author: BLOODWORTH, Justice. ALMON, Justice

text:
    ROBINS ENGINEERING, INC., a corp. v. James E. COCKRELL.
    SC 2439.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.
    Ollie L. Blan, Jr., and Alton B. Parker, Jr., of Spain, Gillon, Riley, Tate & Ether-edge, Birmingham, for appellant.
    Lanny S. Vines and Lydia Quarles, Birmingham, for appellee.
   BLOODWORTH, Justice.

Defendant, Robins Engineering, Inc. (contractor), appeals from a jury verdict of $120,000 for plaintiff, James E. Cockrell (employee of subcontractor, Bay Steel Corporation). We reverse and remand because of the admission into evidence of an indemnity agreement between the contractor, Robins, and the subcontractor, Bay Steel.

On December 13, 1973, plaintiff was injured as a result of a fall which occurred when the scaffold, upon which he was standing, broke. Five minutes prior to the accident, Walter Cockrell, plaintiff’s brother, who was foreman on the job, and the field superintendent for the subcontractor Bay Steel Corporation, Teddy Brasher, observed plaintiff on the scaffold. Brasher testified that he told Walter Cockrell, “That boy is going to kill himself.” Walter then testified that he told his brother, James, “Boy, if that board breaks, I ain’t got no dollar for you,” which, in essence, was a warning to be careful. Shortly thereafter, plaintiff fell and was injured.

At the time of the accident, plaintiff was attempting to complete a portion of a parking deck in downtown Birmingham, which Robins had contracted with the Jefferson County Commission to construct. Plaintiff was employed by Bay Steel Corporation which had the subcontract to do re-enforcing iron work. Defendant, United States Fidelity & Guaranty Company (U.S.F. & G), was Robins’ insurer.

Plaintiff brought suit for personal injuries against Robins and U.S.F. & G. The case was tried to a jury. At the conclusion of the evidence, defendant U.S.F. & G.’s motion for directed verdict was granted, but Robins’ motion for directed verdict was denied. Robins’ motion for judgment notwithstanding the verdict or, alternatively, new trial, was overruled. Hence, this appeal.

Defendant Robins raises several contentions for reversal, including the contention that plaintiff’s conduct amounted to contributory negligence as a matter of law. We pretermit that issue because we hold that reversible error was committed by the introduction into evidence of the indemnity agreement between Robins and Bay Steel.

The subcontract between the contractor Robins and the subcontractor Bay Steel was introduced into evidence by plaintiff over defendant Robins’ objection. The insurance provisions were deleted on Robins’ objection, but the indemnity agreement was allowed in evidence.

The indemnity clause is as follows:

“Indemnity Agreement: The Subcontractor covenants to indemnify and save harmless and exonerate the Contractor and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the Subcontractor, its employees, agents or its subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not due in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner.”

Plaintiff’s counsel brought up the “indemnity agreement” two times during closing argument, viz:

“ . . . it has been mentioned of this indemnity agreement, which I believe Mr. Brasher said he realized that they had. Ladies and gentlemen, that contract provides that if a judgment is rendered against Robins Engineering Company that under that contract Robins Engineering Company is going to turn around and go right after Bay Steel because they have got a provision in there that states that they can do that. The validity of that provision, I don’t know, but I am sure that Mr. Brasher understands that provision and his employer, the man who he is second to in Bay Steel’s operation understands that provision, and he knows that provision. And if they are passing it off to Bay Steel, and whatever he says on the stand consider Bay Steel’s position with regard to this contract. [Italics supplied.]
* * * # * #
“The prime contractor, Robins Engineering, had the responsibility to see that this man had access to his work and see that he had safety equipment to do his work. And Mr. Brasher comes in and testifies that it is the custom and practice of the subs to provide saféty devices and he testified that today, although he may not have known it then, that that contract between Bay Steel, his employer and the one he is employed by now, and Robins Engineering provides that anything that Robins had to pay they have got to pay them back. Consider that. Consider that.” [Italics supplied.]

For what purpose did the plaintiff offer the indemnity agreement?

If it was offered for the purpose of showing that the contractor Robins would not have to pay any judgment because the indemnity agreement could be enforced against the subcontractor Bay Steel, did this not constitute an effort to show that the party sued is indemnified, i. e., “insured” from personal liability for damages? If so, it has long been the law in Alabama that it is prejudicial and reversible error to allow testimony to show, or tend to show, that a party is indemnified in any degree or fashion by an insurance company. Thorne v. Parrish, 265 Ala. 193, 90 So.2d 781 (1956); Colquett v. Williams, 264 Ala. 214, 86 So.2d 381 (1956).

Moreover, if counsel emphasize the existence of insurance carried by the opponent covering the transaction, during argument to the jury, reversible error has been committed. Thorne v. Parrish, supra; Colquett v. Williams, supra, quoting, Standridge v. Martin, 203 Ala. 486, 84 So. 266 (1919).

But, plaintiff contends that the rule regarding “insurance” has no application to this case where an “indemnity agreement” is involved. Assuming, however, the applicability of this rule plaintiff then contends his comments were proper because the indemnity agreement was either relevant to the question of defendant’s duty or was admissible to show defendant’s bias. We cannot agree.

“Insurance. While the basic concepts are not identical and each has varied legal usages, indemnity and insurance have common elements. Fundamentally each involves contractual security against anticipated loss, and in each case there must be a risk of loss to which one party may be subjected by contingent or future events, and an assumption of it by legally binding arrangement by another. Thus it has been said that a contract of indemnity is one of insurance, under which the indemnitor undertakes to save the indem-nitee against loss arising from an unknown or contingent event.” (Footnotes omitted.)

42 C.J.S. Indemnity § 3, p. 566.

The terms of the “indemnity agreement,” supra, make it plain that it serves a similar, if not identical, function to that of liability insurance, and, therefore, we think that the reasoning and holding of cases regarding remarks as to the existence of liability insurance are apropos in the context of this case.

We find no merit in plaintiff’s argument that proof of the indemnity agreement was collateral to the fact of defendant’s duty. Plaintiff relies heavily upon Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939), and Burnett v. Bledsoe, 276 Ala. 139, 159 So.2d 841 (1964), but both these cases are readily distinguishable. In Burnett, insurance was mentioned in “one isolated instance,” whereas it was the subject of comment on three separate occasions in the case at bar. Second, objection to the question regarding insurance was sustained in Burnett, and thus the question was not answered; in the case at bar, by contrast, the objection was overruled and the witness answered the question. Third, the trial judge in Burnett, as in Moore-Handley, admonished the jury that insurance was to be considered for a limited purpose only. In Moore-Handley this court quoted the following with approval from Smith v. Baggett, 218 Ala. 227, 118 So. 283 (1928):

“ ‘ . . . It is unquestionably well settled that proof that a defendant had indemnity insurance is not admissible as an independent fact, but we have had cases where it is when collateral to other material facts or so associated with or interwoven as to be inseparable that it becomes admissible and can only be eradicated or neutralized as bearing upon the defendant’s liability by a limitation upon the effect of such evidence.’ ”

Here, however, the trial judge gave no such limiting instructions.

Turning now to plaintiff’s contention that proof of the indemnity agreement was admissible to show bias, again, the cases upon which plaintiff relies can be distinguished.

In Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426 (1957), the witness undergoing questioning was employed by the insurance company and his bias would be apparent. Thus, it was held proper to cross-examine him as to his connection with the insurance company and to comment upon that connection during closing argument.

In Southern Railway Co. v. Bunnell, 138 Ala. 247, 36 So. 380 (1902), the witness was asked if he had been asked by his employer, the railway company, to give security or indemnity for this case. Here, again, if he had been asked to do so, his bias would have been apparent. In the case at bar, however, Teddy Brasher was not asked whether he had personally been asked to give security or indemnity. Rather, he was asked if he knew that the contract provided that Bay Steel pay for any money that Robins had to pay out for injury. This line of questioning would not tend to show bias upon the part of Teddy Brasher and, therefore, was improper.

We recognize, of course, that the trial judge has much discretion with respect to remarks made in final argument by counsel and that the trial court will not be reversed unless that discretion is abused. Gilmer v. Salter, 285 Ala. 671, 235 So.2d 813 (1970). Here, however, we think there was an abuse of discretion. The effect of these repeated references to the indemnity agreement was such that defendant was prejudiced. This is particularly true where, as here, the trial judge gave no limiting instructions.

There is yet another reason why admission of the indemnity agreement was reversible error.

In our very recent decision, Gunter v. U. S. Fid. and Guar. Co., 340 So.2d 749 (Ala.1977), a unanimous court held (per Faulkner, J.) that a general contractor, charged with active negligence in furnishing and maintaining a scaffold from which a young workman fell, could not have impleaded the subcontractor (employer of the workman) in the wrongful death action, nor could indemnity be sought from the subcontractor-employer (under an almost identical indemnity agreement as here) because of the latter’s immunity under the Workman’s Compensation Statute.

