author: BOWLING, Justice,

text:
    DEPOSIT GUARANTY NATIONAL BANK OF JACKSON, Mississippi, Duly Appointed, Qualified and Acting Executor of the Last Will and Testament of Edith Marshall Tucker (Mrs. J. W. Tucker), Deceased, v. FIRST NATIONAL BANK OF JACKSON, Mississippi, Trustee of the Trust of J. W. Tucker, Deceased.
    No. 49844.
    Supreme Court of Mississippi.
    Dec. 21, 1977.

      Daniel, Coker, Horton, Bell & Dukes, Charles W. Witt, Boswell Stevens Hazard, Jackson, for appellant.
    Wise, Carter, Child, Steen & Caraway, William 0. Carter, Jr., William McDonald Nichols, Stennett, Wilkinson & Ward, James A. Peden, Jr., Anson B. Chunn, Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Deposit Guaranty National Bank, executor of the last will and testament of Edith Marshall Tucker (Mrs. J. W. Tucker), deceased, filed its bill of complaint in the Chancery Court of the First Judicial District of Hinds County against First National Bank of Jackson, Mississippi, trustee of the trust of J. W. Tucker, deceased. Appellee filed a cross-bill of complaint. Appellant brings this appeal from the lower court’s decree on both claims. We reverse in part and render.

J. W. Tucker died on November 30, 1962. On March 13, 1954, Mr. Tucker executed a very lengthy and complicated will and testamentary trust. On July 20, 1960, he executed a lengthy codicil to his last will and testament. Certain changes were made in specific bequests and in the testamentary trust. In this case we are concerned only with Item VI of this codicil, which reads as follows:

In addition to the purposes set forth in said will and in addition to the payments called for by my said will and in this Codicil, I direct that out of the income of said trust the Trustee shall pay to my beloved wife for the duration of her life the sum of One Hundred and no/100 dollars ($100.00) per week, or so much thereof as she may desire. If my wife requires more in order to live in the manner to which she has been accustomed, then in the discretion of the Trustee solely, the Trustee may pay to her a greater sum than above set forth. The Trustee is authorized to use the corpus or principal or income of the trust to make these and the other payments set forth as necessary. The Trustee is also authorized to use of said corpus or the principal or income of said trust for the support, maintenance, health, medication, or medical treatment, hospitalization, or nursing care of any character for my said wife for her benefit, to the end that her health does not suffer on account of lack of funds. So long as my said wife shall live in her house, the Trustee shall pay all taxes, maintenance, and service bills thereon, such as electricity, water, gas and telephone. Upon the death of my wife, I direct that the Trustée pay all funeral expenses. The payments herein called for, along with those set forth in Paragraph VIII of my said Will, shall be made prior to the making of any other payments called for under the Trust set up in my Will or this Codicil. I hereby direct that my Executor make such payments to my said wife for her and for my daughter, Mrs. Louise Tucker Burgess, as are called for from the Trust herein until said trust arises and is vested with the corpus left to it.

Mrs. Tucker died on September 4, 1973, and appellant bank since then has administered her estate as executor of her last will and testament.

Appellant’s bill of complaint alleges that under the testamentary trust set up by Mr. Tucker with appellee as trustee, the trust owes Mrs. Tucker’s estate for certain items remaining unpaid. These items are:

1. The sum of $20,147.27 for medical, drug, hospital and nursing home expenses incurred by Mrs. Tucker prior to her death;

2. $100 per week for 52 weeks that was not paid by the trustee to Mrs. Tucker prior to her death;

3. The sum of $1,810.52 paid by Mrs. Tucker for expenses on her home prior to her death;

4. The sum of $1,403.50 paid by Mrs. Tucker’s estate for her funeral expenses.

In its cross-bill of complaint, appellee asked for reimbursement of ad valorem taxes paid on Mrs. Tucker’s home prior to her death in the sum of $2,527.77.

At the trial, stipulations were entered into evidence regarding the amounts of the items involved. It was stipulated by appel-lee that it did not pay and therefore owed the weekly payments of $100 each for a period of 52 weeks prior to Mrs. Tucker’s death. Under this item, appellee contended that during that time, in lieu of the weekly payments to Mrs. Tucker, appellee paid certain medical, drug and nursing home expenses in the sum of $3,011.93, and contended that under this item it was entitled to a credit on the $5,200 admittedly owed.

After Mr. Tucker’s death, Mrs. Tucker continued residing in the home in Jackson, Mississippi, until December 23, 1969. Un-disputedly, for a long time prior to that date, she was in extremely bad health and required constant care and attention. On that date, she voluntarily entered a nursing home only a few doors from her place of abode. She took nothing with her to the nursing home other than bare necessities such as toothbrush and sleeping attire. The home and furnishings were left intact, were not sold or rented, and remained in that status until Mrs. Tucker’s death on September 4, 1973. She was never able to leave the nursing home and return to her residence.

After trial, the chancellor found and decreed the following: (1) The trust was not obligated to pay the item of medical, hospital, and nursing expenses incurred and paid by Mrs. Tucker in the amount of $20,147.27; (2) The trustee owed the weekly payments it admittedly did not pay to Mrs. Tucker in the sum of $5,200. Under this item the court further found that in lieu of these payments and by agreement of the duly authorized representative of Mrs. Tucker, the trustee paid, medical, drug and nursing expenses in the sum of $3,011.93. The court deducted this sum from the amount admittedly owed for the weekly payments, which resulted in the sum of $2,188.07 owed as a balance by the trustee. (3) The chancellor found that when Mrs. Tucker went into the nursing home she did not continue to “live” in her residence and that the trustee, therefore, was not obligated to pay the items of expenses on the home from December 23, 1969, until her death on September 4, 1973. (4) The chancellor found that the trustee was not obligated to pay the funeral expenses incurred as a result of Mrs. Tucker’s death, and gave as a reason that Mrs. Tucker’s will under Item I stated: “I direct my executor to pay all my just debts probated against my estate, and all funeral expenses, such payments to be made as soon after my death as conveniently possible.” It was the chancellor’s opinion that this superseded the direction of Mr. Tucker to make these payments under Paragraph VI of the trust codicil.

The chancellor held that appellee was entitled to reimbursement of ad valorem taxes paid on the Tucker residence from the time Mrs. Tucker entered the nursing home until her death.

There are a number of cases setting out the duty of the courts in construing wills and trusts. The duty is the same whether by the lower court or this Court. The' paramount and controlling consideration is to ascertain and give effect to the intention of the testator. In arriving at this intention, the Court is required to consider the entire instrument, sometimes said “from the four corners of the instrument.” Where the instrument is susceptible of more than one construction, it is the duty of the Court to adopt that construction which is most consistent with the intention of the testator. The principal cases setting out this duty of the Court are: Seal v. Seal, 312 So.2d 19 (Miss.1975); In re Granberry’s Estate, 310 So.2d 708 (Miss.1975); Carlisle v. Estate of Carlisle, 252 So.2d 894 (Miss.1971); King v. King, 234 Miss. 862, 108 So.2d 220 (1959); Kyle v. Wood, 227 Miss. 717, 86 So.2d 881 (1956), and Brumfield v. Englesing, 202 Miss. 62, 30 So.2d 514 (1947).

We have studied carefully the record before this Court, including the wills and codicils of both Mr. and Mrs. Tucker. This study leaves us with the following positive conclusions regarding the various hereinbe-fore set out items in dispute.

ITEM 1. Under this item appellant requests reimbursement for medical, drug, hospital and nursing expenses personally paid by Mrs. Tucker. The chancellor denied this item and clearly was correct in doing so. It is undisputed that Mrs. Tucker had sufficient funds to make these payments. Paragraph VI of the codicil to Mr. Tucker’s trust merely “authorized” the use of the corpus or the principal or the income of the trust for such payments. The trust was not called on for these payments and Mrs. Tucker obviously chose to make them herself.

ITEM 2. As hereinbefore stated, it was stipulated that the trust owed payments called for in Paragraph VI of $100 per week for 52 weeks, or a total of $5,200. It contended that it was entitled to a credit for medical, hospital and nursing expenses paid during that period in the sum of $3,011.93. The evidence showed that prior to these expense items being paid there was a discussion and tentative agreement between representatives of the appellee trustee and representatives of Mrs. Tucker. During this period of time, Mrs. Tucker’s personal and business affairs were being handled by her faithful and devoted granddaughter, Mrs. Betty Tucker Duckworth. Mrs. Duckworth had been appointed conservator of Mrs. Tucker. Mrs. Duckworth testified that she, on occasions, discussed financial matters and the condition of the trust estate with representatives of appel-lee. Mrs. Duckworth agreed that she remembered that during the time in question, Mrs. Tucker authorized her to agree with appellee’s representative, Mr. Alexander, to apply trust account funds to Mrs. Tucker’s medical and nursing expenses in lieu of the $100 per week payments. We therefore agree with the chancellor on this item.

ITEM 3. This item gives the Court more trouble than the others. It requests reimbursement to Mrs. Tucker’s estate for expenses such as maintenance and service paid on the Tucker residence from the time Mrs. Tucker entered the nursing home until her death. Here, under our duty as herein-before discussed, we have to ascertain the intentions of Mr. Tucker. The applicable part of Paragraph VI of the codicil to the trust provided “so long as my said wife shall live in her house, the trustee shall pay all taxes, maintenance and service bills thereon, such as electricity, water, gas and telephone.”

The lower court used a strict construction of the word “live” and found that as Mrs. Tucker was actually staying in the nursing home a short distance away she was not “living” in her residence, and, therefore, was not entitled to these payments. We disagree with the lower court and hold that it was manifestly in error. A study of the will and trust agreement and particularly Paragraph VI shows a clear intention of Mr. Tucker to provide for a “home” for his wife so long as she lived. The house in question had been their residence for many, many years. He clearly intended it to remain so. Mrs. Tucker clearly showed her intentions to honor her husband’s wishes by leaving the home and furnishings intact. Considering the length of time these two good people lived together in their residence, it is understandable why Mr. Tucker had this wish. His intention clearly was to “provide a home” for his wife whether she was sick elsewhere or not, and provided she did not abandon the home. This she clearly did not do. Therefore, we find that the chancellor clearly was in error on this item and that appellant was entitled to reimbursement.

