text:
    Agnes ROUGEAU and Adus Rougeau, Plaintiffs-Appellants, v. SEARS, ROEBUCK AND COMPANY, et al., Defendants-Appellees.
    No. 7575.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Hornsby & Landry, Lucius A. Hornsby, Lafayette, for plaintiffs-appellants.
    Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for appellant.
    Cook, Clark, Egan, Yancey & King, Benjamin C. King, Shreveport, Stockwell Sie-vert, Viccellio, Clements & Shaddock, Fred H. Sievert, Jr., Lake Charles, for defendants-appellees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   SWIFT, Judge.

Plaintiffs, Agnes and Adus Rougeau, appeal a summary judgment granted by the trial court in favor of defendants, Sears, Roebuck & Company and Michelin Tire Corporation. We reverse.

The plaintiffs filed suit seeking damages for personal injuries sustained by Mrs. Rougeau on July 28, 1976, while working for the Evangeline Service Station in Welsh, Louisiana. It was alleged that she was in the process of mounting a tire specially manufactured by Michelin for Sears and filling it with air when the tire exploded. Several acts of negligence were set forth, all related to the principal contention that the tire was defectively manufactured. Thereafter, an amended petition was filed, naming Firestone Tire and Rubber Corporation as additional defendant and alleging that the tire was either a Sears or Firestone product.

At the time of the accident Central Mutual Insurance Company was the workmen’s compensation insurer of Mrs. Rougeau’s employer. It filed a separate suit seeking reimbursement of the workmen’s compensation benefits it had paid as a result of the accident. These two suits were consolidated for trial:

Firestone filed a motion for summary judgment which was granted and a formal decree was signed. No appeal has been taken from this judgment and it is now final.

Sears and Michelin filed a similar motion and a summary judgment was rendered in their favor. Central Mutual has not appealed from this judgment and it is now final as to that party. It is the Rougeau’s appeal from this judgment that is now before this court.

The plaintiffs have filed an affidavit by Mrs. Rougeau stating that when the tire exploded the gauge registered only 29 pounds of air per square inch. Also, they filed an affidavit of a person with 22 years experience repairing, examining, mounting and dealing with tires saying that he has never known a tire in a stationary position, either new or worn, to explode on being pumped with 29 pounds of air; that a tire inflated only to this extent, which explodes in such a position without being struck by any object, is defective in the layered construction of the tire; and that he would not have to examine such a tire to determine it was defective.

The plaintiffs’ answers to interrogatories disclose that the tire in question has been discarded, its whereabouts are unknown and it has never been examined by an expert.

The trial judge agreed with the defendants’ contention that because the tire is not available for examination by an expert the plaintiffs will be unable to prove directly or inferentially that it was defective when manufactured and that a defect was the cause of the explosion and resulting injuries; and therefore, as a matter of law, the defendants were entitled to a summary judgment. Cited as authority were Williams v. U. S. Royal Tires, 101 So.2d 488 (La.App. 1 Cir. 1958); Shramek v. General Motors Corp., Chevrolet M. Div., 69 Ill.App.2d 72, 216 N.E.2d 244 (1 Dist. 1966); Casetta v. United States Rubber Co., 260 Cal.App.2d 792, 67 Cal.Rptr. 645 (1 Dist. 1968). We take the liberty of quoting the following from the judge’s well written reasons for sustaining the motion for summary judgment:

“The only Louisiana case dealing with a tire blowout and the unavailability of the tire is Williams v. U. S. Royal Tires, supra. The plaintiff in that case attempted to rely on the doctrine of res ipsa loquitur. The court properly held that this doctrine did not apply under the facts alleged in the petition. It is the following language of the opinion that counsel for mover relies to sustain his motion for summary judgment at page 492, to-wit:
“It cannot possibly be presumed or said that the blowing out of this tire was solely because of a defect therein by the alleged manufacturer, defendant U. S Royal Tires. There are numberless means or causes other than a defect in the manufature, [sic] which bring about a blow out of a tire. It was the duty of the plaintiff in this case to allege wherein this tire was defective and to connect such condition to its negligent manufacture by defendant, U. S. Royal Tires. Plairitiff admitted upon a hearing in the lower court and in argument before this court that the tire could never be produced as it was not in their possession and as far as plaintiff knew, even in existence at the present time. Therefore, even if by any stretch of the imagination plaintiff’s petition could be amended so as to state a cause of action, which would be treating the exception of defendants as one of vagueness, it is clear that plaintiff could never prove it.”
“The holding of the Williams case appears to be that even if a cause of action is alleged, if the tire is unavailable, the plaintiff could never prove his cause of action since tire blowouts can be attributed to many other causes other than a defect in manufacture.
“It should be noted that the Williams case involved the blowout of the tire on a vehicle which was in operation and the blowout of the tire could have been caused by road conditions or the striking of an object. The Shramek case, supra, also involved the blowout of a tire while a vehicle was in operation. The tire in the instant case blew out while it was star tionary and being mounted and the question is does this make a legal difference. The Casetta case, supra, does involve an action against the manufacturer and distributor of a tire, by a tire repairman injured as a result of an explosion which occurred while he was mounting a new automobile tire on a rim. The Appellate Court held that the defendant’s motion for judgment notwithstanding the verdict was properly granted. Since no expert was available to inspect the tire due to unavailability, the court noted there was no direct evidence of the cause of the explosion and further that although the plaintiff was entitled to rely on circumstantial evidence to establish the existence of the defect, the plaintiff has failed to introduce any evidence of defects in the tire contributing to the explosion.
“The Louisiana courts have not had an opportunity to rule on a case where a mounted or stationary tire exploded. Should this court overrule the motion for summary judgment, the defendant will be put to an expensive trial, whereas the granting of a motion for a summary judgment will allow the Appellate Court to rule as a matter of law whether the plaintiff can recover and whether the rule of the Williams case is still the law.
“The court is therefore going to grant the motion for summary judgment, being of the opinion that the rationale of the Williams case is controlling.”

Under Article 966 of our Code of Civil Procedure, of course, a summary judgment should be rendered when the pleadings, depositions, admissions and affidavits on file show that there is no genuine issue of material fact and the mover is entitled to such judgment as a matter of law. However, the law is settled that summary judgment is not to be used as a substitute for a full trial of a controverted factual issue which is material to the decision of the case. LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3 Cir. 1979). Further, the likelihood that a party will be unable to prove his allegations at trial does not constitute a basis for rendering a summary judgment. Hemphill v. Strain, 341 So.2d 1186 (La.App. 1 Cir. 1976), writ denied 343 So.2d 1072 (La.1977). The question to be resolved on a motion for summary judgment is whether there is a genuine issue of material fact and not how that issue should be determined. Givens v. Richland-Morris Agency, Inc., 369 So.2d 1184 (La.App. 2 Cir. 1979).

We agree with the court in Williams that it will be extremely difficult, and probably impossible, to prove that the tire involved in the present case was defective, without the tire or an expert who has examined it. However, this is clearly an issue of fact and we are unable to reach that conclusion as a matter of law. Just because the court might be convinced that the evidence preponderates in favor of the defendants does not justify the denial of a full trial on the merits to resolve the disputed factual issue. Dougharty v. Calkraft Paper Co., 335 So.2d 772 (La.App. 3 Cir. 1976).

We think that Williams can be distinguished from the case before this court. In that instance the tire exploded while on a vehicle which was traveling on a highway and exposed to road hazards; whereas, in our case the tire was stationary on a tire mount apparently exposed only to the application of air pressure to mount it on a rim. Be that as it may, we must say that if our ruling does actually conflict with Williams, we choose not to follow the line of reasoning expressed therein, that the failure to produce the tire or an expert who examined it, as a matter of law, precludes a plaintiff injured by the explosion of the tire on a stationary mount from recovering from the manufacturer and seller without giving him the opportunity to attempt to prove his case at a trial on the merits.

For the above and foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings according to law.

All costs of this appeal are assessed against defendant-appellees.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Stafford GUILLORY et ux., Plaintiffs-Appellants, v. HARTFORD INSURANCE COMPANY et al., Defendants-Appellees.
    No. 7653.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Donald R. Wilson, Marksville, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., and Mike S. Poche, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

An ex proprio motu order was issued herein by the court directing appellants, Stafford Guillory and Sandra Guillory, to show cause why this appeal should not be dismissed for failure to timely file the appeal.

The trial court signed judgment denying appellants’ motion to proceed in forma pau-peris on August 28, 1979. Appellants did not move for a new trial. On November 7, 1979, appellants filed a motion for devolu-tive appeal, which motion was signed by the trial judge on the same day.

The delay for taking a devolutive appeal is governed by C.C.P. art. 2087 which provides, in part, that a devolutive appeal must be taken within 60 days of the expiration of the delay for applying for a new trial.

The delay for applying for a new trial is seven days, exclusive of legal holidays. The delay commences the day after judgment is signed, when no notice of judgment is required. C.C.P. art. 1974.

In the instant case, judgment was signed on August 28,1979. The delay for applying for a new trial expired on Tuesday, September 7, 1979. Therefore the 60 day devolu-tive appeal period commenced on September 8, 1979, and expired on Tuesday, November 6, 1979.

Appellants’ motion for devolutive appeal was untimely filed on November 7, 1979. It is well settled by the jurisprudence that appellate courts do not acquire jurisdiction of an appeal which is not timely perfected. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976).

Appellants admit that the motion for appeal was not filed within 60 days of the expiration of the delay for applying for a new trial, but contends that the filing was not untimely because he had applied for supervisory writs which were denied by this court on October 28, 1979. Appellants contend that the time for filing an appeal was suspended until this court denied their application for supervisory writs. We disagree.

