author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    James R. WINCHESTER v. McCULLOCH BROTHERS GARAGE, INC. et al.
    78-754.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      J. G. Speake of Speake, Speake & Reich, Moulton, for appellant.
    W. H. Rogers, Moulton, for appellees American Motors Sales Corp., American Motors Corp. and Jeep Corp.
   TORBERT, Chief Justice.

This is a breach of warranty case under the Alabama version of the Uniform Commercial Code. The facts in this case are stated in the dissenting opinion of Mr. Justice Faulkner and need not be repeated.

Code 1975, §§ 7-2-316(4), -719(1), provides that a seller may contractually limit his buyer’s remedies for breach of warranty. The warranty given by the defendants in this case was the type typically given—the vehicle warranty expressly limited the buyer’s remedy to repair or replacement of defective parts and disclaimed liability for incidental and consequential damages. As a result of the limitation sanctioned by § 7-2-719, the jury must find that the limited warranty failed of its essential purpose before it can proceed to award damages other than as provided in the limited warranty. See Code 1975, § 7-2-719(2).

Since testimony revealed that the cost to repair the Jeep was around $1,200, we believe it apparent from the damages awarded that the jury concluded the warranty failed of its essential purpose. Furthermore, we find the facts reasonably support the jury’s conclusion. Where a seller refuses to honor its own limited warranty, that warranty may properly be found to fail by reason of § 7—2—719(2).

Because the jury presumably found the contractual remedy ineffective, the buyer is entitled to other remedies provided in the Code. Code 1975, § 7-2-714(2), (3), sets down the general rule in breach of warranty cases:

(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount, and nothing in this section shall be construed so as to limit the seller’s liability for damages for injury to the person in the case of consumer goods. Damages in an action for injury to the person include those damages ordinarily allowable in such actions at law.
(3) In a proper case any incidental and consequential damages under section 7— 2-715 may also be recovered.

Id.

According to the statute, damages are normally the difference between the value of the goods as warranted and the value as delivered, plus incidental and consequential damages.

The purchase price is evidence of the value of the goods as warranted. See, Thompson Chrysler-Plymouth, Inc. v. Myers, 48 Ala.App. 350, 264 So.2d 893 (Civ.App.1972). However, it is often difficult to ascertain the value of the goods as delivered. For this reason, where the goods are repairable, cost to repair is a useful measure of the difference in values. See J. White & R. Summers, Handbook of The Law Under The Uniform Commercial Code § 10-2 (1972).

Under the authority of §§ 7-2-714(3), -715, plaintiff buyer may also claim consequential damages. Evidence adduced at trial shows the plaintiff spent $1,000 for an expert witness. Here, however, expenses of trial preparation are not consequential damages. See, Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978). See also, State v. Alabama Public Service Commission, 293 Ala. 553, 574, 307 So.2d 521, 540 (1975).

Plaintiff also produced evidence that the reasonable rental value of an automobile was $15 per day, but plaintiff did not rent an automobile. He borrowed an automobile for two days, and then he purchased a substitute means of transportation. Although the plaintiff’s purchase of the replacement automobile may have been more than was reasonably required at the time, plaintiff chose to buy the substitute car. Recovery for consequential damages is allowed only to the extent the buyer suffers actual damage, and since the plaintiff borrowed, then bought, another car, the rental cost of a substitute car is not an item of damage. See, Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978).

Applying the foregoing rules to this case, it is apparent the jury verdict was excessive. We recognize the amount of damages is left largely to the jury, but the jury may not ignore the statutory standards by which to measure plaintiff’s damages. In the unlikely event the truck could not be repaired and had no salvage value, the difference in the value of the truck as accepted and its value as warranted can be no more than $8,225, the cost of the truck. Since no includable consequential damage was shown, the total award could not exceed $8,225, and the jury award of $20,000 was certainly improper. See, Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971).

The trial judge recognized the impropriety of the jury award and ordered a new trial unless the plaintiff consented to remit-titur. Under the facts, his order was undoubtedly not an abuse of discretion. The order is due to be affirmed.

AFFIRMED.

MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER, J., with whom JONES, J., concurs, dissents.

FAULKNER, Justice

(dissenting).

This is an appeal from a judgment of the Circuit Court of Lawrence County granting a motion for new trial unless Winchester remitted $15,100 of a jury verdict of $20,000 damages awarded him in a suit for breach of warranty of a Jeep motor vehicle. I would reverse and render.

In February, 1978, James Winchester traded a 1978 Chevrolet four-wheel drive vehicle with one of the McCulloch brothers, owners of McCulloch Brothers Jeep dealership in Decatur, for a 1978 Jeep Honcho vehicle. He paid, in cash the day of the sale, the difference in price between the two vehicles, $485.00. This vehicle was used to drive back and forth to work each day, a trip between Hillsboro and Decatur. Mr. Winchester owned no other automobile.

On March 4, while driving the Jeep, having only 692 miles on it, Winchester felt a hard jolt and the Jeep fell down in the rear. It pulled to the left-hand side of the road and ran off the road into a ditch and hit'a mailbox. He finally got it straightened up and went directly up the ditch. While the Jeep was being removed by the wrecker, he noticed that the rear leaf spring on the driver’s side had broken completely loose from where it was attached to the frame and was hanging loose. The drive shaft had come out of the Jeep, having been broken at the universal joint and having slipped out of the transmission. The vehi-ele was taken to Moulton and after McCul-loch Brothers was called and Hoss McCul-loch was told of the problem, the Jeep was taken to McCulloch Brothers dealership. After talking with McCulloch Brothers later, he was told the North Alabama adjuster had told them not to fix the Jeep. He called the adjuster in Nashville and the factory in Detroit and received no satisfaction. Two days after this incident in which the Jeep was wrecked Winchester purchased a 1975 car and paid $2,556.00 for it in order to have a car to drive to work. Rental cost of a car would have been $15.00 a day and at the time of the trial, 435 days after the wreck, rental could have been $6,525.00.

On May 18, Winchester filed suit against the McCulloch Brothers, AMC, American Motors Sales Corporation, and Jeep Corp., for breach of warranty. The complaint was later amended to include a count under the Alabama Extended Manufacturers Liability Doctrine. At trial Winchester presented expert testimony that the leaf spring was defectively made. The jury returned a verdict for Winchester in the amount of $20,-000.00. Defendants filed a motion for new trial and in the alternative for judgment notwithstanding the verdict, asserting that the excessive verdict exhibited bias against the defendants and the damages were not supported by the evidence. The trial judge ordered a remittitur as to all defendants in the amount of $15,000.00 or a new trial. Winchester initially accepted the remittitur, believing the amount remitted was to be $4,900.00, but later struck consent to the remittitur and appeals.

The sole issue before this Court is whether the trial judge abused his discretion by ordering the remittitur.

The evidence shows the following proof relating to damages: Winchester purchased the Jeep for $8,225.00. To pay this, he traded in a Chevrolet, and paid $485.00 cash. Two days after the accident, Winchester bought another automobile for $2,556.00. He introduced evidence that the fair rental value of a vehicle was $15.00 per day, and he claimed loss of 435 days— $6,525.00. The cost to repair the Jeep was estimated to be $1,200.00. (It was never repaired.) Winchester paid a metallurgist $1,000.00 to testify as an expert witness at the trial.

Section 7-2-714, Code 1975, provides that the measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted, and the value they would have had if they had been as warranted. Here, the only evidence presented as to the value of the Jeep when accepted was its purchase price. The Court of Civil Appeals held that the purchase price of personal property is admissible as going to the value of the property, and in the absence of other evidence, it is sufficient. Becker Roofing Co. v. Carroll, 37 Ala.App. 385, 69 So.2d 295 (1953); Thompson Chrysler-Plymouth, Inc. v. Myers, 48 Ala.App. 350, 264 So.2d 893 (1972). In Riley v. Ford Motor Company, 442 F.2d 670 (1971), the Fifth Circuit permitted evidence of purchase price as going to the value, but there the owner testified that the property made the basis of a breach of warranty action was useless to him.

Because there was no evidence of value introduced other than the purchase price of the Jeep, we take that as a starting point to assess damages. The purchase price was $8,225.00, and it was obviously useless in its present condition at the time of the trial. In fact it was sitting on jacks — none of the defendants would agree to repair it. Therefore, I would find that the purchase price is an element of damages. Next, Winchester, when he had no automobile to go to his place of employment, had to buy another vehicle as a substitute means of transportation. I opine that this is another element of damages. Cf. Riley, where substitute transportation was permitted as an element of damages.

I would hold that Winchester’s damages should be $10,781.00 instead of $4,900.00 as found by the trial judge. With this award he would be placed in the same economic condition as he was in at the time he purchased the Jeep.

JONES, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clinton Preston ENTREKIN and Mary Lou Entrekin v. Basil D. ENTREKIN, Estelle Entrekin and James Henry Entrekin, a/k/a J. H. Entrekin.
    78-798.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellants.
    H. Neil Taylor, Russellville, for appellee James Henry Entrekin.
   PER CURIAM.

