author: ALMON, Justice.

text:
    Kenneth G. ROBINSON, II and K. G. Robinson & Associates v. COMPUTER SERVICENTERS, INC., A. Derrill Crowe, Lamar M. Campbell, and Walter F. Scott.
    SC 2554.
    Supreme Court of Alabama.
    June 30, 1978.
    See also, Ala., 346 So.2d 940.

      W. Eugene Rutledge of Rutledge, Williams, Williams & Norton, Anniston, for appellants.
    James A. Harris, Jr. and Thomas H. Brown of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellees.
   ALMON, Justice.

Robinson appeals from an order of the trial court which dismissed his counterclaim because the claim was the same as that asserted by Robinson in a prior pending federal court suit against the same parties. The order is not a final judgment from which an appeal may be taken, therefore, the appeal is dismissed.

On January 6, 1976, Robinson filed an action in the United States District Court for the Northern District of Alabama against Computer Servicenters, Inc., (CSI), its directors, chief executive officers, and Sterne, Agee & Leach, Inc. The suit was a derivative action on behalf of CSI by Robinson alleging violations of certain provisions of the federal securities’ laws. In the federal court action Robinson requested a declaration that an employment contract between himself and CSI was fraudulently entered into by CSI and that a non-competition provision was void, and that he owed no payments to CSI under the terms and conditions of a subscription agreement.

On May 10, 1976, CSI filed the present action against K. G. Robinson & Associates and Robinson, seeking to enjoin Robinson from violating the non-competition agreement and to specifically perform the subscription agreement.

Robinson sought to have the federal court enjoin the state court suit on the grounds that the same issues were being tried in the prior pending federal court suit. This relief was denied.

In his amended answer to the state court suit, Robinson added the directors and chief executive officers of CSI, and Sterne, Agee & Leach, Inc., as defendants and asserted a two-count counterclaim. The counterclaim sought the same affirmative relief Robinson sought in the federal suit’s pendent claim. Robinson demanded a jury trial.

In the state court suit CSI filed a motion for separate trial of Robinson’s counterclaim pursuant to Rule 42(b), ARCP. The trial court granted the motion on July 23, 1976. The trial court then proceeded to determine the merits of CSI’s complaint. On September 16, 1976, the court issued an injunction enjoining Robinson, under the non-competition provision of the employment contract, from competing with CSI by engaging in Robinson’s then current business activities. This court reversed the judgment granting the injunction in Robinson v. Computer Servicenters, Inc., 346 So.2d 940 (Ala., 1977).

On February 24, 1977, the trial court entered an order dismissing Robinson’s amended counterclaim on the ground that:

“. . . the claims asserted in said counterclaim are the same as those asserted by defendant, Kenneth G. Robinson, II, in a prior pending Federal Court Action against the same parties. Said Federal Court Action is pending in the United States District Court for the Northern District of Alabama, Southern Division and is styled Kenneth G. Robinson, II vs. Computer Servicenters, Inc., a corporation; A. Derrill Crowe; Lamar M. Campbell; Walter F. Scott, Jr.; Paul R. Butrus; Sterne, Agee and Leach, Inc., a corporation, and bears Case number 76-H-0012-S.”

Robinson further amended the counterclaim and filed a motion to allow that further amendment. On March 3, 1977, the trial court denied the motion and dismissed the amendment.

Robinson then filed a motion for reconsideration of the court’s orders dated February 24, 1977, and March 3, 1977, or in the alternative for a designation of those orders as final judgments pursuant to Rule 54(b), ARCP. The motion was denied by the court on April 8, 1977. Notice of appeal was filed by Robinson on May 3, 1977.

CSI objects to Robinson’s appeal on two grounds: (1) the time for taking an appeal from the court’s orders dated February 24 and March 3, 1977, has run; (2) such orders are not final judgments appealable to this court, and the trial court expressly refused to direct the entry of a final judgment pursuant to Rule 54(b), ARCP. We find it unnecessary to discuss or decide the timeliness of Robinson’s appeal.

Robinson argues the orders are final judgments and thus appealable because the counterclaim was severed pursuant to Rule 21 rather than ordered to be tried separately pursuant to Rule 42(b). We disagree.

An appeal will not lie from an order or judgment which is not final. “Automatic” Sprinkler Corp. of America v. B. F. Goodrich Co., 351 So.2d 555 (Ala., 1977); Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975); Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974). The only exception to this rule is permissive appeals from interlocutory orders in accordance with Rule 5 ARAP. In suits involving several parties or claims, an appeal will lie from a final judgment or order as to a single claim if that claim has been severed under Rule 21 or if the court makes an express determination that there is no just reason for delay and directs entry of judgment on that claim pursuant to Rule 54(b). The distinction between ordering a counterclaim to be tried separately under Rule 42(b) rather than severing the counterclaim under Rule 21, is an important one which is often overlooked.

“. . . separate trials of different claims in a single action under Rule 42(b) usually result in a single judgment. Consequently, when the court wishes to enter judgment as to fewer than all the claims or parties, in a single action, Rule 54(b) must be followed. When, however, a claim is severed from the original action, as authorized by Rule 21, ARCP, a new action is created, just as if it has never been a part of the original action, and a completely independent judgment results. Because the new action is no longer connected to the original action, the judgment rendered is not a determination as to fewer than all the parties and claims, and Rule 54(b) does not apply.” Key v. Robert M. Duke Ins. Agency 340 So.2d 781 (Ala., 1976).

The power of the trial court to order separate trials of issues in the interest of convenience and to avoid prejudice under Rule 42(b) necessarily encompasses broad discretion. However, the power of the court to order severance under Rule 21, or to direct entry of judgment under Rule 54(b), ultimately may infringe upon the authority and power of this court to entertain an appeal. It is ordinarily not within the power of the trial court to order a Rule 21 severance of an essentially unitary problem. Habel v. Ebersole, 543 F.2d 14 (7th Cir., 1976); Spencer, White & Prentis, Inc. of Conn. v. Pfizer, Inc., 498 F.2d 358 (2nd Cir., 1974). Likewise, the trial court cannot confer appellate jurisdiction upon this court through directing entry of judgment under Rule 54(b) if the judgment is not otherwise “final.” See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Arlinghaus v. Ritenour, 543 F.2d 461 (2nd Cir., 1976); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3rd Cir., 1975).

The general rule is that an order striking a counterclaim is not appealable because it is not a final judgment. Corona v. Southern Guaranty Ins. Co., Inc., 294 Ala. 184, 314 So.2d 61 (1975). The trial court expressly refused to enter judgment as provided in Rule 54(b). However, if Robinson’s counterclaim was severed under Rule 21, a Rule 54(b) entry of judgment was unnecessary for appeal. It remains for us to decide if the court’s order of July 23, 1976, severed the counterclaim or merely ordered it separated for trial.

CSI moved for an order of the court to separate for trial Robinson’s counterclaim “pursuant to the provisions of Rule 42 of the Alabama Rules of Civil Procedure.” The motion was entitled “Rule 42 Motion for Separate Trials.” The motion requested the relief based on the complexity of Robinson’s counterclaim and that a separate trial of CSI’s claims and Robinson’s counterclaim would be “[t]he most convenient and expeditious method for providing relief to Plaintiff [CSI] and preserving Defendant’s [Robinson’s] rights . . . ” The court granted CSI’s motion, noting that it had “severed defendant’s counterclaim pursuant to the provision of Rule 42 of the Alabama Rules of Civil Procedure.” (Emphasis added.)

Notwithstanding the fact that the court noted it had “severed” the counterclaim, we are of the opinion that the substance of the court’s action was taken under authority of Rule 42(b), rather than Rule 21. CSI’s motion was designed to invoke the discretionary power of the court to act under Rule 42, preserving Robinson’s right to a jury trial and to avoid prejudice. The court granted the motion pursuant to Rule 42. The form and substance of the court’s action are consistent. Key v. Robert M. Duke Ins. Agency, supra.

The motion to dismiss the appeal is granted.

APPEAL DISMISSED.

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

      . The merits of this case, which we do not decide, is the propriety of the court’s order to dismiss Robinson’s counterclaim under authority of Tit. 7, § 146, Code of Alabama 1940, Recompiled 1958, which states: “No suitor is entitled to prosecute two actions in the courts of this state at the same time, for the same cause and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former is a good defense to the latter, if commenced at different times.”

      . Rule 21 provides: “Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such items as are just. Any claim against a party may be severed and proceeded with separately.”

      .Rule 42(b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Article 1, Section 11 of the Alabama Constitution of 1901.”


source: Caselaw Access Project

license: Public Domain

text:
    Mary BLACK v. PIKE COUNTY COMMISSION et al.
    SC 2635.
    Supreme Court of Alabama.
    June 30, 1978.
    Robert H. Ford of Crawley & Ford, Troy, for appellant.
    Oliver Brantley of Brantley & Calhoun, Troy, for appellees.
   ALMON, Justice.

Mary Black filed suit for declaratory relief against the Pike County Commission and its members. Summary judgment was granted for the defendants.

The complaint alleges that she is denied due process and equal protection of the law under both state and federal constitutions because the County Commission arbitrarily and capriciously denied her application for a restaurant liquor license.

The issue is whether Tit. 29, § 13, Code of Alabama 1940 (now § 28-3-133, Code of Alabama 1975) as construed in Paulson’s Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962), grants to the County Commission the irrevisable discretion to deny approval of liquor licenses. We answer in the negative and reverse because the record contains some evidence that the Commission acted arbitrarily. Summary judgment was therefore inappropriate. We do not say that' the Commission acted arbitrarily. We merely hold that a scintilla of evidence was presented to the trial court which precluded him from holding as a matter of law that the Commission was not arbitrary. Constitutional questions were presented which necessitate further development of the facts.