ITEM 4. Paragraph VI of the trust codicil provided “upon the death of my wife I direct that the trustee pay all funeral expenses.” This did not give the trustee any discretion. It was as direct as any part of the will or trust. The chancellor was in error in finding that the subsequent Item 1 of Mrs. Tucker’s will cancelled this direct order of Mr. Tucker. In the first place, it is clear to any member of the bar that Item 1 in Mrs. Tucker’s will is a “form” item that is placed at the outset of nearly every will. In the second place, it easily may be said that Mrs. Tucker wanted to guarantee that her funeral bills would be paid. It is fortunate that she did so as obviously appellee did not follow Mr. Tucker’s direction and pay these bills. It is clear to this Court that Mr. Tucker wanted to and did direct the trustee of his testamentary trust to pay his wife’s funeral bills. We cannot gather any other intention from the instrument.

CROSS-BILL OF COMPLAINT

A disposition of the cross-bill of complaint was in effect made by the Court’s direction and opinion under Item 3 above. We shall not repeat that discussion but reiterate that it clearly was Mr. Tucker’s intention for the trustee of his trust estate to pay the ad valorem taxes on the “home” until Mrs. Tucker died or she abandoned the premises.

CONCLUSION

A disposition of the case is now a matter of mathematics. Under the above findings, appellee owes appellant the sum of $5,402.08. The cause is reversed in part and judgment rendered here for the stated amount for appellant. The lower court’s decree on the cross-bill of complaint of ap-pellee is reversed and the cross-bill is dismissed.

REVERSED IN PART AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Henry FORREST v. STATE of Mississippi.
    No. 50095.
    Supreme Court of Mississippi.
    Dec. 21, 1977.

      Smith, O’Hare & Atkinson, William E. O’Hare, Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant appeals his conviction for armed robbery and a life sentence from the Circuit Court of Bolivar County. We affirm. Appellant filed the following assignments of error:

1. The verdict of the jury is contrary to the overwhelming weight of the evidence, and should be reversed and a new trial granted on that ground alone.
2. The testimony for the appellant is clear, convincing, and unimpeached, and fully sustains Defendant’s plea of alibi.
3. The Court erred in failing to sustain an objection to prejudicial and inflammatory remarks made by the District Attorney in his closing argument to the Jury, representing certain remarks as being proven facts in evidence in the record, which clearly were not facts in evidence in the record and wholly unsupported by any evidence whatever.
4. The Court erred in refusing to grant a mistrial because of prejudicial and inflammatory remarks made and questions asked by the District Attorney in the presence of the Jury in his cross-examination of the witness James Davis, wherein the District Attorney asked said witness: “Q. You will testify (for the defendant) to anything that is needed to be said?” The overruling by the court of Defendant’s motion for mistrial because of said prejudicial and inflammatory false accusations, remarks and questions made by the District Attorney was clearly error.
5. The Court erred in overruling appellant’s motion for a new trial.
6. When on appeal, it is determined that several errors were committed by the trial court, none of which, standing alone, would be reversible, yet if when considered together, it appears that the Defendant did not receive a fair trial, in view of all the evidence and the facts and circumstances in the case, a judgment of conviction will be reversed.

Since the appellant contends the verdict is against the overwhelming weight of the evidence and that he had a clear and convincing alibi, we need to discuss the evidence.

On November 18, 1976, Johnny’s Package Store in Cleveland was robbed by a black male, wearing a dark overcoat, and carrying a sawed-off shotgun. He wore a tightly fitted “ski cap” over his head, with the face part being covered with some type of greasy substance. At gun point he took approximately $500 from the store attendant, James Hinson. The robbery occurred about 9:50 p.m. Immediately thereafter, Hinson reported the incident to the police. About ten minutes later, Officer Russell Boatman was at the scene and saw a person fitting the robber’s description running between buildings at a school located about a block from the package store. Officer Boatman placed his spotlight on the figure until it disappeared, and at the same time called for reinforcements. These arrived promptly and the school building was searched. No one was found. The officers then went to the roof of the building and, lo and behold, the appellant was found lying on the roof with his hands over his eyes. Two shotgun shells were found in his pocket; a dark colored overcoat and a sawed-off shotgun were found within a few feet of him; and two bundles of money were found close by. Among the bills there were two $50 bills that had been placed in the cash register by the owner of the store as “bait” money in the event the store was robbed. She kept a record of the serial number of these $50 bills. They were found in the bundle laying on the school roof within a few feet of appellant. Appellant had on his face and around his eyes what the officers described as “shoe polish paste.” A photograph of appellant was made later and appears in the record with this “paste” still on his face.

There was a positive in-court identification of appellant by James Hinson, the victim of the robbery. He also identified the gun and the coat found near appellant as being similar to those used in the robbery.

Appellant’s defense was- an alibi. Two witnesses testified that they were with appellant while he changed oil in a car and got grease on his face. One witness testified that he was with appellant at 10:15 or 10:30 p.m.

ASSIGNMENT OF ERROR NO. 1. From the foregoing account of the evidence, it is clear that the jury had ample justification to find appellant guilty and the verdict clearly was not against the overwhelming weight of the evidence.

ASSIGNMENT OF ERROR NO. 2. The jury clearly was justified in finding against appellant on his alibi defense. It is elemental that the State does not have to prove an alibi to be untrue. Its burden simply is to prove beyond a reasonable doubt that the accused was at the package store and that he robbed it. See Dubose v. State, 320 So.2d 773 (Miss.1975); Kelly v. State, 239 Miss. 683, 124 So.2d 840 (1960); Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956). There was ample evidence for the jury to reject appellant’s alibi defense and to find that appellant was guilty of robbery beyond a reasonable doubt.

ASSIGNMENT OF ERROR NO. 3. In his closing argument, the district attorney said the following:

He prepared himself to go in there. This is the worst type crime you can have because you think about an armed robbery. You think about what is going to happen when you go in there, you think about what is going to happen if you pull that trigger. He not only thought about it; he prepared himself for it. He put that shoe polish on his face.

The attorney for appellant stated: “There is no proof of this, no proof.” The court then stated: “He has the right to analyze his case. Overrule the objection.”

In the first place, there is ample proof, including a photograph, in the record that appellant had shoe polish on his face. In the second place, we are sure that Mr. Hin-son was very apprehensive about the trigger of the sawed-off shotgun being pulled. We see no error in this argument.

ASSIGNMENT OF ERROR NO. 4. On cross-examination of witness James Davis, who testified for appellant in an attempt to prove the alibi, the following occurred:

Q. As a matter of fact, he was under arrest at that time, did you know that? Do you know what time he was arrested?
A. He was under arrest at that time? What time?
Q. Do you know that?
A. I don’t know. I didn’t know he was under arrest. When I found out he had been arrested it was about twelve o’clock the next day. I testified here for him today because I saw him that night.
Q. Testified to anything that needed to be said, isn’t that right?
BY MR. ATKINSON: Object to that.
BY THE COURT: I sustain the objection.
BY MR. O’HARE: Move for a mistrial, your honor.
BY THE COURT: Ladies and gentlemen of the jury, you will disregard the last question asked by the district attorney. Motion for mistrial is overruled.

The record reflects that witness Davis testified he was with appellant about 10:15 or 10:30 p.m. According to the undisputed evidence, the appellant was either lying on the roof of the school building or already under arrest at that time.

Furthermore, the court clearly in its discretion cured any possible error by instructing the jury to disregard the questions and answers. This Court has laid down the general rule that where the trial judge sustains defendant’s objection to the remarks and instructs the jury to disregard the statement, the remedial acts of the court are usually sufficient to remove any taint of prejudice. This rule, of course, assumes that the remarks were not so prejudicial that the curative acts of the court were ineffective to remove the prejudice. See Forrest v. State, 335 So.2d 900 (Miss.1976); Myrick v. State, 290 So.2d 259 (Miss.1974).

ASSIGNMENTS OF ERROR NOS. 5 and 6. These assignments are without any merit whatsoever. The jury clearly had ample evidence to find the appellant guilty and in fact could have reached no other conclusion.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: ALMON, Justice.

text:
    Louis SWAIN v. CUNA MUTUAL INSURANCE SOCIETY, a Corporation, and Etowah Steelworkers Federal Credit Union.
    SC 2177.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    As Corrected On Denial of Rehearing Dec. 22, 1977.
    R. Ben Hogan, III, Birmingham, Robert H. King, Gadsden, and Hogan, Smith & Alspaugh, Birmingham, for appellant.
    George P. Ford, of Dortch, Wright & Ford, Gadsden, for appellee Cuna Mut. Ins. Society.
    James E. Hedgspeth, Jr., Jack Floyd, Gadsden, for appellee Etowah Steelworkers Federal Credit Union.
   ALMON, Justice.

Swain brought suit against Cuna Mutual Insurance Society (CUNA) and Etowah Steelworkers Federal Credit Union (Credit Union), appellees. The complaint contained two counts for fraud and one count for breach of contract.

The dispute arose over a loan obtained by Swain from the Credit Union. The Credit Union had a policy of insurance with CUNA which provided that the company will pay the amount remaining unpaid at the time of permanent disability of a member (Swain) on any insurable loan balance.

After testimony was taken the trial judge granted a directed verdict for both defendants. We affirm as to the fraud counts and reverse as to the contract count.

