author: SHORES, Justice.

text:
    Earley C. MACON et al. v. ALABAMA MINERAL LAND COMPANY.
    SC 1245.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Rehearing Denied Feb. 27, 1976.
    Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Wallace, Ellis, Head & Fowler, Harrison & Conwill, Columbiana, for appellee.
   SHORES, Justice.

Mrs. Leola Brasher and her son, Clarence Brasher, filed a hill to quiet title to 40 acres of land in Shelby County, Alabama, and also sought to have a deed, executed by the Brashers in 1968 conveying 35 acres of the same property to Alabama Mineral Company, set aside on grounds that it was procured by fraud, or that there was no consideration for the same.

The complaint alleges that the Brashers have claimed title to the property by adverse possession since 1935.

The complaint was filed in March, 1973. The Macons, who had acquired the interest in the property claimed by the Brashers in June, 1972, were permitted to intervene after the court discovered that they claimed such interest. The interest claimed by Alabama Mineral Land Company was acquired by R. Hugh Daniel, Jr. and Charles W. Daniel in August of 1972. They, too, became intervenors.

After hearing the evidence, the trial judge entered a decree finding the 1968 deed valid and that title to the 35 acres was in the Daniels. From this judgment the Macons appealed.

Record title to the property has been in Alabama Mineral Land Company and its predecessors in title for many decades. Alabama Mineral Land Company has paid taxes on the property for many years. The Brashers have lived on the property since 1935; and, in 1951, assessed the property in their names and paid back taxes on the property for the years 1947 to 1951, and continued to pay the taxes through 1971.

It was the contention of Alabama Mineral Land Company, which owned several thousand acres of land, of which this 40 acres was a part, that Mr. and Mrs. Brasher had lived on the property with the permission of the owner. In 1968, Mr. and Mrs. Brasher executed a deed to Alabama Mineral Land Company for 35 of these acres; and the company executed a deed to them conveying five acres off of one side of the 40-acre tract on which the Brashers had built a house many years before.

If the evidence supports the trial court’s finding that the deed from the Brashers to Alabama Mineral Land Company of the 35 acres was valid, there is no necessity to treat the question of whether the Brashers had acquired title to the property by adverse possession.

Mr. Karl Harrison, an attorney who represented Alabama Mineral Land Company at the time of the exchange of deeds between Alabama Mineral Land Company and the Brashers, testified that an agent and employee of the company explained to him that there had been some problem with the Brashers which came to light when the company discovered that the Brashers had been paying taxes on the property. This agent worked out an agreement with the Brashers whereby it was agreed that the Brashers would convey 35 acres of the 40 to Alabama Land Mineral Company in exchange for a refund of the taxes they had paid on the 40 acres; and further, in exchange for a warranty deed conveying to them five acres of the land upon which their house was situated. Mr. Harrison prepared the deeds and went with Alabama Mineral’s agent to the Brashers and explained what the documents were. The deed to them conveying the five acres was delivered by Mr. Harrison. The Brashers executed the deed to Alabama Mineral Land Company and were given a check drawn by Alabama Mineral to them reimbursing the amount of taxes paid by the Brashers.

The Macons, successors in title to the interest claimed by the Brashers, contend that the deed conveying the 35 acres signed by the Brashers was not based upon consideration and was procured by fraud. Mrs. Brasher testified that she did not remember signing the deed. Neither she nor Mr. Brasher could write, and the deed was executed by them by mark. Mr. Harrison testified that it was signed in his presence after he explained to them what the deed was and what the entire transaction meant. His testimony was that both of them knew what was involved, they appeared to be in good health, and appeared to understand and agreed to this transaction. It was his testimony that he told Mr. and Mrs. Brasher that they did not have a deed to the land; that it was Alabama Mineral’s contention that they were occupying the land permissively, but that Alabama Mineral was willing to reimburse the taxes they had paid (some $120.00) and, in addition, convey to them five acres of the land upon which their house was situated.

Although Mrs. Brasher testified that she had no recollection of signing the deed and did not identify her mark, her daughter-in-law testified that she learned from Mrs. Brasher that the transaction had taken place. Mr. Brasher was dead when the hearing was had and, hence, was unable to testify.

Mr. Oden, Chairman of the Board of Alabama Land Mineral Company, testified that Mr. Brasher had worked for a predecessor corporation which had owned the land in question before it was acquired by his company; that his father and another man owned this land through this corporation; and that Mr. Brasher had worked for that corporation. During the depression, he had no place to live and was given permission to build the house on the land. There was testimony that, when the company was cutting logs in the area, they left enough logs for Mr. Brasher to build his house. He, his wife and son lived on the property from 1935 until shortly before this suit was filed. When it was discovered that the Brashers had been paying taxes on it, the company worked out an agreement with the Brashers to repay them the taxes they had paid and, in addition, deed them 5 acres. The Brashers agreed to this arrangement and signed the deed to the company conveying the 35 acres and were given a warranty deed by the company to the five acres. The taxes were reimbursed and the Brashers cashed the check.

Mrs. Brasher, on one of the hearings in this case, testified that she and her husband were given permission to build their house on this property; but, at a different hearing, she testified that she did not remember signing any deed to the 35 acres. She testified that she remembered Mr. Harrison and an agent of Alabama Mineral coming to their house and talking about the Brashers making a deed to the company to 35 acres, and the company would make a deed to them of five acres. She remembered that her husband was told that the company would reimburse them for the taxes they had paid on the property. She remembered that the company did repay them for the taxes. She also remembered that Mr. Harrison and the agent of the company came to their house and had a deed for them to sign. She said that her husband handled the transaction, but she remembered it. She testified.that she did not remember whether or not she signed the deed.

Mrs. Brasher did say that her husband told her that if they ever decided to sell the 5 acres that they should give Mr. Oden the first chance to buy it, because he had been so nice to them. She also said that when she decided to sell it after her husband’s death that she did call Mr. Oden and offer him the first chance to buy the 5 acres.

It was uncontradicted that the deed from Alabama Mineral to the Brashers conveying the 5 acres was delivered simultaneously with the deed from them conveying to Alabama Mineral the 35 acres. No claim is made that the deed from Alabama Mineral is defective for failure of consideration. Yet, all it got in exchange for the deed was the exchange deed from the Brashers.

As we read the evidence in this case, we are in agreement with the trial court that the Brashers and Macons have failed in their burden to prove that the deed conveying 35 acres to Alabama Mineral Land Company was procured by fraud or was not based upon consideration. Nor do we find any evidence to support the charge that Mr. and Mrs. Brasher were not aware of what they were doing when they signed the deed.

There is abundant evidence to support the trial court’s finding that the deed was valid and that the Macons failed to prove that it was procured by fraud. Ordinarily, fraud is never presumed and the burden is on the party asserting fraud to prove it. Morrison v. Federal Land Bank of New Orleans, 232 Ala. 138, 167 So. 288 (1936). It is also well-settled that fraud will not be implied when the circumstances from which it is supposed to arise may reasonably be consistent with honest intention. McNulty v. Higginbotham, 252 Ala. 218, 40 So.2d 414 (1949).

In the instant case, there is evidence from which the trial court could have concluded that the transaction between the Brashers and Alabama Mineral was not tainted by fraud. In fact, after reading the record, we are struck with the dearth of evidence to the contrary. We agree with the result reached by the trial judge on this issue; and there being sufficient evidence to support his finding, it will not be disturbed here. See cases collated at 2A Ala.Dig., Appeal and Error, ©^lOOS.-1(6).

Since we are in agreement with the trial court that the evidence fails to support the claim made by appellants that the deed should be set aside, we see nothing to be gained by going into all of the evidence on the claim of title by adverse possession. Even if the evidence support the appellants’ claim that the Brashers had acquired title to this property by adverse possession, and we do not concede that it does, rather there was abundant evidence to indicate that their possession was permissive the entire period, the fact that they deeded their interest in the property to Alabama Mineral in 1968 by a valid deed vitiates any necessity to prolong this opinion by going into the evidence pro and con on the issue of adverse possession.

Finding the judgment of the trial court fully supported by the evidence, the same is affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    W. Douglas CRAWLEY v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., a corp., et al.
    SC 1333.
    Supreme Court of Alabama.
    Jan. 29, 1976.

      Cervera & Folmar, and John B. Craw-ley, Troy, for appellant.
    Brantley & Calhoun, Troy, for appellees.
   SHORES, Justice.

This case began with a complaint to reach and apply the proceeds of an automobile liability policy to the satisfaction of a judgment against Willie Lee Ballard. The trial court found that Ballard was not an insured since his use of the vehicle was not with the express permission of the named insured and rendered a judgment for the defendants. From this ruling the plaintiff appeals.

On April 15, 1969, Mr. Willie Lee Ballard, an independent trucker, was making a delivery to Home Farm Supply Company in Troy, Alabama. While his truck was being unloaded, Mr. Ballard asked Mr. James L. Smith if he could borrow a pickup truck for the purpose of going to another city to acquire a replacement part for his truck. The record reveals a conflict in testimony as to what city Mr. Ballard said was his destination, but Mr. Smith gave him permission to use the truck. While using the truck, Mr. Ballard was involved in an accident in which the appellant’s minor son was killed. On April 3, 1973, a default judgment was rendered against Ballard.

Mr. Smith is a partner in Home Farm Supply Company and manager for the partnership. The pick-up truck in question is owned by another partner, Mr. H. F. McCroskey. Under an arrangement between Mr. McCroskey and the partnership, the partnership used the truck in exchange for paying the operational expenses — maintenance, gasoline, oil, and insurance. Mr. H. F. McCroskey was the named insured.

