author: TORBERT, Chief Justice.

text:
    Cecil BUTLER v. MICHIGAN MUTUAL INSURANCE COMPANY.
    No. 79-713.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      Henry H. Self, Jr., Florence, for appellant.
    Olin W. Zeanah and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   TORBERT, Chief Justice.

The plaintiff, Cecil Butler, seeks to apply the proceeds of an insurance policy issued by Michigan Mutual Insurance Company, the defendant-garnishee, to a judgment obtained in a previous action against Walker County Mobile Homes, Johnny Wallace, and John Wallace, the other named defendants. The judgment sued upon was one for defamation. The plaintiff was employed by Walker County Mobile Homes d/b/a Wallace Mobile Homes (Walker County), a corporation co-owned by John Wallace and his son, Johnny Wallace, as manager of its mobile home lot in Muscle Shoals, Alabama. Butler held the manager’s position until June 20, 1977, when his employment by Walker County was terminated. Following his dismissal, Butler claimed that certain defamatory statements concerning him were made by the Wallaces and Walker County. Butler filed suit for these alleged statements on August 2, 1977, and on September 24, 1979, a judgment was entered against John Wallace, Johnny Wallace, and Walker County Mobile Homes in the amount of $200,000.

On December 12, 1979, Butler filed suit against Michigan Mutual Insurance Company, the insurer of the defendants in the previous action, on the aforementioned judgment, pursuant to Code 1975, § 27-23-2. Michigan Mutual filed for summary judgment based upon certain provisions and exclusions contained in the policy in effect between it and Walker County and the Wallaces. The pertinent provisions of the policy provide:

1. COVERAGE P — PERSONAL INJURY LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called “personal injury”) sustained by any person or organization and arising out of one or more of the following offenses committed in the conduct of the named insured’s business:
Group B — The publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy; except publications or utterances in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the named insured;
EXCLUSIONS
This insurance does not apply:
(c) To personal injury sustained by any person as a result of an offense directly or indirectly related to the employment of such person by the named insured. [Emphasis added.]

Subsequently, Butler filed affidavits in opposition to Michigan Mutual’s motion. On May 28, 1980, however, the trial judge granted the motion for summary judgment. Butler appeals from the granting of that motion.

A party moving for summary judgment has the burden of clearly showing that under no discernible set of circumstances could the other party recover and that there is an absence of a genuine issue as to any material fact. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Ragland v. Alabama Power Company, 366 So.2d 1097 (Ala.1978); Ancora Corp. v. Miller Oil Purchasing Co., 361 So.2d 1008 (Ala.1978); Loveless v. Graddick, 295 Ala. 142, 325 So .2d 137 (1975); Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Co., 293 Ala. 719, 310 So.2d 200 (1975). The moving party must be entitled to the summary judgment as a matter of law. Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the non-movant. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

Rule 56(e), Alabama Rules of Civil Procedure, however, provides that once a motion for summary judgment has been made and supported as required by the rule, the motion is to be granted unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Gulf American Fire & Casualty Co. v. Azar, 364 So.2d 332 (Ala.Civ.App.), cert. denied, 364 So.2d 335 (Ala.1978). Michigan Mutual carried its burden by introducing sworn testimony taken in the previous action, proceedings of record in the court file from the previous action, and a certified copy of the insurance policy in question. We hold that these records clearly establish that any defamatory statements made were directly or indirectly related to Butler’s employment with Walker County, and thus were within the exclusionary provisions of the insurance policy.

The exclusionary clause in the insured’s policy is, without doubt, a valid exercise of Michigan Mutual’s rights. The law is clear that insurance companies, in the absence of statutory provisions to the contrary, have the right to limit their liability and write their policies with narrow coverage. Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So.2d 232 (1973); Mooradian v. Canal Insurance Co., 272 Ala. 373, 130 So.2d 915 (1961); Life & Casualty Ins. Co. v. Whitehurst, 226 Ala. 687, 148 So. 164 (1933). These insurance contracts must be enforced as written and courts cannot defeat express provisions in a policy by judicial interpretation. Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So.2d 232 (1973); Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 180 So.2d 269 (1965); General Motors Acceptance Corp. v. Kendrick, 274 Ala. 566, 150 So.2d 185 (1962). Thus, the burden was shifted, upon submission of testimony and records by Michigan Mutual, to Butler, to present at least a scintilla of evidence to the contrary, that tends to raise significant issues of material fact.

Butler contends that the affidavits presented by him did indeed raise factual issues. We hold, however, that as a matter of law, these affidavits are insufficient to prevent a summary judgment from issuing. The affidavits presented by Butler were his own and that of Toni Malone. Butler’s affidavit shows no facts or circumstances regarding the defamatory statements allegedly made about him. His affidavit consists merely of allegations and denials and fails to allege that these statements were based on personal knowledge. It is the rule that when a motion for summary judgment is made and is supported as provided in Rule 56, Alabama Rules of Civil Procedure, a party adverse to such a motion may not rest upon the mere allegations or denials of the pleadings and must submit facts controverting those facts presented by the moving party. Imperial Group, Ltd. v. Lamar Corp., 347 So.2d 988 (Ala.1977); Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975); Glover v. Merchants Adjustment Service, 57 Ala.App. 62, 326 So.2d 129 (1976). Likewise, the affidavits must be made on personal knowledge and must set forth facts to show that the evidence would be admissible as testimony to contradict the movant’s evidence. Arrington v. Working Woman’s Home, 368 So.2d 851 (Ala.1979); Oliver v. Brock, 342 So.2d 1 (Ala.1977). The scintilla rule cannot be satisfied by speculation and the evidence presented must be supported by at least a reasonable inference. Arrington v. Working Woman's Home, 368 So.2d 851 (Ala.1979); Oliver v. Brock, 342 So.2d 1 (Ala.1977). It is thus quite apparent that Butler’s affidavit does not meet this test.

Similarly, Toni Malone’s affidavit fails to raise a factual issue. Toni Malone and her husband, Teri, had previously purchased a mobile home from Walker County and had dealt with Cecil Butler. Her affidavit states that she later returned to the lot and asked Butler’s successor as manager, Jack Wrinkles, where Butler was. Mrs. Malone’s affidavit shows that any defamatory remark made by Wrinkles in reply to her question was either directly or indirectly related to his employment with Walker County. Wrinkles’ reply was made as an agent of Walker County, dealt with things done by Butler while he was employed by Walker County, and was made to customers of Walker County with whom Butler had dealt while serving as manager of the Muscle Shoals lot. Thus this statement would undoubtedly fall under the exclusion set forth by the insurance policy.

It is, therefore, clear that Butler has not presented evidence to contradict Michigan Mutual’s evidence in support of summary judgment. When no evidence is offered to contradict that presented by the movant, then the court has no alternative but to consider the evidence uncontrovert-ed; and summary judgment, if warranted by such evidence, may be entered against the non-moving party. Gulf American Fire & Casualty Co. v. Azar, 364 So.2d 332 (Ala.Civ.App.), cert. denied, 364 So.2d 335 (Ala.1978).

Summary judgment is proper when the evidence of record shows no genuine issue of material fact. Guillotte v. Pope & Quint, Inc., 349 So.2d 62 (Ala.Civ.App.1977). Since Butler has presented no issue of material fact, the summary judgment must be sustained.

Appellant Butler also contends that the term “directly or indirectly related,” as contained in the policy exclusion and as it relates to Butler’s employment, was not litigated in the previous court action but should have been and that Michigan Mutual must be bound by the outcome of that action. This contention is without merit. While it is generally true that a party and his privies are bound by a previous judgment or decree, there can be no privity where there is not an identity of interest. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Moore, 349 So.2d 1113 (Ala.1977). Michigan Mutual was not a party to the previous action and that action did not address the question of whether the defamatory acts were excluded under the specific exclusionary clause in question. Thus, Michigan Mutual can not be bound by the previous action and can thus allege and prove that the offenses charged were either directly or indirectly related to Butler’s employment by Walker County.

It is therefore apparent that the evidence of record with the trial court shows that no genuine issue as to any material fact exists. The trial court did not err in granting the motion for summary judgment and the case is hereby affirmed.

AFFIRMED.

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

      . In his deposition, upon being questioned about what he thought the Wallaces had done to defame him, Butler replied:

        A. Well, I was working up here and Mr. Wallace came up here one morning and asked if 1 could get by on my unemployment. I said, “What is wrong?” He said “Well, you are the lowest man. Since business has slowed down, we are going to have to lay you off for a while.” It upset me ....
      Q. Is that the extent of what you are saying they did in your lawsuit?
      A. Well, they accused me of stealing — taking money. They called my boy up from Haleyville to come over there — Johnny did.
      Q. Who did they tell that you stole?
      A. My boy.
      Q. Mike?
      A. Yes.
      Q. Who else?
      A. I can’t say. I don’t know.
      Q. Is that all?
      A. No, there were some other people—
      Butler continued to say that the Wallaces told “[e]verybody that works for Wallace Mobile Homes” that he had been stealing and embezzling money from the mobile home business during the time he was employed there.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    McDONALD’S CORPORATION and M/S, Incorporated v. Opal B. GRISSOM.
    80-96.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appellants.
    John D. Qlement, Jr., Tuscumbia, for ap-pellee.
   SHORES, Justice.

This is an appeal by the defendants from a judgment entered on a jury verdict in favor of the plaintiff in a slip and fall case.

Defendant M/S, Inc., owns and operates a McDonald’s restaurant under a franchise from defendant McDonald’s Corporation.

On June 7, 1978, the plaintiff came to McDonald’s, and after purchasing some food, took one step out the door onto the encircling patio when her right foot slipped and she fell. At that time it was raining, and the patio was wet with rain water.