C.C.P. art. 2201 provides that supervisory writs may be applied for and granted in accordance with the constitution and rules of the Supreme Court and other courts exercising appellate jurisdiction. The appellants have cited no statute, court rule, or jurisprudence, and we have found none, which holds that an application for supervisory writs suspends the running of the delay for filing an appeal. Appellants’ application for supervisory writs had no effect on the delay for filing an appeal from the August 28, 1979 judgment.

Appellants’ failure to timely file the motion for appeal is fatal to the appeal.

The appeal is dismissed at appellants’ costs.

APPEAL DISMISSED.


author: SMITH, Presiding Justice,

text:
    L. L. BEACHAM, Jr. v. Mrs. Edith Russell BEACHAM.
    Nos. 51940, 51818.
    Supreme Court of Mississippi.
    April 30, 1980.
    Thomas J. Lowe, Jr., Joseph A. Gentile, Jackson, for appellant.
    L. L. Beacham, Jr., pro se.
    King & Spencer, Robert W. King, Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   SMITH, Presiding Justice,

for the Court.

On February 14, 1967, L. L. Beacham, Jr., appellant, obtained a divorce from appellee, Edith Russell Beacham upon the ground of habitual cruel and inhuman treatment. It was judicially established by the decree that it had been the misconduct of Edith Russell. Beacham that was the ground for the divorce, and that L. L. Beacham, Jr. was the aggrieved party. The minor children born of the marriage, who were living with their mother at the time, were allowed to remain with her under the decree. For the support of the children Beacham was directed to pay $200.00 each a month and, in addition, he was directed to pay to their mother $425.00. per month as alimony. Beacham has made the payments required of him for the support of the children who have now reached majority. And, although not all payments have been made on time, he has also paid $425.00 per month to Mrs. Beac-ham as ordered in the original divorce decree, with the possible exception of some interest on delayed installments.

The situation with regard to these alimony payments has continued unchanged since the original divorce decree in February, 1967, a period of some thirteen years, although Beacham has tried, unsuccessfully, to have the decree modified to reduce or discontinue them.

The present appeal by Beacham is from decrees of the Chancery Court of Hinds County dated June 6, and July 11,1979, (the cases have been consolidated) rejecting Beacham’s requests for modification of the former decree so as to permit him to discontinue payments to Mrs. Beacham and holding him in contempt for failures or delays with respect thereto.

The payments for support of the children were made by Beacham as required, the children had reached their majority before the hearings which resulted in the decrees appealed from were entered, and the children are no longer dependent upon their mother for supervision or parental care.

Leaving aside the several collateral matters which are raised or sought to be raised on the appeals in these cases, there is very little dispute about the substantial or significant facts relating to the circumstances of the parties.

At the time of the divorce, the house and all of its furnishings had become the property of Mrs. Beacham. It is perfectly clear that she is a single woman, in good health, with no dependents and with an income of some $18,000.00 a year', exclusive of any payment of alimony by Mr. Beacham. Mrs. Beacham cannot be characterized as being in any sense a needy person.

At the time of the decrees appealed from, in addition to her substantial income, she had in prospect retirement pay and social security. At the time the divorce decree was entered in 1967, when custody and supervision of the children was left with Mrs. Beacham, apparently so as not to disturb their existing circumstances, it cannot be said at this date that it was unreasonable for the court, in allowing them to remain with their mother, and directing Beacham to make payments for their support, also to award to Mrs. Beacham a sum as alimony in connection with her duties in supervising and looking after the children. It was a matter which can reasonably be considered to have been in the mutual best interest of the parties as well as of the children.

Now that this duty (looking after the children) no longer rests upon Mrs. Beac-ham and the circumstances are such as no longer to require contributions to Mrs. Beacham from Mr. Beacham upon the basis of any need or otherwise, he should not be required to continue them. Beacham was the innocent party in the divorce and the divorce decree so adjudicated. The destruction of the marriage was the result of misconduct on the part of Mrs. Beacham. Mrs. Beacham no longer has the responsibility of the minor children. She cannot be said to be in any sense needy, in poor health, or unable to lead an independent life with ample means of support without further payment to her of alimony by Beacham. In such circumstances, requiring Beacham to continue to pay alimony to her should cease.

The policy in Mississippi regarding the award of alimony in such a case has long been established. This Court held in Coffee v. Coffee, 145 Miss. 872, 111 So. 377 (1927), that alimony will not be allowed to the wife unless the decree for divorce is in her favor. While exceptions to this rule have been noted in later cases, such as, for instance, where the wife is without estate and has no means of support or the husband’s property is an accumulation of the joint efforts of the parties, or where the wife is sick and unable to earn a livelihood. None of these exists in this case.

In Bunkley and Morse’s Amis Divorce And Separation in Mississippi, paragraph 6.04 (1957), in concluding a discussion of the rule, it is said: “It should be emphasized that the general rule is that alimony should not be granted to the wife where the separation and divorce are brought about by her acts and conduct. The rule is a sound one and is based on the proposition that a husband is entitled to have his wife receive her support in his home while she is discharging the duties of a wife as imposed under the marriage contract.” In the same work the authors refer to Gatlin v. Gatlin, 248 Miss. 868, 161 So.2d 782 (1964), which was a case involving an exception to the general rule in that alimony was allowed to the wrongdoing wife “because of her destitute situation and her poor health, .” the court holding that the chancellor should have retained jurisdiction even in such a case in order to permit reconsideration when appropriate.

In Russell v. Russell, 241 So.2d 366 (Miss.1970), this Court had occasion to reexamine and approve the general rule that alimony will not be awarded to a wife whose misconduct was the ground for the husband’s divorce. In Russell, supra this Court, after reviewing the authorities, found that Mrs. Russell’s situation did not fall within any of the exceptions to the general rule. Moreover, in Russell, although the Court found that Mrs. Russell was not financially independent, it was noted that she had an income from a former husband for the support of his children, the former husband having arranged for them to have a home. The Court found that Mrs. Russell was able to work and considered that she was able to earn her own living. This Court reversed the chancellor who had awarded alimony to Mrs. Russell saying that it could not agree that Mr. Russell should pay her alimony where the chancellor had dissolved the marriage because of her fault.

In the present case there is no dispute that Mrs. Beacham is in the prime of life, enjoying good health, earning a very substantial salary and with every reasonable prospect for a secure future in the form of retirement pay and social security. In this situation, under the rule above stated, it is not necessary to go into the financial status of Mr. Beacham or to point out the undeniable fact that he has been and is in poor health.

It would not be unreasonable to assume that, in awarding alimony to Mrs. Beacham in the decree granting Beacham a divorce, and providing for support of the children in the home with Mrs. Beacham, the chancellor was motivated by a desire to make Mrs. Beacham’s task of supervision easier and thus justified the award. However, no matter what prompted the award, no reason whatever now exists justifying the continuance of alimony payments to Mrs. Beac-ham. As in Russell, supra, it was error not to relieve the former husband of continuing payments to his former wife.

It is unnecessary to pass upon the constitutionality of the Mississippi alimony statute (as it existed prior to the current session of the Mississippi Legislature) under Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) nor to pass upon other questions raised not relevant to the central issues.

Alimony is not a bounty to which Mrs. Beacham became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to Beacham. In the divorce decree, it was judicially established that the marriage had been broken up and terminated because of her own misconduct. It cannot be said that she is in any way dependent for a livelihood upon receiving alimony from Beacham. The divorce effectively and finally dissolved and ended their relationship with each other and with it their reciprocal responsibilities. Unless some reason, based upon public policy, could be pointed out that, in good con.science, there is a compelling need to require support from her former husband, he should be relieved of the burden of making contributions to her. No such reason can be pointed out in this case , and we are compelled to hold that none exists.

The decrees appealed from will be reversed and a decree entered here relieving Beacham of further payments of alimony to Mrs. Beacham. The case will be remanded to the chancery court for further proceedings with respect to the amounts due Mrs. Beacham which have accrued, from which Beacham is not relieved. It is apparent from the record that Mrs. Beac-ham is well able from her own means to employ and pay an attorney to represent her and the allowance of attorney’s fees on this appeal is denied.

REVERSED AND RENDERED IN PART AND REMANDED.

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

BOWLING, J., took no part.


author: LEE, Justice,

text:
    Guy M. WALKER v. LAUREL URBAN RENEWAL AGENCY et al.
    No. 51809.
    Supreme Court of Mississippi.
    May 7, 1980.
    J. Larry Walters, Guy M. Walker, Laurel, for appellant.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Guy M. Walker filed suit in the Circuit Court of Jones County against the City of. Laurel, Laurel Urban Renewal Agency, Reeves Construction Company and Bush Construction Company for damages alleged to have been sustained to Walker’s office building from vibrations to the structure when a sidewalk adjoining the building was demolished in the course of work on an urban renewal project in Laurel. At the conclusion of the plaintiff’s case, Reeves Construction Company was granted a directed verdict and at the conclusion of all the evidence, the court sustained the motion of City of Laurel and Laurel Urban Renewal Agency for a directed verdict. The plaintiff nonsuited as to Bush Construction Company and has appealed the judgment here.

The question before the Court is whether or not the trial court erred in granting a directed verdict in favor of the City of Laurel and Laurel Urban Renewal Agency.

The parties admit that Laurel Urban Renewal Agency is an agency of the City of Laurel and that certain street construction work was being performed by Bush Construction Company, subcontractor of Reeves Construction Company, on behalf of said city and agency. Under the construction contract, Bush was engaged in demolishing a sidewalk adjoining the office building of appellant. The declaration charged, and the proof for plaintiff indicated, although it was in conflict with that offered by appel-lees, that Bush broke up and removed a concrete walk along the front of appellant’s building to a point within eighteen (18) inches of the building by dropping the weight of a front end loader upon the concrete. The weight and the force of the loader, as charged and testified to by plaintiff and his witnesses, caused the building to vibrate, strain and crack, and the building was damaged as a result. Appellees’ evidence was to the effect that the building had been in a bad state of repair for a long period of time, that the cracks in the building were old cracks and that there was no causal connection between the work done by Bush and the condition of the building afterwards.