Therefore, if the contractor Robins cannot recover from the subcontractor Bay Steel under the indemnity agreement again we pose the inquiry: For what purpose was the indemnity agreement offered? Since we hold it to be inadmissible, we think the answer is obvious. Its introduction into evidence along with the two comments made in closing argument to the jury, constituted prejudicial error to reverse.

REVERSED AND REMANDED.

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

ALMON, J., concurs specially.

ALMON, Justice

(concurring specially).

I concur because of Gunter v. U. S. Fid. & Guar. Co., 340 So.2d 749 (Ala.1977).


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    FRANKLIN SOLID WASTE SERVICES, INC., et al. v. L. J. JONES, Individually and d/b/a Jones Garbage Service, et al.
    SC 2495.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.

      Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellants.
    Euel A. Screws, Jr., of Hobbs, Copeland, Franco & Screws, Charles B. Paterson of Ball, Ball, Duke & Mathews, Montgomery, for appellees.
   FAULKNER, Justice.

This is an appeal from a declaratory judgment holding that a contract entered into between Franklin and Montgomery County for solid waste collection, violated § 22, Constitution, 1901. We reverse and render.

In 1970, the Montgomery County Commission advertised for bids for solid waste collection and disposal. Franklin, bidding for the County at large, was the sole bidder. (After Jones belatedly expressed his desire to bid, he and Franklin entered into an agreement whereby Franklin would employ Jones, and purchase his business.) Following the bid, Franklin and the County signed the solid waste disposal agreement on September 9, effective November 1. Franklin was granted the territory in Montgomery County outside the corporate limits of the City of Montgomery, and it was required to serve every person requesting service in that area. The duration of the agreement was:

“2. The term shall be for a period of five (5) years from and after the date of execution of this instrument, and shall be renegotiated by contractor and representatives of the Board of Revenue and representatives of the County Health Department at the end of said term for an additional five (5) year term, providing the contractor has fulfilled all of his obligations under this contract and has given the county no cause for termination. Said notice of desire to renegotiate this agreement shall be furnished in writing by the contractor at least one hundred twenty (120) days prior to the end of the term of this agreement.”

In 1973 Waste-A-Way was granted a permit by the Health Department to collect solid waste in the City. In violation of this permit, Waste-A-Way expanded into the police jurisdiction. Unable to obtain a permit for the police jurisdiction from either the City or County, in 1974 Waste-A-Way brought suit against Franklin, the County, and the Health Department, attacking the validity of the Franklin agreement and the jurisdiction of the County. The court held the Franklin contract valid and in compliance with all applicable laws. The court further held that the City and County exercise concurrent jurisdiction over the police jurisdiction, with only the County having exercised its jurisdiction; and that under its present permits, Waste-A-Way was authorized to engage in its business only within the corporate limits of the City.

Approximately one month after the ruling, pursuant to a resolution of the Montgomery City Commission, permits for solid waste collection within the police jurisdiction were granted to Waste-A-Way, Jones and Kelley.

Franklin and the County appealed the decree and Waste-A-Way cross-appealed. The litigation was settled, and appeals and cross-appeal dismissed.

During the pendency of the appeal, letter notices of renegotiation of the Franklin contract were mailed to the attorney for Waste-A-Way, Jones and Kelley. At the meeting, Jones and Waste-A-Way expressed interest in bidding on all or part of the county areas. At a later meeting, the County decided to renegotiate the contract with Franklin. No hearings were held on renegotiation of the rates. On August 25, 1975, a second franchise agreement renegotiated pursuant to the original agreement, was entered into with Franklin, with the same maximum rate, for an additional five year period.

In December, the City voted against renewal of the police jurisdiction permits.

Jones, Kelley and Waste-A-Way brought this declaratory judgment action seeking to set aside the 1975 Franklin agreement. Five current or former customers of Waste-A-Way were allowed to intervene as plaintiffs. At an ore tenus hearing, evidence was presented, indicating, inter alia, that Waste-A-Way provides door-to-door residential pick-up service within the police jurisdiction at 50$ (10%) less per month than Franklin’s charges. The court further found that as a result of the competition within the police jurisdiction, “Franklin has substantially reduced his prices for solid waste collection to these [police jurisdiction] establishments.” The court entered its final decree on January 21, 1977, invalidating the 1975 Franklin agreement on the ground, among others, that it violated § 22 of the Alabama Constitution, 1901. The order directed the County to issue permits to the plaintiffs within 30 days and commanded that all Montgomery County outside the corporate limits be open to free competition.

Our opinion will be concerned only with § 22 of the Constitution. Discussion of other issues decided by the trial court is pretermitted.

Section 22 provides that:

“. . . No law . . making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment.”

The Constitutions of 1819,1861,1865, and 1868 prohibited ex post facto laws, and laws impairing the obligations of contracts. But, when the 1875 Constitution was adopted, § 23 provided:

“That no ex post facto law, or any law impairing the obligation of contracts, or making any irrevocable grants of special privileges or immunities, shall be passed by the general assembly.”

In 1885, this court had before it the question of whether the City of Birmingham could grant the Birmingham Street Railway Company an irrevocable and exclusive privilege to construct and operate a street railway over and through certain streets and avenues of that city. Birmingham & Pratt Mines Street Railway Co. v. Birmingham Street Railway Co., 79 Ala. 465 (1885). There, in an opinion written by Mr. Justice Somerville, this court said that since the State would be prohibited from awarding the exclusive franchise, because of the Constitutional prohibition (§ 23), the City, being an agency of the State, would likewise be prohibited. In other words, the power of the agent cannot exceed that of the principal. This was a monopoly case, and the court explained that in earlier years state governments had granted exclusive and irrevocable franchises to encourage corporate capital investment in critical growth industries. Later, monopolies were viewed as being unfair with free trade, and Constitutional prohibitions found in § 23 were adopted by the states.

This court, in a subsequent case, considered § 23 in the light of public welfare, and upheld a statute exempting railroad employees from work on public roads, on the theory that it was in the public interest for the common carriers to have an adequate work force at all times. Johnson v. State, 88 Ala. 176, 7 So. 253 (1890). Sloss-Sheffieid Steel & Iron Co. v. O’Rear, 200 Ala. 291, 76 So. 57 (1917) was one of the first cases to consider § 22, Constitution, 1901. The court, on the ground of public welfare, upheld a statute giving mining, manufacturing, power, and quarry companies the power of eminent domain. In City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550 (1938), the question presented was whether or not requiring taxicabs to be licensed violated § 22. This court held that no one has the inherent right to operate motor vehicles, as a common carrier, on the city streets; that in its discretion, the city may refuse or it may grant a license for the operation of common carriers. Furthermore, the court said that the limitations embodied in § 22 were for the protection of the city and the general public — not individuals.

In the case before us, the collection of garbage is in the public interest and for the health and general welfare of the public. The contract awarded to Franklin upon the low bid, by the County, is for a definite term — 5 years, extended for an additional 5 years — upon Franklin’s fulfilling his obligation under the terms of the contract. There is no evidence that Franklin has not performed his contractual duties.

The contract is not an exclusive or special privilege banned by the Constitution. This court said in Dickinson v. Cunningham, 140 Ala. 527, 37 So. 345 (1903):

“The monopoly which is obnoxious to the law, or the special exclusive privilege under the ban of the Constitution, is a privilege farmed out to the highest bidder, or conferred because of favoritism to the donee, and not one awarded to the lowest bidder, and for the convenience and benefit of the public. If this doctrine be not correct, then the State can make no contract for supplies for its penitentiary, for its charitable institutions, for its public printing, or any other work of public utility or necessity . . . ”

In our opinion the State of Alabama would not, had it contracted for solid waste disposal, violated § 22. Likewise, the County, an agency of the State, has not violated §22.

The judgment of the trial court is reversed, and the case rendered.

REVERSED AND RENDERED.

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


author: BLOODWORTH, Justice.

text:
    William P. BLACKWELL and Effie A. Blackwell v. Wade HARRIS and Joyce Harris.
    SC 2613.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.
    Virgil K. Sanderfer, Birmingham, for appellants.
    Bishop K. Walker, Jr., of Nash & Walker, Oneonta, for appellees.
   BLOODWORTH, Justice.

Appellants, William and Effie Blackwell, appeal from a judgment in a land line dispute which was decided adverse to them and in favor of appellees, Wade and Joyce Harris, the adjoining land owners. Appel-lees filed suit contending that they had acquired title by prescription to the disputed tract. Appellants answered appellees’ complaint and filed a counterclaim, following an unsuccessful motion to dismiss. Appellants claim by deed, appellees by prescription to a certain fence line. Issue was joined. Following an ore tenus hearing, the trial judge personally inspected the premises after which judgment was entered for appellees. Appellants’ application for rehearing and/or motion for new trial and/or judgment notwithstanding the verdict was denied.

