?
“A. They went quail hunting.
“Q. The general public?
“A. Anybody that wanted to go.
“Q. You never objected to people going up and down your road?
“A. That wasn’t my road.”

Later, on cross-examination, Lester Linden also testified as follows:

“Q. When they got down here they were trespassing on your property?
“A. No.
“Q. You didn’t own this property?
“A. No, there was a section line road there ans always been a public road.”

Mr. Milton J. Gustafson, age seventy-four, testified that he was a friend of the Linden family when they lived on the property. He arrived in the area in 1904 with his parents, lived there until 1936, and returned to the area in 1953.

“Q. Do you recall whether or not there was a road to the Linden home place?
“A. There was a road, not only to the place but past it.
“Q. Was it on the south side of the Linden place?
“A. Yes, sir.
“Q. Where did you go when you went beyond the Linden place?
“A. Well, beyond Fish River we had friends and acquaintances of my parents’ family named Rickman that were friends and we visited them and another family named Newport, and in addition to that, that was our main road to Daphne which was our access to Mobile.”

The road has been fenced on both sides during part of its history. The testimony indicated there were gates across the road on occasion to control livestock, but that the gates were either open or unlocked with the exception of a few months within the past few years when the Taylors and Davis placed a gate across the road by mutual agreement. Other testimony indicated that the road as it now exists has been open to anyone who wanted to use it, though as a practical matter the road was used primarily, if not solely, by the landowners bordering the road, and rarely by anyone else.

At the close of all the evidence, the trial judge made the following statement:

“I don’t think there is any doubt that this road has been a public road for 60 or 70 years and here is the whole thing that I think Mr. Poggi and his client forget: When you acquire a road by prescription, it takes 20 years using it by the public; the mere fact the public moves out and did not use it much doesn’t destroy it. The only way you can change it is by following the Statute by going to the County Commission and getting the adjoining land owner and the other way is fences up, but it takes the same length of time to take it away from the public as it did for the public to acquire it. . . . ”

We conclude there was sufficient evidence presented to support the trial judge’s findings that the road is a public road. Furthermore, the evidence supports the finding that the road has not reverted to a private road. “Nonuser short of the time of prescription does not operate as a discontinuance of a public road . . . Harbison v. Campbell, 178 Ala. 243, 252, 59 So. 207, 210 (1912). The fact that at one time the road had an extension which no longer exists does not change the nature of that part which has continued to be used. Purvis v. Busey, 260 Ala. 373, 71 So.2d 18 (1954). Testimony existed indicating that at one time or another the county may have graded the road; however, county maintenance is not essential to the status of public road, though it would be strong evidence thereof. Carter v. Walker, 186 Ala. 140, 65 So. 170 (1914).

The judgment is affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice. JONES, Justice

text:
    James DOPSON and Inn of Oxford, Inc., a corporation, v. CITY OF OXFORD, Alabama, a Municipal Corporation, et al.
    SC 1839.
    Supreme Court of Alabama.
    Dec. 17, 1976.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellants.
    John R. Phillips of Phillips & Watson, Anniston, for appellees.
   BLOODWORTH, Justice.

The issue which the parties present by this appeal is whether the city council of the City of Oxford, Alabama, has an irrevisable discretion to grant or withhold its approval of the issuance of an on-premises liquor license by the State ABC Board in order to prevent any such license from being granted to anyone.

We hold that we need not answer whether the city council has such an unbridled, irrevisable, and uncontrolled discretion, because, in this case, appellants have not shown that the city council’s refusal to give approval to appellant Inn of Oxford, Inc., (Ramada Inn) or to anyone else has prevented the issuance of any license — i. e., kept Oxford “dry.” Therefore, we affirm the trial court’s judgment denying appellants any relief.

The facts of the case are undisputed. Appellant, Inn of Oxford, Inc., (Ramada Inn), made written application, under Tit. 29, § 14, Code of 1940, to the city council of Oxford, Calhoun County, Alabama, seeking its consent and approval for the issuance by the State ABC Board of a liquor license. The council denied the application. The City admits it has not approved anyone for issuance of a liquor license. However, no evidence was presented to show any others had ever made application for approval. It is conceded that the ABC Board operates no liquor store in Oxford.

Appellants sought review of the city council’s action in a declaratory judgment suit filed in circuit court. Appellants contended there, as they do here, that although Calhoun County is “wet,” the City of Oxford by refusing to approve the issuance by the ABC Board of any on-premises liquor licenses has effectively kept Oxford “dry.”

Appellees rely here, as they did below, on this Court’s holding in Paulson’s Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962), that Tit. 29, § 14, Code of Alabama 1940, grants the municipal governing body “an irrevisable discretion to grant or withhold its consent and approval of the issuance of a restaurant liquor license . . .

Appellants urge us to find “bad faith” apparent on the face of the record in the acts of Oxford city council in denying appellants consent and approval for issuance of a liquor license. They cite Paulson’s holding, viz.:

“The court will not inquire into the motives of the members of the municipal council in exercising a legislative discretion, except to examine the records of the council. Clements v. Commission of City of Birmingham, 215 Ala. 59, 109 So. 158.” * * * “As stated in the Clements case, supra, 215 Ala. at page 61,109 So. at 160, ‘ * * * bad faith must be apparent upon the face of the act, and cannot be shown by extrinsic facts. * * *

They submit that the mere fact that ap-pellee-city council has never approved a single on-premises liquor license in the City of Oxford conclusively shows the appellees are totally prohibiting on-premises sales and evinces “bad faith.”