Count One of the complaint states:

“About June 21, 1967 [sic] [1968] Defendant the Etowah Steelworkers Federal Credit Union (hereinafter referred to as Credit Union) and Plaintiff when negotiating concerning Plaintiff borrowing $4,000.00 from said Defendant Credit Union and on said occasion Defendant Credit Union while acting individually and as agent servant or employee and within the line and scope of its employment and authority with Defendant Cuna Mutual Insurance Society, a corporation (hereinafter referred to as Cuna) represented to Plaintiff that upon his executing a written promissory note with six (6) surety as guarantors signing with Plaintiff, that said indebtedness would be repaid said Defendant Credit Union in the event Plaintiff failed to pay same, that Defendants would cause an insurance policy to be issued on the life of Plaintiff so as that in the event of Plaintiffs death or in the event Plaintiff was so disabled about his body that he was caused to be retired at Republic Steel Corporation, a corporation at its plant at Gadsden, Alabama, that said insurance company would pay off the entire indebtedness owed under said promissory note.
“2. The representations made by Defendants were false and Defendants knew they were false at the time said representations were made.
“3. Plaintiff believed the representations and in reliance upon them executed said written promissory note and acquired said six (6) sureties or Guarantors to sign with Plaintiff on said written promissory note.”

On June 7, 1968, Swain injured his back while working for Republic Steel as a laborer. On June 21, 1968, appellant obtained a loan from the Credit Union in the amount of $4,000. Six guarantors signed with Swain as co-makers of the promissory note.

Due to his back injury, Swain has not worked at Republic Steel since June 7,1968. He was examined by a physician on June 14, 1968, and found to be disabled from June 7, 1968, to June 14, 1968, and for an unknown period of time thereafter. Swain received disability benefits from June 15, 1968, to June 13, 1969, under a plan furnished through Republic Steel. He was medically retired from Republic Steel effective July 1,1969, upon approval of the plant physician, Dr. Steven Rowe.

The co-makers on the note were required to pay the loan when Swain defaulted. The co-makers then brought an action against Swain and obtained a judgment. His automobile was sold under execution of the judgment in 1971.

In negotiating the loan Swain dealt with Orville Alford, the Credit Union manager. According to Swain, Alford told him that if he got killed or disabled at Republic Steel, his debt would be paid off by insurance. He also testified that subsequent to the loan he informed Alford of his disability and received papers of CUNA to file for a disability claim under the policy. Alford later told appellant that the insurance would not pay the debt because they didn’t know whether he was covered. No witness could confirm that either Credit Union or CUNA was ever furnished with a completed claim form in proof of Swain’s disability claim. On December 6,1971, Swain’s attorney wrote a letter to CUNA, with a copy to Credit Union, inquiring as to the reasons for CUNA’s disallowing Swain’s disability claim for coverage under the insurance policy. Swain filed suit on February 6, 1974.

Appellees contend the two fraud counts are barred by the statute of limitations of one year. The sequence of events relevant to this issue are as follows:

1. June 7, 1968 — Plaintiff’s last day of work at Republic Steel Corporation.

2. June 21, 1968 — Plaintiff’s loan transaction completed.

' 3. July 1, 1968 — Plaintiff hospitalized for surgery.

4. No later than April, 1969 (date of Orville Alford’s death) — Plaintiff is told by Alford that his claim was not approved..

5. Sometime prior to January 11,1971— Plaintiff’s co-makers pay off the loan and bring civil action against Plaintiff.

6. January 11, 1971 — Judgment entered against plaintiff in action by co-makers.

7. February, 1971 — Execution issued against plaintiff on aforesaid judgment.

8. Summer, 1971 — Plaintiff’s car attached by sheriff and sold under execution.

9. December 6, 1971 — Attorney Robert H. King, representing Swain, writes letter to CUNA, with copy to Credit Union, inquiring as to reason for “turning down” plaintiff’s disability claim.

10. February 6,1974 — Complaint filed in the instant action, based upon misrepresentation and deceit alleged to have occurred on or prior to date of plaintiff’s loan.

11. August 16-17, 1976 — Trial.

Thus, Swain knew as early as April, 1969, that his claim was not approved; also he was aware at that time of the alleged misrepresentations made by Alford.

It is extremely difficult to see how the statute of limitations has not run. Swain in brief “freely admits he had no evidence of fraud or deceit until the actual trial of the case on August 16-17, 1976.” This assertion is in an effort to show late discovery which would toll the running of the statute of limitations. So far as we are able to ascertain from the record, the only new discovery which occurred at trial was the revelation of the contents of the insurance policy. Strangely, this revelation occurred over seven years after the alleged fraud occurred. We conclude as a matter of law that the statute of limitations has run on the fraud counts. Tit. 7, § 26, Code of Alabama 1940, Recompiled 1958.

Swain’s complaint alleged breach of an oral contract by the Credit Union in that its manager, Alford, promised to procure insurance coverage to cover a default on the loan by Swain due to death or total and permanent disability. Such a contract of insurance was in effect between the Credit Union and CUNA at the time Swain secured the loan. The issue tried by the parties was not whether the Credit Union had obtained such coverage. Rather, the parties adduced proof at trial in the form of medical reports, claims, and payments for disability, etc., in an effort to show whether Swain qualified for coverage under the insurance agreement between the Credit Union and CUNA. Accordingly, we review the record only to determine whether a scintilla of evidence exists as to whether appellant qualifies for coverage under the policy.

If there was coverage under the policy, Swain is by the terms of the policy a beneficiary. The policy provides that CUNA will pay the amount remaining unpaid on the loan at the time of disability. The policy specifically excludes from coverage “all loan balances of members who do not meet the physical requirements as hereinafter defined . . .”

“Physical Requirements : Coverage under this contract may be issued for any loan upon condition that the Member is physically able to perform, or within a reasonable time to resume, the usual duties of his livelihood.”

After Swain made a prima facie case of coverage, the issue then reduces itself to whether the evidence conclusively shows that he failed to meet the physical requirements. The burden in this regard fell upon CUNA to show that Swain did not meet the physical requirements at the time of the loan. First Nat. Life Ins. Co. of America v. Rector, 225 Ala. 116, 142 So. 392; Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., 293 Ala. 719, 310 So.2d 200. Stated differently, the question is whether he was within a reasonable time after the loan able to resume the usual duties of his livelihood. The evidence was not conclusive on this point. Consequently, a jury question was presented and the directed verdict as to the contract count was improperly granted.

The judgment is therefore affirmed in part and reversed in part and the cause is remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Although there was no amendment to the pleadings to conform to this evidence, the issue was tried by consent of the parties and is properly before this court. ARCP Rule 15(b); Wright and Miller, Federal Practice and Procedure: Civil, § 1493.


author: PER CURIAM. JONES, Justice

text:
    James R. GLAZE, Jr. v. James TENNYSON et al.
    SC 2685.
    Supreme Court of Alabama.
    Dec. 16, 1977.

      Robert B. Roden for Jones, Arnold & Roden, Birmingham, for appellant.
    Edwin A. Strickland, Jefferson County Atty., Gregory T. Bittner, Asst. County Atty., Birmingham, for appellees.
   PER CURIAM.

This appeal challenges the admissibility of expert testimony concerning the speed of an automobile immediately prior to a collision. The trial court deemed the proffered evidence competent. The jury found for the defendant County. Plaintiff appeals. We affirm.

On September 11, 1975, James R. Glaze, Jr., plaintiff-appellant, was involved in an automobile accident on Bluff Ridge Road in Jefferson County. Glaze brought suit against James Tennyson, Tom Gloor, and Jefferson County. He contended that the county was negligent in failing to remove gravel from the roadbed after resealing it, or in failing to set up signs or markers to warn travelers of this danger. Tennyson and Gloor were subsequently voluntarily dismissed, leaving the action solely against the county.

In answer to Glaze’s complaint, the county raised the defense of contributory negligence. It sought to prove that Glaze was driving at an unsafe rate of speed at the time of the accident, and that this was the proximate cause of his accident.

In support of this defense, the county introduced the testimony of Deputy R. J. Rains of the Jefferson County Sheriff’s Department. Although he was not the “investigating officer,” Rains was present when the accident was investigated. He viewed the damage to the automobile, checked the condition of its brakes, and the position in which it came to rest. Moreover, he noted the road conditions, the “skid” or “slide” marks left by Glaze’s car, the concrete culvert which was struck, and the resulting debris.

After testifying as to his accident investigation experience and training, and other qualifications as an expert, Rains was permitted, over objection, to give his opinion as to the speed of Glaze’s vehicle immediately prior to the car’s impact with the culvert. Glaze contends that this evidence was erroneously admitted.

The precise line of questioning is relevant to a determination of this issue, viz:

“A.' All right. Now Mr. Deputy Rains, did you at the time you were there on September 11, 1975, and on that occasion from the examination of the scene from the examination of the skid marks that you observed coming from the right shoulder of the road across the road to the left shoulder of the road in the ditch area along the ditch up to a point of the culvert and, what you call a culvert — this concrete abutment that you just saw the picture of; do you have and did you form an opinion .
“Mr. Roden. You Honor, we object to any opinion because he was not at the scene of the accident and did not see the accident and he is not qualified as a witness.
“The Court. Let him finish his question.
“Q. . .did you form an opinion as to the relative speed of the automobile that you saw on that occasion up to the point of its impact with the culvert.
“Mr. Roden. Same objection.
“The Court. Just did you form an opinion.
“Mr. Roden. I object to it.
“The Court. Now, what is the ground of your objection?
“Mr. Roden. I object to the opinion of Deputy Rains as to the speed of the vehicle because he did not see the accident and he could not see the vehicle of the accident prior to the accident. He is not qualified to reconstruct the accident and I respectfully object to any opinion by Deputy Rains.
“The Court. Overruled.” [Italics supplied.]