Appellant relies upon Section 17, Miss. Const.1890, for his claim. The section provides that private property shall not be taken or damaged for public use without due compensation being paid. He bases his claim, not on negligence of the appellees or the contractors involved, but on the proposition that the construction work of Bush damaged the building and that he was entitled to compensation from the City of Laurel for the amount of that damage.

In Pigott v. Boeing Company, 240 So.2d 63 (Miss.1970), suit was brought by Pigott for damages alleged to have been caused by Boeing from vibrations resulting when Boeing tested a booster rocket, under a contract with the United' States government. While not reaching the question of liability of the United States, this Court said:

“In our opinion this question is answered by Curtis v. Mississippi State Highway Comm’n and Continental, Inc., 195 So.2d 497 (Miss.1967). The Court held that the contractor was not liable for damages resulting from the contractor’s execution of the work of constructing a highway in accordance with the plans and specifications and under the direction of the state highway engineers if such improvement was made without negligence. The landowner’s remedy, if any, is against the public agency having the work done. In the absence of negligence on the part of Boeing, the plaintiffs’ remedy, if any, for damages suffered to their property is against the United States.” 240 So.2d at 64.

In City of Jackson v. Cook, 214 Miss. 201, 58 So.2d 498 (1952), the appellees sued the City of Jackson for damages to a lot and improvements thereon resulting from flooding same when the City drained water off one of its streets and discharged the water onto the property of appellees. The trial court refused a peremptory instruction for the City and judgment was entered upon a jury verdict for the appellees in the sum of eighteen hundred seventy-five dollars ($1,875.00). In holding that the peremptory instruction was correctly refused, the Court stated that the case was governed by the principles set forth in Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39 (1937), and City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794 (1948), which cases, the Court said, announced that, while municipalities have the right to alter, change, construct and reconstruct its streets, and, therefore, litigants have no right to control their action, yet, if in so doing private property is damaged, the city is liable for such damage under Section 17, Miss.Const.1890.

29A C.J.S. Eminent Domain § 195, at 854 (1965) recites the following general principle of law:

“The political entity or public agency or corporation causing the land to be condemned or the work to be done is primarily liable for injuries caused by the exercise of the power of eminent domain, although the work or taking is actually done by another, and this applies to property taken or injured by a county, city, or other political subdivision.” (Emphasis added)

In Williams v. Walley, 295 So.2d 286 (Miss.1974), a contractor damaged the leasehold of Walley while building a road for, and at the direction of, the board of supervisors. This Court held that the county was responsible for the damage sustained by Walley pursuant to Section 17, Miss.Const. 1890, which prohibits the taking or damaging of private property without just compensation.

There was conflicting evidence in the case sub judice. The jury might have found that there was no causal connection between the alleged damage to the Walker building and the breaking up of the sidewalk. It may have found that there was causal connection and the damage was due to the negligence of Bush. On the other hand, it may have found that Bush was not negligent in the performance of its contract, that the building was damaged and that the City of Laurel should compensate appellant for that damage. The questions should have been submitted to the jury and the court erred in granting a peremptory instruction in favor of the City.

For the reasons stated, the judgment of the lower court is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ„ and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

      . City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965) is not authority for the present case, but the Court held that the City had a non-delegable duty to maintain its streets and sidewalks in a reasonably safe condition, and it is liable for the negligence of its independent contractor in making an excavation and leaving it in an unsafe condition.


author: BEATTY, Justice. MADDOX, Justice

text:
    RAWLS WAREHOUSE, INC. v. Major JACKSON.
    78-812.
    Supreme Court of Alabama.
    March 7, 1980.
    Rehearing Denied May 9, 1980.
    Richard W. Whittaker, of Pittman, Whit-taker &• Hooks, Enterprise, for appellant.
    J. E. Sawyer, Jr., of Rowe, Rowe & Sawyer, Enterprise, for appellee.
   ON APPLICATION FOR REHEARING

BEATTY, Justice.

The original opinion in this case is withdrawn and the following opinion is substituted in its place.

Appeal by Rawls Warehouse, Inc. from a judgment which denied the establishment of a lien against the unpaid money owed by Jackson, owner of a house, to Brantley, the building contractor for Jackson. We affirm.

The case was tried below on a stipulation. Between April and December, 1978, Rawls sold and delivered, at Brantley’s request, certain building materials which were used in remodeling Jackson’s home. When Brantley did not pay Rawls for these materials, Rawls’ manager visited the Jacksons, explained the use of the materials and the fact of nonpayment, and advised the Jack-sons that Rawls was filing a lien of $13,-579.61 against what the Jacksons owed Brantley. At that time no written notice of the lien was given to the Jacksons.

The Vice President of Rawls, Ms. Beck-with, prepared the lien and mailed a copy of it to Jackson on December 1,1978, the same day it was recorded. Ms. Beckwith’s testimony on direct examination included the following exchange:

Q. Do you recall one way or the other whether you physically mailed the letter or physically filed the lien in the courthouse in Enterprise or which one you did first?
A. I believe that I brought it to the courthouse first and then went to the post office.
Q. Are you sure about that?
A. Well, under oath I don’t know, but I am reasonably sure.
Q. It could have been either way and it is just what your best memory is?
A. My best memory would have been that I made the copies and the copy was notarized, and I probably had the envelope addressed and stamped and came here and then to the post office.

Jackson testified that he received a copy of the lien in the mail on December 1, 1978, “if I recollect the date,” and that some time after he received the statement, he paid an electrician and a cabinet maker who had demanded their money for work done on the house.

Following the reception of evidence the trial court denied the lien because:

The evidence is not clear and convincing that notice to Jackson in writing of Rawls’ intent to claim a lien was made to Jackson prior to the filing of the lien in the Office of the Judge of Probate at 4:40 P.M. on December 1, 1978.

Mechanic’s and materialmen’s liens are established by Code of 1975, Title 35, Chap. 11, Art. 5, Div. 8 [§ 35-11-210]. The claim of one not the original contractor is controlled by § 35-11-218, the pertinent part of which follows:

Every person, except the original contractor, who may wish to avail himself of the provisions of this division, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. .

A materialmen’s lien did not exist at common law. Thus its enforcement depends upon strict compliance with the enabling statutes’ substantial requirements. Gray v. McKinley, 34 Ala.App. 630, 632-3, 43 So.2d 421 (1949); see also Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560 (1932); Rayborn v. Housing Authority of Washington Co., 276 Ala. 498, 164 So.2d 494 (1964), and Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826 (1927). The written notice requirement contained in these provisions is intended for the protection of the owner, Le Grand, supra, and the terms of the statute are explicit, imperative and mandatory. Gray v. McKinley, supra, 34 Ala.App. at 633, 43 So.2d 421.

The crucial question on this appeal is whether the trial court erred in finding that the evidence did not establish that Rawls gave notice to Jackson of its intention to claim a lien prior to the filing of the lien in the probate court. The testimony bearing on the question whether notice was given before the lien was filed was conflicting. On the one hand, Ms. Beckwith’s recollection that she mailed the lien after she filed it supports the trial court’s conclusion that notice by mail was not given before the statement was filed. On. the other hand, Jackson’s testimony gives rise to the inference that he received the notice of Rawls’ intention to claim a lien at 4 p. m. on December 1, 1978, which, according to the records of the Coffee County Probate Court, was some forty minutes before the lien was filed.

Our rule of review is that when the evidence is heard ore tenus by the trial court, its conclusions will not be disturbed on appeal unless they are palpably erroneous. Custred v. Jefferson County, Ala., 360 So.2d 285 (1978). The ore tenus rule is particularly applicable when, as here, the oral testimony of witnesses is contradictory and some of the testimony supports the trial court’s findings. Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975). Ms. Beckwith’s statements at trial that she was “reasonably sure” that she filed the lien before she mailed it and that her “best memory” was that that was the case, both support the trial court’s finding. Although Mr. Jackson’s testimony provided a basis on which the trial court could have decided that Rawls complied with the statute, that testimony was not binding on the court and does not render its conclusion clearly and palpably wrong. Accordingly, we are compelled to sustain the trial court’s decision. The judgment is affirmed.

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; AFFIRMED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

TORBERT, C. J., and MADDOX and SHORES, JJ., dissent.

MADDOX, Justice

(dissenting).

The case was tried on a stipulation: Between April and December, 1978, Rawls sold and delivered, at Brantley’s request, certain building materials which were used in remodeling Jackson’s home. When Brant-ley did not pay Rawls for these materials, Rawls’ manager visited the Jacksons, on December 1, 1978, explained the use of the materials and the fact of nonpayment, and advised the Jacksons that Rawls was filing a lien of $13,579.61 against what the Jack-sons owed Brantley. At that time no written notice of the lien was given to the Jacksons.

The vice-president of Rawls prepared the lien and mailed a copy of it to Jackson on the same day it was recorded in the courthouse. She felt that she had recorded it before she mailed the copy. The lien itself shows it was filed at 4:40 p. m. It may have been left at the probate office earlier in the day, but it was “filed” as required by statute at 4:40 p. m.

Jackson testified that he received a copy of the lien on December 1, 1978, “around 4:00 p. m.,” and thereafter paid the electrician and a cabinet maker who had demanded their money for work done on the house even though Rawls’ manager had personally told him that Rawls would file a lien, and even though he had received the written notice of the filing.

Following the reception of evidence, the trial court denied the lien because:

The evidence is not clear and convincing that notice to Jackson in writing of Rawls’ intent to claim a lien was made to Jackson prior to the filing of the lien in the Office of the Judge of Probate at 4:40 P.M. on December 1, 1978.

That finding is clearly and palpably wrong. Jackson, the owner, testified unequivocally that he received the notice “around 4:00 p. m.” on December 1.