The policy contains the following definition :

“Insured — under Coverages A, B, C, and C-l, the unqualified word ‘insured’ includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the automobile, provided the actual use of the automobile is with the express permission of the named insured, and (4) under Coverages A and B any person or organization legally responsible for the use thereof by an insured as defined under the three subsections above.” (Emphasis added)

Appellant contends that every general partner is an agent for the partnership in transacting business and therefore Mr. Smith was authorized to permit Mr. Ballard to use the truck; that Mr. Smith had a least ostensible or apparent authority to allow Mr. Ballard to use the truck; and that the policy should be reformed with regard to “named insured” to conform to the real agreement of the parties.

Alabama Farm Bureau contends that the case of Alabama Farm Bureau Mutual Casualty Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So.2d 664 (1970), is controlling as it involved an identical policy.

The appellant correctly contends that “permission” as used in an omnibus clause may be express or implied and that implied permission may be inferred from the facts and circumstances of the case. Harrison v. Densmore, 279 Ala. 190, 183 So.2d 787 (1966). But more than just “permission” is required by the clause in the instant policy — “express permission” is necessary. In Alabama Farm Bureau Mutual Casualty Ins. Co. v. Government Employees Ins. Co., supra, this court had before it the identical clause. There, the daughter of the named insured gave her permission to the driver to operate the automobile. On finding no coverage, this court said:

“The words, ‘express permission,’ are clear and unambiguous. The burden was on the driver to establish that he was driving with ‘express permission’ of the named insured. The driver failed to carry that burden and is not entitled to have Farm Bureau defend him or pay any judgment which may be recovered against him . . . ” (286 Ala. at 420, 240 So.2d at 670)

Our cases have been consistent in making a distinction between policy provisions which require the “permission” of the insured and those which require the “express permission” of the named insured. In Royal Indemnity Company v. Pearson, 287 Ala. 1, 8, 246 So.2d 652, 658 (1971), this court, speaking through Justice Lawson, said:

“Where, as here, only ‘permission’ is required in the onmibus clause, we have followed the general rule to the effect that ‘permission’ is sufficient to provide coverage to the user if the facts justify a finding that either express or implied permission has been granted by the named insured.—Alabama Farm Bureau Mut. Cos. Ins. Co. v. Robinson, 269 Ala. 346, 113 So.2d 140; Harrison v. Densmore, 279 Ala. 190, 183 So.2d 787; American Mutual Liability Ins. Co. v. Milwaukee Ins. Co. of Milwaukee, 283 Ala. 414, 218 So.2d 129; Pettis v. State Farm Mut. Auto. Ins. Co., 286 Ala. 344, 239 So.2d 772. But where the words ‘express permission’ are used in the omnibus clause, the burden is on the user to establish that he was driving with the express permission of the named insured.—Alabama Farm Bureau Mut. Cas. Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So.2d 664; Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mattison, 286 Ala. 541, 243 So.2d 490.”

This case was tried to a judge without a jury. The court entered judgment for the defendant stating:

“There is no evidence that McCroskey, the named insured, gave direct or distinct [express] permission to Ballard for him to drive the 1967 Ford one-half ton truck on April 15, 1969. The evidence is clear that Smith gave his direct permission to Ballard to operate the truck, but he is not the named insured and his express permission is not the express permission of the named insured which the policy requires.”

The result reached by the trial court is consistent with our cases. Had the named insured been the partnership, clearly the permission of Mr. Smith would have been the express permission of the named insured. However, such is not the case; and, therefore, the express permission of Mr. McCroskey is required to extend coverage to Ballard.

The judgment appealed from is affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, FAULKNER and JONES, J J., concur.

      . Further, we leave open the question whether the same result would obtain had the evidence shown that the insurer had knowledge that the vehicle was primarily used in the partnership business.


text:
    ASSOCIATED SURGEONS, P.A., an unincorporated Association v. John L. WATWOOD.
    SC 1416.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    Tom Radney, Alexander City, for appellant.
    John F. Dillon, IV, Alexander City, for appellee.
   SHORES, Justice.

Associated Surgeons, P.A., filed suit against the defendant, a medical doctor, for breach of contract claiming $20,000 as liquidated damages pursuant to the contract. The trial court granted defendant’s motion to dismiss on two grounds: (1) The contract sued on expired, by its terms, before the alleged breach; and, (2) the provision providing for the payment of .$20,000 liquidated damages is “. . . a restraint of the exercise of the medical profession and is therefore void and unenforceable.” The plaintiff appealed.

The plaintiff and defendant entered into a written employment agreement on December 10, 1973. The term of employment was for a twelve-month period ending December 9, 1974. The contract provided, inter alia, that in the event the defendant terminated the agreement and entered into the practice of medicine and surgery within Tallapoosa County within twelve months of such termination, he was to pay to the Association $20,000 in liquidated damages. On April 1, 1975, the defendant terminated the contract and began the practice of medicine in Alexander City in an office adjacent to that of the plaintiff’s offices.

On appeal, the plaintiff argues that a second-year agreement was entered into pursuant to the terms of the contract — that the original contract was intended to be a year-to-year agreement; that the provision for liquidated damages is not a restraint of the exercise of the medical profession but is merely a means of compensating the plaintiff for a benefit conferred upon the defendant; that the cases relied on by the court on this point do not involve liquidated damages; that a medical doctor has a legal and proper interest to protect the group of patients he has amassed by skillful and hard work; and that a provision for liquidated damages is valid if it bears some reasonable relationship to the actual loss.

The defendant denies that a second-year arrangement was entered into and says the record is devoid of any such allegation; and that by statutory prohibition and judicial construction, a contract by which anyone is restrained from exercising a lawful profession is void in Alabama and that the provision in question constitutes such a restraint.

If the contractual provision does constitute an unlawful restraint of a profession, the defendant’s motion to dismiss was properly granted.

Title 9, § 22, Code of Alabama 1940, provides:

“Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent, void.”

The two sections referred to (§§ 23 and 24) provide exceptions which, admittedly, are not applicable here.

The contract provides:

“7. TERMINATION
“C. Watwood may terminate this Agreement at any time upon (30) days written notice to the Association and the Association shall be obligated in that event to pay to Watwood his compensation up to the date of termination only. In the event Watwood shall terminate this Agreement and enter into the practice of medicine and surgery within Tal-lapoosa County within twelve (12) months following such termination of employment with the Association, he shall pay to the Association, as liquidated damages, Twenty Thousand and No/100 ($20,000) Dollars. It is agreed by the parties that Watwood is receiving direct benefit and goodwill from the reputation and goodwill previously developed by the Association and its other physicians and surgeon and that such termination and entry into practice in Tallapoosa County subsequent to the practice of medicine with the Association would cause irreparable damage to the Association.”

The plaintiff concedes that contracts restraining the practice of a profession are void under Title 9, § 22, supra. However, it argues that cases so holding, Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970), and Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968), are distinguishable from this case. It says, in brief:

“. . . this contract provision is not a restraint of the exercise of the medical profession but it is simply a means of compensation for the benefit received by the Defendant by his having been associated with the Plaintiff in the practice of medicine. ...”

There is universal agreement that the law looks with disfavor upon contracts which restrain employment. Hill v. Rice, 259 Ala. 587, 593, 67 So.2d 789 (1953).

We are convinced that a contract which requires the payment of damages in the event one of the contracting parties competes with the other is a contract “by which . . . one is restrained from exercising a lawful profession . . .” within the meaning of § 22, supra. Professor Williston finds that . . Any bargain or contract which purports to limit in any way the right of either party to work or to do business . . . may be called a bargain or contract in restraint of trade.” 14 Williston on Contracts, § 1633 ‘(3d ed. 1972).

The fact that the contract provision is couched in terms of liquidated damages rather than in negative form is not significant. "... This is clearly a restraint of a substantial character and the form in which it is cast does not make it less a restraint. . . .” Chamberlain v. Augustine, 172 Cal. 285, 288, 156 P. 479, 480 (1916).

In Chamberlain v. Augustine, supra, the contract provided for the payment of $5,000 as liquidated damages in the event the contracting party went into the same business as the other party to the agreement. In construing its statute on restraint of a trade or profession, which incidentally is identical to our own, the California Court said:

“It will be observed that defendant Augustine’s covenant with respect to liquidated damages is not expressly cast in negative form, and because of this it is insisted by appellant that it is not a contract restraining Augustine from exercising a lawful business, but is merely an agreement that if he did engage in such business he would pay the sum of $5,000 [five thousand dollars] as liquidated damages, and that the contract does not, therefore, violate the Code provision. In form, the agreement is as appellant claims. But none the less it is a contract which operates to restrain Augustine from carrying on the business mentioned. It imposes upon him a liability in the sum of $5,000 [five thousand dollars] if he does engage in such business. If the contract is valid, he is not as free to do so as he would have been if he were not bound by it. To the extent that the necessity of paying $5,000 [five thousand dollars] deters him from engaging therein, he would be restrained. This is clearly a restraint of a substantial character and the form in which it is cast does not make it less a restraint. . . . The covenant in question clearly operates to restrain the defendant from ‘exercising a lawful profession, trade, or business’ [the language of the California and Alabama statutes] and as it does not fall within the exceptions given in section 1673, it is, therefore, void.” (172 Cal. at 288,156 P. at 480)

We find the reasoning of the California Court compelling. In the instant case, too, the language of the contract has been framed in positive rather than negative terms. However this appears to us to be a matter of form rather than substance; the purpose of the provision is to penalize the defendant if he terminates his employment with the plaintiff and engages in the practice of medicine in Tallapoosa County within twelve months thereafter. In effect, it requires him to forfeit $20,000 in order to pursue the practice of medicine in that county within that period of time. It is a restraint on the exercise of a lawful profession in violation of Title 9, § 22, supra, and is therefore void.