During trial the plaintiff testified that she did not see what caused her fall, but she proved that there was a difference in the coloration of the floor area just outside the door in contrast to the other areas of the patio, and that a test performed by a physicist for the purpose of determining the coefficient of friction of plaintiff’s shoes on the patio surface showed that the surface around the door was more slippery than the other less traveled areas of the patio.

Defendants’ motions for a directed verdict both at the close of the plaintiff’s case and at the close of all the evidence were denied. Defendants did not move for a J.N.O.V. or new trial.

The defendants argue that the trial court erred in denying their motion for a directed verdict. Because the defendants did not move for a J.N.O.V. nor seek a new trial, the propriety of the trial court’s failure to direct a verdict on the sufficiency of the plaintiff’s evidence is not before us. Rule 50, ARCP. Great Atlantic and Pacific Tea Co., Inc. v. Sealy, 374 So.2d 877 (Ala.1979).

The defendants next argue that the trial court erred to reversal in refusing a number of their written requested charges to the jury. We have examined the record with respect to each refused charge and find that the court gave a charge substantially ,the same as the one refused or covered the subject of the charge in its oral charge.

The law in a case like this has long been settled. The plaintiff was a business invitee of the defendants and, as such, the defendants have the duty of exercising ordinary and reasonable care to keep the premises in a reasonably safe condition. This does not require a storekeeper to keep a floor completely dry during rainstorms. Terrell v. Warehouse Groceries, 364 So.2d 675 (Ala.1978).

The plaintiff’s theory of liability in this case does not rest upon a charge that the defendants had allowed water to accumulate. She contended that over the years since the patio was built in 1973, the area in front of the door had become worn from traffic. More than 3,000,000 people had traversed the area in that time. There was also evidence that this area was a different color from the rest, inferentially from spilled food. The plaintiff’s expert testified that the area outside the door where the plaintiff fell was slicker than the other areas from the door by a factor of two.

We are not persuaded that the court erred in allowing the expert to testify and hold that the conditions under which the test was conducted were sufficiently similar to conditions on the day of the fall to allow the results into evidence.

The most compelling argument for reversal concerns the defendants’ efforts to show other accidents or the absence thereof. Such evidence is admissible, and its exclusion is reversible error if the proper steps are taken to put the court in error. The rule in this state is stated thusly in C. Gamble, McElroy’s Alabama Evidence, § 83.01 (3d Ed. 1977).

(1) General rule
On an issue of whether a place or thing was safe or dangerous at the time of the accident in question, evidence of the occurrence or non-occurrence of accidents to others at other times, in the use of such place or thing, is admissible if the condition of the place or thing at such other times was substantially the same as the condition existing at the time of the accident in suit.
The question of defendant’s right to prove the absence of injuries has been repeatedly and affirmatively answered by the courts of Alabama. The best stated rule can be found in Birmingham Union Ry. v. Alexander, (93 Ala. 133, 9 So. 525) in which the court made the following observation:
It would, therefore, have been competent for the plaintiff to prove that other similar casualties had happened at that crossing, as tending to show a defective condition of the track. On like considerations the defendant should be allowed the benefit of proof that the track as it was at the time was constantly crossed by other persons under similar conditions, without inconvenience, hindrance or peril, as evidence tending to show the absence of the alleged defect, or that it was not the cause to which the injury complained of should be imputed. The negative proof in the one case, equally with the affirmative proof in the other, serves to furnish the means of applying to the matter the practical test of common experience. A knowledge of the experience of others who were, in like manner with the plaintiff, brought into contact with the alleged defective structure, may enable the jury to weigh all the evidence before them in the light of the rule that like causes operating under like conditions produce like results.

In this case the record shows the following:

Q. [By defense counsel] Now, Mr. Thompson [McDonald’s manager], Mr. Clement asked you yesterday about how many people ya’ll had through there since 1973. And I believe you said about three million?
A. That’s right.
Q. And during this time—
MR. CLEMENT: If it please the Court, I would like to approach the bench a minute.
(At this time the attorneys approached the bench)
MR. CLEMENT: At this time the Plaintiff makes a motion, an oral motion in limine asking the Court to instruct the attorney for the Defendant not to ask the witness how many people have fallen at McDonald’s in Muscle Shoals. I object to such questions in that it is not the criteria or standard as to how many people have fallen or not fallen in a particular place.
MR. BACCUS: Let the record show that Mr. Clement opened the door when he asked how many people had been through McDonald’s, and the witness said that three million people had been since 1973. He opened the door for that question.
BY THE COURT: I grant the Plaintiff’s motion.
MR. BACCUS CONTINUES: Now, as I understand it, that surface has been the same out there since 1973 with respect to the type material and the pea gravel surface out there?
A. Right.
Q. And in 1976 out there, that was the same type surface as was out there, in particular on June 7, 1978 — excuse me.
A. Yes.
Q. That was the same type surface as was out there in front of McDonald’s?
A. Yes.

The plaintiff having elicited testimony that 3,000,000 people had walked on the area where the plaintiff fell, the defendants were clearly entitled to show that only the plaintiff had fallen. However, it is necessary to make an offer to prove that fact. Here we cannot know what the evidence would have shown, and no offer of proof was made to tell us. For all we know, the witness might have testified that scores of people had fallen in the same area.

At § 425.01(4), Gamble, supra, the following appears:

[I]f the trial court sustains an objection made to a question which does not on its face show what is the expected answer, it then becomes the duty of the questioning party, in order to predicate his appeal upon this as an erroneous ruling, to make an offer of proof. This should be done by calling the court’s attention to the expected answer and explaining the relevancy of such an answer.
When the question does not show on its face the answer that will be given, and that such would be relevant, there must be an offer of proof made for appeal purposes.

The quality of the offer of proof was defined by this Court in Redwine v. State, 258 Ala. 196, 61 So.2d 724 (1952):

“An offer of proof must be certain, intelligible, and must definitely state the facts sought to be proved, either by reference to the evidence proposed to be offered or to the facts to be proved. ... An offer must be specific enough to make its relevancy apparent. If evidence would be relevant in conjunction with other facts not yet in the record, the offer should be accompanied by an offer to prove these facts at the proper time. . . . The offer cannot be made in general terms, but must be so made as to give the court an opportunity to rule on the specific testimony, complaint of the exclusion of which is made, and must be so specific as to show the error of the court in refusing to admit it. A party is bound to know what his witness can say and to make an offer in such terms that the court has the assurance that if permitted to speak the witness will so testify.”

258 Ala. at 199, 61 So.2d 724.

We assume that had the testimony been allowed, the witness would have testified that there had been no other falls at McDonald’s at the place where the plaintiff fell, but we cannot base a reversal of a trial court on an assumption. The evidence should have been allowed, but the appellant has the burden of showing reversible error, and in this instance that required an offer of proof of what the excluded evidence would have been.

The judgment is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Larry LIMBAUGH v. Imojean R. RICHARDSON, et al.
    80-176.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    L. Graves Stiff, III, of Starnes & Atchi-son, Birmingham, for appellant.
    David R. Donaldson of Gorham, King & Donaldson, Birmingham, for appellees.
   BEATTY, Justice.

This is an appeal from a decree rendered in a boundary line dispute in which, following an ore tenus hearing, the trial court’s order vested title to certain land in the plaintiffs. We affirm.

In dispute is a strip of land consisting of approximately 5.46 acres and running the length of the parties’ common border. The controversy arose in 1973 when the plaintiffs had their property surveyed by Frank Hollis, a registered surveyor, in order to divide it into separate tracts. The Hollis survey, which located the government survey subsection line (the correct boundary line according to the defendant), indicated that the northern boundary of plaintiffs’ property was south of the corners previously used by them to delineate that boundary. That government subsection line, as well as the corners contended by plaintiffs to represent the correct boundary, are shown on the Hollis survey.

Claiming adverse possession, the plaintiffs brought this action to have the boundary line established. A detailed description of the plaintiffs’ evidence is unnecessary here; it is sufficient to state that from the testimony of the ten witnesses called by the plaintiffs the trial judge could have found, as he did find, that the plaintiffs had since 1921 recognized their northern boundary line as lying between corners north of those indicated by the survey. Testimony from plaintiffs and longtime area residents revealed that the alleged northwest corner was represented by the remnants of an old fence and by an iron stob directly under the place where the “X” in an old wooden bridge was used to mark the corner. The alleged northeast corner was recognized by a metal stob which replaced the previous marker of a pile of rocks with a “pineknot” in it. The plaintiffs’ evidence, moreover, established that a “tram road” or “dinky line” (for hauling timber) ran close to or along the property line asserted by plaintiffs, and that in the past timber had been cut off the property by the plaintiffs with the “tram road” having been considered as the northern boundary. Plaintiffs also proved their use of the disputed land for a family wash hole in a creek, for occasional swimming, for gathering berries, chestnuts and firewood, for gardening, and for other uses implying ownership. Although the decree itself does not use the term “adverse possession,” it is clear from the nature of the evidence and from the colloquy between the trial court and counsel at the conclusion of the evidence that the case was decided on the theory of adverse possession.

The defendant contends that the effect of the decree was to relocate the governmental subsectional line on the boundary between the parties. We cannot agree. The record discloses that the trial court examined the map prepared by the surveyor, which shows the subsection lines and also the corners claimed by the plaintiffs. Although the survey map itself was admitted into evidence by agreement of the parties, that survey did not in itself establish the true line between the parties. Indeed, this Court stated in Godsey v. Anglin, 261 Ala. 19, 21, 73 So.2d 92 (1954):

[B]y adverse possession ... a boundary line between two tracts can be established so that the government survey no longer will be the location of it. [Citations omitted.]

See also Rutland v. Georgia Kraft Co., Ala., 387 So.2d 836 (1980).