There is not one gleam, glimmer or spark of evidence from which the trial court could find that the written notice was received by Jackson after 4:40 p. m., the time the trial judge found was the time the lien was “filed.”

In brief on application for rehearing counsel says that:

“ . . It is evident that Major Jackson was confused as to the first or the second of December. . . . ”
Jackson, being called as an adverse witness, testified:
“Q. You heard Mr. Mynard testify that he went to your house and talked to you?
“A. Yes, I did.
“Q. Is that correct?
“A. Yes.
“Q. Did you receive anything in the mail from Rawls Warehouse the following day?
“A. The same day.
“Q. The same day you did?
“A. Um, Humm.
“Q. Did you keep what was mailed to you?
“A. Yes.
“Q. Do you have it here?
“A. My attorney has it.
“Q. Do you recall what day you actually received that information from Rawls or what ever it was that they mailed to you?
“A. It was the first of December if I recollect the date.
“Q. Think it was December 1st, 1978. When do you normally pick up your mail or when does your mail normally arrive? Do you pick it up at the post office or does it come to your house?
“A. To my house.
“Q. What time does it normally come to your house?
“A. Late evening.
“Q. What do you mean by late evening? Two o’clock in the afternoon, eight . o’clock at night?
“A. Around four o’clock.
“Q. Around four o’clock in the evening?
“A. Yes.” (Emphasis added.)

If Major Jackson was “confused,” he answered questions to the contrary. When questioned by his own lawyer, Jackson testified:

“Q. Now, when Clem came out there that day he told you they were fixing to do that, right as far as file that lien and the next day you got a copy of the lien is that right? Was ■ it the next day or that afternoon?
“A. That afternoon." (Emphasis add- ■ ed.)

Mechanic’s and materialmen’s liens are established by Code of 1975, Title 35, Chap. 11, Art. 5, Div. 8 [§ 35-11-210]. The claim of one not the original contractor is controlled by § 35-11-218, the pertinent part of which follows:

Every person, except the original contractor, who may wish to avail himself of the provisions of this division, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he- claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. .

A materialmen’s lien did not exist at common law. Thus its enforcement depends upon strict compliance with the enabling statutes’ substantial requirements. Gray v. McKinley, 34 Ala.App. 630, 632-3, 43 So.2d 421 (1949); see also Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560 (1932); Rayborn v. Housing Authority of Washington Co., 276 Ala. 498, 164 So.2d 494 (1964), and Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826 (1927). The written notice requirement contained in these provisions is intended for the protection of the owner, Le Grand, supra, and the terms of the statute are explicit, imperative and mandatory. Gray v. McKinley, supra, 34 Ala.App. at 633, 43 So.2d 421.

The trial court correctly interpreted the lien statute to require written notice to the owner prior to the filing of the lien even though I would point out the owner was personally told not to pay out the money. That court, however, inadvertently misapplied the undisputed evidence on the receipt of the required statutory notice. There was clear evidence that the lien itself was “filed” at 4:40 p. m. on December 1, 1978. The only evidence on the actual receipt of written notice by the owner was- by the owner himself who testified that he received it aroujid 4:00 p. m. on December 1, that is, before the lien was “filed.” That evidence satisfied the statutory requirement to establish the lien.

I respectfully dissent.


author: JONES, Justice.

text:
    LAWLER MACHINE & FOUNDRY CO., INC., a corp., and Delmas Lacy Lawler, an individual v. PACIFIC INDEMNITY INSURANCE COMPANY, a corp.
    78-486.
    Supreme Court of Alabama.
    March 7, 1980.
    Rehearing Denied May 9, 1980.
    S. R. Starnes and L. Graves Stiff, III, of Starnes & . Starnes, Birmingham, Bill Thompson, Talladega, for appellants.
    Thomas B. Huie and James R. Shaw of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee.
   JONES, Justice.

Pacific Indemnity brought this declaratory judgment action to determine its rights and obligations under a policy issued to Appellant Lawler Machine & Foundry Co., Inc. Lawler Machine & Foundry Co., Inc., and Delmas Lacy Lawler (a stockholder, director and employee of the family-owned' operation) are Defendants in multiple lawsuits which arose as a result of Delmas Lawler’s having driven the company’s pickup truck into a crowded restaurant. The insurance policy covers only “occurrences” resulting in injury or property damage which is “neither expected or intended,” and Pacific Indemnity sought a declaratory judgment that Lawler’s action in running the truck into the restaurant was deliberate and intentional, and, therefore, not covered under the insurance policy. From the order of the lower Court declaring Pacific Indemnity to be without liability to its insureds, Delmas Lawler and Lawler Machine & Foundry Co., Inc., appeal.

The Facts

Sometime around midnight on the evening of July 3, 1978, Lawler drove his pickup truck to a restaurant known as Dot’s Hickory Pit. Lawler, who had been drinking beer throughout the day and evening, was seen to stagger in the restaurant but, while there, ordered food and coffee for both himself and his date, who had arrived there separately in her own vehicle. When preparing to leave and pay his check, he became involved in an argument with the cashier and, according to one witness, left the restaurant “mad.”

Thereafter, Lawler got into his truck and backed up, striking a passing vehicle — the Monroe car. Lawler then put the truck in forward gear and drove through the building’s exterior walls and into the restaurant.

The testimony from which the trial Judge was free to draw inferences on the issue whether Lawler’s actions constituted deliberate ramming of the building or whether he had merely lost control of the truck due to his intoxication and as a result of being upset over accidentally backing into the Monroe vehicle is in sharp conflict.

Issue Presented

Does the evidence support the trial Court’s ruling, as to each Defendant, that the incident in question was not an accidental occurrence as defined in the insurance policy? We affirm as to the individual Appellant, Delmas Lacy Lawler, and reverse and remand as to the corporate Appellant, Lawler Machine & Foundry Co., Inc.

Contentions of the Parties

Competent counsel for the respective parties to this appeal have filed superior briefs; and, thus, we will approach our analysis of the dispositive issue in the context of their respective contentions.

Appellants’ Contentions

Along with a majority of jurisdictions, Alabama recognizes that the unintended consequences of even clearly intentional, wilful, or deliberate acts may still be covered by policies of liability insurance coverage. In Hartford Fire Insurance Company v. Blakeney, 340 So.2d 754 (Ala.1976), an insured pushed a social guest down a flight of steps following a fight in the insured’s home and the court upheld the jury charge that “it is an accidental injury where an unexpected result arises from an intended act.”

It is elementary, say Appellants, that the burden of establishing an exception to liability coverage is on the insurer. In Equitable Accident Insurance Co. v. Osborn, 90 Ala. 201, 9 So. 869 (1890), the Court stated that exceptions under an exclusionary provision are “construed most strongly against the insurer, and liberally in favor of the insured.”

Furthermore, assert Appellants, the duty of an insurance company to defend liability actions is more extensive than its duty to pay. See Ladner and Company, Inc. v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala.1977), and Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So.2d 789 (1964).

Inasmuch as the lower Court’s decree denies coverage to the corporate insured as well as to the individual, the corporate Appellant emphasizes that Lawler was not, on the night in question, performing any business as agent for the corporation. Apart from the agency issue on which Pacific owes the corporation a defense, the complaint charged the corporation with “wilfully, wantonly, or negligently entrusting or allowing Lawler to possess the truck.” Thus, contends the corporate Appellant, a viable cause of action is alleged against the corporation, independent of any intentional conduct by Lawler, for which the corporate Defendant is entitled to a defense.

Appellee’s Contentions:

The issue whether a person intended or expected to cause certain injuries is an issue of fact to be determined by the trier of fact; and, under the ore tenus rule, such determination is entitled to a presumption of correctness, and will not be set aside unless clearly wrong or unjust. Smith v. North River Insurance Co., 360 So.2d 313 (Ala.1978).

Appellants’ argument that the burden is upon the insurer to establish an exception coming under an exclusionary clause is in-apposite because we deal here with the basic coverage established under the policy rather than with the operation of an exclusion; and the burden here rests on the person claiming coverage. North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So.2d 764 (1951).

The assertion that an insurer’s duty to defend is more extensive than its duty to pay is also without applicability. In Smith v. North River Insurance Co., supra, at 315, the Court stated:

“The issue raised in the declaratory judgment action was whether the insurance company was obligated, under the policy provisions, to defend the action brought by Smith against his insurer. This issue turned on whether the -injury, the basis of the personal injury suit, was ‘expected or intended,’ as those terms are used in the contract between the insurance company and its insured.”

In view of the lower Court’s determination in this case that Appellee is without liability regarding the incident which is the subject of this suit, it follows, contends the Appellee, that it also is without obligation to provide a defense for either the corporate or individual defendant.

The Court’s Opinion

Appellants earnestly insist that the trial Court’s findings of fact are not entitled to a presumption of correctness, so as to mandate affirmance, under the ore tenus rule, for two reasons: 1) the trial Court misapplied the law to the facts; and 2) such findings of fact are plainly and palpably wrong.

We are in basic agreement with each of the cited propositions of law both as to ore tenus and the principles governing insurance coverage relied upon by Appellants. As to each insured, however, the ultimate resolution of the coverage issue here presented rests upon a factual determination: Was the insured’s conduct so consciously and voluntarily committed as to render the resultant injuries and damages the natural and probable consequences of such conduct? Or, stated another way, did the insured, with reasonable foreseeability of injury, so consciously direct his actions that the resultant injuries are the natural or probable consequence thereof? Continental Casualty Ins. Co. v. Cunningham, 188 Ala. 159, 66 So. 41 (1914).

