text:
    Phenix Girard BANK v. M. Olease CANNON.
    81-294.
    Supreme Court of Alabama.
    April 30, 1982.
    Rehearing Denied May 28, 1982.
    L. Joel Collins of Smith, Smith & Collins, Phenix City, for appellant.
    James M. Ivins of Cornett, Perdue & Iv-ins, Phenix City, for appellee.
   FAULKNER, Justice.

This is an action by Phenix Girard Bank against M. Olease Cannon to recover a debt due under a promissory note. The jury rendered a verdict in favor of Cannon. We reverse and remand.

Slocumb & Cannon, Inc. was a corporation in the business of selling various appliances. The corporation had been doing business for over twenty years. Slocumb & Cannon, Inc. carried on banking activities with Phenix Girard Bank for most of that period.

Until 1977, the Bank often financed Slo-cumb & Cannon, Inc.’s accounts receivable, using a factoring arrangement. The Bank purchased an account at a discounted rate and then became responsible for collecting on the account from the debtor. In 1977, the Bank ceased financing the corporation’s accounts receivable. The record does not disclose any reason for the cessation.

Mr. Slocumb generally handled the corporation’s financial affairs. But Mr. Slocumb became ill and Mr. Cannon became responsible for most of the corporation’s business matters.

The corporation began experiencing severe financial difficulty, and ultimately filed a petition for bankruptcy in 1980. The corporation owed a ninety day promissory note for $60,000. When the note became due, the Bank, knowing of the corporation’s financial difficulty, required the note to be converted to an installment loan. The Bank requested financial statements of both the corporation and Mr. Cannon. At that time, Mr. Cannon told an officer of the Bank that he doubted the corporation could make the payments. The Bank’s officer testified that because of the financial insecurity of the corporation, it was his intent to have Mr. Cannon join as a maker of the loan. Mr. Tomblin, a bank employee, stated that the Bank generally required an officer or owner of a closely held corporation to be personally liable for the corporation’s debt.

On August 25, 1978, a note was executed which was signed as follows:

“Slocumb & Cannon
“By: M. O. Cannon
(Debtor)
“M. O. Cannon (Debtor)”

The note did not identify the debtor in any other place in the note.

Mr. Cannon testified that he did not intend to be personally liable on the note. Mr. Cannon also testified that the Bank’s employees never discussed the issue of whether he would be personally liable on the note. The Bank’s employees merely told Mr. Cannon where to sign the note.

After Slocumb & Cannon, Inc. filed bankruptcy, Phenix Girard Bank brought an action against Mr. Cannon for the unpaid balance of the note. Mr. Cannon brought a counterclaim for fraud. The trial judge granted the Bank’s motion for a directed verdict on Cannon’s counterclaim. The judge submitted to the jury the issue of whether Mr. Cannon was personally liable on the debt. The jury rendered a verdict in favor of Mr. Cannon. The Bank appeals.

This Court is again faced with the issue of whether an agent signed in a representative capacity or whether the agent is to be held liable on an instrument. Section 7-3-403(2) provides that a representative who signs his own name to an instrument is personally liable if the instrument “names the person represented, but does not show that the representative signed in a representative capacity.”

Parol evidence is admissible, between the immediate parties, to disestablish the signer’s liability on the note in the situation described above. Code 1975, § 7-3 — 403(2)(b); Wurzburg Brothers, Inc. v. Coleman, 404 So.2d 334 (Ala.1981).

Nevertheless, parol evidence is not admissible in the present case to vary the terms of the note dated August 28, 1978. The signature included the name of the corporation, Slocumb & Cannon, and Mr. Cannon signed “By: M. O. Cannon.” Then Mr. Cannon signed again. This second signature neither names the person represented nor shows that Mr. Cannon signed in a representative capacity. New York Financial, Inc. v. J & W Holding Co., 396 So.2d 802 (Fla.App.1981). See Southern National Bank of North Carolina v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518 (1976).

Parol evidence is not admissible under § 7-3-403(2)(a) if the instrument neither “names the person represented nor shows that the representative signed in a representative capacity.” See § 7-3-403, Official Comment 3; Wurzburg Brothers, Inc. v. Coleman, 404 So.2d at 335. Thus, the trial court erred in failing to direct a verdict or grant a judgment notwithstanding the verdict on the loan.

In order to avoid personal liability on an instrument, the agent should (1) name the organization represented; (2) sign his or her name and office; and (3) make the name of the agent and principal refer to each other so that a reasonable person could understand from the face of the instrument that the agent signed as a representative. Havatampa Corp. v. Walton Drug Co., 354 So.2d 1235 (Fla.App.1978).

The Official Comments to § 7-3-403 clearly provide an example of an unambiguous way to make an agent’s representation clear. “Assuming that Peter Pringle is a principal and Arthur Adams is his agent,” Adams should sign an instrument “Peter Pringle by Arthur Adams, Agent.” An agent may easily indicate his representative capacity by signing in the manner prescribed above.

The Bank also raised the issue of the propriety of admitting evidence of its offset of certain accounts and contract rights against a note that was not in dispute. Since we are granting the Bank the relief it seeks, it is not necessary to address this issue.

The judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte The SAND MOUNTAIN BANK. (In re ALBERTVILLE NATIONAL BANK, a National Banking Association, and First State Bank of Albertville, a State Banking Association v. The SAND MOUNTAIN BANK, a State Banking Association).
    81-501.
    Supreme Court of Alabama.
    May 21, 1982.

      F. J. Allen, II, Boaz, for petitioner.
    Charles R. Hare, Jr. of Gullahorn & Hare, Albertville, for respondents.
   MADDOX, Justice.

This petition for mandamus presents this question: Is the State Superintendent of Banks an indispensable party in a declaratory judgment action wherein two local banks, located in Albertville, seek to determine whether a bank, located in Boaz, can continue to operate an automatic teller in a grocery store which is located within the corporate limits of Albertville, in view of a local act which prohibits branch banking.

The facts are as follows: On October 1, 1980, plaintiffs, Albertville National Bank and First State Bank of Albertville filed an action against the Sand Mountain Bank in which they alleged as follows:

1. That Albertville National Bank and First State Bank of Albertville conducted banking businesses in Albertville, Marshall County, Alabama, and that neither maintained or operated any branch banks outside the corporate limits of the City of Albertville.

2. That The Sand Mountain Bank had its principal place of business within the corporate limits of the city of Boaz, Marshall County, Alabama.

3. That, in June, 1980, The Sand Mountain Bank installed an automated teller machine and night depository in the Food World Grocery Store on U.S. Highway 431, within the corporate limits of the City of Albertville, and since the installation of the automatic teller, that The Sand Mountain Bank had continually operated the facility in the grocery store and had continually operated a courier service to that location.

4. That The Sand Mountain Bank’s automated teller machine which was located at the Food World Grocery Store was a “branch bank, branch office, branch agency, additional office, or branch place of business, for the receipt of deposits, payment of checks and conduct of a general banking business” within the meaning of Act No. 303 of the Acts of Alabama of 1973, which prohibits the establishment, maintenance and operation of a branch bank within any incorporated municipality in Marshall County, other than the municipality in which a bank’s principal place of business is situated.

Albertville National Bank and First State Bank of Albertville, in their action against The Sand Mountain Bank, asked the circuit court to interpret and construe Act No. 303 of the Acts of Alabama of 1973 to prohibit the operation by The Sand Mountain Bank of an automated teller machine in the Food World Grocery Store located in Albertville. On September 9, 1981, the defendant, The Sand Mountain Bank, filed a “motion to dismiss for failure to join indispensable party and for transfer of venue.” It asked the court to dismiss the action because the plaintiffs had failed to join Kenneth R. McCartha, Superintendent of Banks of the State of Alabama, as a party defendant to the action. The Sand Mountain Bank also asked the court to transfer the action to the Circuit Court of Montgomery County, Alabama, for final disposition. In its motion to dismiss for failure to join an indispensable party, The Sand Mountain Bank contended that regulations which were promulgated by the State Banking Department specially permitted the operation of automated teller machines such as the machine which it operated in the Food World Grocery Store in Albertville. The Sand Mountain Bank contended that it had applied for and received permission from the State Banking Department to operate the automated teller machine in the Food World Grocery Store in Albertville and that “the interest of the Superintendent of Banks of the State of Alabama and the subject matter of this action are such that if this Court were to grant the relief demanded by plaintiffs, it would have the effect of overruling [Electronic Fund Transfer] regulations [promulgated by] the State Banking Department and the authority of the Superintendent of Banks to act under them without the Superintendent of Banks having the opportunity to defend or justify those regulations in this action.” The trial judge denied the motion of The Sand Mountain Bank to dismiss the action for failure to join an indispensable party on October 12, 1981. On November 9, 1981, The Sand Mountain Bank filed a motion for reconsideration, which the trial court denied on December 7, 1981. On December 8, 1981, William D. Jetton, Circuit Judge, who is the respondent in this petition for mandamus, issued a certificate in which he certified that his order denying The Sand Mountain Bank’s motion to dismiss the action on the ground that the plaintiffs had failed to join an indispensable party involved a controlling question of law as to which there was a substantial ground for differences of opinion and that an immediate appeal from the order would materially advance the ultimate determination of the litigation, and that an appeal would avoid protractive and expensive litigation. Subsequently, The Sand Mountain Bank sought to appeal the action of the trial judge under the provisions of Rule 5(d), A.R.A.P. This Court, on the 19th day of January, 1982, denied the petition of The Sand Mountain Bank for permission to appeal from the interlocutory order entered by Circuit Judge Jetton on December 7, 1981.