One answer to this contention is found directly in the judgment below. The trial judge found that, although it is admitted that no person, firm, or corporation has been approved for issuance of a liquor license, “no evidence was presented to show that there has been any other applicants to Oxford for approval to ABC Board for the issuance of a liquor license.”

We need not decide whether the City here has exercised properly its legislative discretion. For, there is evidence in the record that appellant-inn owed some $6,000 back “lodging taxes” to the City of Oxford — clearly some basis upon which the City might base its denial of approval to the Inn.

It may be that this Court, in a proper case, will have to address the issue posed at the beginning of this opinion. If so, we may then have to decide whether, as Paul-son seems to suggest, the council’s action is the exercise of an “irrevisable discretion,” not subject to our review, or whether it may be shown that the council acted arbitrarily and capriciously, in such a manner as to effectually deny to any citizen a city’s consent and approval for the issuance of an ABC license for liquor. As we have already indicated, this is not the case in which to answer such inquiry.

AFFIRMED.

HEFLIN, C. J., and ALMON and EM-BRY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

I concur in the result. I believe, as the opinion holds, that there must be some evidence to support bad faith or arbitrary and capricious conduct on the part of the City in withholding the issuance of a liquor license. The claim that the City has never issued such a license is relevant but insufficient, standing alone, to justify the trial Court in granting Ramada relief.

I would go one step further, however, and state without equivocation that, had the evidence shown numerous applicants had all been rejected and that these rejections were all without reasonable and justifiable grounds, I would answer in the negative the question initially posed in the opening sentence of the Court’s opinion.


text:
    Swansie BURROW and Maggie Burrow v. Bruce MILLER et al.
    SC 1851.
    Supreme Court of Alabama.
    Dec. 17, 1976.

      James L. Beech, Jr., of Tweedy, Jackson & Beech, Jasper, for appellants.
    Nelson Vinson, of Vinson & Guyton, Hamilton, for appellees.
   JONES, Justice.

This case involves the right of ingress and egress by the appellees Bruce and Wendell Miller and Lura Howell, over the appellants’, Swansie and Maggie Burrow’s, property. The trial Court, hearing the evidence ore tenus, granted to the appellees the right of ingress and egress over the Burrow’s property and enjoined the Burrows from interfering with the appellees’ rights. We affirm.

The opposing parties are coterminous landowners. Their common source of title is J. C. Clark. The Howell’s land is located south of the Burrows.

The Howell’s right of ingress and egress was a road separating the lands of the Burrows and Flurrie Shotts. There was testimony to the effect that this road was the only one to the Howell’s land and that it had been continuously used since 1948.

The trial Judge, hearing the evidence ore tenus, determined that an implied easement or an easement of necessity existed. Under our traditional scope of review in such cases, we are restrained from reviewing the trial Court’s findings of fact unless we find that his findings are without supporting evidence, or unless clearly and palpably wrong, or manifestly unjust. Leeth v. Perry, 257 Ala. 687, 60 So.2d 821 (1952).

We find ample evidence in the record to support the trial Judge’s findings of fact and that these facts satisfy the requirements necessary for the creation of an implied easement as set out in Hamby v. Stepleton, 221 Ala. 536, 130 So. 76 (1930). There the Court stated that two elements are necessary for the finding of an easement of necessity. First, the properties in controversy must come from a common source, which in this case is J. C. Clark. Secondly, there must be a reasonable necessity for the creation of this easement; that is, it must be the only practical avenue of ingress and egress. As Chief Justice Anderson, quoting from 9 R.C.L. § 31, P.age 768, stated in Hamby, “ ‘Necessity does not of itself create a right of way, but it is evidence of the grantor’s intention to convey one, and raises an implication of a grant. The presumption, however, is one of fact, and whether or not the grant is to be implied in a given case depends upon the terms of the deed and the facts in that case.’” 221 Ala. at 537, 130 So. at 77.

The deed referred to in the above quoted portion of Hamby, like the deed here, was not an express conveyance of the easement in question but the deed to the property to be served by the claimed easement. Chief Justice Anderson, in Hamby, continues:

“ ‘Following [this] general rule . . . , a similar right may be created by implied reservation, notwithstanding general covenants in a warranty deed. The underlying principle is that whenever one conveys property, he also conveys whatever is necessary to its beneficial use, coupled with the further consideration that it is for the public good that land should not be unoccupied.’ ”

It should be noted that this rule of “granting by implication an easement of necessity” is an exception to the general rule that an easement can only be created by deed, by prescription, or by adverse use for the statutory period. See Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973).

The trial Judge, sitting as trier of the facts, determined, with ample supportive evidence, that an implied easement of necessity did indeed exist. Therefore, we affirm the decision of the trial Court.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Pearl Evans KEY et al. v. ROBERT M. DUKE INSURANCE AGENCY et al. Alice McQUEEN v. ROBERT M. DUKE INSURANCE AGENCY et al. Henry JOHNSON v. ROBERT M. DUKE INSURANCE AGENCY et al.
    SC 1952, SC 1952-A and SC 1952-B.
    Supreme Court of Alabama.
    Dec. 17, 1976.

      Ernest C. Hornsby, Tallassee, for appellants.
    Joe A. Macon, Jr., Wetumpka, Richard B. Garrett, Montgomery, for appellees.
   BLOODWORTH, Justice.

Plaintiffs appeal from a declaratory judgment for defendants. Defendants move to dismiss the appeal.

We deny defendants’ motion to dismiss and reverse and remand on the merits.