The record reveals that two other persons have a restaurant liquor license in Black’s county district. According to Black, these people are no better qualified than she is. The record also shows that no application for a restaurant liquor license in Pike County has ever been denied approval, save her own. It also appears that the Pike County Commission has no criteria, written or unwritten, for deciding whether a person is qualified to obtain the Commission’s approval for a restaurant liquor license.

The Commission relies on the statute as well as the decision of Paulson, supra, and Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620 (1890).

It is true that in Paulson this court held the legislature had granted irrevisable discretion to the city commission. It is important to note, however, that Paulson was a case of statutory construction only and no constitutional questions were raised in that case. The court specifically pretermitted the validity of the statute under constitutional provisions. Therefore, Paulson is not dispositive of the present issue.

Admittedly, there is some support for the Commission in the rationale employed by the court in Paulson. This is particularly so where this court quoted observations of the U.S. Supreme Court in Crowley, supra. The U.S. Supreme Court in Crowley, after much discussion of the evils and immorality of alcohol, nevertheless, bottomed its decision in upholding the San Francisco ordinance and denial of the license on the fact in evidence that the wife of the applicant frequented the applicant’s saloon and cavorted with the patrons and had been convicted of the offense of larceny. She had been charged with other offenses. The Court said that these larcenies alone were a sufficient indication of the character of the place in which the business was conducted for the exercise of the discretion of the police commissioners in refusing a further license to the applicant.

It is of particular interest to notice in Crowley the Court spent considerable time in an effort to distinguish the former case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In Yick Wo the City of San Francisco passed an ordinance which gave the board of supervisors authority, at their own discretion, to refuse permission to operate laundries except where located in buildings of brick or stone. The petitioner, a Chinaman who had been in business for 22 years along with 200 others similarly situated, petitioned the board to continue their business. Relief was denied by the board without assigning a valid reason. The U.S. Supreme Court granted relief. If, indeed, states have unbridled authority and may delegate irreversible discretion where liquor is involved, why was the Court troubled about distinguishing Yick Wot In this vein, and of particular interest, is the following observation found in the Yick Wo case:

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth ‘may be a government of laws and not of men.’ For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

The Twenty First Amendment bestowed upon the states, broad regulatory power over the possession, sale, and distribution of liquor within their territory. Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966), and cases cited therein. The scope of the State’s power .to regulate the liquor business is much broader than in the case of its regulation of an ordinary lawful business. Crowley, supra; Glicker v. Michigan Liquor Control Com’n, 160 F.2d 96 (6th Cir., 1947).

However, the exercise of police powers in this area does not exempt the states or local government units from constitutional limitations; whether it be the Commerce Clause, the Due Process Clause, or the Equal Protection Clause. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 541, 50 L.Ed.2d 397 (1976); Joseph E. Seagram & Sons, Inc. v. Hostetter, supra; Parks v. Allen, 409 F.2d 210 (5th Cir., 1969); Clicker v. Michigan Liquor Control Commission, supra. Other jurisdictions consider their equivalent to the Federal Equal Protection Clause to also be applicable to state and local decisions regarding liquor use, license, or distribution. See Arizona State Liquor Bd. of Dept. of L. Lic. & C. v. Ali, 27 Ariz.App. 16, 550 P.2d 663 (1976); Safeway Stores, Inc. v. Nebraska Liquor Control Com’n, 179 Neb. 817, 140 N.W.2d 668 (1966).

Sections 1, 6 and 22 of the Alabama Constitution combine to guarantee equal protection of the laws. City of Hueytown v. Jiffy Chek Co. of Alabama, 342 So.2d 761 (Ala., 1977). Governing bodies in the exercise of police power, may not arbitrarily deny citizens equal protection of the law. McCraney v. City of Leeds, 241 Ala. 198, 1 So.2d 894 (1941). To the extent the rationale in Paulson allows such, by denying judicial review of an alleged violation of the law, it is revised.

The legislature may not bestow a power on a local governing body which it does not possess.

The burden of proving any unconstitutional action is upon Black. Wilkey v. State, 244 Ala. 568, 14 So.2d 536 (1943).

We are of the opinion that Black raises an issue as to the unconstitutionality of the Commission’s actions. Accordingly, we reverse the decision of the trial court and remand for further proceedings.

REVERSED AND REMANDED.

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

      . Tit. 29, Code of Alabama 1940 provides in pertinent part:
      “§ 13. . Subject to the provisions of this chapter, and regulations promulgated under the provisions of this chapter, the board, with the approval of the governing authority of the municipality, if the . . . restaurant . be located in a municipality, or with the approval of the county governing authority, if the . . . restaurant ... be located in the county and outside the limits of the municipality, shall have authority to issue a liquor license for any premises kept or operated by a . . . restaurant . . . and specified in the license . . .
      “§ 14. . Every applicant for a . restaurant liquor license . . shall file a written application with the board accompanied, also, by a certificate from the clerk or proper officer setting out that the applicant has presented his application to the governing authority of the municipality and has obtained its consent and approval
      “§ 15. . Upon receipt of the application, the proper fees, the certificate of approval of the governing authority, and upon being satisfied of the truth of the statements in the application, and that the applicant is a person of good repute and seeks a license for a . restaurant ... as defined in this chapter, the board shall grant and issue the applicant a liquor license. . . . ”


author: MADDOX, Justice.

text:
    Ernest JACOWAY, as Administrator of the Estate of Hugh Dodge Jacoway, Deceased v. Roy Clyde BRITTAIN, Sr., as Executor of the Will of Hugh Dodge Jacoway, Deceased.
    SC 2734.
    Supreme Court of Alabama.
    June 30, 1978.
    Robert B. French, Jr., Fort Payne, for appellant.
    David A. Rains, of Scruggs, Rains & Wilson, Fort Payne, for appellee.
   MADDOX, Justice.

This appeal raises the issue of whether the trial judge erred in allowing extrinsic evidence to prove the intent of the testator.

The pertinent portion of the subject will is:

“I hereby give, devise and bequeath all of my personal property, located in my home, or on my property, unto Kathleen Brittain Owen, subject to the specific devises set out herein below . . . ” (Emphasis added.)

The will contained no residuary clause.

The dispute centers around this question: Do the words “. . . all of my personal property, located in my home, or on my property . . . ” include some $25,000 in cash and certificates of deposit which were located in the Central Bank, N.A., Fort Payne Branch? Heirs of the testator contend that the will clause is clear, and that, as a matter of law, the bequest of “all of my personal property, located in my home, or on my property” did not include the property at the bank.

One of the witnesses testified that when the testator died, he went to the testator’s home shortly after his death and found a checkbook, a passbook savings book, and a key to a safety deposit box, and when the safety deposit box was opened, the certificates of deposit were found.

The evidence showed that the probated will was executed by the testator on August 8, 1975. Previously, on April 3, 1975, the testator had executed a will almost identical to the August 8 will. It provided, in part:

“I hereby give, devise, and bequeath all of my personal property, located in my home, or on my property, unto KATHLEEN BRITTAIN OWEN. If KATHLEEN BRITTAIN OWEN predeceases me, then it is my will that her portion of my estate pass to her children in equal parts.
“Aside from the One Thousand Dollars I have left to MYRA JO KOUGHLIN, it is my last will and testament that all of my money be divided in equal parts and distributed to KATHLEEN BRITTAIN OWEN and ROY CLYDE BRITTAIN, JR. If either of them predecease me, then their share is deemed to have vested and shall pass in total and in equal parts to their surviving children.”

In the will of August 8, 1975, which was his last will and testament, and was duly probated, the Testator stated the following:

“I hereby give, devise, and bequeath all of my personal property, located in my home, or on my property, unto Kathleen Brittain Owen, subject to the specific devises set out herein below. If Kathleen Brittain Owen predeceases me, then it is my will that her portion of my estate pass to her children in equal parts.”

During the trial, the attorney who drew the August 8 will was permitted to testify, over objection, that he first interviewed the testator in July of 1975, and that the testator told him that he wanted his money to go to Kathleen Brittain Owen. The appellants claim that the admission of this testimony was erroneous and highly prejudicial.

The trial judge, in his decree, concluded:

“In construing a will, the court’s central concern always is determining the intention of the testator. As an aid in making this determination, the law presumes that one who makes a will intends to dispose of his entire estate. However, the law also presumes that one would not intentionally disinherit his heirs. When these two presumptions clash, as they do in this case, the presumption favoring the disposition of the entire estate prevails. Roberts v. Cleveland, 222 Ala. 256, 132 So. 314 (1931).
“The language of the clause quoted above, on its face, is plain and intelligible. It is the existence of extraneous facts which makes it ambiguous. The law classifies such an ambiguity as latent, and the presence of a latent ambiguity authorizes the court to use parol evidence for the purpose of ascertaining the testator’s intention. Consequently, the testator’s instructions to the draftsman of the will become particularly relevant.
“The attorney who drafted the will testified that the testator’s instructions were that his money was to go to Kathleen Brittian (sic) Owen, and that the will was to be drawn in a manner that would prevent his heirs from receiving any part of his estate.
“When this testimony is considered together with the presumption against intestacy, the conclusion is inescapable that the testator intended for Kathleen Brit-tian Owen (sic) to have the savings account and the certificates of deposit. The fact that these items were not located inside the testator’s house is not inconsistent with this conclusion. The keys to the bank box and the passbook found in the testator’s house are indicia of ownership and, therefore it is not unreasonable that the testator considered possession of the passbook and the keys tantamount to possession of the money.”
We affirm the order of the trial court.

