text:
    William Arthur BROWN v. CHEM HAULERS, INC., et al.
    79-708.
    Supreme Court of Alabama.
    July 17, 1981.
    Rehearing Denied Aug. 28, 1981.

      J. William Thomason of Thomason & Russell, Bessemer, for appellant.
    J. A. Keller of Keller & Cochran, Florence and Frank M. Bainbridge of Bain-bridge & Mims, Birmingham, for appellees.
   ALMON, Justice.

This an appeal from summary judgment granted in favor of the defendants. We affirm.

William Arthur Brown was employed as a truck driver for Chem Haulers, Inc. At 2:30 p. m. on October 6, 1978, Brown began making several pick-ups and deliveries throughout Alabama and Georgia. When he returned to the Birmingham terminal the next day at 2:30 p. m., the terminal manager, Larry Kimbrough, asked Brown to pick up one more load even though he knew Brown was tired and had already driven in excess of his permitted number of hours. Kimbrough told Brown that he would not have to deliver the load, but would only have to return it to the terminal. Brown complied with Kimbrough’s request. However, when he returned with the load to the terminal, the night dispatcher, John Sherman, threatened to fire Brown if he did not deliver the load to its final destination. Brown then left with the load and, as he was negotiating a turn through an intersection, the tractor/trailer overturned. Although the tractor/trailer and its contents burned, Brown escaped with only a back injury.

Brown was subsequently fired by Chem-Haulers. When his attempts to secure other employment as a truck driver proved futile, Brown sued Chem-Haulers, Kimb-rough and Sherman. In his complaint, Brown alleged that as a proximate result of the defendants’ negligence, L e., ordering him to deliver the load when they knew he was fatigued, he was caused to wreck the tractor/trailer and thereby sustain injury. He also alleged that the defendants slandered and/or maliciously interfered with his employment contract rights by informing his prospective employers that his negligence was the cause of the accident and/or refusing to inform those prospective employers that the accident was the result of their ordering him to drive when he was physically exhausted. The defendants moved for summary judgment, supporting their motion with the pleadings, their answers to interrogatories and Brown’s deposition. Brown appeals from the grant of that motion.

Brown concedes in brief that he did not state a viable negligence claim against Chem-Haulers, but insists that a valid claim was asserted against his co-employees, Kimbrough and Sherman.

Assuming that a cause of action was stated against his co-employees, Brown’s deposition makes clear that summary judgment was properly entered against him on this aspect of his complaint. When questioned about the circumstances surrounding the accident, Brown stated:

A. I pulled up to a red light, which it’s — once you turn left there on Valley Road it’s not but about .two blocks up there to where Jay Bird turns off to the right. Well, I pulled up to the red light and I stopped and I made my right turn, which I was running approximately two, three, miles an hour, because I was in low gear when I started to make the turn. And, when I made the turn I started around, I felt the weight shift on the truck. When the weight shifted on the truck, I immediately counter-reacted by trying to get the truck to pull loose, which it didn’t work. The truck then slid down in the gully and turned over and caught on fire and I crawled out the window and got out of it. ******
Q. Well, do you know what caused it to shift, other than you driving at too much of an angle?
A. No, sir. The shoulder of the road could have gave away.
Q. Did it?
A. I’ve got no earthly idea.
Q. Now, there wasn’t any other vehicle involved; it was just you driving and turning that curve,—
A. Yes, sir.
Q. —and you went off the pavement and turned over; is that right?
A. The trailer did.
Q. Yes, sir. And when the trailer went off it in turn turned the whole rig over, didn’t it?
A. It pulled the tractor and everything over.
Q. Yes, sir. All right. Were you awake?
A. I think I was; I hope I was.
Q. Well, you remember it all, don’t you?
A. Yes, sir.

Thus, it is apparent that the accident was caused by the weight shift of the load. Although the exact cause of the weight shift is unknown, there is nothing in Brown’s deposition testimony which would support an inference that the accident was in any way caused by his fatigue. In fact, Brown’s testimony indicates that at the time of the accident he , not only felt the load shift, but also had the presence of mind to “immediately counteract ]” by taking corrective measures.

Summary judgment was also properly entered against Brown on his claim that the defendants intentionally interfered with his employment contract rights. During his deposition, Brown stated that he attempted to secure employment as a truck driver with several firms. His testimony reflects, however, that with one exception either the prospective employer already knew of Brown’s accident or he informed them of that fact during the application process. The one instance where his accident history was not known involved Brown’s friend, Jerry Brown. Upon questioning, Brown stated:

A. Well, one other job that I was going to see about, Jerry Brown is a friend of mine,—
Q. Is he a relative?
A. No, sir. But, he’s a friend of mine; he has his own truck. And, he was going to lease it in to a firm which pulls out of Texas, out of Brownsville, Texas. They’ve got a terminal there. He was going to lease his truck in to them and run double operation with me. He talked with the Safety Supervisor and stuff there, which in turn, Jerry told them to explain the situation to them, everything that happened and how it happened.
Q. All right. So, your friend, Jerry Brown, told this company about your accident?
A. Right.
Q. All right. Okay.
A. Okay. He told them the accident, what happened. The Safety man out there in turn told him that if Chem-Haulers would verify the story that he told, that it would be alright, that he could accept us in, he would take the truck and me and him in, as me the second driver.
Q. Who was that man? You never did talk to him?
A. I never talked to him. Jerry talked to him.
* * * * * *
Q. All right. Now, what else. Everything you heard about this transaction was what your friend, Jerry Brown, told you?
A. Yes, sir.
Q. All right. Go ahead.
A. Well, they said that Chem-Haulers did not verify the same story that he told them.
* * * * * *
Q. Now, in all of these applications, and of all of these conversations [with potential employers] I believe it’s your, sworn testimony, Mr. Brown, that not in any case did anybody say anything to you that any agent, servant, or officer of Chem-Haulers had said anything to them. You don’t have a single incident where any of them said that Chem-Haulers or their agents had said anything to these entities, these corporations, that you sought employment. Isn’t that a true statement?
A. To the best of my knowledge; yes, sir.
Q. And you don’t know, do you, that Chem-Haulers’ agents, servants, or employees ever said anything to any of these corporations that you sought employment; do you?
A. According to—
Q. Now, I’m not talking about other than what you heard through your friend, Jerry Brown; you personally do not know, do you?
A. I personally, I don’t know personally.

When asked if he had any conversations with anyone from Chem-Haulers after he had attempted to locate other employment, Brown stated that he talked to Kimbrough and added:

Q. Well, what did he say?
A. Well, I asked him, I asked him about what was going on. I asked him what was happening the reason I was getting turned down for all these jobs, that I needed a job and that’s what I was interested in, and as far as attorneys was concerned, it didn’t matter to me one way or the other, I was going to make a living. And he told me that if it was a job that wasn’t related to a commercial vehicle that he’d help me anyway he could. But, as far as commercially, that he wouldn’t ever do it because that he had a license under I.C.C., or that Chem-Haulers did, or what have you, that had to be protected, and that he wouldn’t ever say one way or the other. You know, he wouldn’t ever say any different.
Q. Did you confront him about anything about your condition during the accident, about what he had talked to you about?
A. Yeah, that’s right. I told him — I told Larry, I told him, in exact words, I said, “Now, you know what kind of condition I was in when I come in. I told you what kind of condition I was.” I said, “If you would just verify and tell the truth, I could get a job.” But, he said he wouldn’t do that or couldn’t do it, or what have you.
Q. Was anything else said?
A. Well, just other than him telling me that if it was anything besides commercial.

Brown was later reexamined on this point:

Q. Mr. Brown, other than what you have told me Larry Kimbrough said and what you heard from your friend, Brown, have you heard from any other person at any other time, since the time you were terminated at Chem-Haulers, anything that Chem-Haulers said or was alleged to have said about you and employment?
A. Not that I know of.