The objection was to the witness’ not being “qualified.” A trial court’s overruling of a specific objection will be affirmed on appeal unless the evidence admitted was subject to such specific objection. Trans-Southern Life v. Johnson, 287 Ala. 620, 254 So .2d 321 (1971). Here, that evidence shows that Rains was indeed properly qualified to testify as an expert. Or, putting it differently, because abundant evidence was presented in support of Rains’ credentials, as an “expert,” we cannot say that the trial court abused its discretion in admitting such evidence.

Now, on this appeal, Glaze argues that Rains’ testimony was inadmissible because it called for his opinion of the speed which Glaze was traveling at the time of the collision based upon his skid marks after the collision with the embankment. We cannot agree.

It has long been the rule in Alabama that an expert, not an eyewitness to a collision, can testify as to the estimated speed of an automobile predicated on the distance the tires skidded or were dragged along before impact, but not the distance the tires skidded after impact. McWhorter v. Clark, 342 So.2d 903 (Ala.1977).

Generally, “impact,” in the context of our cases, means “impact” with another moving vehicle. But, it can also mean “impact” with a fixed object.

In the case at bar, Rains was not asked his opinion as to the speed of the car prior to its collision with the embankment, as Glaze argues. Rather, he was asked whether he had an opinion of the speed of the automobile “up to the point of its impact with [the] culvert.” Rains’ testimony is within the rule of our cases.

The raison d’etre of our cases which permit judgments of speed to be given by experts solely from observations of skid marks before, but not after, an accident is that common knowledge tells us that when moving objects collide, “they may behave in a manner which seemingly defies all the laws of physics.” Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4 (1947). This well-settled rule has been followed in many cases: McWhorter v. Clark, supra; Giles v. Gardner, 287 Ala. 166, 249 So.2d 824 (1971); Holuska v. Moore, 286 Ala. 268, 239 So.2d 192 (1970); Campbell v. Barlow, 274 Ala. 627, 150 So.2d 359 (1962); Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167 (1962); Baggett v. Allen, 273 Ala. 164, 137 So.2d 37 (1962); Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951); Jackson v. Vaughn, 204 Ala. 543, 86 So. 469 (1920).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER and JONES, JJ., concur specially.

JONES, Justice

(concurring specially).

I concur in the result to affirm the judgment below.

The question before us is not whether Deputy Rains is a qualified expert who may give his opinion as to the speed of Glaze’s automobile; instead, it is whether even an expert may give his opinion based upon the information Deputy Rains had before him. This Court has said that an expert, not an eyewitness to the collision, can testify as to the estimated speed of an automobile predicated on the distance the tires skidded along the highway before impact, but not predicated on the distance the tires skidded after impact. McWhorter v. Clark, 342 So.2d 903 (Ala.1977); Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972); Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716 (1967); and Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167 (1962). It is upon this distinction that the Appellant bases his argument.

It is undisputed that the question posed to Deputy Rains included consideration of the scuff or slide marks after initial impact with the embankment. In my opinion, for purposes of admitting expert testimony as to vehicular speed, the distinction, in the requisite predicate, between skid marks pri- or to impact, and those after impact, is no longer defensible; and, therefore, I would overrule any opinion, or part of any opinion, which relies upon this distinction.

Historically, no witness, who had not personally viewed the collision, could state an opinion as to the speed of a vehicle prior to that collision. Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So.2d 902 (1950). Soon thereafter, the rule developed, as stated above, that an expert could testify to the speed of an automobile based upon skid marks prior to impact. Giles v. Gardner, 287 Ala. 166, 249 So.2d 824 (1971); Jowers, supra; Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951); and Jackson v. Vaughn, 204 Ala. 543, 86 So. 469 (1920). The Court, in these cases, was seeking to expand the rules of evidence to recognize scientific advancements. Maslankowski, 288 Ala. at 265, 259 So.2d 804. See also 24 Ins.Coun.J. 99 (1957). This evolution has continued beyond this plateau, however, and logic and consistency compel a more permissive inclusive rule. Indeed, I perceive no valid argument supportive of the notion that a different rule as to expert testimony should be applicable in automobile accident cases than the rule applicable to expert testimony generally; and I know of no other situation where the law dictates certain objective factors to the exclusion of others that may be considered by a duly qualified expert witness in arriving at his opinion.

The stated reason for not previously extending the rule to post-impact skid marks is that,

“it [is] a matter of common knowledge that when two such moving objects collide . . . they may behave in a manner which seemingly defies all the law of physics.” Mobile City Lines, Inc. v. Alexander, 249 Ala. 107, 112-13, 30 So.2d 4, 8 (1947). (Emphasis theirs.)

See also Stanley v. Hayes, 276 Ala. 532,165 So.2d 84 (1964); and Jowers, supra. This reason is not viable, however, because it is only to the layman that these acts seem to defy logic. In fact, this speaks more clearly for the necessity of expert testimony concerning these situations.

In Maslankowski, we held that an “Accident Reconstruction Consultant” could give his opinion of the speed of a vehicle as discerned from all the circumstances (including tire marks after impact). 288 Ala. at 265-68, 259 So.2d 804. I would depart from the reasoning of that opinion only insofar as it tends to limit the admissibility of such evidence to “Accident Reconstruction Consultants.”

It is well settled that where the opinion of an expert witness is elicited, the proper test to determine his qualifications is whether his knowledge of the matter, in relation to which his opinion is sought, is such that it will probably aid the trier of fact in its determination of the truth. Maslankowski, supra; and Woyak v. Konieske, 237 Minn. 213, 54 N.W.2d 649 (1952). The determination of whether the proponent of this evidence has met his burden is addressed to the sound discretion of the trial Court; and its decision on the evidence will not be disturbed absent palpable abuse. Ford Motor Co. v. Rodgers, 337 So.2d 736 (Ala.1976); Baggett v. Allen, 273 Ala. 164, 137 So.2d 37 (1962); Johnson, supra; and Kirby v. Brooks, 215 Ala. 507, 111 So. 235 (1927).

In the case before us, the trial Court determined that Rains was an expert in this regard. Although the specific question referred only to the skid marks, other factual determinants were before the witness and the jury. For the rule governing the sufficiency of a question propounded, see Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968); and McCormick, Evidence, § 14 (2d Ed. 1972). Because abundant evidence was presented in support of Rains’ credentials, it cannot be said that the trial Court abused its discretion by admitting such evidence.

This is not to be understood as saying that I would uphold the admission of any investigating officer’s opinion for lack of abuse of discretion. But where, as here, the witness held a degree from Jefferson State College in Applied Sciences, with “police studies,” graduated from the police academy and had investigated over 300 wrecks, his formal training and experience in the restructuring of accidents, including the estimation of vehicular speed from the totality of the circumstances, amply qualified him as an expert to express his opinion as to the speed of Glaze’s car immediately before the wreck.

Once a determination has been made as to the qualification of a proffered expert witness, and presupposing an appropriate hypothetical question, ordinarily it is not for the trial Court, nor this Court, to limit or specify the facts he may consider in the formulation of his opinion. Indeed, the factors essential to the expression of an opinion by an expert are part of his expertise. See Tit. 7, § 437, Code. Given the exercise of sound judicial discretion in permitting the witness to testify as an expert, and given a hypothetical question supported by the evidence, irregularities concerning inclusions in the foundation of an expert’s opinion go merely to the weight of such evidence, not to its admissibility. McCormick, supra. Under these circumstances, the weight to be given the expert’s opinion, along with the propriety of the factual premises upon which his opinion is based, are questions of credibility for the trier of fact.

The trial Court did not abuse its discretion in permitting Deputy Rains to give his opinion of the speed of Glaze’s automobile prior to the collision. It is unimportant, as I see it, as a matter of law, whether Rains considered the length of skid marks after the initial impact; and this Court, in my opinion, should not engage in the exercise of discerning between initial and subsequent impacts. A properly qualified expert may testify as to the speed of a vehicle, prior to a collision, based upon all the relevant circumstances. See generally 29 A.L. R.3d 248. For this reason, I would affirm.

FAULKNER, J., concurs.


author: TORBERT, Chief Justice.

text:
    Robert E. WHITEHEAD v. DAVISON OIL COMPANY, INC., a corporation, and W. H. Davison.
    SC 2250.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Robert E. Whitehead, pro se.
    No brief for appellee.
   TORBERT, Chief Justice.

This is an appeal prosecuted pro se from a summary judgment entered against appellant, Robert E. Whitehead, and other named corporate defendants who are not parties to this appeal, for the amount of $26,543.98. The sole issue presented for review is the appropriateness of the summary judgment against Whitehead.

Whitehead served as president of Federal Gas Company, Inc., an Alabama corporation which- operated several service stations in the Mobile area. Federal Gas purchased substantial quantities of gasoline from ap-pellee, Davison Oil Company, Inc. The invoices for these purchases were made out to Federal Gas and signed by Whitehead.

Davison Oil never received payment for the gasoline. Suit was subsequently filed for the account balance of $20,119.98. Whitehead, Federal Gas, and two other corporations were named as party defendants. The complaint also contained a demand for $4,000.00 allegedly owed by Whitehead to appellee, W. H. Davison, president of Davi-son Oil Company, on a personal debt. An answer containing a general denial of the complaint allegations was filed by counsel for Whitehead.

On October 20, 1976 appellees filed a motion for summary judgment against the defendants with a supporting affidavit from W. H. Davison and exhibits. The exhibits included the previously described invoices for the total amount due of $15,705.33, a $3,414.65 check payable to Davison Oil Company which was drawn on one of the corporate defendant’s account and returned due to insufficient funds, and a $4,000.00 check payable to W. H. Davison made by Whitehead. No opposing affidavits were filed by Whitehead.

On November 19, 1976, following a hearing at which attorneys for the parties were present, the trial court granted summary judgment against Whitehead and the corporate defendants. A second order was also entered which allowed Whitehead’s counsel to withdraw as attorney of record.

There are two questions raised on this appeal which we must answer, those being, first, whether summary judgment was appropriately granted against Whitehead for the amount owed by Federal Gas to Davi-son Oil, and, second, whether summary judgment was correctly granted against Whitehead for the amount of the personal debt allegedly owed by Whitehead to W. H. Davison.