On March 18, 1982, The Sand Mountain Bank filed this petition for writ of mandamus and asked that we order the trial judge to dismiss the declaratory judgment action on the ground that the plaintiffs had failed to join an indispensable party.

This Court ordered the respondents, William D. Jetton, as Circuit Judge of the Twenty-Seventh Judicial Circuit, Marshall County, Alabama, and Albertville National Bank and First State Bank of Albertville to answer The Sand Mountain Bank’s petition for writ of mandamus, and the respondents have now filed their answers.

The parties are in agreement that the issue presented is re viewable by mandamus; therefore, we need only to address the question whether the State Superintendent of Banks is an indispensable party to this litigation.

To answer this question, we necessarily must determine whether, in the absence of the Superintendent of Banks as a party, “complete relief cannot be accorded among those already parties.” Rule 19, A.R.C.P.

We have found one case in the federal system wherein a similar question was presented. That case is Suburban Trust Company v. National Bank of Westfield, 211 F.Supp. 694 (D.N.J.1962), and it involved a question very similar to the one here, that is, whether the comptroller of the currency was an indispensable party in a case involving a question of branch banking. There, the Court held:

“Suburban prays that this Court adjudge that the operation of defendant’s banking facility in Mountainside ‘is improper and any order or approval permitting the same is invalid.’ The reference in the quoted prayer to an approval of the defendant’s banking activities in Mountainside relates to the allegation in the complaint that the Comptroller of the Currency approved defendant’s application for permission to establish a branch banking office in Mountainside. One whose conduct is drawn in question, whether he be an individual or an official, may be made a party to the litigation. F.R.C.P. 21.
“The plaintiffs contend that the Comptroller’s approval lacks statutory support because the language of New Jersey statute precludes the opening of a branch in Mountainside by National. The Comptroller clearly has a visitorial and supervisory function over National banks. His approval of certain contemplated acts by such banks is expressly required. However, the limitations on branch banking by National banks are statutory, and if they stand in the way of opening a particular branch, the approval of the Comptroller cannot override the statute. Because, therefore, the question presented in the present cases is the single one of whether the National bank was entitled to establish and operate a branch bank in Mountainside, even with the approval of the Comptroller, the Comptroller is clearly not an indispensable party, because the fact of his approval becomes irrelevant and immaterial to the question presented. Johnson v. Kirkland, 5 Cir. 1961, 290 F.2d 440, 445.
“The Comptroller’s interest is not such that a final decree cannot be entered without affecting him. See State of Washington v. United States, 9 Cir. 1936, 87 F.2d 421.”

We believe that a final decree can be rendered in this action without the presence of the Superintendent of Banks as a party, because the Superintendent of Banks’ approval of the automatic teller to be operated by The Sand Mountain Bank in Albert-ville, if not authorized by law, cannot override the law; therefore, we are of the opinion that the petition by The Sand Mountain Bank for mandamus is due to be denied.

The result we reach here is based, in part, upon the practical consideration that the record affirmatively shows that the Superintendent of Banks is aware that his predecessor approved the operation of the automatic teller by The Sand Mountain Bank, that the pending action challenges the validity of that action by his predecessor, and that the Superintendent of Banks has not made any motion to intervene in the pending litigation or to join in the petition for mandamus filed here by The Sand Mountain Bank.

Our denial of mandamus should not be understood as expressing any opinion on the basic legal question of whether the automated teller is a branch bank; neither should this opinion be understood as holding that an administrative officer is never an indispensable party to litigation which might affect action taken by that administrative officer. Neither should this opinion be authority for the procedure to be followed once Act No. 81-855 becomes effective. We merely hold that the petitioner here has failed to show sufficient facts to require us to exercise our extraordinary supervisory powers to revise an order of the circuit judge.

WRIT DENIED.

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


author: ADAMS, Justice.

text:
    Dempsey BOYD and Frances S. Boyd v. Amelia Fenn BRABHAM, et al.
    80-93.
    Supreme Court of Alabama.
    May 28, 1982.

      Boyd Whigham, Clayton, for appellants.
    Jimmy S. Calton, Eufaula, for appellees.
   ADAMS, Justice.

This is an appeal from a summary judgment entered against Dempsey Boyd and Frances S. Boyd, his wife (defendants). Plaintiffs are the heirs of Matthew Fenn. They filed a complaint alleging that the one acre of land set aside as a cemetery under the will of Matthew Fenn constituted an easement on land now owned by the Boyds. Defendants, desiring to expand their business, prior to the filing of the complaint, had their agents contact plaintiff Nancy Fenn Compton in an attempt to get permission from the Fenn heirs to remove the bodies buried at the site and reinter them elsewhere. Defendants also attempted to act under authority of Code 1975, § 11-47-62, but their men disinterred several graves without complying with the notice required by the statute. The plaintiffs’ complaint asked the trial court to order the defendants to re-establish the cemetery, to reinter all the disinterred bodies into the original gravesites, and for an injunction preventing further desecration of the cemetery. Both parties moved for summary judgment. After considering the pleadings, affidavit of a plaintiff with exhibits in support thereof, and depositions of one plaintiff, one defendant, and four other witnesses, the trial court granted plaintiffs’ motion. We affirm in part, reverse in part, and remand.

Defendants have raised a number of issues for review, but the following are dis-positive:

1. Did the. trial court err in concluding that defendants’ claim for breach of warranty against Matthew Fenn’s heirs was not well taken?

2. Did the trial court err when it concluded, as a matter of law, that the doctrines of adverse possession and prescription have no application to an existing and identifiable family cemetery plot?

3. Did the trial court err when it determined that as a matter of law the cemetery had not been abandoned and thereby erroneously grant summary judgment in plaintiffs’ favor? We will separately consider these issues below.

I. Defendants’ Claim for Breach of Warranty

The evidence which was before the trial court on the motion for summary judgment indicated that a family cemetery existed on a plantation owned by Matthew Fenn, who died in 1885. Fenn’s will stated:

I desire that my body shall be decently buried at the graveyard on my plantation two miles east of Clayton in said County. It is my desire that one square acre of land including the graves of my former wife and children who have died, shall be set apart and forever dedicated to the purpose of a family graveyard with rights of way to and from same.

There was no final disposition of the plantation under the will, so the property passed in undivided equal shares to Fenn’s sixteen surviving children; eight the children of his first wife, Matilda, and eight the children of his second wife, Martha. The evidence further indicated that the shares belonging to the children of Matilda were conveyed by deed within the family until in 1922, those shares all belonged to Matthew Homer Fenn. None of these deeds showed a reservation of any kirid for a family cemetery. The day after the trial court granted summary judgment defendants filed exhibits purporting to indicate that Matthew Homer Fenn owned the entire property in 1922. They claim that the failure of these deeds to recite a reservation resulted in a breach of general warranty or warranty for quiet enjoyment which passed to him as a subsequent grantee. Assuming defendants are right in claiming that the entire interest in the property was held by Matthew Homer Fenn in 1922, the defendants cannot prevail on this issue because they did not derive their title from Matthew Homer Fenn.

The defendants do not claim their title by virtue of any conveyance from Matthew Homer Fenn or the heirs of Matthew Fenn. The defendants’ chain of title is as follows. On February 11, 1927, the subject property was sold by foreclosure deed, without warranty, to E. E. Kennedy and wife. The Kennedys subsequently sold the property to W. N. Boyd and his wife Elina Boyd by warranty deed on January 2,1950. At deposition, defendant Boyd testified, without elaboration, that he obtained title to the property from his father W. N. Boyd.

But, the evidence is without dispute that the foreclosure proceedings and the auctioneer’s deed given pursuant thereto, were all based on a mortgage which had been fully satisfied prior to foreclosure. A satisfied mortgage is void. As noted in Richardson v. Stephens, 122 Ala. 301 at 307, 25 So. 39 (1899): “The mortgage being void conferred no rights upon the mortgagee or upon the appellant as the purchaser thereunder.” Assuming, without deciding, that the mortgage purported to be foreclosed was properly given by the Fenn heirs, defendants obtained no claim of breach of general warranty or warranty for quiet enjoyment therefrom because a satisfied mortgage cannot possibly forge a valid link in the chain of title from the Fenns to the Boyds. For this reason, we affirm the trial court’s judgment disallowing defendants’ breach of warranty claim. We are aware that the trial court denied defendants’ claim on another basis, but if the trial court reaches the correct result, it is immaterial that the wrong reason may have been given. Bank of the Southeast v. Koslin, 380 So.2d 826 (Ala.1980).

II. Adverse Possession and Prescription

Next, we consider whether the trial court correctly concluded that the doctrines of adverse possession and prescription did not apply to an existing and identifiable family cemetery plot. Defendants claim title to the disputed one-acre area by deed, by adverse possession, and by prescription. Plaintiffs urge that we adopt the law of Oklahoma as set forth in Heiligman v. Chambers, 338 P.2d 144 (Okla.1959).