On this appeal, appellants contend: that the judgment is contrary to both the law and the facts; that appellees’ possession of the disputed area was neither continuous nor adverse for the requisite statutory period, and, therefore, appellees could not have acquired title by prescription; that appellants did not have actual notice of the ap-pellees’ hostile claim as required by law; that the judgment is null and void insofar as the land is not adequately described in the judgment; and, that the trial court improperly admitted and considered certain evidence.

Appellees’ primary argument is based on an application of the ore tenus rule, which, they contend, is especially appropriate here since the trial judge personally inspected the premises. We agree.

This is the classic case with which this Court has been confronted many, many times, the fence line v. a quarter section line — the adverse possessor v. the record title holder.

Because of earnest insistence of counsel, we have carefully read and studied the briefs, the issues raised on appeal, the pertinent cases, and portions of the evidence, and must conclude that this is an ore tenus case in which the trial judge must be affirmed. It would serve no useful purpose, in our view, to write anything further.

AFFIRMED.

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


author: BRADLEY, Judge. HOLMES, Judge

text:
    PERSONNEL BOARD FOR MOBILE COUNTY, Alabama, City of Mobile, a Municipal Corporation, et al. v. Gary BRONSTEIN.
    Civ. 1181.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.
    Rehearing Denied Nov. 30, 1977.

      William R. Lauten, Mobile, for City of Mobile.
    Mylan R. Engel, Mobile, for Personnel Board of Mobile County.
    Donald M. Briskman, Mobile, for appel-lee.
   BRADLEY, Judge.

Appellee, Gary Bronstein, was appointed superintendent of recreation for the City of Mobile on August 19, 1974 and thereafter began a working test period which was to last one year. Prior to the expiration of the one year, the test period was extended for a period of about five months. During the extended test period, appellee was notified by the City that his employment would be terminated at the end of the extended test period. Appellee appealed the dismissal order to the Mobile County Personnel Board. The City then moved the Board to dismiss the appeal. The Board granted the City’s motion and dismissed the appeal. Appellee appealed the Board’s dismissal order to the Circuit Court of Mobile County. The circuit court after a hearing reversed the Board’s dismissal order and remanded the matter to the Board for a hearing on the City’s termination of appellee’s employment. The City and the Personnel Board appealed that ruling to this court.

After the appeal had been perfected to this court, the appellee filed a motion to dismiss the appeal on the ground that the appeal had not been filed within the time limits required by Rule 4, ARAP, and Rule 59.1, ARCP.

This contention arises from the following set of facts. The original order in this case was rendered by the circuit court on November 10, 1976. The City of Mobile filed a motion for new trial on December 6, 1976. Argument was set for January 7, 1977; however, the matter was taken under submission so that the City could file a brief in support of its motion. On February 28, 1977, eighty-four days after the motion for new trial had been filed, appellee’s attorney filed a motion to strike the motion for new trial and requested an oral argument on his motion to strike.

The matter was set for oral argument on March 4, 1977 and counsel for appellee appeared in court on that date. However, the attorney for the City of Mobile was not present due to the serious illness of his wife. Because he could not be present, the City’s counsel requested that the matter be continued. Appellee’s attorney did not object to nor did he agree to the continuance, and argument was reset for April 8, 1977.

On March 7, 1977, the ninetieth day after the City’s motion was filed, appellee’s attorney wrote a letter to the City’s counsel offering his condolences and informing the attorney for the City that the motions which had originally been set for hearing on March 4 had been reset for argument on April 8, 1977. Although appellee’s attorney advised the City’s attorney that if April 8, 1977 was inconvenient he (counsel for ap-pellee) would be glad to cooperate in any way he could, at no point in the letter did the appellee’s lawyer expressly consent to extend the 90 day period for which post-trial motions may remain pending before a court without being deemed denied. In fact the 90 day period had actually expired on this date without appellee’s attorney having expressly consented to any extension of the time period.

Prior to April 8, 1977, the City filed a written brief in support of its motion with the trial court. Appellee’s attorney filed a brief in response to the City’s brief. However, on April 8, 1977 arguments on appel-lee’s motion to strike the City’s motion for new trial were again continued until April 22, 1977. It is unclear if either party requested this continuance since the circuit court’s motion docket is the only record which indicates that the matter was delayed until April 22.

Nonetheless, a flood in Mobile, which prevented many lawyers from reaching the courthouse, resulted in yet another delay of the hearing. Thus, because of the flood conditions existing in Mobile on April 22, the hearing was reset for April 28.

On April 28, 1977 the motions of the parties were argued. Six days later on May 4, 1977 the circuit court entered its order, which in substance denied the City’s motion for a new trial. The Personnel Board’s notice of appeal was filed on May 19, 1977 and the City’s notice of appeal was filed on June 13, 1977.

Prom the above recitation of events, it appears that the judge did not rule on the City’s motion for new trial until approximately 150 days after that motion was filed. Therefore, by virtue of Rule 59.1, ARCP, the City’s motion was deemed denied on the ninetieth day following the filing of the motion, unless the parties expressly consented to the delays. And the time period for filing notice of appeal would, of course, have begun to run as of that ninetieth day. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271.

Appellee contends that since neither appellant filed notice of appeal within 42 days of the expiration of the 90 day period, ap-pellee’s motion to dismiss this appeal should be granted.

On the other hand, appellants argue that the record before this court indicates that appellee’s attorney expressly consented to an extension of the 90 day period and thus the City’s motion was not denied until the circuit court actually entered its order of May 4,1977. On the basis of this argument appellants submit that their notices of appeal were timely and appellee’s motion to dismiss the appeal should be denied.

Rule 59.1, ARCP, provides that a motion for new trial shall not remain pending in a trial court for more than 90 days unless all parties expressly consent to extend the time period (or the appellate court to which an appeal of the judgment would lie agrees to extend the time).

Black’s Law Dictionary 377 (4th ed. 1968) defines “express consent” as:

“That directly given either [orally] or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.”

The following definition of “express” is found in Words & Phrases, Vol. 15A, p. 522:

“ ‘Express’ means ‘made known distinctly and explicitly, and not left to inference or implication; declared in terms; set forth in words; manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. . . . ’”

In the instant case there was no express consent by appellee’s attorney to extend the 90 day time period. While counsel for ap-pellee did not expressly object to the extensions and delays which caused the 90 day period to expire, he did not expressly consent to extend the time period for disposing of the City’s motion beyond 90 days either. Moreover, Rule 59.1 does not require that a party object to actions by the court which extend the 90 day period. It does, however, in clear and unequivocal language, require a party’s express consent to such an extension.

In addition, the delays and. extensions which occurred in the present case were not the fault of appellee’s attorney. Despite the fact that counsel for appellee filed his motion to strike appellants’ motion for new trial 84 days after the latter motion had been filed, the date set for hearing on both parties’ motions was March 4, 1977 — two days prior to the expiration of the 90 day time limit. However, on March 4 appellants’ counsel requested a continuance due to personal problems. Appellee’s lawyer assented to this continuance by not objecting to the extension although he was at the courthouse and could have done so. Likewise, appellee’s attorney gave further assent to the continuance by his letter of March 7, notifying appellants of the new date for which hearing had been set. Nonetheless, assent alone was not sufficient to extend the 90 day period for statutory denials. The language of Rule 59.1 requires express consent. And the law has long recognized a material distinction between “assent” and “consent,” the former meaning passive or submissive conduct while the latter involves positive action. Perryman v. State, 63 Ga.App. 819, 12 S.E.2d 388. In the instant case counsel for appellee did not take positive steps to express in a direct and unequivocal manner that he was willing to extend the 90 day period. Nor did his assent to the continuation of the proceedings constitute a waiver of the requirement of express consent.

By failing to appear at the hearing of March 4, the City’s attorney was responsible for the delay which caused the proceedings to extend beyond the 90 day period for statutory denials. And regardless of his reasons or good faith in failing to appear, he should have been cognizant of the fact that despite court-granted delays and extensions, the 90 day period was running and would expire on March 7. As with all time requirements for filing, an affirmative duty is on the lawyer who seeks relief to make sure that his actions are timely. When his actions fail to comply with the proper time limits, the relief sought must be denied unless the law permits an extension of the time limits or excuses his compliance therewith.

When the 90 day period expired on March 7, 1977 only the express consent of appel-lee’s attorney could have extended that time period. Since no express consent was given by counsel for appellee, the City had 42 days from the seventh of March to appeal. No appeal was filed within that time, thus appellee’s motion to dismiss appellants’ appeal for lack of timeliness must be granted.