The judgment appealed from is affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: ALMON, Justice.

text:
    Howard W. STREET, as Administrator of the Estate of Sam W. Street v. W. O. HILBURN et al.
    SC 1347.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    Denaburg, Schoel, Meyerson & Ogle and Ben L. Zarzaur, Birmingham, for appellant.
    Levine & Levine, Birmingham, for ap-pellee.
   ALMON, Justice.

The appellant, Howard W. Street, as administrator of the estate of Sam W. Street, deceased, brought this action against appel-lees, Mr. and Mrs. W. O. Hilburn, for the return of certain monies which were withdrawn by Mrs. Hilburn from joint bank accounts with right of survivorship with the deceased. The withdrawals occurred after the death of Sam W. Street.

The deceased lived in the home of the appellees from February, 1971, until he died intestate on October 15, 1974. He was survived by a son and daughter; his wife, Mary C. Street, having died in May, 1971.

Prior to 1971 the deceased maintained three bank accounts at Birmingham Federal Savings and Loan Association. Two of these accounts were in the joint names of the deceased and his wife. The other was in the name of the deceased, his wife, and appellee, Mrs. Hilburn.

These three accounts were, during 1970 and 1971, transferred to three new accounts at Birmingham Federal Savings and Loan Association as follows:

1. The deceased on May 20, 1970, opened account No. SHC-488 with an initial deposit of $16,000.00. This account was in the joint names of the deceased, his wife, and Mrs. Hilburn.

2. The deceased on or about July 12, 1971, opened account No. 28033. This account was in the joint names of the deceased and Mrs. Hilburn.

3. The deceased, on or about July 27, 1971, opened account No. 4-1236. This account was in the joint names of the deceased and Mrs. Hilburn.

All the money deposited belonged to the deceased. Approximately three days after his death, Mrs. Hilburn withdrew all the money from the three accounts listed above, a total of $31,053.68.

The complaint alleged that the appellees had by diverse methods wrongfully obtained the funds from the estate. The trial court, after hearing evidence without a jury, awarded the monies in dispute to the appellees.

Appellant argues that the deceased never intended to make a gift of any of the monies in question. He asserts that the law of gifts is here applicable, that the elements of an inter vivos gift were not shown, and that the monies properly belong to the estate of the deceased.

Appellant relies very heavily on First National Bank of Birmingham v. Hammel, 252 Ala. 624, 42 So.2d 459, where the bank brought suit against Mr. and Mrs. Hammel to set aside the transfer of a joint savings account carried in the names of Mr. and Mrs. Hammel to the sole account of Mrs. Hammel as a fraud on the creditors of Mr. Hammel. It is true that the Hammel case was decided on the law of gifts. But here we have a different situation in that one of the parties is deceased and we must consider the effect of Tit. 5, § 255(4), Code of Alabama 1940, Recompiled 1958, which reads as follows:

“When a deposit has been made, or shall hereafter be made, in any savings and loan association in this state in the names of two persons, payable to either of such persons, or payable to the survivor of them, the said deposit shall, upon the death of either of said persons, become the property of and be paid in accordance with its terms to the survivor, irrespective of whether or not the funds deposited where [sic] the property of only one of said persons, and irrespective of whether or not at the time of the making of such deposit there was any intention on the part of the persons making such deposit to vest the other with a present interest therein, and irrespective of whether or not only one of said persons, during their joint lives, had the right to withdraw such deposit, and irrespective of whether or not there was any delivery of any account book or savings account book by the person making such deposit to the other of such persons. This section will also apply where a deposit is made in the names of more than two persons where there is a provision for survivorship. Nothing in this section shall be construed to prohibit the person making such deposits from withdrawing or collecting the same during his lifetime, nor shall the fact that such person had the right to withdraw or collect said deposit during his lifetime operate to defeat the rights herein provided for the person, or persons, surviving such depositor.”

So far as we have been able to ascertain this is a case of first impression. This subject is dealt with in 43 A.L.R.3d 971, particularly under the following sections: 8. Bank protection statutes, 9. Joint tenancy statutes, and 10. Statutes expressly establishing presumption of ownership in survivor.

The Supreme Court of New Hampshire in dealing with a statute similar to our own held in In re Wszolek Estate, 112 N.H. 310, 295 A.2d 444 (1972) that:

“This statute, and similar ones in other States, have been classified as ‘special statutes’ that specifically allow the donee to take the balance remaining in the account by precluding any investigation of the donor’s intent after the donor’s death. 60 Mich.L.Rev. 972, 990 (1962); 41 Calif.L.Rev. 596, 608-12 (1953). In other words, such a statute establishes property rights in the survivor authorizing the payment of the balance to him without a showing of the donative intent on the part of the party furnishing the funds, or delivery of the passbook or ¿ccess thereto. 26 U.Chi.L. Rev. 376, 380-89 (1959). It was intended ‘to put at rest the uncertain results attendant on litigation predicated on the theory of gifts.’ Parenteau v. Gaillardetz, 103 N.H. 92, 95, 166 A.2d 112, 114 (1960). It has relieved the surviving joint tenant of the burden of establishing a gift inter vivos. Brennan v. Timmins, 104 N.H. 384, 389, 187 A.2d 793, 797 (1963).”

In Ward v. Marine Nat’l Bank, 38 N.J. 132, 183 A.2d 60 (1962), the New Jersey Supreme Court observed that:

“ . . . although the statute is couched in terms of a presumption, the true legislative intent was to make a new rule of substantive law, we reject the attack on the constitutionality of the latter statute and hold that it represents a valid exercise of the legislative power to alter both the common law requirements of gifts and the Statute of Wills. Nor are we alone in this view for other states have held similar statutes governing these accounts constitutional. See Hill v. Badeljy, 107 Cal.App. 598, 290 P. 637 (D.Ct.App.1930); Heiner v. Greenwich Savings Bank, 118 Misc. 326, 193 N.Y.S. 291 (Sup.Ct.1922). Quite clearly, the statute here involved gives both parties to the account a present right of survivorship.”

We conclude that our statute is clear in its meaning and intent that the survivor of a joint bank account is entitled to the proceeds. The trial judge ruled correctly.

The judgment in this cause is hereby affirmed.

Affirmed.

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


text:
    OLD SOUTHERN LIFE INSURANCE COMPANY v. Ocie T. WOODALL.
    SC 1248.
    Supreme Court of Alabama.
    Jan. 22, 1976.

      Jack G. Bonner, Montgomery, Phillips & Funderburk, Phenix City, for appellant.
    C. Neal Pope, Phenix City, for appellee.
    Spain, Gillon, Riley, Tate & Etheredge, Ollie L. Blan, Jr., Samuel H. Frazier, Birmingham, and Smith & Smith, Phenix City, for Liberty Nat. Life Ins. Co., Southern Life & Health Ins. Co. and Life Ins. Co. of Ala., amici curiae; Robert H. Neill, Birmingham, for Liberty Nat. Life Ins. Co., amici curiae.
   SHORES, Justice.

In October, 1972, an agent of Old Southern Life Insurance Company went to the home of Mr. and Mrs. Ocie T. Woodall for the purpose of selling a hospital insurance policy to them. After some discussion, they agreed to buy the insurance offered by Old Southern and paid the first quarterly premium at that time. Thereafter, on November 1, 1972, the policy was issued covering both Mr. and Mrs. Wood-all.

The policy contained the following limitations or exclusions from liability by Old Southern:

“SPECIFIED WAITING PERIODS
“Any loss resulting from tuberculosis, any disease or disorder of the heart or circulatory system, hernia, cancer, disease or disorder of the gall bladder, disease or disorder of the urinary system shall be covered only if such disease, disorder, or sickness originates (becomes manifest by the symptoms usually associated therewith) and begins after the effective date and loss occurs no less than six (6) months after the effective date of this policy.”

On the 27th day of May, 1973, Mrs. Woodall became ill and was ordered confined by her physician in Cobb Memorial Hospital in Phenix City, Alabama, for treatment. Mrs. Woodall’s condition was diagnosed by her physician as pleural effusion; and she received treatment for said condition while confined in the said hospital. Mrs. Woodall’s period of confinement and treatment for this condition extended from May 27 until June 16, 1973, at which time she was discharged. The charge for the services rendered by the hospital for the confinement was $1,157.95.

Subsequent to Mrs. Woodall’s release from the hospital, Mr. Woodall filed a claim with Old Southern claiming all sums due under the terms of the contract. On July 26, 1973, Old Southern denied the claim of Mr. and Mrs. Woodall and stated the reason as follows:

“ ‘The policy which you carry with this company provides under the LIMITATIONS AND EXCLUSIONS that no Liability for certain conditions are covered unless the cause thereof originates at least six (6) months from the effective date of the policy. Since the condition that caused your hospital confinement is excluded for six (6) months, no liability could be accepted on this claim.’ ”

Subsequently, on the 30th day of June, 1973, Mrs. Woodall again became ill and was confined by her physician a second time in Cobb Memorial Hospital in Phenix City, Alabama, for treatment. Mrs. Woodall’s condition was diagnosed on this occasion as pneumonia of the left lung; and she was treated for this condition during her hospital confinement. Her period of confinement and treatment on this occasion extended from June 30 until July 10, 1973, at which time she was discharged. The charge for the services rendered by the hospital for this confinement was $954.25.