It is this Court’s opinion that Heilig-man already has been adopted in Alabama for determining the nature of the estate in, or the title to, a private cemetery. In Al- dridge v. Puckett, 291 Ala. 104 at 106, 278 So.2d 364 at 366 (1973), this Court quoted Heiligman, stating:

We believe that Alabama has inferentially followed the rule laid down in Heiligman v. Chambers, 338 P.2d 144 (Okl.), 75 A.L.R.2d 583 (1959), as follows:

When a family burial plot is established, it creates an easement against the fee, and while the naked legal title will pass, it passes subject to the easement created. The easement is in favor of the person creating or establishing the burial plot and the right inherent in such person descends to his heirs. The easement and rights created thereunder survive until the plot is abandoned either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority. [Citations omitted.]

We reaffirm that the above-quoted paragraph from Heiligman is a correct statement of Alabama law.

In Aldridge, supra, a one-acre family cemetery had been reserved in a deed dated 1911. A small portion of the acre actually contained gravesites. Defendant Aldridge, whose chain of title nowhere showed any reservation for a cemetery, claimed ownership in the unused portion (approximately two-thirds) of the one-acre cemetery by adverse user. In that case this Court held, based on its construction of Alabama law as expressed in Heiligman, that under the facts presented, an easement in the one-acre tract was reserved and that the easement and rights to the entire one-acre tract created under the 1911 deed survived.

In the case now before us, the cemetery was in existence at the time of the testator’s death, and “set apart” in his will. “The owner of the freehold may devote a part of his premises to the burial of his family or friends. It is but a just exercise of his dominion over his own property.” Kingsbury v. Flowers, 65 Ala. 479 at 485 (1880). We construe the language of the will, that the one acre be “set apart and forever dedicated to the purpose of a family graveyard,” as creating an easement in the one acre, which could only be extinguished by abandonment “either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority,” and not by adverse possession or prescription. Thus, we affirm the trial court on this issue.

III. Abandonment

Defendants contend that the trial court erroneously granted summary judgment against them. In Ray v. Montgomery, 399 So.2d 230 at 232 (Ala.1980), this Court stated:

Summary judgment shall be rendered if the pleadings, depositions, interrogatory answers, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), ARCP. The burden of proof is on the movant to establish the absence of any issue of a material fact. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

The scintilla rule of evidence applies in deciding if the movant is entitled to a summary judgment. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979).

In pertinent part, Rule .56(e), A.R.C.P., states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

But, this Court has held:

If there is testimony in his deposition which would contradict the facts as set out in the other testimony, then the failure of the plaintiff to offer counteraffi-davits or testimony would be of no consequence since repetition of the same facts in a counteraffidavit would be a useless act. Powell v. United States Steel Corp., 305 F.Supp. 645 (S.D.W.Va.1969).

Donald v. City National Bank of Dothan, 295 Ala. 320 at 323, 329 So.2d 92 at 94 (1976); See also Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 (Ala.1981).

Defendants claim that the trial court improperly decided questions of fact when it concluded, as a matter of law, that the cemetery had not been abandoned. The trial court based its decision on the definition of abandonment found in Heiligman, and plaintiffs urge that we adopt that definition.

Regarding abandonment, the Oklahoma Supreme Court states:

[W]e are inclined to follow the states holding that disuse, failure to cut grass or care for the graves and headstones do not constitute abandonment, for the purpose of maintaining the burial plot,' but if followed by removal of the bodies therein, such use will be deemed abandoned.

Heiligman v. Chambers, 338 P.2d at 148.

This Court also is inclined to follow the above-quoted rule and adopt it for the purposes of Alabama law. However, within the definition there appears to be room for issues of material fact. It is stated in An-not. 75 A.L.R.2d 591 at 598 (1961):

However, it has been pointed out that even in jurisdictions which recognize the general rule that a cemetery is not abandoned as long as there are bodies there, if interments have not been made for a long time, and cannot be made, and in addition the public and those interested in its use have failed to keep and preserve it as a burial place, and have permitted it to be thrown out to commons, the graves to be worn away, and the gravestones and monuments destroyed so that the graves have lost their identity, or if it has been so treated or neglected by the public as entirely to lose its identity as a graveyard, and is no longer known, recognized, and respected by the public as such, it may be considered abandoned. [Footnote omitted.]

Although depositions indicate that both parties knew that there was a cemetery, the actual condition of the cemetery, whether the identity of the cemetery had in fact been destroyed, and whether the cemetery was recognizable and known to the general public, appear to be matters going to the question of abandonment. The deposition of plaintiff Nancy Fenn Compton reflects the following:

A. Well the graves — were recognizable if you knew the graves were there
Q. ... what made it recognizable to a passerby as a cemetery?
A. Well, I don’t know that anybody that wasn’t interested in it would even know ....
Q. And you say that the boundaries were defined. Would you tell me how the boundaries ....
A. (Interposing) Because of the little knoll. How it had been previously graded off. Now, the square acre was not, no. No boundaries there.

Witness Luke Hutto’s deposition contained the following:

Q. Now, you indicated this particular area seemed to be overgrown and everything sort of a thicket. Is that what it would be?
A. Well, it was just woods. I mean it was just part of the woods. You couldn’t determine it no more than the rest of the woods; but, it was kind of in the edge of the woods so it had a lot more brush and stuff in this regular area than it would be on down in the— I’m saying it is a little thicker because I guess brush and stuff don’t grow as well down in the woods where it don’t get sunlight. But, anyway, yes, it was thick.

Lee McCall in her deposition was posed, and responded to, this question:

Q. Could you tell that there was a cemetery there?
A. No, you couldn’t tell nothing until you got the brush off of it.

Viewing the evidence in a light most favorable to defendants, we are unable to say that there was not a scintilla of evidence from which a jury might reasonably determine that the cemetery had been abandoned. Therefore, the trial court erred in granting summary judgment in plaintiff’s favor.

IV. Conclusion

■ For all of the foregoing reasons, we find it necessary to reverse the judgment of the trial court and remand this case for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

EMBRY, J., concurs as to parts I & II and concurs in the result as to part III.

      . This section provides the notice requirements to be met by one proceeding under Code 1975, § 11-47-60, et seq., to declare a cemetery abandoned and remove the remains interred in it.


author: EMBRY, Justice.

text:
    Marjorie Grice VAN METER, et al. v. Mary Y. GRICE.
    80-332.
    Supreme Court of Alabama.
    May 28, 1982.
    J. Connor Owens, Jr. of Owens & Simpson, Bay Minette, for appellants.
    T. M. Brantley, Bay Minette, for appellee.
   EMBRY, Justice.

This is an appeal from a final judgment quieting title to real property in Mary Y. Grice in an action brought by her against Marjorie Grice Van Meter and others through statutory in rem proceedings provided for in Code 1975, § 6-6-560, et seq.

The public battle over title to these lands began, of record, in 1955. See Grice v. Taylor, 273 Ala. 591, 143 So.2d 447 (1962). The battle was renewed when this action was filed in 1974. It was tried to judgment, appeal taken to this court, and by it affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinion so ordering. Van Meter v. Grice, 380 So.2d 274 (Ala.1980). This appeal is from the judgment entered below after proceedings on remand. We affirm.

The thorough, specific and articulate recitation of facts and discussion of applicable principles of law by Justice Jones in that opinion makes it unnecessary for us to burden this opinion with any attempt to further elucidate either.

The. pertinent portions of the judgment here under consideration read:

“The Appellate Court remanded this cause to have the trial court determine whether equitable estoppel should prevent Mary Y. Grice from claiming the entire title to the lands in litigation.
“The Appellate Court asks:
“ ‘Are there other equitable considerations that will create title in the Defendants resulting from trust and confidence and continued possession by Mary Y. Grice in such a manner as to lull the Defendants into a false sense of security?’
“This cause having come before the Court and testimony having been taken ore tenus both at the first trial in this cause and taken upon remand of this cause, the Court makes the following findings of fact:
“1. Before the death of Charles Dudley Grice and continuously thereafter, Mary Y. Grice claimed the whole title to the land.
“2. Mary Y. Grice brought her claim of sole ownership to the Defendants’ attention.
“3. She did nothing that would lull defendants into a sense of false security.
“4. The relationship of trust and confidence was broken by Mary Y. Grice’s actions and her statements to the Defendants.
“5. After she made her claim to whole property, the Defendants remained passive until this suit was filed.
“This Court’s answer to the aforesaid question is: ‘No’. It is therefore;
“ORDERED, ADJUDGED and DECREED as follows:
“1. The defendants had no title in the East half of the Northwest quarter of the Section 10, Township 3 South, Range 2 East, and none was ever created for them by Mary Y. Grice.
“2. Mary Y. Grice is not equitably es-topped from claiming the title to this land against the other Grice heirs.
“3. The title to the East half of the Northwest quarter of Section 10, Township 3 South, Range 2 East, in Baldwin County, Alabama, is now quieted in Mary Y. Grice. It is further;
“ORDERED, ADJUDGED and DECREED that the costs of these proceedings shall remain the same as set out in the final judgment entered in this cause in August 1978, except that the cost of the proceedings on remand be taxed against Mary Y. Grice.”