This is an appeal from a judgment voiding a deed which conveyed property from J. H. Entrekin to his two sons and their wives. We reverse.

On March 10, 1975, J. H. Entrekin, then 86 years old and unmarried, conveyed by deed 148 acres equally to his sons Basil and Preston and their respective wives, Estelle and Mary Lou. At the time the deed was executed, Preston, who had no knowledge of the deed, and his wife lived in Michigan and Basil and Estelle lived with J. H. on J. H.’s land.

In 1977, Basil had the land surveyed and deeds prepared to divide the 148 acres. The arrangement decided upon by him was for Preston to get 40 acres while Basil was to receive the remaining 108 acres. Preston refused to sign the deeds.

This suit was then instigated. The complaint, brought in J. H. Entrekin’s name, named both Basil and Preston and their wives as defendants. The complaint sought to void the March, 1975, deed as well as to place a lien against the property in favor of Basil and his wife in the amount of $300 per month. Preston and his wife filed an answer and counterclaim in which they: (1) denied any agreement of support had been entered into as consideration for the deed; (2) asserted that Basil and his wife were not entitled to a lien upon the property; (3) sought an accounting from Basil and his wife; and (4) asked for a sale for division. Basil filed an answer to Preston’s counterclaim denying these allegations.

The circuit court, sitting without a jury, entered a decree setting aside the deed. The court also denied the lien and all of Preston’s counterclaims. Following a motion for new trial, which was denied, Preston and his wife appealed.

The issue presented for our consideration is whether the 1975 deed from J. H. to his sons comes within the purview of Code 1975, § 8-9-12. That section provides:

Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at option of the grantor, except as to bona fide purchasers for value, lienees and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.

It has been held that to fall within the operation of this statute, an agreement to support must be a material part of the consideration for the conveyance. Massey v. Massey, 246 Ala. 396, 20 So.2d 790 (1945).

Parol evidence is admissible to show that the actual consideration for the execution of the deed was the promise on the part of the grantee to support the grantor during his life. Walker v. Walker, 256 Ala. 195, 54 So.2d 295 (1951). However, for this parol evidence to work a complete change in the nature of the estate shown on the face of the deed it must be clear, satisfactory and convincing. Sawyer v. Nettles, 263 Ala. 220, 82 So.2d 220 (1955); Scott v. McGill, 245 Ala. 256, 16 So.2d 866 (1944).

We conclude that there is no direct evidence of a support agreement sufficient to satisfy the clear and convincing standard of proof. The deed from J. H. to his two sons and their wives is absolute on its face and makes no reference to a promise of support as consideration for the conveyance. The parol evidence offered in support of the alleged agreement also fails to meet this strict standard of proof. Although Basil testified that the consideration for the conveyance was “support,” both he and Estelle contradicted this assertion when they unequivocally testified that neither promised to support J. H. in order to induce him to execute the deed. Preston, who did not learn of the deed until two years after it had been executed, also testified that he made no promise to support his father. The only statement made by Preston relating to support was made by him at his mother’s funeral in 1970 and, as such, is too remote to be considered as an inducement to execute the deed.

Other evidence offered at trial negates the existence of the alleged support agreement. Basil collected rental payments from tenants on J. H.’s land and retained the proceeds from the sale of calves produced by J. H.’s cattle. These circumstances, considered in conjunction with the fact that J. H. paid Basil fifty dollars per month from his social security benefits is inconsistent with a support agreement, as is Basil’s access to, and utilization of, J. H.’s financial reserves.

Furthermore, the testimony reveals that a purpose other than support may have motivated J. H. to convey the land. Both he and Basil knew that he would be ineligible for supplemental social security benefits as long as he retained ownership of his land. The inference that obtaining these benefits, and not a promise of support, motivated J. H. to convey his land is supported by the evidence that J. H. applied for these supplemental benefits soon after he executed the deed and by the testimony of Mr. Mansell, the attorney who drafted the deed, who stated that J. H. and Basil discussed these benefits when they came to his law office and asked him to draft the deed.

Based upon the foregoing, we find there to be no such convincing proof of an agreement to support the grantor during his life as to meet the burden of proof required under Code 1975, § 8-9-12. The judgment of the trial court setting aside the deed is hereby reversed.

REVERSED AND REMANDED.

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


author: MADDOX, Justice.

text:
    Faye Ward BORN v. EXXON CORPORATION.
    79-166.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    James E. Hart, Jr., Brewton, for appellant.
    Ben H. Harris, Jr. and Steven T. Stine of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
   MADDOX, Justice.

The appeal is from a summary judgment granted in favor of the appellee, Exxon Corporation, in a suit by appellant, Faye Ward Born, who sought damages for an alleged interference with her property caused by Exxon’s operation of a treating facility. The trial court granted Exxon’s motion for summary judgment on the theory that the property owner’s action was barred by the statute of limitations, specifically, Code 1975, § 6-2-39 and § 6-5-127(a).

The only issue raised on appeal is whether the property owner’s action against Exxon is barred by the statute of limitations.

Appellant contends that her action was not barred because it was founded in trespass, and thus, the six-year statute of limitations, Code 1975, § 6-2-34, would be applicable. She also contends that, in any event, she should be allowed to recover damages she claims she suffered during the 12-month period immediately preceding the date on which she filed suit.

I

We first address appellant’s claim that the defendant’s action constituted a trespass. In support of the trespass claim, appellant relies heavily upon Borland v. Sanders Lead Company, Inc., 369 So.2d 523 (Ala. 1979). At first blush, Borland would seem to control, because in Borland, this Court recognized that there may be a cause of action for an indirect trespass. This Court, in Borland, however, did not hold that every indirect invasion of a person’s possessory interest would amount to an actionable trespass. This Court opined:

* * * For an indirect invasion to amount to an actionable trespass, there must be an interference with plaintiff’s exclusive possessory interest; that is, through the defendant’s' intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res. For example, if the smoke or polluting substance emitting from a defendant’s operation causes discomfort and annoyance to the plaintiff in his use and enjoyment of the property, then the plaintiff’s remedy is for nuisance; but if, as a result of the defendant’s operation, the polluting substance is deposited upon the plaintiff’s property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass, though his alternative remedy in nuisance may co-exist.

Borland, 369 So.2d at 530.

In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974), this Court had dealt with the distinction between trespass and case and quoted from Restatement (Second) of Torts § 158, Liability for Intentional Intrusions on Land (1965):

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so.... [Emphasis added in Rushing.]

293 Ala. at 59, 300 So.2d at 96. It seems clear from Borland and Rushing that in order for one to be liable to another for trespass, the person must intentionally enter upon land in the possession of another or the person must intentionally cause some “substance” or “thing” to enter upon another’s land.

In this case, the plaintiff-appellant’s deposition and that of her father indicate that there was no particulate matter deposited upon her property. The only “interferences” complained of are those of light and odor. Appellant specifically complained about a horrible odor emanating from the Exxon plant and stated that the burning of the flare stack caused her whole house to be illuminated, thereby interfering with her sleep and that of other occupants.

The facts of this case are distinguishable from those in Borland and Rushing. The question presented is whether, under the facts of this case, the “odor” and the “light” constituted such an intentional intrusion upon plaintiff-appellant’s land as to amount to a trespass. From the evidence presented on the motion for summary judgment, the trial court could have determined that there was not a scintilla of evidence of an intentional entry of any substance onto the land of the plaintiff-appellant amounting to a trespass.

II

Plaintiff—appellant, in her complaint, further sought the abatement of the alleged nuisance. The question is presented again as to whether this action was barred by the statute of limitations.

Code 1975, § 6-5-127(a), provides:

(a) No agricultural, manufacturing or other industrial plant or establishment, or any farming operation facility, any of its appurtenances or the operation thereof shall be or become a nuisance, private or public, by any changed conditions in and about the locality thereof after the same has been in operation for more than one year when such plant, facility or establishment, its appurtenances or the operation thereof was not a nuisance at the time the operation thereof began; provided, that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such plant, establishment, or any farming operation facility, or any of its appurtenances.

It appears clear from the record, in fact, in appellant’s own deposition, that Exxon’s plant has operated substantially without change since 1974, and that the complaint on which summary judgment was issued was filed in October of 1978, well after the one year prescribed by the statute.

Under the facts of this case, we conclude that the trial judge did not err in concluding that there was no genuine issue of a material fact. His granting of summary judgment is due to be affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. JONES, Justice

text:
    Coke MATTHEWS, III and Steve Hammack v. MOUNTAIN LODGE APARTMENTS, INC. et al.
    79-168.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      Frank O. Burge, Jr., and James H. Wet-termark, Birmingham, for appellants.
    Larry W. Harper of Porterfield, Scholl, Clark & Harper, Birmingham, for appellees.
   FAULKNER, Justice.