The law says that where a latent ambiguity exists in a will, the court may resort to extrinsic evidence in ascertaining the intent of the testator. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975).

A latent ambiguity may arise in the identification of or application to the property or subject matter as described or bequeathed. See Wiley v. Murphree, 228 Ala. 64, 151 So. 869 (1933). See also, Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924).

A latent ambiguity is to be distinguished from a patent ambiguity. A patent ambiguity is not a true ambiguity; it is merely confusion created on the face of the will by the use of defective, obscure or insensible language. On the other hand, a latent ambiguity occurs where the language is clear and intelligible, but when considered in light of certain extraneous facts, it takes on a multiple meaning. As we said in Achelis v. Musgrove, supra:

“The distinction is that, while such . [extrinsic facts] . . are admissible to explain the meaning of ambiguous terms, it is never admissible to show terms the testator intended to use.”

Standing alone, the words “all of my personal property” would include money on hand and on deposit, whether in a bank or savings and loan association account. It would also include choses in action. Sims v. Moore, 288 Ala. 630, 264 So.2d 484 (1972); Bromberg v. McArdle, 172 Ala. 270, 55 So. 805 (1911). The appellants would have this court limit the bequest to the tangible personal property found at the testator’s home, because, they say the personal property given is limited to that “located in my home, or on my property. . . . ”

We do not read the phrase, “located in my home, or on my property” as clearly indicating that the testator intended this to be a limitation on the bequest of “all my personal property.” Sims v. Moore, supra. In any event, we cannot find within the four corners of the will any language indicating that the testator- intended to make a distinction between tangible and intangible personal property and it is undisputed that the passbook and the key to the safety deposit box were on the testator’s property.

Our decision takes into consideration the presumption against partial intestacy. Achelis v. Musgrove, supra, and the testimony of the scrivener concerning the testator’s intent at the time the will was made. See Lee v. Moxley, 286 Ala. 134, 237 So.2d 656 (1970).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    FEDERATED GUARANTY LIFE INSURANCE COMPANY v. Dennis E. PAINTER.
    SC 2749.
    Supreme Court of Alabama.
    June 30, 1978.
    Perry Hubbard, Tuscaloosa, for appellant.
    William P. Gray, Jr., of Tucker, Gray & Espy, Tuscaloosa, for appellee.
   BEATTY, Justice.

Federated Guaranty Life Insurance Company appeals from a judgment in favor of the plaintiff, Painter, which reformed an employment contract between them and also granted incidental relief in the form of money damages for a breach of that contract as reformed. We reverse and remand.

Painter was first employed in September, 1965 as an agent by the defendant’s predecessor, Cotton States Life Insurance Company. On June 9,1969 he was promoted to the position of general agent, having been recruited by William Lanford, agency vice-president for the company. He signed a standard general agent’s contract form.

This contract consisted of several parts, among them being a schedule which set forth the commissions to be received by a general agent according to plan of insurance and the first, second, and third through tenth years in which premiums were paid. It also listed the percentage of the service fee to be allowed the general agent based upon renewal premiums paid during the third through tenth policy years, and the service fee allowed him after that period of time. For example, the schedule of commissions on a Whole Life policy with 20 or more annual premiums is shown as follows:

1st vr. 2nd vr. 3rd - 10th vrs. Service Fee
Commission Service Fee Total Thereafter
80% 10% 5% m% n% 2 m

The contract also contained a form pertaining to renewal rights. Because this is the contract provision whose terms are in issue, we set it out in haec verba :

RENEWAL RIGHTS; if this Agreement is terminated by the Company or by the Agent or should the Agent die while this Agreement is in force or become totally disabled from its performance he, or in case of his death, his heirs or legal representatives shall, except as hereinafter provided in Paragraphs A, B and C, receive renewal commissions that accrue under the provisions of this Agreement relating to compensation, if any, less a service fee of 3% of each premium. In the event of termination of this Agreement, other than by death or disability, the maximum period during which renewal commissions shall accrue under the terms hereof shall not exceed an additional period equal to the period which the Agent has been under contract with the Company prior to such termination, provided the Agent has been under contract at least three (3) years from the date of the contract. At which time this vested portion of the contract is retroactive to the original date of contract.
A. Renewal commissions shall not be payable after the termination of this Agreement if the Agent has misappropriated or failed to account for any of the Company’s funds.
B. If, after this Agreement is terminated, the Agent writes a new policy with another company to replace any policy in this Company, the Agent shall thereby forfeit all rights of this Agreement and renewal commissions shall not be payable thereafter.
C.After the termination of this Agreement renewal commissions shall cease to be payable at the end of any calendar year during which renewal commissions received by or credited to the Agent average less than $25.00 per month.

It is important to observe, as the testimony also explained, that the commission schedule and the renewal rights clause dealt with different “service fees.” In the former, the service fee is an amount paid to the general agent for servicing the policy, an amount in addition to the earned commission. The “service fee” referred to in the renewal rights clause, however, is a charge against the agent’s commissions he is to receive following termination of his employment contract by death, total disability, or otherwise by either party.

Approximately one year after executing his contract Painter realized that the word “premium,” as it appears in the renewal rights clause, should have been “commissions.” He went to Lanford who told him that it would be changed in his contract to three per cent of the commission. In fact, the provision was not changed. Subsequently both Painter and Lanford left the employ of the company which later merged with Federated Guaranty and retained that name. Ultimately Painter brought an action against Federated for breach of contract in failing to pay the full commissions to which he was entitled. That action ended in a mistrial. Then Painter amended his complaint to request a reformation and incidental relief. That suit was heard by the trial court without a jury. Reformation was granted as requested.

The defendant’s contention on appeal is that there was no clear, convincing and satisfactory evidence before the trial court proving that the written agreement executed by the parties did not reflect their intention at the time it was executed. In short, it maintains that there was absent in the trial court a sufficient showing of mutual mistake on which to base a reformation.

The right to have a court revise a written contract which through mutual mistake does not express the parties’ intention has been recognized by statute since the Code of 1923, Code of Alabama 1923, § 6825; Tit. 9, § 59, Alabama Code of 1940 (Recomp.1958); Code of Ala. 1975, § 8-1-2, and earlier by decisions. Because there is a presumption which arises from the instrument itself that supports it as the true agreement, Marengo Abstract Co. v. C. W. Hooper & Co., 174 Ala. 497, 56 So. 580 (1911); 66 Am.Jur.2d § 117 at 643, our Court has cautiously placed the burden upon the reform seeker to prove his case by clear, convincing and satisfactory evidence. Great Atlantic & Pacific Tea Co. v. Engel Realty Co., 241 Ala. 236, 2 So.2d 425 (1941). The quality of such evidence has been variously described, denoting the seriousness with which this Court has looked upon such a claim and its concomitant regard for the integrity of the written instrument. Thus we see expressions of Mr. Pomeroy adopted by this Court in Hammer v. Lange, 174 Ala. 337, 340, 56 So. 573 (1911):

‘The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing—in the language of some judges, “the strongest possible”—or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt.—2 Pom.Eq.Jur. (3rd Ed.) § 859, p. 1515.

and that opinion added:

This court has said: ‘To authorize the reformation of a contract which has been reduced to writing and signed, the proof must be clear, exact, and satisfactory, first, that the writing does not truly express the intention of the parties—that on which their minds had agreed; and second, what it was the parties intended the writing should express.’ (citation omitted). Also: ‘If the proof is uncertain in any material respect, it will be held insufficient; and, while the courts may feel a great wrong has been done, they cannot grant relief by reason of uncertainty.’ (citation omitted).

That description of the burden assumed by a plaintiff seeking reformation conforms to a principle applied in an earlier case, Page v. Whatley, 162 Ala. 473, 474, 50 So. 116, 117 (1909):

Equity grants reformation of deeds only when error certainly appears, and never upon a mere probability or a mere preponderance of evidence, (citations omitted). .

Thus, as the Court recognized in Holland Blow Stave Co. v. Barclay, 193 Ala. 200, 69 So. 118 (1915), again citing Pomer-oy:

‘It is evident that the only authority in the court is to reform the contract so as to express that which the parties agreed on. It cannot make a new contract for the parties, nor establish that as a contract between them, which it is supposed they would have made, if they had understood the facts.’

Since the plaintiff’s basis for reformation is grounded upon a mutual mistake of the parties, he had the burden of proving by such evidence as would meet those tests that there had been a meeting of the parties’ minds on his version of their contract at the time that contract was made. Behan v. Friedman, 218 Ala. 513, 119 So. 20 (1928).