Subsequent to Mrs. Woodall’s release from the hospital on July 10, 1973, Mr. Woodall again filed a claim with Old Southern claiming all sums due under the terms of the contract for Mrs. Woodall’s June 30th to July 10th confinement.

On September 11, 1973, Old Southern denied this claim and stated the reason as follows:

“ ‘ . . . no liability could be accepted on this claim since it is a continuation of her May 27 hospital confinement. The condition causing this confinement is not covered unless it develops at least six months after the effective date of the policy. Since this condition was present prior to the policy becoming six months old, our only alternative is to withhold liability . . . ’”

Mrs. Woodall died sometime after the second claim was denied. Thereafter, Mr. Woodall filed the lawsuit in this case claiming damages from Old Southern on three theories: (1) Fraud and deceit in inducing him to purchase the insurance policy; (2) false representations in inducing him to continue the contract in force and effect; and (3) willfully and corruptly denying its liability under the contract.

The case was submitted to the jury on all three claims; and it returned a general verdict in favor of the plaintiff in the amount of $45,000. This appeal is from the judgment rendered on this verdict.

The first argument advanced by-appellant is that if a tort has been committed, the injured party is Mrs. Woodall and that such cause of action does not survive her death. It is not disputed that causes of action sounding in tort do not survive the death of the injured party. Title 7, § 150, Code of Alabama 1940. However, it is conceded in this case that Mr. Woodall paid the premiums for the coverage offered under the policy. He and his wife were coinsured thereunder. The record affirmatively establishes that Mr. Woodall contracted with Old Southern for coverage on his wife as well as himself. It was undisputed that he paid the initial premium, and all subsequent premiums. It was Mr. Woodall who paid premiums on the policy after the claims were denied. In fact, the letters from Old Southern denying the claims for Mrs. Woodall’s hospital confinement were addressed to Mr. Woodall. There is every indication that the company dealt exclusively with Mr. Woodall as if he were the sole contracting party. If there was fraud involved on the part of Old Southern, we think it is clear that Mr. Woodall was a victim of that fraud.

Old Southern contends that no claim upon which relief may be granted sounding in tort has been stated. It argues that at most Mr. Woodall has an action for breach of contract. We will address our remarks on this argument to each claim separately.

The first claim asserted, that Old Southern fraudulently and falsely represented to Mr. Woodall that claims under the policy would be paid, knowing that such statements were false, constitutes, under our cases, a claim upon which relief may be granted. Undeniably, when one issues a policy of insurance, and accepts the premium therefor, there is an implied, if not express, promise to perform the act, i. e., honor valid claims made thereunder. If such promise is made with a present intent not to perform, this amounts to a fraudulent misrepresentation. In Walker v. Woodall, 288 Ala. 510, 513, 262 So.2d 756, 759 (1972), the following appears:

“In order for a promise to constitute a fraudulent representation it is necessary that it have been made with the intent not to perform the act. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314; Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So.2d 23.
“Intent is an act or emotion of the mind seldom, if ever, capable of direct proof, but is determined by such just and reasonable deductions from the acts and facts presented as the guarded judgment of a reasonably prudent and cautious man would draw therefrom. Hagerty v. Hagerty, 186 Iowa 1329, 172 N.W. 259, 260. Intent is a matter peculiarly within the province of the trier of facts, in this case the jury.
“In Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118, 119, the Texas court stated:
“ ‘The governing principles of law are familiar. A person’s intention is a matter of fact. When a promise is made the promisor expressly or by necessary implication states that he then has a present intention to perform, and if such intention does not actually exist at that time, a false statement of fact has been made upon which fraud may be predicated. The gist of the fraud is deception as to an existing fact, namely, the state of the promisor’s mind. That fact may be established by circumstantial evidence taken in connection with the breach, but cannot be established by the breach alone.’
“Of course, mere failure to perform is not of itself evidence of intent not to perform at the time the promise or contract was made. If it were, a mere breach of contract would be tantamount to fraud. See Brock v. Brock, 90 Ala. 86, 8 So. 11; McAdory v. Jones, 260 Ala. 547, 71 So.2d 526.”

We agree with appellant that the mere failure to perform is not itself evidence of an intention not to perform. Something more is required. In Walker, this court found that there was additional evidence introduced other than the failure to perform the promise from which the jury could have found that the promise (in that case to insure the plaintiff’s truck) was made with no intent to procure such insurance.

We have carefully read the entire record of the evidence in this case, and find that ho evidence was offered which would permit an inference that the policy was issued to the Woodalls without any intention to pay claims thereunder. The only evidence in the record to prove the allegations of the first claim was that the claims were not paid when submitted by Mr. Woodall. Absent some proof that there was something more than a failure to pay the claims, something upon which the jury could infer that at the time the policy was issued that the company had no intention to honor the claims, it was error to submit this claim to the jury.

We are not departing from our previous cases which recognize that generally intent can only be shown by circumstantial evidence. However, we simply find no such evidence in this record. Nor are we departing from the well-recognized rule of our cases that if some condition existed at the time of the issuance of the policy which would have prevented the company’s ability to perform, and that such condition was known to the company, that circumstance would impose a duty on the company to disclose such information to the applicant for insurance. If it fails to disclose these conditions, it leaves itself open for a suit for fraud. In any contractual arrangement, a duty is imposed on the parties to the contract to disclose certain material facts; for example, the inability of one to perform the promise made. In Mazer v. Brown, 259 Ala. 449, 452, 66 So.2d 561, 564 (1953), it was held:

“ . That principle has been held to apply to a buyer of goods on credit when he is insolvent or has no reasonable expectation of being able to pay for them, and he fails to disclose to the seller his condition and the seller is ignorant of it. . . . ”

We find, however, no proof in this case that any condition existed known to the company that it was not able to perform the promise made under the contract. Such proof would have permitted an action based upon fraud.

The foregoing is dispositive of appellant’s argument that no cause of action in tort can be stated when an insurance company fails to pay a claim. Under facts from which the trier of fact could conclude that it had no intention to pay such claims at the time the policy was sold, a cause of action for fraud may be established.

We turn now to the second theory of relief. In this claim, Mr. Woodall charges that the company was guilty of fraud in that it made fraudulent and false representations to him which induced him to continue to pay premiums on the policy involved, after the claims were denied. When Mrs. Woodall was first confined to the hospital, after the issuance of the policy, her condition was diagnosed as pleural effusion. When that claim was received by the company, the record shows that her medical records extending back for several years were acquired by the company. Those records indicated that she had been treated within five years of the issuance of the policy for congestive heart failure. According to the testimony of the soliciting agent, Mrs. Woodall had responded to questions on the application for insurance that the only times she had been confined to the hospital during the preceding five years were related to a broken hip. She had had several hospital confinements relating to this condition. However, the medical records, received by the company at the time the first claim was submitted, indicated that she had been hospitalized on several occasions suffering from heart disease following the hip problem.

It has been held in this jurisdiction that heart disease is a serious disease and that the failure to divulge treatment for this condition in an application for insurance could increase the risk of loss. Vredenburgh v. Liberty National Life Insurance Company, 246 Ala. 251, 20 So.2d 207 (1944). In such cases, the insurer has a right to seek cancellation of the policy when it discovers that the insured has misrepresented the existence of this condition. Of course, the trier of the fact must believe that the insured had notice that he suffered from such disease, constructive notice being insufficient, and that such denial of the existence of the condition was made with knowledge that the denial was false or that the facts concealed were material to the risk. Vredenburgh, supra.

Under the undisputed facts of this case, Old Southern became aware that Mrs. Woodall had been hospitalized a number of times suffering from heart disease at the time the first claim was made under the policy. It did not seek cancellation of the policy, but instead, with that information in hand, denied the claim on the ground that the condition for which she was hospitalized was one which originated less than six months from the date of issuance of the policy. The reason given for the denial of the second claim was that the condition for which she was hospitalized on that occasion, at which time she was diagnosed as having pneumonia of the left lung, was that the condition was but a continuation of the illness for which she was confined the first time. In other words, the company informed Mr. Wood-all that the reasons the claims were denied was that the condition was excluded under the waiting provision of the policy. Actually, a careful reading of the waiting period provision leaves one in doubt that these two conditions were excluded from coverage for six months after the date of issue. The excluded conditions do not include respiratory ailments. However, be that as it may, the company did not disclose to Mr. Woodall that the reason it was denying coverage was based upon its assertion that Mrs. Woodall had misrepresented to the company the fact that she had been treated and hospitalized for heart disease.

If, in fact, Mrs. Woodall had suffered from heart disease, and that fact was known to her, and she falsely stated in the application that she had not suffered from that malady, the company may have been entitled to terminate the policy in its entirety. However, the failure of the company to base its denial on this ground, and rather its basing the denial on the ground that the condition for which she was hospitalized was one which had occurred less than six months after the policy was issued, and was therefore excluded, is evidence from which the jury could have found that the company fraudulently and with intent to deceive Mr. Woodall continued to accept premiums on the policy, having in its possession from the time the first claim was submitted information which would permit it, on proper proof, to completely terminate all coverage under that policy. This clearly was evidence from which the jury could have found that Mr. Woodall was fraudulently induced to continue paying the premiums on the policy, the company having no intention when it accepted such renewal premium to pay any claims on the policy insofar as Mrs. Woodall’s confinements were concerned. “Where there is evidence reasonably affording an inference as to whether a plaintiff was defrauded . . . the case is one for the trier of fact. . . . ” Loch Ridge Construction Company, Inc. v. Barra, 291 Ala. 312, 321, 280 So.2d 745, 752 (1973).