While this factual issue is an extremely close one, we cannot say that the trial Court erred in answering the above-stated question in the affirmative, and, thus finding, as a matter of law, that the individual Appellant, Delmas Lacy Lawler, intended to inflict the injuries which are the underlying basis for this litigation. As to the corporate Appellant, on the other hand, we are unable to discern any evidence of record from which the trial Court could reasonably infer that the insured, Lawler Machine & Foundry Co., Inc., is not entitled to a defense as well as other benefits provided by the policy. Therefore, we affirm as to Delmas Lacy Lawler and reverse and remand as to Lawler Machine & Foundry Co., Inc., a corporation.

AFFIRMED IN PART; AND IN PART REVERSED AND REMANDED.

All the Justices concur except BLOOD-WORTH, J., not sitting.

      . Because of our holding, remanding this cause as to the corporate insured, we have purposefully not related a more detailed statement of the facts.


author: MADDOX, Justice.

text:
    VALLEY MINING CORPORATION, INC., et al., v. METRO BANK, etc., et al. METRO BANK, etc., et al. v. VALLEY MINING CORPORATION et al.
    Nos. 78-563, 78-563X.
    Supreme Court of Alabama.
    May 2, 1980.

      Douglas Corretti and Samuel Maples, Corretti, Newsom & Rogers, Birmingham, and Lee Bains and Jon Terry, Bessemer, for appellants.
    Norman K. Brown, Bessemer, and Richard F. Ogle, of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appellees.
   MADDOX, Justice.

The maker of a promissory note and individual guarantors appeal from a judgment entered against them pursuant to a jury verdict, claiming:

(1) The trial court incorrectly instructed the jury that they could not find the guarantors liable on the note unless they also found the principal debtor liable.

(2) The testimony of an P.B.I. agent, even though relevant, was highly prejudicial, and should have been excluded because it suggested that a federal investigation of the events surrounding the case had been conducted.

(3) The trial judge should have instructed the jury that if the creditor dealt with the collateral in a commercially unreasonable manner, the creditor was not entitled to recover a deficiency.

The creditor cross-appealed, claiming that the trial judge erred in entering a judgment pursuant to the jury verdict which found the three individual guarantors liable for only one-third of the total debt.

The pleadings were lengthy, but a simple and concise statement of the claims, counterclaims and cross-claims is as follows:

The bank (Metro) sued the principal debt- or and the individual guarantors, Sam Raine, Jr., Norman Ceravolo, and Jerome Lacy, to recover its debt, but also claimed that two of the individual guarantors, Raine and Ceravolo, had fraudulently procured a continuation of the notes and guarantees.

The debtor (Valley Mining) and the individual guarantors denied liability, set up some affirmative defenses, including the statute of frauds, usury and commercially unreasonable behavior, and filed a counterclaim in which they alleged that Metro had wrongfully repossessed and sold certain equipment (collateral) belonging to them. Metro denied this. Lacy, one of the guarantors, filed a cross-claim, in which he alleged that Ceravolo and Raine had fraudulently misrepresented certain facts to him and had conspired to defraud him.

The cause was heard before the Honorable George H. Wright, Jr., special judge, sitting for the Honorable Walter Bridges, who had recused himself, on March 19,1979, and proceeded until the jury returned its verdict on the 14th day of April, 1979. On May 11,1979, the trial judge entered a final judgment in which he ordered and decreed:

(1) That the plaintiff Metro Bank have and recover of defendant Valley Mining Corporation the sum of $236,-. 788.94 in compensatory damages.
(2) That the plaintiff Metro Bank have and recover of defendant Sam Raine, Jr. the sum of $78,929.65 compensatory damages.
(3) That the plaintiff Metro Bank have and recover of defendant Norman Ceravolo the sum of $78,929.65 compensatory damages.
(4) That the plaintiff Metro Bank have and recover of defendant Jerome Lacy the sum of $78,929.64 compensatory damages.
(5) That the plaintiff Metro Bank have and recover of defendant Sam Raine, Jr. the sum of $10,000.00 punitive damages.
(6) That the plaintiff Metro Bank have and recover of defendant Norman Ceravolo the sum of $10,000.00 punitive damages.
(7) That defendant Valley Mining Corporation have and recover of plaintiff Metro Bank the sum of $10,000.00 punitive damages.
(8) That defendant and cross-plaintiff Jerome Lacy have and recover of defendants Sam Raine, Jr. and Norman Ceravolo the sum of $50,000.00 compensatory damages.
(9) That all costs incurred herein are hereby taxed against the defendants, Valley Mining Corporation, Sam Raine, Jr., Norman Ceravolo and Jerome Lacy, for which execution may issue.

I

Did the trial judge improperly instruct the jury in the law relative to the liability of a guarantor? Here’s how the question arose. After the jury began deliberations, they sent a note to the court on the second day of their deliberations which read as follows:

“If you want to give damages to the bank from all three defendants, which paper do you use?”

Thereafter, the court, with the consent of the attorneys for the parties, instructed the bailiff to tell the jury that they could use any of the verdict forms that were submitted to them at the start of their deliberations or they could write their own verdict. At 3:13 p. m. on the 14th day of April, 1979, the jury returned, a verdict. The record shows the following occurrence:

“THE COURT: All right, Ladies and gentlemen of the jury, have you arrived at a verdict or verdicts in this case?
“MR. COLEMAN: Yes, sir, we have.
“THE COURT: Mr. Coleman, are you the foreman?
“MR. COLEMAN: Yes, sir.
“THE COURT: Would you read the verdicts, sir?
“MR. COLEMAN: We, the jury, find for the plaintiff, Metro Bank on its complaint against the defendants Sam Raine, Norman Ceravolo, and Jerome Lacy to each pay one-third of balance of two hundred thirty-six thousand seven hundred eighty-eight dollars and ninety-four cents.
“THE COURT: All right.
“MR. COLEMAN: We, the jury find in favor of the Defendant-Cross Plaintiff Lacy and against the Defendants Raine and Ceravolo and assess his compensatory damages at fifty thousand dollars. We, the jury find for the Defendant Valley Mining Corporation on its coun- ■ ter claim alleging fraud against Metro Bank and assess the Defendant Valley Mining Corporation punitive damages of ten thousand dollars. We, the jury, find for the Plaintiff, Metro Bank, on its complaint against Defendant Sam Raine, Jr. and assess its damages at ten thousand dollars punitive damages.
“THE COURT: All right. Let me ask you this: Is the first verdict the verdict against all of the defendants?
“MR. COLEMAN: Right. Raine, Cera-volo and Lacy.
“THE COURT: Is that compensatory or punitive damages?
“MR. COLEMAN: That is compensatory. What the balance was owed the Bank after the equipment and everything was sold that they should pay the Bank what they owed them.
“THE COURT: If you could, hand me those verdicts and I am going to let you go back out into the jury room just for a few minutes, ladies and gentlemen.”

After discussing the verdicts with attorneys outside the presence of the jury, and over strenuous objection, the trial judge further charged the jury as follows:

“THE COURT: .* * * But you have not yet reached a verdict on the complaint of Metro Bank against Valley Mining Corporation. You recall Valley Mining Corporation was the one allegedly who signed those notes, executed the notes and the three that you have returned verdicts against were the guarantors. They signed the guarantee agreement there. So you still must return a verdict one way or the other as to the complaint of Metro Bank against Valley Mining Corporation. I remind you you have already returned a verdict on Valley Mining Corporation’s counter claim against the Bank. You have returned a verdict on that. But you have not returned a verdict on the complaint of Metro Bank against Valley Mining Corporation. So at this time I must send you out for further deliberations until you reach a verdict on that. Under the law of the State of Alabama, guarantors on a note cannot be liable for the payment of that note unless the principal is liable. That is the law of the State of Alabama. Now you may retire at this time and continue your deliberations and I will let. you take the verdicts back with you you have already rendered, but don’t change these verdicts.”

Shortly thereafter, the jury returned a verdict for Metro against Valley Mining in the sum of $236,788.94, which is the same amount as the total sum for which they had found the three guarantors to be liable.

We find that the trial judge correctly instructed the jury to return for further deliberations when it became apparent that the jury failed to return a verdict on Metro’s claim against Valley Mining. In Hood v. Ham, 342 So.2d 1317 (Ala.1977), this Court stated, in citing the rule that a trial court’s authority to amend a jury verdict is limited to matters of form or clerical error and does not extend to matters of substance required to be passed upon by the jury:

“This rule applies with equal force where there is a total absence of a jury verdict; and it is no answer to speculate that, in view of the verdict returned in the companion case, it is ‘apparent’ what the jury ‘must have’ intended. Upon demand of a jury trial, the plaintiff was entitled to have his cause adjudicated by a jury verdict. Where the jury returns no verdict whatsoever, there is no authority recognized in our law for the trial Court to enter a final judgment of dismissal.” 342 So.2d at 1318.

We further find that the instruction that the guarantor of a note cannot be liable for the payment of the note unless the principal is found to be liable is an accurate statement of the law, and appropriate here, because we have examined the “Guaranty Agreement” executed in this case and find it is, in fact, a guaranty agreement, rather than a surety agreement, as claimed by Valley Mining.

In reaching our conclusion, we applied the following principles of law:

“A guaranty in its technical sense is collateral to, and made independently of, the principal contract which is guaranteed; and the guarantor’s liability is secondary rather than primary or original.” 38 C.J.S. Guaranty § 2 (1943).

“A surety is bound with his principal as an original promissor; a guarantor is only bound if and when the creditor is unable to collect from the principal debtor.” Davenport & Harris Undertaking Co. v. Roberson, 219 Ala. 203, 205, 121 So. 733 (1929).

We find no error in the trial judge’s instruction to the jury on the law concerning the liability of a principal debtor and its guarantors.

II

The second question'we will address is whether the trial judge erred in allowing the F.B.I. agent, Gene Hutcherson, to testify in this case.