A motion for summary judgment may be granted only when there is no genuine issue as to a material fact, and the moving party is entitled to a judgment as a matter of law. Ala.R.Civ.P. 56(c); 6 Moore’s Federal Practice § 56.04(1) (2d ed. 1972); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2712 (1973). Applying the law to the facts as disclosed by the pleadings, affidavit, and the accompanying exhibits in this cause, we cannot say that the movants, Davison Oil Company and W. H. Davison, met the burden of proving that they were entitled to a judgment against Whitehead for the corporate debts of Federal Gas as a matter of law.

It is axiomatic that directors and officers of a corporation are merely agents of the corporation and as such are not personally liable for obligations incurred by the corporation in the usual course of business absent a statute, charter provision or personal agreement to the contrary. Rizzo, Inc. v. Alatsas, 27 N.J. 400, 142 A.2d 861 (1958); Nunnelly v. Southern Iron Co., 94 Tenn. 397, 29 S.W. 361 (1895). Thus, applying this rule to the case at bar, it is clear that the debt incurred by Federal Gas for the purchases from Davison Oil Company is an obligation of the corporate defendants alone in the absence of evidence in the record to the‘contrary.

The documents produced by appel-lees in support of the motion for summary judgment do not contain sufficient evidence to establish that Whitehead had personally assumed the corporate debts of Federal Gas. The only evidence in the record before this court from which such a conclusion could be drawn is Whitehead’s signature on the invoices. However, the invoices, which are merely acknowledgements of the receipt of the gasoline, are made out to Federal Gas. Neither the complaint nor the affidavit supporting the summary judgment motion contains an allegation that Whitehead indicated his intention to assume the corporate obligations as a personal liability by his signature on these papers.

On motion for summary judgment, summary judgment is only appropriate where it appears that the non-moving party could not prevail under any set of conceivable circumstances. Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Company, 293 Ala. 719, 310 So.2d 200 (1975); Folmar v. Montgomery Fair, Inc., 293 Ala. 686, 309 So.2d 818 (1975). We cannot reach such a conclusion with regard to Whitehead’s liability for the amount owed by Federal Gas to Davison Oil Company.

As to the second question presented in this appeal, we find that the movants met the burden of showing that they were entitled to judgment under established principles. The personal debt between Whitehead and W. H. Davison was alleged and evidence was presented by affidavit and exhibit showing the existence of the debt and the amount still owed by Whitehead. No evidence in opposition was filed by Whitehead. He chose instead to rely on the general denial contained in his answer to establish a genuine issue of fact. This was insufficient to defeat the properly supported motion for summary judgment under the wording of Rule 56(e) of the Alabama Rules of Civil Procedure, to-wit:

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

See also Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975).

Accordingly, the trial court decree granting summary judgment against Whitehead for the amount of the personal debt owed to W. H. Davison is hereby affirmed. The summary judgment entered against Whitehead for the amount of the debt owed by Federal Gas to Davison Oil Company is reversed and remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: BLOODWORTH, Justice.

text:
    Robert E. WHITEHEAD v. GEORGIA PACIFIC CORPORATION.
    SC 2252.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Robert E. Whitehead, pro se.
    Sidney H. Schell, Mobile, for appellee.
   BLOODWORTH, Justice.

This is an appeal filed on December 22, 1976, by the appellant (plaintiff below) seeking reversal of a judgment for $35,000 rendered in favor of appellee (defendant below) on September 14, 1976, and seeking reversal on account of the denial of his various motions filed in the original cause.

Appellant sued appellee on October 15, 1974, for $3,500 on an account demanding a jury trial. On April 23,1975, appellee counterclaimed for $35,000 against the appellant. On the day set for the jury trial, September 14,1976, appellant’s attorneys of record withdrew from representing appellant and the cause was • submitted to the judge for trial, without a jury. The trial resulted in a judgment for the defendant for $35,000. There then ensued the appellant’s various motions and orders thereon which will be referred to herein below.

First, the appeal from the original judgment of September 14, 1976, is untimely, because appellant’s motion for new trial was denied on October 8, 1976, and the appeal was taken more than 42 days thereafter on December 22, 1976. Rule 4, Alabama Rules of Appellate Procedure.

Second, appellant’s appeal from the denial of his motion nunc pro tunc and the denial of his motion for an order of the court to cause him to be returned to court for trial, all of which were denied on November 12, 1976, is timely. Appellant is also timely on his appeal from the denial of his Rule 60(b) motion on December 6, 1976. Rule 4, Alabama Rules of Appellate Procedure.

On the merits, we find no reversible error in the denial of the appellant’s nunc pro tunc motion nor of the denial of his motion for habeas corpus ad testificandum. Nunc pro tunc motions, formerly authorized by Tit. 7, §§ 566-567, Code of Alabama 1940, were superseded by the Alabama Rules of Civil Procedure. See “Statutes and Rules Superseded,” p. 329, Alabama Rules of Court 1977. See Committee Comments to Rule 60, Alabama Rules of Civil Procedure. Moreover, appellant does not complain about any clerical mistake on this appeal.

Under Tit. 15, § 1, Code of Alabama 1940 (now § 15-21-1, Code of Alabama 1975), since the appellant is in the federal penitentiary it seems clear that the federal courts have exclusive jurisdiction over appellant and that he cannot prosecute this type of writ in the state court.

The essence of appellant’s argument on this appeal appears to be the denial of his Rule 60(b) motion. His contention is that the judgment in favor of appellee on its counterclaim is erroneous. We cannot agree. First, the law is clear in Alabama that the grant or denial of a Rule 60(b) motion is a matter within the discretion of the trial court subject to reversal only upon an abuse thereof. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975). Second, the appellant must allege and prove a meritorious defense in order to be entitled to a reversal of the trial judge’s denial of the 60(b) motion. Id. Appellant has failed in both respects. In the first place, we cannot say that the trial judge abused his discretion in denying the motion. Moreover, appellant has failed to allege or prove the requisite meritorious defense.

AFFIRMED.

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


text:
    Opie REED and June Reed v. Paul WATERS and Gladys Waters, John L. Nichols and Doris Nichols, and Jack Spurlock, et al.
    SC 2393.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    P. Michael Haney and James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellants.
    H. Keith Pitts of Rhea, Boyd & Pitts, Gadsden, for appellees.
   TORBERT, Chief Justice.

This is an appeal from a final decree of the Etowah County Circuit Court enjoining appellants, Opie and June Reed, from obstructing a road. The trial court found that the disputed road had been adversely used by the public for a period of time in excess of twenty years and ruled that this road was a public road. We affirm.

The road in question, which is now known as Country Club Drive, extends from U. S. Highway 11 through a 300-acre tract of land originally purchased by the Reeds in 1939. This entire tract, except a portion of land which borders both sides of a section of Country Club Drive retained by the Reeds, was sold in 1965 to Paul Waters and John Nichols, two of the appellees. At that time, Country Club Drive was the only road to and from the purchased property. However, two other access roads have been built by Etowah County since 1965, those being Fairway Circle (which connects with Country Club Drive at a point inside the property line of the property purchased by Waters and Nichols) and West Country Club Road (which connects with Country Club Drive at a point where property bordering the roads on each side belongs to the Reeds).

Following the 1965 purchase from the Reeds, Waters and Nichols built the Attalla Golf and Country Club on property located at the end of Country Club Drive. Portions of the land were later sold to two industries. Further development of the property occurred in 1968 when Waters and Nichols subdivided another part of the tract of land.

As previously stated, the Reeds retained ownership of property which borders both sides of a section of Country Club Drive. In September, 1975, after notifying Waters and Nichols, the Reeds barricaded this section of the road. Waters and Nichols then obtained the decree from which this appeal is taken.

In reaching its conclusion that the disputed road is a public road, the trial court applied the rule stated by this court in Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954), to-wit:

“It is now settled in this state that an open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public highway by prescription. When such circumstances are shown, a presumption of dedication or other appropriation to a public use arises. The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession.”

260 Ala. at 392, 71 So.2d at 97 (citations omitted).

According to the Reeds, the trial court erroneously followed the Ayers standards. Under the Reeds’ analysis of the evidence in the record, the disputed road ran through unfenced, unimproved, and thus unre-claimed fields prior to 1965. They state that the evidence fails to show that the road in question was well defined during any twenty year period or that the road was continuously used by the public in an uninterrupted manner for twenty years. Therefore, the Reeds maintain that the rule which should have been applied by the trial court is that the use of such a road is presumed to be permissive and that the party claiming an adverse use has the burden of proving it. Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954).

This court was presented with the question raised by this appeal in Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1976). In that decision, this court held:

“Whether the rule of Ayers or Benson is controlling in a particular case depends upon the character and use of the road in question. Consequently, the precise question presently before this Court in the instant case is whether there is evidence in the record of the character and use of the road in question which will support the trial court’s decree under the Ayers standard. Unless such evidence is lacking or the court’s findings are otherwise ‘plainly and palpably erroneous and contrary to the great weight of the evidence’ [Garrison v. Grayson, 284 Ala. 247, 249, 224 So.2d 606, 607 (1969)], the trial court’s decree must be affirmed.”

295 Ala. at 125, 324 So.2d at 768.

Although conflicts in testimony exist, we find that there is evidence to support the trial court’s decree under the Ayers standard. Witnesses testified that the road in question, including the area barricaded by the Reeds, has been in existence since the early 1920’s. Testimony was adduced that families who lived near the then Reed property used the road for over forty years to get to town; that the general public used the road to get to a creek at the edge of the Reed property to go swimming, hunting and fishing; that the general public used the road to get to a foundry and tenant houses located along the road and that these houses had not been torn down until 1953 or 1954; and, finally, that the City of Attalla used the road to get to a city dump which it maintained on a portion of the property under a lease with the Reeds. The land surrounding the road was used at various times during the last forty years for tenant houses, a foundry, a farm and cattle ranch, and a city dump. Thus, the trial court had before it evidence from which it could conclude that the disputed road was an “open, defined roadway, through reclaimed land, in continuous use by the public . . for . . . twenty years.” Ayers v. Stidham, supra.