This is a suit by residential tenants against a landlord for damage to personal property allegedly caused by the landlord’s negligent and wanton maintenance of the apartment. Specifically, plaintiffs claim that the landlord negligently repaired or failed to repair a ceiling light in the common breezeway that later caused a fire that destroyed their property. Defendants Mountain Lodge Apartments and Great American Management and Investors Company moved for summary judgment based upon an exculpatory clause in the leases signed by the plaintiffs. The trial court granted the motion, and plaintiffs appealed. We affirm.

Plaintiffs had signed a standard form residential apartment lease with defendant Mountain Lodge Apartments containing the following exculpatory clause:

LIABILITY. The Lessor and its agents shall not be liable to Lessee, or any person claiming through Lessee, for any injury to the person or loss of or damage to property from any cause; without in any wise limiting or restricting the generality to the above, the Lessor and his agents shall not be liable for any claims arising from damage by water from plumbing, heating equipment, drains, rain, snow, flood, or sewer or drain, overflow or backup, nor from the fact that the building or any part thereof, and the appurtenances, equipment, furnishings, fixtures or apparatus located in the premises, or in the building of which the premises are a part, are out of repair, or on account of any claim arising out of any act of an employee of Lessor, or of any tenant or occupant of the building of which the premises are a part.

Plaintiffs lived in the apartments about half a year before the fire occurred. During that time, they had experienced difficulties with the ceiling lights in the common breezeway. There were two hallway lights in the ceiling of the common breezeway adjacent to the plaintiffs’ apartments. Testimony indicated that one flickered and dimmed at times while the other went out frequently. The record reveals only one complaint was lodged with the landlord in regard to the ceiling lights. Plaintiff Ham-mack’s wife filed the complaint, as related by her testimony:

Q At the time you called Anna Hicks, I believe you called to complain about a bulb being out?
A Yes. No. My complaint was that the bulb was having to be replaced so often and I was tired of replacing it all the time. But I felt like that, you know, there was some reason why the bulb was going out all the time.
Q All right. Go ahead.
A And so I asked her if, you know, could she check on it and replace the bulb. And she said she would get someone on it.
Q As far as you know, the bulb was replaced?
A Right.

The only evidence connecting the ceiling lights with the cause of the fires was testimony by plaintiffs that they noticed the ceiling of the breezeway on fire when they fled their apartments. The fire then spread to their apartments, destroying all of their property inside.

Appellants raise two issues on appeal:
(1) Should the Court declare an exculpatory clause in a standard form residential lease unenforceable and void as being contrary to public policy?
(2) Is there a scintilla of evidence that the actions of the defendants constitute active negligence beyond the protection of an exculpatory clause?

This Court has consistently upheld the validity of exculpatory clauses in residential leases. Deen v. Holder field, 275 Ala. 360, 155 So.2d 314 (1963); Wheeler, Lacey & Brown, Inc. v. Baker, 269 Ala. 293, 112 So.2d 461 (1959). In fact, such clauses have been recently recognized as a specific exception to the general rule that a party may not contract against the consequences of his own negligence. Alabama Great Southern Railroad v. Sumter Plywood Corporation, 359 So.2d 1140 (Ala.1978). In Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So.2d 721 (1961), this Court stated:

This court has held that exculpatory provisions such as exist in the instant case between private parties are valid and binding upon the parties to the contract. They are not contrary to public policy and will be upheld. Wheeler, Lacey & Brown, Inc. v. Baker, supra; Life & Casualty Ins. Co. of Tenn. v. Porterfield, 239 Ala. 148, 194 So. 173; American Dist. Tel. Co. v. Roberts & Son, 219 Ala. 595, 122 So. 837; McKinney v. Mobile & O. R. Co., 215 Ala. 101, 109 So. 752, 48 A.L.R. 998.

This view is followed across the country. One of the authorities cited by appellants themselves notes:

As indicated above, the great majority of American jurisdictions follow the Restatement of Contracts rule, allowing the landlord to contract away liability for his own future negligence, but not for willful or wanton misconduct. These courts have declared exculpatory clauses valid and not void as against public policy. They have stated that such clauses are not matters of public concern, that they are made between people conducting a strictly private business transaction and are of no concern to the state. These holdings have been predicated on the fact that the parties stand on equal footing with neither the landlord nor tenant under any compulsion to enter into such a contract. In this respect it has also been held that a lower rental or the supplying of utilities by the landlord is valid consideration to uphold such clauses, since the parties are free to bargain in this area. (Footnotes omitted)

Note, Exculpatory Clauses in Standard Form Leases: A Need for Direct Judicial Action, 28 U.Pitt.L.Rev. 85 (1966).

Appellants urge this Court to overrule its prior decisions and strike down exculpatory clauses by way of judicial action. As appellants’ brief indicates, the preferred method for invalidating such clauses is by legislative action; at least 20 states have voided these clauses by statute. Appellants rely on a handful of cases from other jurisdictions as examples of courts taking the initiative to change the law in this area. The California case, Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 143 Cal.Rptr. 247, 573 P.2d 465 (1978), is offered as a model to follow.

In a slightly different context, this Court noted the inherent difficulties in basing judicial decisions on public policy. In Hinrichs v. Tranquilame Hospital, 352 So.2d 1130 (Ala.1977), we stated:

Appellant Hinrichs would have this Court justify the creation of this rule on “public policy” grounds and bases her contention on an Oregon and a California appellate court decision. However, even the California appellate court in Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), confessed that, “ ‘The term “public policy” is inherently not subject to precise definition.... “Public policy is a vague expression, and few cases can arise in which its application may not be disputedWe hold that this is too vague a concept to justify the creation of such a new tort. Such creations are best left to the legislature, [emphasis added]

Appellants’ public policy grounds for their positions are based on observations concerning the relative bargaining power of landlords and tenants, the increasing scarcity of apartment housing, and other socioeconomic factors. Appellee points out that homeowner’s insurance for tenants is available for protection and that landlords would have to increase rental rates if exculpatory clauses were invalidated. Such factors can be more accurately weighed by the state legislature, which is better equipped to assess the conditions of the marketplace via hearings and other factfinding procedures.

Appellants argue that the state legislature has already spoken in its enactment of Code 1975, § 11-53-1, which authorizes municipalities to promulgate city ordinances regulating apartments. Yet, there is no indication in this legislation of a public policy against exculpatory clauses. If the legislature had wished to declare such clauses void as against public policy, it need only adopt one of the model acts in existence. See, e. g., Uniform Residential Landlord and Tenant Act, § 1.403 (1972). We might add that the record does not indicate any violation by Mountain Lodge Apartments of a city ordinance regulating apartments.

Reaffirming our past decisions upholding exculpatory clauses, we now move on to the second issue of whether the instant case falls without the scope of the exculpatory clause. In Armi v. Huckabee, 266 Ala. 91, 94 So.2d 380 (1957), we held that exculpatory clauses did not bar a claim based on negligent conduct or what has been called active negligence. This case involved a suit for personal injuries resulting from an apartment fire. It was found that the janitor had negligently shoveled hot ashes near combustible material which caused the fire.

In a subsequent landlord-tenant case, we distinguished Armi, finding that a failure to remedy a defect was merely passive negligence. Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So.2d 721 (1961). In Baker, a tenant sued her landlord for personal injuries incurred when she tripped on a defective sidewalk outside her apartment. Holding the lease’s exculpatory clause applicable, we reasoned:

[T]he failure to correct the defects with the result that the walkway was in an unsafe condition before and while the lease was in force and effect, is the negligence relied on for recovery. This was passive negligence, as brought out in the opinion of this court on the first appeal. The Armi case presents quite a different situation. In that case there was no defective condition which proximately resulted in the plaintiff’s personal injuries, but rather an active course of negligence when the landlord’s employee shoveled hot coals from the furnace into dangerous proximity to a large amount of combustible materials.

Furthermore, we made no distinction between the apartments or areas leased to the tenants and the common areas such as the breezeway in the instant case.

In other contexts, we have held the failure to inspect and/or remedy a defect to be passive negligence. See Sherman Concrete Pipe and Machinery, Inc. v. Gadsden Concrete and Metal Pipe Co., 335 So.2d 125 (Ala.1976); City of Mobile v. George, 253 Ala. 591, 45 So.2d 778 (1950).

Appellants contend that the instant case falls somewhere between the Armi and Baker cases on the side of active negligence. One theory is that appellees were actively negligent in the maintenance of the entire apartment complex. The only authority cited in support of this notion of active negligence is 62 Am.Jur.2d Premises Liability § 77 (1972). That text cites only a 1905 English case in support of its proposition. Not only is the support of this view weak, but the amorphous concept of a general negligent maintenance of the apartment complex as a whole is far from the specific affirmative act relied on in Armi.