During the course of the trial, Metro offered the testimony of Hutcherson, an agent with the Federal Bureau of Investigation. Attorneys for the appellants strenuously objected to this testimony, but the court, after considering arguments of counsel outside the presence of the jury, permitted the agent to testify. The contested testimony was to the effect that Hutcher-son had a conversation with Raine concerning a particular document described as Metro Exhibit 9-R (a purported power of attorney), which the agent stated Raine gave to him and that when he read it, he told Raine that as far as he was concerned, the document was no good and that Raine responded that “Yeah, you got to him before I did.”

Appellants submit that the introduction of testimony by the F.B.I. agent greatly prejudiced the jury because it suggested that a federal investigation of the events surrounding this case had taken place while providing testimony of little probative value for the jury’s consideration.

We are familiar with the rule that the trial court may exclude evidence, even though it is relevant, when it would serve comparatively little or no purpose except to arouse passion, prejudice or sympathy of the jury [Gamble, McElroy’s Alabama Evidence, 3d ed. § 21.01(4)], but we are also convinced that whether evidence should be excluded because it is unduly prejudicial is largely within the discretion of the trial court. Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961).

Extensive arguments were presented to the trial judge both for and against the appellants’ motion to exclude the agent’s testimony. Efforts to resolve the issue by compromise failed. The judge finally overruled the motion to exclude the evidence and the agent was permitted to testify. It seems clear from the record designated by appellants that the trial court gave adequate consideration to this claim of prejudice and determined that the probative value of the evidence outweighed its prejudicial effect, if any. We must point out that the record designated by the appellants does not contain all of the testimony presented at the trial. In fact, the record contains only a portion of the testimony. In view of that fact, we are unable to determine whether the error, if any, was prejudicial. Rule 45, A.R.A.P.

In short, the appellants have failed to convince us that the trial judge abused his discretion.

Ill

The issue we now address is one of first impression, that is, whether a finding of commercially unreasonable behavior by a creditor should bar the creditor’s right to recover an outstanding deficiency on a note. At trial, the appellants contended that a finding of commercially unreasonable behavior should bar the creditor from recovering a deficiency after the collateral had been sold. Metro, on the other hand, argued that the better rule was to have the trier of fact calculate the damages suffered by the debtor due to the commercially unreasonable conduct and then set-off that amount against any deficiency the creditor may be entitled to recover. The trial judge adopted the latter method and instructed the jury as follows:

“I charge you, members of the jury, that should you find that the plaintiff failed to dispose of collateral in a commercially reasonable manner, this would not result in the plaintiffs forfeiture of its right to a deficiency judgment, but would only require a reduction of the claimed deficiency by the amount of any loss resulting from any such failure.”

Whether commercially unreasonable behavior by the creditor should affect the creditor’s right to recover the outstanding deficiency on a note, as we have already indicated, is a matter of first impression for this Court. Other courts do not agree on what is the better rule. Indiana allows a set-off. California has adopted a rule which bar recovery.

In Hall v. Owen City State Bank, 370 N.E.2d 918, 926-928 (Ind.App.1977), it was stated:

“The cases decided in other states are hopelessly divided on the question as to whether the secured party should be barred from recovering a deficiency judgment from the debtor when there has been sufficient notice of the disposition of collateral after repossession. In addition to these courts, it seems that the commentators are also in disagreement on this question. From the language of UCC § 9-504, it appears that the drafters of the UCC either did not consider this question or else decided to leave the question open. At least one notable authority has stated that the drafters indeed failed to consider this issue.

“It has been argued that because § 9-504(2) and § 9-502(2) specifically give the secured party a right to collect any deficiency and because there is no language in § 9-504 to indicate that a creditor should be barred from a deficiency, the courts should have no authority to supply such a sanction. In contrast, the language of § 2-706, which allows the seller of goods to resell those goods after breach by the buyer and collect damages from the buyer (much like a repossession sale and suit for deficiency judgment) strongly implies that notice to the buyer in that case is a condition precedent to the recovery of damages.

“It can also be argued that the adoption of a rule which strictly bars a deficiency judgment in cases of faulty notice contravenes the intent and purpose of the UCC. First of all, as stated above, the drafters of the UCC intended to do away with rigid rules of law designed to govern in all situations in favor of more fluid guidelines which allow a case by case analysis. It was hoped that this procedure would allow parties to reach the merits of each case instead of becoming entangled in procedural technicalities:

“ ‘Article 9 imposes few formal requirements and relies instead on the general obligation of commercial reasonableness. It was hoped that Article 9 default litigation would reach, and be decided on, the merits of the case without being deflected either by the debtor’s allegations of a technical defense or the secured parties’, demonstration of equally technical compliance with formalities. 2 Gilmore, Security Interests and Personal Property, § 44.9.4 at p. 1264 (1965).’

“Furthermore, the policy of the UCC as expressed in § 1-106 is to allow full recompense to an aggrieved party by a liberal application of the remedies provided in the UCC and to avoid the assessment of penal damages, unless such damages are expressly allowed by the UCC or other law. It would seem that an automatic denial of a judgment for the remaining portion of a debt would amount to a rejection of that policy. The Nebraska Supreme Court, in rejecting a strict rule barring deficiency judgments because of insufficient notice, also felt that such a rule would be unduly punitive: ‘No sound policy requires us to inject a drastic punitive element into a commercial context.’ Cornett v. White Motor Corp. (1973), 190 Neb. 496, 501, 209 N.W.2d 341, 344, 13 UCC 152.

“Probably the most persuasive argument for allowing a secured party to proceed with an action for a deficiency judgment is the fact that the UCC has already provided the debtor with a remedy in § 9-507. Under the latter section, if a secured party is not proceeding properly, the debtor may either restrain the creditor from proceeding further, or may recover from him any loss that the debtor may have suffered due to the secured party’s failure to comply with the provisions of Article 9. Further protection is afforded under § 9-507 to the debtor in a consumer transaction in that a minimum damage figure is set out, which roughly equals the interest charge plus 10% of the cash price of the goods. In addition, under the provision of § 5-103 of the Uniform Consumer Credit Code, IC 1971, 24-4.-5-5-103, the debtor is not liable for any deficiency where the secured party elects to • repossess goods' which had a price of $1100.00 or less and which were a part of a consumer credit sale.

“Some rather persuasive arguments have, also been advanced in favor of barring deficiency judgments in all cases where the secured party does not proceed properly. Such a rule would seem to be easier to apply, might bring about more uniform results and could possibly force creditors to be more careful in giving notice to debtors. Furthermore, there is nothing in the language of the UCC to suggest that the remedy provided in § 9-507 was intended to be an exclusive remedy. Section 1-103 brings' traditional common law into play, such' as equitable principles and principles of justice and fair play, which should suggest that a creditor should not be allowed a deficiency judgment when he breaks the law:

“ ‘The rule and requirements are simple. If the secured creditor wishes a deficiency judgment he must obey the law. If he does not- obey the law, he may not have his deficiency judgment. Atlas Thrift Company v. Horan (1972), 27 Cal.App.3d 999, 104 Cal.Rptr. 315, 11 UCC Rep. 417, 426.’

“It must also be considered that by failing to take proper steps to notify the debt- or, the secured creditor can effectively deprive the debtor of his right to redeem the collateral under § 9-506 and his right to protect his interest by procuring bids or buyers at any private or public sale that is •held.

“After considering both the cases and policy arguments on.this issue, we feel that the better rule of law would allow the secured creditor a right to an action for a deficiéncy judgment notwithstanding a failure to send proper notice under IC 1971, 26-1-9-504(3). In addition to the reasons cited above, we feel that the UCC should function on the premise that the majority of commercial transactions are carried out in good faith. In those cases in which the secured creditor has not complied with the appropriate notice provisions, or has otherwise not proceeded in good faith, it is better to adopt a more flexible standard which will allow the secured party to recover the damages caused by the debtor’s breach, but which will also allow protection to the debt- or on a case-by-case basis. The debtor is provided a remedy in IC 1971, 26-1-9-507 and we see no reason to attach a further penalty to the creditor by declaring an automatic forfeiture of his right of a deficiency judgment.”

Resolving the same issue, the California Court of Appeal opined:

“The most natural and reasonable construction of the statutory language, in the light of the legal background, the realities of the relationships involved between secured creditors and debtors who have defaulted and their respective financial resources for engaging in litigation, all lead to the conclusion that the right to a deficiency-judgment depends on compliance with the statutory requirements concerning dispositions and notice.
“The rule and requirement are simple. If the secured creditor wishes a deficiency judgment he must obey the law. If he does not .obey the law, he may not have his deficiency judgment.
“Plaintiff in the instant case clearly failed to comply with section 9504, subdivision (3), of the Commercial Code in at least two respects. He failed to give the required notice and he failed to conduct the sale in a commercially reasonable manner. We hold this failure to be a bar to a deficiency judgment where, as here, such failure was raised as an affirmative defense.” Atlas Thrift Co. v. Horan, 27 Cal.App.3d 999, 1009, 104 Cal.Rptr. 315, 321 (1972).

We find the Indiana rule to be the better one; therefore, we adopt it and hold that the trial judge’s instruction was not errone-' ous. Our holding is limited, however, solely to the issue of whether commercially unreasonable behavior should constitute a bar to the recovery of a deficiency or whether the damages from such conduct should be set off against the total deficiency. The particular behavior in this case and the question of whether such behavior was commercially unreasonable are not presently before this Court. As we have already indicated, the full record was not designated.

IV

As previously noted, the .jury’s verdict against the guarantors provided that “. . . each pay one-third of balance due of two hundred thirty-six thousand seven hundred eighty-eight dollars and ninety-four cents.” The trial judge entered judgment against each guarantor for a third of that amount, which the jury also found to be the total amount of Valley Mining’s indebtedness to Metro on the subject notes.