Additionally, there was evidence upon which the trial court could have based a finding of actual, hostile, exclusive possession of the disputed tract by the plaintiffs for over twenty years. The collective acts of the possessor, rather than each act independently, are to be considered on the question, Pierson v. Case, 272 Ala. 527, 133 So.2d 239 (1961), and continual use is not required, it being sufficient that the claimants show a use or exercise of dominion “as in its present state it is reasonably adapted to.” Moorer v. Malone, 248 Ala. 76, 26 So.2d 558 (1946), quoting from Alabama State Land Co. v. Mattews, 168 Ala. 200, 53 So. 174, 175 (1910). Such a use was established by the evidence.

We have considered the recorded testimony, the excellent briefs of the parties, and the authorities cited to us on this appeal. Based upon that review we have concluded that the trial court’s decree must be affirmed. It is so ordered.

AFFIRMED.

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


author: MADDOX, Justice. JONES, Justice

text:
    ALABAMA POWER COMPANY, v. John K. NEIGHBORS.
    80-217.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      S. Allen Baker, Jr. and James A. Bradford of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, John P. Oliver, II of Oliver & Sims, Dadeville, for appellant.
    Ruth Sullivan, Dadeville, Tom Radney of Radney & Morris, Alexander City, for ap-pellee.
   MADDOX, Justice.

This is a malicious prosecution actión against Alabama Power Company wherein the plaintiff John Kimbro Neighbors, Jr. alleges that APCo instigated a criminal proceeding against him which resulted in his criminal indictment before the Tallapoosa grand jury on the following felony charge:

Knowingly, willfully and without the consent of the owner, entered upon the land of Alabama Power Company, Inc., a corporation, and cut and carried off timber, to-wit: pulpwood, of the value of Fifty Dollars ($50.00), the personal property of Alabama Power Company, Inc., a corporation.

Because the critical question presented in this case involves whether APCo initiated the criminal proceeding and whether there was probable cause, we set out the facts extensively.

APCo owns several hundred acres of timberland in Tallapoosa County. In November 1979 APCo discovered that someone had cut and carried away what agents testified were at least ten large, green pine trees off its property on either side of a county dirt road known as Dead Timbers Road. In the same area approximately one quarter of a mile away, APCo discovered four more of its pine trees that had been recently cut. These trees were still lying on the ground next to their stumps and were cut up in pulpwood lengths. Plaintiff, a pulpwooder by profession, lived in a house at the end of Dead Timbers Road a short distance from APCo’s land where the pine trees had been cut and carried away. When the illegal cutting was discovered, APCo agents contacted the Tallapoosa County Sheriffs Department and requested help in their investigation. Jimmy Collins, Benny Vinson and Billy McCullus, APCo foresters in Dadeville, Alabama, met with Deputy Sheriff Bennie Hallman at the subject property on Sunday, November 18, to investigate the tree cutting. They counted and measured the diameters of the stumps on the subject property. Later, APCo personnel measured the distance of the stumps from Dead Timbers Road. The trees had been freshly cut. On that same day, Sunday, November 18, Jimmy Collins traveled down Dead Timbers Road to the plaintiffs house where he observed a pulpwood truck sitting in plaintiff’s front yard loaded, at least partly, with freshly cut pine trees cut up in pulpwood lengths which appeared to have been cut from APCo’s property. There was evidence that dead timber was also on the truck.

Early the next morning, Monday, November 19, Benny Vinson and Eugene Phillips, another power company forester in Dade-ville, went back to the subject property to see if anyone was coming back to pick up the four pine trees which had been observed the previous day lying on the ground by Collins and Vinson. Vinson hid in the woods where he observed the plaintiff and his employee, Harvey Garrett, drive up in a Blazer truck to the spot where the four cut trees were lying on the ground, stop the truck, sit there for a few minutes and then leave.

After Vinson observed the plaintiff and Garrett leave the area of the four trees, he called the Sheriff’s Department and spoke to a Deputy Neighbors (no relation to the plaintiff), explaining that he expected the pine logs on the plaintiff’s truck were going to be taken to Langley Pulpwood Yard near Camp Hill, Alabama and requested that he meet him there. Vinson then instructed Eugene Phillips to follow the plaintiff’s pulpwood truck and to get ahead of it so as to meet it when it arrived at the pulpwood yard, which he did.

Garrett drove the plaintiff’s truck to Langley Yard and sold the logs in the name of the plaintiff. After the truck arrived and the wood was removed, the sheriff’s deputy had the power company’s pine logs set aside. Deputy Neighbors and the power company representatives talked to Harvey Garrett about the pine logs. In the presence of APCo’s foresters, Benny Vinson and Eugene Phillips, Garrett advised Deputy Sheriff Neighbors that he was working for the plaintiff, it was the plaintiff's truck and all he did was drive the truck from the plaintiff’s house to the wood yard. Garrett then left the yard and later found the plaintiff and explained what happened. Plaintiff went to the wood yard, walked up to Deputy Sheriff Hallman in the presence of Vinson and Phillips and allegedly said, “I’m the guilty party,” or “I’m the thief.” Plaintiff’s version of what he said was: “I’m responsible. I’m guilty. This is my truck. My man cut the wood.” The next day, Tuesday, November 20, Collins and Phillips, in the presence of Deputy Sheriff Hallman, by matching stumps with logs, concluded that at least ten of the pine logs which came off the plaintiff’s truck at the pulpwood yard came from power company land on Dead Timbers Road.

At this point, an APCo Security Department representative from Anniston, Joe Kirk, was called in to investigate the alleged stealing of the APCo timber. Kirk arrived in Dadeville on Wednesday, November 21. He talked with power company forester Benny Vinson first. Kirk, in the company of Vinson, then left the power company’s forestry office in Dadeville to perform his investigation. They saw the plaintiff on the highway, motioned for him to stop his vehicle, and plaintiff got out and talked to Kirk and Vinson. According to Vinson, plaintiff again stated that he was responsible for the timber’s being cut and that he wanted to make a deal and pay them off and get it out of the way. Kirk replied that he was not in a position to make a deal, that his only job was to investigate the facts and that he needed to interview everybody involved. Plaintiff then re-sponsed that if they would not make a deal, then he was not going to talk without his attorney present and he turned and got back in his truck. Apparently, changing his mind, he walked back to Kirk and Vinson, who were sitting in their car, and stated that it was his employee (Monkey Jones), using his truck and his equipment, who did the cutting of power company timber. Kirk asked the plaintiff of the whereabouts of Monkey Jones and plaintiff stated that he did not know. At this time Kirk took a written statement from the plaintiff which plaintiff would not sign, but which plaintiff introduced into evidence at trial. It reads:

November 21, 1979
I, John Kimbro Neighbors, Jr., give this free and voluntary statement to Joe Kirk, III and Bennie Vinson who have identified themselves as employees of Alabama Power Co. On Saturday of this week I sent Monkey Jones to cut pulp wood for me, I told him to go and cut wood in the Pace area and to cut wood which was damaged by the County. That night when I came home, Jones had a load of pulpwood on my truck; later that night Jones told me that he had cut some of the wood on the upper side of my road. On Monday morning me and Harvey Garrett drove up the road to look for the wood that Jones had cut. I noticed several green trees along the road and I realized that this was Alabama Power Co. timber. Later on Monday morning Garrett drove my truck to Camp Hill and sold the timber to Scott Langley Pulpwood Yard. I was not sure where it came from. I have read this statement and it is true and correct.
Witness: /s/ Joe Kirk Witness:
Neighbors read this statement and said that it is true and correct however, he refused to sign it.
Witness: [illegible]

Kirk had the plaintiff draw in his own hand a map depicting Dead Timbers Road, his house, where the cutting took place and where the four green trees were left on the ground.

In addition to interviewing the plaintiff and taking his unsigned written statement, Kirk interviewed other people, took several statements, took photographs of the cut timber and the stumps. After his investigation was completed, Kirk contacted APCo’s manager of security in Birmingham who in turn called Tom Young, the then District Attorney of Tallapoosa County, Alabama. Tom Young set up an appointment with Joe Kirk in his office for the first week of December 1979. Kirk met with District Attorney Tom Young, showed him his investigation materials and asked him his advice and opinion as to whether a crime had been committed or what course of action should be taken. Tom Young testified that he told Kirk that he “thought there was probable cause . . . but I would give it to the grand jury and let them make the determination....” Young took the investigation file and presented the matter to the next session of the Tallapoosa County Grand Jury. The investigation file included witness statements, photos, and the plaintiff’s statement. Thereafter, the district attorney’s office conducted its own investigation.

In February 1980, the Tallapoosa County Grand Jury met at Dadeville. Tom Young subpoenaed Joe Kirk and Benny Vinson to testify. Other witnesses were subpoenaed, but it is not clear if they actually testified. During the grand jury proceedings, District Attorney Tom Young and his assistant Chase directed the questions to Kirk and Vinson when they were called to testify. The actual questions and answers and documentary evidence presented in this grand jury proceeding were not revealed before or during the trial because of the warning given to the parties and their attorneys by District Attorney Tom Young regarding grand jury secrecy, citing Code 1975, § 12-16-214, et soq.

Code 1975, § 12-16-215, in pertinent part says:

No past or present . .. grand jury witness . . . shall wilfully . . . reveal, disclose or divulge or cause to be revealed . . . any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this State.

Code 1975, § 12-16-225 — Penalties, in pertinent part says:

Any person violating the provisions of sections 12-16-215 through 12-16-218 of this division shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than three years, or fined not more than $5,000.00, or both.

The grand jury returned criminal indictments against the plaintiff and his employee, Harvey Garrett, accusing them of grand larceny of APCo’s timber.