Furthermore, appellants contend that their failure to file a timely appeal was the result of excusable neglect. With regard to this contention appellants filed a motion with the trial court on September 6, 1977. In this motion appellants argued that relief should be granted them under Rule 60(b), ARCP. This motion was granted by the circuit court on September 13, 1977 on the ground that all parties had consented within the meaning of Rule 59.1 to extend the time which the City’s post-judgment motion for new trial would remain pending in the trial court until the trial court actually entered a judgment on the matter.

An order granting or denying a Rule 60(b) motion presents for review to this court only the correctness of the trial court’s order. In this instance we conclude that the trial court was incorrect in granting appellants’ motion.

The effect of appellants’ motion seeking relief under Rule 60(b) was to extend the time in which appellant was required to file notice of appeal. However, a Rule 60(b) motion is an attack on a judgment. Coosa Marble Co. v. Whetstone, supra. The Rule 60(b) motion does not affect the time in which an appeal must be brought. Coosa Marble Co. v. Whetstone, supra. Thus an order granting a Rule 60(b) motion which would extend the time for appeal and thereby correct a party’s failure to file a timely appeal is in error.

Furthermore, the motion in this case was filed more than four months after the order of May 4. Thus, the provision of Rule 60(b) relating to excusable neglect was not met. Nor is 60(b)(6) stating that a party may be relieved of a final judgment for any reason justifying relief from the operation of the judgment applicable in this case. The undisputed facts show that the appellants failed to file a timely appeal due to delays (one of which appellant-City of Mobile sought) which caused the hearing on the parties’ motions to exceed the 90 day period in which post-trial motions should be disposed of. Appellants knew (or should have known) that the 90 day period was running during these delays and they were aware (or should have been aware) of the consequences of the expiration of this period. Despite these facts, appellants failed to obtain the express consent of appellee to extend the 90 day period. Because of appellants’ failure, the 90 day period expired. Upon expiration of that period appellants’ motion was deemed to be denied. And since appellants failed to file notice of appeal within 42 days from the date of the 90 day statutory denial of its then pending motion for a new trial, their appeal must be dismissed. State v. Wall, Ala., 348 So.2d 482.

Appellants’ alternative motion that this court grant them relief via Rule 2(b) and Rule 26(b), ARAP, must also be denied. Although appellants contend that Rule 2(b) and Rule 26(b) may be used to reflect that express consent to extend the 90 day time limit of Rule 59.1 was shown in the trial record, no such consent was given by appel-lee’s attorney. To grant appellants’ alternative motion under Rule 2(b) and Rule 26(b) would in effect extend their time for filing a notice of appeal — -a result which both of the aforementioned rules expressly -prohibit.

APPEAL DISMISSED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge

(concurring specially).

I must concur in this ease. I believe under the law that no other result can be reached by this court. However, I do not believe the drafters of Rule 59.1, ARCP, intended the rule to prevent an appeal in a case such as the instant appeal. Perhaps, in the future some action will be taken to alleviate certain hardships created by this rule.

      . See State v. Wall, 348 So.2d 482 (holding that the 90 day period set out in Rule 59.1 begins to run from the date of filing rather than the date set for hearing of the post-trial motion).

      . Our supreme court has construed this statement to mean that the motion to extend the time must be filed in the appellate court before the expiration of the 90 day period. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271. Such was not the case here.

      . Appellee submits that the trial court lacked jurisdiction to entertain the Rule 60(b) motion since the matter was already on appeal. We agree.
      Rule 60(b) states in part:
      “ . . . Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court. . . . ”
      The record in this case indicates that such leave was neither requested nor granted.


author: BEATTY, Justice.

text:
    Ex parte PERSONNEL BOARD OF MOBILE COUNTY, Alabama, and City of Mobile, Alabama, a Municipal Corp.
    77-207.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    C. W. GORDON v. OLD REPUBLIC LIFE INSURANCE COMPANY, a corporation.
    Civ. 1227.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.
    Rehearing Denied Nov. 23, 1977.
    Thomas E. Davis for Burns, Shumaker & Davis, Gadsden, for appellant.
    Bill Bradley for Henslee & Bradley, Gadsden, for appellee.
   HOLMES, Judge.

This is an insurance case.

The appellant-plaintiff, C. W. Gordon, filed suit in the circuit court against appel-lee-defendant, Old Republic Life Insurance Company, for proceeds claimed to be due under a credit disability insurance policy issued by appellee. The jury returned the verdict for the plaintiff. Upon motion by defendant-appellee, the trial court entered an order setting aside the verdict for the plaintiff and entering judgment for the defendant. That judgment and order is made the basis of this appeal.

The pertinent facts are not in dispute. The record reveals that appellant borrowed money from Avco Financial Services. A premium of approximately $400 was charged out of the proceeds of the loan and a certificate of credit disability insurance was issued by Old Republic Life Insurance Company.

Generally, the certificate of insurance provided that if the insured-appellant became totally and permanently disabled during the term of insurance under the certificate, the insurer-appellee would pay for appellant’s payments on the note payable to Avco coming due after commencement of the disability.

The certificate of insurance also contained provisions which read, in pertinent part, as follows:

“EXCEPTIONS: The insurance afforded by this certificate does not cover any disability:
“(3) Resulting from . . . sickness contracted and commencing prior to the effective date of this certificate.”

The appellant defaulted in making his payments to Avco and filed a claim on the certificate of insurance, claiming that he was disabled due to sickness, i. e., heart disease. It was not disputed that the heart disease from which appellant suffered commenced prior to the effective date of the insurance.

It is also undisputed that no inquiry was made of the appellant as to the condition of his health either prior to or at the time of issuance of the insurance certificate sued on. Likewise, the appellant volunteered no information concerning the condition of his health. There was total silence on the matter of appellant’s health.

Appellant, through able counsel, contends that appellee waived or is estopped from asserting, as a defense, the exclusion of pre-existing conditions due to its failure tó make any inquiry as to appellant’s health.

The law in Alabama is settled concerning waiver and estoppel in that a loss, not within the coverage of the policy contract, cannot generally be brought within that coverage by invoking the principle of waiver or estoppel. See Home Insurance Co. of New York v. Campbell Motor Co., 227 Ala. 499, 150 So. 486 (1933); 12 Ala.Dig. Insurance 372(2).

The Supreme Court of Alabama in Equitable Life Assurance Society v. Langford, 234 Ala. 681, 684, 176 So. 609, 611 (1939), aptly stated:

“That is to say, that a waiver or an estoppel may not extend the coverage of the policy, but may only affect rights reserved therein. . . . ”

As noted above, the insurance under which appellant was protected did not cover any disability resulting from an existing sickness. Since appellant’s heart disease was an existing sickness, it was not within the coverage of the policy. It is clear, therefore, in this instance, that a waiver or estoppel cannot extend the coverage of the policy so as to include such a pre-existing sickness.

The appellant further contends that appellee-insurance company had a duty to inquire as to the health of appellant prior to issuing the certificate of insurance and that the failure to inquire constitutes waiver. Such is not the case.

The Supreme Court of Arkansas in National Life Insurance Co. of the United States of America v. Jackson, 161 Ark. 597, 256 S.W. 378 (1923), when faced With a similar problem, held that knowledge by an agent of an insured’s pre-existing disease is immaterial when the policy provided that existing diseases would not be covered by the policy. In that case, the policy excluded coverage for any accident, illness, or disease occurring or contracted prior to the policy being issued. The court stated that insurer’s agent having knowledge that insured had tuberculosis at the time the policy went into effect would not enable the insured to avoid the effect of the exclusion.

Put another way, there is no duty to inquire as to the health of the applicant when a condition in the policy, as in the present case, expressly excludes existing sickness. See National Life Insurance Co. of the United States of America v. Jackson, supra.

To summarize, the policy in this case excluded existing sickness; the appellant had an existing heart disease; therefore, the absence of inquiry by appellee is immaterial since under the express terms of the policy, the insurance company was not liable for such existing sickness.

Appellant also contends that the trial judge erred in granting appellee’s motion for a judgment n. o. v.

The rule m Alabama is that neither a motion for directed verdict nor a motion for judgment n. o. v. should be granted if there is any conflict in the evidence for the jury to resolve, and the existence of such conflict is to be determined by the scintilla rule. See McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

As is evident from the record and briefs filed with this court and as indicated above, there were no pertinent facts in dispute. Thus, the question before the trial court was one of law. There were no conflicts in the evidence for the jury to resolve and, therefore, the trial court did not err in granting appellee’s motion for judgment n. o. v.

The case is due to be affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Ex parte C. W. GORDON.
    77-186.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    ALABAMA FARM BUREAU MUTUAL INSURANCE COMPANY, INC. v. Charles DAVIS, as Administrator of the Estate of Eugene Jackson Davis.
    Civ. 1252.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1978.

      H. E. Nix, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    George B. Azar, Montgomery, for appel-lee.
   BRADLEY, Judge.