These facts and conversations recounted by Brown fall woefully short of indicating an affirmative, intentional, malicious, unjustified or unlawful interference with any contractual right he might have had as is required in order to make the alleged interference actionable. Griese-Traylor Corp. v. First National Bank, 572 F.2d 1039 (5th Cir. 1978); Hennessey v. National Collegiate Athletic Association, 564 F.2d 1136 (5th Cir. 1977); Alabama Power Co. v. Thompson, 278 Ala. 367, 178 So.2d 525 (1965). Therefore, summary judgment was properly entered as to this claim.

Brown contends the defendants’ failure to verify his version of the cause of the accident constitutes slander. Even assuming that one or all of the defendants did communicate a defamatory statement to Brown’s prospective employers, we are of the opinion that summary judgment was also properly entered against him on this claim.

In Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923), it was stated:

“Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another party having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken.”

210 Ala. at 371, 98 So. at 292. Applying these principles, even if Kimbrough actually told Brown’s prospective employers that Brown’s negligence was the underlying cause of the accident, such communication would appear to be at least conditionally privileged because it was a communication by a party with an interest “made to another party with a corresponding interest.” Berry, supra.

In Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976), this Court addressed the question of the appropriateness of granting summary judgment in libel actions. There the Court stated:

This Court has recognized that disposition of the issue of actual malice by summary judgment is generally inappropriate. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). However, where no proof of malice is offered at all, summary judgment is appropriate. Id.
Actual malice
“.. . may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of publication, and the like.
Kenney v. Gurley, 208 Ala. [623] at 626, 95 So. [34] at 37.

336 So.2d at 1120.

There is nothing in the pleadings, answers to interrogatories, or Brown’s deposition which raises even a scintilla as to malice. Given such circumstances, summary judgment was properly entered as to this claim.

For the foregoing reasons the judgment below is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    William L. HOLLAND, III, etc., et al. v. B. G. BRYANT, et al. B. G. BRYANT, et al. v. William L. HOLLAND, III, etc., et al.
    Nos. 79-892, 79-925.
    Supreme Court of Alabama.
    July 17, 1981.
    Rehearing Denied Aug. 28, 1981.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellants-cross-appel-lees.
    J. Donald Reynolds, Montgomery, for ap-pellees-cross-appellants.
   EMBRY, Justice.

Appellants, 19 employees of the Alabama Department of Conservation and Natural Resources, serving in the Wildlife Section of the Game and Fish Division, sought a writ of mandamus and declaratory relief against the Board of Commissioners of the Alabama Peace Officers’ Annuity and Benefit Fund. They sought to establish themselves as eligible to participate as members of the Alabama Peace Officers’ Annuity and Benefit Fund, and alleged that the Board members had a clear duty to accept them as members of the Fund but had refused to do so. They also charged that defendants, acting under color of state law, had arbitrarily and capriciously denied them membership benefits in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The complaint alleged that 11 appellants had, in fact, formerly participated in the fund but were discontinued on or about 20 September 1978, and the remaining seven had applied for membership but their applications had been denied; defendants admitted the truth of the latter allegations. It was further alleged that each was entitled to membership in the fund because they came within the definition of a “peace officer” as defined by Code 1975, § 36-21-60(10):

PEACE OFFICER. A person duly sworn as a peace officer of the state of Alabama possessing powers of arrest and employed by the state, any political subdivision thereof or any municipal corporation therein who is required by the terms of his employment, whether such employment exists by virtue of election or appointment, to give his full time to the preservation of public order and the protection of life or property or the detection of crime in the state. Such term shall include enforcement officers for conservation laws and full-time coroners, but shall not include any pardon, parole or probation officer, district attorney, assistant district attorney, assistant attorney general, commissioner, deputy commissioner or any municipal inspector, county inspector or state inspector. [Emphasis added.]

Bryant, Holt, and Jackson concede that appellants, as employees of the Department of Conservation and Natural Resources, were designated by Code 1975, § 9-11-5, as peace officers and possessed the powers of arrest. After a non-jury trial, judgment was entered which in pertinent part reads as follows:

This case is submitted on the pleadings, the exhibits admitted as evidence, and the testimony of the parties and witnesses taken ore tenus.
Upon consideration of all the evidence, the Court is of the opinion and finds that the Plaintiffs are not peace officers as that term is defined Ala. Code, § 36-21-60(10).
The Court is further of the opinion and finds Defendants have not violated Plaintiffs’ right to substantive due process under the Fourteenth Amendment of the United States Constitution in refusing to accept them into membership of the Peace Officers’ Annuity and Benefit Fund.
It is therefore ORDERED, ADJUDGED and DECREED as follows:
1. That judgment be for Defendants against Plaintiffs.
2. That the costs of this proceeding be taxed against Plaintiffs for which let execution issue.

Appellants then filed a motion for new trial or, in the alternative, to amend the judgment to include findings of fact as provided for by Rule 52, ARCP. The motion was heard and then findings of fact and judgment were entered as follows:

This case is submitted on plaintiffs’ motion for new trial and for amendment of judgment. Upon consideration thereof, the court hereinbelow makes the following findings of fact separately as to Paul Mattacks[] and the other plaintiffs.
FINDINGS OF FACT
AS TO MATTACKS
1. While Mr. Mattacks is classified as a Biologist Aide II, his testimony, as well as that of others, confirms that he is and has been a “trouble shooter” for the enforcement division of the Conservation Department.
2. He assists the enforcement division in patrolling refuge areas and has made numerous arrests.
3. He has assisted in investigations of timber thefts.
4. He has the responsibility for maintaining records on fur trappers and arresting violators. He is the only person who could sign a warrant for a trapping violation.
5. While Mr. Mattacks’ job classification does not mention law enforcement, his actual duties have been with and for the enforcement division.
Therefore, the court finds that Mr. Mattacks’ motion for a new trial is due to be granted and that judgment should be entered in favor of Plaintiff Mattacks.
FINDINGS OF FACTS
AS TO REMAINING PLAINTIFFS
1. The general overall purpose of the Conservation Department is to propagate, preserve and protect wildlife in this state.
2. Each of the plaintiffs is an employee of the game and fish division of the wildlife section of the Conservation Department.
3. Plaintiffs have a commission, badge and power of a deputy sheriff for the enforcement of conservation laws only.
4. By statute, each employee (including clerks and secretaries) of the Conservation Department has the same power of arrest.
5. Membership in the Alabama Peace Officers’ Annuity and Benefit Fund is controlled by Ala. Code, § 36-21-60(10). The definition of “peace officer” specifically includes the enforcement officers of conservation laws. Other employees of the Conservation Department must comply with the general definition of “peace officer” to become members of the Fund.
6. A specific requirement for membership is for the applicant to give his “full time” to the preservation of public order and the protection of life or property or detection of crime in the state. Although the plaintiffs do perform tasks that from time to time are related to enforcement activities, their full time is not given to law enforcement, et cetera.
7. The plaintiffs in this case are classified by the merit system of the State of Alabama as Biologist V, Biologist IV, District Biologist, and Area Biologist. The Biologist can move up through the ranks of the Conservation Department; however, enforcement officers cannot. Indeed, it appears that a primary reason for the requirement-that one be a biologist is so that one can move up through the ranks.
8. The court has considered the job descriptions as defined by the merit system and also the actual duties of the plaintiffs. Without exception, the job descriptions of these plaintiffs do not mention law enforcement, peace officer, protection of life or property, or the detection of crime.
9. The primary duty of enforcing the conservation laws is placed on the enforcement officers.
10. The plaintiff biologists are expected by their superiors and required by the terms of their employment to perform some law enforcement duties in enforcing the provisions of the game and fish laws and the rules and regulations promulgated thereunder.
11. The court has considered testimony from the plaintiffs concerning their individual day-to-day activities. While it appears that some of the plaintiffs detain fish and game violators, enforcement officers in most instances are called in to make actual arrests. From the testimony, the detention of these violators occurs primarily during the hunting season. The court is of the opinion that this does not comply with the statute which reads that one must be required by the terms of his employment to give his full time to the preservation of public order, et cet-era.
12. Defendants’ procedure for admitting applicants has not substantially changed since its inception. The only change was made in 1975 to include on the application a space for certification by an applicant supervisor that the appellant is, in fact, a law enforcement officer.
13. Some of the plaintiffs who were denied membership into the Fund were never certified as law enforcement officers.
14. Other plaintiffs who were previously certified were certified by persons not authorized to do so.
15. Defendants actively solicit new members.
16. The court concludes from the testimony that there was no discrimination against these plaintiffs. Refusal by the Board to accept new members will not increase or decrease benefits to existing members or members of the Board.
17. Ala. Code, § 36-21-64(5), gives the power to determine who is a peace officer to the Board of Commissioners. The Board, after fair investigation, determined the defendants were not eligible for membership. While administrative construction of a statute is not binding on the court, in the absence of a showing that the decision was arbitrary and capricious, such construction is persuasive and should be considered favorably.
18.The Alabama statutes for the Alabama Peace Officers Annuity and Benefit Funds were patterned after the Georgia statutes and are almost identical. The only Alabama case cited to the court was Moody v. Ingram, 361 So.2d 513 (Ala.). The Supreme Court held in that case that radio operators (technicians) who have the power of deputy sheriffs to enforce conservation laws were not by the terms of their employment or actual duties, required to devote their full time to the duties of a law enforcement officer. Numerous Georgia cases were cited and considered by the court.
The court finds from all the evidence presented that the plaintiffs have not met the burden of proof that they are peace officers as defined in the statute. It is therefore ORDERED, as follows:
(1) That the motion for new trial on behalf of plaintiff Mattacks is due to be, and the same is, hereby GRANTED and that judgment be entered in favor of plaintiff Mattacks against the defendants and that defendants place plaintiff Mat-tacks on the roll of the Peace Officers’ Annuity and Benefit Fund and allow plaintiff Mattacks, if he so desires, to pay all sums into fund which he could have or would have been required to pay from the date of the filing of this action.
(2) The motion for new trial and amendment of judgment as to the remaining plaintiffs is due to be, and the same is, hereby DENIED.