We hold, therefore, that the second theory sued on stated a claim upon which relief could be granted. There was at the very least a scintilla of evidence to support that claim. The trial court, therefore, did not err in submitting the second claim to the jury.

The third claim asserts that Mr. Woodall suffered damage in that Old Southern fraudulently and maliciously failed to pay the claims made under the policy. There might be circumstances under which the failure to pay a claim under a policy of insurance would create a claim upon which relief may be granted sounding in tort, but such circumstances are not presented in this case. Old Southern argues that under no circumstances could a failure to pay a claim be tortious. We need not decide that question since, under the record before us, there are no circumstances shown which indicate that the company tortiously denied the claim.

In Hamner v. Mutual of Omaha Insurance Company, 49 Ala.App. 214, 217, 270 So.2d 87, 89, the Court of Civil Appeals, speaking through Wright, Presiding Judge, had a similar case. There the court said:

“The substance of the allegations of Count Two is that defendant is in the business of selling hospitalization insurance and sold a policy to plaintiff; that plaintiff filed a claim for benefits under her policy; that defendant delayed action on her claim for approximately a month and then sent an agent to her home to deny the claim; that the denial of the claim was in violation of the insurance laws of the State of Alabama . that defendant’s refusal to pay the claim was oppressive, malicious and fraudulent. Plaintiff then takes more than two pages of transcript paper to describe the oppressive, malicious and fraudulent acts, their effects upon her and the damage she suffered as a result...."

The Court of Civil Appeals concluded that the allegations of that count did no more than state an action for breach of contract, and fell short of stating a cause of action in tort. Such we think is the case here. The third claim for relief simply charges that the company committed a tort in maliciously and fraudulently refusing to pay a claim under the policy. Without more, this claim sounds in contract.

We agree with Old Southern that the trial court erred in refusing its motion for directed verdict as to the first claim, since there was no evidence that Old Southern issued the policy with the intention not to pay claims thereunder. We disagree, however, that the same failed to state a claim upon which relief could be granted, assuming such proof had been offered. We also agree that the third claim fails to state a claim upon which relief may be granted sounding in tort. Therefore, the trial court erred in failing to grant Old Southern’s motion to dismiss that aspect of the complaint.

Old Southern finally argues that only the third claim for relief will support punitive damages. We disagree. Our cases have uniformly held that punitive damages may be awarded in actions for fraud, if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the representations were made with knowledge of their falsity. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970); Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909 (1954); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); I. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 433 (1967). Moreover, “. The imposition of punitive damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. . . .” Loch Ridge Construction Company, Inc. v. Barra, supra, 291 Ala. at 320, 280 So.2d at 751. These principles are applicable to the second claim.

The trial court submitted the case to the jury on all three theories, overruling Old Southern’s motion for a directed verdict as to each claim for relief. There was no evidence to support the first claim and the third theory fails to state a claim in tort upon which relief could be granted. The court erred, therefore, in overruling Old Southern’s motion for directed verdict on the first and third claims. For this error the case must be reversed and remanded. Ford Motor Company v. Thomas, 285 Ala. 214, 231 So.2d 88 (1970); Jordan v. Henderson, 258 Ala. 419, 63 So.2d 379 (1953).

We see no reason to discuss other assignments of error argued, since on a retrial of the case the matter complained of is not likely to recur.

Reversed and remanded.

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

MADDOX, J., not sitting.


author: EMBRY, Justice.

text:
    Catherine WHITE v. Sandra Faye SIMS, as Administratrix of the Estate of Willie Sims, Deceased.
    SC 1319.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    David H. Hood, Jr., Bessemer, for appellant.
    Harold P. Knight, Birmingham, for ap-pellee.
   EMBRY, Justice.

This appeal by plaintiff below, Catherine White, is from final judgment which denied her claim to certain items of personal property asserted in an action filed against defendant/appellee Sandra Faye Sims, as Administratrix of the Estate of Willie Sims, deceased. The relief sought by the action was a declaration of the rights of the parties to personal property described in the complaint. Plaintiff White asserted her right to the described personal property because some of it was the subject of an inter vivos gift from defendant’s decedent Willie Sims; other of it the subject of gift from plaintiff’s sister, and other of it was purchased by her.

The trial court heard the evidence ore tenus without a jury and declared ownership of certain of the personal property in White, to possession of which she was entitled; other of that personal property was declared owned by defendant Sims, to possession of which she was entitled. We affirm.

The question presented for review is whether the judgment entered, after hearing ore tenus of conflicting evidence, was fairly supported by credible evidence and was not clearly erroneous or manifestly unjust?

Appellant White contends the trial court erred in its judgment awarding two automobiles and certain other personal property to defendant. She argues that proof was made of the essential requisites to show a valid gift to her by decedent Willie Sims of the disputed items. These requisites, upon which this contention is based, are enumerated in the representative cases of Vinson v. Vinson, 262 Ala. 388, 79 So.2d 31, and Hudgens v. Tillman, 227 Ala. 672, 151 So. 863:

“ ‘It is an essential prerequisite of a gift inter vivos that there must be a clear intention of the donor to make the gift with the donor’s relinquishment of all present and future dominion there-over and a delivery to and acceptance thereof by the donee. Collins v. Baxter, 231 Ala. 247, 164 So. 61.’ ” Vinson, supra.

This contention of appellant sidesteps our rule as to scope of review. It is stated above in the question presented for review. We have carefully examined the record containing conflicting evidence as to plaintiff’s contention regarding an inter vivos gift of certain items and ownership otherwise of certain other items of personal property. The final judgment stated: “The testimony was hopelessly and irreconcilably in conflict as to these matters.” We agree. We cannot say there was lack of substantial evidence to support conclusions that: (a) there was no clear intention to make a gift, (b) there was no relinquishment of dominion and control over subject property and (c) there was no actual delivery of subject property. These conclusions were manifest in the judgment.

“We cannot substitute our judgment for that of the trial court as to the effect to be given conflicting oral testimony dealing with pivotal questions of fact. * * *» McCaghren v. McCagkren, 294 Ala. 89, 312 So.2d 384.

The judgment is due to be affirmed as there was proper evidence to support it and it was neither clearly erroneous nor manifestly unjust. Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695; Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883.

Affirmed.

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


author: MERRILL, Justice.

text:
    Rebecca Croft BREDESON et al. v. Ruth B. CROFT.
    SC 1129-1130.
    Supreme Court of Alabama.
    Jan. 2, 1976.
    Rehearing Denied Feb. 27, 1976.
    Joe B. Smith, Huntsville, for appellants.
    Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellee.
   MERRILL, Justice.

These appeals are from two summary judgments in favor of appellee, Mrs. Croft, as the beneficiary of two insurance policies in separate companies. The question in each case was identical and they were consolidated. We reverse the judgments and remand the causes for further proceedings.

Mrs. Croft filed two suits in the Circuit Court of Madison County, seeking declaratory judgments under Tit. 7, § 156, Code 1940 and Rule 57, ARCP. The issue before the court in each case was whether she, as beneficiary of the insurance policies on the life of her deceased husband, is entitled to the proceeds. One suit was filed against the Metropolitan Life Insurance Company (hereinafter Metropolitan) and co-defendants, Shelby Jean Messer Graves, as administratrix of the estate of John James Croft, Jr., Rebecca Croft Bredeson, John Paul Croft, Gloria Ellen Croft and Johnnie Diane Croft. The second was filed against Liberty National Life Insurance Company (hereinafter Liberty National) and Shelby Jean Messer Graves, individually, as well as the co-defendants named in the other suit.

Metropolitan and Liberty National filed cross-claims for interpleader under Rule 22(a), ARCP. The trial court found these cases proper situations in which to invoke interpleader and Metropolitan and Liberty National were discharged as defendants after paying the sums of $45,450.00 and $10,000.00 respectively into the court.

Appellee then moved for a summary judgment in each case, pursuant to Rule 56, ARCP. The motions were based on prior pleadings and orders in each case, the appellee claiming that there was no genuine issue as to any material fact placed before the court. Appellants answered each motion with counter-affidavits in opposition to summary judgment. These affidavits consisted of excerpts from testimony in the case of State of Alabama v. Ruth E. Croft, Case No. 72-126F, from the Circuit Court of Madison County, in which appellee was acquitted of the murder of her husband, John James Croft, Jr., the jury finding her not guilty by reason of insanity. In response, appellee amended her Rule 56 motion to include the circuit court records finding her not guilty by reason of insanity, the orders for a competency hearing, the decrees of mental competency of appellee, and the qualifications of Allen Overton Battles, Ph.D., whose testimony was introduced in the criminal trial.

The appellee’s . motions for summary judgment were granted, the court having found in each case that “ * * * there is no genuine issue as to any material fact and that the plaintiff is entitled to judgment as a matter of law, * * *

Summary judgment is a procedure available only when it is apparent to the court from the materials filed before it that “ * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *” Rule 56(c), ARCP.

Here, appellee presented to the trial court information from the prior criminal proceeding, State v. Croft, supra, to support her motions for summary judgment. The court considered the information to be dispositive of the facts in the civil cases and entered summary judgments in favor of the appellee.