Plaintiffs were injured on December 10, 1974, when the automobile in which they were passengers collided with an automobile driven by Frank Harris, an uninsured motorist. The automobile in which plaintiffs were riding was in the custody and control of Elmore Community Action Committee, Inc., (ECAC) and was driven by Charlestyne Bickley, whom ECAC employed to drive elderly and needy persons to town to buy such things as food and drugs.

Plaintiffs filed an action against ECAC, Harris, and Bickley, and against Robert M. Duke Insurance Agency, Inc., and Gulf American Fire and Casualty Company. The suit declares against Harris (the uninsured driver), Bickley (the driver of the ECAC car), and ECAC for negligence and wantonness arising out of the collision. The suit declares against Duke and Gulf for negligently failing to have uninsured motorist coverage in effect on the automobile driven by Bickley at the time of the accident. The trial court severed this question of uninsured motorist insurance coverage raised by the counts against Duke and Gulf. At trial, plaintiffs alternatively declared there was uninsured coverage by virtue of failure to reject coverage. The court ruled that Gulf had complied with Act No. 866, Acts of Alabama 1965, Vol. II, p. 1614 (Tit. 36, § 74(62a), Code of Alabama of 1940, as Recompiled 1958) and owed no duty to provide uninsured motorist coverage and that Duke was not negligent in failing to have in effect an uninsured motorist endorsement on ECAC’s automobile at the time of the accident.

Motion

Duke and Gulf moved for dismissal of the appeal on the ground that the case involves multiple parties and claims, that the appeal is based on an adjudication of less than all the claims and parties, and that there has been no determination by the trial court pursuant to Rule 54(b), ARCP.

The motion to dismiss the appeal is without merit. Rule 54(b) applies to actions in which there are multiple claims or parties and in which the trial court enters judgment “as to one or more but fewer than all of the claims or parties.” It applies to actions in which “separate trials” are ordered pursuant to Rule 42(b). Atkins, Kroll (Guam), Ltd. v. Cabrera, 277 F.2d 922 (9th Cir. 1960). It does not apply, however, to claims “severed” from the original action.

Although the Committee Comments to the Alabama Rules of Civil Procedure do not always honor the distinction between “separate trial” and “severance,” the distinction exists and is significant. See Committee Comments, Rules 18 and 42, ARCP. The distinction is recognized in Rule 14(a), ARCP, which provides, “Any party may move to strike the third-party claim, or for its severance or separate trial.” (Emphasis supplied). The distinction is also recognized by leading treatises on civil procedure. Wright and Miller state:

“Rule 42(b) allows the court to order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims or issues. The court may do so in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy. The procedure authorized by Rule 42(b) should be distinguished from severance under Rule 21. Separate trials will usually result in one judgment, but severed claims become entirely independent actions to be tried, and judgment entered thereon, independently. Unfortunately this distinction, clear enough in theory, is often obscured in practice since at times the courts talk of ‘separate trial’ and ‘severance’ interchangeably.” (Footnotes omitted.)

Federal Practice and Procedure: Civil § 2387 (1971).

We agree with Lyons:

“First, a distinction must be drawn between the separate trial provided by Rule 42(b) and the severance contemplated by Rule 21, Misjoinder and Non-joinder of Parties. Severed claims become entirely independent actions with judgment entered independently while separate trials can lead to one judgment. See Wright & Miller, Federal Practice and Procedure, § 2387 (1971). Rule 14, Third Party Practice, speaks of the power of severance or separate trials and in Central of Georgia Ry. v. Riegel Textile Corp., 426 F.2d 935, 8 A.L.R.Fed. 701 (5th Cir. 1970), the severance of a third-party claim was described as ‘judicial surgery’ creating, in effect, an ‘original action’.”

2 Alabama Practice § 42.3 (1973).

As these authorities state, separate trials of different claims in a single action under Rule 42(b) usually result in a single judgment. Consequently, when the court wishes to enter judgment as to fewer than all the claims or parties, in a single action, Rule 54(b) must be followed. When, however, a claim is severed from the original action, as authorized by Rule 21, ARCP, a new action is created, just as if it had never been a part of the original action, and a completely independent judgment results. Because the new action is no longer connected to the original action, the judgment rendered is not a determination as to fewer than all the parties and claims, and Rule 54(b) does not apply.

In the case at bar, defendants Gulf and Duke expressly moved for a “severance” on the ground that Rule 18(c) forbids “a jury trial of a liability insurance coverage question jointly with the trial of a related damage claim against an insured.” The trial court expressly granted a “severance” on the question of uninsured motorist coverage. We do not wish to be understood as holding that the label “severance” is always determinative. The substance of the court’s action, not its form, controls. But, here, since the question severed could have originally been presented in an independent action, the substance of the court’s action is consistent with its form. There was a severance in fact as well as in form.

We note in passing that severance is not the only means of complying with Rule 18(c). That rule does not forbid joint pleading of the question of liability insurance coverage with a related damage claim. See Committee Comments, Rule 18. It merely prohibits a joint jury trial. Consequently, Rule 18(c) may be satisfied by separate trials, analogous to those permitted under Rule 42(b), as well as by severance. To the former, Rule 54(b) applies, but not to the latter. Since severance was the means chosen by the trial judge in this case, the judgment rendered was independent of the original action and appealable without compliance with Rule 54(b).

The motion to dismiss the appeal is denied.