The judgment below, entered after ore tenus trial, is attacked essentially upon the bases that there is insufficient evidence to support it, it is contrary to the great weight of the evidence, or it is erroneous as a matter of law. More particularly, appellants say, there were equitable considerations creating title in them resulting from the trust and confidence placed in C. D. Grice and Mary Grice by them; there was sufficient evidence to justify imposing a constructive trust in favor of appellants; and, as a matter of fact and law, appellants either had an interest in the property or an interest was created in it in their behalf by Mary Grice. We find no merit in these contentions.

The dispositive issue on this appeal is whether, under the ore tenus rule, the judgment below is due to be affirmed.

The trial court correctly stated the issue for its determination on remand under the mandate of this court: whether equitable estoppel should prevent Mary Y. Grice from claiming the entire title to the lands in litigation. It was so stated, as noted, in the final judgment with which this appeal is concerned and after adducing additional evidence, ore tenus. This additional testimony was presented by the litigants in support of their respective contentions regarding the issue mandated to be resolved. A careful examination of the additional evidence shows that, although it might be said to be in conflict, its tendencies substantially favor the contentions of appellee Grice; that evidence, without question, fully supports the findings and conclusions of the trial court. This being true, there is no need to cite authority for the rule that the judgment, the action having been tried without a jury, is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Rosalie McKINNEY, et al. v. ALABAMA POWER CO., et al.
    81-123.
    Supreme Court of Alabama.
    May 28, 1982.
    Edward L. Hardin, Jr., Birmingham, and Nomberg, McCabe & Fulford, Daleville, for appellants.
    James H. Miller, III, of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellees.
   FAULKNER, Justice.

In this personal injury and property damage action arising out of an automobile-truck collision, the jury returned a verdict for the defendants/appellees and the trial court rendered judgment thereon. Plaintiffs/appellants appeal from the trial court’s denial of their motion for new trial. We affirm.

On May 13, 1979, Rosalie McKinney was driving her car east on U. S. Highway 84 near Avon, Alabama, a small town near Dothan. Her son Mark Lewis McKinney and two other passengers, not parties to this appeal, were also in the car. Preparing to turn into the driveway of her passengers’ house, Mrs. McKinney gave a left turn signal, slowed, and stopped to wait for oncoming traffic to clear. She looked in her rearview mirror and saw a car approaching, looked ahead again, and then noticed the car coming around her on the right on the shoulder of the road. She looked back in the rearview mirror and saw the truck driven by defendant Ronald Parker Hyde skidding towards her. Unable to stop, the truck smashed into the back of her car.

The disputed issues at trial were whether Hyde was operating his vehicle in a negligent manner or not and the extent of Mrs. McKinney’s and Mark’s injuries. On the negligence issue we note initially that proof of an accident and injury is not sufficient to prove negligence. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970); Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Marshall Durbin Co., Inc. v. Hartley, 392 So.2d 240 (Ala.Civ.App.1980).. Hyde testified that the car between him and Mrs. McKinney swerved around her so suddenly that he did not have time to stop once he saw her. His wheels locked when he slammed on his brakes, so he could not avoid her on the right as the other car had done.

The Court gave defendants’ requested jury instructions pertaining to the sudden emergency doctrine which imposes a standard of care appropriate to the circumstances (see the cases cited infra). The McKinneys contend this was error because the “emergency” was a result of Hyde’s inattention or speeding. The conflicting evidence on Hyde’s conduct created a jury question. The instructions specified that the doctrine applies only where a person is faced with a sudden emergency “without fault of his own” and that the jury is to decide whether the doctrine applies. Therefore, the giving of the instruction was not error. Williams v. Worthington, 386 So.2d 408 (Ala.1980); Miller v. Dacovich, 355 So.2d 1109 (Ala.1978); Gleichert v. Stephens, 291 Ala. 347, 280 So.2d 776 (1973); Rollins v. Handley, 403 So.2d, 914 (Ala.Civ. App.1980).

Furthermore, the testimony as to Mrs. McKinney’s injuries raised a question for the jury. Two of her doctors testified that her cervical strain from the accident was mild, showed no objective sign of injury, and should not be permanent; that the pain she experienced could also have been caused or contributed to by a pre-existing degenerative joint disease, a prior injury in a similar accident, and job-related stress. Although the damage to her car was uncon-troverted, her valuation of the damage was cast into doubt by cross-examination; we do not see fit to reverse and remand the case on this aspect in light of the controversy over Hyde’s alleged fault.

On the whole, therefore, this is a case where the presumption in favor of a jury verdict, strengthened by the trial court’s denial of a motion for a new trial, compels us to affirm. Goodson v. Elba Baking Co., 408 So.2d 498 (Ala.1981); Hill v. Cherry, 379 So.2d 590 (Ala.1980).

The judgment below is affirmed.

AFFIRMED.

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

      . Subsequent to the accidents, but before trial, Mrs. McKinney married Gary Holmes; however, we shall refer to her as Mrs. McKinney for consistency and clarity.

      . For the companion case in this matter, see Preston v. Alabama Power Company, 401 So.2d 107 (Ala.Civ.App.1981).


author: ALMON, Justice.

text:
    Ex parte Dorothy Mae SCOTT (In re Dorothy Mae SCOTT v. Martin L. LANE, et al.)
    81-506.
    Supreme Court of Alabama.
    May 28, 1982.

      Douglas Inge Johnstone, Mobile, for petitioner.
    Bert S. Nettles of Nettles, Barker & Ja-necky, and Frank B. McRight of McRight, Rowe & Stewart, Mobile, for respondents.
   ALMON, Justice.

Dorothy Mae Scott petitions this Court for a writ of mandamus to compel the Honorable Elwood L. Hogan, Judge of the Circuit Court of Mobile County, to vacate a protective order issued by him and to allow the petitioner to proceed under the rules of discovery.

This controversy arose from a suit filed by petitioner on August 14, 1980, against the other respondents herein, for the wrongful termination of her employment. On February 13,1981, the trial judge issued a protective order staying the taking of depositions. On March 11, 1981, the trial judge granted a motion to dismiss the petitioner’s complaint on the ground that it failed to state a claim upon which relief could be granted. This latter decision was reversed on appeal. Scott v. Lane, 409 So.2d 791 (Ala.1982). After remand, the petitioner, for the second time, noticed the taking of depositions of the defendants, who are the other respondents in the instant proceeding. On March 10, 1982, the trial judge again granted a protective order.

The answer to the petition for mandamus contains the following:

“A. These Respondents admit that on March 10,1982, the trial judge entered an order temporarily staying discovery until after the trials of Ikner v. Doctors Hospital of Mobile, et al., Mobile County Circuit Court Action No. CV-79-000333 (“Ikner”), scheduled for May 3, 1982, before the same trial judge who entered the protective order herein, and Hodge v. Lane, et al., Mobile County Circuit Court Action No. CV-79-001289 (“Hodge”), scheduled for June 14,1982, OR until July 1, 1982, whichever occurs first.
“B. These Respondents aver that the trial of this Dorothy Scott case is not yet scheduled and will not be set before the fall of 1982, at the earliest, and, hence, the temporary stay of discovery was without prejudice to the petitioner Dorothy Scott.
“C. These Respondents aver that the Ik-ner and Hodge cases are multi-million dollar malpractice actions against the Petitioner, these Respondents and others, alleging brain damage, resultant coma and eventual death to Deborah K. Ikner and David Arthur Hodge, Sr., as an alleged result of improperly administered anesthesia by Petitioner, then a nurse anesthetist employed by these Respondents.
“D. More especially, these Respondents aver that on November 3, 1978, during routine surgery, Mrs. Ikner suffered brain damage, resulting in a coma from which she never emerged and which eventually resulted in her death on January 26, 1981, all allegedly as a result of improperly administered anesthesia by Petitioner; that on March 2, 1979 (4 months after the calamitous Ikner surgery), during routine surgery Mr. Hodge suffered brain damage, resulting in a coma from which he never fully emerged and which eventually resulted in his death on December 3, 1979, all allegedly as a result of improperly administered anesthesia by Petitioner; and that on March 9, 1979 (6[sic] days after the second calamity), the Petitioner’s employment with these Respondents was terminated.
“E. These Respondents aver that the termination of Petitioner’s employment was lawful and proper.
“F. These Respondents aver, and the trial judge so found in his protective order of March 10,1982, that they would be unnecessarily and unduly prejudiced by allowing Petitioner to proceed with discovery on the eve of these multi-million dollar Ikner and Hodge malpractice actions scheduled for trial on May 3, 1982, and on June 14,1982, respectively, particularly since the trial of this action by Petitioner will not be reached until fall, 1982, at the earliest.
“G. These Respondents aver that Petitioner will have ample time for discovery in her action subsequent to the anticipated trials or other resolutions of the pending Ikner and Hodge malpractice actions.”

Petitioner’s response to the answer is that the evidence she seeks is relevant, necessary and not privileged. Respondents’ claim that discovery in the instant case would have harmful side effects in the two malpractice cases pending against them is not a sufficient showing to entitle them to the protective order. Petitioner further states that the mere fact that the respondents anticipated some difficulty in defending both suits is not an undue burden upon them as contemplated by Rule 26(c), A.R. C.P.