Appellants also contend that defendants were actively negligent in being sent to repair the ceiling light and failing to make satisfactory repairs. They cite no authority finding such conduct or even similar conduct to be active negligence. Yet we have addressed a similar situation in Deen v. Holderfield, 275 Ala. 360, 155 So.2d 314 (1963). . In that case, the landlord attempted to repair a leaking kitchen sink. Part of the drain pipe was removed and a bucket placed beneath it to catch the water. It was left in that condition for four days. The plaintiff tenant slipped on the overflow from the bucket while attempting to empty it one day. She sued to recover for personal injuries. Applying in dictum the facts of the case to the passive — active distinction, we stated:

... The Armi and Baker cases hold that a clause exonerating the landlord from damages incurred from any defect in the building, or any cause whatsoever, does not exonerate the landlord from personal injuries attributable to his own active negligent conduct, but it does relieve him from liability based on a defect which involves no affirmative negligence on his part.
While it appears to us that the facts in the instant case would fall into the latter category and thus necessitate a verdict favorable to appellant, it seems unnecessary to categorize appellant’s acts as active or passive.

Like Deen, the alleged failure to make a satisfactory repair of the ceiling light in the instant case is far from the affirmative negligent act essential to the Armi holding.

Even assuming that defendants’ failure to make a satisfactory repair constitutes active negligence, there is no evidence of an attempted repair to survive the motion for summary judgment granted below. The trial court is bound by the scintilla evidence rule in its considerations of motions for summary judgment. Rule 56, ARCP (Committee Comments). However, we have consistently held that the scintilla doctrine does not vitiate the rule that a conclusion based on speculation or conjecture as to liability is not a proper basis for a verdict. Ingram v. Harris, 244 Ala. 246, 13 So.2d 48 (1943).

There is absolutely no evidence in the record to suggest beyond mere speculation that defendant attempted to repair the ceiling light in the common breezeway. The testimony of plaintiff Hammaek’s wife regarding a complaint to defendant is set out in the beginning of this opinion. She only testified that the bulb was replaced, not that any repair was attempted or made. The gist of her complaint to defendant was that the light bulb needed replacing, not that repairs of the light fixture were needed.

Appellants also refer in their brief to the testimony of the resident manager of the apartments, Anna Hicks, as evidence that the ceiling light was repaired. They claim she testified that she specifically saw work orders to repair the ceiling light in question. Yet, a close examination of the testimony in context reveals that Ms. Hicks was referring to complaints and work orders concerning various anonymous residents throughout the apartment complex. There is no testimony that she saw a work order to repair the ceiling light that plaintiff complained of. That testimony is set out below:

Q You don’t remember her [Mrs. Ham-mack] ever calling and complaining about her lights?
A Not to me, no.
Q Do you remember anybody at Mountain Apartments, calling the office complaining about their lights ?
MR. HARPER: Object to the form of that question as to what time and whatever.
Q At any time before February, is that when it was, in ’77, calling and complaining about their lights?
A I had heard of people calling. I had not personally taken the complaint.
Q Who had you heard about it from? A It was usually on a work order or something when you were filling it.
Q But you had seen the complaints? A Uh-huh.
Q And you had written up a work order? No. You had seen a work order written up?
A I had seen one, but I had not taken one on the lights or anything of that nature, (emphasis added)

There is nothing else in the record to indicate that a repair was made or attempted by the defendant. As there is no evidence of any active negligence on the part of defendant, the trial court properly found the lease’s exculpatory clause to bar recovery by plaintiffs as a matter of law.

AFFIRMED.

TORBERT, C. J., concurs.

MADDOX, ALMON and EMBRY, JJ., concur in the result.

JONES, SHORES and BEATTY, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. The majority’s antiquated approach toward a prevalent issue in our mobile society impels me to assume the role of an iconoclast.

While adhesion to stare decisis may in this instance happily align us with the status quo, it again sounds the death knell for reform in an area of jurisprudence crying out for progressive reconstruction.

The majority, unfortunately, has opted to skirt the problem by a cleverly phrased dichotomy of issues that in effect does nothing more than pass the buck to the Legislature or focus on some dubious concept of “active” as opposed to “passive” negligence. In other words, we again retreat.

Where the owner leases parts of the premises to different tenants, and expressly or impliedly reserves other parts thereof, such as entrances, halls, stairways, porches, walks, etc., for the “common use” of multiple tenants and their invited guests, it is his duty to exercise reasonable care to keep safe those parts over which he reserves control; and if he is negligent in this regard and because of his negligence a personal injury results to a tenant or to a person exercising the rights of the tenant, he is liable, provided the injury occurs while a reserved part of the premises is being used in the manner intended. United Shoe Machinery Corp. v. Paine, 26 F.2d 594 (1st Cir. 1928); Johnston v. De La Guerra Properties, 28 Cal.2d 394, 170 P.2d 5 (1946); Dinnan v. Jozwiakowski, 156 Conn. 432, 242 A.2d 747 (1968).

The careful reader will immediately note a lack of reference to “property” damage in the aforementioned authority. Such absence, however, should not prevent an implication that a lessor’s duty to protect his tenants against personal injury on common passageways, approaches, etc., likewise includes a duty to assume responsibility for loss of or damage to personal property proximately caused by a lack of due care in maintaining such common areas.

The rule in most jurisdictions is that the landlord’s duty extends to repairing defects arising after the tenant takes possession, and is not confined to keeping the premises in the condition in which they were when the tenant took possession. Brandt v. Rakauskas, 122 Conn. 69, 151 A. 315 (1930); Gibson v. Hoppman, 108 Conn. 401, 143 A. 635, 75 A.L.R. 148 (1928).

Appellants contend, and I agree, that the proper approach would be for this Court to overrule its prior decisions and strike down exculpatory clauses by way of judicial action. See e. g., Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 143 Cal.Rptr. 247, 573 P.2d 465 (1978); Weaver v. American Oil Company, 251 Ind. 458, 276 N.E.2d 144 (1971); Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377 (1941).

While I note that the Appellants have cited only cases involving “personal” injury, I again submit that the gulf between “personal” injury and “property” damages or loss is not so wide that the bridge of the law cannot span it. Indeed, generally, it is foreign to the law of torts to distinguish between liability for property damage and liability for personal injury.

As a second avenue of escape, the majority adopts wholeheartedly a perpetual rule based on passive versus active negligence-the latter sometimes said to remove the protection afforded a lessor under the umbrella of his exculpatory clause. While such a distinction may have impressed Professor Prosser, it does nothing to support with reason the denial of a remedy to one injured, whether in person or in property rights.

Once again in our finest hour, having been figuratively tapped on the shoulder, we have shown ourselves, as before, unprepared to deal with an issue of utmost importance.

Through our remembrance of the past, we now condemn others to repeat it.

SHORES, Justice (dissenting):

I dissent. On motion for summary judgment, the movant has the burden to negate the existence of any material fact upon which the fact-finder could conclude in favor of the opposing party. Under the facts revealed by the supporting papers, a finding that the fire was caused by a defective fixture is not compelled. Therefore, it is not shown that the plaintiff’s claim is necessarily excluded by the exculpatory clause. Therefore, the movant has not carried its burden. A jury could conclude that the fire did not start from a “fixture ... out of repair.” Therefore, it is possible that upon a full development of the facts, the exculpatory clause in the lease would be found inapplicable.

      . The cases cited by appellants are distinguishable from the case at bar in one important respect. Most of them are suits for personal injuries. See, e. g., Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 143 Cal.Rptr. 247, 573 P.2d 465 (1978); Weaver v. American Oil Company, 257 Ind. 458, 276 N.E.2d 144 (1971); Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377 (1941). Without questioning the validity of exculpatory clauses to bar recovery for personal injuries, we do note that the instant case involves a suit for recovery of damages for property injury only.


text:
    Lynn Nathaniel LITTLE et al. v. Sadie PATE and Junior E. Pate.
    79-228.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    William W. Bedford and Robert I. Rogers, Jr., of Bedford, Bedford & Rogers, Rus-sellville, for appellants.
    Donald R. White, Moulton, for appellees.
   PER CURIAM.

This is a negligence action arising from an automobile accident.

The question presented is whether the Circuit Court abused its discretion in granting a new trial.

The accident occurred at the intersection of Highways 157 and 101 in Lawrence County, Alabama. At this intersection Highway 157 runs generally northwest and southeast. Highway 101 runs generally north and south. For the purposes of this opinion, and for simplicity, we will consider this a north-south, east-west intersection.

Sadie Pate, one of the plaintiffs, was a passenger in a car driven by Geneva Graham. The defendant, Lynn Nathaniel Little, was driving the other car. The Little car was travelling north on Highway 101 and had stopped at a stop sign at the intersection in question. The Graham car was proceeding west on Highway 157 and had slowed or stopped in order to make a left turn onto Highway 101. A truck was proceeding east on Highway 157, and as soon as the truck passed through the intersection the Graham car began a left turn, when the collision occurred.