Merits

Gulf through its agent Duke issued liability insurance policy No. 15-1919 to Coosa-Elmore Community Action Committee, Inc., (CECAC) on June 7, 1967. At that time an uninsured motorist rejection endorsement was executed by “Elizabeth T. Edwards, Director, Coosa-Elmore Community Action Committee, Inc.” The rejection form recited that it was an endorsement to policy No. 15-1919. It also referred to Act 866, Acts of Alabama 1965, [Tit. 36, § 74(62a)] and briefly described uninsured motorist protection. The space under “Return Premium” was left blank.

In 1970, a renewal policy was issued and an uninsured motorist rejection endorsement was signed “Patricia L. McDonald” in the space labeled “Signature of Insured.”

In 1972, policy No. 15-4021, another renewal policy, was issued and an uninsured motorist rejection endorsement signed “Elizabeth T. Edwards.” Her capacity was not mentioned. Later in 1972, the policy was amended to change the policy period. An uninsured motorist rejection endorsement was not executed at that time.

In May 1974, ECAC, a new corporation, was formed. The trial court found that it was formed to reflect a change in the geographical makeup of the previously organized CECAC.” (Coosa County was eliminated.) An endorsement was issued to policy No. 15-4021 to change the name of the insured to ECAC. No uninsured motorist rejection form was signed. The trial court found that “ECAC was the same organization as the CECAC.” Policy No. 15-4021, as amended, was in effect on the date of the accident. The trial court further found that, under the evidence, there was no dispute as to the authority of Edwards and McDonald to sign the rejection form on behalf of CECAC.

Plaintiffs’ basic contention is that uninsured motorist coverage was not rejected by the named insured, ECAC, the new corporation, and consequently Gulf is liable for uninsured motorist protection pursuant to Tit. 36, § 74(62a), Code of Alabama of 1940 (Recompiled 1958), as amended.

Gulf and Duke reply that no new rejection was necessary because there was only a change in name from CECAC to ECAC and there was no change in coverage, no change in the definition of the insured, and no new policy.

We disagree with the trial court’s finding that CECAC and ECAC are the same organization and that there was only a change in name. CECAC was created on August 11, 1966, when its articles of incorporation were filed with the probate judge of Elmore County pursuant to Tit. 10, § 230, Code of Alabama of 1940 (Recompiled 1958). ECAC was created eight years later on May 16, 1974, when its articles of incorporation were filed with the probate judge of Elmore County pursuant to the same statute. Further, CECAC was composed of two counties, ECAC of only one. A corporation is an artificial being, a creature of statute. When articles of incorporation are filed pursuant to statute, a new corporation is created, even though the new corporation may be identical to a previously created corporation in many respects. Cf. Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 26, 29 So.2d 298, 300 (1947), in which this Court stated,

“ . . . [T]he mere fact that some or all of the stockholders or officials of two corporations are identical or because one corporation dominates the other does not, of itself, destroy the corporate identity or merge one into the other. . . ”

In the instant case, however, the two corporations are not identical.

If the Board of Directors of CECAC intended simply to amend CECAC’s articles of incorporation, they could have followed the statutory procedure for amendment. See Tit. 10, § 233 et seq. They had amended the articles on a previous occasion and were apparently familiar with this procedure. They did not, however, follow the statutory procedure for amending articles of incorporation to change CECAC to ECAC. They followed the procedure for creating a new corporation. Consequently, CECAC and ECAC are not the same corporation. Regardless of their common features, they are two entirely distinct corporate entities.

Tit. 36, § 74(62a), mandates that unless uninsured motorist coverage is rejected by the named insured such coverage is included in all automobile liability policies. State Farm Mutual Automobile Insurance Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974).

In this case, uninsured motorist coverage was rejected by the Executive Director of the named insured, CECAC, when the policy was first taken out. When, however, the policy was transferred to ECAC, a new and different corporate entity and a new and different named insured, ECAC did not reject uninsured motorist coverage. Since the named insured at the time of the accident had not rejected uninsured motorist coverage in accordance with the mandate of the statute, that coverage was in effect at the time of the accident under ECAC’s automobile liability policy.

MOTION TO DISMISS DENIED. REVERSED AND REMANDED.

JONES, EMBRY and BEATTY, JJ., and CATES, J., sitting by designation of the Chief Justice, concur.


text:
    Iva Lee F. GILLIAN v. Malcolm H. GILLIAN and Thomas A. Gillian.
    SC 2116.
    Supreme Court of Alabama.
    Dec. 17, 1976.

      William P. Boggs, Clanton, for appellant. Alvin B. Foshee, Clanton, for appellees.
   BLOODWORTH, Justice.

The issue on this appeal is whether an affidavit filed by a nonresident wife is such a “proceeding or suit for dower” under Tit. 34, § 63, so as to constitute a timely claim for dower in lands of the deceased nonresident husband. We answer in the negative and affirm the judgment of the trial court.

Appellant-wife and her husband, Town-zell Gillian, resided in Utah, where he died February 8, 1960. Since neither lived on the land, located in Chilton County, Alabama, quarantine is not an issue.