All plaintiffs except Mattocks appeal from both the original judgment and the amended one. The defendants cross-appeal from the judgment in favor of Mattocks.

The judgment below in favor of Mattocks is due to be reversed and that in favor of Bryant, Holt, and Jackson is due to be affirmed.

Appellants, and cross-appellee, earnestly, with masterly skill and art, in a herculean effort to reverse the original and amended judgment adverse to appellants and to sustain that favoring cross-appellee, urge that under the facts and law applicable to this case, appellants as well as cross-appellee, are peace officers as defined by Code 1975, § 36-21-60 (heretofore set out verbatim), and therefore entitled to participate in the Peace Officers’ Annuity and Benefit Fund. Code 1975, Tit. 36, Chap. 21, Art. 4. As they say, the question, in the context of this appeal, is not whether appellants and Mattocks are law enforcement officers but whether they fall within the definition of “Peace Officer” within the meaning of § 36-21-60(10) for the purposes of the Fund. They contend that the answer is in the affirmative. In very exhaustive and articulate briefs and oral argument, this conclusion is urged to be the correct one. We cannot agree.

Under the facts of this case, Moody v. Ingram, 361 So.2d 513 (Ala.1978), controls the outcome without reference to other authority. The questions posed for resolution in this case under Moody are: (1) What are the terms of these persons’ employment, and where are those terms to be found?; (2) Do those terms of employment require, as the primary duty of the employee, full-time devotion to the preservation of public order and the protection of life or property or the detection of crime? We think these questions can be answered without a great deal of difficulty by resort to logic and the facts of this case coupled with an application of the Moody rationale.

Each of the employees affected by the outcome of this litigation is employed in a job with the State of Alabama that has been classified by the State Personnel Board (known as the Classified Service or Merit System), holding a specified class position; the specifications consisting of the title of the position, a description of the duties and responsibilities, and a statement of qualifications for the position that are required by way of knowledge, skill, education, experience and the like. The specific merit system classifications of the employees affected by this litigation range from Biologist V, Biologist IV, Biologist III, Biologist II to Biologist Aide. The classifications are normally broken down into four parts: Definition; Examples of Work Performed; Required Knowledge, Skills, and Abilities; and Qualifications. As an example the following is the job classification of Biologist II:

(Game)
BIOLOGIST II (Inland Fish)
(Marine)
DEFINITION
This is advanced management and scientific research work in the development and improvement of state game, fish, and seafood resources.
Employees in this class are responsible for conducting a field or laboratory project connected with fish, game, and marine conservation. Duties may include supervision over a small group of technical employees and other skilled and unskilled laborers. Technical work is performed with some independence within the scope of project objectives and limitations. Field or laboratory findings are subject to check by professional superiors who confer with employees on unusual problems and who review conclusions and reports before their release for publication or use in wildlife management.
EXAMPLES OF WORK PERFORMED
Conducts game management program; selects and supervises the planting of food strips and the construction of fire lanes; conducts food studies on wildlife species.
Coordinates work of an assigned game research program; assists in selecting population and production factors of game birds and animals; studies the effects of farming practices on various species of game.
Conducts ecological studies of game animals, involving live trapping, specimen collecting, studying food habits and examining animals for diseases and parasites.
Conducts fishery surveys on creeks and rivers and in private lakes and ponds to determine productivity and composition of fish populations; advises lake owners on sound management practices and on methods of controlling plant and animal predators.
Conducts marine laboratory research on oysters, crabs, shrimp, and other sea-foods in state waters; assists in conducting seafood population and ecological studies.
Performs related work as required.
REQUIRED KNOWLEDGES, SKILLS, AND ABILITIES
Knowledge of the ecology and life history of fish and wildlife species.
Knowledge of the wildlife and fish conservation programs.
Knowledge of a plant, animal, and fish taxonomy.
Ability to do independent research in biology.
Ability to collect and organize scientific data and to make accurate reports.
Ability to make routine chemical analy-ses of soil and water conditions in relation to their effects on wildlife.
QUALIFICATIONS
Graduation from a four-year college or university with major course work in game management, fisheries management, or marine biology, preferably supplemented by graduate work to the level of master’s degree in the field of specialization to which assigned.
Some experience in biological research in the general area of specialization or in the conduct of a program of wildlife development.

In no instance does the classification of these affected employees, including Mattocks, make mention of enforcement of laws, preservation of public order, the protection of life or property, or the detection of crime. It is true, as able counsel for appellants points out, the Alabama Department of Conservation and Natural Resources is charged with the responsibility of protecting, conserving, and increasing the wildlife of the state and administering all laws relating to wildlife and its protection, conservation, and increase. Code 1975, § 9-2-2(l). It is also true that:

The commissioner of conservation and natural resources, his wardens, agents and employees shall be and are hereby constituted peace officers of the state of Alabama with full and unlimited police power and jurisdiction to enforce the provisions of the game and fish laws and the rules and regulations promulgated thereunder, and they may exercise such power in any county of the state of Alabama or in or on any waters of the state of Alabama or within the territorial jurisdiction of the state. [Code 1975, § 9-11-5.]
True too, it is, that:
All enforcement officers and inspectors employed by the commissioner of conservation and natural resources are clothed with the power and authority of deputy sheriffs and shall arrest without warrant and carry before the district court of the county in which an offense is committed any person violating any of the provisions of the game and fish laws or the rules and regulations made and promulgated thereunder. [Code 1975, § 9-11-8.]

An “officer” includes every person authorized to enforce the provisions of the game and fish laws. Code 1975, § 9-11-1(3). All this is quite true, and in addition, from time to time, primarily during hunting seasons, employees in the Wildlife Section of the Game and Fish Division detained or arrested violators; however, as a matter of policy the violators are turned over to officers of the Law Enforcement Section. The primary full-time duty of those officers is the enforcement of conservation laws. That section is one of three of the Department: Wildlife, Fisheries and Law Enforcement. On the other hand, the primary full-time duties of appellants and Mattocks are not of an enforcement nature.