In his testimony Lanford described the life commission schedule and explained its computations, together with the application of a general agent’s rights to renewal premiums. He explained that variances existed among companies pertaining to vested renewal rights, and that one of his responsibilities was to convince general agents of the advantages of these benefits over those of other companies. This particular provision was a part of the original contract existing when he became agency vice-president of the company. He testified that its effect as written (to allow the company to retain a larger sum for servicing the policy after the agent had terminated the employment agreement than the company would retain if it took that service fee from each commission) was first shown to him by a general agent named Carl. Lanford’s testimony established that Carl complained to him that the three' per cent service fee deducted from renewal commissions would amount to more than the agent would earn in service fee commissions, and to an amount over fifty per cent of his renewal commission in the third through tenth years. Lanford’s response to Carl, and to Painter shortly thereafter, was that the provision would be interpreted as three per cent of commission rather than three per cent of premium. Lanford’s testimony also disclosed a variance in the terms of the vested renewal section of some of the agency contracts, for he changed the Carl contract from ten per cent of the renewal commission to three per cent. The Carl contract, he explained, had for some reason shown a “ten per cent override” as opposed to a “three per cent renewal commission on vested renewal.” (An override, in insurance parlance, is an additional amount of commission based upon what an agent produces). The problem regarding the three per cent service charge on commission was also raised by an agent named Worsham, and Lanford executed a contract with him allowing the percentage of renewal commissions specified in the agency agreement less a service fee of three per cent of each commission. In addition, he and Mr. Boozer (company president) negotiated a new contract with an agent named Kubiszyn which involved changes in his commission schedule. He also referred to a memorandum he sent to Mr. Watkinson, another agent, pointing out that the three per cent service fee would be charged on commission. With regard to Painter’s contract, his recollection was that he told Painter that [the clause in question] would be changed in his contract. “[i]t was not my intent,” he testified, “that we take three per cent of the premium — it was three per cent of the commission.”

He also referred to his instructions to the agency secretary to change this provision from three per cent of premium to three per cent of commission when the form contracts were reprinted and redesigned. He reiterated his assurance to Painter that his contract would be changed, but although it was his responsibility, it was not changed before he left the company in August, 1974.

Lanford conceded that the contract form setting forth the renewal rights was a printed form drafted by someone else and used by the company before he took his position with it. Also, he acknowledged that following his conversation with Mr. Carl he sought the advice of the company’s actuary to determine whether there was enough profit in the policy by giving the agent the greater amount: “. . . I am making this change — do you see any objection?” He also established that the practice among companies varied, with some basing the service charge on premiums and some basing it on commissions. Additionally, he explained that the term “service fee” was used in two different ways, in one as a plus for the agent, such as an addition to him of a percentage of the premium, the percentage varying according to the length of employment, and as a collection charge against a terminated agent’s vested renewal rights.

Painter himself testified that he signed the general agent contract forms, but he did not question Mr. Lanford about their contents. He did not, in fact, discuss any details other than the fact that the commissions were different from those he had earned as an agent, and his right to employ agents. It was about a year later when he learned from George Carl about the three per cent charge. When he mentioned it to Mr. Lanford, he was told by him that it was supposed to be three per cent of commission and not premiums, and that “it was going to , be three per cent of commission, that it would be changed when contracts were reprinted.” On cross-examination he acknowledged a present awareness of the provision in his contract that all changes had to be in writing, but that Lanford had told him that the provision was not effective.

Taken as a whole, this evidence falls short of clearly establishing what Painter and Lanford agreed upon at the time the contract was made. It comes much closer to establishing what they would have agreed upon had they both considered the terms of the contract at the time it was executed and the implications it would have upon future eligibility for net renewal premiums. What the evidence does show is that Painter entertained no intent at all upon that subject at the time the contract was executed. His intent was to sign a written contract which he had not read, the only terms of which discussed at that time being the commissions and the authority to employ agents. In fact, it is clear that Painter gave no thought to the question of vested renewal rights until a year after the contract had been executed. This hardly comports to a purpose, at the time of signing, to agree to a percentage of a service fee applied to commissions, and thus cannot support an inference that he made a mistake at that time, that is, that he misunderstood the terms, or made a wrong judgment. See Webster’s New Third International Dictionary (G. & C. Merriam Co., 1971) at 1446. Painter could not have misunderstood the terms unless he attempted to acquaint himself with them, nor could he have made a wrong judgment unless he had considered the alternatives at the time of execution.

Lanford’s testimony regarding the contract terms was as prospective as it was retrospective. That is, having become familiar with those terms through later discussions with others, he resolved that they would be interpreted differently, and would be changed. This later awareness of terms which seemed to him to be unfair, likewise does not clearly establish his intent at the time he executed the contract on behalf of the company, nor would his testimony have established, had it been allowed, that the provision as written did not reflect his intent during his discussions with Painter. This is because the subject in question was not discussed between them either before or during the execution and because, in fact, he did not draft the contract and was unfamiliar with these pertinent provisions until almost a year following its execution by Painter. Even then it appears that Lan-ford’s desire to amend its terms, assuming arguendo that he had authority to do so, was in his own mind prospective and subject to inquiry, for he sought information on the implications of such a change from the company’s actuary. No inquiry would have been necessary if the contract expressed that change ab initio.

In fact, the renewal rights clause as written in the form contract is as restrictive to the agent as it is beneficial to him, for it severely limits the conditions under which the agent may receive those accruals. It is at least inferable that the language used in that clause was also intended by the company to limit the amount of those accruals as well.

Considering the entire record favorably to the plaintiff, nevertheless it appears to prove a later intention of the parties rather than an intention of the parties at the time they contracted. Behan v. Friedman, supra. There is an absence of that clear, convincing and satisfactory evidence which is required to overcome the presumption attending the deliberately written word, that most clear evidence which removes uncertainty about the parties’ meaning. The evidence is equivocal, and being so it could not justify, on the ground of a mistake by both parties, the reformation decreed by the trial court which changed the words “of each premium” to the words “of each commission.” It follows that the decree of the circuit court must be reversed and the case remanded, and it is so ordered.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    Clifford SMITH et al. v. The NORTH RIVER INSURANCE CO., a corp.
    SC 2803.
    Supreme Court of Alabama.
    June 30, 1978.

      Jack Clarke, Northport, for appellants.
    William A. Scott, Jr., Wayne Morse, Jr., Birmingham, for appellee.
   SHORES, Justice.

Arthur Dixon and Fred Williams were involved with the same woman. At a party, attended by all three, Dixon shot Williams to death. In the process, Clifford Smith was also wounded. Smith sued Dixon alleging negligence and wantonness. Dixon called upon his insurer, North River Insurance, to defend the action. North River refused, claiming that the shooting was excluded by the terms of its homeowners policy with Dixon. The insurer filed a declaratory judgment action, and joined as defendants the parties to the tort action, to determine whether it had a duty to defend and whether the policy covered the incident. The trial court enjoined the litigation of the tort action pending disposition of the declaratory judgment action.

The policy provisions pertinent here are as follows:

“COVERAGE E — PERSONAL LIABILITY
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. . . .” (Emphasis Added)
“ADDITIONAL DEFINITIONS
“5. ‘occurrence’: means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.” (Emphasis Added)
“EXCLUSIONS
“1. Under Coverage E — Personal Liability
“f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.

North River contended that the injuries to Smith were expected or intended from the standpoint of Dixon and thereby excluded under the policy.

Motions for summary judgment by both sides were denied, and the issues were tried to a jury. The jury found that there was no coverage under the terms of the policy, and no duty to defend on the part of North River. The defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Their motion was denied and this appeal followed.

The appellants argue that the trial court should have dismissed the declaratory judgment action because the question of Dixon’s intent was at issue in the tort action pending between Smith and Dixon; that the court should not have entered judgment in favor of the insurer in the declaratory judgment while the possibility existed that a claim may be asserted against its insured which is covered by the terms of the policy; and finally, that the jury’s verdict was against the preponderance of the evidence.

Appellants are correct that an action for declaratory judgment may not supersede the determination of an issue already pending in another action filed prior to the declaratory judgment. Sparks Construction Co., Inc. v. General Mut. Ins. Co., 334 So.2d 897 (Ala.1976); Auto Mut. Ind. Co. v. Moore, 235 Ala. 426, 179 So. 368 (1938).

This is not such a case, however. The issue raised in the declaratory judgment action was whether the insurance company was obligated, under the policy provisions, to defend the action brought by Smith against his insurer. This issue turned on whether the injury, the basis of the personal injury suit, was “expected or intended,” as those terms are used in the contract between the insurance company and its insured. That is not the issue in the personal injury suit.

In Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754 (Ala.1976), the same procedure was followed. There, the insured pushed an individual out of a door, causing him to fall down several steps and strike his head on a concrete patio. The injury resulted in permanent brain damage. The injured person sued the insured who demanded that his insurer defend. The insurer filed a declaratory judgment action to determine whether the injury was excluded from coverage and whether it had a contractual obligation to defend the tort action under an exclusionary clause identical to that contained in the policy here. The trial court submitted to a jury the question of whether the injury was accidental and, therefore, covered by the policy, or whether it was expected or intended within the terms of the specific exclusion.' The jury found that the injury was unintended and unexpected from the standpoint of the insured and, therefore, the insurer was required to defend the pending action. On appeal, we affirmed, saying:

“ . Certainly it was the province of the jury to determine that Blake-ney [insured] never expected or intended Combs would suffer serious and extensive brain damage as the end result of being pushed from the doorway.
“ . . We cannot say, as a matter of law, the injury suffered by Combs was not accidental; the result of an accident within the terms of the policy, not expected or intended from the standpoint of the insured, Blakeney. This was a question of fact for the jury about which it was properly instructed by the trial court as to applicable law.” (340 So.2d at 755-756)

The same is true here. The issue of whether the injury suffered by Smith was “expected or intended” from the standpoint of the insured was tried to a jury, which was properly instructed as to the applicable law. We cannot say here, as a matter of law, that the injury was not expected or intended from the standpoint of the insured.