On August 19, 1960, the appellant-wife filed in the “Probate Office” of Chilton County the following affidavit:

“AFFIDAVIT
“STATE OF UTAH
“COUNTY OF SALT LAKE
“Iva Lee F. Gillian a/k/a Iva Lee Gillian, being first duly sworn deposes and says: That she was the wife of Townzell Singleton Gillian at the time of his death on the 8th day of February, 1960, having been married at Elko, Nevada on the 14th day of October, 1954, and that the said Iva Lee Gillian a/k/a Iva Lee F. Gillian and Townzell Singleton Gillian have never been divorced. That said Iva Lee Gillian a/k/a Iva Lee F. Gillian as shown as the spouse of Townzell Singleton Gillian on the certificate of death of the said Townzell Singleton Gillian and the said Iva Lee Gillian a/k/a Iva Lee F. Gillian as shown on that marriage license issued out of Elko, Nevada on the 14th day of October, 1954, are one and the same person. That the said Iva Lee Gillian a/k/a Iva Lee F. Gillian hereby claims her dower interest in and to any property owned by the said Townzell Singleton Gillian at the time of his death and most specifically the following real property:
“The Northwest Fourth of the Northwest Fourth (NW!4 of NW14) Section 8, Township 22, Range 15; and Northeast Fourth of Northwest Fourth (NE/t of NWVi) Section 8, Township 22, Range 15; and one acre in the Southwest corner of Section 6, Township 22, Range 15.
“Located in Chilton County, Alabama. “Dated this 30th day of July, 1960.
“/s/ Iva Lee F. Gillian
“/s/ Iva Lee Gillian
“Iva Lee Gillian a/k/a
Iva Lee F. Gillian
“On this 30th day of July, 1960, personally appeared me, Iva Lee Gillian a/k/a Iva Lee F. Gillian, the signer of the foregoing instrument who acknowledged to me that she executed the same.
“/s/ Mvra A. Ashworth “Notary Public, Residing at:
“Salt Lake City, Utah
“My -Commission Expires:
“August 27. 1961
“Filed August 19, 1960
“Recorded in Book 481, Page 186”

No further steps were taken by appellant with respect to the affidavit.

Fifteen years later, on September 25, 1975, a suit to quiet title was filed in the circuit court against appellant-wife and others by the brother of Townzell Gillian, Malcolm Gillian, and by Townzell’s only child, Thomas Gillian. Their claim to ownership of the 80-acre tract is by inheritance. While the suit was pending, appellant-wife filed a “PETITION FOR DOWER” in the circuit court on May 14, 1976.

After submission on these issues, the trial court entered final judgment quieting title in the Gillians and denying appellant’s claim to dower in the lands. The court found that the “PETITION FOR DOWER” was barred by the limitation of 10 years under Tit. 34, § 63, Code of 1940. Further, the court decreed that the “AFFIDAVIT” did not constitute an action or proceeding under Tit. 34, § 63, so as to constitute a timely filing. We affirm.

Appellant, in brief, states the issue is whether the affidavit tolls the ten-year statute of limitations under Tit. 34, § 63. She contends her affidavit is a sufficient and timely compliance with the statute. She cites no cases in support of her contention but asserts that under Tit. 7, § 212, Code of 1940, “. . .no objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party thereon.” [This section, of course, was in effect in 1960. It should be noted that Appendix II, ARCP, states that this section is superceded by Rules 8, 9, and 10.] Appellant concedes that the affidavit does not conform to the requirements of Tit. 34, § 52, as to “what the petition must contain,” but argues these defects were “resolved in that the heirs of the deceased were not residents of Alabama.”

Appellees-Gillian contend the affidavit is not sufficient because it does not meet the requirements of Tit. 34, § 52. This is what the trial court held and we agree. Section 52 provides:

What petition must contain. — The petition must contain: the facts on which the widow’s claim to dower rests, with a description of the land in which dower is claimed, by its designation at the land office, when that can be done; if not, by metes and bounds, or such other description thereof as will identify it. When the land in which dower is claimed has been aliened in the life of the husband, the name of the alienee, and his residence, if known; if he is not in possession of the land, the name of the person in possession. The names of the widow and heirs at law, stating which are minors and married women, and the name of the personal representative of the husband, stating the county in which each resides, if resident in this state, and which of them, if any are nonresidents.”

We think the “AFFIDAVIT” is insufficient because: it cannot be construed to be a “proceeding or suit for dower” as required by Tit. 34, § 63; it does not state the names of the heirs at law or the personal representative, their residence or nonresi-dency, etc., as provided in Tit. 34, § 52; it asks for no relief in accordance with Tit. 34, § 51; it raises no “material issue in law or fact” as provided in Tit. 7, § 212; it fails to name the person in possession as required by Tit. 34, § 52.

Moreover, although the “AFFIDAVIT” was filed on August 19, 1960, in the “Probate Office,” appellant took no steps nor initiated any proceedings to have her dower set apart and assigned to her until she filed her “PETITION FOR DOWER” May 14, 1976, almost 16 years later.

Reason and logic is served by the requirements of Tit. 34, § 52. Although this section states that the petition must contain these averments, the compelling reason is to bring the proper subject matter and parties before the court and to permit a timely adjudication of the widow’s rights.

Dower does not vest automatically in the widow but is allocated only on petition of widow, heirs or other interested parties. Taylor v. U. S., 388 F.2d 849 (5th Cir. 1967).

Dower right is a chose in action or an equity and does not become a property interest until there has been an assignment thereof. U. S. v. Hiles, 318 F.2d 56 (5th Cir. 1963); Wootten v. Vaughn, 202 Ala. 684, 81 So. 660 (1919).

Heirs are entitled to have the widow’s dower allotted so that the balance of the realty may be unencumbered. Byars v. Mixon, 292 Ala. 661, 299 So.2d 262 (1974).

As this Court noted in Johnson v. Duncan, 264 Ala. 650, 88 So.2d 789 (1956), the rule is that a decree assigning dower without service on the husband’s existing heirs at law may be vacated by a bill in the nature of a bill of review.

AFFIRMED.