Recognizing that the right to discovery is not unlimited and the trial court has broad powers to control discovery to prevent its abuse, nevertheless, the party who seeks a protective order has the burden of showing good cause why discovery should not be had.

“Thus, to be entitled to a protective order, a movant must either show good cause why the objected-to deposition or production of documents would be unduly burdensome or expensive, oppressive, embarrassing or annoying, or that the subject matter sought to be discovered is privileged. The record before us is totally without ‘good cause shown.’ Therefore, because the material sought is un-disputably otherwise within the scope authorized above, it is discoverable unless it is ‘privileged.’ ”

Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).

There are no assertions in the motions for a protective order that would amount to a showing of good cause. In essence the defendants claim: (1) there are two other proceedings pending in which the same or similar issues may be involved; (2) the present action will not be brought to trial for a long time anyway; and (3) they would be unduly prejudiced in the other two actions by allowing discovery in this action. While undue prejudice was alleged, it was not proven. Mere difficulty in developing trial strategy is insufficient. We do not think these assertions indicate annoyance, embarrassment or oppression or show undue burden or expense as required by Rule 26(c), A.R.C.P. Hence, to grant a protective order on the grounds asserted by the defendants is an abuse of discretion.

Due to the similarity of the Alabama and Federal Rules of Civil Procedure, a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules. Ex parte Rice, 265 Ala. 454, 92 So.2d 16 (1957). See also, Ex parte Huguley Water System, 282 Ala. 633, 213 So.2d 799 (1968); and Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963).

In Salter v. Upjohn Company, 593 F.2d 649 (5th Cir. 1979), the trial judge denied the plaintiff’s request to depose the president of Upjohn Company. The Fifth Circuit, in reviewing the trial judge’s decision stated:

“It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error. See 4 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 26.69 (3d ed. 1976); 8 C. Wright & A. Miller, Federal Practice & Procedure § 2037 (1970).”

4 J. Moore, Moore’s Federal Practice ¶ 26.69 (2d ed. 1982) provides:

“In view of the general philosophy of full discovery of relevant facts and the broad statement of scope in Rule 26, and in view of the power of the court under Rules 26(c) and 30(d) to control the details of time, place, scope, and financing for the protection of the deponents and parties, it is fairly rare that it will be ordered that a deposition not be taken at all. All motions under these subpara-graphs of the rule must be supported by ‘good cause’ and a strong showing is required before a party will be denied entirely the right to take a deposition.”

Here, not only has there been a denial of the taking of a deposition, but the denial of discovery altogether or at least a total postponement. There may be instances where the complete denial of discovery is justified, but based on the record before us, this is not such a case.

WRIT GRANTED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Thomas Edward MORGAN and Bonnie Neil Morgan v. John GUTTRY and Billy J. Guttry.
    80-576.
    Supreme Court of Alabama.
    May 28, 1982.
    R. Kent Henslee of Henslee & Bradley, Gadsden, for appellants.
    William D. Hudson of Wilson & Hudson, Gadsden, for appellees.
   ALMON, Justice.

This is an appeal from a judgment of the circuit court establishing a boundary line between coterminous land owners.

The parties purchased adjoining lots in Calhoun Estates which is a waterfront subdivision on Lake Henry Neely on the Coosa river.

The appellants claim that the court erred in failing to establish a boundary line corresponding to a line which was referred to in the record as the possession line. Apparently, prior to the dispute, the parties assumed the possession line was the correct boundary. Adverse possession is not claimed by either party because of the short duration of ownership.

The trial court established a line based on three surveys. Although these surveys differed slightly, they showed the line between the lots to be substantially the same and did not correspond to the possession line.

Appellants’ main contention is that when the lots were originally purchased the possession line was represented as the true line and should therefore be controlling.

It was incumbent upon the trial judge, sitting without a jury, to establish a line and we cannot conclude from the record that his judgment is plainly erroneous or manifestly unjust. The judgment must be affirmed if under any reasonable construction of the evidence the decision is supported by credible evidence. Ray v. Robinson, 388 So.2d 957 (Ala.1980).

The judgment of the circuit court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: FAULKNER, Justice. EMBRY, Justice

text:
    Mary Lee MacPHERSON v. Gordon TILLMAN, et al.
    81-494.
    Supreme Court of Alabama.
    May 28, 1982.
    T. Schram Woodroof of Woodroof & Woodroof, Athens, for appellant.
    W. W. Malone, Jr. and Alice J. Hancock of Malone, Owens, Hancock & Totten, Athens, for appellees.
   FAULKNER, Justice.

James A. MacPherson and his brother, Cuthbert, owned 100 acres of land in Limestone County as tenants in common. Mary Lee MacPherson became the wife of Cuth-bert in 1942. Mary and Cuthbert moved into a house on the 100 acre tract of land. James A. MacPherson also lived in the house from time to time.

James smoked a pipe, much to the annoyance of Mary. In 1959, the two brothers transferred one acre from the 100 tract of land to Mary. She built a small house on the land, about 100 yards from the old house. She and her husband, Cuthbert, moved into the new house. Cuthbert resided in the new home until the time of his death in 1971. Mary remains in the house at present.

Prior to Mary and Cuthbert’s marriage, Cuthbert farmed part of the 100 acres, and raised cattle and chickens on the land. These activities continued after the couple moved into the new house. Cuthbert was in charge of farming activities, and when he became too old to farm the land, he rented the land. Mary and Cuthbert also had a garden for their personal use on the property owned jointly by Cuthbert and his brother.

Cuthbert MacPherson died intestate in 1971, still married to Mary. At the time of his death, Cuthbert owned the remaining 99 acres of land as a tenant in common with his brother.

Cuthbert left no children or descendants. Nevertheless, under the applicable statute of descent and distribution, Cuthbert’s interest in the property descended to his brother. James died subsequent to Cuth-bert’s death.

On April 16, 1980, Mary MacPherson brought an action to claim a homestead exemption in the 99 acres owned by Cuth-bert and James. Mrs. MacPherson sought to have the title to the property vested in her in fee simple. Mrs. MacPherson alleged that the property was worth more than $6,000.00, and that it did not exceed 160 acres in area. Mrs. MacPherson brought the action against the descendants of James MacPherson. The parties agreed to a stipulation of facts. The trial court granted the motion for summary judgment filed by James’s heirs. The widow appeals.

Section 6-10-60, Code 1975, permits a surviving spouse to claim a homestead exemption in up to 160 acres. Section 6-10-62 vests title to the homestead in the surviving spouse if the realty is the only real property owned in the State by the decedent at the time of his or her death.

The key issue presented in this case is whether the 99 acres held by Cuthbert and James MacPherson is “homestead property.” In Skipworth v. Skipworth, 383 So.2d 524 (Ala.1980), this Court repeated the definition of homestead property given in an earlier decision:

“In general, the homestead law provides to named survivors a homestead not exceeding 160 acres in area which is exempt from administration and payment of debts. Title 7, Sections 661, 663, 697, Code of Alabama, 1940 (Recompiled 1958). Although the term ‘homestead’ is not defined in the statute, this court has stated that ‘[a] homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.’ Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595 (1936). It has been further defined as ‘the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family * * * ’ Moseley v. Neville, 221 Ala. 429, 431, 129 So. 12, 14 (1930), quoted in Griffin v. Ayres, supra. Normally the land must have been occupied by decedent prior to his death. Turner v. Turner, 107 Ala. 465, 18 So. 210 (1895). Contiguous real estate used for rental or commercial purposes and not used by the homeowner or his family is not within the ‘homestead.’ Griffin v. Ayers, supra; Turner v. Turner, supra. But see Cade v. Grafio, 227 Ala. 11, 148 So. 591 (1933), where contiguous property rented to others was determined to be part of the homestead because it was also used by the owner in connection with the home-place.”

In Lacey v. Davis, 361 So.2d 543 (Ala.1978), this Court stated:

“The dwelling site is not the only object of protection. Appurtenant land is included in the homeplaee if used for the actual benefit of the family.. ..
‘The statute protects the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family.’ ”

On several occasions, this court has permitted a surviving spouse to claim homestead in land appurtenant to the family’s dwelling. See, e.g., Lacey v. Davis, 361 So.2d 543 (Ala.1978); Mullins v. Baker, 193 Ala. 594, 69 So. 516 (1915); Tyler v. Jewett, 82 Ala. 93, 2 So. 905 (1886). Nevertheless, in each of those cases, the land on which the family dwelling was located was owned by the same spouse who owned the land appurtenant to the family dwelling. This Court has never permitted a spouse to claim homestead in appurtenant land which is the separate property of the other spouse. See Greer v. Altoona Warehouse Co., 246 Ala. 297, 20 So.2d 513 (1945); Beard v. Johnson, 87 Ala. 729, 6 So. 383 (1888).

This Court addressed the issue of claiming homestead in a spouse’s appurtenant but separate property in Greer v. Altoona Warehouse Co., 246 Ala. 297, 20 So.2d 513 (1945). In that case, three separate tracts of land were involved. Tract I was the separate property of the wife, Tract II was owned jointly by the husband and wife, and Tract III was owned by the husband. The husband claimed a homestead exemption on each of the tracts in a suit by a creditor to levy against the property. The issue was on what tracts could the husband claim a homestead exemption. The trial court held that Tracts I and II were impressed with a homestead exemption.