The trial judge overruled Metro’s motion for judgment notwithstanding the verdict. Metro argued that the jury was attempting to apportion the damages, contrary to law, and the guaranty agreements provided that each guarantor was severally liable for the debts of Valley Mining.

Cross-appellants have not designated the testimony of witnesses which would sustain their claim that there was no evidence to support the jury verdict. The rule is that where there was evidence before the trial court which is not before us which may have influenced it in arriving at the conclusion it reached we do not disturb that finding. Eaton v. Shene, 282 Ala. 429, 212 So.2d 596 (1968); Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971). Additionally, where all the evidence is not in the record, it will be presumed that the evidence was sufficient to sustain the verdict or judgment. See, Davis v. City Federal Savings & Loan Assn., 288 Ala. 236, 259 So.2d 262 (1972).

Without a full record of the evidence before us, we are unable to find that there was no credible evidence to support the jury’s finding as to the extent of each guarantor’s liability. Rule 45, A.R.A.P.

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:
    CITY OF AUBURN, Alabama v. Charles GRADDICK, as Attorney General for the State of Alabama.
    79-491.
    Supreme Court of Alabama.
    May 9, 1980.
    Arnold W. Umbach, Jr. of Walker, Hill, Adams, Umbach & Herndon, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen., Carol Jean Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed on the pre-Peddycoart authority of State ex rel. Camp v. Herzberg, 224 Ala. 636, 141 So. 553 (1932). See, also, Yancey & Yancey Construction Co., Inc. v. DeKalb County Commission, 361 So.2d 4 (Ala.1978).

AFFIRMED.

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

BLOODWORTH, J., not sitting.

      . Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978).


author: BRADLEY, Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, a Reciprocal Interinsurance Exchange v. James T. PONS, Gary Phillip Pons, Harold Jierski, Joan Jierski and Brenda Jierski.
    Civ. 1859.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1979.
    Rehearing Denied Oct. 24, 1979.

      William B. Moore, Jr., Montgomery, for appellant.
    Jack Crenshaw, Montgomery, for appel-lees James T. Pons and Gary Phillip Pons.
   BRADLEY, Judge.

This is an appeal by the plaintiff from a declaratory judgment, requiring the plaintiff United Services Automobile Association to afford coverage to the defendant James T. Pons under an insurance policy issued by the plaintiff.

The plaintiff issued to defendant James T. Pons a policy of insurance entitled “Family Automobile Policy.” The plaintiff agreed under this policy to pay all sums which the insured should become legally obligated to pay because of bodily injury or property damage arising out of ownership, maintenance, or the use of an “owned automobile.” The plaintiff also agreed to defend any suit alleging bodily injury or property damage.

The policy in question extended coverage to several automobiles, among which was a 1967 Triumph TR-4. Testimony in the trial court indicated that the 1967 TR-4 was owned by the son, Gary Phillip Pons, and not the father, James T. Pons. The TR-4 was covered by the provisions of the “Family Automobile Policy.” The TR — 4 was subsequently destroyed in an automobile accident. Thereafter the father testified that he replaced the TR-4 with an MGB that he initially paid $525 for. The plaintiff insurance company was notified of the replacement on October 26, 1977, and the father testified that the plaintiff was aware that the son owned the MGB at this time.

On May 6, 1977 Gary Phillip Pons was involved in an automobile accident in which Brenda Jierski was a passenger. The son was on his own business at the time of the accident. Miss Jierski claimed she sustained injuries, and suits were filed against both the father and son. The plaintiff, USAA, refused to defend the named insured in the suits brought by Brenda Jierski and her parents on negligence grounds.

At the trial the son testified that at the time of the accident, May 6, 1977, he had been the owner of the MGB for four to six months. During 1977 the son was working, but was living at home with his father. The son also testified that he believed the MGB was registered in his father’s name, but the car had no tag on it and he put the tag from the TR-4 on the MGB before driving it.

The testimony in the trial court indicated that legal title to the MGB was not in the father’s name, but was in the son. The insurer’s underwriter testified that in determining coverage under the policy it was immaterial whether actual legal title to the vehicle was in the father or the son. She stated that the son was listed on the father’s policy as an operator and could therefore drive the vehicles covered by the policy. She also testified that the MGB would be covered by the policy if it was bought as a replacement for the TR-4. Testimony by the father also revealed that the annual premium on the insurance policy was increased for the accident involving the MGB.

The trial court held that the vehicle was an “owned automobile” and thus covered by the policy if the vehicle was listed as an insured vehicle and a premium was collected. The court determined that the MGB replaced the TR-4 and became an “owned automobile” under the policy, and the evidence supports a finding that the father bought the MGB as a replacement for the TR-4. The trial court further held that the plaintiff had breached its insurance agreement by refusing to defend the insured and found that plaintiff was obligated to pay any judgment rendered against either James T. or Gary Phillip Pons. The court also gave judgment in the amount of $1,500 as damages for the breach of the agreement to defend the above mentioned litigation. From that judgment USAA appeals.

Plaintiff says that it rightfully refused to defend James T. and Gary Phillip Pons in the action filed against them by the Jierskis because James T. Pons had no insurable interest in the son’s automobile which was involved in the accident with the Jierskis. Further, the automobile owned by the son which was involved in the accident was not covered by the liability policy in question because the automobile was not an “owned automobile” within the meaning of the policy.

Defendant Pons says that the automobile owned by the son and involved in the accident above mentioned was an “owned automobile” within the meaning of the policy and therefore plaintiff had a contractual duty to defend him in the action filed by the Jierskis.

The pertinent provisions of the policy are as follows:

“owned automobile” means
(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded,
(b) a trailer owned by the named insured,
(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an owned automobile as defined in (a) above, or
(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile

A recent Alabama Supreme Court case, Hartford Insurance Group v. State Farm Mutual Automobile Insurance Company, 372 So.2d 1303 (Ala.1979), involved the construction of a similar policy provision. The court held that it was of no consequence that the named insured acquired a replacement vehicle in concert with her daughter, if the evidence supported a finding that the named insured purchased the vehicle to replace a previously insured vehicle.

Nowhere in the cited case is mention made of an insurable interest. Yet in the case sub judice, the question of James T. Pons’ insurable interest in the automobile in question was made an issue in the plaintiff’s complaint and is made an issue here. Granted, the trial court did not decide specifically that Pons had an insurable interest in the MGB. Such an omission, however, does not alter the way we think the case should be decided.

A comparison of the pertinent facts in the present case with those in Hartford illustrates the following similarities between the cases: (1) the named insured was a parent of the principal operator; (2) the principal operator was an adult living at the home of his parents; (3) the insurer had adequate notice that the originally insured vehicle was being replaced by another vehicle; (4) the insurer did not offer a refund of the premium upon notice of intent to replace; (5) the policy provisions defining “owned automobile” were identical.

There are also factual dissimilarities between the two cases; however, we think these facts only create a stronger case for coverage under the before mentioned policy. In Hartford the principal operator bought the replacement vehicle with a check payable to her as well as - to the named insured, whereas in the case at bar the trial court found that the named insured purchased the replacement vehicle. In our opinion this latter fact adds support to a finding that James T. Pons, the named insured, acquired the MGB as a replacement for the previously covered TR—4. Also in Hartford the court found that the vehicle was covered under the policy as a replacement vehicle when the insurer received oral notification, whereas in the present case there is no dispute but that the insurer was notified of the replacement of the vehicle and the vehicle was placed on the policy by the insurer. Therefore, the insurer in the case at bar not only received notice but acted on such notice by listing the replacement vehicle, the MGB, on the policy. Under the above facts it would be anomalous to hold .that the insurer can collect a premium from the insured on a replacement vehicle and then be allowed to refuse to defend the insured as required by the policy.

Based upon the holding in Hartford and the above mentioned .facts, we find that there is sufficient evidence in the record to support the trial court’s finding that James T. Pons, the named insured, acquired the MGB as a replacement for the previously insured TR—4. We therefore hold that the plaintiff breached its contractual duty to defend.

The plaintiff also requests that this court set aside the $1,500 award to defendant as damages for a breach of the agreement to defend. The plaintiff argues that attorney fees may not be awarded in proceedings to determine coverage under a declaratory judgment action. The plaintiff’s argument may have some validity. However, that is not the issue here.

The trial court gave the defendant a judgment of $1,500 for damages for the breach of the contractual agreement to defend and not as attorney fees. There was evidence in the trial court which indicated that the defendant had incurred attorney fees in the amount of $1,500 resulting from his having to defend lawsuits arising out of the accident made the basis of this suit.

Section 6-6-230, Code of Alabama 1975, provides that further relief may be granted in declaratory judgment actions “whenever necessary or proper.” This authorizes a court to grant such relief as is necessary to effectuate the declaratory judgment even though such supplementary relief may consist of the granting of a money judgment in the case. Clark v. Exchange Insurance Association, 276 Ala. 334, 161 So.2d 817 (1964).

The trial court granted the defendant $1,500 in damages under its statutory authority. We find no error with such an award.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Ex parte UNITED SERVICES AUTOMOBILE ASSOCIATION, a Reciprocal Interinsurance Exchange. In re UNITED SERVICES AUTOMOBILE ASSOCIATION, etc. v. James T. PONS, Gary Phillip Pons, Harold Jierski, Joan Jierski and Brenda Jierski.
    79-101.
    Supreme Court of Alabama.
    May 9, 1980.
    James T. Upchurch, III of Rushton, Stakely; Johnston & Garrett, Montgomery, for petitioner.
    Jack Crenshaw, Montgomery, for respondents.
   JONES, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

BLOODWORTH, J., not sitting.


text:
    BAGBY ELEVATOR & ELECTRIC COMPANY, INC., a corporation v. Orlin BUZBEE, d/b/a Buzbee Contracting Company, and Balboa Insurance Company.
    Civ. 1863.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1979.
    Rehearing Denied Oct. 24, 1979.
    Ernest W. Weir, Birmingham, for appellant.
    Robert B. Huie, Birmingham, for appel-lee, Balboa Insurance Co.
   BRADLEY, Judge.