HEFLIN, C. J., and JONES, ALMON, and EMBRY, JJ., concur.


author: HOLMES, Judge.

text:
    June T. BRICE v. Donald W. BRICE.
    Civ. 671.
    Court of Civil Appeals of Alabama.
    April 28, 1976.
    Rehearing Denied May 26, 1976.

      J. Ronald Storey, Dothan, for appellant.
    L. A. Parmer, Jr., Dothan, for appellee.
   HOLMES, Judge.

This appeal is from the Circuit Court of Houston County. The trial court modified the provisions of a prior decree divorcing the parties June and Donald Brice. Appellant June Brice appeals from that judgment of modification.

The dispositive issue presented before us is whether the trial judge erred to reversal by granting the petition of appellee Donald Brice to modify the prior divorce decree. We find the learned trial judge did so err, and reverse and remand the cause.

The following pertinent facts are revealed by the record:

Appellant-wife in October of 1974, filed a complaint seeking a divorce from appellee-husband on the grounds of cruelty and incompatibility of temperament. On January 9, 1975, the parties filed with the court an agreement between them as to child custody, alimony, property division, and other matters. The court on January 10, 1975, divorced the parties on the ground of incompatibility of temperament and specifically incorporated the aforementioned agreement into its decree. The portions of the decree pertinent on this appeal provide that the husband is to pay the wife $1,800 per month as alimony and $177 every three months for payment of the quarterly premiums of a life insurance policy insuring the husband and owned by the wife. Additionally, the agreement provided for the payment of the parties' debts in the following manner:

“Plaintiff [Mrs. Brice] agrees to pay the following outstanding charge accounts: Master Charge, Bankameri-card, Sears & Roebuck and Montgomery Ward & Company, and Defendant [Dr. Brice] agrees to pay the remaining charge accounts which include Ted’s Jewelers and Joe Hayes Men’s Clothes, Inc.

On May 23, 1975, appellee-husband filed with the trial court a petition requesting modification of the prior divorce decree. The petition alleged, inter alia, that at the time of the agreement described above there existed various debts made by the wife and not mentioned in the agreement, which debts aggregated over $20,000 and that the husband at that time had no knowledge of these debts. The petition prayed that part of the $1,800 per month alimony be diverted to payment of these debts incurred by the wife, and for other relief.

At the hearing on the petition, the husband testified substantially that he had not been apprised of these debts when he entered the agreement. The wife denied this, testifying that he was aware of the debts at the time of the agreement.

The trial court after the hearing entered an order which found that the parties had prior to the divorce decree agreed for divorce purposes to compile and apportion for payment all their debts. Additionally, the court found that the wife failed to inform the husband of all her existing debts, and that the husband entered the above noted agreement in the mistaken belief that the only debts owed by the parties were those enumerated in the agreement. The trial court further specifically found, based on the foregoing, that the wife fraudulently induced the husband to enter the agreement, which was later incorporated into the divorce decree.

Based on these findings of fact, the trial court modified its prior decree of divorce as follows: The husband was directed to pay those of his wife’s debts which were withheld from his knowledge at the time of the divorce decree; the husband was also ordered to divert $1,000 of the $1,800 monthly alimony payments to the discharge of the wife’s debts, until her indebtedness was fully satisfied; and he was ordered to pay the quarterly life insurance premiums directly to the insurance company.

As noted earlier, the wife appeals from this order of the trial court modifying the divorce decree.

To this court, the petition of appellant-husband is in substance a motion for relief filed pursuant to Rule 60(b)(3), ARCP, which provides as follows:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . ”

As seen from the above, the relief sought by the husband in his petition is based upon what appears to be an averment of fraud, rather than upon changed circumstances subsequent to the rendition of the divorce decree. Furthermore, it is clear that the learned trial court’s decree is also based upon a finding that the appellee-wife committed fraud. The record reveals that the entire thrust of the proceedings held on the petition was directed toward the alleged fraud committed by the wife.

These proceedings clearly were not conducted as a modification of alimony hearing. There was no testimony of changed conditions which would warrant a modification of alimony. It is settled law that alimony previously awarded to the wife may be modified only upon a showing that there has been a material change in the circumstances of the parties since the rendition of the former decree. O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747. Here, no such showing was made, the testimony in its entirety going rather to the issue of fraud concerning the above described agreement.

As such, we consider the husband’s petition to be a Rule 60(b)(3) motion for relief from judgment. Such a motion “ . shall be made . . . not more than four months after the judgment, order, or proceeding was entered or taken.” Rule 60(b), ARCP. The trial court’s decree of divorce was entered on January 10, 1975. Appellee-husband’s petition was filed on May 23, 1975. The petition thus came too late to be efficacious, and, considering the mandatory provision of the rule, was due to have been denied.

However, notwithstanding the above, we are of the opinion that the relief prayed for by the husband could not have been granted even had the petition been timely filed.

Able counsel for appellant-wife has cited to us in brief the Alabama Supreme Court case of Worthington v. Worthington, 218 Ala. 80, 117 So. 645, which we have found to be helpful in our consideration of the situation at bar. In Worthington, the husband and wife entered into a predivorce agreement which fixed the allowance to the wife and children. This agreement was incorporated into the decree of divorce. The wife subsequently learned that the husband at the time of the agreement had misrepresen-' ted his assets to be considerably less than they in fact were. The wife had relied on the husband’s representations in agreeing to the amount of support which she would receive upon their divorce. Her petition to reopen the decree on the ground of the husband’s fraud was denied by the supreme court, which stated:

“Nor can the fraud averred in this cause suffice to open the decree, for appellee’s petition now amounts to nothing more nor less than a proposal to retry the issue then tried before the register for the sole reason that it was then ‘difficult for complainant [appellee in this appeal] to show the true financial worth of respondent [appellant].’ The rule upon which—for one thing at least—the finality of every judgment and decree must depend is that equity will not undertake, on the ground here averred, to try and determine anew the precise question which has been once in due course tried and determined.