The plaintiff contends that after the truck passed going east, the Little car moved onto Highway 157 and struck the Graham car in the side, and then backed up to a point on Highway 101 behind the stop sign.

Little contends that the Graham car turned left from Highway 157 onto Highway 101, and by turning too sharply came into collision with the Little car which was still stopped on Highway 101.

Upon trial, the jury returned a verdict for the defendant, Little. The trial court set aside the verdict on motion for new trial.

The rules governing appellate review of rulings on motions for new trial were summarized by this Court in Hubbard Bros. Construction Co., Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975), wherein it was stated:

1. Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness.
2. When the trial court grants a new trial motion, without specifying the grounds therefor, the ruling must be sustained on appeal if any good ground is presented by the motion.
3. When the trial court grants a new trial, without specifying the grounds therefor, and one of the grounds is that the verdict is contrary to the evidence, the appellate court presumes that it was because the trial court concluded the verdict was contrary to the great preponderance of the evidence or the verdict was unjust in the light of the evidence.
4. In such circumstances as 3, the appellate court will not reverse the order granting a new trial unless it áppears that the great weight of the evidence plainly and palpably shows the trial court was in error.
5. In such circumstances as 3, and where the evidence is in conflict and when, upon review thereof, the appellate court cannot say that the great weight of the evidence plainly and palpably supports the jury’s verdict or it is not convinced that the evidence plainly and palpably shows the trial court to be in error, then the order granting a new trial should not be disturbed.

294 Ala. 690-91, 321 So.2d 171. (citations omitted).

The plaintiff, Sadie Pate, was a passenger in the Graham car and under the facts of this case could not as a matter of law be guilty of contributory negligence. Thus, the main issues were whether Little was negligent and, if so, whether his negligence proximately caused the injury.

Under the rule summarized in Hubbard Bros., trial judges are given considerable discretion in setting aside jury verdicts. We cannot say that from the facts in this case that the trial judge erred. Therefore, the judgment granting a new trial is due to be affirmed.

AFFÍRMED.

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


text:
    Kitty STALLINGS, Individually and d/b/a Text-Mar Factory Outlet v. ANGELICA UNIFORM COMPANY, d/b/a Life Uniform Company et al.
    79-300.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      Horace N. Lynn of Piel & Lynn, Montgomery, for appellants.
    Joseph C. Espy, III of Melton & Espy, Montgomery, for appellee Angelica Uniform Company, etc.
    Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee Leon L. Clardy.
   PER CURIAM.

Defendant Leon L. Clardy, landlord, owned a building on Norman Bridge Road in Montgomery which housed five stores. He leased one store to Kitty Stallings, plaintiff/tenant, who was doing business as Text-Mar Factory Outlet, and an adjacent store to defendant/tenant, Angelica Uniform Company, doing business as Life Uniform Company.

The written leases of both tenants contained clauses providing that the tenants, and not the landlord, would be responsible for repairs to the interior of the stores including repairs to all heating units, store fixtures, store equipment and electrical installation. Moreover, under these leases the landlord would not be liable for damage to or loss of any property of the tenants unless it was caused by a direct failure of the landlord to act as required by the lease within a reasonable period after being given notice of the necessity therefor.

The plaintiff brought this action to recover damages against Angelica and Clardy. Her complaint claimed loss of property and business as result of a fire which originated from a defective fluorescent light ballast on the premises of Angelica Uniform Company. Plaintiff also alleged that defendant Angelica Uniform Company or its agents, servants or employees and the lessor, Clar-dy, negligently or wantonly caused the fire.

The defendant Clardy moved for summary judgment based on the pleadings and depositions filed by him. Plaintiff introduced nothing in opposition to that motion for summary judgment, and the motion was granted.

Plaintiff then filed a motion for re-hearing of the motion for summary judgment. This motion was denied. A motion for leave to amend her complaint was filed by plaintiff and was supported by affidavits. This motion was also denied.

The case against Angelica Uniform Company was heard by a jury on December 13, 1979 and a judgment was rendered in favor of that defendant.

On appeal plaintiff contends that:

1. The summary judgment was improperly granted for defendant Clardy;

2. The trial court erred in denying plaintiff’s motion for re-hearing of the motion for summary judgment;

3. The trial court erred in denying plaintiff’s motion for leave to amend her complaint;

4. The judgment for defendant Angelica Uniform Company was contrary to the evidence.

We affirm.

Plaintiff urges that summary judgment in favor of Clardy was improper because on the day of the fire, the building owned by defendant Clardy and leased by plaintiff, doing business as Text-Mar, was in violation of the fire code of Montgomery.

This argument must fail, however, since such information was not before the court at the time of submission of the summary judgment motion, but was brought out later at the trial against defendant Angelica Uniform Company.

Under Alabama law the trial court considering summary judgment can consider only the material which is before it at the time of submission of the motion. Guess v. Snyder, Ala., 378 So.2d 691 (1979); Mathis v. Jim Skinner Ford, Inc., Ala., 361 So.2d 113 (1978). Clearly the trial court cannot be put in error for failing to consider evidence which had not been presented to it at the time of the submission of the motion.

The plaintiff also contends that even though the lease of landlord Clardy to Angelica Uniform Company, on whose premises the fire started, contained a clause placing the duty to repair on the tenant, that clause should not affect her right to collect against Clardy for negligence. While this contention is generally accurate, it is important to observe that plaintiff Stallings is also a tenant of Clardy, and as such is to be governed by her own lease with Clardy which contained a clause placing the duty to repair on the tenant.

The general rule is that in the absence of a covenant to repair, a landlord is liable only for latent defects of which he was aware when he leased the premises and which he concealed from the tenant. Rushton v. Shugart, Ala., 369 So.2d 11 (1979). Furthermore, a landlord has no duty to inspect for latent defects. Id.

In Charlie’s Transfer Co. v. Malone, 159 Ala. 325, 48 So. 705 (1909), the tenant of the first floor of a building sued the landlord for damages which occurred when a water pipe burst on the second floor. One count charged that defendant had a duty to keep the pipes in order and negligently breached that duty by having weak and defective pipes. This Court held that the count based on failure to keep in repair a portion of the building not rented to the defendant was demurrable for failure to aver knowledge or notice by the landlord of the defect. There it was said:

To put the lessor in default in this respect, pretermitting all other considerations, it is necessary to aver knowledge or notice on her part of such defect....

The depositions submitted by landlord Clardy in support of the summary judgment motion showed he did not know of any defects. He made no repairs to the lights, nor did he attempt to inspect them. No complaints had been made concerning the lights. Since plaintiff/tenant offered nothing to contradict this evidence we must consider it uncontroverted. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976); Rushton v. Shugart, Ala., 369 So.2d 11 (1979). Absent any knowledge or notice on the part of Clardy of this latent defect there is no evidence showing that Clardy breached a duty to the plaintiff.

The plaintiff also contends that landlord Clardy failed to show that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. She claims that the evidence merely showed that the deponents did not know of any genuine issue of material fact, and contends that this evidence does not establish that none existed.

This argument overlooks the plaintiff’s own position. A motion for summary judgment may be granted only when the movant has carried his burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Smith v. American Cast Iron Pipe Co., Ala., 370 So.2d 283 (1979). Rule 56(e), ARCP states:

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 ... 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.

Here the landlord presented facts which would establish that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Moreover, the plaintiff herself stated in a deposition that she did not know of any specific act of Clardy’s that caused any damage to her. Since the plaintiff made no response and did not herself know of any negligent act done by defendant Clardy, the trial court properly granted summary judgment for him.

Plaintiff’s second contention is that the trial court erred in denying her motion for a rehearing of Clardy’s motion for summary judgment. Plaintiff offered no new information, no affidavits, no depositions and no explanation for the failure to furnish any such information prior to the summary judgment.

This Court faced a similar situation in Mathis v. Jim Skinner Ford, Inc., Ala., 361 So.2d 113 (1978). There a plaintiff requested a rehearing from a summary judgment. Although plaintiff had not answered the original motion for summary judgment he had filed an affidavit to support the motion for rehearing. This Court stated:

It was, therefore, incumbent upon the plaintiff, on rehearing, to show circumstances which prevented his presenting evidence to counter that offered in support of the motion for summary judgment. Absent that, the trial court did not abuse its discretion in refusing to set aside the summary judgment. Willis v. L. W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla.App.1977); Rule 56(e), ARCP.

Plaintiff here did not even file an affidavit to support the motion for rehearing of the summary judgment. Clearly the trial court did not abuse its discretion in refusing to set aside the summary judgment.

Plaintiff's third contention is that the court erred in denying her motion for leave to amend. She argues that the proposed amended complaint was based on facts unknown to her at the time of the filing of the original complaint. These facts concerned the alleged violation by Clardy of the building or fire code at the time the building in question was constructed.

The fire loss made the basis of this suit occurred on June 10, 1977. The plaintiff filed her action on June 9, 1978. The motion for summary judgment was filed on February 9, 1979 and was granted on May 9, 1979. The plaintiff made no explanation for the failure to file her motion to amend during the period of time which elapsed between the filing of her complaint and the grant of the summary judgment motion.