This appeal is the result of a civil action in the Circuit Court of Montgomery County seeking recovery under the uninsured motorist provisions of an insurance policy issued by appellee, Alabama Farm Bureau Mutual Insurance Company, Inc.

The action was initiated by the appellant, Charles Davis, who was acting as the administrator of the estate of Eugene Jackson Davis. The case was heard without a jury and after the presentation of evidence by both parties the trial court found that Eugene Jackson “Jack” Davis was killed in a motor vehicle collision involving three cars. Although there was liability insurance on the vehicle which Davis was driving, neither of the drivers of the other two cars had automobile liability insurance at the time of the collision. Consequently, both of these drivers were uninsured motorists as defined in the insurance policy issued by Farm Bureau. The trial court determined that the proximate cause of Davis’ death was the negligence of one of the uninsured drivers. The court also held that the insurance policy purchased for the automobile in which Davis was killed by the car’s owner, David Garrett, was in force on the date of the fatal collision and that Davis was driving the vehicle with the permission of Garrett. Accordingly, the court ruled that Davis was insured under the uninsured motorist provisions of the Farm Bureau policy and rendered a judgment in favor of Davis’ estate in the amount of $10,000. From that judgment Farm Bureau appeals.

The primary question before us is whether Garrett (the named insured) possessed an insurable interest in the automobile at the time of Davis’ accident sufficient to support recovery by the latter’s estate under the uninsured motorist provisions of the policy. Farm Bureau contends that the policy was void because Garrett had no insurable interest in the insured automobile and that as a consequence of this fact, the trial court erred in holding that the estate of Jack Davis could recover under the policy’s uninsured motorist provisions. Conversely, the administrator of Davis’ estate claims that Garrett held the title to the vehicle in question and as such had an insurable interest in it. We conclude that Garrett had an insurable interest in the vehicle in question and that the trial court was correct in permitting the estate of Davis to recover under the policy’s uninsured motorist coverage.

The evidence adduced at trial indicates that Garrett and his brother-in-law, Jack Davis, agreed to purchase an automobile. The two men traveled to Birmingham and purchased a Ford Mustang. Although Davis provided the money for the down payment on the car, it was Garrett who entered into a security agreement with the Ford dealer for the additional financing of the automobile’s purchase price. At the time of the sale Garrett also received a federal excise tax refund on the car. The bill of sale and license tag registration were issued in the name of Garrett. Davis, however, took possession of the car and made the monthly payments on it.

Due to the financing arrangements entered into with the Ford dealer, the new automobile was insured with an insurance company other than Farm Bureau. However, the original insurance on the car expired approximately a year after the purchase of the vehicle.

At the time the original policy on the automobile expired, Garrett carried liability insurance coverage with Farm Bureau on another car which he owned. In order to take advantage of the special “two-car discount” on insurance premiums which Farm Bureau offered to automobile owners who had two cars insured with Farm Bureau, Garrett telephoned his insurance agent and had the Ford Mustang which Davis and he had purchased insured. Garrett paid all the premiums on the policy and kept the policy in his possession at all times.

Our legislature has provided that all automobile liability policies contain uninsured motorist protection unless such protection is rejected by the insured. Title 32, chapter 7, section 23, Code of Alabama 1975 [formerly Title 36, section 74(62a)]. In this regard, uninsured motorist protection is an integral part of automobile liability insurance. Consequently, uninsured motorist coverage, like liability coverage, must be supported by an insurable interest in the insured. And the test of an insurable interest in an automobile liability policy, as well as the uninsured motorist provisions contained in that policy, is whether the named insured would be liable to others for injury to persons or property arising out of the operation of the insured automobile. Employers National Insurance Co. v. Holliman, 287 Ala. 123, 248 So.2d 717 (1971); Bendall v. Home Indemnity Co., 286 Ala. 146, 238 So.2d 177 (1970).

In support of its contention that Garrett did not have an insurable interest in the vehicle in question, Farm Bureau relies on the above cited cases of Bendall and Holli-man as being factually similar to the case at bar.

A comparison of the cited cases and the case at bar reveals the following facts:

Bendall and Holliman

(1) The named insured used the car occasionally but never claimed any ownership interest;

(2) the named insured always asked permission of the principal operator to use the car;

Davis

(1) The named insured used the ear occasionally but at all times asserted his ownership interest by (a) retaining a set of keys to the car; (b) requiring the principal operator to re-register the automobile in the name of the insured; (c) by removing the tape player and other items from the vehicle after it was involved in the automobile accident; and (d) by holding legal title to the vehicle;

(2) the named insured did not ask permission of the principal operator to use the car although insured did generally inquire as to whether the principal

Bendall and Holliman

(3) the named insured never limited the principal operator’s use of the car;

(4) the car was garaged at the home of the principal operator;

(5) the insurance premiums were paid by the principal operator;

(6) the insurance policy was kept by the principal operator;

(7) the license tag registration was in the name of the principal operator or a third party.

Davis

operator of the automobile planned to use it;

(3) the named insured generally did not limit the principal operator’s use of the car, but on one occasion he did con-tramand the right of a third party to use the car even though the insured knew that this right had been conferred on the third party by the express permission of the operator;

(4) the car was garaged at the home of the insured during a period when the principal operator resided in the home of the insured;

(5) the insurance premiums were paid by the insured;

(6) the insurance policy was kept by the insured;

(7) the license tag registration was in the name of the insured and he prevented any change in the registration to another person’s name.

* insured = David Garrett

* principal operator = Jack Davis

We suggest that a careful examination of the facts in the cited cases and the case at bar as set out above will readily reveal their dissimilarities and, as a consequence, the cited cases cannot be relied on as factually supportive of the conclusion that Garrett had no insurable interest in the vehicle in question.

To recapitulate the facts in the present case, Garrett was the sole obligor on the security agreement and note of indebtedness for the purchase price of the automobile and therefore had a financial interest in protecting himself against liability arising out of the use of the car. Garrett was also obligated to pay the insurance premiums on the vehicle and had he failed to do so he would have lost his protection against liability as well as his “two-car discount” on the rate of his insurance premiums. Finally, Garrett held legal title to the automobile and as the owner of the vehicle was potentially liable for its use. These facts indicate an insurable interest and the necessity for purchasing insurance on the automobile. Consequently, we are not disposed to hold that the trial court erred in ruling that Garrett possessed an insurable interest in the car driven by Davis.

Moreover, in cases of this nature there is a presumption in favor of findings of fact made by the trial court since it hears the disputed evidence ore tenus. This presumption precludes our reversal of the trial court’s judgment unless it is determined to be plainly and palpably wrong. And although this presumption is not applicable in situations where the trial judge takes an erroneous view of the law as applied to the facts, we are unable to say in this instance that the trial court misapplied the law to the facts in finding an insurable interest on the part of Garrett. Thus the presumption of the correctness of the trial court’s decree is applicable and we affirm that court’s conclusion on this matter.

The second issue presented by Farm Bureau’s appeal is the contention that the trial court erred in finding that Garrett did not misrepresent or conceal facts which were material to the issuance of the policy. Specifically, Farm Bureau claims that Garrett misrepresented two facts to the Farm Bureau agent with whom Garrett dealt.

The first misrepresentation concerns Garrett’s alleged statement to the agent that he (Garrett) was the principal operator of the vehicle in question. And the second misrepresentation involved whether Garrett told the agent that the automobile was garaged at his (Garrett’s) home when in fact it was garaged at the home of Davis’ parents where Jack Davis lived during most of the period subsequent to the purchase of the car.

While we recognize that a representation by the insured that he is the principal operator or sole owner of an insured motor vehicle may be material to the risk and that an insurance company might refuse to issue the policy if a misstatement about such matters were within its knowledge, on the record before us the question of the alleged misrepresentations is not entirely free from doubt. Indeed, the evidence on these matters was in sharp conflict. Garrett admitted upon cross-examination that after the accident he had told an insurance claims adjuster that he (Garrett) was the primary user of the automobile and that the car was principally garaged at his residence. However, additional evidence was to the effect that after he had made these claims, Garrett retracted his earlier statement, informed the adjuster it had been incorrect and provided the adjuster with the correct information.

Farm Bureau also argues that when Garrett purchased insurance on the automobile driven by Davis, Garrett knew the terms of that policy since he already held an identical policy with Farm Bureau on another car. Accordingly, Farm Bureau urges that Garrett’s failure to disclose that he would not be the principal operator of the vehicle constituted a concealment of information which Garrett knew was essential to the underwriting of the policy and thereby the policy is void on the basis of an omission of a material fact. However, when Garrett was questioned about this matter at trial he testified that the insurance agent requested no information with respect to who would operate the vehicle or where it would be garaged. Garrett went on to say that the agent asked him only the “make, model and serial number” of the automobile and what type insurance Garrett wanted on it. There was no evidence that Garrett knew that his statements or his failure to provide additional information violated the provisions of the policy dealing with the operation or garaging of the vehicle.