We find the Worthington case to be factually indistinguishable from the present one, for the purpose of a 60(b)(3) motion, and conclude that such a motion could not properly be granted under the instant set of facts.

Even though Rule 60(b)(3), ARCP, as set out supra, by its express terms abolishes any distinction between intrinsic and extrinsic fraud as grounds for a motion under the rule, we note that the new rules are procedural only and do not purport to alter the substantive law of Alabama. Thus, while the old intrinsic-extrinsic dichotomy is procedurally dead under 60(b)(3), the rule does not delineate any substantive law dealing with relief from judgments on the ground of fraud. As such, this court considers itself bound by the law expounded in the Worthington case, supra, as an apt solution to the problem before us.

We feel that our holding in this case is bottomed on particularly strong requirements of public policy. While the federal courts in considering the federal counterpart of Rule 60(b)(3) have adopted a liberal criterion for the manner of fraud required to grant relief from judgment, see Wright & Miller, Federal Practice and Procedure: Civil § 2861, we take the viewpoint that the sanctity of judgments outweighs the injustice which might affect the individual litigant in a particular case. The obvious societal interest in the finality of judgments mandates that not every species of fraud will suffice for a judgment to be reopened. Granting the husband’s petition in this case meant relitigation of issues previously before the trial court, issues which involve matters subject to discovery and points of credibility. If such a view were to prevail, much litigation would be interminable and no party could take his judgment with the assurance that it would serve its function as a final determination of his rights and liabilities.

We would finally specifically point out that by the foregoing discussion we express no opinion on the construction to be accorded the agreement entered into between appellant and appellee.

We accordingly hold, in view of the above, that the learned trial court erred to reversal by his action granting appellee-husband’s petition. The case is therefore due to be reversed and remanded. However, we would be remiss in not commenting that this is a difficult case. We can appreciate the learned trial court’s dilemma and understand his action. However, as seen from the above, we are compelled to reverse.

REVERSED AND REMANDED.

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

ON REHEARING

Able counsel for appellee-husband contends in brief supporting his application for rehearing that the husband’s petition should have been treated by this court as a motion filed under Rule 60(b)(6), ARCP. Clause (6) of Rule 60(b) provides for relief from judgment due to “any other reason” than those specified in the first five clauses of the rule. If the husband’s petition is viewed as a 60(b)(6) motion, counsel’s argument is that it was timely filed with the trial court, inasmuch as such a motion must be filed only within a reasonable time.

As our original opinion discloses, the motion was treated by the parties and the trial court as one for relief from judgment on account of fraud. Such a motion is encompassed by clause (3) of Rule 60(b). Clause (6) and the first five clauses of Rule 60(b) are mutually exclusive. See Wright & Miller, Federal Practice and Procedure: Civil § 2864; 7 Moore’s Federal Practice § 60.27.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


text:
    In re June T. BRICE v. Donald W. BRICE. Ex parte Donald W. BRICE.
    SC 1884.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    Rehearing Denied Nov. 5, 1976.

      L. A. Farmer, Jr., Dothan, for petitioner.
    J. Ronald Storey, Dothan, for respondent.
   JONES, Justice.

This is a petition for the modification of a divorce decree. Two basic issues are presented: First, whether the Court of Civil Appeals, 58 Ala.App. -, 340 So.2d 788 erred in denying the modification based upon the fact that there had been no material change in the circumstances of the parties since the rendition of the first decree. Second, whether Rule 60(b)(3) of the Alabama Rules of Civil Procedure applies in this case with its four-month statute of limitations rather than Rule 60(b)(6), which has a broader statute of limitations.

June Brice, former wife of Donald Brice, filed a complaint for divorce on the grounds of cruelty and incompatibility of temperament. On January 9,1975, the parties filed with the trial Court an agreement as to alimony. The next day the trial Court granted the divorce and incorporated this agreement into its decree. The pertinent portion of the decree was an order directing Dr. Brice to pay his wife $1800 per month alimony and $177 every three months for premiums on a life insurance policy. Additionally, the agreement in question provided for the payment of debts in the following manner:

“Plaintiff [Mrs. Brice] agrees to pay the following outstanding charge accounts: Master Charge, Bankameri-card, Sears & Roebuck and Montgomery Ward & Company, and Defendant [Dr. Brice] agrees to pay the remaining charge accounts which include Ted’s Jewelers and Joe Hayes Men’s Clothes, Inc.

On May 23, 1975, Dr. Brice filed a petition requesting a modification of this decree. He alleged that at the time the above agreement was presented to the Court there existed various debts made by Mrs. Brice unknown to him and not mentioned in the agreement. Some of these unknown debts were (1) approximately $20,000, Saad Jewelers, (2) $500, Tom Black Jewelers, (3) $333.56, Van Ritch, Inc., (4) $1,202.16, J. E. Neilson Co., and (5) an amount unknown to the First National Bank of Dothan. Dr. Brice further contended at trial that his former wife forged his signature on some bank loans which were made prior to the decree in the amount of $3400 and $4600.

Mrs. Brice has failed to pay these debts and charge accounts and Dr. Brice testified that, as a result, he has received numerous telephone calls and letters which have embarrassed and harassed him; and that, because of these outstanding debts, his credit and reputation in the community is being ruined.