Knowledge of the alleged violation of the building or fire code, which the plaintiff claims she did not have, was readily available by the exercise of reasonable diligence during the one year preceding the filing of the complaint and certainly during the additional year the suit was pending before summary judgment was granted for Clardy. No explanation is made of the failure to engage in discovery or otherwise to investigate to obtain these facts.

In Stead v. Blue Cross—Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975), this Court denied a petition for mandamus seeking to compel the circuit court to allow the amendment of a complaint. There the court considered the fact that the plaintiff proceeded on the original complaint for over two years, and all of the facts attempted to be pleaded in the amendment were available at the time the original complaint was filed or within one year thereafter. This Court said:

We simply state here that if Rule 15 is to be of any benefit to the bench, bar and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground.

Rule 15, ARCP, is not carte blanche authority to amend a complaint at any time. Discretion rests in the trial judge to deny amendments for good cause. In Walker v. Traughber, Ala.Civ.App., 351 So.2d 917 (1977), the court said: “[I]f the court determines, as it apparently did here, that a party has had sufficient opportunity to state a claim or revise his answer to a complaint but has failed to do so, leave to amend may properly be denied.” Cf. McElrath v. Consolidated Pipe & Supply Co., Ala. 351 So.2d 560 (1977), which is distinguishable on the facts. McElrath held that leave to amend pleadings should be liberally granted and that a court should not deny such amendments unless prejudice would result to the opposing party or unless there is an unexplained delay on the part of the moving party. In McElrath, however, inter alia, there was no evidence in the record that the amendments which were sought at the beginning of (and during) the trial could have been made at an earlier time.

In the instant case, the plaintiff had sufficient opportunity to discover the facts and to amend her complaint earlier and failed to do so. In view of this unexplained delay, leave to amend was properly denied.

Finally, plaintiff contends that the verdict rendered for Angelica Uniform Company at trial was contrary to the evidence. A jury verdict is presumed to be correct and will not be disturbed on appeal on the ground that it is contrary to the evidence unless the evidence convinces the court that it is wrong and unjust. Guthrie v. McCauley, Ala., 376 So.2d 1373 (1979).

The issue at trial was whether Angelica Uniform Company or its agents, servants, or employees wantonly or negligently caused the fire which began on Angelica Uniform Company’s premises. The evidence showed that on the day before the fire three employees of Angelica did smell an unusual odor. All three testified that this odor was faint and did not smell like anything burning. They further said the odor did not seem to be coming from the light fixture. In fact they could not even be sure that the odor originated inside the shop. They testified that there was no tar or anything else coming from any light fixture; there had been no previous electrical problems; there was no smoke in the shop; and there was absolutely no indication to them that there was going to be a fire.

Clearly this evidence presented factual questions for the jury. Based on our review of the evidence, we are not convinced that the jury verdict, which held that Angelica Uniform Company was not negligent and that these employees acted as reasonably prudent persons would have under the same or similar circumstances, was either wrong or unjust. Thus, we hold that the verdict was not contrary to the weight of the evidence.

Let the judgment be affirmed.

AFFIRMED.

FAULKNER, ALMON, SHORES, EM-BRY and BEATTY, JJ., concur.

JONES, J., concurs in the result.

TORBERT, C. J., and MADDOX, J., not sitting.


text:
    Byrda Zell C. HACKER et al. v. Johnny C. CARLISLE et al.
    79-327.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      Zack Rogers, Jr., Butler, John E. Adams of Adams & Adams, Grove Hill, for appellants.
    William L. Utsey, Butler, for appellees.
   PER CURIAM.

This is a suit for declaratory judgment seeking interpretation and declaration of the legal effect of a deed executed in 1914 by Jasper Carlisle, et ux., to his son John Carlisle. Plaintiffs, the heirs of John Car-lisle, also seek to quiet title in themselves as to certain mineral interests in three parcels of land-two of which were covered by the deed in issue. The trial court found the deed conveyed merely a life estate to John Carlisle with remainder to his heirs based on the following handwritten clause, viz.: “It is understood that the above party of the second part is not to sell above described lands but it is to go to his heirs.” Defendants, successors in interest to a 1943 conveyance by John Carlisle of mineral interests in the three parcels, appeal the trial court’s finding that John Carlisle did not have a fee simple interest to convey. We reverse.

In 1914, Jasper Carlisle conveyed Parcels 1 and 2 to his son, John, by warranty deed. A printed form deed was used with handwritten additions. That deed is set out below with the applicable handwritten portion designated by italics.

A DEED FROM J. C. CARLISLE AND WIFE
TO JOHN CARLISLE.
THE STATE OF ALABAMA, CHOCTAW COUNTY.
BE IT KNOWN BY THESE PRESENTS, THAT WE J. C. Carlisle and M. J. Carlisle of the first part, in consideration of the sum of One Dollars, to us in hand paid by John Carlisle party of the second part, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and convey unto the said party of the second part the following described property, to-wit:
NW Vi of SE Vi Sec. 29 T 11 R 3 in Choctaw Co., Alabama containing 40 acres Also 17 3A acres in W of SE Vi Sec. 28, Til, R3 Choctaw Co. Alabama. It is understood that the above party of
the second part is not to sell above described lands but it is to go to his heirs.
We reserve all timber on above described lands.
TO HAVE AND TO HOLD the same unto the said party of the second part, and to his heirs and assigns, forever. And the said parties of the first part, for them and their heirs, covenant with the said party of the second part that we are lawfully seized in fee-simple of said premises; that they are free from all incumbrances; that we have a good right to sell and convey the same as aforesaid, and that we will forever warrant and defend the same unto the said party of the second part, and his heirs and assigns, against the lawful claims and demands of all persons.
In witness whereof the said parties of the first part have hereunto set their hands and seals this 20th day of Feby [sic] in the year of our Lord 1914.
his mark
J. C. Carlisle (Seal.)

On the same date in 1914, Jasper conveyed Parcel 3 to another son, Ira Carlisle, by a deed which is identical in all significant respects to the deed to John, including the handwritten clause in question. Subsequently Ira conveyed Parcel 3 to his brother, John, by a deed which is sufficient to have conveyed a full fee simple title. Neither Ira nor his heirs are parties to this proceeding.

In 1943, John conveyed to R. E. Anderson an undivided one-half mineral interest in the three parcels. This deed is a warranty deed sufficient to convey full fee simple title to such mineral interest. Appellants have succeeded to the mineral title of R. E. Anderson, now deceased.

John Carlisle died, intestate, on March 30, 1960, survived by his widow and the appel-lees, his heirs. After the death of John and prior to the filing of this suit, proceeds from the production of oil on Parcel 1 were realized. The stakeholders, some of whom are lessees of the appellants and some of whom are lessees of the appellees, have deposited the proceeds with the trial court pursuant to ARCP 22.

Appellees claim Parcels 1 and 2 as re-maindermen under the 1914 deed to John. They claim Parcel 3 under our statute of descent as the heirs of John. While the trial court quieted title in the appellees as to Parcels 1 and 2, it denied their claim to Parcel 3, reasoning that Ira did not have a fee simple interest to convey to John which could be passed down by intestacy.

At the outset, we note that the usual presumptions of correctness in the trial court’s findings in cases tried ore tenus are not applicable here. This case was tried without a jury on stipulations and briefs of the parties and primarily documentary evidence. No testimony of any witness was admitted into evidence on any material matter. In such a situation, the appellate court sits in judgment on the evidence. McCullock v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).

A starting point for the construction of the deed in question is Code 1975, § 35-4-2, viz.: “Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.” (emphasis added)

Under this statute, the presumption is, and all doubts are resolved in favor of, a fee simple estate. Johnson v. Harrison, 272 Ala. 210, 130 So.2d 35 (1961). The intention to create a lesser estate must clearly appear, for the courts will not construe the grantor’s words as conveying a lesser estate if a different meaning can be fairly given them. Johnson.

In the deed in question, all the clauses except one are consistent with a conveyance of a fee simple estate. Although the granting clause contains no words of inheritance, the court may look to the language of the habendum and warranty clauses to find a conveyance of a fee simple estate. See, e. g., Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1956). Here, both the habendum and warranty clauses contain the traditional words of inheritance connoting a fee simple estate, i. e., “his heirs and assigns.” However, appellees contend that the handwritten clause in question clearly diminishes the interest conveyed to a life estate with remainder. We disagree.

We recognize appellees’ point that handwritten portions of a deed take precedence over printed language when in conflict. Porter v. Henderson, 203 Ala. 312, 82 So. 668 (1919). However, the failure of the handwritten clause here to clearly or even minimally designate a life estate renders it ineffective.