Plaintiff and Garrett were caused to be arrested and booked as a result of these indictments. The grand larceny charges against the plaintiff and Garrett were called for trial in May of 1980 before the Tallapoosa County Circuit Court. Joe Kirk and Benny Vinson were subpoenaed to testify at the trial. Before trial, the State of Alabama, on the decision of Tom Young, District Attorney, moved to nol-pros both cases. No one at APCo ever suggested or requested that the cases be dismissed. Tom Young stated that he made a mistake in the indictment which accused the plaintiff and Garrett of grand larceny. The State’s motion to dismiss was granted. Thereafter, the plaintiff filed suit against APCo for malicious prosecution, the case was tried and a jury returned a verdict in favor of the plaintiff in the amount of $150,000. Judgment was entered on the verdict, and after its motion for a judgment notwithstanding the verdict or in the alternative for a new trial was denied, APCo appealed.

To successfully maintain an action for malicious prosecution in Alabama, the plaintiff has the burden of proving that a prior judicial proceeding was instigated by the defendant without probable cause and with malice, such proceeding ending in favor of the plaintiff, but nevertheless causing the plaintiff damages. Brown v. Parnell, 386 So.2d 1137 (Ala.1980); Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969). All of these elements being essential, the plaintiff must prove them in order to prevail because an action for malicious prosecution is not favored at law. This Court stated its reasoning for such a rule in Birwood Paper Co., supra, citing Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959);

[A]nyone who has reasonable cause to believe that there is reasonable cause for legal redress and protection has a lawful right to seek such redress without risk of being sued and having to respond in damages for seeking unsuccessfully to enforce his rights.

If a defendant merely gives the district attorney’s office information regarding an alleged crime, leaving the decision to prosecute entirely to the uncontrolled discretion of the district attorney, who thereafter makes his own independent investigation and thereupon takes the information before the grand jury which returns indictments against the suspects, the defendant, in a malicious prosecution action, is not regarded as having instigated the criminal proceeding.

The power company’s first and foremost defense in this malicious prosecution action is that it did not instigate the criminal proceedings against the plaintiff, John K. Neighbors. It is axiomatic that there can be no cause of action for malicious prosecution unless the evidence shows that the judicial proceeding was instigated by the defendant. Brown v. Parnell, 386 So.2d 1137 (Ala.1980); Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977); W. Prosser, Handbook of the Law of Torts, § 119, pp. 835-38 (4th ed. 1971).

This Court, in American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927), discussed the rule as follows:

The general rule has been declared based upon considerations of public policy and supported by many authorities, that, where a person gives information to the state’s prosecuting officer charged by law with the duty of enforcing the criminal law, or the investigation and prosecution of probably committed crime, and that information tends to connect another with the commission of crime or the violation of the criminal law, and the informant states all the material facts bearing thereon within his knowledge, and leaves that officer to a discharge of his official duty and the exercise of his own judgment and responsibility, or, where such informant disclaims personal knowledge of the incriminating facts, or does not state the facts as of his own knowledge, and the officer thereafter brings the matter to the attention of the grand jury for their investigation of the facts upon probable cause in the premises, without more, the informant is not liable in an action for malicious prosecution under an indict- merit returned by that grand jury. That is to say, the matter being duly brought to the attention of the inquisitorial body or official for action on his or their own judgment and responsibility after an investigation of the facts on independent evidence as to the existence of probable cause; and the finding and return of the indictment not being induced by fraud, subornation of witnesses, suppression of testimony, or other like misconduct on the part of the defendant or its authorized agent, his action, in the premises, is referred to the lawful effort to punish a violation of the law; and in such a case the informant is not in any legal sense the responsible author of the prosecution, and cannot be held liable therefor. This is the consensus of judicial opinion, even where the independent action of the prosecuting officer has not been followed, as here, by the independent action of the grand jury. [Citations omitted.] A convincing analogy will be found in two of our own cases (involving false imprisonment, not malicious prosecution), wherein it is declared that, ‘if the [arresting] officer acts solely upon his own judgment and initiative, the defendant would not be responsible even though he had directed or requested such action, and even though he were actuated by malice or other improper motive.’ Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am.St.Rep. 32. [Emphasis added.]

217 Ala. at 247, 115 So. 176.

In American Surety, this Court, quoting the following passage from Ryan v. Orient Insurance Co., 96 Vt. 291, 119 A. 423 (1923), held that plaintiff must show that defendant was the proximate and efficient cause of the proceeding:

While a defendant in an action for malicious prosecution is sufficiently a prosecutor to sustain an action against him, if the prosecution to which the plaintiff is subjected is instituted by the state’s attorney at the defendant’s instance and request, something more is required than that the defendant be shown to have given information which set the machinery of the law in motion. Burnham v. Collateral Loan Co. [179 Mass. 268, 60 N.E. 617], supra. A defendant has not ‘caused a prosecution’ in the sense that renders him liable when he acts only in subordination to the prosecuting attorney and under the latter’s directions; nor when he states the bare facts as to the plaintiff’s conduct to such attorney, leaving him to judge of the propriety of proceeding with the charge, where the attorney does not act in any way under the direction of the informant or the influence of the information thus received. The cases are in accord in holding that to sustain an action for malicious prosecution, where the proceeding complained of was begun by another, it must affirmatively appear as a part of the plaintiff’s case that the defendant was the proximate and efficient cause of such proceeding. [Citations omitted.]

In the American Surety case, an agent of the defendant gave information to the state’s solicitor regarding a possible act of embezzlement by plaintiff. The solicitor took the information, conducted his own investigation, and prosecuted the matter to the grand jury which indicted the plaintiff. The facts clearly showed that it was the solicitor, not the defendant, who instigated the prosecution. Indeed the solicitor testified at trial as follows:

The grand jury on my recommendation, as solicitor of the county, charged with the enforcement of the law, indicted him. Before I presented it to the grand jury I talked to some of the witnesses. I know I talked to Cravey about his investigations and what he himself knew. I talked to — I don’t know whether they had any of those drivers there or not, I am not sure of that, there may have been more than Cravey, of that I am uncertain. But I know I had that documentary evidence there, backed up by what Cravey said and what Bohler had given me in the first conversation; and I reached the conclusion * * * before I presented the evidence to the grand jury. I was convinced of it from the testimony of the witnesses. I presented the evidence to the grand jury on which I based my opinion and conclusion. [Emphasis added.]

217 Ala. at 246, 115 So. 176.

Accordingly, the Supreme Court applied the foregoing rule and held that “the affirmative charge should have been given for the defendant, and its refusal was error.” 217 Ala. at 249, 115 So. 176.

The American Surety opinion is additionally important for its explicit recognition of the public policy supporting this rule of law, namely that “[i]t is of public concern that a citizen having reason to believe, or even suspect, that a crime has been committed, be permitted to direct the attention of the prosecuting officer towards its investigation, without exposure to the peril of being held liable for malicious prosecution in case of a failure of conviction.” 217 Ala. at 248, 115 So. 176 (quoting Ryan v. Orient Insurance Co., 96 Vt. 291, 119 A. 423 (1923). This Court adopted the following passage from the Ryan case, declaring it to be an “excellent statement of the reasons which underlie the rule”:

Prima facie the prosecution is instituted and conducted by the public prosecutor, and the plaintiff in a subsequent suit for malicious prosecution has the burden of showing that the defendant in such suit was directly responsible for the institution or continuance of the proceedings complained of. It is of public concern that a citizen having reason to believe, or even suspect, that a crime has been committed, be permitted to direct the attention of the prosecuting officer towards its investigation, without exposure to the peril of being held liable for malicious prosecution in case of a failure of conviction. The criminal law does not enforce itself, but requires the agency of some informant to put it in motion. It is sometimes said that the action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another. A recovery is allowed only when the requirements limiting it have been fully complied with. Especially is this so where the suit is brought, for the institution of criminal proceedings against the plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage. 18 R.C.L. 11, and cases there collected. The principles governing the rights and liabilities of the parties to an action for malicious prosecution are a compromise between the right of the individual to be free from arrest or prosecution upon a charge of which he is innocent and the right of the community to be protected from crime. [Emphasis added.]

217 Ala. at 248, 115 So. 176.

The American Surety opinion was followed in Dismukes v. Trivers Clothing Co., 221 Ala. 29, 127 So. 188 (1930), where the trial court charged the jury that if it believed that the defendant merely gave the information to the officers investigating an alleged check forger, upon which information the officers acted of their own volition, then the jury should return a verdict for the defendant. This Court rejected the plaintiff’s contention that the trial court erred in giving this charge, stating as follows:

In the case of Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754, 756, a suit for false imprisonment, this court referred to the fact that, if an “officer acts solely upon his own judgment and initiative, the defendant would not be responsible * * * even though he were actuated by malice or other improper motive” .... This principle is equally applicable to suits for malicious prosecution.
Giving information of a crime to officers, or a request that the officers investigate a crime is not aiding or abetting or instigating a prosecution, unless such information was a misrepresentation of the facts in order to induce action, or there was a suppression of known material facts.. . .

221 Ala. at 32, 127 So. 188.

The American Surety opinion has been recently cited with approval in Jordan v. Empiregas, Inc., 337 So.2d 732 (Ala.1976), but its rationale is traceable to the earlier case of Shannon v. Simms, 146 Ala. 673, 40 So. 574 (1906), where this Court held that if a defendant fairly submits the facts to the prosecution authority, then signs the affidavit “upon his advice,” he has a “complete defense to an action for malicious prosecution.” 146 Ala. at 677, 40 So. 574. In Bennett v. Black 1 Stew. (Ala.) 494 (1828), this Court held that a defendant in a malicious prosecution case could not be held responsible for the mistaken issuance of a felony warrant where the facts did not amount to that offense. Permitting liability to attach in such a case, said the Court, “is too unreasonable to be admitted.” Id. at 497.