As the above described evidence indicates, there was sufficient testimony (although in conflict) to support the trial court’s determination that Garrett did not misrepresent or defraud Farm Bureau in obtaining the insurance. Moreover, the court specifically found that the Farm Bureau agent issued the policy to Garrett without requiring the application form to be completed or signed by the latter and that any dispute as to the information given the agent was the result of the manner in which the agent wrote ,the policy rather than any fault on the part of Garrett.

This court has held that misstatements or errors in insurance applications which occur due to the neglect or fault of the insurance company’s agent are. not a valid basis for denying coverage on the policy issued. United Security Life Insurance v. St. Clair, 41 Ala.App. 243, 130 So.2d 213 (1961). Likewise the failure of the agent to ask the questions necessary to correctly fill out inquiries in an insurance policy will not prevent the insurance company from being liable on the policy. United Security Life Insurance v. St. Clair, supra. This rule is applicable even in situations where the agent writes answers to the questions in the insurance policy as though he had asked such questions of the insured, and the latter had answered them, and the insurance company in issuing the policy acts on the policy as written without any knowledge of the agent's actions. United Security Life Insurance v. St. Clair, supra.

The trial court applied the above stated principles of law in considering this matter and it was not in error for so doing. Furthermore, as the trier of fact in this case the trial court examined conflicting evidence and found that both the legal and factual aspects of the case warranted its finding that Garrett did not mislead Farm Bureau. Such a finding was supported by the evidence and pertinent rules of law, therefore we cannot say that the court’s decision in regard to Farm Bureau’s allegations of concealment and fraud was plainly erroneous or manifestly unjust.

The final issue presented by Farm Bureau is based on its claim that the trial judge erroneously failed to hold that Farm Bureau had proper grounds for rescinding its insurance policy with Garrett. The basis for this contention is Farm Bureau’s assertion that the declarations contained in the policy were violated and that Garrett had the policy in his possession, knew that its terms had been violated and, despite this knowledge, deliberately concealed the circumstances which actually existed from Farm Bureau. The specific provisions which the insurance company claims were violated are: (1) the insured automobile • will be garaged at the address of the named insured; and (2) the named insured is the owner of the automobile and has complete control over its use.

We find little merit to either of these contentions. It has been stated that the insurer’s liability of risk must stem from the use to which a car is put — -rather than where it is garaged — before the insurer can rely on an incorrect declaration as to where the automobile will be garaged in attempting to void the policy. See Commercial Union Insurance Co. of New York v. Security General Insurance Co., 282 Ala. 344, 211 So.2d 477 (1968). Moreover, a representation or declaration that an automobile will be garaged at a particular place is merely a statement of expectation, Commercial Union Insurance Co. of New York v. Security General Insurance Co., supra, and as such is not material to the acceptance of the risk. Consequently an incorrect declaration concerning the location where a vehicle is to be garaged shall not prevent recovery under the insurance policy unless it is demonstrated that the declaration was fraudulently made. Title 27, chapter 14, section 7, Code of Alabama 1975 (formerly Title 28A, section 320). Since the court found no fraud on the part of Garrett in regard to this matter, Farm Bureau may not void the policy in question on the basis that the declaration dealing with the place where the automobile was to be garaged was violated.

Nor may Farm Bureau deny the applicability of the insurance policy issued to Garrett on the grounds that he did not have complete control over the vehicle’s use. It is axiomatic that terms and declarations of an insurance policy which are relied upon by the insurer to escape its obligation to the insured are strictly construed against the insurer. Commercial Union Insurance Co. of New York v. Security General Insurance Co., supra. We believe the term “complete control” as used in the policy which was issued to Garrett refers to the power of the vehicle’s legal owner (Garrett) (and other persons whom he permitted or designated) to manage, supervise, direct or oversee the actual use of the automobile. The adjective “complete” added nothing more to this definition of control other than to require that the control exercised by Garrett over the insured item include every aspect of the vehicle’s utilization. However, this power did not have to be constantly wielded by Garrett; it was enough that he had the capacity to exercise complete control when and if he felt the need for it arose or that he designated another person to exercise such control.

Furthermore, a determination of whether Garrett’s actual or impending authority to direct the use or nonuse of the car was sufficient to meet the requirement of “complete control” was a factual matter for consideration by the trier of fact. And, as previously indicated,' the trier of fact will not be reversed in instances where evidence is presented at trial which would support the conclusions reached by the trier of fact in regard to a matter before it.

In the present case the trial court found that Garrett exercised “complete control” over the vehicle in question. This finding was premised on the court’s determination: (1) that Garrett had held title to the car since its purchase; (2) that Garrett at all times had required that the automobile be registered in his own name; (3) that Garrett was the only person liable on the contract of purchase for the automobile and would lose title to it if payments on it were • not made; (4) that upon purchase of the automobile Garrett received from the automobile dealer an excise tax rebate which Garrett spent for his own use; (5) that Garrett had full and complete use of the vehicle when he desired it and that he could exercise this use without obtaining permission from another party; (6) that Garrett obtained insurance for the car and paid the premiums thereon; (7) that at all times Garrett kept a set of keys to the ear in his possession; and (8) that Garrett refused to allow the sister of the deceased to use the vehicle.

We have examined the record before us carefully and cannot say that the above stated findings by the trial court were unsupported by the evidence presented at trial. Accordingly, we are not persuaded that the trial judge’s determination that David Garrett exercised complete control over the insured automobile was incorrect.

No reversible error having been successfully argued, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . In the case of Indiana Lumbermen’s Mutual Insurance Co. v. Janes, 230 F.2d 500 (5th Cir.1956), the Federal Court of Appeals for the Fifth Circuit held that an insurable interest existed on behalf of the insured in an automobile purchased for the use of the insured’s minor brother. The court based this conclusion on the fact that the insured remained personally liable on the financing notes and sales contract for the automobile; that he had a personal obligation to pay the insurance premiums, and that he retained title and legal ownership of the vehicle. See also Osborne v. Security Insurance Co., 155 Cal.App.2d 201, 318 P.2d 94 (1957); Truck Insurance Exchange v. Hanson, 42 Wash.2d 256, 254 P.2d 494 (1953).


text:
    Daniel L. ROBERTS v. Nell D. ROBERTS.
    Civ. 1316.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1978.

      Dieter J. Schrader, Huntsville, for appellant.
    Nancy S. Gaines, Huntsville, for appellee.
   BRADLEY, Judge.

This appeal is from a final divorce decree. The appellant, Daniel L. -Roberts, petitioned the Circuit Court of Madison County for a divorce from the appellee, Nell D. Roberts on the ground of incompatibility of temperament. Mrs. Roberts filed a counterclaim in which she also sought a divorce on the ground of incompatibility of temperament. Mrs. Roberts’ counterclaim sought alimony from her husband and a division of the couple’s jointly owned property.

After the oral testimony of both Mr. and Mrs. Roberts was presented to the trial court, the court divorced the parties on the ground of incompatibility of temperament apd distributed the couple’s property in the following manner: (1) the family residence, valued at approximately $40,000-$50,000, was awarded to the wife and she was obligated to pay the mortgage indebtedness ($12,600) and ad valorem taxes on this property; (2) a second parcel of property (valued at approximately $30,000) which was jointly owned by the parties was ordered to be sold within six months of the divorce and the proceeds from this sale divided equally between Mr. and Mrs. Roberts; (3) the husband was awarded a 1968 Dodge automobile which he generally drove while the wife received a 1964 Plymouth automobile which she customarily used; (4) six shares of common stock in Computer Science Corporation which was held jointly by the parties was divested from the husband and placed under the sole ownership of the wife; and (5) the wife was awarded most of the household furniture and appliances while the husband received various tools and recreational equipment. In addition to the distribution of property noted above, the court also ordered the husband to make a lump-sum alimony payment in the amount of $2,000. Moreover, he was required to furnish additional alimony payments to the wife in the sum of $300 a month for forty-eight months (or until her death or remarriage). From the trial court’s judgment the husband appeals, contending that the division of the parties’ common estate and the award of alimony was arbitrary and excessive.

The position taken by the husband on appeal is that the trial court erred in its judgment in two respects. First, he argues that the trial court awarded the wife more alimony and property than she asked for in her counterclaim (or testified at trial that she needed). He further asserts that the excessiveness of the award rendered is aptly demonstrated by the fact that the wife contributed to the breakdown of the couple’s marriage. Second, the husband contends that the trial court abused its discretion in awarding alimony to the wife since the evidence at trial demonstrates that the alimony would be used for the educational support of the parties’ adult daughter rather than for the subsistence of the wife.

In respect to the first of the husband’s aforementioned contentions, it is necessary to again recognize the well-established principle that a divorce decree is presumed correct in instances where testimony is taken orally before the trial court. And this presumption is overcome only when the reviewing court determines from an examination of the record before it that the trial court’s decree is unsupported by, or contrary to, the evidence presented at trial.