In light of all the evidence in this case, and the clear wording of § 36-21-60(10), the inescapable conclusion is that neither appellants nor Mattocks qualify as eligible peace officers within the definition and intent of § 36-21-60(10). The terms of their employment are first and foremost fixed by their respective merit system job classification and position description. Regardless of the assignment and performance of duties, within the scope of that classification, those terms of employment do not assign either of them the primary duty to give full time to the preservation of public order and the protection of life or property or the detection of crime. Although the facts in Moody differ, and although the actual duties of appellants included some time devoted to those of a peace officer, as was most of Mattocks’ time; nevertheless, it is clear under the Moody rationale that employment is effected under the terms of the merit system job description, including qualifications, duties, skill, experience, and the like. In aid of this conclusion, we find support in the maxim expressio unius est exclusio a/-. terius. When § 36-21-60(10) was amended, and for the first time the words “... Such term shall include enforcement officers for conservation laws ....”, we think it fair to deduce that it was the intention of the legislature to exclude other conservation officers or employees. Bagley v. City of Mobile, 352 So.2d 1115, 1120 (Ala.1977).

With regard to appellants’ claim, under 42 U.S.C., § 1983, they say that they are entitled to declaratory relief and a writ of mandamus because appellees, while acting under color of state law, denied them substantive due process of law afforded them under the Fourteenth Amendment to the United States Constitution by depriving them of a federal right because denial of their right to participation in the Fund was arbitrary, unreasonable, and capricious action upon the part of appellees, members of the Board of the Fund, and therefore viola-tive of substantive due process. In brief, and orally before this court, eloquent argument is made in support of this contention. We cannot see its validity. One of the authorities cited in support of the point is the case of Frozen Food Express, Inc. v. United States, 535 F.2d 877, 880 (5th Cir. 1976), quoting from Judge Brown’s separate concurring opinion in Mary Carter Paint Co. v.. F.T.C., 333 F.2d 654, 660 (5th Cir. 1964) (rev’d on other grounds, 382 U.S. 46, 86 S.Ct. 219, 15 L.Ed.2d 128 (1965)):

But law does not permit an agency to grant to one person the right to do that which it denies to another similarly situated. There may not be a rule for Monday, and another for Tuesday, a rule for general application, but denied outright in a specific case.

In this case, there has been no departure from that very admirable and fine precept. The legislature provided that a certain defined class be eligible for participation in the Fund. Code 1975, § 36-21-60(10). It also placed the power and duty of determining who belonged to that class in the Board of Commissioners of the Fund. Code 1975, § 36-21-64(5), Moody, supra. The Board made the determination, the trial court concurred (except as to Mattocks), and this court has affirmed the actions of both the Board and the trial court (again except as to Mattocks). Therefore, we are constrained to hold there has been no denial of appellants’ substantive due process rights.

As requested by appellants and cross-ap-pellee, the trial court made findings of fact pursuant to Rule 52, ARCP. As to those respecting Paul Mattocks, the trial court misapplied the law and therefore they are due to be set aside and held for naught and the judgment entered in his favor is hereby set aside and judgment here entered against him and in favor of B. G. Bryant, H. Glenn Holt, and James Jackson, the Board of Commissioners of the Alabama Peace Officers’ Annuity and Benefit Fund. Paul Mattocks’ action below is hereby ordered dismissed.

Regarding the findings of fact respecting appellants, they are amply supported by the evidence of record, heard by the trial court ore tenus, and are therefore due to be and are upheld. The judgment below of 13 December 1979 is due to be and is hereby affirmed.

AFFIRMED IN PART AND REVERSED IN PART AND RENDERED.

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

      . William L. Holland, III, as Executor of the Estate of William L. Holland; Wayne F. Collin; James E. Keeler; W. Walter Beshears; Lloyd C. Crawford; James R. Davis; James H. English; William F. Kelly; William A. Coggins; Keith D. Guyse; Kenneth G. Johnson; Gary Moody; David Nelson; Larry Rush; Eugene J. Widder; Dudley A. White; Paul Mattocks, Tony Wiggins and Charles Richard Claybrook. One of the employees, William L. Holland, is deceased and is represented by the executor of his will, William L. Holland, III. An additional original plaintiff, William J. Hamrick, was dismissed as a plaintiff because he resigned from his employment while this litigation was pending.

      . B. G. Bryant, H. Glenn Holt, and James Jackson.

      . This is an action brought under the authority of 42 U.S.C., § 1983, and commonly referred to by lawyers as a 1983 claim.

      . This name is correctly spelled “Mattocks.”


author: MADDOX, Justice.

text:
    GREAT SOUTHWEST FIRE INSURANCE CO. v. Jim STONE.
    79-897.
    Supreme Court of Alabama.
    July 24, 1981.
    Benjamin R. Rice of Williams, Spurrier & Rice, Huntsville, for appellant.
    Audrey L. Roberts, Huntsville, for appel-lee.
   MADDOX, Justice.

Was it error for the trial court to grant an insured’s motion for a directed verdict as to his insurer’s affirmative defenses of arson, willful concealment of facts, or misrepresentation? That is the critical question presented by the insurer’s appeal.

The facts, succinctly stated, are as follows:

Appellee Jim Stone was the operator of a nightclub in Huntsville which was damaged by fire. Great Southwest Fire Insurance Company refused to cover the loss caused by the fire.

Stone filed suit in which he sought recovery for the damage he claimed he suffered. Great Southwest filed a general denial and, in addition, asserted defenses of willful concealment and misrepresentation by Stone, and alleged that Stone was guilty of arson which resulted in the damage to the property.

The insured, in his brief on appeal, argues why he thinks that the action of the trial court in directing a verdict on his insurer’s affirmative defenses was proper. He argues:

The standard by which the trial court must determine the propriety of granting a motion for a directed verdict is the scintilla rule. ARCP 50(e). A directed verdict may not be given where the evidence is open to a reasonable inference of a material fact unfavorable to the moving party. Alford v. City of Gadsden, 349 So.2d 1132 (Ala. 1977). Stated another way, where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the party opposing the motion, and it is only where the facts are such that reasonable men must draw the same conclusions from them that the issue becomes one of law for the court to determine; otherwise, the question is one of fact for determination by the trier of facts. ARCP 50(e); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).
It is not necessary for the insurer to prove the defense of arson beyond all reasonable doubt, but a preponderance of the evidence suffices. Such proof may be made by circumstantial evidence, if the inferences are not too remote and ail circumstances, including the inferences, are of sufficient force to bring minds of ordinary intelligence to a persuasion of incendiarism by a fair preponderance of the evidence. Appleman, Insurance Law and Practice § 12682, pp. 89-90. To sustain the defense of arson, the insurer, when relying on circumstantial proof, must present evidence which is so convincing that it will sustain no other reasonable hypothesis but that the plaintiff was responsible for the fire. Wallace v. State Farm Fire and Casualty Insurance Company, 345 So.2d 1004 (La.App.1977), Sumrall v. Providence Washington Insurance Company, 221 La. 634, 60 So.2d 68 (1952). Evidence which affords nothing more than mere speculation, conjecture, or guess is wholly insufficient to warrant submission of the case to the jury. Headrick v. United Insurance Company of America, 279 Ala. 82, 181 So.2d 896 (1966); Talbert and Sharkey, Inc. v. South Carolina Ins. Co., (La.1967), 200 So.2d 10; Jamaica Time Petroleum, Inc. v. Federal Ins. Co., 366 F.2d 156 (10th Cir.1966), cert. denied 87 S.Ct. 753, 385 U.S. 1024, 17 L.Ed.2d 674. See also Pacific Fire Ins. Co. v. Overton, 256 Ala. 400, 55 So.2d 123 (1951). The scintilla rule as to evidence does not conflict with the above rule that speculation cannot support a verdict. Continental Casualty Co. v. Paul, 209 Ala. 166, 95 So. 814 (1923).
To establish a prima facie case of arson for the purpose of denying coverage under the fire policy, the defendant would have to prove by competent and relevant evidence arson by someone, motive by the plaintiff and unexplained surrounding circumstantial evidence implicating the plaintiff. Lawson v. State Farm Fire and Casualty Ins. Co., 585 P.2d 318 (Colo.App.1978); Cora Pub, Inc. v. Continental Casualty Company, 619 F.2d 482 (5th Cir. 1980).