Having considered all contentions of the Reeds in light of the evidence in the record, we cannot say that the finding of the trial court was plainly erroneous. We therefore conclude that the trial court should be affirmed.

AFFIRMED.

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


text:
    Levert KING, Sr. v. Susan Elaine SOUTH. Kennedy KING, a minor, etc., et al. v. Susan Elaine SOUTH.
    SC 2463, SC 2464.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Frank V. Potts and Ray C. Johnson of Potts & Young, Florence, for appellants.
    J. Douglas Evans of Higginbotham & Evans, Florence, for appellee.
   BLOODWORTH, Justice.

Plaintiffs, Kennedy King and Levert King, Sr., appeal from a judgment for defendant, Susan Elaine South. We reverse and remand.

On February 24, 1975, ten-year-old plaintiff, Kennedy King, was standing with his mother and younger brother beside a stopped automobile headed south and blocking, or partially blocking, the right lane of a two-lane road. Kennedy’s mother was talking with her married daughter who was seated in the driver’s seat of the stopped vehicle.

Defendant, Susan Elaine South, was driving south on the road, and as she topped a rise in the road immediately north of the stopped car, she saw the minor plaintiff and his younger brother and mother standing in the center of the road 532 feet directly ahead and immediately adjacent to the stopped vehicle. As defendant drove on, minor plaintiff began to dance in the center of the road. Defendant blew her horn when she was about two car lengths behind the vehicle and swerved around it to pass about 30 miles per hour. In so doing, defendant struck minor plaintiff and inflicted serious injuries upon him.

The minor plaintiff sued by his father, Levert King, Sr., as next friend. The father brought a derivative action for medical expenses and for the loss of his son’s services. The cases were consolidated by order of the trial court. The jury returned a verdict for defendant in both cases. Plaintiffs’ motion for new trial was overruled. Hence, these appeals.

Plaintiffs advance a number of contentions on this appeal, including the contention that the trial judge committed reversible error in submitting minor plaintiff’s contributory negligence to the jury, because, they contend, there was no evidence that he possessed the degree of care, discretion, judgment, and sensitivity to danger of a 14-year-old child. Because we hold that the trial judge committed reversible error in this ruling, we need not address the other issues.

It has long been the law in Alabama that a child between the ages of 7 and 14 is prima facie incapable of contributory negligence. Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Birmingham Ry., Light & Power Co. v. Landrum, 153 Ala. 192, 45 So. 198 (1907).

However, a child between the ages of 7 and 14 years may be shown by evidence to be capable of contributory negligence by showing that he possesses that discretion, intelligence, and sensitivity to danger which the ordinary child, who he is 14 years of age, possesses. McGough Bakery Corp. v. Reynolds, 250 Ala. 592, 35 So.2d 332 (1948); Patrick v. Mitchell, 242 Ala. 414, 6 So.2d 889 (1942).

Moreover,

“ ‘Between the ages of 7 and 14 a child is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. (Citations omitted.)
“The fact that an infant is shown to be bright, smart, and industrious is not sufficient to overcome the presumption of want of discretion. (Citations omitted.)’ (Emphasis supplied.) Jones v. Strickland, 201 Ala. 138, 77 So. 562 (1917).”

Alabama Power Company v. Taylor, supra.

As was true in Alabama Power Company v. Taylor, supra, the evidence here was simply insufficient to overcome the presumption. The strongest testimony in favor of the defendant was as follows: Fannie Goodwin, minor plaintiff’s sister and witness for minor plaintiff, testified on cross-examination, in response to questioning, that she “imagined” her brother did the “things that a normal ten year old did” and that he “acted just like an average child.” Minor plaintiff’s father testified on cross-examination that he would say his son was “a normal boy.” Thus, what little evidence we have on this issue demonstrates that Kennedy King was but an average ten year old.

Therefore, the trial judge erred to a reversal in submitting the issue of the minor plaintiff’s contributory negligence to the jury. It is for this reason that this case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Henry C. WILLIAMS et al. v. Archie McMILLAN et al.
    SC 2470.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Michael A. Figures of Crawford, Black-sher, Figures & Brown, Mobile, for appellants.
    T. M. Brantley, Bay Minette, for Baldwin County Commissioners.
    Taylor D. Wilkins, Jr. of Wilkins & Bank-ester, Bay Minette, for Ray D. Bass as Director of Ala. Highway Dept.
   FAULKNER, Justice.

This is an appeal from an order granting a summary judgment. We affirm.

On August 16, 1976, the Williams filed a complaint, claiming damages against the Baldwin County Commissioners and Ray Bass, Director of the State Highway Department, based on allegations that the defendants built a road across their land, without their permission, without notice, and without compensation, and that the road is a continuing trespass. The Williams further allege that a drain constructed by defendants, without their permission, without notice, and without compensation, drains water on their land, causing soil erosion.

The County Commissioners moved for summary judgment with supporting affidavits stating that neither of the Williams had ever filed a claim against the County; that Baldwin County had a right-of-way deed dated March 24, 1958, across the land in controversy; that the County had adversely possessed the land since 1964; and that the drain on the land is in a natural drainway and puts no additional burden on Williams’ land. Bass moved for dismissal of the claim against him (there is no claim on appeal against him). Williams did not file any affidavits, but his deposition taken by the County was filed. His deposition shows that he was aware of the road soon after it was constructed, and that he never filed a claim against the County.

The Williams appeal on the grounds that (1) no affirmative defense was filed pursuant to Rule 8(c) ARCP, and (2) the claim was not barred by Tit. 12, § 118, Code of Alabama.

1.

There appears in the record a document styled “Affirmative Defense” filed on November 8, 1976. The date of filing is X-ed out. What this means, we do not know. But, be that as it may, no affirmative defensive pleading has to be filed before filing a motion for summary judgment, under Rule 56 ARCP.

2.

Tit. 12, § 118 provides that a claim against a county must be presented, for allowance, within 12 months after the time it accrues. The affidavits show that the cause of action began in 1964. The Williams have never filed a claim. And, filing a claim is a condition precedent to the maintenance of a lawsuit against the County. Marshall County v. Jackson County, 36 Ala. 613 (1860). This court said in Marshall County that:

“Counties are by the Code made bodies corporate, with capacity to sue and be sued; but upon the liability to be sued there is this restriction, that no suit shall be brought against a county until the claim or demand has been presented, within a prescribed time, to the court of county commissioners, and has been by such court either disallowed, or reduced and refused by the party.”

See also Rice v. Tuscaloosa County, 242 Ala. 62, 4 So.2d 497 (1941).

The Williams say that their claim is not one that falls within Tit. 12, § 118. The statute says, “all claims against counties . . .” If the word “all” means anything, it must be interpreted to include torts as well as contracts and equitable claims.

AFFIRMED.

BLOODWORTH and ALMON, JJ., concur.

TORBERT, C. J., and EMBRY, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

I concur with the result reached by the majority due to the fact that no claim was ever filed by the appellants with the county — a condition precedent to the maintenance of an action for damages under Title 12, section 118, Code of Alabama 1940 (§ 11-12-18, Code of Alabama 1975). However, because appellants alleged a continuing trespass in their complaint, I do not feel that this court should decide in the present appeal whether or not appellants’ claim would be barred if they later complied with the twelve month filing requirement.

EMBRY, J., concurs.


text:
    WOOD CHEVROLET COMPANY, INC., a corporation v. BANK OF THE SOUTHEAST, a Banking Corporation, et al.
    SC 2580.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      George Young and John Martin Galese, Birmingham, for appellant.
    Richard Patrick Carmody, of Lange, Simpson, Robinson & Somerville, S. R. Starnes and W. Stancil Starnes, Birmingham, for Bank of The Southeast and Stan Prewitt.
   BLOODWORTH, Justice.

Appellant, Wood Chevrolet Company, Inc. (Wood), appeals from a judgment for various appellees. We affirm.

Wood, a Birmingham retail automobile dealership, entered into an arrangement with United Motorists Association (UMA), a Birmingham business offering leasing, financing, and related services, whereby UMA would secure new automobiles, for its customers at a fleet discount, which Wood would then deliver to UMA’s customers. Concurrent with the delivery of each automobile to each customer, a promissory note and security agreement were executed in favor of UMA whereby each customer agreed to pay UMA for the automobile and granted UMA a security interest therein. These notes and security agreements were assigned to appellee, Bank of the Southeast (Bank), which paid UMA by depositing funds into its general checking account at the Bank.

Testimony by Allison Turner Yeackle, corporate secretary of UMA, indicates that Wood expected UMA, rather than UMA’s customers, to pay for the vehicles. However, after UMA went bankrupt, Wood brought suit against the Bank and the individual customers of UMA who had possession of the automobiles, praying, inter alia, for payment for the vehicles or their return.

Trial was held, ore tenus, and a final decree was entered for the appellees, holding, inter alia : that the customers of UMA, in possession of the vehicles, were innocent of any wrongdoing, although each is fully bound to the terms of the written contracts and the security agreements entered into; that appellee, Bank, parted with valuable consideration in reliance upon a course of dealing between Wood and UMA, and is, therefore, the proper and legal holder of the contracts, documents, and security agreements, and is entitled to enforce them according to their terms; that all payments and credits made or provided by each customer to the Bank shall be applied to the indebtedness due the Bank, and should any of these contracts be in default, the Bank shall make further application to the court for relief; that Wood must return Coggin’s vehicle, which it is allegedly holding under a mechanic’s lien for repairs; that Wood must deliver all evidences of title in its possession to the Bank and furnish the Bank with whatever is necessary to fix title in the customers or owners, subject to the respective liens of the Bank; and, that all other relief requested is denied.