In the present case the record reveals that Mr. and Mrs. Roberts were married approximately twenty-one years before they were divorced in 1977. They had lived apart, however, since 1975. A daughter was produced as a result of the marital union and she resided with her mother at the time of the divorce. Although she was nineteen when her parents’ marriage was dissolved, the trial transcript indicates that she planned to continue to live with her mother (appellee) until she (the daughter) completed her college education at the University of Alabama at Huntsville.

At the time of the divorce hearing both parties were in their mid-forties and apparently in good health. The wife, however, suffers from low blood sugar or hypoglycemia. This condition is controlled by a special diet.

The wife graduated from Berry College in 1952. She taught school for a time, but upon marrying her husband she left her job as a school teacher and began working for General Electric where he was also employed. The wife worked for approximately a year before she became pregnant with the couple’s daughter and left her employment with General Electric. The wife continued to remain at home and care for the parties’ child throughout most of her marriage to Mr. Roberts. She did, however, work each year as a sales person during the Christmas shopping season. In 1974 Mrs. Roberts obtained a job with a small business college where she taught for several months. In late 1974 she began working for the Office of Education and she was employed with this agency at the time of the divorce.

Mrs.. Roberts earns approximately $9,000 a year from this employment but the continuation of her job with the Office of Education is contingent upon the agency’s renewal of the particular project on which she is working. She is, however, entitled to approximately $800 in Alabama Teacher’s Retirement Benefits.

At one time the wife (Mrs. Roberts) held a Georgia teaching certificate but this certificate has now expired. She does not have a certificate which would enable her to teach in Alabama and any attempt to obtain such a certificate would require that she take additional college courses.

On the other hand, Mr. Roberts holds an undergraduate degree in electronics. As stated earlier, he was working as an electrical engineering assistant for General Electric when he married Mrs. Roberts. In 1963 he left General Electric and became an oceanographer for the United States Civil Service. Three years later he terminated his employment with the government and began working for the Computer Science Corporation in Huntsville. In 1973 he again changed jobs and went to work for Sperry-Rand Corporation. At the time of the parties’ divorce he had left Sperry-Rand and was about to begin employment with Boeing, Inc. in Seattle, Washington. His salary while with Sperry-Rand was approximately $20,500 a year. He was also entitled to receive almost $3,000 in retirement benefits upon termination of his employment with Sperry-Rand. In his new capacity of specialist engineer with Boeing, Inc. he will receive a salary of approximately $21,600 a year. Although Mr. Roberts works primarily as an electrical engineer, he is also qualified to work as an oceanographer and a computer programmer.

The parties enjoyed a moderate standard of living throughout their marriage. This was due in part to the fact that they lived frugally. Testimony at trial indicated that the wife drove a 1964 Plymouth Valiant automobile which had 170,000 miles on it. This car was valued at $200 and frequently required repair. The husband also drove a car which had been driven a substantial number of miles. The 1968 Dodge Charger which he used contained 136,000 miles and was valued at $700. All the appliances (including the television set, the washer, and the refrigerator) which were owned by the parties were over fifteen years old, the sole exception being the couple’s freezer which was five years old. Furthermore, the wife testified that the family residence was in need of substantial repair.

In addition to the family residence, the parties also owned a second parcel of real property. A house was located on this property and the house and lot together produced a rental income of approximately $165 a month. After the parties separated the husband retained most of the rental income to pay for his own housing expenses. Nevertheless, both the rental property and the family residence were owned jointly by Mr. and Mrs. Roberts. The trial court’s decree ordered that the wife meet the mortgage payments on the latter property. The mortgage indebtedness on the couple’s home was approximately $12,600. The court also decreed that the rental property was to be sold and the proceeds from the sale divided equally between the parties.

On appeal, appellant-Daniel Roberts contends that the trial court’s award of alimony and property was excessive in that ap-pellee-Nell Roberts received more than she originally sought.

The counterclaim filed by Mrs. Roberts asked the court to award her both pieces of real estate as “partial lump sum alimony;” her counterclaim also sought a “reasonable sum” as periodic alimony. At trial she testified that she needed approximately $725 a month to maintain herself. Moreover, it is evident from the age and condition of the Valiant automobile and the various household appliances which were awarded to the wife that these items will either have to be repaired or replaced in the near future. In addition, the wife testified that she would have to pay the expense of repairing the house in which she resides.

As both the pleadings and testimony at trial demonstrate, the wife asked for no specific amount of alimony. She did seek periodic alimony and the parties’ jointly owned realty. The trial court awarded her $300 a month in periodic alimony, the family residence, one-half of the proceeds from the sale of the couple’s rental property, some personal property and a $2,000 lump-sum payment of alimony. There is nothing in the record before us which indicates that this award exceeded what the wife was demanding in alimony payments and the division of the couple’s property, both real and personal. Consequently, it cannot be said that the trial court awarded the wife more than she asked for as alimony. Nor are we persuaded that the amount of alimony awarded and the division of the couple’s jointly owned property by the trial court was clearly excessive or arbitrary.

Furthermore, we have examined the record carefully to determine whether the wife’s contribution to the cause of the divorce was such that she is not entitled to the alimony awarded her. We find that it was not.

The divorce was granted on the basis of incompatibility and the actual reasons for the inability of the parties to live together were apparently the husband’s unwillingness to acquiesce to his wife’s demands that he perform more work around the house, that he increase the frequency of their social engagements, and that he spend more time at home with her. In fact, the husband testified that his wife expected him to be “three persons.”

Complaints such as those expressed by the husband in this case are common to many marriages which end in divorce but they do not constitute “misconduct” warranting an abridgment of the wife's claim to an allowance for alimony. See Pope v. Pope, 268 Ala. 513, 109 So.2d 521 (1958); Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856 (1974). Thus we do not believe that the wife’s contribution to the breakdown of the parties’ marriage was such that the trial court palpably abused its discretion in the amount of alimony which it awarded her.

The second and final issue presented for review concerns the husband’s contention that the trial court erred in kwarding alimony to the wife since the evidence taken at trial demonstrates that the monthly alimony payments of the husband would be used for the educational support of the parties’ adult daughter.

There is nothing in the record to support the husband’s contention in regard to this matter. Indeed, his argument is premised on two exchanges which occurred during the divorce hearing. In the first exchange the husband testified that since his wife and he had separated in 1975, he had provided her with $300 a month for the specific purpose of maintaining and educating their then-minor daughter. The second exchange involved the fact that the court overruled an objection made by the counsel for the husband when the wife’s attorney asked Mr. Roberts how frequently he had seen his daughter subsequent to his separation from his wife. The court stated that it would allow an answer on the grounds that such testimony would be relevant to the issue of incompatibility.

On the basis of these two occurrences during the trial the husband argues that the $300 awarded to the wife as monthly alimony was actually a subterfuge used by the court to force the husband to provide his adult daughter with support.

In Godec v. Godec, Ala.Civ.App., 346 So.2d 459 (1977), this court held that periodic alimony is for the wife’s support and maintenance and that an award of such alimony cannot be increased in order to provide an adult child with economic or educational support. However, either the testimony presented at trial or the trial court’s decree must indicate that the amount of alimony awarded was actually for the support of the child rather than for the maintenance of the wife. Godec v. Godec, supra. Moreover, it is an oft stated principle that a party who complains of an error by the trial court must affirmatively demonstrate from the record that an error was indeed committed. Citizens Bank v. Routh, Ala.Civ.App., 351 So.2d 594 (1977). Otherwise the presumption will be' that the decision or award of the trial court is correct. Citizens Bank v. Routh, supra. In the instant case the record does not affirmatively show that in either instance alluded to by the husband that the trial court used the periodic alimony which it awarded to the wife to compel the husband to support his adult child or that the $300 to be received by the wife each month is in reality an educational allowance for the couple’s daughter.

Prom the record before this court we are not persuaded that the trial court palpably abused its discretion or clearly erred in the amount of alimony awarded or the division of property which was made. Therefore, we affirm.

AFFIRMED.

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

      . See Banks v. Banks, Ala.Civ.App., 336 So.2d 1365 (1976).


text:
    Joe O’DONNELL, d/b/a O’Donnell Cleaning Service v. BLACKMON CONSTRUCTION AND REALTY, INC.
    Civ. 1328.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1978.
    J. Huntley Johnson, Dothan, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is an appeal from the District Court of Houston County. The appeal comes directly from the district court to this court. The appeal is taken pursuant to Tit. 12-12-72 and the dispositive issue is whether third party practice pursuant to Rule 14, ARCP, is available in the district court.

We answer in the negative and reverse and remand.