Appellees cite three Alabama cases they consider persuasive for the proposition that only a life estate was created by the deed here. However, all the deeds in these cases use traditional life estate language which is notably absent in the case at hand. In Thompson v. Leyden, 222 Ala. 81, 130 So. 780 (1930), the deed said the land shall be the property of the grantee for “his natural life” and then provided over to the grantee’s children. In Gentle v. Frederick, 234 Ala. 184, 174 So. 606 (1937), the deed provided that “at the death” of grantee “title shall pass to her sisters.” And finally, in Graves v. Wheeler, 180 Ala. 412, 61 So. 341 (1913), the court relied on the following handwritten clause as designating a life estate: “It is also expressly understood that at the death of my said wife, all of the aforementioned property shall be equally divided between my lawful children.” All of these deeds clearly and expressly define a life estate with the telltale language of “for his life” or “at his death.” Furthermore, each deed clearly designates specific remaindermen such as “my children” or “her sisters.”

There is no such language in the instant case to defeat the presumption of a conveyance of a fee simple estate. The handwritten clause does not limit the grantee’s estate to “for his life” or “at his death.” The language “is not to sell above described lands” is certainly no indication of a life estate as such estates are as alienable as fee simple estates. And the language “but it is to go to his heirs” indicates merely words of limitation or inheritance. In Wilcoxen v. Owen, 237 Ala. 169, 185 So. 897 (1939), this Court noted that the word “heirs,” without explanation, is always to be construed as a word of limitation and not purchase. Thus, unlike the three eases cited by appellees there are no words of purchase indicating a remainder interest in the instant case.

This Court has construed language more strongly indicating a life estate than that in the instant deed, finding that the language did not clearly indicate a less estate under Code 1975, § 35hL-2. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968); Johnson v. Harrison, 272 Ala. 210, 130 So.2d 35 (1961); Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1956). In each of these cases, a life estate was indicated by such language as “lifetime” or “at his death,” yet this Court held such language insufficient to overcome the presumption in favor of fee simple estates. In Johnson, the following language appeared in the deed following the property description: “This her home her life time and after he [sic] death her daughters will become owner of same Daughters Margar-ette Johnson and Stephenie Johnson.” (emphasis added) 272 Ala. at 212. Like the instant case, there were no words of inheritance in the granting clause but other clauses provided such words of limitation. Looking at the deed as a whole, the Court stated:

The deed imports a fee simple title in all its clauses but one, which is of doubtful import. These facts, plus the presumption that every estate in lands is to be taken as a fee unless clear and expressed terms are shown to the contrary, leads to the conclusion that the grantee, Hazel Curlee Johnson, received a fee simple title ....

272 Ala. at 213.

A case decided by the Oregon Supreme Court is almost identical in facts and deed language to the instant one. In Palmateer v. Reid, 212 Or. 179, 254 P. 359 (1927), the court construed the following language placed after the habendum clause: “provided, however, that the said party of the second part shall have no power to sell and convey said premises, but that at his death it is to descend to his heirs.”

The Oregon court construed the clause under a statutory provision similar to Code 1975, § 35-4-2. And, although there were no words of inheritance in the granting clause, such language was found in the ha-bendum clause. Noting the rule of construction that deeds are construed more strongly against the grantor, the Oregon court stated:

The grantor having by clear and apt words created a fee-simple estate, his conclusion that the grantee would have no power to sell or convey the property is erroneous. It will not do for the grantor to create the highest estate known to the law, and then, in the same instrument, say to his grantee that he does not possess the right of disposition. The right of alienation is an attribute of ownership.

212 Or. at 184, 254 P. at 360.

The Oregon court also noted that the word “heirs” in the clause merely designated the persons who would by statute succeed to the property in case of intestacy. Rejecting the argument that the language created a life estate with remainder, the court stated:

Where there is a doubt as to whether the grantor intended to convey an estate in fee simple or a life estate, the doubt should be resolved in favor of the grantee and the greater estate would pass. This rule of construction is in keeping with the spirit of the statute (section 9847, Or.L.) above quoted.

212 Or. at 185, 254 P. at 361.

The questionable language in the instant case does not clearly designate a life estate in derogation of Code 1975, § 35-4-2. The language is in the nature of a restraint on alienation and viewed as a whole appears to be an attempt to create a fee tail. See Armstrong v. Smith, 287 Ala. 254, 251 So.2d 216 (1971); Gamble v. Gamble, 200 Ala. 176, 75 So. 924 (1917). All such fee tails are converted by statute into fee simple estates. Code 1975, § 35 — 4-3.

Where a deed is ambiguous, the subsequent acts of the parties are entitled to great weight in determining what they intended. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968). In Slaten, as here, the granting clause was general with no words of inheritance. The habendum clause read in part: “To have and to hold the same unto the said party of the second part for and during his natural life, and upon his death, such children or children of deceased children as he might leave surviving him, ... .” Finding the language in the haben-dum clause did not override the presumption in favor of fee simple estates, this Court placed great emphasis on the subsequent conduct of the grantee in executing a quitclaim deed back to the grantor, thus conveying back the interest he had received earlier. This Court reasoned:

“We agree with the conclusion of the trial court that subsequent conduct of the grantor and grantee in the deed to Jack Caperton was properly considered and indicated the intent of both parties to the deed and the quit claim indicated a fee simple title.” 282 Ala. at 488, 213 So.2d at 221.

The conduct of the parties in the instant case also indicates their intention that the deed in question convey a fee simple estate. As noted above, a deed almost identical to the one in question conveyed an interest in Parcel 3 to John Carlisle’s brother, Ira. Both deeds were executed at the same time by their father, Jasper. Ira subsequently conveyed his interest to John in a deed sufficient to have conveyed a fee simple estate. In fact, appellees’ claim to Parcel 3 is based on their right to inherit through intestacy John’s fee simple interest in that parcel. The significance of this deed to Ira is that, bearing in mind it contains the same language which the ap-pellees contend limits grantee to a life estate with remainder to his heirs, John and Ira obviously regarded and treated Ira’s deed as vesting in Ira a full fee simple title, as evidenced by the fact that Ira sold it to John in fee. These actions treating the deed to Ira as a fee simple conveyance indicate that the parties viewed the deed to John, identical in all significant respects, as also a fee simple conveyance.

Having found that the conduct of the parties and the language of the deed as a whole both indicate the deed’s conveyance of a full fee simple estate, we address ap-pellees’ contention that the deed conveying the mineral interest to appellants’ predecessors in title was void for an uncertain property description. In particular, appellees contend that the following descriptions of Parcels 2 and 3 were vague:

17 % acres in W lh of SE 14, Sec. 28, Township 11, Range 3 West, Choctaw County, Alabama.
18 14 acres, South side of SW V2 of SE 14, Sec. 28, Township 11, Range 3 West, Choctaw County, Alabama.

At the outset, we note that appellees themselves claim title to these parcels under deeds with the exact same property description as that questioned here. We find that appellees are thus estopped from attacking language identical to that under which they claim a benefit. Cf. Brown v. Terry, 375 So.2d 457 (Ala.1979) (plaintiffs were estopped from alleging a deed to be a forgery where in a previous action plaintiffs relied on the validity of that deed).

In numerous transactions in which John Carlisle participated after his acquisition of these parcels, and also in numerous transactions in which appellees themselves participated since the death of their father, relating to these parcels, these lands had been described in exactly the same language as questioned here. In each of these transactions, it was the intent of appellees and their father to include all of the lands now claimed by them and formerly claimed by their father in the W V2 of the SE xk of Section 28. This intent was expressed in appellees’ amended complaint, viz.:

TOWNSHIP 11 NORTH, RANGE 3 WEST
SECTION 28: 17 % acres in W V2 of SE Vi and 18 VV acres on the South side of SW Vi of SE Vi, this being the only property owned by the Plaintiffs in the said W V2 of SE Vi and being intended to describe all the property owned by the Plaintiffs in the said W V2 of SE Vi, whether the above descriptions be accurate or not.

Courts are reluctant to declare instruments void for an uncertain description and will look to attendant facts to make them certain. Karter v. East, 220 Ala. 511, 125 So. 655 (1929). We affirm the trial court’s finding that the lands described by the questioned language were all the lands owned by John Carlisle in the half-quarter section set out, and that it was John’s intent to convey a mineral interest in all the property owned by him in that half-quarter section to appellants’ predecessors in title.

REVERSED AND REMANDED.

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


text:
    Herbert ELSWORTH v. Cecelia T. RINI.
    79-329.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Joseph J. Boswell, Mobile, for appellant.
    Arthur P. Clarke, Mobile, for appellee.
   PER CURIAM.

Alice I. McCrary died in Mobile County on September 16, 1976. On March 11, 1977, Cecelia T. Rini filed a petition for letters of administration wherein she alleged in substance that she was the sole heir at law and next of kin of Alice I. McCrary. She asked the probate court to grant letters of administration on the estate to Michael F. Scheuermann, which the court did on March 21, 1977.