In Sovereign Camp W. O. W. v. Gunn, (I), 224 Ala. 444, 140 So. 410, this court cited the following from a West Virginia case with approval:

“In the case of Interstate Dry Goods Stores v. Williamson, 91 W.Va. 156, 112 S.E. 301, 302, 31 A.L.R. 258, it is said: ‘It is uniformly held that a judgment of conviction or acquittal in a criminal case is not proper evidence in a civil case, to establish the facts which were necessary to be established in order to secure such conviction or acquittal. The parties to the criminal prosecution are different. The rules of evidence are different in the two classes of cases, and the purposes and objects sought to be accomplished are essentially different. * * * The criminal proceeding is between the state and the accused party, and seeks vindication of a public right, while in the civil suit the purpose sought is vindication of purely private rights and interests.’ — Freemen, Judgments, § 319; Black, Judgments, § 529; R.C.L. (title Judgments) §§ 476-7; Micks v. Mason, 145 Mich. 212, 108 N.W. 707, 9 Ann.Cas. 291, 11 L.R.A. (N.S.) 653, and note.”

One year later, 1933, the same case, Gunn, {II), 227 Ala. 400, 150 So. 491, was here again and this court said:

“But, it must be borne in mind, that the record of conviction is a solemn judicial finding, and should be clothed with a prima facie presumption of verity. Upon the introduction of such record, the burden of proof shifts to plaintiff on that issue.
“The evidence to overcome such prima facie showing is not to be limited to an attack on the judgment of conviction on grounds of fraud or perjury, but all evidence tending to prove the innocence of the beneficiary in fact is to be admitted, and weighed under proper instructions from the court.”

The case of Fidelity-Phenix Fire Ins. Co. of N. Y. v. Murphy, (II), 231 Ala. 680, 166 So. 604, (1936), and Gunn, (II), supra, are cited, among others, in Roden & Son v. State, 30 Ala.App. 229, 3 So.2d 420, as authority for the statement of the general principle that “ * * * a judgment in a civil case is not conclusive as res judicata in a criminal case, or vice versa, there being no mutuality of parties and a different degree of proof, respectively, being required. * * * »

In accepting the jury verdict of acquittal in State v. Croft, supra, as a basis for summary judgment, the trial court was implying that all issues in the civil cases were resolved by the facts that evolved in the criminal case, and that no issue of fact continued to exist. We cannot agree. By definition, an acquittal in a criminal case does not resolve all factual issues, but leaves factual issues doubtful, as noted by this court in Fidelity-Phenix Fire Ins. Co. of N. Y. v. Murphy, (I), 226 Ala. 226, 146 So. 387, at 392, citing Schindler v. Royal Ins. Co., 258 N.Y. 310, 179 N.E. 711, 80 A.L.R. 1143 (1933):

“ * * * a judgment of acquittal is only a determination that guilt has not been established beyond a reasonable doubt, although a preponderance of evidence might point thereto, * *

Summary judgment “is not a substitute for a trial of disputed issues of fact.” 3 Barron and Holtzoff, Federal Practice & Procedure, § 1231.

We.are convinced that genuine issues as to material facts remained when the summary judgments were entered.

Motion to Dismiss

This appeal is not governed by the Alabama Rules of Appellate Procedure (ARAP) which became effective December 1, 1975.

Appellee filed a motion to strike the transcript and dismiss the appeal on June 3, 1975, on the ground that the appeal was on the record proper and that the transcript should have been filed within sixty days of the taking of the appeal on January 6, 1975. The transcript was filed here on May 21, 1975. Under the authority of Burleson v. First National Bank of Tuscumbia, 283 Ala. 708, 220 So.2d 895, cited by appellee, the motion could have been granted if nothing else had been presented. But appellants filed a motion in opposition and also cited decisions of this court. In Smith v. State, 265 Ala. 138, 90 So.2d 225, a suit to abate a nuisance, where the same grounds for dismissal were urged as are presented here, this court said:

“The appellee’s motion [to dismiss] was not filed until after the transcript was filed in this court, and there has been no showing that was any injury to the appellee resulting from the delay in filing the transcript. The motion is, therefore, denied. Campbell v. Sowell, 230 Ala. 109, 159 So. 813; Spruiell v. Stanford, 258 Ala. 212, 61 So.2d 758.”

Here, there could be no injury to the ap-pellee because appellee requested oral argument in her brief filed July 18, 1975, and this automatically postponed submission until the first oral arguments in the 1975— 76 Fall term. The cause was argued and submitted on October 14, 1975.

The motion to strike the transcript and dismiss the appeal is denied.

Reversed and remanded.

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

      . Cf. United Security Life Insurance Co. v. Clark, 40 Ala.App. 542, 115 So.2d 911.


text:
    Luttie S. JOHNSON v. MONTGOMERY BAPTIST HOSPITAL.
    SC 1384.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    David B. Byrne, Jr., and Philip H. Butler, Montgomery, for appellant.
    Joe Espy, III, Montgomery, for appellee.
   SHORES, Justice.

Mrs. Luttie Johnson filed suit against Montgomery Baptist Hospital charging it with negligence in attempting to move a patient with insufficient personnel, causing the patient to fall; and, that in breaking her fall, the patient grabbed the plaintiff causing her to fall, injuring her back. The gravamen of the complaint was that the hospital was negligent in attempting to move a patient with fewer people than was required for the patient’s size and condition and, as a result, the patient grabbed onto the plaintiff.

The hospital filed a motion to dismiss, which was denied.

It then filed an answer denying- the allegations of the complaint and charging plaintiff with contributory negligence and assumption of risk.

The case went to trial before a jury. At the conclusion of the plaintiff’s evidence, the hospital requested the directed verdict, which the court granted. From the judgment entered in the hospital’s favor, the plaintiff appealed.

There are two issues presented. The plaintiff first claims that the trial court erred in granting the hospital’s motion for directed verdict. Next, the plaintiff claims the court erred in refusing to allow an amendment to her complaint.

It is without contradiction that if there is a scintilla of evidence adduced in support of the plaintiff’s claim, it is error for the court to grant defendant’s motion for directed verdict. The court reporter’s notes in this case were destroyed by a storm. The parties have submitted the case on a stipulated statement of the testimony and proceedings which is set out in part:

“1. Witness Luttie S. Johnson.

“Luttie S. Johnson, the Plaintiff in the above styled cause, after being duly sworn, testified as follows:

“On or about the 3rd day of March, 1973, I was employed by Mrs. Ella Mae Mott as a registered private duty aide, while Mrs. Mott was hospitalized in Room 527 at Baptist Hospital in Montgomery, Alabama as a patient of Baptist Hospital.

“My duties pursuant to the employment with Mrs. Mott included giving the patient a bath, changing bed linens, delivering food trays, keeping the room neat, and making the patient comfortable. On occasion, I have worked seven days per week at the hospital as a private duty aide.

“Mrs. Mott was a very tall and heavy person. She had a broken hip and a broken arm, both of which were in casts on or about March 3, 1973.

“Mrs. Mott had to be moved from her ■bed to her chair and back from her chair to her bed periodically during the day and it usually took Mr. Perdue, who was an orderly employed by Baptist Hospital, and from three to four nurses to move Mrs. Mott due to her size and her condition.

“On or about March 3, 1973, the day that I was injured, Mrs. Mott had already been moved from the bed to a chair. Two nurses came in to try to move Mrs. Mott from the chair to the bed but they could not budge her. They left to get Mr. Per-due, the orderly. Mr. Perdue came into the room without the nurses and tried to move Mrs. Mott by himself. He went around to the back of Mrs. Mott’s chair and put his hands under Mrs. Mott’s arms and lifted her. I was very near Mrs. Mott because I had to put my foot against hers to keep her stocking feet from slipping on the floor. As Mr. Perdue was lifting Mrs. Mott onto the bed, he caused Mrs. Mott to reach out and grab me and pull me down onto the bed. Mrs. Mott pulling me down onto the bed caused the injury to my back and lower extremities.

“It appeared that Mrs. Mott was unstable while Mr. Perdue was moving her back onto the bed because she reached out and grabbed me; but, as far as actually falling any certain distance, I can’t testify that she actually fell any certain distance.

“I never actually lifted Mrs. Mott while I was under her employment.

“Mr. Perdue stated that the same incident hurt his back also.

“Mrs. Mott apologized for pulling on me and hurting my back.

“The pain in my back and leg began to grow worse and on the same day, March 3, 1973, I went to the emergency room at Baptist Hospital and filled out a report on my injury.

“There had never been before this incident which caused my injury, less than three people moving Mrs. Mott while I was under her employment.

“Doctor Thomas Boozer admitted me in St. Margaret’s Hospital on the same day that I was hurt for the treatment of my injuries.

“2. Witness Clifford R. Perdue called as a witness for the Plaintiff and after being duly sworn testified as follows:

“My name is Clifford R. Perdue and I was employed as an orderly working for Baptist Hospital of Montgomery, Alabama, on or about March 3, 1973. In performing my duties as an orderly for Baptist Hospital these duties were for the benefit of Baptist Hospital and under the direction of Baptist Hospital. My duties included giving baths, making beds, moving patients, catherization, and giving enemas.

“I remembered moving Mrs. Mott on March 3, 1973. And, I believe, that there were three persons, including myself, who moved Mrs. Mott on March 3, 1973.

“I didn’t remember anything about March 3, 1973, except that Mr. Byrne told me thats when the accident occurred. I remembered us getting Mrs. Mott up on March 3, 1973 but did not remember putting her back in bed.