Bagby Elevator & Electric Company, Inc., a corporation, appeals from a summary judgment holding that it cannot recover attorney fees from Orlin Buzbee, d/b/a Buzbee Contracting Company, and Balboa Insurance Company. We affirm.

Bagby Elevator & Electric Company, Inc., a corporation (hereinafter referred to as “Bagby”) filed suit in the Circuit Court of Jefferson County, Alabama against two defendants for- work and labor done. Defendant, Orlin Buzbee, d/b/a Buzbee Contracting Company (hereinafter referred to as “Buzbee”) filed a plea in bankruptcy, and defendant, Balboa Insurance Company (hereinafter referred to as “Balboa”) filed a motion to dismiss for failure to state a claim under Rule 12(b)(6), ARCP. . When this motion was overruled, Balboa later filed an answer claiming the following defenses: (a) failure to state a claim; (b) improper notice under § 39-1-1, Code of-Alabama 1975; (c) denied appellant’s entitlement to attorney’s fee or interest; and (d) the statute of limitations.

A motion for summary judgment was filed by Bagby on May 26,. 1978 based on the pleadings, request for admissions of both defendants Buzbee and Balboa, the truthfulness of which was- admitted by operation of law on Buzbee’s part for failure to admit or deny the same..

The court granted Bagby partial summary judgment in the amount of the original claim of $10,170.33 on June 15, 1978, and ordered that the issue of interest and the issue of a reasonable attorney’s fee be disposed of by trial.

Balboa thereafter filed a motion for summary judgment on July 6, 1978 that Bagby was not entitled to attorney’s fee as a matter of law under § 39-1-1, Code of Alabama 1975 as the Industrial Water Board of the City of Birmingham is not a municipal corporation or a subdivision thereof, or any other government entity in which case attorney fees are allowed.

On July 10, 1978 Bagby filed a counter motion for summary judgment asking the court to grant to Bagby interest and attorney fees under § 39-1-1, Code of Alabama 1975 and simultaneously entered a denial of the averments of Balboa’s motion. The court, on July 20, 1978, overruled both motions, whereupon the remaining issues for trial were interest and attorney’s fee, which was set for trial on March 21,1979 before a jury.

Before the trial was commenced, however, both parties reasserted previously filed motions for summary judgment. The circuit court held a pre-trial hearing on the motions. The defendant Buzbee did not appear, as he had previously filed a plea in bankruptcy. On March 26, 1979 the court granted to Bagby, as a matter of law, the interest on the amount of the original claim, and granted Balboa Insurance Company’s motion for summary judgment on the question of attorney fees.

Bagby filed notice of appeal, but, thereafter, a motion was filed with this court requesting us to remand the appeal to the circuit court for the purpose of certifying the court order under Rule 54(b), ARCP. We granted the motion on May 2, 1979, and on May 8, 1979 the trial court certified the orderi Bagby subsequently filed a notice of appeal to this court.

It should be noted at this point that there is no dispute as to the factual matters leading to the lawsuit, as there was a contract between the Industrial Water Board of the City of Birmingham and Buzbee Contracting Company, the contract covering public works in furthering the distribution to the public of drinking waters and for use by industrial customers. There is no dispute that the work performed by Bagby was accomplished and in a good and workmanlike manner, nor is there a dispute that the water board is a public corporation organized under Code of Alabama 1975, § 11-50-231. Thus, the only two issues beforé the court are, first, whether the trial court erred in holding that Balboa Insurance Company was entitled to summary judgment in their favor as to the issue of attorney fees; and, second, whether the bond executed by Buzbee and issued by Balboa was furnished pursuant to the provisions of § 39-1-1, Code of Alabama 1975.

Bagby asserts that Balboa’s motion for summary judgment should not have been granted. Bagby cites us to that portion of the committee comments to Rule 56, ARCP which quote from 3 Barron & Holtzoff, Federal Practice and Procedure, § 1231 (1958), as follows:

The summary judgment procedure is not a substitute for the trial of disputed issues of fact. On a motion for summary judgment, the court cannot try issues of fact. It can only determine whether there are issues to be tried.

Bagby further noted the comment made by the committee that:

[I]f there is a scintilla of evidence supporting the position of the party against whom the motion is made, so that at a trial he would be entitled to go to the jury, summary judgment cannot be granted.

The scintilla rule in Alabama has been stated in Union Central Life Ins. Co. v. Scott, 286 Ala. 10, 236 So.2d 328 (1970):

The rule in this state is that in civil cases the question must go to the jury if the evidence or the reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the least bit, the smállest trace, a scintilla, in support of the theory of the complaint.

Bagby claims that both defendants failed to admit or deny the averments in the supplementary request for admissions, and that this is sufficient to raise a scintilla of evidence to defeat a motion for summary judgment. Although the record shows that Buzbee, who had filed a plea in bankruptcy, did not answer the request, Balboa Insurance Company did. Therefore, the only admission by failure to admit or deny is on the part of Buzbee, and not Balboa. Also Bag-by claimed in his motion' for summary judgment interest and attorney fees and thus, in effect, that there was no scintilla of evidence to require the issue to go to the jury. Yet, now, Bagby claims that on Balboa’s motion for summary judgment for attorney fees, there is a scintilla of evidence and thus the motion should have been denied.

The second issue addressed by Bagby is that he is entitled to attorney fees under § 39-1-1, Code of Alabama 1975, as well.

This Code section states:

(a) Any person, firm or corporation entering into a contract with the state or any county or municipal corporation or subdivision thereof in this state for the repair, construction or prosecution of any public buildings or public work, highways or bridges shall be required, before commencing such work, to execute a performance bond, with penalty equal to 100 percent of the amount of the contract price, and, in addition thereto, another bond with good and sufficient surety, payable to the state, county or municipal corporation or subdivision letting the contract, in an amount not less than 50 percent of the contract price, with the obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor, materials or supplies for or in the prosecution of the work provided for in such contract and for the payment of reasonable attorneys’ fees incurred by successful claimants or plaintiffs in civil actions on said bond.

However, Bagby admits in his brief and by affidavit that the Industrial Water Board of the City of Birmingham is not a subdivision of the state, county or municipal government, but is a public corporation formed pursuant to the 1975 Code of Alabama, § 11-50-231.

Bagby further asserts that since the Alabama public bonding statute was taken from the Miller Act, Tit. 40, § 270a U.S.C.A. (West), which is the federal public bonding act, that the decisions thereunder are authoritative. Bagby quotes from State v. Southern Surety Co., 221 Ala. 113, 127 So. 805 (1930) in which the Alabama Supreme Court stated:

The doctrine that a Legislature, in enacting a statute from another jurisdiction, enacts it with its authoritative interpretation, is universal and firmly established. .
. The rule is that the borrowed statute is presumed to come with its authoritative interpretation.

Bagby also quotes from Water Works, Gas & Sewer Board v. P. A. Buchanan Contracting Co., 294 Ala. 402, 318 So.2d 267 (1975) which held:

It is clear that a public works performance bond required by Tit. 50, § 16, carries with it the federal interpretation of the Miller Act.-

However, as Balboa notes, this case does not apply, as the issue in the Buchanan decision was whether a surety was liable under its performance bond for a tort claim. Also, all the parties in the decision seemed to admit that the public bonding statute applied in that case. Furthermore, as Balboa points out, it appears that the contract was with the City of Oneonta. Balboa further notes that the federal act does not apply to the portions of the Alabama act which are different from the Miller Act. This act includes any contract for the construction of any public building or- public work of the United States.

Section 270a of the Miller Act reads:

Bonds of contractors for public buildings or works; waiver of bonds covering contract performed in foreign country
(a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person .

Section 39-1-1 of the 1975 Code of Alabama reads:

(a) Any person, firm or corporation entering into a contract with the state or any county or municipal corporation or subdivision thereof in this state . . .

Therefore, it is obvious that Alabama requires the existence of a contract with the state, county, municipal corporation, or subdivision thereof. We find that the Alabama section, and not the Miller interpretation, applies in this case.

Universal Electric Construction Co. v. Robbins, 239 Ala. 105, 194 So. 194 (1940) is cited by Bagby for the proposition in reference to the Alabama bonding statute that:

There was, of course, no compulsion upon the surety to execute the bond, but it did so; and having done so, and knowing the purpose for which the bond was given, and being charged with knowledge of the law which required the bond, it, the bond must be “construed and applied as if they had complied with the law.”

However, this case does not apply to the present case, as the contract in the Robbins case was with the city itself and not with the Board. Balboa is correct in asserting that if a surety writes a bond for the city, county, state or its political subdivision, that the public bonding statute will be read into the bond and be considered a part of the bond. In the present case, the contract is with the Water Board and not the city. Therefore, this court finds that the Alabama public bonding statute will not be read into the bond issued by Balboa and executed by Buzbee. Coxe v. Water Works Board, 288 Ala. 332, 261 So.2d 12 (1972); George A. Fuller Co. v. Vulcan Materials Co., 293 Ala. 199, 301 So.2d 74 (1974).

In the case at bar the bond was written by Balboa with the Industrial Water Board as obligee. The contract between Balboa’s principal, Buzbee, and the Industrial Water Board was for the completion of additions to booster and intake pumping stations and the Board’s Sipsey system. The work was not being performed for the city. The record also does not reflect that the bond was being furnished pursuant to any bonding statute. Thus, in the absence of an agreement for the payment of attorney fees to Bagby, there is no provision for attorney fee payments to Bagby Elevator Company from any source, and this court holds Balboa is not liable for the payment of such fees. Accordingly, we find that the trial court was correct in granting summary judgment for Balboa on the issue of attorney fees. Consequently, the judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.