This Court reversed, holding that only Tract II was homestead property. The Court found that Tract III was not used as homestead property. The Court stated that even if the homestead was on Tract I, “constituting the separate estate of the wife, the husband was in no position to claim the same as a homestead or to annex thereto the property in which he had an interest as tenant-in-common, or which he owned in severalty” (emphasis added).

There is but one homestead. Beard v. Johnson, 87 Ala. 729, 6 So. 383 (1888). A wife may not claim one homestead, and the husband another. In Beard v. Johnson, this Court stated:

“It is manifest that ownership, entire or partial, in fee or for a term, is one of the essentials of rightful claim of homestead exemption.... And there can not, at one and the same time, ‘be two separate valid homestead claims. ... ’
... We think it is manifestly against both the letter and spirit of the law, that the two holdings, being not in common, but by different persons, should be tacked, the one to the other, and thus become an individual homestead, claimable by either. [The wife], owning, and, together with the family, occupying the homestead proper — the land on which they resided — was, without doubt, entitled to claim its exemption from debts. This disabled [the husband], so long as that ownership and occupancy lasted, to assert homestead in other lands, on which the family did not reside.”

Thus, Mary MacPherson cannot tack the separate property of her husband to the land on which their dwelling was located, in order to claim a larger homestead. Clearly, the homestead property and the family dwelling of the MacPhersons were located on Mrs. MacPherson’s single acre of land.

Mrs. MacPherson also argues that since she did not join in the transfer of the one acre to herself, she did not relinquish her homestead rights in the other 99 acres. It is true that in Alabama, when the husband, for example, transfers the homestead to the wife, without her signature, the wife does not lose the homestead exemption merely because she now holds legal title to the property. See Wallace v. Feibelman, 179 Ala. 589, 60 So. 290 (1912); Bassett v. Powell, 178 Ala. 340, 60 So. 88 (1912); Turner v. Bernheimer, 95 Ala. 241, 10 So. 750 (1891). Nevertheless, in each of these cases, the complete homestead was transferred, and the family continued to dwell on the homestead. In the present case, only a small portion of the homestead was transferred and the family moved from the old dwelling into a new dwelling on the separate property of the wife. When a family changes the location of the homestead, it cannot be contended that prior dwellings remain impressed with a homestead character. Furthermore, the only land transferred was one acre. It is only in this acre then that Mrs. MacPherson may contend that she retained her homestead exemption because she failed to join in the transfer.

Therefore, the trial court did not err in refusing to set aside a homestead in the deceased’s interest in the 99 acres.

The judgment is affirmed.

AFFIRMED.

ALMON and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.

EMBRY, J., concurs specially.

EMBRY, Justice

(concurring specially.)

I agree with the scholarly discussion of the law regarding homesteads by Justice Faulkner. However, I deem it, in the most part not necessary for a decision under the facts of this case. After Cuthbert’s death in 1971, without children or descendants, fee simple title passed to brother James. Mary continued to live in the home situated on her one acre and clearly had no rights in the remaining ninety-nine.


text:
    John B. JOHNSON v. Bobby R. HAYNIE, et al.
    80-574.
    Supreme Court of Alabama.
    June 4, 1982.

      Vanzetta Penn Durant, Montgomery, for appellant.
    J. Pelham Ferrell of Ferrell & Davenport, Phenix City, and Robert L. Thompson of Elarbee, Clark & Paul, Atlanta, Ga., for appellees.
   ADAMS, Justice.

In this malicious prosecution action the jury returned a verdict in the amount of $12,000.00 for plaintiff John B. Johnson (Johnson) against Bobby R. Haynie (Hay-nie) and the Ampex Corporation (Ampex). The trial court granted defendants’ motion for judgment notwithstanding the verdict or in the alternative a new trial. We reverse the trial court’s grant of a JNOV, but affirm its grant of a new trial.

In October 1978 a tool box was taken from the office of David Settle (Settle), a laboratory supervisor at the Ampex plant in Opelika, Alabama. Settle notified Haynie, employment supervisor at the plant, who began an investigation. Because tracks made by boots issued only to “mix-prep" employees were found in Settle’s office, the investigators questioned all such employees who had access at the time of the theft. Johnson was one of the mix-prep employees interviewed, and he, along with several others, consented to a search of their homes. A tool box of the type missing was found in Johnson’s back yard, and Settle positively identified the contents as being those of the box taken from his office.

Johnson stated that he bought the box from a stranger at a pool hall for seven dollars. He said he wanted a tool box and was not interested in the contents; had not, in fact, even looked to see what was in it. He had put it in his back yard and left it there until the investigators found it.

Upon Sheriff James Pearson’s request, Haynie signed a warrant for Johnson’s arrest. The Russell County district attorney sought and obtained an indictment from a grand jury on charges of buying, receiving, or concealing stolen property, “knowing that it was stolen or having reasonable grounds for believing that it was stolen, and not having the intent to restore it to the owner.” Johnson was tried and acquitted of these charges by a Russell County jury on June 14, 1979. He subsequently filed this action against Haynie, individually and as an employment supervisor of Am-pex, and against Ampex.

After trial of the cause, the jury returned a verdict for Johnson and fixed damages at $12,000.00. The defendants filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Among the grounds presented in this motion were the failure of Johnson “to present sufficient, competent evidence to clearly overcome [the] prima facie, presumption” raised by the issuance of the indictment that probable cause existed; the giving of certain of Johnson’s requested jury instructions; and the refusal of certain of defendants’ requested instructions. After a hearing on this motion, the trial court ordered that a JNOV be entered in favor of defendants, and “in the event this order is hereafter vacated or reversed,” granted the alternative motion for new trial. The Court said it erred in granting requested jury charge number six of the plaintiff, and in refusing requested charges number five and ten of the defendants.

To recover on a claim for malicious prosecution, a plaintiff must prove a prior judicial proceeding was initiated by the defendant maliciously and without probable cause, that it terminated favorably to plaintiff, and that it caused him damages. Alabama Power Company v. Neighbors, 402 So.2d 958 (Ala.1981); Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969). The errors complained of by the plaintiff mainly relate to the trial court’s treatment of probable cause within the meaning of the above test.

The trial court correctly cited Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794 (1928), for the proposition that “[t]he finding of the indictment constituted prima facie evidence of the existence of probable cause for the issuance of the warrant against the plaintiff .... ” The court went further, however, and relied on the Union Indemnity case and on Brown v. Parnell, 386 So.2d 1137 (Ala.1980), to hold that this prima facie case

[c]ast the burden on the plaintiff to rebut the presumption of the existence of probable cause by clear and convincing evidence. Upon due reflection and consideration of all the evidence, the Court is of the opinion that the plaintiff failed to present sufficient, competent evidence to clearly overcome the presumption of the existence of probable cause, and that defendants’ motion for a directed verdict should, therefore, have been granted. [Emphasis by the trial court; citations omitted.]

While it is true that the burden was on Johnson to rebut the presumption created by the indictment, we think the trial court has made that burden too heavy. This court has held on several occasions that a plaintiff in a malicious prosecution case can rebut the presumption of probable cause raised by a conviction which was later vacated or reversed. Brown v. Parnell, supra; Jordan v. Wilson, 263 Ala. 625, 83 So.2d 340 (1955); Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So.2d 424 (1954); Kemp v. York, 202 Ala. 425, 80 So. 809 (1919). In those cases, the standard articulated is that the presumption “may be rebutted by any competent evidence which clearly overcomes the presumption.” Kemp v. York, supra, 202 Ala. at 425, 80 So. 809. The rationale adopted in the Kemp case, and followed in the later cases, is that “ordinarily, if a court having jurisdiction has upon a full and fair trial proceeded to conviction, it must have had before it such evidence as would convince a prudent and reasonable man of the guilt of the accused.” Id., at 426, 80 So. 809, quoting Skeffington v. Eylward, 97 Minn. 244, 105 N.W. 638 (1906).

In Kemp, this court rejected the position that a conviction which has been reversed raises an irrebutable presumption of probable cause, as well as the position that the presumption can be rebutted only by evidence that the conviction was obtained by fraud or perjury. A third, more lenient, position was adopted: a conviction “vacated or reversed on appeal, is not conclusive, but prima facie, evidence of probable cause, which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of the defendant’s conviction in the first instance,” Kemp, supra, 202 Ala. at 425, 80 So. 809 (emphasis added).

In Republic Steel Corp. v. Whitfield, supra, it was held that plaintiff had not introduced evidence to “clearly overcome” the presumption, so failure to give defendant’s affirmative charge was error. But in Jordan v. Wilson, supra, the giving of the affirmative charge was held to be error because “the evidence made a case for the jury as to whether the evidence was sufficient to overcome clearly a presumption of probable cause.” Id., 263 Ala. at 630, 83 So.2d 340. In Brown v. Parnell, supra, summary judgment for defendants was affirmed since “Our review of the deposition testimony which was offered in support of the motion for summary judgment does not reveal to us that Brown presented sufficient competent evidence to clearly overcome the prima facie presumption of probable cause.” Id., 386 So.2d at 1140 (emphasis in original). Thus, in these cases where plaintiff’s initial conviction had been vacated or reversed on appeal, the emphasis has shifted from the holding that the presumption is rebuttable by any competent evidence to the holding that the presumption must be rebutted by evidence which clearly overcomes it.