“I never attempted to move Mrs. Mott by myself.

“Mrs. Mott weighed around 230 to 240 pounds, had a fractured hip, one leg in a cast, and one arm in a cast, and had arthritis in her good leg.

“Mrs. Luttie Johnson would stand back while we lifted Mrs. Mott and when we got her up then Mrs. Johnson would make the bed.

“I found that Mrs. Johnson was always very careful with her patients and would often get upset if we did not come at just the time that she called.

“I don’t remember Mrs. Johnson using her feet to block Mrs. Mott’s feet while we were getting her up. •

“Mrs. Johnson had told me before Mrs. Mott was her patient that she could not lift and pull patients because of her back.

“I don’t remember whether I was working on both the 4th and Sth floors on March 3, 1973.

“I do not remember ever moving Mrs. Mott by myself and for one person to attempt to move a patient the size of Mrs. Mott, in her condition, would be a failure to use due care and would be unsafe.”

Is there evidence here from which the jury could have concluded that the plaintiff was injured as a result of the negligence of the hospital? Clearly, there is. Mr. Perdue testified that it would be unsafe for one person to attempt to move a patient the size of Mrs. Mott. Mrs. Johnson testified that Mr. Perdue attempted to move her without any help; and that she was injured because the patient “grabbed” her and caused her to fall. It is true that Mr. Perdue said that he did not remember ever moving Mrs. Mott by himself, but Mrs. Johnson testified that he did attempt to move her. There was a clear conflict in the evidence in this respect.

“In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. Myers v. Evans, 287 Ala. 710, 255 So.2d 581; Payne v. Jones, 284 Ala. 196, 224 So.2d 230; Alabama Power Co. v. Scholz, 283 Ala. 232, 215 So.2d 447; Lankford v. Mong, 283 Ala. 24, 214 So.2d 301. . . .” Kilcrease v. Harris, 288 Ala. 245, 252, 259 So.2d 797 (1972).

The trial court erred in directing a verdict for the defendant hospital. Since there was at the least a scintilla of evidence in support of the plaintiff’s theory, she was entitled to have the jury pass on it.

The plaintiff next contends that the trial court erred in not permitting an amendment to her complaint. The parties have stipulated that the' following occurred at the close of the plaintiff’s case:

“At the close of the plaintiff’s case, the defendant moved the court for a directed verdict in favor of the defendant in the chambers of Judge D. W. Cros-land.
“The grounds, among many, for the defendant's request for a directed verdict was that the plaintiff had alleged in her complaint:
“ ‘. . . the defendant was so negligent in attempting to move Ella Mae Mott from her bed with a smaller number of personnel than had been required and needed to move Ella Mae Mott on previous occasions as to cause Ella Mae Mott to fall, and in breaking her fall, to grab the plaintiff, causing the plaintiff to fall to the bed of Mrs. Mott, and as a proximate consequence the plaintiff was injured . .
“and that the plaintiff had not proved that Mrs. Mott actually fell.
“The trial judge indicated he was going to grant the Motion for Directed Verdict due to an absence of evidence that Mrs. Mott actually fell . . .”

The plaintiff then filed motion for leave to amend and offered the following amendment, which the court refused:

“ ‘. . . the defendant was so negligent in attempting to move Ella Mae Mott to her bed with insufficient personnel as to cause Ella Mae Mott, while Mrs. Mott was being moved, to grab the plaintiff causing the plaintiff to fall to the bed of Mrs. Mott, and as a proximate result and consequence of the negligence . by the defendant, plaintiff sustained..."

The plaintiff then moved the court for a continuance in order to allow the defendant to prepare its defense to the amended complaint, since the defendant stated to the court that it was surprised by the “new facts” alleged in the plaintiff’s offered amendment. This motion, too, was denied, and the court then directed a verdict in favor of the defendant.

Rule IS of the Alabama Rules of Civil Procedure is reflective of the entire spirit of these rules. Like its Federal counterpart, the Alabama Rules of Civil Procedure :

“. . . assign the pleadings the limited role of providing the parties with notice of the nature of the pleader’s claim or defense and the transaction, event, or occurrence that has been called into question; . . . Thus, the strong policy against variance between pleading and proof that existed at common law . has been rejected.” Wright & Miller, Federal Practice and Procedure: Civil § 1471 (1971).

In the instant case, the plaintiff filed a motion to amend her complaint after the trial court indicated that it would direct a verdict for the defendant, because the plaintiff had failed to prove that the patient actually fell, as alleged in the complaint. Rule 15(b), ARCP, provides:

“(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but 'failure so to amend does not affect the result of the trial of these issues. If’ evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

The plaintiff’s original complaint in this case met the objective of the ARCP, in that it clearly provided the defendant with notice of the nature of the plaintiff’s claim and set out the transaction, event or occurrence that was complained of. The issue raised by the pleadings was tried. No amendment was necessary to conform the pleadings to the proof. However, the plaintiff was clearly entitled to amend to conform to her proof, once the trial court indicated that it would direct the verdict for the defendant because of a variance between the pleading and the evidence. It was this harshness in the old practice that Rule 15 was designed to correct. Rule 15 provides that amendments are to be allowed freely when justice so requires. There is nothing in the record before us to indicate that the defendant was prejudiced in any way by the proffered amendment. Even so, the plaintiff offered a motion for a continuance to permit the defendant time to meet the allegations of the amended complaint. Under these circumstances, the trial court should have permitted the amendment.

For the reasons stated, the cause is reversed and remanded.

Reversed and remanded.

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


text:
    Eric O. CATES et al. v. Fred BUSH.
    SC 1260.
    Supreme Court of Alabama.
    Jan. 29, 1976.

      Calvin Poole and William Hamilton, Greenville, for appellants.
    W. J. Williamson, Greenville, for appel-lee.
   SHORES, Justice.

This is the second time this case has reached this court. In Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975), the appeal was dismissed since there was no final judgment to give this court jurisdiction.

In the original complaint, as amended, the plaintiff sought to sell certain lands for division with the proceeds to be divided among claimants thereto, and the commuted value of the plaintiff’s life estate to be determined and paid to the plaintiff, Fred Bush. The defendants filed a cross complaint asking for an accounting based upon their claim that, as heirs of S. D. Bargan-ier, they held a three-fourth’s interest in the property in question.

The following facts, as found by the trial court, were undisputed:

The testator, S. D. Barganier, had no issue. His wife, Martha Jane Perry Gaf-ford, had a three-year-old daughter, Elizabeth, by a previous marriage when she married S. D. Barganier in 1874. Elizabeth was reared in the Barganier home and was treated as Mr. Barganier’s daughter, although no formal adoption was ever effected. Elizabeth, upon attaining age, married John W. Bush. The Bushes had four children, Ila Mae Bradley, Mattie Lucile Parker, Cumi Bush, and Fred N. Bush, all of whom were stepgrandchildren of the testator, S. D. Barganier. John W. Bush died in 1903 and, upon his death, Elizabeth returned to Greenville, the home of S. D. Barganier. Her youngest child, Fred N. Bush, at approximately age three, moved into the Barganier home and was cared for by his step-grandfather, S. D. Barganier, and his grandmother. Fred N. Bush was reared in the Barganier home and was living there at the time of the death of S. D. Barganier. Sometime later Elizabeth Bush returned to a home provided her and her other three children by Mr. Barganier which home was adjacent to his. Mattie Lucile Parker married and moved out before S. D. Barganier died. Cumi Bush was living in the home of S. D. Barganier at the time of his death. In 1916, Ila Mae Bradley died and was survived by one child, Frederick Bradley, who was born in 1909. Frederick Bradley went into the home and was reared by his step-great-grandfather, S. D. Barganier, and his great-grandmother. S. D. Bargan-ier died on June 19, 1918, having executed his last will and testament on April 5, 1918, during his last illness. At the time of Mr. Barganier’s death, his heirs and next of kin consisted of four living sisters and twelve nieces and nephews, who were the offsprings of two deceased sisters and one deceased brother.

Mr. Barganier’s widow died in 1935. Cumi Bush died in 1928 and Mattie Lucile Parker died in 1932, before the death of the widow, Martha. Frederick Bradley died in 1952.

The single issue presented here is what interest in the real estate of S. D. Bargan-ier does Fred Bush now have under the will of S. D. Barganier.

By Item Two of Mr. Barganier’s will, he left all of his property, both real and personal, to his wife, Martha J. Barganier, to be held and used by her during her lifetime. This item also gave to Martha full power and authority to sell and convey any or all of the personal and real property. Item Two provides “. . . While I have limited the bequest and devise of all the property of my estate to the life of my wife, it is my will and desire, that she may sell or dispose of, at any time, either at private or public sale, any or all of my property for her own use . . . But my said wife shall not have power or authority to dispose of any of the property of my estate by will or to take effect after her death. . . .”