The insurance company contends that where there is some evidence to support its special plea that the insured willfully burned the property covered by the policy, then the question should be submitted to the jury. The company cites Great American Insurance Company v. Dover, 221 Ala. 612, 130 So. 335 (1930), and American Insurance Company of Newark, N.J. v. Fuller, 224 Ala. 387, 140 So. 555 (1932). The insurance company contends that proof of arson may be made by circumstantial evidence and that “cases of this nature consist almost wholly of circumstantial evidence.” Raphtis v. St. Paul Fire and Marine Insurance Company, 86 S.D. 491, 198 N.W.2d 505 (1972). In short, the company contends that there was ample evidence from which the jury could have inferred that Jim Stone committed arson and was responsible for the fire that damaged or destroyed the insured property. In support of its contention, the company argues:

That the fire in question was of incendiary origin and the result of arson by some party cannot be in doubt. The evidence offered at trial regarding the origin of the fire showed, without contradiction, that there were actually four fires set at different locations within the building and originated from plastic containers containing gasoline or a similar substance. Such a circumstance did not result from accident and no other cause for the fire was offered.
The evidence connecting Jim Stone with the arson and from which opportunity to commit the arson could be inferred was extensive. First, Jim Stone and his girlfriend were the last persons to have left the club prior to the fire and at the time they left no one else was present and they locked the doors before leaving. The last person to leave the building before a fire creates a circumstance which courts have deemed important to arson cases. Raphtis v. St. Paul Fire and Ma rine Insurance Company, supra. Stone left the club at approximately 3:00 A.M. The fire was discovered at 4:28 A.M. and was considered to have been burning for approximately one to one and a half hours prior to the time of discovery. Therefore, Stone, by his own testimony, would have been on the premises during the period of time in which the fire could have been started. Again, this is a factor that courts have considered to be of importance in arson cases. Crown Colony Distributors, Inc. v. United States Fire Insurance Company, 510 F.2d 544 (5th Cir. 1975); Lawson v. State Farm Fire and Casualty Insurance Company, 585 P.2d 318 (Colo.App.1978).
There was ample evidence from which the jury could have believed that the person or persons who committed the arson had a key to the premises. When the fire department arrived at the scene the doors to the building were locked and forcible entry was required. Although one opening was found in the attic area, this opening, on the outside of the club, was ten to twelve feet from the ground, no means of reaching the opening from the ground was found on the outside of the building and there was no evidence that anyone had crawled the considerable distance through the attic from the outside opening to the interior opening. In short, the jury could easily have inferred that this opening was not used as a means of entry and exit by anyone committing the arson. Jim Stone and his girlfriend were the only persons who had keys to the club. Quite naturally, the question of access is of great importance and, again, courts have taken notice of the existence and whereabouts of keys where the access to a premises has been limited. Gregory’s Continental Coiffures and Boutique, Inc. v. St. Paul Fire and Marine Insurance Company, 536 F.2d 1187 (7th Cir. 1976); Stein v. Girard Insurance Company of Philadelphia, Pa., 259 F.2d 764 (7th Cir. 1958); Esquire Restaurant, Inc. v. Commonwealth Insurance Company of New York, 393 F.2d 111 (7th Cir. 1968).
Additionally, the testimony revealed that an emptied gas can was found on the insured premises and that the burglar alarm was inoperative.
With regard to the third element of motive, there was again ample evidence from which the jury could infer a motive on the part of Jim Stone to burn the property. The proof of loss filed by Stone claimed $30,338.18. Stone had originally paid $6,475.00 to the owners of the club and had agreed to assume certain debts. As previously listed the debts incurred or assumed by Stone totaled approximately $10,000.00. Based upon the testimony of John Erskine Moore, Willy Phillips and Jim Stone, it appears that Stone invested approximately $5,300.00 in constructing the dance floor and making improvements to the building. This would be a total investment of approximately $21,000.00. Therefore, had Stone decided, for whatever reason, that he would prefer to have cash money, then, assuming he collected the full amount of his proof of loss, he could have realized a profit of approximately $9,000.00
However, the strongest evidence indicating motive on the part of Jim Stone is the testimony of David Milly. Stone testified that the fair market value of his dance floor was $15,000.00 although he had an actual investment in the dance floor of only $2,700.00. Stone, according to David Milly, attempted to obtain with the payment of drugs fake invoices to be supplied to Great Southwest Fire Insurance Company. Had David Milly cooperated with Jim Stone in this regard and had fake invoices been prepared that would have substantiated a value of $15,-000.00 for the dance floor in question, then Jim Stone could have immediately realized a profit of $12,300.00 even if the dance floor had been the only property destroyed. Had he so desired, these proceeds would have been more than sufficient to have eliminated his existing indebtedness. The fact that David. Milly refused to cooperate with him does not eliminate the suggested scheme as a motive for the arson.
Thus, the evidence would support three different motives that Jim Stone could have had for burning the property in question. First, the evidence would support the inference that he simply desired to obtain cash and realize a profit on his original investment. Secondly, had his effort to obtain fake invoices worked, he could have realized an even greater profit on his investment by means of the inflated value of the dance floor. Thirdly, even had he desired to remain in business, the use of the fake invoices would have provided him with a means of repairing any damage done while at the same time realizing a sufficient profit to eliminate his debt or to provide cash money for his pocket.
It is clear from the foregoing that there was ample evidence from which a jury could have inferred the existence of the necessary elements of the defense of arson. Evidence of a similar nature has previously been held sufficient for consideration by the jury. Don Burton, Inc. v. Aetna Life and Casualty Company, 575 F.2d 702 (9th Cir. 1978); Lawson v. State Farm Fire and Casualty Insurance Company, supra; ELGI Holding Company Inc. v. Insurance Company of North America, 511 F.2d 957 (2nd Cir. 1975); Stein v. Girard Insurance Company of Philadelphia, Pa., supra.

The insured, on the other hand, claims that “there was no credible proof whatsoever that Jim Stone had any reason to destroy his own business.” The insured claims that the record shows that “he was an intelligent, productive worker and an innovative, successful club manager.” He also contends that the record is uncontroverted that the business was a failure before he took it over and that “within two months, the un-controverted proof shows that the club attendance was so good that there was standing room only.... ” Insured contends basically that all of the facts on the issue of motive presented by the insurance company were circumstantial, and that “[gjiven these facts, there are no controverted issues of fact upon which reasonable men could differ as to plaintiff’s motive to burn the building and the plaintiff was due a directed verdict as to defendant’s defense of arson. 5A Moore’s Federal Practice, ¶ 50.-02(1) (2d Ed. 1974); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Deal v. Johnson, 362 So.2d 214 (Ala.1978); Wagnon v. Patterson, 260 Ala. 297, 70 So.2d 244 (1954); Progressive Casualty Insurance Co. v. Blythe, 350 So.2d 1062 (Ala.Civ.App.1977).”

The insured addresses the insurance company’s argument that he had an opportunity to commit the arson as follows:

It [the insurance company] does not offer to explain how it could make out a defense of arson by proving opportunity without motive. Neither does it show that the circumstances as proved are without an equally probable inference of innocence.

We have set out extensively the arguments of both sides in this case in an effort to show that, under Alabama law, the direction of a verdict on the insurance company’s affirmative defenses in this case was inappropriate and is due to be reversed. Under the scintilla rule, the entire evidence must be viewed in a light favorable to the opponent of the motion, and a question must go to the jury if the evidence, or any reasonable inference arising therefrom, furnishes the smallest trace of support for his theory. Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).

After reviewing the evidence and arguments of both sides in this case, we find that there is at least a reasonable inference arising from the evidence that the insured willfully burned the property covered by the policy. For this reason, the judgment of the trial court directing a verdict on the insurance company’s affirmative defenses was erroneous and is due to be reversed.