Contrary to appellants’ argument, Ladner & Co. v. Southern Guaranty Ins. Co., 347 So.2d 100 (1977), does not compel a different conclusion. In that ease, the insurer denied coverage and brought an action for declaratory judgment to determine its obligation to defend the suit against insured. The complaint against the insured alleged that the insured had sold the plaintiffs houses with knowledge that they would flood. In the declaratory judgment action, the trial court granted the insurer’s motion for summary judgment based upon the complaint in the damage suit and the exclusion in its policy. We affirmed in part and reversed in part, holding that, as presently postured, the insurer had no duty to defend because the complaint against the insured charged only intentional injury, and the summary judgment had been granted based upon those allegations and the policy exclusion. We noted in remanding, however, that the complaint might be amended to charge the insured with acts not excluded by the policy. No factual issue was resolved in the declaratory judgment action. Such is not the case here.

Neither are we persuaded that the jury verdict is against the preponderance of the evidence. There was evidence from which it could have concluded that Dixon expected or intended to injure Smith. Although the witnesses to the incident gave different versions of it, there was evidence to support the jury’s verdict.

Finding no error to reverse, the judgment appealed from is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Mary Elizabeth DeLoach FLETCHER v. William DeLOACH and Sandra DeLoach Hopkins.
    77-4.
    Supreme Court of Alabama.
    June 30, 1978.

      Thomas W. Underwood, Jr., Foley, for appellant.
    W. Kenneth Gibson, Fairhope, for appel-lees.
   TORBERT, Chief Justice.

The appellant, Mary Elizabeth DeLoach Fletcher, is the proponent of Ada B. Padgett’s last will and testament, which was executed on April 15, 1970. After the testatrix died on October 31,1975, Mrs. Fletcher filed the above mentioned instrument for probate on November 19, 1975. The appel-lees, a son and granddaughter of the testatrix, contested the probate of said will on April 1,1976, and moved that the contest of the will be transferred to circuit court for a trial by jury. See sections 43-1-70, 43-1-78, Code of Alabama 1975. The probate judge ordered the transfer of the cause to circuit court for trial by jury on April 2, 1976.

The trial was held on July 18 and 19, 1977. The trial judge, after hearing the evidence, ruled that the will had been properly executed and that there was no evidence of undue influence or fraud in the ease. Therefore, the only issue submitted to the jury was whether the testatrix possessed testamentary capacity at the time she executed the will of April 15,1970. The jury found for the appellees (contestants) on the issue of testamentary capacity, and the trial judge ordered that Mrs. Fletcher was not entitled to have the will probated.

Mrs. Fletcher filed a motion for new trial on August 2, 1977, alleging that the testimony and the evidence failed to support the jury’s verdict. The trial judge denied this motion on August 17, 1977. Mrs. Fletcher appeals from the denial of her motion for a new trial and from the jury verdict on a similar ground — whether the contestants satisfied their burden to prove the testatrix’s lack of testamentary capacity. We hold that there was evidence before the jury which would tend to show that the testatrix lacked testamentary capacity at the time she executed the will of April 15, 1970, and we therefore refuse to overturn the verdict of the jury where it has not been shown to be clearly wrong and unjust.

The testatrix must have testamentary capacity in order to execute a valid will; i. e., she must have

“mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other . . ..”

Knox v. Knox, 95 Ala. 495, 503, 11 So. 125, 128 (1892). However, since it is presumed that every person has the capacity to make a will, the contestant has the burden to prove a lack of testamentary capacity. Johnston v. Johnston, 174 Ala. 220, 227, 57 So. 450, 452 (1912). This court has said that:

“The burden is on the contestant to show incapacity at the time the will was made and insanity prior to that time, unless of a permanent character, raises no presumption of insanity at the time the will was made.”

King v. Aird, 251 Ala. 613, 617, 38 So.2d 883, 887 (1949). Unless the contestant presents evidence that the testatrix suffered from a permanent type of insanity prior to the execution of the will (which was not shown in this case), the contestant’s burden of proof is met when the jury is reasonably satisfied from the evidence that the testatrix did not have testamentary capacity at the time she executed the will. See Tucker v. Tucker, 248 Ala. 602, 611, 28 So.2d 637, 645 (1946).

When mental capacity is at issue, the factual inquiry must necessarily be of the broadest range:

“Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view the safer is the determination reached.”

Id. at 610, 28 So.2d at 644; accord, Batson v. Batson, 217 Ala. 450, 456, 117 So. 10, 15 (1928); Johnston v. Johnston, supra, 174 Ala. at 226, 57 So. at 452. Thus, evidence offered as to the mental and physical condition of the testatrix, either before or immediately after execution of the will, is admissible since it tends to indicate her condition when the will was signed. Burke v. Thomas, 282 Ala. 412, 417, 211 So.2d 903, 908 (1968); Haghart v. Cooley, 278 Ala. 354, 357-58, 178 So.2d 226, 228 (1965); Tucker v. Tucker, supra, 248 Ala. at 610, 28 So.2d at 644; Knox v. Knox, supra, 95 Ala. at 503-04, 11 So. at 128; Fountain v. Brown, 38 Ala. 72, 75 (1861). Likewise, testimony regarding the testatrix’s “conversations, deportment, acts, and appearance” has been found to be competent on the issue of testamentary capacity. Batson v. Batson, supra, 217 Ala. at 456, 117 So. at 15.

Also relevant to this issue is the character of the testamentary scheme; i. e., the reasonableness of the distributions made by the testatrix in her will. It is permissible for the jury to examine the will to see if its provisions are “just and reasonable, and consonant with the state of the [testatrix’s] family relations,” since this would reflect on her capacity to recall the natural objects of her bounty. Fountain v. Brown, supra at 74. This court, in Councill v. Mayhew, 172 Ala. 295, 55 So. 314 (1911), has stated that:

“An unequal disposition of property per se raises no presumption ... of testamentary incapacity, nor is it per se unnatural; but the unequal treatment of those who ostensibly have equal claims upon the testator’s bounty, or the preference of one to the exclusion of another, may under the circumstances of a particular case, be deemed unnatural. In such a case, an unnatural disposition is a fact to be ascertained and considered by the jury [on the issue of testamentary capacity]-”

Id. at 308, 55 So. at 318; accord, Tucker v. Tucker, supra, 248 Ala. at 612, 28 So.2d at 646; Batson v. Batson, supra, 217 Ala. at 457, 117 So. at 16. The pecuniary condition of the testatrix’s heirs, when considered in the light of an unnatural disposition of property, would also reflect on the character of the will and would therefore be admissible. Fountain v. Brown, supra at 75.

There was sufficient evidence presented in this case for the jury to find that the testatrix lacked testamentary capacity when she signed her will on April 15, 1970. The testimony indicated that the testatrix became quite depressed after her eldest son died in January of 1970, and there was also evidence presented that she was disoriented when she went to Florida with relatives both before and after April 15, 1970. The evidence indicated a noticeable decline in the testatrix’s attention to her appearance and to the cleanliness of her clothing immediately prior to the execution of the will.

The fact that the 1970 will left all of the estate to Mrs. Fletcher, the testatrix’s daughter, thus making no provision for her son or granddaughter, could be evidence of an unnatural disposition of her property, and could be considered by the jury on the issue of testamentary capacity. This feature of the 1970 will is significant in that the 1970 instrument revoked the testatrix’s prior will of 1959, which provided for the equal disposition of her estate among her three children.

The unnatural disposition manifested by the 1970 will and the pecuniary condition of the testatrix’s heirs in 1970 (which did not show a great disparity between Mrs. Fletcher’s financial condition and that of the testatrix’s son and granddaughter), when considered with the evidence of the mental and physical condition of the testatrix before and after the execution of the will, supports the jury’s verdict that the testatrix lacked testamentary capacity. In cases of this nature, the verdict of the jury cannot be overturned unless shown to be clearly wrong and unjust. Wilson v. Payton, 251 Ala. 411, 414, 37 So.2d 499, 501 (1948); Watkins v. Yeatman, 189 Ala. 370, 66 So. 707 (1914). The refusal of the trial judge to grant the appellant-proponent’s motion for new trial strengthens this presumption in favor of the verdict. Johnson v. Howard, 279 Ala. 16, 22, 181 So.2d 85, 91 (1965). After a careful consideration of the record in this case, we feel that the jury’s verdict is not clearly wrong and unjust, and the judgment entered in favor of the contestants is hereby affirmed.

AFFIRMED.

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


text:
    William Earl CHAPMAN v. Gloria Hogue CANOLES and Orville Canoles.
    77-26.
    Supreme Court of Alabama.
    June 30, 1978.

      E. Ray Large, Birmingham, for appellant. Edward O. Conerly, Birmingham, for ap-pellees.
   MADDOX, Justice.

Lisa Chapman was fatally injured in an automobile collision. Her father filed this wrongful death action, and a jury returned a verdict for the defendant. The father’s motion for a new trial claimed that the trial court erred:

1. In refusing to allow the introduction into evidence of pictures of the deceased lying on the mortician’s table;

2. In refusing to admit into evidence blood samples of the deceased;

3. In allowing the defendant to testify that her husband was on strike and out of work.

Chapman also argues that the verdict was contrary to the great weight of the evidence because he claims that there was no evidence from which the jury could determine that Lisa Chapman was at fault.

I

The trial court did not err in refusing to allow Chapman to introduce certain pictures, which depicted the deceased lying on the mortician’s table in a manner which emphasized different injuries she received in the automobile accident. We have viewed the pictures offered, and we are of the opinion that the trial court did not err. Bagley v. Grime, 283 Ala. 688, 220 So.2d 876 (1969).