On April 1, 1977, Herbert Elsworth filed a motion to stay the administration in the probate court, alleging that the decedent had left a last will, duly executed, but that the same had been lost or destroyed since her death. He sought to establish a copy of the lost will as the last will of the decedent. The probate court denied the stay sought by Elsworth, but after a hearing on the matter, entered an order on May 5,1978, admitting the copy of the last will and testament to probate and record. Thereafter on June 6, 1978, Rini filed a document containing the following language in the Circuit Court of Mobile County:

IN THE MATTER OF THE ESTATE OF ALICE I. McCRARY, DECEASED
Now comes Cecelia T. Rini, who is a party to the contest of the probate of the Will of Alice I. McCrary, deceased, and by and through her attorney Arthur P. Clarke, and in writing makes demand that the Honorable John L. Moore, Judge of the Probate Court of Mobile County, Alabama, make and enter an order transferring the said contest to the Circuit Court of Mobile County, Alabama, in which county the contest of said will was pending.

Elsworth filed a motion to dismiss which was denied.

On January 29,1979, the court entered an order which read as follows:

This cause is submitted for decree on the Petition of Cecelia T. Rini by and through her attorney, Arthur P. Clarke, seeking to have the Court remove from the Probate Court of Mobile County, Alabama, the will of Alice I. McCrary, deceased, for further hearing and disposition, and upon consideration by the Court, it is ORDERED, ADJUDGED and DECREED that the will contest of Alice I. McCrary, deceased, the same be, and hereby is, ORDERED removed to the Circuit Court of Mobile County, Alabama, for further hearing and disposition, and that the Register is hereby directed to file a properly certified copy of this decree with the Judge of Probate Court.

Thereafter, all of the proceedings had in the probate court were transferred to the circuit court. A hearing was held after which the circuit court entered the following final order:

This cause having been set for trial October 30, 1979, and by agreement, the same was heard by the Court without a jury, and it appearing to the Court that the will contest of Alice I. McCrary, Deceased, having been removed from the Probate Court of Mobile County, Alabama by order of this Court dated January 29, 1979; and that after a lengthy hearing as to the validity of said alleged will, the Court took the matter under submission allowing the attorneys for all parties the opportunity to file briefs, and upon consideration by the Court, it is ORDERED, ADJUDGED and DECREED that no valid will exists in this cause, and that said cause should be returned to the Probate Court of Mobile County, Alabama, and that the costs in this cause be taxed to the Proponent, for which let execution issue.

Dated, January 9, 1980.

Elsworth appealed. We affirm.

Elsworth is correct in his assertion that in this state a will may be contested in two ways, before probate under the provisions of § 43-1-70, Code of Ala.1975, and after probate a contest may be instituted within six months from the date of issuance of letters testamentary under § 43-1-79, Code, “[and] one having the right, to contest a will may do so only once.” Cagle v. Reeves, 353 So.2d 787 (Ala.1977). However, any party aggrieved by the ruling in the probate court may appeal under § 12-22-21, which provides:

Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or supreme court in the cases hereinafter specified. Appeals to the supreme court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified:

(1) From the decree, judgment or order on a contest as to the validity of a will, to be taken within 42 days after the determination of the contest.

In this case, Rini’s pleading filed in the circuit court, while not technically designated as an appeal, was so treated by the circuit court. Elsworth’s sole argument is that the circuit court lacked jurisdiction to hear the matter because it was not an appeal under this provision. We cannot agree. We are sympathetic with Elsworth’s argument that the same issue has been tried twice. However, there is nothing in the record before us to indicate that the equity jurisdiction of the probate court was invoked. That being the case, jurisdiction in the circuit court clearly attached.

We hold that the trial court did not commit error in denying the appellant’s motion to dismiss the proceedings in the circuit court. We are unimpressed with the argument that the pleading filed by Rini in the circuit court cannot be treated as an appeal from the final order of the probate court admitting the lost will to probate. It was filed within forty-two days of that order and was, hence, timely. We agree with the appellant that § 12-22-25, Code, provides that the appellant in such cases must give security for the cost of the appeal, but as he concedes, the filing of the security for cost is not a jurisdictional prerequisite. Downs v. Norris, 32 Ala.App. 381, 26 So.2d 418 (1946).

The judgment appealed from is affirmed.

AFFIRMED.

All the Justices concur.


author: TORBERT, Chief Justice.

text:
    PINSON TRUCK EQUIPMENT COMPANY, INC., a Corporation et al. v. GULF AMERICAN FIRE & CASUALTY COMPANY et al.
    79-368.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      Leo E. Costello of Costello & Stott, Birmingham, for appellants.
    W. Lee Pittman of London, Yancey, Clark & Allen, Birmingham, for appellees.
   TORBERT, Chief Justice.

The injury from which this controversy arose occurred on November 3, 1977. On that day John Patterson’s right arm was severed in an accident involving a truck owned by Patterson’s employer and allegedly manufactured by Pinson Truck. At the time of the injury, Pinson Truck had primary liability coverage with Gulf American Fire & Casualty Company and umbrella liability coverage with Cincinnati Insurance Company.

On November 6 or 7, Comer Sessions, who was John Patterson’s work supervisor, spoke to Glenn Jarvis, President of Pinson Truck. Mr. Sessions called Mr. Jarvis to order truck parts, but, during the conversation, Mr. Sessions mentioned that John Patterson had been hurt on a truck. When Mr. Jarvis asked if the truck was a “Pinson unit,” Mr. Sessions replied that the truck was a “Fontaine unit.” Although Pinson Truck assembled and sold under its own name truck bodies to Patterson’s employer, Pinson Truck also occasionally serviced Fontaine truck bodies owned by Patterson’s employer.

Mr. Jarvis heard nothing more of the matter until October 30, 1978, when John Patterson’s attorney wrote Pinson Truck. The letter advised Pinson Truck that Mr. Patterson was injured on the feed truck equipment manufactured and sold by Pin-son Truck, and gave notice of breach of warranties. On November 14, 1978, Mr. Jarvis wrote a letter to an agent for Pinson Truck’s insurers (appellees), and enclosed the letter from the attorney.

Gulf American filed suit for declaratory judgment against John Patterson, Pinson Truck Equipment Company, Inc., and Fon-taine Truck Equipment Company. An amendment added Cincinnati Insurance Company as an additional complainant. The complaint and amendment alleged that the insurance companies had no duty to provide coverage under policies issued to Pinson Truck because Pinson Truck failed to give timely notice of a potential claim against Pinson Truck.

After ore tenus hearing, the trial judge ruled that Gulf American and Cincinnati Insurance were not liable under the policies issued to Pinson Truck. Notice “as soon as practicable” was a condition precedent to recovery under the policies, and the judge found that Pinson Truck failed to give timely notice. From the ruling of the trial judge, Pinson Truck appeals.

In an insurance policy, a requirement that notice of a potential claim must be given “as soon as practicable” generally means notice must be given within a reasonable time. Southern Guaranty Ins. Co. v. Thomas, 334 So.2d 879 (Ala.1976); Pan American Fire and Cas. Co. v. DeKalb-Cherokee Counties Gas Dist., 289 Ala. 206, 266 So.2d 763 (1972). Whether notice is given within a reasonable time depends on the facts and circumstances of each case. State Farm Fire and Cas. Co. v. Hartford Accident and Indem. Co., 347 So.2d 389 (Ala.1977). Circumstances must be such as to lead a reasonable and prudent person to believe an occurrence may give rise to a claim for damages against him. Stonewall Ins. Co. v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973); Pan American Fire and Cas. Co. v. DeKalb-Cherokee Counties Gas Disk, 289 Ala. 206, 266 So.2d 763 (1972).

The final judgment in the case before us recited as follows: “[Njotice of the accident was not given until more than a year after the occurrence of the accident ....” However, the critical focus is not the length of delay between the accident and notification of the company. Instead, the question is whether there was unreasonable delay between reasonable notice of a potential claim and notification of the insurance company.

The question of whether delay is reasonable is a question of fact, State Farm Fire and Cas. Co. v. Hartford Accident and Indem. Co., 347 So.2d 389 (Ala.1977), and we recognize the presumption of correctness accorded ore tenus fact finding by the trial court. See, Donnelly v.. Doak, 346 So.2d 414 (Ala.1977). Here, however, we are compelled to disagree with the learned trial judge. We have carefully reviewed the testimony and find nothing in the report of the casual conversation between Mr. Jarvis and Mr. Sessions on November 6 or 7, 1977, which would put a reasonable person on notice of a potential claim against Pin-son Truck.

The record reveals that the letter from Mr. Patterson’s attorney was the first notice Pinson Truck had of Mr. Patterson’s claim. Assuredly, Pinson Truck’s notification of the insurance companies within two weeks of receipt of the letter was reasonable. Since Pinson Truck complied with the policy provisions requiring notification of a potential claim “as soon as practicable,” the insurance companies are required to fulfill their obligations under their respective contracts of insurance.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.