A set of facts strikingly similar to those of the instant case appeared in King v. Second National Bank & Trust Co. of Saginaw, Michigan, 234 Ala. 106, 173 So. 498 (1937), where the plaintiff in a malicious prosecution action had been charged with willfully and knowingly and without the consent ,of the owner entering upon and cutting and carrying away standing timber of the value of $25 or more, which was a grand larceny charge. There was no question that the offense had been committed. Defendant’s employee, upon discovering that the timber had been cut and carried away, was directed to bring the matter to the attention of the solicitor and the grand jury. He went before the grand jury, reported the commission of the offense and that the plaintiff was the guilty party. He furnished names of witnesses to the grand jury all of which resulted in the indictment of the plaintiff. This Court found that the defendant did not initiate the criminal prosecution of the plaintiff, thereby affirming the trial court’s action in granting the affirmative charge for the defendant, saying:

The law favors the prosecution of crimes such as larceny.
The grand jury is an integral part of our legal system, whose function it is to make investigations of all crimes committed within its jurisdiction. Public policy demands that the citizen, without hazard to himself, may freely bring before the grand jury the fact that a crime has been committed, request an investigation, and furnish such information as he had in aid of the investigation. In this the citizen is not a prosecutor. It is not essential that he have probable cause to believe any individual to be the guilty party. He is merely performing a duty in aid of the tribunal set up to ascertain whether there is probable cause to believe a crime has been committed, and if so, who is there probable cause to believe to be the guilty party. American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176; Smith v. Dollar, 223 Ala. 661, 138 So. 277; 38 C.J. p. 385, § 2. [Emphasis added.]

In King, there was evidence that before the matter was taken to the grand jury the defendant was informed by those accused or one of their employees that they denied cutting the timber, that the logs in question were cut from an adjoining tract of land by authority of the owner, and were loaded out from about the same point as those complained of. In King, the plaintiff in the malicious prosecution action accused the witnesses who had testified before the grand jury as being the guilty parties. There was further evidence that those accused had cut more merchantable trees at another point on this land. The cutting was promptly admitted and the trees paid for. In this regard, the Court said:

It is the law that one who, shielding himself behind a grand jury investigation, corruptly or oppressively brings about the indictment and prosecution of another maliciously and without probable cause, is no less guilty than if he had sworn out a warrant in the first instance.
This may be accomplished by fraud, perjury, subornation, or by the willful suppression of known material facts, the intentional thwarting of a fair investigation. American Surety Co. v. Pryor, supra; Morgan v. Baird, 219 Ala. 225, 121 So. 526; Smith v. Dollar, supra.
But this does not mean, as here insisted, that it was the duty of appellees to furnish the grand jury with witnesses seeking to criminate each other or to take upon themselves the duty of full investí-gation as to who was telling the truth. The rule above declared, as illustrated by facts disclosed in Morgan v. Baird, supra, relates to an intentional suppression of known material facts, not a failure to disclose all conflicting reports as to the facts.
The rule of sound public policy demands no more than that the party bringing the matter to the attention of the grand jury should in good faith invite and aid in an investigation with a view to the indictment of the person actually guilty. [Emphasis added.]

In Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So. 514 (1969), this Court reversed a judgment for the plaintiff in a malicious prosecution suit where the evidence showed that the magistrate and not the defendant issued a warrant for the plaintiff for a non-existing criminal offense, stating that the instigation of the matter was the act of the magistrate and not the defendant, coupled with the fact that there was probable cause for the defendant to seek a peace warrant against the plaintiff.

In Smith v. Dollar, 223 Ala. 661, 138 So. 277 (1931), this Court squarely addressed the issue of whether the defendant (in a malicious prosecution action) had instigated the criminal proceedings which resulted in the plaintiff’s grand jury indictment. In affirming the trial court’s action in giving the defendant the affirmative charge, the Court said:

The plaintiff introduced much evidence tending to establish an alibi for the plaintiff at the time the offense for which he was prosecuted was committed, and that these facts were known to the defendant, and for the obvious purpose of showing that the said defendant did not have probable cause for believing that the plaintiff had committed the offense with which he was charged. But, as we view the evidence, the plaintiff utterly failed to prove that the prosecution or indictment was based upon the conduct or action of the defendant. The plaintiff’s own witness, the solicitor, testified that he took the initiative after getting information that the negro boy had confessed and implicated the plaintiff and called the defendant, Dollar, the owner of the property burned, and concluded to summon said Dollar and others before the grand jury. ... The mere fact that Dollar, the owner of the burned property, had made an effort to locate the person who committed the deed and was excused by the court from the rule during the trial to sit with the solicitor was not sufficient to refute or create a conflict with the testimony of the solicitor to the effect that there was no responsible causation on the part of Dollar. We think the trial court was fully justified in giving the general charge for the defendant under our case of American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176.

223 Ala. at 662 and 663, 138 So. 277.

It is clear from the evidence that the decision to start the criminal proceeding against Neighbors and the decision to nol-pros it were both made independently by the district attorney.

APCo also claimed that there was probable cause to believe that the plaintiff had committed a crime. The burden of proof rested upon the plaintiff to show that there was a want of probable cause when the criminal matter against him was instigated. In S. S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977), this Court opined:

To be successful in an action for malicious prosecution the plaintiff must prove the following elements: ‘.. .
(1) a judicial proceeding initiated by the defendant, (2) without probable cause, (3) malice on the part of the defendant, (4) termination of the judicial proceedings favorable to the plaintiff, and (5) damages.’

348 So.2d at 487.

The plaintiff has the burden of proving each and every one of the above elements to be successful in an action for malicious prosecution. Crim v. Crim, 39 Ala.App. 413, 101 So.2d 845 (1958) (burden of proof on plaintiff to show want of probable cause); United States Cast Iron Pipe & Foundry Co. v. Henderson, 22 Ala.App. 448, 116 So. 915, 917 (1928) (burden of proof on' plaintiff to show that defendant instituted the judicial proceeding). If the plaintiff fails to prove any one of those items, then the defendant is entitled to a judgment as a matter of law. Birmingham R. L. & P. Co. v. Ellis, 5 Ala.App. 525, 58 So. 796 (1912); Eiliott v. Caheen Bros., 228 Ala. 432, 153 So. 613 (1934); Molten Realty v. Murchison, 212 Ala. 561, 103 So. 631 (1925); Green v. Norton, 233 Ala. 489, 172 So. 634 (1937); Brackin v. Reynolds, 239 Ala. 419, 194 So. 876 (1940). As we have already determined, APCo did not instigate the criminal proceeding against the plaintiff, but, of equal importance is the undisputed evidence that there was probable cause to believe that the plaintiff had committed a crime. In Hanson v. Couch, 360 So.2d 942 (Ala.1978), “probable cause” as the term is used in a malicious prosecution was defined as:

[S]uch a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.

The fact that the plaintiff’s case upon trial in the circuit court was nol-prossed and the charge of larceny of timber dismissed does not create an inference or presumption that there was a “want of probable cause” at the time criminal prosecution against him was instigated. In Kresge v. Ruby, supra, the Court said:

Consequently the mere fact that the plaintiff was acquitted of the charge does not prove that there was no probable cause to believe him or her guilty at the time the warrant was issued. Piggly Wiggly Alabama Co. v. Rickles, 212 Ala. 585, 103 So. 860 (1925); Gulsby v. Louisville & N. R.R. Co., 167 Ala. 122, 52 So. 392 (1910). The question in an action for malicious prosecution, arising from a criminal charge is whether the defendant, at the time he or she instituted the prosecution, had probable cause or believed that the accused was guilty. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971 (1911).

348 So.2d at 488.

Neighbors was indicted by the grand jury. What effect did this have on the question of “want of probable cause” in the malicious prosecution?

In Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794 (1928), this Court opined:

In malicious prosecution the general rule is that the finding of an indictment by a grand jury against one charged with crime is prima facie evidence of the existence of probable cause, and that the acquittal of a defendant upon the trial does not tend to show a want of probable cause for believing him guilty of the offense charged when the arrest is made or prosecution initiated....
The same prima facie rule has been applied in this court, without distinction, in malicious prosecution. [Emphasis added.]

218 Ala. at 478, 118 So. 794.

We need not delineate the facts which show the existence of probable cause, but a review of the facts set out in this opinion are sufficient to show that, as the district attorney concluded, probable cause did exist.

Whether the facts would have been sufficient to convict the plaintiff of grand larceny is not the question. Had the district attorney not nol-prossed the charge, plaintiff may or may not have been convicted, but APCo’s liability on the malicious prosecution claim cannot be predicated on whether there was a conviction or not, only upon a lack of probable cause.

Because we conclude that APCo did not initiate the criminal proceeding, as the law uses the term “initiate” in malicious prosecution actions, and because there was probable cause, we conclude that the judgment of the trial court is due to be reversed.

REVERSED AND REMANDED

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

I concur in the Court’s opinion; however, I do not believe it is necessary to hold that Alabama Power Company did not initiate the prosecution. In an action for malicious prosecution the initial determination is whether the prior judicial proceeding was initiated with probable cause. Having found, as a matter of law, that under “the undisputed evidence ... there was probable cause to believe that Plaintiff had committed a crime...,” the Court need not have made further findings on the issue of the identity of the initiating party. The question of who instituted the judicial proceedings is of importance only when it has first been determined that there was no probable cause and that the malicious prosecution action should proceed against an identified defendant.


author: MADDOX, Justice.

text:
    Lem DALRYMPLE v. Albert WHITE, Jr.
    80-232.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Robert J. Hooton of Hooton & Hooton, Roanoke, for appellant.
    John A. Tinney, Roanoke, for appellee.
   MADDOX, Justice.

This appeal arises out of an action to quiet title to real property. The underlying issue presented is whether the trial court erred in reforming certain deeds which, according to their terms, gave rise to conflicting claims in the same tract of realty. The trial judge, after hearing the case ore terms, reformed the deeds to reflect what he determined to be the clear intent of all the parties, stating that to hold to the contrary “would unjustly enrich the defendant to the gross detriment of the plaintiff.”