II

Did the trial court err in refusing to allow the plaintiff to introduce the result of blood sample tests made of the deceased? These tests were offered to rebut any inference that the deceased was intoxicated by alcohol or drugs on the date of the accident. The trial court did not err in excludirg these tests from the evidence. No issue was made that the deceased was intoxicated, and the trial judge told Chapman’s attorney that his ruling might change if the blood sample test were offered at some other time during the course of the trial. Chapman’s attorney responded:

“There is no evidence before the jury at this time, but I think it would certainly do away with and erase any speculation on the part of any juror, with respect to it, and that is the purpose of the offer.”

There was no testimony in the case that the deceased was under the influence of drugs or alcohol and no contentions were made to that effect by counsel for the defendant. The plaintiff’s attorney stated in opening statement that he expected to prove by the coroner that a blood sample taken from the deceased showed the absence of drugs or alcohol. The question of the admissibility of the test was discussed in chambers out of the presence of the jury, and the coroner testified that a blood sample was drawn by him, or under his supervision, in the embalming procedure at the funeral home. The coroner testified that the blood was not drawn by a physician or a nurse, but that it was just an embalming procedure at the funeral home. No formal offer of the report of the testing of the blood was made, but the court indicated that an objection to its admissibility would be sustained if an offer were made. There was no error in refusing to permit evidence of the blood sample to be admitted into evidence. Rehling v. Carr, 295 Ala. 366, 330 So.2d 423 (1976); Lankford v. Red Wing Carriers, Inc., 344 So.2d 515, Ala.Civ.App. (1977).

Ill

Chapman further complains that the trial court committed error in overruling his objection to the following question propounded to the defendant’s wife by defendant’s counsel:

“I believe your husband was out of work at that time.”

The record shows that this question was never answered. This Court has continuously held that error cannot be predicated on the overruling of objections where the question is never answered. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970).

IV

Chapman’s last issue states that the trial court erred in failing to grant his motion for a new trial because the verdict was against the great weight of the evidence. We do not agree.

The rule is stated in Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975):

“ ‘. . This court has held many times that verdicts are presumed to be correct and no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785. Furthermore, verdicts are presumed correct and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. Mintz v. Millican, 266 Ala. 479, 97 So.2d 769. Furthermore, on appeal from a judgment . . this court must review the tendencies of the evidence most favorable to the [prevailing party] allowing such inferences as the jury was free to draw. Jeffrey Mfg. Co. v. Hannah, 268 Ala. 262, 105 So.2d 672.’ Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961).”

We have carefully reviewed the evidence and are not convinced that the verdict is without support.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Myrtis H. CAIN, as Guardian of Monte Jon Bayless, a minor v. AETNA LIFE INSURANCE COMPANY, a corporation, and Bobby J. Bayless.
    77-75.
    Supreme Court of Alabama.
    June 30, 1978.

      Charles P. Hollifield, Montgomery, for appellant.
    E. Ted Taylor, Prattville, for appellee, Bobby J. Bayless.
   BLOODWORTH, Justice.

Plaintiff, Myrtis H. Cain, the testamentary guardian of minor, Monte Jon Bayless, appeals from a denial of a motion for new trial following a jury verdict for defendant, Bobby Bayless. We affirm.

Virginia H. Bayless, Monte Jon’s mother, died of cancer on August 31,1976. Prior to her death, she changed the beneficiary of her insurance on two occasions. Her husband, the defendant, was originally designated as beneficiary of the proceeds. On March 19, 1976, she executed her first change of beneficiary form, naming her son, Monte Jon, as beneficiary. On August 25,1976, six days before her death, Virginia Bayless again executed a change of beneficiary form, which re-named her husband as beneficiary.

Suit was filed by plaintiff against defendants Aetna Life Insurance Company and Bobby J. Bayless, alleging, inter alia, that the insured lacked “mental capacity” at the time she "executed the final change of beneficiary form on August 25, 1976. Before trial, defendant, Bobby Bayless, filed a motion in limine requesting that the introduction of any evidence regarding his alleged extramarital affairs be barred because such evidence was irrelevant to the question of his ex-wife’s mental capacity at the time she executed the final change of beneficiary form. The court granted this motion. The case was tried to a jury which returned a verdict for defendant, Bayless. When plaintiff’s new trial motion was denied, this appeal ensued.

On appeal, plaintiff contends the trial court erred in granting defendant’s motion in limine. We cannot agree.

It is true that, in general, courts are liberal with regard to the admission of evidence bearing on a person’s mental capacity at the time of the execution of a will. See Haghart v. Cooley, 278 Ala. 354, 178 So.2d 226 (1965); and, Price v. Marshall, 255 Ala. 447, 52 So.2d 149 (1951). However, in order to be admissible, the evidence must necessarily be relevant to that question.

“ . . . Though it is impossible to avoid the conclusion that, in a broad sense, every act of a person’s life is relevant to the issue of his mental capacity at any time of his life, it is also possible that evidence of the act of a party at a particular time may have but a glimmer of probative value on the issue of his mental capacity at another time, and yet be likely to stimulate excessive emotion or prejudice against him and thus to dominate the mind of the trier of fact and prevent a rational determination of the truth. In a situation of that sort, it would seem that evidence of the act ought to be excluded.”

McElroy, Relevancy of Evidence in Alabama Upon an Issue of a Person’s Mental Capacity, 4 Ala. Lawyer 384, 394.

The trial judge has a great deal of discretion on the issue of relevancy, and unless such discretion is grossly abused, it will not be considered to be error on appeal. Independent Life and Accident Insurance Co. v. Maxwell, 53 Ala. App. 396, 301 So.2d 85 (1974). Here, we cannot say the trial judge abused his discretion in this matter. Not only would any alleged adulterous acts by the defendant have little, if any, logical relevance to the decedent’s mental capacity, but such testimony would certainly be highly prejudicial.

Plaintiff next contends the trial court erred in refusing to allow her to relate certain statements made by the decedent with regard to the relationship between the defendant and his son and in refusing to allow her to describe the relationship between the defendant and his son in March 1976. Again, we cannot agree. With regard to the trial court’s refusal to allow her to testify as to that relationship in March 1976, we think this was properly excluded. With regard to her testimony as to decedent’s statements regarding that relationship, we think this, too, was properly excluded.

“ * * * To be admissible, the statements or .declarations (of a testatrix) must not have been made at a period too remote from the time when the will was executed; they are admissible on the issue of testamentary capacity only where they are made so near to the execution of the will as to afford a reasonable inference of the condition of his mind at that time. Whether evidence of prior testamentary intentions is too remote to be admissible on the issue of testamentary capacity or undue influence depends on the circumstances of each case, and the determination of the trial judge is practically final.”

Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968).

Plaintiff next contends the trial court erred in sustaining an objection to a hypothetical question asked of an expert witness, a doctor, regarding the decedent’s mental condition approximately four weeks prior to death. We cannot agree.

The frame and substance of hypothetical questions to expert witnesses is left largely to the sound discretion of the trial court, and the ruling of the court on such matters will not be disturbed unless such discretion is abused. Barfield v. Wright, 286 Ala. 402, 240 So.2d 593 (Ala.1970). Particularly is this so, where, as here, the trial judge overruled defendant’s objections to a question asked of the same doctor and allowed testimony concerning the decedent’s mental capacity at the time she executed the second change of beneficiary form. We can find no abuse of discretion here.

Plaintiff next contends the trial court erred in sustaining objections to questions asked of plaintiff concerning the deceased’s mental condition from mid-August 1976, to August 21,1976. We cannot agree. The trial judge allowed plaintiff to testify as to decedent’s mental condition from August 21, 1976, until the date of her death. Therefore, the error, if any, was clearly harmless since, at most, evidence of five or six days was excluded, and even this is uncertain because “the middle of August” lacks specificity.

Plaintiff next contends the trial court erred in refusing to admit testimony by plaintiff as to whether the decedent was “oriented” in her conversations. Again, we cannot agree, because no predicate was laid for this question, specifying the time frame in question.

Plaintiff finally contends the trial court erred in refusing to admit into evidence the initial change of beneficiary forms of March 1976, in which her son was named as beneficiary. Again, we must disagree. It is true, as plaintiff has contended, that wide latitude is to be given when the question involved is mental capacity. In fact, a number of Alabama decisions have held a trial court committed reversible error by unduly restricting the scope of inquiry on that issue. Plaintiff cites Price v. Marshall, supra, wherein this Court wrote:

“ . . . whatever acts, conduct or declarations, either prior or subsequent to the execution of the several documents, which bear probatively on the chronic and progressive mental impairment of the testatrix should be allowed in evidence to aid the jury in reaching a correct conclusion.”

This ease differs, however, in that the testimony which is offered as to the decedent’s actions in March 1976, would go to establish her mental “capacity” at that time. There is no disagreement about her mental “capacity” in March 1976. It is her mental “incapacity” on August 25,1976, which is at issue. Therefore, such evidence does not “bear probatively on the chronic and progressive mental impairment of the testatrix and we do not think the trial court abused its discretion in refusing to admit such testimony.

The case was tried to a jury. The evidence was conflicting. The jury decided the issues in favor of defendant. Plaintiff’s motion for new trial was overruled by the trial judge. We are not disposed to reverse the judgment, on verdict for the defendant, for the reasons we have given.

Affirmed.

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


text:
    HERTZ EQUIPMENT RENTAL CORPORATION v. DRAVO CORPORATION.
    77-106.
    Supreme Court of Alabama.
    June 30, 1978.

      J. Glynn Tubb of Eyster, Eyster, Key, Carmichael & Tubb, Decatur, for appellant.
    E. Cutter Hughes, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee.
   ALMON, Justice.

This is an appeal, under authority of a Rule 54(b) determination, from a summary judgment dismissing Hertz’s third-party suit for indemnification against Dravo. We affirm.