We have not found a case which specifies the burden cast upon a plaintiff to rebut the presumption created by an indictment when the original trial results in acquittal. A conviction indicates that a petit jury or a trial court has at one time found the plaintiff guilty beyond a reasonable doubt; an indictment merely means that, within the limited grand jury procedure, a grand jury has found probable cause to believe the plaintiff guilty. We think the presumption raised by the latter jury decision is not so strong as that raised by the former. Although we have held that the plaintiff must rebut the presumption raised by an initial conviction by clear and convincing evidence, we do not choose, to extend that burden to a case of an indictment followed by an acquittal. A plaintiff need only rebut such a presumption to the reasonable satisfaction of the jury.

The trial court orally instructed the jury that the plaintiff must “reasonably satisfy you from the evidence that there was no probable cause for thinking that he was guilty” (the court adopted the Brown v. Parnell test only in its order of JNOV). Under this lighter burden, Johnson convinced the jury to find in his favor. As the incorrect burden is the only basis in the trial court’s opinion for granting JNOV, we hold that this order is due to be reversed. Groom v. Reynolds, 396 So.2d 690 (Ala.1981).

We now turn to the propriety of the court’s grant of a new trial because of the granting and refusal of certain charges. Plaintiff’s requested instruction number six, as given by the trial court, is as follows:

I charge you that discharge of an accused in a criminal action by a judge, after a full hearing of the evidence, is prima facie evidence that the charge was filed without probable cause.

This is not an accurate statement of the law, and on this alone, the trial court was justified in granting a new trial. Republic Steel Corp. v. Whitfield, supra; Union Indemnity Co. v. Webster, supra.

At the close of the evidence, the trial court orally instructed the jury that “as to the proof of absence of probable cause, it is not enough that the accused is found innocent and has been proven so,” and that acquittal “is some evidence on its face — evidence of a want of probable cause .. . but by itself it does not mean conclusively that there was no probable cause.” These are not reversibly erroneous deviations from the rule that “acquittal of accused upon final trial is not even prima facie evidence of the want of probable cause.” Republic Steel Corp., supra, 260 Ala. at 336, 70 So.2d 424. See Union Indemnity Co., supra, 218 Ala. at 478, 118 So. 794. At the conclusion of the oral charge, Johnson’s attorney objected to the failure to give some requested instructions, after which the judge read instruction six to the jury. This singling out of an inaccurate instruction compounds the error and increases the likelihood that it caused injury. Defendant’s instruction five, not given by the trial court, that the acquittal “is not in and of itself prima facie evidence that defendants brought the charges without probable cause,” is a correct statement of law and should have been given.

Finally, we observe that defendants purport to appeal from the trial court’s ruling admitting evidence of Johnson’s loss of wages. Our review of the record reveals that defendants never perfected an appeal. Therefore, they cannot argue for relief from the adverse ruling of the trial court. In the absence of taking an appeal, an appellee may not cross-assign error. Beaty v. Head Springs Cemetery Association, Inc., 413 So.2d 1126 (Ala.1982). Mutual Savings Life Ins. Co. v. Montgomery, 347 So.2d 1327 (Ala.1977); Boswell v. Samson Banking Company, 368 So.2d 547 (Ala.Civ.App.1978), cert. denied, 368 So.2d 552 (Ala.1979).

The trial court, having erred in the above respects in the giving and refusal of charges, was correct in granting a new trial. We reverse the trial court’s granting of the motion for JNOV and remand the cause for proceedings not inconsistent with this opinion

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: PER CURIAM. FAULKNER, Justice

text:
    SECURITRONICS OF AMERICA, INC. v. BRUNO’S, INC.
    80-594.
    Supreme Court of Alabama.
    June 4, 1982.
    Gene Roberts and Susan Watterson of Roberts & Roe, Birmingham, for appellant.
    Jack E. Held of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
   ON REHEARING EX MERO MOTU

PER CURIAM.

The original opinion in this case, dated February 26, 1982, is withdrawn and the following opinion is substituted in its place.

In August, 1978, Douglas Frassrand, the president of Securitronics of America, submitted a proposal to the director of security at Bruno’s, Inc., Ronald Mahinske, for the purchase or lease of security equipment. The proposal stated the installation price of $900.00, and a monthly rent during a 90-day trial period of $525.00. Later memos indicated that $525.00 was the rent for the entire 3-month trial period. On October 3, 1978, Mr. Mahinske signed a contract for the installation of the system. Bruno’s sent the prepaid labor charges to Securitronics on October 13, 1978. Securitronics was to install the system within two weeks after the receipt of the labor charges; however, the system was not installed until six weeks later.

After a series of visits by representatives of Securitronics to correct defects in the system, Bruno’s cancelled the agreement to purchase the system on September 5, 1979. Bruno’s also requested that Securitronics remove the equipment at their convenience. Bruno’s contended that as a result of the various defects in the equipment, it never received a 90-day trial period in which to determine the worthiness of the equipment.

Bruno’s also ordered from Securitronics an NCR 255 cash register display system. In April, 1979, Bruno’s cancelled the order. Nevertheless, Securitronics delivered and installed the cash register. Bruno’s indicated to Securitronics that the NCR 255 cash register was available for retrieval at its convenience, yet Securitronics has not picked up any of the equipment.

Securitronics brought an action against Bruno’s, seeking the unpaid balance of the purchase price for the equipment. Bruno’s defense was that it never accepted the equipment, and thus could not be liable for the purchase price.

Bruno’s also contended that problems with the equipment precluded it from having a ninety-day trial period. The trial court, hearing the evidence ore tenus, rendered a judgment in favor of Bruno’s. Sec-uritronics made no motion for findings of fact, a new trial, or a motion to alter, amend or vacate the judgment.

On appeal, Securitronics seeks to raise the issue of the sufficiency of the evidence to support the judgment of the trial court. Bruno’s contends that some motion must have been made at the trial level which would give the trial court the opportunity to reconsider its decision before a costly and inconvenient appeal process could be instituted. We cannot agree.

In Francis v. Tucker, 341 So.2d 710 (Ala.1977), this same issue was addressed. In that case, Justice Jones, in his opinion for the majority, stated:

“One other point, raised here by appel-lee, deserves comment. We frequently find a common misunderstanding of our authority to review the sufficiency of evidence to support a decree absent a motion for a new trial. Where the case is tried to a jury, a motion for a new trial is necessary to invoke a ruling before the appellate court will pass on the weight of the evidence or review findings of a jury. Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974).
“Conversely, while the presumption favoring the court’s findings of fact (the ore tenus rule) results in infrequent reversals, our authority to review such decree on the issue of sufficiency of the evidence is not dependent upon a motion for a new trial; and this for the reason that the trial Court’s ruling on the sufficiency of the evidence is implicit in a decree in which the trial judge was the trier of the facts. Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601 (1968).”

341 So.2d at 721 (emphasis added). Thus, it is quite apparent that a motion for a new trial or for findings of fact is not necessary in order for an appellant to obtain review by the appellate court of the sufficiency of the evidence to support the decree of the trial court. See also, Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601 (1968).

Thus, the issue of the sufficiency of the evidence must be considered by this Court. The longstanding rule of law in Alabama, however, prevents reversal of the trial court’s decision where the evidence was presented ore tenus and the trial court has had the advantage of observing the demeanor of the witnesses, unless the conclusion of the trial court is plainly and palpably contrary to the weight of the evidence. Wood v. City of Huntsville, 384 So.2d 1081 (Ala.1980); Centennial Associates, LTD v. Clark, 384 So.2d 616 (Ala.1980); Pritchett v. Nathan Rodgers Construction and Realty Corp., 379 So.2d 545 (Ala.1979); Hill v. Abyssinia Missionary Church, 370 So.2d 1389 (Ala.1979). Thus, the findings of the trial court will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless it is plainly and palpably erroneous and manifestly unjust. Knapp v. Knapp, 392 So.2d 527 (Ala.1981); Mayo v. Andress, 373 So.2d 620 (Ala.1979).

Here it appears that there was sufficient evidence to support the decision of the trial court. Testimony showed that after the security equipment was installed in January 1979, some six weeks after the time specified in the contract, serious problems were incurred and representatives of Secu-ritronics of America, Inc., had to be called on numerous occasions in attempts to remedy those defects. Evidence was also presented that showed that on September 5, 1979, Isaac Ballard, as an agent for Bruno’s, Inc., cancelled the purchase and requested that Securitronics remove the equipment at its convenience.

There is no dispute that Bruno’s paid $900.00 in installation and $525.00 for the one month trial period, as specified in the contract. Further evidence showed that Bruno’s cancelled the contract because of dissatisfaction with the system and frequent problems that prohibited an adequate test period.

There was also undisputed evidence that Bruno’s had ordered an NCR 244 cash register display system and, in April 1979, can-celled the order. There was evidence presented by Securitronics that the cancellation was orally countermanded, but we cannot say that the trial court was plainly and palpably wrong in deciding against Sec-uritronics on this point.