Wood’s motion for new trial was overruled. Hence, this appeal.

Appellant Wood makes three main contentions on appeal. First, Wood contends that UMA acted as agent for the appellee-owners, whom Wood alleges were “principals,” and that because these alleged principals retained the automobiles, they were liable to pay for them. Second, Wood contends, in the alternative, that a “sale” of these vehicles did not occur in that title was retained in Wood. Third, Wood contends that the Bank has no valid or enforceable security interests in these vehicles, since it “acquired no interests” in the instruments from its assignor, UMA, and thus, they are unenforceable. We cannot agree with any of these contentions.

We will now proceed to answer these contentions seriatim.

First, in Alabama, the question of agency is one of fact. See Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971); Nearhos v. Keith, 221 Ala. 643, 130 So. 409 (1930). As such, it is subject to the ore tenus rule. Here, of course, the trial judge did not make specific findings of fact. Where, as here, however, the trial judge does not make express findings of fact, the Supreme Court must, nevertheless, assume that the trial judge found facts which would support his judgment, unless such a finding would be clearly erroneous and against the great weight and preponderance of the evidence. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). In this case, we do not think the great weight of the evidence supports a finding of agency.

It has been said that there can be no agency relationship absent a right of control by the principal over his agent. 2A C.J.S. Agency § 6, pp. 560-562. Cf. Hodges & Company, Inc. v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972). It is not essential that the right of control be exercised so long as that right actually exists. Id. Here, it seems apparent that the various owners exercised no control over the dealings between the alleged agent, UMA, and Wood. UMA apparently sought out the relationship with Wood and worked out the details, including the financing plan, prior to contacting the alleged principals, the owners, who then merely agreed to the terms of the plan in order to acquire automobiles at a discount. Such a factual setting clearly negates Wood’s assertion that the owners were principals since they failed to exercise that degree of control essential to establish an agency relationship. Thus, it cannot be said that the owners, as principals, must answer for the debt of their alleged agent, UMA, since no agency relationship existed.

Second, Wood’s next contention is that no valid “sale” of these vehicles occurred, because of lack of consideration and because Wood retained the Manufacturer’s Statement of Origin, which Wood apparently equates with retaining title. Again, we cannot agree. Tit. 7A, § 2-106, Code of Alabama 1940 (§ 7-2-106, Code 1975), provides: “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.”

Passage of title is governed by Tit. 7A, § 2-401 (§ 7-2-401, Code 1975), which provides, in pertinent part:

“. . . title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
“(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place. . .."

Wood argues that its retention of the Manufacturer’s Statement of Origin evidences an explicit agreement to retain title until payment in full of the invoice was received. We disagree.

It has been held that non-delivery of a certificate of title at the time of a sale does not prevent the passage of title from the seller to the buyer. See, e. g., A. C. Rent-A-Car, Inc. v. American National Bank & Trust Co. of Mobile, 339 F.Supp. 506 (S.D.Ala.1972); Bunch v. Signal Oil and Gas Co., 505 P.2d 41 (Colo.App.1972). This is true even where a state’s certificate of title act provides that no title can be acquired in an automobile until the certificate of title has been issued. See id. Thus, it is that retention of the Manufacturer’s Statement of Origin does not evidence a clear intention that title remain in Wood. Instead, we hold that title passed when the cars were picked up by or delivered to the •individual owners.

Wood’s third contention is that the Bank has neither a valid nor enforceable security interest in any of these automobiles insofar as the Bank was the transferee of the notes and security agreements from UMA, which Wood contends had no interest in the notes and instruments. Wood cites Tit. 7A, § 3-201 Code 1940 (§ 7-3-201 Code 1975) for this proposition. Wood’s argument is erroneous. We have already held that title had passed to the owners and therefore they could grant UMA a security interest in the vehicles, which UMA, in turn could assign to the Bank. See Tit. 7A, § 2-401 supra.

Having disposed of the major contentions on this appeal, we turn to several ancillary contentions raised for a brief discussion.

Wood further contends the Bank is guilty of “fraud” in that it acted in concert with UMA to suppress material facts from Wood. We cannot agree with this contention nor will the evidence support any such theory.

Wood finally contends it is entitled to recover the amounts the Bank deposited into UMA’s general account by virtue of its alleged status as a “third party beneficiary.” In Alabama, for a contract to be for the benefit of a third person, the contract must have been intended for the direct benefit of the third person, as distinguished from mere incidental benefit to him. Harris v. Board of Water and Sewer Commissioners of the City of Mobile, 294 Ala. 606, 320 So.2d 624 (1975). In the case at bar, however, it is clear that the arrangement between the Bank and UMA was not intended for the direct benefit of Wood. Rather, the agreement was to be for the mutual benefit of the Bank and UMA. Moreover, the cases Wood cites for this proposition do not support it. Nor, does the evidence support Wood in this respect.

Having answered the pertinent contentions raised on this appeal and for the foregoing reasons, this case is due to be, and is, hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    ALABAMA HOME HEALTH CARE, INC. v. HOME HEALTH CARE AGENCY OF NORTH ALABAMA, INC.
    SC 2586.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      S. P. Keith, Birmingham, for appellant.
    James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellee.
   FAULKNER, Justice.

Alabama Home Health Care, Inc., incorporated in 1970, has offices in Birmingham and Bessemer. Home Health Care Agency of North Alabama, Inc., incorporated in 1975, has offices in the same cities.

Testimony indicated that Alabama Home received many telephone calls and mail deliveries intended for Home Health Care Agency of North Alabama.

In June, 1976, Mr. Beard, who operated Alabama Home, had the telephone listing (white pages) of his corporation changed to “Home Health Care, Inc. of Alabama.” He admitted that although he did this in an attempt to clear up the confusion and uncertainty, there has probably been an increase in the uncertainty since the listing change was made. There was testimony that confusion existed both before the listing change, and after.

Alabama Home, the plaintiff, sued under Tit. 10, § 21(4)(1), Code of Alabama, 1973 Supp., seeking an injunction to require the defendant to discontinue use of its name, “Home Health Care Agency of North Alabama, Inc.”

Defendant counterclaimed, asking that the plaintiff be required to discontinue use of the name “Home Health Care, Inc. of Alabama” (as listed in the phone book after June, 1976).

After a hearing ore tenus, the trial court found that (1) the defendant’s name was not so similar to the plaintiff’s as to create confusion in the minds of the public; (2) “Home Health Care, Inc. of Alabama” (plaintiff’s phone listing name) is so similar to the defendant’s name as to create confusion and uncertainty; and (3) “Home Health Care, Inc. of Alabama” (plaintiff’s phone listing name) “. . . is a name assumed by the plaintiff and its use is not authorized by law.” The court denied plaintiff’s requested relief, granted defendant’s requested relief and taxed costs against plaintiff.

The judgment of the trial court is affirmed under the ore tenus rule. The evidence does not show that the court was palpably wrong and unjust. See Food Centers, Inc. v. Davis, 286 Ala. 629, 244 So.2d 576 (1971).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON and' EMBRY, JJ., concur.


author: PER CURIAM.

text:
    Albert Walter ANDRAE et al. v. Milton JONES.
    SC 2618.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    James D. Turner of Turner, Turner & Turner, Tuscaloosa, for appellants.
    William J. Donald of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   PER CURIAM.

The principal issue in this case is whether the Andraes and their predecessors in interest acquired a private easement by prescription over Jones’ land. Evidence was heard orally in open court, and the trial judge found that the plaintiffs and their predecessors in title did not have a prescriptive easement or right of way across the defendant’s property. We affirm.

Whether an easement by prescription was created was a question of fact for the trial court. And, where the evidence is given ore tenus, the judgment and findings of the trial court will not be disturbed on appeal unless plainly and palpably wrong. We have reviewed the evidence and, in our opinion, the trial judge was correct in his findings. The evidence is insufficient to establish an easement by prescription.

Under the ore tenus rule, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Carl R. ROBINSON v. J. T. MORSE.
    SC 2664.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      George M. Higginbotham, Bessemer, for appellant.
    J. Garrison Thompson of Pitts & Pitts, Selma, for appellee.
   BLOODWORTH, Justice.

Appellant, Dr. Carl R. Robinson, appeals from a $12,000 judgment for appellee, J. T. Morse, on appellee’s counterclaim. We affirm.

Appellant has owned a farm of approximately 275 acres in Bibb County since 1972. At the time appellant purchased the farm, appellee and his family were renting a house thereon from the previous owner. Appellant and appellee entered into an agreement whereby appellee would work and perform various services in exchange for rent. Dispute arose in fall, 1974, which led to this suit.

Appellant filed an unlawful detainer action in January, 1975, in Bibb County Circuit Court against appellee. Appellee filed a counterclaim, which was thereafter amended, praying for: (1) conveyance of twenty acres of land by appellant, allegedly promised in return for appellee’s work on the farm; (2) damages for misrepresentation and deceit caused by appellant’s alleged promise to convey the property to appellee; and (3) wages due members of appellee’s family for labor performed on appellant’s farm.

Appellee’s two motions to dismiss the unlawful detainer action were denied. Likewise, appellant’s motions to dismiss both the counterclaim and the amended counterclaim were also denied.

A trial was held, ore tenus, and judgment rendered in favor of appellant for the lands described in the complaint and in favor of appellee for $12,000 on his counterclaim. Appellant’s motion for new trial was overruled. Six days after trial, appellant filed an “[ajnswer to defendant’s amended counterclaim,” which raised the defenses of the statute of frauds and the statute of limitations.

Appellant contends, on this appeal, that appellee's counterclaim for recovery of wages is governed by the one-year statute of limitations contained in Tit. 7, § 26(1), Code of Alabama 1940. Hence, appellant argues, appellee’s action for wages can only be for work appellee performed during the twelve month period immediately preceding commencement of this suit. Appellant also contends that the damages assessed were excessive.