The insurance company, on appeal, also claims that the trial court erred in allowing testimony pertaining to the value of certain improvements that were not the improve-merits for which the damage was claimed, and that the trial court erred in denying its motion for a new trial. We do not address either of these issues on this appeal because we have reversed the judgment of the trial court on the central issue.

REVERSED AND REMANDED.

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


text:
    Ocie WILLIAMS v. Barrington FORD.
    79-950.
    Supreme Court of Alabama.
    July 24, 1981.
    Alfred Q. Booth, Prattville, for appellant.
    David L. Hirsch, Columbus, Ga., for ap-pellee.
   MADDOX, Justice.

This is an appeal from the trial court’s order granting defendant/appellee Barring-ton Ford’s motion to dismiss for lack of in personam jurisdiction.

In July of 1979, plaintiff/appellant Ocie M. Williams, a resident of Verbena, Alabama, entered into a sales contract with defendant/appellee Barrington Ford for the purchase of a 1978 Ford Fairmont. Bar-rington Ford is a franchised Ford dealer located in Columbus, Georgia, and incorporated under the laws of the State of Georgia. It is undisputed that both the negotiations for the purchase of the automobile and the ultimate execution of the contract took place in Columbus, Georgia.

On February 5, 1980, appellant filed a complaint in the Circuit Court of Chilton County seeking damages from Barrington Ford for fraud, deceit and breach of warranty in connection with the sale of the automobile. Barrington Ford filed a motion to dismiss the complaint, alleging inter alia, that it was not a resident of the State of Alabama, does not purport to do business in Alabama, has no knowledge of goods moving from its location in the State of Georgia into or through Alabama and has no minimum contacts with the State of Alabama which might subject it to service of process by any “long arm” statute. The trial court granted Barrington Ford’s motion to dismiss but later amended its order to allow plaintiff/appellant Williams to amend his complaint. Appellant filed an amended complaint, but did not attach to his amended complaint any documents in support of it. Barrington Ford again responded with a motion to dismiss on the ground that the court lacked jurisdiction. The trial court granted this motion, finding that there were lacking sufficient minimum contacts between Barrington Ford and the State of Alabama on which it could base jurisdiction. We affirm.

In DeSotacho, Inc. v. Valnit Industries, Inc., 350 So. 447 (Ala.1977), this Court recognized that the issue of jurisdiction pursuant to “long-arm” statutes poses a federal question of whether subjection of a non-resident corporation to the jurisdiction of Alabama courts comports with federal due process. In addition, the Court quoted the following language from McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957):

“Since Pennoyer v. Neff, 95 U.S. 714 [5 Otto 714], 24 L.Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations.”

That line of limitation was drawn in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Court stated that

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Appellant argues that minimum contacts are present in this case sufficient to maintain a suit in the judicial system of Alabama; however, no documentary evidence in support of appellant’s argument is contained in the record made in the circuit court proceedings. Argument alone will not sustain a finding of in personam jurisdiction. We must affirm.

AFFIRMED.

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

      . Under Rule 10(f), Alabama Rules of Appellate Procedure, “if anything material to either party is omitted from the record by error or accident,” the appellate court may order the trial court to supplement the record with the necessary documents. On May 29, 1981, this Court ordered the clerk of the circuit court to supply relevant materials concerning the amended complaint of appellant, being copies of records of the Commissioner of Revenue of the State of Alabama which show that Barrington Ford remitted use taxes to the State of Alabama in the amount of $47,540.98 for the period April 1, 1979, through March 31, 1980. On June 2, 1981, the clerk replied that the above documents were not attached to the amended complaint filed June 17, 1980; he also responded that a motion for correction of the record under Rule 10, ARAP, was filed on March 17, 1981, and then upon hearing the motion, Judge Hayden denied this motion because the attorney stated he did not attach the documents to the amended complaint. Because the documents were not produced as evidence at the trial level, we cannot consider them on appeal.


author: JONES, Justice.

text:
    Gail Griggs ANDERSON and Melanie Grace Marty v. O. C. GRIGGS.
    80-57.
    Supreme Court of Alabama.
    July 24, 1981.
    Rehearing Denied Aug. 21, 1981.

      Dan Moran and George K. Williams, Huntsville, for appellants.
    James P. Smith of Harrison, Burwell, Smith & Sutherlin, Huntsville, for appellee.
   JONES, Justice.

This will contest case presents a single issue: The propriety of the trial court’s grant of contestant’s motion for summary judgment based solely on movant’s supportive affidavit by the late Dr. Griggs’s lawyer stating that in 1973 he prepared, and Dr. Griggs executed, a “new” will (now lost), revoking the 1972 will offered for probate by proponents.

Proponents (Appellants) are a granddaughter and a great granddaughter of Dr. J. C. Griggs, who died a widower December 8, 1973. The contestant (Appellee) is the late Dr. Griggs’s only child.

This case involves multiple efforts on behalf of Appellants to prove that their deceased kinsman died testate — favoring them as beneficiaries — as opposed to having died intestate, allowing the Appellee to take the entire intestacy estate. Appellants began by filing for probate a 1972 will which was contested by Appellee and moved to the circuit court. The circuit court ruled adversely to Appellants in its February 20, 1979, order, finding that the 1972 will had been revoked by a subsequent duly executed will, which order of judgment concluded:

“. . . without prejudice to any proceedings which the proponents or any other proper person might institute in the Probate Court to establish the contents of the subsequent will.”

Immediately thereafter, Appellants sought to probate “the subsequent [lost] will” in the probate court. Again, the Ap-pellee moved the contest to the circuit court; and, again, on June 20, 1980, the court granted summary judgment adversely to Appellants, finding that, “There’s no possibility that the proponents will be able to satisfy the requirements of establishing a lost will (Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975)).” Appellants now appeal from the June 20, 1980, order and state affirmatively in their brief that the only issue presented is the propriety of the trial court’s February 20, 1979, order granting summary judgment with respect to the 1972 will.

Disclaiming any precedential value of our procedural holding, because of the sui generis posture of these proceedings, we have elected to construe these attempts to probate various wills and the contests thereof as a single case, thereby construing the February 20, 1979, order as interlocutory, thus treating the June 20, 1980, order as the final judgment. Therefore, we will treat the appeal as timely filed.

Because our resolution of the dispositive issue here presented turns on the legal sufficiency of Mr. Hardy B. Jackson’s affidavit in support of the contestant’s motion for summary judgment with respect to the revocation of the 1972 will, we now set forth the pertinent portions of that testimony:

“I prepared a will for Dr. Griggs which was executed on September 4, 1972. After the execution of the September 4, 1972 will, Dr. Griggs asked me to prepare another will for him. During the late summer of 1973 (I am not sure of the date), Dr. Griggs executed a new will in my presence. The will was in writing and was signed by the testator, Dr. J. C. Griggs, in my presence. The will was attested to by two witnesses whose names were subscribed to the will in the presence of the testator, Dr. J. C. Griggs. Finally, this will which Dr. Griggs executed in the summer of 1973, contained a revocation clause, i.e., it contained a clause revoking all papers of a testamentary nature which were heretofore executed by the testator.”

The respective contentions of the parties are summarized in Appellee’s brief:

“The testimony of Hardy B. Jackson clearly satisfies all of the requirements for proof of revocation by subsequent instrument, as set forth in ALA. CODE, § 43-1-33 (1975) and in [Allan v. Allan, 353 So.2d 1157 (Ala.1977)]. Jackson testified that the 1973 will was in writing, that it was signed by the testator, Dr. J. C. Griggs, and that it was attested to by two witnesses who subscribed their names to the will in the presence of the testator.
“In their brief, the Appellants contend that the affidavit of Hardy B. Jackson was insufficient to prove the valid execution of a subsequent will. It is their contention that, in a will contest, the will must be proved by both subscribing witnesses or their absence accounted for. With regard to a typical will contest case, the appellee freely admits that this is a substantially correct statement of the law. However, there is one exception to this rule.
“The .rule requiring that the will be proved by both subscribing witnesses (or their absence accounted for) is not applicable if the will to be proved is an allegedly lost will.”