The cash register display system was, nevertheless, delivered and installed and remains at Bruno’s, unused. There was sufficient evidence presented that the trial court could have decided that the security system and cash register display system had been made available for retrieval by Securitron-ics and that they had been notified on that fact.

We hold that there was no plain and palpable error in the trial court’s decision. As a result, this Court will not disturb the decision below and the judgment of the trial court is affirmed.

AFFIRMED.

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

FAULKNER, J., dissents.

FAULKNER, Justice

(dissenting).

I respectfully dissent.

The majority opinion is bottomed on Francis v. Tucker, 341 So.2d 710 (Ala.1977), and Francis relied on Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601 (1968), as its authority. Francis was an equity case holding that a motion for new trial was not necessary to review the sufficiency of the evidence. Under the ARCP, equity has been merged with law in a civil action. Rule 2, ARCP.

Because our Rules of Civil Procedure are modeled after the federal rules, it is logical to assume that only actions in which the trial judge makes findings of fact are exempted from the requirement of a Rule 59 motion.

Rule 52(b) and the Committee Comments indicate that findings of fact by the trial court may serve the same purpose as a motion for a new trial or a motion to alter, amend or vacate the judgment — to permit the trial judge to review the evidence and to perfect the issues for review by the appellate court. By making findings of fact, the trial judge may review the evidence, and discover and correct some error made in his or her judgment. Furthermore, findings of facts and conclusions of law crystallize the basis of the trial court’s judgment for the appellate court. Without such a device, fair and adequate review by an appellate court is made exceedingly difficult.

While ARCP 52(a) provides that “[rjequests for findings [of fact] are not necessary for purposes of review,” when read in conjunction with Rule 52(b) the phrase indicates that some method of raising grounds for review must be made at the trial level.

I see nothing legally wrong with the majority’s position. I simply think that a Rule 59 motion and the trial judge’s order thereon present the case in a better posture for review on appeal.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 39.
    Supreme Court of Alabama.
    June 7, 1982.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — ORIGINAL FILING FOR COSTS — WHERE PARTIES TO CIVIL ACTION FAIL TO COMPLY WITH AN ORDER OF THE COURT WITH RESPECT TO DISCOVERY

Honorable Robert E. Hodnette, Jr., Presiding Judge, Thirteenth Judicial Circuit, Mobile, Alabama, has made the following request to the Clerk of the Supreme Court for an opinion, pursuant to § 12-2-19(d), Code 1975:

I request your opinion as to whether the following circumstances would constitute an “original filing for costs” as contemplated by Rule 7 of the Rules of Judicial Administration.
Rule 37 of Alabama Rules of Civil Procedure provides certain sanctions where parties to civil litigation fail to comply with an order of the court with respect to responding to discovery, namely, interrogatories, motions to produce, request for admissions and third party subopenas (sic). Paragraph B (of the Rule) specifically concerns options available to the Court for failure to respond including sub-paragraph (d) whereby the parties can ask for a contempt citation or the court can order a contempt citation. The other sanctions have to do with such as disallowing of evidence, striking of pleadings, dismissal of the action or judgment by default, etc.
Usually an attorney asking for sanctions moves the court to require that interrogatories, etc., be produced within a time certain or that sanctions be imposed and the court usually orders compliance by a certain time after which sanctions may be imposed.
You are requested to advise which of these constitutes an “original filing for costs”:
1. When the party seeking discovery simply moves that the other party be required to answer in a specified time.
2. Where the party asks the court to impose sanctions for failure to either make discovery in the prescribed time or fails to make discovery after the initial order of the court within the specified time.
3. Where the attorney moves the court to hold the parties in contempt or where the court treats the matter as contempt for failure to obey the order.
I call your attention to the Opinion of the Clerk of the Supreme Court of Alabama No. 28, August 1, 1980, Ala. 386 So.2d 737.

It is my opinion that neither of the three procedures, designated in Judge Hodnette’s inquiry as 1,2, and 3, constitutes an original “filing for costs” as contemplated by Rule 7, Alabama Rules of Judicial Administration.

Rule 7, Alabama Rules of Judicial Administration, is as follows:

“Fees for Miscellaneous Filings
Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

An original filing for cost purposes, as contemplated by Rule 7, is the filing of a case. Opinion of Clerk, No. 1, April 26, 1977, Ala., 345 So.2d 1329; No. 3, May 4, 1977, Ala., 345 So.2d 1338; and No. 37, August 21, 1981, Ala., 403 So.2d 891.

A case, within the meaning of Rule 7, is a suit or action in court. See Bell v. Mar-Mil Steel and Supply Co., Civ.App., 309 So.2d 471, 474, 54 Ala.App. 432. Webster’s Third New International Dictionary.

It appears that a motion to require a party to answer interrogatories within a specified time, a request to impose sanctions for failure to make discovery as required by rule or order, and a motion to hold parties in contempt for failure to respond to interrogatories, or an order treating such failure as contempt are only parts of a suit or action already commenced. Neither of these procedures commences a suit or action.

Opinion No. 28, August 1, 1980, Ala., 386 So.2d 737, is hereby overruled to the extent that it pertains to a motion to hold a party to a suit in contempt for failure to answer interrogatories.


author: WRIGHT, Presiding Judge.

text:
    WINN-DIXIE KWIK CHEK v. Bill Shirley TRAVIS.
    Civ. 2526.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Rehearing Denied June 3, 1981.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Augusta E. Wilson, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a judgment awarding $7,500 to plaintiff for injuries allegedly resulting from a “slip and fall.”

The dispositive issue is whether the evidence produced on behalf of plaintiff, Bill Travis, was sufficient to support a finding of negligence on the part of defendant, Winn-Dixie. We find the evidence insufficient to support such a finding and reverse.

Our decision in a recent “slip and fall” case, Winn-Dixie Store No. 1501 v. Daisy Brown, 394 So.2d 49 (Ala.Civ.App., 1981), which likewise turned on the sufficiency of the plaintiffs proof, set forth the following:

In slip and fall cases, as in all negligence cases, the plaintiff has the burden of establishing by the evidence the negligence of the defendant. 15 Ala.Dig., Negligence, Key No. 121.1(8) ....
It is well settled that the duty upon the storekeeper, in a case such as this, is to exercise reasonable care in providing and maintaining reasonably safe premises for the use of the customer. Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968). The storekeeper is not an insurer of the customer’s safety while on the premises, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586, cert. denied, 287 Ala. 729, 255 So.2d 592 (1971).
As the burden of showing negligence rests with the plaintiff, it is necessary to prove: (a) that the foreign substance slipped upon was on the floor a sufficient length of time to impute constructive notice to the defendant, or (b) that the defendant had actual notice of the substance’s presence on the floor, or (c) that the defendant was delinquent in not discovering and removing the foreign substance. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957).

We set forth the above noting that the allocation of the burden of proof, the proof required in order to carry that burden and the standard of care required of the storekeeper are identical in the quoted case, the case now before us and in other “slip and fall” cases. The evidence of the plaintiff as to the issue of negligence in the present case, much like that produced in Brown, consisted of the following:

Travis was grocery shopping at Winn-Dixie in Eight Mile, Alabama, on Saturday morning, June 24, 1978. While pushing a grocery cart down the aisle in the store’s produce section he “stepped on something and slipped.” He fell forward, landed on his chest and was injured. After falling he noticed a brown paper bag, about the size of a lunch bag, on the floor some four feet behind him. He was looking where he was going but didn’t see the bag prior to his fall. He wasn’t sure if he had slipped on the bag, but it was “the only thing in the store there that I could have stepped on.” The bag had dirt and a footprint on it. The store “wasn’t real clean.”

In the instant case, as in Brown, plaintiff offered no evidence that the defendant had actual notice of the article allegedly causing the slip being on the floor at the time of the incident. Likewise, he offered no evidence from which it might be inferred that defendant was delinquent in not discovering and removing the offending article. See, Delchamps, Inc. v. Stewart, supra. With regard to constructive notice to the defendant, plaintiff argues that his proof of the condition of the brown bag imputes such notice.

Plaintiff’s testimony was that the brown bag had dirt and a footprint on it. Our cases in some instances have allowed the plaintiff to prove negligence on the part of the defendant by showing that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant. S. H. Kress & Co. v. Thompson, supra. In those instances it was not necessary for the plaintiff to enter direct evidence as to the length of time a foreign substance has remained on the floor; the trier of fact was able to infer the length of time from the nature and condition of the foreign substance. Foodtown Stores, Inc. v. Patterson, supra; Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274 (1953). Having reviewed those cases where, from the condition of the foreign substance, the trier of fact imputed constructive notice to the defendant, we find that the evidence of such condition in this case provides no reasonable inference as to the length of time the bag was on the floor prior to plaintiff’s fall. That a paper bag, unnoticed by the plaintiff prior to his fall, had dirt and a footprint on it does not tend to show that it had been on the floor any appreciable length of time. In fact, the more logical inference is that the dirt and footprint were caused when Travis stepped, slipped and fell on the bag. See, S. H. Kress & Co. v. Thompson, supra. No presumption of negligence arises from the mere fact of injury to an invitee. See, May-bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967); Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87 (1967); F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667 (1940).

We find the evidence insufficient to support a verdict based on the negligence of the defendant. The judgment of the trial court is due to be reversed.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result only.