Upon reviewing the facts and arguments presented on appeal, we deem the order of the trial court to be appropriate and, therefore, affirm its decision.

Joe Henderson and his wife, Frances, at one time owned all the property to which this action pertains. Included in this property was a brick house which the Hender-sons occupied as their primary residence and a small block house which was not occupied as a residence.

On or about November 8, 1978, the Hen-dersons conveyed one acre of this property to Ricky Joe Kimbrell. Evidence was presented that it was the understanding of the Hendersons and Kimbrell that situated upon this one acre of land was the small block house, which was valued at approximately $2,500.

A short time thereafter, the Hendersons conveyed some twenty acres of land, with the brick house thereon, to the appellee, Albert White, Jr. This house was valued at approximately $35,000.

The tendencies of the evidence were that it was the clear intent and understanding of the Hendersons that they had conveyed the brick house located on this property to the appellee, and the block house to Kimbrell.

Kimbrell went into possession of the small block house and the appellee went into possession of the brick house. At a later date, Kimbrell and his wife mortgaged what was understood by all concerned to be the small block house in order to secure a loan.

On or about September 8, 1979, Kimbrell conveyed what he thought to be the small block house to the appellant, Lem Dalrym-ple, who came to the block house and inspected it. There was evidence that he was shown the boundaries by Kimbrell and understood what he was purchasing was the small block house. Dalrymple then paid off the existing mortgage on the block house and obtained title to it for some $2,500 consideration.

Some time after Dalrymple obtained title, he learned that, according to the description contained in his deed, the brick house rather than the block house had been conveyed to him. At this point, Dalrymple asserted his claim to the brick house. Appellee White then brought the instant action to quiet title, and sought to have the relevant deeds reformed to vest in him the ownership of the brick house and to vest in Dalrymple ownership of the small block house.

The court, in its final decree, ordered the deed from the Hendersons to White to be reformed to convey the property intended, including the brick house, less and except the small block house and one acre. The court also reformed the deed to Dalrymple to convey the small block house and one acre surrounding it as originally intended between Kimbrell and the Hendersons.

Dalrymple’s contention that the trial court’s reformation of the deeds was inappropriate is grounded on four basic arguments. His initial argument asserts that White, over his objection, was erroneously allowed to amend his complaint after the trial, and, as a result, he was required to defend certain claims of which he was not afforded sufficient notice. We do not agree.

Rule 15(b) A.R.C.P., states:

“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits.... An amendment shall not be refused under [this subdivision] of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

Applying this rule, we determine that it was well within the court’s discretion to allow the complaint to be amended so that it would conform to the evidence presented at trial. We find nothing in the record or in Dalrymple’s brief to convince us that he was unduly prejudiced by the trial court’s action which granted White permission to amend. Further, we feel that the original complaint sufficiently apprised Dalrymple of the claims and contentions that were presented at trial. The court’s ruling to allow the appellee to amend his complaint was not error.

Secondly, Dalrymple contends that White’s complaint was inadequate in that neither the original complaint nor the amended complaint set out the deed or instrument by which White was claiming title to the property.

Code 1975, § 6-6-540 provides:

“When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, in his own right or as personal representative or guardian, and his title thereto, or any part thereof, is denied or disputed or any other person claims or is reputed to own the same, any part thereof or any interest therein or to hold any lien or encumbrance thereon and no action is pending to enforce or test the validity of such title, claim, or encumbrance, such person or his personal representative or guardian, so in possession, may commence an action to settle the title to such lands and to clear up all doubts or disputes concerning the same.”

Code 1975, § 6-6-541, provides further that:

“The complaint authorized by section 6-6-540 must describe the lands with certainty, must allege the possession and ownership of the plaintiff and that the defendant claims, or is reputed to claim, some right, title or interest in, or encumbrance upon, such lands and must call upon him to set forth and specify his title, claim, interest or encumbrance and how and by what instrument the same is derived and created.”

White’s complaint sufficiently complied with these applicable statutes, and we find no requirement that plaintiff White had to set out his deed in his complaint. See Hooper v. Bankhead, 161 Ala. 523, 49 So. 858 (1909).

Dalrymple’s third contention for reversal is that all necessary parties were not made parties to this action. He contends that the Hendersons, as grantors of the deed held by White, and the Kimbrells, as grantors of the deed held by Dalrymple, were necessary parties. This is not correct.

In a suit for reformation of an instrument, the necessary parties are “all persons whose interest in the subject matter, legal or equitable, will be immediately or consequently affected by the decree.” Leigeber v. Scott, 263 Ala. 507, 83 So.2d 246 (1955).

The court’s order in pertinent part read as follows:

“1. Plaintiff’s deed [from] Joe Henderson and Frances Henderson shall be reformed to convey the property intended to be purchased including the brick home less and except the small block house and one (1) acre.
“3. The deed to defendant Lem Dal-rymple will be reformed to convey the small block house and one (1) acre surrounding the same as originally intended between Ricky Joe Kimbrell and Frances Henderson and Joe Henderson.”

The only current interests affected by this order are those of the plaintiff White and those of the defendant Dalrymple. This, in turn, makes them the only necessary parties to this action. Dalrymple’s claim that necessary parties were not before the court is not well taken.

Dalrymple’s final argument is that the trial court’s ruling should be reversed because the evidence presented at trial clearly showed him to have a clear chain of title.

The court, after hearing and reviewing the evidence and testimony presented at trial, stated the following in its order:

“After considering all the evidence and all reasonable inferences arising therefrom, the Court can only conclude that the deeds the subject of this suit would unjustly enrich the defendant to the gross detriment of the plaintiff.”

Upon making these determinations, it was well within the trial court’s discretion to reform the deeds to reflect the clear intent of the parties involved. Furthermore, the factual findings of a trial court sitting ore tenus may not be disturbed unless the findings are palpably erroneous and without supporting evidence. Gertz v. Allen, 376 So.2d 695 (Ala.1979).

Under the facts presented, the findings and order of the court are not palpably wrong or without supporting evidence. For this reason and those stated previously, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Danny E. MINTON v. Arnold WHISENANT, et al.
    No. 80-304.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Robert B. Roden, Birmingham, for appellant.
    James D. Pruett and Robert D. McWhorter, Jr., Gadsden, for appellees.
   PER CURIAM.

Danny Minton, an employee of the Goodyear Tire and Rubber Company, was injured on the job on September 22, 1976, while operating a “precision wind-up” machine.

On September 22, 1977, he filed a complaint against Goodyear, Spadone Machine Company, Inc., and Portage Machine Company. The complaint contained three counts.

The first sought workmen’s compensation from Goodyear. The second charged Spa-done with wanton misconduct and negligence in (a) manufacturing the machine; (b) failing to provide a guard; (c) failing to provide safety devices; (d) failing to warn of the necessity for installing a safety device; (e) designing, manufacturing, or assembling the machine so that the safety device would not properly operate; and (f) selling the machine in an unsafe condition. The third count stated a claim against Portage for (a) manufacturing an imminently dangerous machine; (b) negligently or wantonly (i) manufacturing a machine without providing safety devices for its operator; (ii) failing to warn of the necessity for adding safety devices; and (iii) manufacturing or assembling the machine so that its safety device would not function properly; and (c) selling the machine in an unsafe condition.

No claim for relief was stated against any party described as a fictitious defendant or against any defendant whose name was alleged to be unknown. The caption of the complaint included twenty fictitious parties, variously described as being entities having to do with the manufacturing, distribution, assembly, or testing of the machine. Fictitious party No. 20 was described as:

No. 20, whether singular or plural, that entity or those entities who were the co-employees of the Plaintiff and who were negligent and whose negligence contributed to Plaintiff’s injuries on the occasion made the basis of this suit.. . .

The caption concludes:

Plaintiff avers that the identity of the fictitious party Defendants is otherwise unknown at this time or if the identity is known, the identity as a proper party Defendant is not known to the Plaintiff, but each’s true name will be substituted by amendment when the aforesaid lack of knowledge is ascertained.

Grantham v. Denke, 359 So.2d 785 (Ala.1978), was decided by this Court on May 5, 1978. That decision allowed, for the first time since the 1975 amendment to the Workmen’s Compensation Act, suits against co-employees. On July 12, 1978, Minton filed' a second lawsuit against several of his co-employees. Another was added as an additional defendant in the first suit, i. e., the case now on appeal. While this second suit was still pending, Minton filed an amendment substituting as “Fictitious party No. 20” the same individuals who were defendants in the second suit. Subsequently, several of the defendants were dismissed on their motions, and Whisenant was added as a party defendant on August 17, 1979, when he was substituted for “Fictitious party No. 1,” which is defined in the caption as follows:

No. 1, whether singular or plural, that entity or those entities who or which manufactured the bias cutter being used on the occasion made the basis of this suit....

Four individual defendants filed motions for summary judgment. Defendants Arnold and Cunningham argued that Minton’s claim against them was barred by the statute of limitations because he knew at the time of his injury in 1976 both their names and the facts upon which his claim against them was based. The trial court initially denied the motions of all individual defendants, and this Court denied their petitions for leave to appeal. On November 26,1980, these four defendants/appellees filed a second motion for summary judgment which the court granted. This appeal followed. We affirm.

The question presented is whether the amendment substituting these four individuals for fictitious defendants described in the caption of the complaint relates back so as to avoid the bar of the statute of limitations. We hold that it does not because no claim or cause of action was ever stated against the individuals at any time before the statute of limitations ran. It can be argued that this interpretation of the Rules of Civil Procedure is a technical one, but it is not an unreasonable one. Although the rules do establish a system of notice pleading, they do not eliminate the necessity of alleging a theory of liability against a defendant before the limitation period runs, and merely listing a multitude of fictitious parties does not meet that requirement. It is not unreasonable to require the statement of a claim to be contained in the complaint itself.