The trial court’s “Order of Judgment,” after summarizing Mr. Jackson’s testimony, recites in part:

“Since the proponents of the will have submitted no opposing affidavits, the court has no alternative but to consider the evidence (the testimony by affidavit of Hardy B. Jackson) to be uncontrovert-ed. Thus, since the uncontroverted evidence indicates that another will was properly executed after the execution of the September 4, 1972, will, the will is deemed by law to have been revoked and cannot be admitted to probate.
“The proponents assert that the matter of proving the contents of a lost will is a question for jury deliberation. However, that issue is not now before this Court. This proceeding is not one brought to establish the contents of a lost will. The only issue before this Court is the validity of the September 4, 1972, will.”

Code 1975, § 43-1-30, sets out the requisites for a valid will:

“No will is effectual to pass real or personal property, except as otherwise provided in this article, unless the same is in writing signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.”

§ 43-1-44 prescribes the mode of proving a will offered for probate, which, in pertinent part, reads:

“(a) Wills offered for probate... must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.
“(b) If none of the subscribing witnesses to such will are produced, their insanity, death, subsequent incompetency or absence from the state must be satisfactorily shown before proof of the handwriting of the testator, or any of the subscribing witnesses, can be received; ...”

As early as 1884, the demands of this statute — a codification of the common law — were relaxed in cases which attempted to establish and probate lost wills. In Skeggs v. Horton, 82 Ala. 352, 2 So. 110 (1886), the appellant argued that the law required two subscribing witnesses to prove the validity of a will and that a single witness could not prove a lost will. This Court disagreed citing the first appellate decision in the same case which held that a lost will may be established by the testimony of a “single witness, who read and remembers the contents of the will. . . . ” Jaques v. Horton, 76 Ala. 238 (1884). The lost will exception — itself a product of the common law — has been preserved and read into the statute by this Court’s decisions, so that a “lost will may be established by the testimony of a single witness, who read it, or heard it read, and remembers its contents.” Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901 (1960); Martin v. Wagner, 247 Ala. 591, 25 So.2d 409 (1946); Allen v. Scruggs, 190 Ala. 654, 67 So. 301 (1914).

The exclusive methods by which wills may be revoked are set out in § 43-1-33:

“Except in the cases provided in article 1 of this chapter, a will in writing can only be revoked by burning, tearing, cancel-ling or obliterating the same, with the intention of revoking it, by the testator himself, or by some jjerson in his presence, and by his direction, or by some other will in writing, or some other writing subscribed by the testator, and attested as prescribed in section 43-1-30. When any will is burned, torn, cancelled or obliterated by any person other than the testator, his direction, and consent thereto and the fact of such burning, cancelling, tearing or obliteration must be proved by at least two witnesses.”

Strict adherence to the requirements of this section is necessary to accomplish an effective revocation because “Section 26, Title 61, Code [§ 43-1-33], provides the only method by which a will can be revoked.” Kelley v. Sutliff, 257 Ala. 371, 59 So.2d 65 (1952); Parker v. Foreman, 252 Ala. 77, 39 So.2d 574 (1949). See Barker v. Bell, 46 Ala. 216 (1871). This standard of proof, therefore, has been consistently applied by this Court where a party asserts revocation of a will by a subsequent will. Allan v. Allan, 353 So.2d 1157 (Ala.1977); Brooks v. Everett, 271 Ala. 354, 124 So.2d 105 (1960).

Appellee contends that the testimony of Hardy Jackson is sufficient to establish the validity of Dr. Griggs’s lost will, despite a lack of any evidence of its contents, and thereby to revoke his prior will. Unquestionably, had the lost will to which Mr. Jackson’s testimony alluded been offered for probate, the statement of facts contained in his affidavit would not meet the requisites of the “lost will exception” to § 43-1-44. Our decisions involving the establishment of the validity of lost wills consistently hold that one of the requirements to be met is that the single testifying witness “remember the contents” of the lost will which he read or which was read to him. It must be understood, then, from the cases cited above that an essential element in the proof or establishment of a lost will is an assertion of a knowledge of the contents of the lost document.

It is conceded that human memory is not faultless and some latitude must be permitted when determining the contents of a lost will. We feel, however, that this has been adequately addressed by the Court:

“In proving, to sufficiency, the contents of a lost instrument, it is not necessary to prove the words of the instrument; proof of the substance of the contents is all that is required.” Allen v. Scruggs, supra, 190 Ala. at p. 659, 67 So. 301.

In the later case of Brooks v. Everett, supra, the “single witness” was the lawyer who drew up the lost will in question. While he could “not remember all the contents of the lost will,” he did recall certain particular devises of real and personal property, and also recalled that the first paragraph of the will stated: “I do hereby revoke all testamentary dispositions by me heretofore made.” Brooks, 271 Ala. at p. 357, 124 So.2d 105. The Court in Brooks restated the test for establishing a lost will (testimony of a single witness, who read it, or heard it read, and remembers its contents) and added that “proof of a lost instrument as a will is sufficient and the exact words need not be shown.” Brooks, 271 Ala. at p. 359, 124 So.2d 105.

Mr. Jackson’s affidavit, in which he verified the due execution of this later will and the fact that it contained a revocation clause, pointedly refrained from any comment as to the contents of the will. The provisions of §§ 43-1-30 (requirements for a valid will) and 43-1-33 (methods for revoking a will) contemplate “will-in-hand” situations which obviously supply the Court with the necessary contents of the will at issue. This Court has not allowed proof of the requisites of these two Code sections as to a lost will unless that proof is also sufficient to invoke the exception to § 43-1-44 —the method of proving a will for probate and the only and ultimate end of proving the valid execution of any will.

The exception, which relaxes the requisite proof for probating a lost will, is in keeping with the public policy of this State in carrying out the last intent of the testator. Therefore, rather than being in furtherance of Dr. Griggs’s intent to die testate, Appellee’s construction of the lost will exception would act to the contrary in permitting proof of the mere execution of a lost will, without proof of its contents, to serve as a means of revoking a prior will, thus producing intestacy.

We recognize that Appellee’s intent has never been to prove the contents of Dr. Griggs’s lost will. Indeed, Appellee would have this Court extend the scope of the lost will exception so as to allow proof of the due execution of the lost will for the express purpose of rendering Dr. Griggs intestate. This we cannot do. Our decisions requiring proof of the contents of a lost will, or the substance thereof, in establishing the validity of the lost will, in their primary application, consistently prevent the outcome which Appellee seeks and uphold this Court’s preference for testacy over intestacy if at all possible.

As this Court has stated:

“[It] is not to be presumed that the testator intended to die intestate as to any portion of his property, unless the contrary intention is so plain as to compel a different conclusion. Arrington v. Brown, 235 Ala. 196, 178 So. 218 [1938]..."

Baker v. Wright, 257 Ala. 697, 703, 60 So.2d 825 (1952). We find no evidence in the case before us to indicate any intention on the part of Dr. Griggs to die intestate. On the contrary, the evidence points to the single conclusion that Dr. Griggs’s principal objective was the testamentary administration of his property according to his wishes.

The inherent evil in Appellee’s position was discussed in Justice Mayfield’s dissent in Bruce v. Sierra, 175 Ala. 517, 57 So. 709 (1912), which held that a legally executed subsequent will revokes all prior wills without proof of the contents of the subsequent will. Justice Mayfield, in a strong dissent, stated that, as one of the authors of the statute (§ 43-1-33), he had never intended the construction placed on the statute by the majority decision. He went on to say:

“The evil of the rule announced will be clearly shown in this case, if contestant is able to prove the execution of a second will .... [A]s the last will is lost and its contents are not proven, it cannot be probated, yet nevertheless it will revoke the first, and thus testatrix’s will, whether expressed in one or two instruments, will be entirely defeated, and therefore, in law, she will have died intestate, and all the objects of her bounty will be entirely deprived of their property, or, at best, of the interest therein that testatrix intended that they should have.
“I am wholly unable to understand the reason or the logic in any such holding. Instead of being a rule to preserve the rights of property, its necessary effect is to destroy such rights.” Bruce v. Sierra, at pp. 531-532, 57 So. 709.