The third party complaint arises out of a suit filed by Raymond Lawhorn against General Motors Corporation and Hertz for negligence and breach of warranties to recover damages for personal injuries incurred when a clutch assembly of a dump truck “exploded” while being operated by Lawhorn. Lawhorn was employed by Dra-vo which leased the dump truck from Hertz. The lease agreement provides that Dravo will indemnify or hold harmless Hertz with regard to any claim for property damage or personal injuries instituted against Hertz.

The issue is whether § 25-5-53, Code of Alabama 1975, bars the suit against Dravo because, as the employer of Lawhorn, Dravo is civilly immune from such suits. Hertz relies on the specificity of the applicable language in the lease agreement and the case of Eley v. Brunner-Lay Southern Corporation, Inc., 289 Ala. 120, 266 So.2d 276 (1972).

Our recent case of Paul Krebs & Assoc. v. Matthews and Fritts Const. Co., Inc., 356 So.2d 638 (Ala., 1978), expressly overruled the Eley case and is dispositive of the issue raised herein.

As an alternative, Hertz argues that the decisions of this court prohibiting such third-party suits against the employer— Krebs, supra, and cases cited therein — deprive Hertz of remedies in violation of Art. I, § 10, and § 13 of the Alabama Constitution and due process clause of the Fourteenth Amendment of the United States Constitution. Hertz cites Sunspan Engineering & Construction Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla., 1975), and Carlson v. Smogard, 298 Minn. 362, 215 N.W.2d 615 (1974) for authority.

There is no duty owing Hertz by Dravo which would give rise to a tort claim, for the rule in Alabama is that one of several joint tort-feasors cannot enforce contribution from other tort-feasors. Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete and Metal Pipe Co., Inc., 335 So.2d 125 (Ala., 1976); Gobble v. Bradford, 226 Ala. 517, 147 So. 619 (1933). The right to indemnity from Dravo is founded on a contractual duty which is unenforceable as violative of a legislative enactment. Krebs, supra, and cases cited therein.

The right to indemnification that Hertz claims that deprivation of which would violate § 10 and § 13 of our constitution is not a cause of action and remedy preserved by our constitution. See the Grantham trilogy (Grantham v. Denke), 359 So.2d 785 (Ala., 1978), and Pipkin v. Southern Electrical and Pipefitting Company, Inc., 358 So.2d 1015 (Ala., 1978). To permit indemnification of Dravo in this case would allow Hertz to create a cause of action by contract, causing Dravo, the employer that paid workmen’s compensation benefits to Lawhorn, to again pay damages for the same injury; something not permitted under Alabama law.

Thus, Dravo owes Hertz no legal duty upon which Hertz may sue. We reject the constitutional challenge.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    STATE of Alabama v. Leonard R. LUCAS et al.
    77-169.
    Supreme Court of Alabama.
    June 30, 1978.
    Herndon Inge, Jr., Special Asst. Atty. Gen., Mobile, for appellant.
    Samuel L. Stockman, Mobile, for appel-lees.
   JONES, Justice.

Affirmed on the authority of State v. Colley Corp., 295 Ala. 204, 326 So.2d 120 (1976); and Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545 (1948). See also State v. Burroughs, 285 Ala. 177, 230 So.2d 235 (1970); and 29A C.J.S. Eminent Domain § 273.

AFFIRMED.

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


text:
    Mack L. BURT et al. v. BURT BOILER WORKS, INC., Raymond E. Burt, et al.
    77-198.
    Supreme Court of Alabama.
    June 30, 1978.

      M. R. Nachman, Jr. and Griffin Sikes, Jr., of Steiner, Crum & Baker, Montgomery, for appellants.
    Charles M. Crook, Montgomery, for ap-pellees.
   SHORES, Justice.

Burt Boiler Works, Inc. is a close corporation formed in Alabama in 1962. At the time of incorporation, 1700 shares of stock were issued to its three incorporators: William Raymond Burt (decedent) — 850 shares; William Albert Burt (decedent’s father)— 849 shares; and Consuelo Burt (decedent’s mother) — 1 share.

Prior to incorporation, the business had been operated by members of the Burt family as a partnership. As is frequently the case, the owners and operators of the business did not want the fact of incorporation to substantially change the day to day operation of the business and they adopted a plan which would limit share ownership to persons approved by the original shareholders or their successors. Although there are various kinds of restrictions on transfer of the stock, which may be adopted (see O’Neal, Close Corporations, § 7.05), the Burt family adopted a first option provision whereby the corporation was granted a right of first refusal to purchase.

The original charter and by-laws of the corporation specifically provided that prior to any transfer of its stock, the owner must first offer to sell the stock to the corporation at market value or book value, whichever was higher. If the corporation' declined to exercise this option to purchase, the remaining stockholders then had the same right to purchase in proportion to their respective stock ownership. The restriction specifically applied to testamentary transfer or disposition of the stock as well as inter vivos transfers.

William Albert Burt, decedent’s father and one of the three original incorporators, died in 1963. The corporation did not exercise its option to purchase his 849 shares and they were distributed in accordance with William Albert Burt’s will to Consuelo, his widow, 424 shares; to Mack Burt, Jean Myrick, Margaret Thomas, Thomas Burt, Helen Ciniglio and David Albert Burt (his children), 68 shares each; and to decedent, his son and one of the original incorpora-tors, 17 shares.

In 1969, Helen Ciniglio, after the corporation declined to exercise its option to purchase her shares, sold her 68 shares to her sister, Margaret Thomas.

Consuelo Burt died in 1971. Her will bequeathed her 425 shares of stock equally to her children. The corporation exercised its option to purchase only five of these shares and the remaining 420 shares were distributed — 60 shares to each of her children, William Raymond (decedent), Mack, Jean, Margaret, Thomas, David Albert and Helen.

Margaret Thomas died on December 3, 1973, and the corporation exercised its option to purchase her 196 shares under the restrictive provision, which, in addition to being set out in the charter and by-laws, had also been made subject to a stockholder agreement executed in 1973. The restriction contained in all three instruments is, in pertinent part, as follows:

“ ‘No share of stock may be transferred, assigned, sold, or otherwise disposed of by the owner thereof unless such share has first been offered to the corporation at the book or market value thereof, whichever is higher; and if the corporation does not exercise this privilege of purchase, then the other stockholders shall have the same privilege of purchase in proportion to their respective stock ownership in the corporation.
“ ‘If a stockholder dies, the corporation may purchase the shares of stock of such deceased stockholder at the book or market value thereof at the time of purchase, whichever is higher; and if the corporation does not exercise this privilege of purchase of such shares of stock of a deceased stockholder, then the remaining stockholders shall have the same privilege of purchase in proportion to their respective stock ownership in the corporation.

The stockholders’ agreement contained and the charter and by-laws were amended to include a provision that, if the corporation exercised its option to purchase the shares of a deceased stockholder, it would have ten years in which to pay the purchase price.

William Raymond Burt died on November 24, 1976. At that time, he was president and general manager of the corporation and one of three directors of the corporation along with Mack L. Burt and Thomas H. Burt, his brothers, who had acquired their stock in the corporation under the wills of their father and mother.

At the time of his death, William Raymond Burt owned 927 shares of the company’s stock, approximately 62% of the shares outstanding. By will, he left all but 11% of his stock to his children, in varying amounts: Raymond E. Burt, 32%; Hampton Granger Burt, 16%; James R. Burt, 16%; Howard Allen Burt, 16%; and Dorothy Jean Burt Faulkner,. 9%. He bequeathed 7% of his stock to his sister, Helen Ciniglio, and 4% to his sister, Jean B. Myr-ick. As a result of the manner in which Mr. Burt’s will bequeathed his stock, his children became the owners of approximately 55% of the outstanding stock and his brothers and sisters became the owners (including the stock which they already owned) of approximately 45%. He named two of his children co-executors of his will.

A few days after Mr. Burt died, his two brothers, the. surviving members of the board of directors, held a special meeting of the board on November 29, 1976, and filled the vacancy created by Mr. Burt’s death by appointing their sister, Jean Myrick. Each of these three was designated a corporate officer. The newly constituted board then elected to exercise, on behalf of the corporation, the option to purchase the 927 shares owned by the decedent at the time of his death. The board notified the children of Mr. Burt of this decision by letter which informed them that the corporation would purchase the stock at book value.

Thereafter, on December 8, 1976, the co-executors, acting in that capacity and as individuals holding 55% of the company stock, gave notice of a special meeting of the stockholders to be held on December 22, 1976. There having been no annual meeting of stockholders in 1976, the notice also designated the meeting as a “substitute annual meeting.” At this meeting, the co-executors voted the stock of the decedent to elect a new board of directors. The new board removed the old board members as officers of the company and replaced them with Raymond Edward Burt, Dorothy Jean Burt Faulkner and James R. Burt, all children of the decedent. The new board rescinded and set aside the decision of the old board to exercise the corporate option to acquire the stock of the decedent under the restrictive agreement.

When the old board members refused to relinquish control of the corporation to the newly elected officers, the children of the decedent commenced this litigation. They sought to have the court declare their actions as stockholders of the company valid, that the meeting of stockholders and directors on December 22,1976, was valid and lawful; and that the decision of the old board to exercise the option to buy the decedent's stock had been lawfully rescinded and set aside. Alternatively, they asked the court (if it did not agree with their primary contentions) to determine the amount they were entitled to receive for the stock in their father’s estate.