Two cases already decided by this Court control this case. In Hinton v. Hobbs, 349 So.2d 28 (Ala.1977), we held that where the plaintiff knew the identity of a defendant at the time the suit was filed, that defendant could not be substituted for a fictitious defendant after the statute had run. There the Court said:

Rule 9(h), ARCP, is in the spirit of, and closely drawn from Tit. 7, § 136, Code, dealing with fictitious parties. Committee Comments, Rule 9, ARCP. It provides:
“(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”
Title 7, § 136, and its statutory predecessors were intended primarily for cases in which the name of defendant was unknown; they were emergency statutes and included cases in which neither the name nor the identity of defendant is known, as where the cause of action only is known but the party liable is not, and there is need for immediate seizure of property by attachment or other appropriate writ, or there is urgent need to get service at the same time the identity and name are ascertained. McKelvey-Coats Furniture Co. v. Doe, 240 Ala. 135, 198 So. 128 (1940); Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925).
Hinton concedes he knew the Bank’s name at the time he filed the original complaint; however, this court is urged to adopt a liberal construction of 9(h). It is argued that the proper interpretation of 9(h) is to permit the substitution of a named party for a fictitious one and let the amendment doing so relate back even if, at the time of the filing of the original complaint, the true name of the defendant was known but the plaintiff lacked knowledge of facts giving him a cause of action against that defendant. Cases of the California Supreme Court and District Courts of Appeals are cited in support of this argument since California’s fictitious parties statute is almost identical to Rule 9(h). In this case we cannot construe 9(h) to find that Hinton was ignorant of facts giving him a cause of action against the Bank.
A careful review of the record demonstrates that under the most liberal of interpretations, Hinton could not be considered “ignorant” within the meaning of Rule 9(h), ARCP.

349 So.2d at 29.

In this case, the plaintiff knew defendants Arnold and Cunningham at the time the suit was filed. What he did not know was that a cause of action existed against them. Hinton holds that Rule 9(h), ARCP, will not allow a relation back under these facts.

The trial court relied on the second controlling case in granting summary judgment. In Fowlkes v. Liberty Mutual Ins. Co., 392 So.2d 803 (Ala.1980), the Court held:

It is clear ... that Rule 9(h) is not intended to operate when the cause of action is unknown, but operates only when the identity of the adverse party is unknown. Thus, in order for a plaintiff to invoke Rule 9(h) and 15(c), the plaintiff must at the very ¡east state a cause of action in his complaint against the fictitious party. [Emphasis added.]

392 So.2d at 806.

The plaintiff in this case did not meet this basic requirement. Thus, the trial court correctly held that the statute of limitations barred his actions against the appel-lees here.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Richard J. HINRICHS v. Sonia GAVIN.
    No. 79-944.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Warren L. Hammond, Jr. of Conrad & Hammond, Mobile, for appellee.
   EMBRY, Justice.

For this case, it’s the second time around. For the underlying facts of the case, stated in detail, see Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979). After remand, and upon retrial, the jury returned a verdict in favor of defendant Richard J. Hinrichs. On motion for judgment notwithstanding the verdict, or in the alternative for a new trial, the trial court entered judgment in favor of plaintiff Sonia Gavin. This action of the trial court is adequately supported by the lack of evidence of record justifying a verdict for defendant Hinrichs. Under the appropriate standard of review regarding judgments notwithstanding the verdict, the judgment below is due to be and is hereby affirmed. See Hanson v. Couch, 360 So.2d 942 (Ala.1978), and Ford Motor Credit Co. v. Jackson, 347 So.2d 992 (Ala.Civ.App.1977).

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Clemmie N. ORTON v. LIBERTY NATIONAL LIFE INSURANCE CO.
    Civ. 2336.
    Court of Civil Appeals of Alabama.
    July 9, 1980.
    Rehearing Denied Aug. 6, 1980.
    Edward L. Hardin, Jr. and Leon Kelly, Jr., Birmingham, for appellant.
    Charles D. Stewart of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a summary judgment. Plaintiff filed suit against defendant Liberty National Life Insurance Company for accidental death benefits under four policies of insurance issued by the defendant on the life of Henry E. Orton, Sr. Three of the policies were life insurance policies which paid double indemnity for accidental death. The other was an accident policy. The defendant has paid all non-accidental death benefits due but refused to pay any of the benefits for accidental death.

Defendant answered plaintiff’s complaint alleging, inter alia, that the decedent’s death was not “accidental” within the terms of the policies.

Defendant moved for summary judgment supported by answers to interrogatories, an affidavit by the medical examiner along with a copy of his report of autopsy, a certified copy of the death certificate, and copies of the four insurance policies.

Plaintiff filed a written response supported by the affidavits of the investigating officers and a copy of their incident report.

Defendant’s motion for summary judgment was granted. Plaintiff appeals.

Summary judgment is appropriate only when all the materials on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the non-moving party cannot recover under any discernible set of circumstances. Rule 56, ARCP; Bledsoe v. Cargill, Inc., 376 So.2d 735 (Ala.Civ.App.1979).

Defendant argues that it was entitled to summary judgment because the evidence shows conclusively that a disease caused .the death of the insured, and no accidental death benefits are due.

The clauses relied upon by the defendant appear in the insurance policies in pertinent part as follows:

ACCIDENTAL DEATH — Subject to the following exceptions accidental death means death which is caused solely and directly by accidental injury. ... Accidental injury means bodily injury effected solely through external and accidental means.
Exceptions — In the following cases the benefit for natural death will be payable in lieu of the accidental death benefit: ... (3) if death is caused or contributed to by ... (b) any disease, illness, or infirmity or medical or surgical treatment therefor,....

The clause appears in the accident policy under Exceptions and Limitations and reads in pertinent part:

EXCEPTIONS AND LIMITATIONS— No benefits of any kind will be payable for losses resulting directly or indirectly, wholly or partly, from any one of the following causes: (1) Bodily or mental infirmities or disease in any form or medical or surgical treatment thereof;

The facts of this case are somewhat bizarre. The deceased was the former husband of the plaintiff. On the afternoon of his death, plaintiff discovered him at her home. He had been drinking and was highly intoxicated. She asked him to leave and he did so. She last saw him alive at approximately 7:00 P.M.

At approximately 6:45 A.M. the following morning, the plaintiff discovered the body of the insured lying in the fork of a small tree in her back yard.

There were affidavits from investigating officers who saw the body. They stated it had on one shoe. The other shoe was found about a block away. There were some superficial bruises and scratches. The head lay at a peculiar angle. There was a low wall nearby. It was the conclusion of the officers from their observation that the deceased fell from the wall into the tree and died from a broken neck.

The medical evidence presented by defendant was without conflict. It consisted of the affidavit and report of the medical examiner who performed an autopsy and the report of the Alabama Department of Toxicology which examined the blood and urine of the deceased. The autopsy showed death was caused from acute ethanolism with fatty change and cirrhosis of the liver. There was no evidence of a broken neck or material traumata. The blood contained .30% alcohol. The death certificate showed death by natural cause.

Plaintiff contends the facts presented, when viewed most favorably for plaintiff, present at least a scintilla that the deceased’s death was accidental within the parameters established in the case of Liberty National Life Insurance Co. v. Reid, 276 Ala. 25, 158 So.2d 667 (1963).

If that contention is correct, summary judgment entered upon motion of defendant was erroneous. Mims v. Louisville Title Insurance Co., 358 So.2d 1028, 1029 (Ala.1978).

The court in Reid, citing as authority the case of First National Bank of Birmingham v. Equitable Life Assurance Society of United States, 225 Ala. 586, 144 So. 451 (1932), said, “Where a policy contains the additional clause pertaining to death resulting wholly or in part, directly or indirectly, from disease or bodily infirmity, then if the disease, in cooperation with the accidental injury, is an efficient cause of death, then there can be no recovery.”

However, the court continued as follows: “If an injury starts a chain reaction resulting in death, recovery may be had even if one of the links in the chain is old age, frailty and some links are dormant diseases or physical conditions without which the chain would be broken. Each case must be particularized. New York Life Insurance Co. v. McGehee, 260 F.2d 768 (5th Cir.)” Id., 276 Ala. at 38, 158 So.2d at 674.

Perhaps the meaning of the “exception clause” is better stated as follows: “To state it in different language, the exception in the policy is against liability for death produced by the accident and disease, which the accident did not produce, and not from liability by death caused by disease or infirmity which the accident itself did produce.” Union Central Life Insurance Co. v. Scott, 286 Ala. 10, 236 So.2d 328 (1970).

Study of the cases cited including Reid, discloses that in each instance there had occurred an undisputed accident resulting in injury. The issue presented was then whether the accidental injury caused the death. It is said in Reid that if the evidence is in conflict as to whether an accident caused the death or whether the accident and a disease cooperating combined to cause death, there is presented an issue to be resolved by the trier of fact.

As pointed out by the learned trial judge in his extended judgment, there is not presented by the affidavits of the investigating officers competent evidence that an accidental injury occurred in this case; or if it did, that it contributed in any way to the death of the insured. The statements by the officers that it appeared to them that the insured fell from a wall into the tree and died of a broken neck are merely conclusions, unsupported by facts, which the officers were not qualified to give. Such statements do not meet the requirements of Rule 56(e), ARCP. Oliver v. Brock, 342 So.2d 1 (Ala.1976). They are insufficient to present a scintilla of conflict with the evidence as to the cause of death presented by defendant. Assuming arguen-do, that the deceased accidentally fell into the tree, there is no evidence that his fall resulted in injury which started a chain reaction resulting in death. There appears no causal or cooperating relation between lying or falling in a tree and death from acute ethanolism and cirrhosis of the liver. With .30% ethanol in the blood it may be understood how the deceased came to be in the tree and why he died there.