We would first point out that Tit. 7, § 26(1), Code, has been declared unconstitutional. Caldwell v. Alabama Dry Dock & Shipbuilding Co., 161 F.2d 83 (5th Cir. 1947).

Assuming, however, that appellant is relying upon another statute of limitations, our result would be the same. Rule 8(c), A.R.C.P. requires that the affirmative defense of the statute of limitations be affirmatively set forth. See Blackmon v. Chrysler Motors Corp., 294 Ala. 426, 318 So.2d 286 (1975). Where, however, a party fails to plead an affirmative defense, it is generally deemed to have been waived. 5 Wright & Miller, Federal Practice & Procedure § 1278, pp. 339-52. Thus, it has been held in a number of cases that parties have waived their defense of the statute of limitations by failing to plead it. E. g., Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976); Jakobsen v. Massachusetts Port Authority, 520 F.2d 810 (1st Cir. 1975).

Of course, there are exceptions to this rule.

“Of course, the waiver rule is not automatically applied and as a practical matter there are numerous exceptions to it. Thus, as discussed in the preceding section, the substance of many unpleaded affirmative defenses may be asserted by pretrial motions. Moreover, even if defendant does not assert an affirmative defense in his answer, he may amend his pleading under Rule 15(a) without leave of the court within 20 days after it has been served if plaintiff is not permitted to interpose a responsive pleading. When this provision is unavailing, he may amend his pleading to assert an omitted affirmative defense on the written consent of the adverse party or by leave of the court, which ‘shall be freely given when justice so requires.’ Even as late as trial, if evidence relating to an unpleaded defense is introduced without objection, Rule 15(b) requires the pleadings to be treated as if they actually had raised the issue. However, if the record indicates that the unpleaded affirmative defense has not been tried by the ‘express or implied consent’ of the parties, the pleadings will not be treated as if they actually had raised the defense, and the court may decide not to permit the issue to be litigated.” (Footnotes omitted.)

5 Wright & Miller, Federal Practice & Procedure, § 1278 (citations omitted).

In this case, however, none of the exceptions apply. Not only was the statute of limitations issue raised for the first time six days after trial, but it was also not tried with the “implied or express consent of the parties.”

Finally, appellant contends the damages were excessive. We cannot agree.

Where evidence as to amount of damages was heard ore tenus by the trial judge, his findings should be reversed only if clearly and palpably erroneous. Thoman Engineers, Inc. v. McDonald, 57 Ala.App. 287, 328 So.2d 293 (1976). The evidence presented was more than ample to justify the damages assessed against appellant.

AFFIRMED.

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


text:
    Vera DAVIS v. Larry D. MILLER.
    SC 2788.
    Supreme Court of Alabama.
    Dec. 22, 1977.

      Murray W. Beasley, Tuscumbia, for appellant.
    William T. Musgrove, Jr., Florence, for appellee.
   BLOODWORTH, Justice.

This is an appeal in a boundary line dispute, in which the only issue is whether or not the trial court erred in establishing the true lines between the properties of the parties, coterminous land owners, as two barbed-wire fences. We affirm.

Appellant owns lots 11, 12, and 13, in Government Park Addition No. 2, in Colbert County, Alabama. Appellee owns lots 14 and 15 to the north of lot 13 and lots 6 to 10 to the east of appellant’s lots 11, 12 and 13. Appellant brought the action to establish the disputed boundary line between the appellant’s and the appellee’s properties. After a hearing ore tenus and after viewing the property, the trial court obliged by rendering a judgment finding that the true and correct boundary line between the properties was two existing barbed-wire fences, one of which ran between lots 13 and 14 in an east and west direction, and the other of which ran between lots 8-10 and lots 11-13, in a north and south direction.

On this appeal, the appellant urges that the trial court erred because there can be no adverse possession without intention to claim title. Appellant says from the testimony in the case, it is clear that the father of the appellee, his predecessor in title, only intended to put the fence on the lot lines; and, since the fences encroached on appellant’s property, such holding to the fence lines was not adverse to the appellant.

We have carefully read all the testimony, and it appears that appellee’s father, his predecessor in title, built the fences around his lots in 1949 or 1950. It further appears that appellee’s father’s testimony is to the effect that it was his intention to construct the fence along the lot lines, but that when he put them up he thought they were put on the true lines and that he held to these lines thinking it was his property lines as long as he held the property for 19 years.

It is apparent that the trial judge fixed the boundary line, based on his finding from the evidence, that the appellee and his father acquired title to the strips of land in dispute by adverse possession. It is clearly the law in this state:

“If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken.”

Casey v. Keeney, 290 Ala. 94, 274 So.2d 68 (1973). We think this case falls within the influence of this rule.

The trial judge saw and heard the witnesses testify. He also personally viewed the premises.

In view of our oft-stated rule in cases heard ore tenus, that we favor the decree of the trial judge with a presumption of correctness, which will not be disturbed on appeal, when supported by credible evidence, unless palpably wrong or manifestly unjust, and in view of his personal view of the premises, we cannot say that he erred in this case. Robertson v. Fincher, 348 So.2d 466 (Ala.1977).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    In re PUBLIC EMPLOYEES COORDINATING COUNCIL, etc., et al., v. Braxton L. KITTRELL, Circuit Judge, etc., et al. Ex parte Public Employees Coordinating Counsel, etc., et al.
    77-98.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    M. A. Marsal, John Grow, Mobile, for petitioners.
    James H. Lackey, Mobile, for respondents.
   BEATTY, Justice.

Petition for a writ of mandamus to require a circuit judge to set aside his order staying the execution of a judgment. Writ granted.

The matter before us originated in the form of a quo warranto petition filed on September 27, 1977 against Milton Douglas Joyner, Jr., which questioned his right to hold a position on the Mobile County Personnel Board. A hearing on that petition resulted in an order on October 11, 1977 removing Joyner from office.

On November 2, 1977, Joyner filed a notice of appeal, a motion for a stay of the final judgment, and a request that the Court fix a supersedeas bond. A motion to dismiss those proceedings was overruled, after which the circuit court granted the motion to stay conditioned upon Joyner’s filing a supersedeas bond, which was filed.

The basic question before us concerns the time within which one removed by judgment from public office may tender a su-persedeas bond to supersede that judgment and obtain a stay of execution of that judgment.

Prior to the effective date of the Code of Ala. 1975, i. e., midnight October 31, 1977, quo warranto actions were controlled by the provisions of Tit. 7, Chap. 13, Ala.Code of 1940 (Recomp.1958). Under those provisions there are two sections pertinent to this case. Section 1148 governs the nature of the judgment to be entered and the time for execution of that judgment:

When a defendant, ... is adjudged guilty of . . . unlawfully holding . . . any office judgment must be rendered that such defendant be excluded from the office . and execution shall be issued on such judgment at the expiration of five days from the date thereof, unless the defendant shall, within such time, take an appeal to the supreme court. Any violation of any such order shall be a contempt of court.

And § 1154 deals with superseding the judgment:

[t]he appeal does not supersede the execution of the judgment, unless the party appealing shall execute bond, .

It is readily apparent that these provisions contemplate both an appeal and a stay of execution of the judgment in quo warranto proceedings which result in the ouster of one from public office. The appeal may proceed without a supersedeas bond having been fixed, but the defendant does not stay execution merely by appealing from the order. He must go forward and provide a supersedeas bond.

The defendant does not quarrel with the applicability here of §§ 1148 and 1154, but he maintains that they relate to distinct subjects, i. e., the former to the time of execution, and the latter to superseding that execution which, he contends, may be accomplished even though execution has already issued. It is true that the express language of § 1154 sets no time limit within which the execution of the judgment of ouster may be superseded, but we believe that one exists, nevertheless, when we consider these statutes in pari materia. Donoghue v. Bunkley, 247 Ala. 423, 25 So.2d 61 (1946). Otherwise we could experience the anomalous situation whereby a removal from public office had taken place, the vacancy filled, and then sometime later the displacement of the new officeholder by the ousted former one. In our opinion the statutes in existence at the time this proceeding was initiated provided a time sequence by which the ousted official could appeal the adverse judgment and have it superseded during appeal and, quo warranto being a statutory proceeding, it must meet those statutory requirements. State ex rel. Norrell v. Key, 276 Ala. 524, 165 So.2d 76 (1964). In that connection, it is interesting to compare the provisions for a stay of execution in quo warranto actions contained in the Code of Ala. 1975 with those of the Code of Ala. 1940. In the new Code, the defendant may, under § 6-6-604, stay execution of the judgment “as prescribed in Rule 8 of the Alabama Rules of Appellate Procedure. . . Those rules provide different conditions for supersedeas bonds than those contained in the Code of Ala. 1940. However, the legislature did not modify the statutory scheme for this unique proceeding until November 1, 1977, and so the previously existing statutory procedure controls this case. Under that procedure, the ousted defendant should have executed his supersedeas bond within five days of the judgment (§§ 1148, 1154) if he desired to have the trial court suspend the execution of that judgment. Such action was jurisdictional. Thompson v. State ex rel. Reeves, 216 Ala. 348, 113 So. 296 (1927); accord, Cooper v. Acuff, 285 Ala. 437, 233 So.2d 223 (1970). Contrary to the defendant’s argument, Rule 62(d), ARCP does not extend the time within which a stay of execution of the judgment may be obtained in quo warranto proceedings brought under the Code of Ala. 1940 (Recomp.1958).

The trial court possessing no jurisdiction to grant sych a stay, its order was made without authority and must be set aside.

If, on the basis of this decision, the trial court fails to vacate the stay of execution heretofore granted and fails to vacate its order approving the supersedeas bond, then a writ to effectuate same will issue on request of petitioner.

WRIT GRANTED CONDITIONALLY.

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