Item Three is set out in its entirety since it is this item with which we are concerned:

ITEM THREE
“It is my will and I so direct that out of the moneys and personal property that remains after the death of my said wife and undisposed of by her, all of her debts, funeral, burial expenses and the expenses of erecting a suitable tombstone over her grave shall first be paid, and all of the residue of my personal property left after the death of my wife including moneys, choses in action and all other species of personal property shall vest in and be divided, share and share alike, among Mattie Lucile Parker, Cumi Bush, Fred N. Bush and Frederick Bradley, son of Ila Mae Bradley. Whatever remains of the real property of my estate at the time of the death of my said wife and not disposed of by her, I give and devise into Mattie Lucile Parker, Cumi Bush, Fred N. Bush and Frederick Bradley during their life and no longer, and the remainder in all of said real property shall revert to and become the property of my estate, to be divided according to law among my next of kin. Provided, that at the time of the death of either of the above named devisees his or her share shall at once revert to my estate and be disposed of according to the laws of descent and distribution. Provided, further, that if said life tenants of said real property shall fail to pay the taxes at any time when it shall become due, and said real property or any part thereof is subjected to a sale for taxes, then and in that event the whole of the real property in which a life estate is given to them shall at once revert to and become a part of my estate to be disposed of as hereinabove directed. Provided further, that if either of said devisees shall sell or convey his or her share in said real property at any time, that his or her life estate shall at once terminate and revert to my estate to be disposed of according to law as above directed.”

The question presented is whether the testator intended a gift to individuals or did he intend a class gift. If the former was intended, then as each individual died, his interest lapsed and that interest, under the terms of the will, reverted to the heirs of the testator. If a class gift was intended, then the surviving members of the class took a life estate in the property, with the last survivor, in this case Fred N. Bush, being entitled to a life estate in the whole of the property for the remainder of his life.

The trial court found that the testator intended that each life tenant should have the use, benefit and enjoyment of the property to continue “. . . undiminished for each said devisee until the death of the last surviving life tenant. . . .”

It is admitted on all sides that the intention of the testator is the law of the will, and that the will should be considered as a whole, giving effect to each provision, if possible, to effectuate the intention of the testator. Davis v. Davis, 289 Ala. 313, 267 So.2d 158 (1972).

The appellants are the heirs at law and next of kin of the testator. They contend that the trial court erred in its conclusion that the last survivor of the four named life tenants was entitled to the benefits and enjoyment of the property to the exclusion of the heirs and next of kin of the testator.

We agree. Although the first rule in construing a will requires any court to determine to the extent that it can, the intention of the testator, certain rules of construction have developed over the years to aid the court in this quest. One rule of long standing is designed to aid the court in determining whether a testator intended a gift to individuals or to a class. If the gift is to an individual, it lapses if the individual fails to survive the testator or fails to survive the holder of the antecedent estate and, of course, a life estate ceases upon the death of the life tenant. Re Allen, 44 L.T.R. (N.S.) 240 (Ch.D.1881). Contrarily, the very function of a class is, in effect, “to provide survivorship among the members of a group when the testator has failed to do so but would probably be best pleased with that distribution.” Cooley, What Constitutes a Gift to a Class, 49 Harv.L.Rev. 903, 912 (1936).

In making that determination, it is entirely appropriate to inquire into the state of the testator’s circumstances, including his family situation. Here the trial court did that and concluded, in effect, that the testator intended a class gift. We find ourselves in disagreement with this conclusion. As a general rule, where a testator names the individuals by name, there is a presumption that he intended to make a gift to individuals and not to a class. Simes, The Law of Future Interests, West Publishing Company (1961); Westerfelt v. Smith, 202 Iowa 966, 211 N. W. 380 (1926); Frost v. Courtis, 167 Mass. 251, 45 N.E. 687 (1897); In re Murphy’s Estate, 157 Cal. 63, 106 P. 230 (1909); In re Kimberly’s Estate, 150 N.Y. 90, 44 N.E. 945 (1896).

Of course, this presumption may be overcome if there is language in the will to indicate a contrary intent on the part of the testator. One commentator has said:

“. . . When the testator appears to have been so interested in the welfare of a group to whom he was giving something that, had he thought of it, he would have wanted those members who survived him to take it all in preference to having part of it lapse. [The court should conclude that he intended a gift to a class.] . . .”49 Harv.L.Rev., supra, at 930.

We find no such indication of that intention here. On the contrary, the will of Mr. Barganier is replete with language which indicates that he intended a gift to each of the named individuals. He directed that Mattie Lucile Parker, Cumi Bush, Fred N. Bush and Frederick Bradley should have a life estate in his property (assuming it was not disposed of by his widow) “during their life and no longer.” It provided that at the time of the death of either of the above devisees, “his or her share shall at once 'revert to my estate and be disposed of according to the laws of descent and distribution”; additionally, “if either of said devisees shall sell or convey his or her share in said real property at any time, that his or her life estate shall at once terminate and revert to my estate . ” (Emphasis supplied)

All of these expressions are indications that the testator intended a gift to the named individuals and not a gift to a class. Each was devised an undivided one-fourth defeasible interest in the property for life. The only language in the will to indicate a contrary intent is the use of the words “during their life and no longer.” (Emphasis supplied)

Appellee argues that this indicates that Mr. Barganier intended to create a life estate in all of them, the interest of each passing upon his or her death to the successors, down to the last survivor. To adopt this construction is to ignore several other expressions which clearly indicate that Mr. Barganier intended the interest of each of the named individuals to revert to his estate on the death of either of them, or if either of them attempted to sell his or her share. Every expression in the will, with the exception of the use of the words “during their life” indicates that he intended to leave each of the named individuals an undivided one-fourth interest in his property for the term of the life of each.

Two of the named devisees died during the lifetime of the widow. Their interests therefore lapsed and never ripened into a right of possession. Upon the death of the widow, Frederick Bradley and Fred Bush each took an undivided one-fourth interest in the property for life. When Frederick Bradley died in 1952, his interest terminated and reverted to the heirs of S. D. Bar-ganier under the terms of the will. Fred Bush, therefore, holds an undivided one-fourth interest in the property for the term of his natural life.

McWhorter v. Cox, 209 Ala. 233, 234, 96 So. 71, 72 (1923), involved a deed executed by Thomas A. Cox, the father of Bettie Cox McWhorter and Boyd Cox, which conveyed to his two children certain property, with the following language:

“ 'For and during their natural lives and from and after their decease to their heirs at law, the following described real estate.’
“ ‘To have and to hold unto said parties of the second part for and during their natural lives and after their decease to their heirs at law in fee simple.’ ”

In construing that deed, this court said:

“. . . It is also evident from this deed Thomas A. Cox intended to and did convey to Bettie Cox and Boyd Cox, his two children, and each thereby became invested with an undivided one-half interest in all the real estate described therein, for and during their natural lives, and on the death of either, his or her heirs became entitled to immediate possession of the one-half interest in which their ancestor had a life interest. The right to the possession of the half interest in the land of either Bettie or Boyd Cox by the heirs of either was not limited to death of both Bettie and Boyd Cox, but is limited to the death of their respective ancestor. Upon the death of each life tenant their children, respectively, took the fee of an undivided one-half interest in the land. . . .” (209 Ala. at 235, 96 So. at 72)

So here, each of the four named life tenants were entitled to an undivided one-fourth interest in all of the real estate of S. D. Barganier for and during their natural lives; and upon the death of each life tenant, the heirs at law and next of kin of S. D. Barganier took the fee of an undivided one-fourth interest in the land involved. Since two of the life tenants failed to survive the widow, the interest of each lapsed and became a part of the re-versionary estate of the testator. The other two one-fourth interests became vested in Frederick Bradley and Fred Bush upon the death of the widow of S. D. Barganier. When Frederick Bradley died, his interest terminated and title to the property was vested in fee simple in the heirs of S. D. Barganier subject only to the outstanding interest of Fred Bush. Fred Bush therefore has an undivided one-fourth interest in the property for the remainder of his lifetime.

Appellee argues that Hedricks v. Beam, 241 Ala. 618, 4 So.2d 176 (1941), compels a different result. We cannot agree. The deed in that case contains language which clearly indicated that the grantor intended that the remaindermen would not take an interest in the property until the death of the last surviving life tenant. In that case the habendum clause of the deed was as follows:

“ ‘To Have And To Hold, unto the said Jesse E. Allen, a life interest in said land together with the right of possession and control of said land for and during his natural life, and after the death of said Jesse E. Allen, Lucy Allen Beam, Ruth Allen Gurley, Dora Allen and Arrieseal Allen Vaughn, each have and own a one-fifth (%) undivided interest in said above described land for and during their natural lives and the said Maurice Goble and Annie Sue Goble each have a one-tenth (Jio) undivided interest in said land after the death of the said Jesse E. Allen for and during their natural lives with remainder to their heirs and assigns forever.
. .’” (241 Ala. at 620, 4 So.2d at 177)

The deed contained the following additional provision:

‘This conveyance is made upon the further condition and for the consideration as above stated that said land shall not be sold for division among the grantees and their heirs until the death of the last surviving life tenant.’ (Italics supplied.)” (241 Ala. at 620, 4 So.2d at 177)

This court held that the condition just quoted was effective and meant “. that as long as any of the children or grandchildren of Jesse E. Allen, named in the deed, are alive the property granted shall be held intact for the joint benefit of the grantees . . .” (241 Ala. at 620, 4 So.2d at 178)

There is no language in the will of S. D. Barganier to suggest that he intended that his heirs would be deprived of the property until the death of the last surviving life tenant. On the contrary, there is every indication that he intended the interest of each life tenant to terminate and “revert” to his heirs with the death of each as it occurred.

We think the trial court erroneously concluded that Fred Bush was entitled to a life estate in the whole of the property of S. D. Barganier, as the last surviving life tenant. We hold that Fred Bush, as a matter of law, is entitled to an undivided one-fourth interest in the property for the balance of his life.

The judgment appealed from is, therefore, reversed and remanded.

Reversed and remanded.

HEFLIN, C. J., and MADDOX, FAULKNER and JONES, JJ., concur.