We affirm the judgment of the trial court which stated: “Plaintiff has not presented even a ‘scintilla’ of evidence to refute the prima facie case presented by Liberty in support of its motion for summary judgment. Liberty has carried its burden of establishing no genuine issue of fact. Its motion for summary judgment is, therefore due to be granted.” Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala.1979).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The “additional clause” referred to is substantially that quoted heretofore from the policies under the heading of “Exceptions” or “Exceptions and Limitations.” It is a common clause in accidental death policies. Independent Life and Accident Insurance Co. v. Maxwell, 53 Ala.App. 396, 399, 301 So.2d 85, 87 (1974).


author: BEATTY, Justice. FAULKNER, Justice

text:
    Ex parte Clemmie N. ORTON. (Re Clemmie N. ORTON v. LIBERTY NATIONAL LIFE INSURANCE COMPANY).
    79-872.
    Supreme Court of Alabama.
    April 10, 1981.
    Rehearing Denied June 12, 1981.

      Edward L. Hardin, Jr. and Leon Kelly, Jr., Birmingham, for petitioner.
    Charles D. Stewart and William N. Ray of Spain, Gillon, Riley, Tate & Etheredge, .Birmingham, for respondent.
   BEATTY, Justice.

Certiorari was granted to review the decision of the Court of Civil Appeals, 402 So.2d 978, which held that summary judgment was properly granted by the trial court. We reverse and remand.

This action was brought by the plaintiff for accidental death benefits on certain life insurance policies issued by the defendant, Liberty National Life Insurance Company (Liberty National), on the life of Henry E. Orton, Sr. The plaintiff is the ex-wife of the deceased and the beneficiary of those policies. After Mr. Orton’s death, the plaintiff promptly notified Liberty National, which paid all non-accidental death benefits due, but refused to pay any accidental death benefits contending that Mr. Orton’s death was not “accidental” as within the policies. The policies contained the provision that benefits would not be payable if death resulted directly or indirectly from disease or bodily infirmity. The defendant filed a motion for summary judgment and attached to it interrogatories and answers by the plaintiff, an affidavit of the medical examiner, a copy of the autopsy report, a copy of the death certificate and copies of the insurance policies. The plaintiff filed a response and attached two affidavits made by the investigating police officers and their incident report. Summary judgment was granted for Liberty National by the trial court and was affirmed by the Court of Civil Appeals.

The body of the deceased was found in the fork of a small tree in the plaintiff’s backyard. This tree was located near a low brick wall. The body, when discovered, had fresh cuts, scratches and bruises. There was blood on the deceased’s shirt, and his head was at a peculiar angle in relation to the body. The decedent was a heavy drinker, and was highly intoxicated at the time of death. The death certificate listed the decedent’s cause of death as “natural” due to “acute and chronic ethanolism with fatty change and cirrhosis of the liver.”

The sole issue presented is whether there was a scintilla of evidence presented to the trial court which would support a finding of accidental death. The plaintiff contends that the affidavits of the two investigating policemen presented competent evidence sufficient to make up a scintilla of evidence of accidental death. Both affidavits read as follows:

Upon my arrival ... I found the victim, Henry Edsel Orton, Sr., in the fork of a small tree. It appeared to me that Mr. Orton had a broken neck because of the peculiar angle his head was turned. There were a few droplets of blood on Mr. Orton's shirt. He was wearing one shoe and the other one was found about a block away. There was a bruise on his chin. It appeared to me that Mr. Orton accidentally fell from a stone wall into the tree and died as a result of the fall.

In its opinion the Court of Civil Appeals stated:

[T]here is not presented by the affidavits of the investigating officers competent evidence that an accidental injury occurred in this case; or if it did, that it contributed in any way to the death of the insured. The statements by the officers that it appeared to them that the insured fell from a wall into a tree and died of a broken neck are merely conclusions, unsupported by facts, which the officers were not qualified to give. Such statements do not meet the requirements of Rule 56(e), ARCP. Oliver v. Brock, 342 So.2d 1 (Ala.1976). They are insufficient to present a scintilla of conflict with the evidence as to the cause of death presented by defendant.. . .

In Wilson v. Liberty National Life Insurance Company, Ala., 331 So.2d 617 (1976), this Court recognized that a lay witness’s testimony concerning appearances is “deemed not to be the expression of an opinion but a statement of fact open to ordinary observation,” and thus admissible. Moreover, in Jefferson Standard Life Insurance Company v. Pate, 290 Ala. 110, 274 So.2d 291 (1973), quoting Sovereign Camp, W.O.W. v. Dennis, 17 Ala.App. 642, 87 So. 616 (1920), this Court stated:

“A witness, who examined the body of deceased, at the place where found, together with the locus in quo, is not qualified as an expert in that sense that he can give as evidence his opinion as to the cause of death. He may testify to the facts, but the jury must draw the conclusions

In this case the affidavits of the policemen merely outlined a description of the death scene as personally observed by them. They contained facts which were open to ordinary observation and thus constituted competent evidence. While it is clear that the trial court correctly held that the policemen were not qualified to testify that it appeared that the deceased died as the result of a fall, Jefferson Standard Life Insurance Co. v. Pate, supra, the remainders of the affidavits are competent evidence which could support a finding that an accidental death occurred.

The affidavits stated that the body was found in the crook of a tree, it had cuts and bruises on it, there was blood on the deceased’s shirt, it appeared that his neck had been broken, and it appeared that he fell into the tree from a stone wall. The statement that it “appeared” that the deceased had a broken neck was not conclusively an opinion on the cause of death, but could be a description of the peculiar angle of the deceased’s head and body, which is a fact open to ordinary observation. While it is undisputed that the death certificate showed death to be by natural causes, this Court recognized in Union Central Life Insurance Company v. Scott, 286 Ala. 10, 236 So.2d 328 (1970), that the death certificate is not conclusive as to the cause of death and contradictory testimony of lay witnesses can rebut such evidence.

Moreover, since it is well-settled in Alabama that the party opposing a motion for summary judgment is entitled to have all the evidence viewed in the light most favorable to his own position, and to all reasonable inferences which may be drawn from that evidence, Campbell v. Alabama Power Company, Ala., 378 So.2d 718 (1979), the evidence presented by the affidavits, as well as the other evidence which showed that the decedent was found in a tree with fresh cuts and bruises on his body, should have been construed in the light most favorable to the plaintiff. When so viewed, we find that there was a scintilla of evidence that death was accidental.

The Court of Civil Appeals also stated: Assuming arguendo, that the deceased accidentally fell into the tree, ... [t]here appears no causal or cooperating relation between lying or falling in a tree and death from acute ethanolism and cirrhosis of the liver. With .30% ethanol in the blood it may be understood how the deceased came to be in the tree and why he died there. [Emphasis added.]

This statement, unfortunately, is an improper conclusion made by the Court of Civil Appeals. In Liberty National Life Insurance Company v. Reid, 276 Ala. 25, 158 So.2d 667 (1963), this Court stated:

Where the evidence is conflicting as to whether an accident was the cause of an insured’s death, or whether the accident and a disease cooperating therewith combined to cause death, then ordinarily a question of fact within the resolution of the trier of fact is presented. [Citations omitted.]

In this case there were at least four conceivable ways the decedent could have been found in the tree: (1) he could have fallen into the tree and then died there; (2) he could have died and then fallen into the tree; (3) he could have climbed the tree and died there; and (4) he could have climbed the tree, fallen and then died. Thus, the decision of the Court of Civil Appeals that the deceased’s blood level explained his position in the tree was a determination which should have been presented to the jury. Since there were conflicting inferences as to how the decedent arrived in the tree, it was not proper for the Court of Civil Appeals to determine whether the deceased-was in the tree because he was intoxicated, had climbed the tree and had subsequently died there, or because he had fallen into the tree which had caused or, at least, had started a chain reaction which had resulted in his death.

Because on motion for summary judgment this case contained a scintilla of evidence that death was accidental, it must be, and is, reversed and remanded to the Court of Civil Appeals with directions to enter an order consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

MADDOX, JONES, ALMON and ADAMS, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

TORBERT, C. J., and SHORES, J., recused.

FAULKNER, Justice

(dissenting).

I respectfully dissent.

In Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975), the Court held that summary judgment can only be proper where it is clear what the truth is; that the party moving for summary judgment must clearly establish that the other party could not recover under any discernible circumstances. And, in Folmar this Court considered the effects of the scintilla rule on a summary judgment.

Here the majority by reversing the Court of Civil Appeals are hanging their hats on the scintilla rule. But, they are stretching their hat bands to the outer limits. They say that evidence given by police officers investigating the death of Orton that it appeared that he died of a broken neck creates a scintilla. They hold this contrary to “what the truth is.” The medical evidence presented by Liberty National shows that death resulted from acute and chronic ethanolism with fatty change and cirrhosis of the liver. Other significant conditions were moderate atherosclerosis of the coronary arteries with focal ischemic mycardid fibrosis. The medical evidence also shows that Mr. Orton did not have a broken neck.

In my opinion summary judgment was proper. It is a waste of judicial time to send this case back for a trial. The truth of the matter is Orton died of natural causes— not from an accident.

EMBRY, J., concurs.


text:
    Clemmie N. ORTON v. LIBERTY NATIONAL LIFE INSURANCE CO.
    Civ. 2336.
    Court of Civil Appeals of Alabama.
    July 29, 1981.
   WRIGHT, Presiding Judge.

In accordance with the mandate of the Supreme Court entered April 10, 1981, 402 So.2d 980, the decision of this court entered July 9, 1980, 402 So.2d 978, is set aside and it is the judgment of the court that the judgment of the trial court granting summary judgment to the defendant be and the same is hereby reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.