The trial Court, after hearing all of the testimony, made the following findings of fact:

1. That prior to the original divorce decree Dr. and Mrs. Brice agreed to compile a list of all their debts incurred so that an agreement could be reached between them as to which debts would be paid by whom.

2. That Mrs. Brice supplied her attorney with a list of debts but failed to list the following: account to Tom Black Jewelers, $540.24, account to Van Ritch, Inc., $335.36; account to Saad Jewelers, $22,231.88; account to J. E. Neilson Co., $1,202.16; account to Frances Fashions, $200; account to Commercial Credit, $6,819.84; account to Dothan Bank and Trust Co., $3,400.

3. That fraud was practiced on Dr. Brice by Mrs. Brice in inducing him to enter into the agreement made a part of the Court’s decree.

4. That fraud was practiced on the Court in that Mrs. Brice asked the Court to make this agreement a part of the Court’s decree and that a substantial-period of time passed after the Court entered its decree before Dr. Brice discovered the debts Mrs. Brice had made and had not advised him.

5. That Dr. Brice had suffered considerable harassment and embarrassment because of Mrs. Brice’s failure to pay both the debts mentioned in the agreement and the debts which she failed to make known to Dr. Brice.

Based on these findings of fact, the trial Court modified its prior decree of divorce by ordering Dr. Brice 1) to pay those of his wife’s debts which were withheld from his knowledge, and 2) to divert $1,000 of the $1800 monthly alimony payments to the discharge of his wife’s debts until her indebtedness was fully discharged.

The Court of Civil Appeals reversed the trial Court’s order, basing its decision upon two points:

1. The time limit of four months set out in Rule 60(b)(3), ARCP, barred Dr. Brice from availing himself of this remedy since he filed too late.

2. There was no testimony of changed conditions which would warrant a decree of modification.

We hold that the Court of Civil Appeals erred in misapplying the law to the trial Court’s findings of fact. We reverse the judgment and remand the cause to the Court of Civil Appeals with instructions to affirm the trial Court’s decree.

At the outset it is noteworthy to observe that the Court of Civil Appeals’ opinion neither modifies nor questions the trial Court’s findings of fact, which include a finding that fraud had been practiced upon the Court in procuring the initial decree of divorce. Our review, therefore, accepts the trial Court’s findings of fact, as did the Court of Civil Appeals under the rule of ore tenus, and concerns itself with the correctness vel non of that Court’s application of the law to the accepted facts.

Rule 60, ARCP (Relief from Judgment), provides in subsection (b) in part: “. the court may relieve a party from a final judgment ... for the following reasons: ... (3) fraud , . . (6) any other reason justifying relief . The motion shall be made within a reasonable time, and for reasons [of fraud] not more than four months after the judgment . . .”

Mrs. Brice contends that Rule 60(b)(3) and 60(b)(6) are mutually exclusive and thus Dr. Brice’s claim should be barred. Whether Rule 60(b)(6) is available to obtain redress from a judgment obtained by fraud upon the Court that is not discovered in time to bring a motion under Rule 60(b)(3) is of academic interest merely because of an additional provision of the rule.

Rule 60(b), ARCP, specifically states: “This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment (or such additional time as is given by Tit. 7, §§ 36 and 42, Code of Ala.) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Dr. Brice’s petition was filed well within one year from the discovery of the fraud and within three years from the initial decree as prescribed by this provision of the rule. Accordingly, we conclude that Dr. Brice’s petition is not barred even though it was not filed within the four-month requirement of 60(b)(3).

Moreover, this Court is committed to the proposition that, under circumstances not dissimilar to the instant case, a court is not without jurisdiction to exercise its inherent power to set aside and vacate a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of a judgment. Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975).

The second contention of Mrs. Brice is that a divorce decree may not be modified without a material change in the circumstances of the parties. It is her contention that, since Dr. Brice made no offer of proof concerning material change, his petition should be denied.

Although the general rule is that before a modification of a divorce decree may be granted there must be a material change in the circumstances of the parties, we feel that it is inapplicable to this case. O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (Civ.App.1976). It is assumed in this rule that the petitioner is seeking to modify a valid divorce decree free from fraud perpetrated upon the court in the procurement of the decree. This assumption cannot be made in the instant case. In addition to the changed circumstances requirement, the complete rule states that the petitioner must also prove that these changed conditions justify the modification. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967); Callen v. Callen, 257 Ala. 226, 58 So.2d 462 (1952).

It becomes clear that the purpose of this rule is to protect the parties by requiring a heavy burden to modify a valid decree. This protection is unwarranted in the case before us. To offer such protection to one who has worked fraud upon the court in the illegal obtaining of a divorce decree would be an injustice. In reality, then, this is an independent action to set aside a judgment for fraud upon the court and not a petition to modify.

We, therefore, reverse the decision of the Court of Civil Appeals and remand this cause for affirmance of the trial Court’s decree.

REVERSED AND REMANDED.

All the Justices concur.

      . See, however, 11 Wright & Miller, § 2860.

      . This is not an affirmative grant of power but merely allows continuation of whatever power the court would have had to entertain an independent action if the rule had not been adopted. Simons v. United States, 452 F.2d 1110 (2nd Cir. 1971). See also Moore’s Manual on Federal Practice and Procedure, § 20.06.


text:
    June T. BRICE v. Donald W. BRICE.
    Civ. 671.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1976.
   HOLMES, Judge.

The prior opinion of this court has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion of September 24, 1976, 340 So.2d 792, this cause is now affirmed.

AFFIRMED.

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