By counterclaim, the minority stockholders sought specific performance of the stock transfer restrictions and provisions of the charter, by-laws and agreement and asked the court to order the transfer of the stock of the decedent to the corporation. They contended that the action of the co-executors and their attempts to exercise any rights as stockholders of the company in calling the stockholders meeting, electing a new board and rescinding the action of the old board was null and void. They asked the court to declare that the old board members were duly elected and remained the actual officers and directors of the corporation.

Both sides filed motions for summary judgment supported by affidavits and other evidence. The court held a hearing on these motions and entered summary judgment in favor of the children of the decedent (the majority stockholders) and against the brothers and sisters of the decedent (minority stockholders). The latter appealed.

The trial court’s order states the issues as follows:

“The threshold legal question presented by these motions can be generally stated as follows: Where William Raymond Burt, deceased, devised by will his 62 percent bloc of stock in Burt Boiler Works, Inc., which stock was subject to an option to purchase by that corporation, may Mr. Burt’s executors vote upon and otherwise participate in the corporate decision of whether the corporation will exercise its option? Upon a thorough review of the affidavits and other documents submitted by both parties in connection with the Motions for Summary Judgment, and upon consideration of extensive briefs and arguments of counsel, the Court concludes that there is no genuine dispute as to any of the material facts relative to this question. Upon close questioning by the Court, counsel for all parties have agreed that based upon the materials upon which their respective motions were submitted, there was no genuine issue as to any material fact and each moving party asserted that, accordingly, the respective movant was entitled to summary judgment as a matter of law.
. . Defendants do not dispute that these meetings were carried out in accordance with all the requirements of the bylaws, but Defendants contend that Plaintiffs simply had no right to act as stockholders of the corporation. •
“Based upon several theories, Defendants’ counsel ably argues that the existence of the Charter, Bylaws, and Stockholder Agreement provisions described above precludes a valid transfer by Will of Mr. Burt’s stock, that neither his executors nor his individual devisees became stockholders of the company, and that his executors did not have the right to vote Mr. Burt’s stock, to exercise other stockholder’s rights, or participate in the corporate decision of whether the corporation would exercise its admittedly valid option. . . . ”

Both sides concede the validity of the restrictive arrangement. They differ only on whether the restrictive agreement precludes the executors of the estate of the majority stockholder to vote that stock. It is the appellants’ argument that the executors “were not stockholders” and, therefore, had no authority to call a stockholders’ meeting and any action taken at such a meeting was void. But nothing in the law or in the restrictive agreement prevents the executors from voting the stock. The trial court recognized, as we do, that the option such as the one utilized here is a common method for restricting ownership of stock in closely held corporations to a particular group. But such options do not deprive the selling stockholder of the right to vote his stock unless he contracts that right away or the charter or by-laws prohibit it. Fletcher on Corporations, §§ 2028, 2029 and 2032.

§ 10 — 2—134(f), Code 1975, provides that shares held by an executor may be voted by him without transfer of such shares into his name. The by-laws of this corporation provide in Article I, §§ 3 and 4:

“3. Substitute annual meetings. If the annual meeting shall not be held on the day designated by these by-laws, a substitute annual meeting may be called in accordance with the provisions of Section 4 of this Article. A meeting so called shall be designated and treated for all purposes as the annual meeting.
“4. Special meetings. Special meetings of the shareholders may be called at any time by the President, Secretary of Board of Directors of the corporation, or by any shareholder pursuant to the written request of the holders of not less than 10% of all the shares entitled to vote at the meeting.”

Thus, the law permits, without specific restrictions, an executor to vote the shares held in the name of a deceased stockholder. The law (§ 10-2-130, Code 1975) and the by-laws of this corporation permit any stockholder or group of stockholders holding not less than 10% of the shares entitled to vote to call a meeting of the stockholders.

Article III, § 5, of the by-laws of the corporation provides:

“5. Removal. Directors may be removed from office with or without cause by a vote of shareholders holding a majority of the shares entitled to vote at an election of the directors.”

The corporate charter, by-laws and the stockholder agreement are silent on the question of whether the selling stockholder or his legal representative may vote as a director or shareholder against the exercise by the corporation of the option. Professor O’Neal, in his work, Close Corporations, § 7.18,' emphasizes the importance of this question in drafting documents to restrict transferability of shares:

“. . . Finally, whenever the corporation is given a first option to purchase shares of a holder who decides to sell or of a holder who dies, the restrictive provision should specify whether a selling shareholder or the legal representative of a deceased holder may vote as a director or shareholder against the corporation’s exercise of the option. . . . ”

O’Neal cites Kentucky Package Store v. Checani, 331 Mass. 125, 117 N.E.2d 139 (1954), in which the court held that the administrator had the right to vote the shares of the majority stockholder, saying:

“. . .We think the matter of the purchase is one which properly may be considered by the stockholders. It involves the right of the corporation to determine in whom-the future control of its management shall be vested. In the administration of corporations it is a fundamental principle that the majority in value of the stockholders can, in the absence of special provisions to the contrary, regulate and control the lawful exercise of corporate powers. Durfee v. Old Colony & Fall River Railroad, 5 Allen 230, 242; Albert E. Touchet, Inc. v. Touchet, 264 Mass. 499, 509, 163 N.E. 184; Bushway Ice Cream Co. v. Fred H. Bean Co., 284 Mass. 239, 244, 187 N.E. 537; Opinion of the Justices, 261 Mass. 556, 596-597, 159 N.E. 70. Fletcher, Cyc. Corporations, § 2097. There appears no provision in the by-laws of this corporation which restricts the exercise of corporate powers by the stockholders. . . (117 N.E.2d at 141)

To the same effect: Boss v. Boss, 98 R.I. 146, 200 A.2d 231 (1964).

The corporate decision to exercise the option under the restrictive plan adopted in this case was left to the Board of Directors, but because the majority held enough stock to call a meeting of stockholders and also held enough (the majority) to elect a new board, it had the legal authority to rescind the action of the old board. We do not agree, however, with the Massachusetts Court that absent “specific provisions to the contrary” a majority may always regulate and control the lawful exercise of corporate powers.

It is rio longer seriously debated that majority stockholders owe a duty to at least act fairly to the minority interests, and the majority cannot avoid that duty merely because the action taken is legally authorized. O’Neal, Close Corporations, § 8.07, says:

“In the past, some courts have permitted majority shareholders to exercise, without any restriction other than good faith, whatever powers they had as controlling shareholders under the statutes and the corporation’s charter and bylaws; and further, they have treated the fiduciary duties of the directors as running only in favor of the corporation, not to the minority shareholders. This view that the controlling shareholders and the directors do not owe fiduciary duties to minority shareholders appears outmoded, at least as applied to . attempts to eliminate minority shareholders or to deprive them of their proportionate rights and.powers without a just equivalent. Where several owners carry on an enterprise together (as they usually do in a close corporation), their relationship should be considered a fiduciary one similar to the relationship among partners. The fact that the enterprise is incorporated should not substantially change the picture. When businessmen organize a corporation they enter into their relationship against a background of corporation statutes and common law doctrine which vest in the directors the power to manage the corporation’s affairs and in the directors and certain percentages of the shareholders power to effect fundamental changes in the corporation . But this does not mean that the directors or the majority shareholders should be permitted to exercise their powers arbitrarily or without regard to the legitimate expectations of the minority shareholders; and many of the older decisions and practically all of the recent ones indicate that controlling shareholders, in some circumstances at least, owe fiduciary duties to minority shareholders, and that the courts will require them (whether they act in their capacity as shareholders or through directors or officers whom they control) to observe accepted standards of business ethics in transactions affecting rights of minority shareholders. .

See: Southern Pacific Co. v. Bogert, 250 U.S. 483, 487, 488, 39 S.Ct. 533, 535, 63 L.Ed. 1099 (1919), where Justice Brandéis, speaking for the court, said:

“. . . The majority has the right to control; but when it does so, it occupies a fiduciary relation toward the minority, as much so as the corporation itself or its officers and directors. . . ”

Accord: Lebold v. Inland Steel Co., 125 F.2d 369, 373 (C.A. 7th Cir. 1941), where the Seventh Circuit held:

“. . . However proper a plan may be legally, a majority stockholder can not, under its color, appropriate a business belonging to the corporation to the detriment of the minority stockholder. . . ”

In the instant case, the minority stockholders alleged by way of their counterclaim that the acts of the majority amount to an attempt to use the stock for their own personal advantage contrary to and in conflict with the business interests of the corporation and its stockholders. However, they offered no evidence to prove that allegation, and conceded at the hearing on the motions for summary judgment, that there was no issue of fact to be tried.

The majority stockholders have ousted the appellants from positions on the board of directors and renamed themselves as officers of the corporation. The majority now controls the corporate management. Should they, acting through the board and corporate officers, which they control, deprive the minority stockholders of their just share of the corporate gains, such would, of course, be actionable. Among the techniques described by O’Neal and Derwin (Expulsion or Oppression of Business Associates: “Squeeze-Outs” in Small Enterprises, (1961) to oppress minority stockholders are: withholding of dividends and siphoning off earnings by paying high compensation to majority stockholders or their relatives.

The appellants have shown only that the majority has taken control of the corporation. They have not shown, however, that they have been deprived of any rights they have as stockholders in the corporation.

Of course, the remaining stockholders have the right under the charter by-laws and the stockholder agreement to purchase the stock of the decedent “in proportion to their respective stock ownership in the corporation.” It is possible, if this right is exercised, that the majority stockholders can become the minority or if all of “the remaining stockholders” exercise the privilege of purchasing the decedent’s shares, his children would not take any stock under his will.

The trial court’s judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., concur.