The record reveals the following:

The plaintiff sued the defendant for work and labor done. The defendant, by way of a third party complaint, sued the appellant. The appellant moved the dismissal of the third party complaint. The appellant specifically stated to the trial court that third party practice was not available in the district court. The trial court denied this, motion and thereafter rendered judgment against the appellant and in favor of the plaintiff. Hence, this appeal.

It is clear to this court that third party practice is not available in the district courts of this state. Rule 14, ARCP, is the rule of practice relating to third party practice. Rule 14(dc) states as follows: “Rule 14 does not apply in the district courts.” The committee comments following Rule 14 are as follows:

“The simplicity and the need for an abbreviated practice in the district courts lead to the conclusion that third party practice should not be available. Of course, nothing would preclude a defendant from bringing a separate action against a third party and moving, pursuant to Rule 42(dc), for consolidation for purposes of trial of the two actions.” We agree with the committee comments.

Additionally, we note Rule 7 of ARCP, dealing with pleadings and motions, specifically Rule 7(dc), “. . . references to third party complaint and third party answer are deleted.”; and Rule 41(dc), ARCP, where it is stated, “. . . and the reference to third party claim in Rule 41(c) is deleted.” These sections clearly reveal that third party practice is not intended to apply in the district courts.

The above is dispositive of this appeal. However, we note that in addition to the above, the appellant-third party defendant has questioned the trial court’s action in granting a judgment against third party defendant and in favor of the original plaintiff. Put another way, the appellant contends that the trial court erred in rendering a judgment in favor of plaintiff against the third party defendant when no claim by plaintiff was asserted against the third party defendant. Since we have held that third party practice is not available in the district court, this court need not address itself to this question. However, we would note for interested parties Rule 14(a), ARCP, and 6 Wright & Miller, Federal Practice & Procedure § 1459.

The case is due to be reversed and remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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

      . We would note that this direct appeal from the district court to this court is the first such appeal of this nature since the adoption of the procedure for direct appeal from the district court.


author: CLARK, Supernumerary Circuit Judge.

text:
    Henry Alexander HAMILTON, alias v. STATE.
    1 Div. 788.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   CLARK, Supernumerary Circuit Judge.

Appellant was convicted of burglary in the second degree as charged in an indictment alleging, inter alia, that he, “with intent to steal, broke into and entered the dwelling house of Mike Tinker.” The court sentenced him to imprisonment in the penitentiary for a term of thirteen months, one month more than the minimum punishment provided by Code of Alabama 1940, Re-comp. 1958, Tit. 14, § 86.

The evidence is ample to support a finding that defendant, with intent to steal, broke into and entered two' houses adjacent to each other that were owned by Mike Tinker. The only serious question raised on appeal is whether either was a “dwelling house.”’

According to the evidence for the State, both buildings were broken into and entered by defendant and another about 5:00 . P.M. May 16, 1976, and plundered of valuable contents. One was a 20 X 20 ft. concrete block building, the other a 16 X 16 ft. • wooden building. Neither building was occupied at the time of the burglary. They were located on a lot fronting on Highway 98 at Wilmer, Mobile County, Alabama.

Mr. Tinker, the owner of the buildings and the lot upon which they were located, was in Texas at the time of the burglary. About sixteen years before the burglary he had built a concrete block house and had had the wooden house, as well as an outhouse, moved onto the lot. During this sixteen-year period he had worked as a mailman in Texas, but looked forward to his retirement and residence during retirement at Wilmer. Each of the houses had a bed in it. During the sixteen years he worked in Texas, Mr. Tinker would return periodically to Mobile County and would usually stay in one of the buildings and sleep there. On cross-examination, he testified:

“Q Mr. Tinker, you said ‘garage.’ And then you said that is your dwelling house. When did this become your dwelling house? Didn’t it become your dwelling house when you moved back to Wilmer from Texas in the summer of 1976? Isn’t that when you slept in the block building?
“A I slept in there before that.
“Q When did you sleep in the block building?
“A Well, when it was made.
“Q Sixteen years ago?
“A Yes.
“Q And then you slept in it again when you moved back to Wilmer from Texas?
“A No. Periodically I would sleep in there and out in the shed, too.
“Q Is there a bed there?
“A Yes.
“Q When was the last time you had slept in the , building prior to the summer of 1976?
“A Well, I was sleeping in there after it was made and periodically.
“Q When was the last time you slept in the block building prior to the summer of 1976?'
“A After the building was built and sometimes after that.
“Q All right. You say you hadn’t been back in this building in almost two years, is that correct? Sometime in 1974; you came back to Wilmer, is that correct? And then you came again in the summer of 1976.
“A It was October that I was here in ’74.
“Q O.K. So we are talking about a year and a half, then. You hadn’t been there in a year and a half. When was the last time prior to that year and a half that you slept in the building?
“A When the building was built, I slept in it, and then several times after that.
“Q Did you sleep in the building each night?
“A No, not each night.
“Q Where did you stay the other nights?
“A Well, sometimes in the shed.
“Q Which one is the shed? Now, we’ve got block, wood and outhouse.
“A Wood.
“Q All right. Is there a bed in the wood house?
“A Yes.”

Although the evidence is rather vague and weak as to the number of times Mr. Tinker had used either house as a “dwelling house” during the sixteen years he worked in Texas, the evidence is practically conclusive to the effect that he constructed the block house to be used by him in the future as a garage, to which he planned to build a larger house in which to live, but that he considered the concrete block house and the wooden house as his home, his dwelling, when on a large number of occasions he returned to Mobile County from Texas. There was no plumbing in either house, but there was electric current, and the contents of the block house included a stove, two refrigerators and “a lot of clothes.” The following is a part of his testimony:

“Q Had all this stuff been in there quite some time? A number of years perhaps?
“A Well, not all at one time. Every-time, I came on vacation, I was planning to, when I retired that I would have the materials handy to build another house, or something like that.
“Q This was going to be the garage portion of your house?
“A Yes. I was using it as a house, like my father would do. He would always build a garage first, we would live in it, and then when he had the time and money, he’d build a house.”

The wooden building is referred to at times in the evidence as a “shed,” but, according to the evidence as a whole, it is clear that it was fully inclosed prior to its entry, that immediately thereafter it was found that “the door on the wood building had been knocked halfway down, it was just dangling on one hinge at that time.”

We do not find any reported case in Alabama with sufficient likeness to the facts in this case to enable us to conclude the question by citation of such case without comment, but we are greatly aided by what has been held and stated in Reeves v. State, 245 Ala. 237, 16 So.2d 699 (1943) and Moore v. State, 35 Ala.App. 95, 44 So.2d 262 (1950).

In Reeves, it is stated:

“. . . The dictionary definition of a ‘dwelling’ per se is a ‘habitation.’ Webster’s Unabridged Dictionary. ‘Dwell’ as a verb means to abide, to abide as a permanent resident, etc. So the word ‘dwelling house’ within itself imports a habitation or house where people dwell as a place of residence, although they may be temporarily absent. So it seems to us by inserting the word ‘uninhabited’ as opposed to ‘inhabited’ dwelling under § 85, the lawmakers had in mind a dwelling house not occupied by anyone at the time of the burglary. The expression ‘uninhabited dwelling’ is sui juris [sic] and should be given some meaning not covered by the term ‘dwelling’ itself. The idea that an uninhabited dwelling house means a vacant house not occupied at all as a place of residence is to extend the crime of burglary to vacant buildings merely because they may have been constructed for residence purposes or formerly occupied, but now vacant, a notion entirely out of keeping with the entire spirit and purpose of our statutes on burglary. Wilful injury to buildings is penalized as malicious injury. Code, Title 14, § 80.” 245 Ala. at 240, 16 So.2d at 702.
In Moore v. State, supra, the court said:
“Generally speaking, a dwelling house is a house which is occupied as a residence, as distinguished from a store, office, warehouse, shop, etc. Within the contemplation of the burglary statute it is said to be ‘uninhabited’ if the occupants have closed the dwelling and have gone away for a time, with the intent and purpose of returning and again residing therein.
“The duration of the absence is not controlling. It is the animo revertendi which fixes the status in this particular. Olds v. State, 19 Ala.App. 162, 95 So. 780; Schwabacher v. People, 165 Ill. 618, 46 N.E. 809, 812.”

We cannot say that the status of either house as a dwelling was lost by Mr. Tinker’s failure to live there for a period of a year and a half prior to the burglary. No definite period of time, however long, is the criterion. The intention to return or not to return is determinative. Nor can we say that the fact that the houses were used largely for storage purposes deprives either of them of its status as a dwelling. The fact that they were so used emphasizes Mr. Tinker’s nostalgia and the constancy of his desire to return .to the salubrious shores of Mobile Bay to spend his retirement years. We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable LEIGH M. CLARK, a retired Circuit Judge, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Henry Alexander HAMILTON.
    No. 77-133.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   MADDOX, Justice.

WRIT DENIED.

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