Because the post-S/erra cases, as noted above, have consistently required proof of at least the substance of the contents of a lost will, this Court has not rendered a decision which fulfills Justice Mayfield’s dire prophecy; nor do we here.

Why, then, does this Court consistently uphold and apply this exception and permit less stringent standards to govern in cases seeking to establish lost wills? The question contains its answer: We are dealing with wills — those sacred documents whereby individuals may control the disposition of the estates they have spent their lifetimes building. Our recognition of the importance of the ultimate effect of the testamentary administration of a decedent’s estate, as opposed to its passing under Alabama’s descent and distribution statutes, led this Court to state that:

“[C]ertain principles governing the construction of wills in this state are settled. They are:
“(1) The intention of the testator is always the polestar in the construction of wills, and the cardinal rule is to give it effect if not prohibited by law.
“(2) The intention of the testator may be ascertained not only by the writing itself, but from the light of attending facts and circumstances, and,
“(3) In arriving at that intention, the court should consider the instrument as a whole.”

First National Bank of Birmingham v. Klein, 285 Ala. 505, 508, 234 So.2d 42, 45 (1970).

The importance of this principle was recognized as early as 1828 in Bell v. Hogan, 1 Stew. 536, and has been relied upon continuously and as recently as 1978, when Justice Shores stated: “In this state the cardinal rule in cases involving wills is the ascertainment of the intentions of the testator.” City National Bank of Birmingham v. Andrews, 355 So.2d 341, 343 (Ala.1978).

The lost will exception, then was developed in keeping with the public policy favoring the testamentary disposition of the decedent’s estate. The beneficent purpose of the lost will exception is self-evident. To require strict compliance with the statutory requisites of proof, where the document itself is lost, would defeat rather than enhance the public policy explicit in our law to effect the last intent of the deceased with respect to the disposition of his property. To effect that intent, then, the exception’s field of operation must necessarily be limited to proof of the lost will for probate. Otherwise, the application of the exception to allow less than the statutory requisites of proof for the limited purpose of revoking a prior will would defeat the very purpose for which the exception exists.

This point could hardly be more dramatically illustrated than by the facts of the case at hand. Dr. Griggs had executed numerous wills during the last years of his life, each providing in various proportions for his granddaughter and great-granddaughter. To permit revocation by use of the lost will exception, in derogation of the statutory requisites for revocation, produces the one result least likely to carry out Dr. Griggs’s intent: to die testate.

It is for this reason that the exception allowed for probating a lost will can not be read into a made an exception to the revocation statute. One who offers to prove a lost will for the purpose of revoking a former one must be prepared to live by the terms of the lost document; and what the law recognizes as an exception for the purpose of rendering an estate testate, the law cannot recognize as an exception for the limited purpose of revoking a will, thus rendering the estate intestate in derogation of the revocation statute.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Bernard M. RICHARDSON, Director, Personnel Board for Mobile County, Alabama v. Thomas J. PURVIS, Sheriff of Mobile County, Alabama, and Gary L. Tillman.
    No. 80-66.
    Supreme Court of Alabama.
    July 24, 1981.

      Mylan R. Engel of Engel & Smith, Mobile, for appellant.
    L. D. Owen, III of Hess, Atchison & Horne, Mobile, for appellees.
   PER CURIAM.

Tillman was appointed by the Sheriff of Mobile County as a corrections officer, the appointment becoming effective on September 15, 1980. The position is a classified one under the Mobile County Personnel Board. Before his appointment, Tillman was certified, along with other candidates, as being eligible for the appointment. Under Personnel Board rules, he was required to undergo a medical and physical examination. Since 1963, the Board has established minimum acceptable medical standards for various jobs.

Upon examination, the examining physician rated Tillman Class A (the highest classification) except for being blind in the left eye. The medical standards adopted by the Board in 1963 place corrections officers [then called jail guards] in Group II and require the following:

Minimum vision for Jail Guards is 20/40 one eye and 20/30 the other eye, without glasses. Minimum acceptable vision for other positions is 20/40 one eye and 20/100 the other eye, with or without glasses. For most positions lack of vision or loss of either eye_CLASS D. Applicants who have loss of vision of either eye shall not be disqualified if in the opinion of examining physician and the Director, it would not be detrimental to the proper performance of duty and would not constitute a hazard to the applicant or to others.

In addition to these standards established in 1963, the Board adopted in 1979 a policy and published it in its guide to examining physicians for their use in classifying examinees:

It is the policy of the Personnel Board for Mobile County to encourage and enable the blind, the visually handicapped, and the otherwise physically disabled, to engage in remunerative employment in positions under the jurisdiction and control of the Mobile County Personnel Board. It is the further policy of the Board that the blind, the visually handicapped, and the otherwise physically disabled, shall be eligible for employment in Merit System positions under the jurisdiction of the Mobile County Personnel Board on the same terms and conditions as the able-bodied, unless it is shown that the particular disability prevents the performance of the work involved.

The sheriff and Tillman filed this action seeking a declaratory judgment and injunc-tive relief after the respondent Richardson, personnel director, refused to place Tillman’s name on the payroll or certify the payroll.

The trial court initially granted a temporary restraining order and after a full hearing, entered an order directing the director to place Tillman’s name on the payroll. The director appealed. We affirm.

The evidence was uncontradicted that Tillman’s loss of vision in one eye did not affect his ability to perform the duties of a corrections officer. The director simply takes the position that the medical standards adopted in 1963 compel the conclusion that a person with vision in only one eye is ineligible. First of all, that position ignores the last sentence in the standards dealing with vision, which says:

Applicants who have loss of vision of either eye shall not be disqualified if in the opinion of the examining physician and the Director, it would not be detrimental to the proper performance of duty and would not constitute a hazard to the applicant or to others.

It also ignores the provision included in the Board’s guide to examining physicians which states:

It is not the intention of the Personnel Board to deny employment to any physically handicapped person unless in the opinion of the examining physician the handicap would prevent the proper performance of duty or would present a hazard to the employee himself, or to others.

In this instance, the examining physician was of the opinion that it was not detrimental to the performance by Tillman.

In fact, the record shows without contradiction that Tillman performed the exact same functions for several years before the job was placed under the merit system, and his loss of vision had no detrimental effect on his performance. The director does not challenge this fact and offered no evidence to the contrary.

The position taken by the director that the decision is his alone to make is not consistent with the language adopted by the Board. Neither is his interpretation of the standards consistent with the policy adopted by the Board in 1979 with regard to handicapped persons. At the very least, an ambiguity exists which the trial court resolved against the Board, which adopted both documents. We cannot say that its conclusion was wrong. Acker v. Protective Life Insurance Co., 353 So.2d 1150 (Ala.1977).

Appellant’s contentions that reversal is required because of alleged irregularities in the original complaint are not well taken. Upon examination, we find that it substantially complied with ARCP 65(b) and, even had it not technically done so, no injury resulted in this case, since a full hearing with notice to all parties was held, which resulted in the TRO granted on the original complaint being made permanent. See ARAP 45 and Dobbins v. Getz Exterminators of Alabama, Inc., 382 So.2d 1135 (Ala.Civ.App.1980).

The judgment appealed from is affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    SHERIFF OF HOUSTON COUNTY, Alabama, et al. v. ALBERTSON’S, INC., a Corporation.
    80-111.
    Supreme Court of Alabama.
    July 24, 1981.

      Thomas W. Sorrells, Dothan, for appellants.
    G. R. Lewis of Lewis & Brackin, Dothan, for appellee.
   SHORES, Justice.

This is an appeal from an order permanently enjoining the sheriff and other law enforcement officers from instituting charges or arresting employees of Albert-son’s for operating businesses on Sunday in alleged violation of § 13A-12-1, Code 1975, the Sunday Blue Laws.

The trial judge found that the legislation was so vague, ambiguous and uncertain that it is impossible of uniform interpretation by persons of reasonable intelligence. He also found that the attempted enforcement of the law as to Albertson’s amounted to an unequal, invidious and discriminatory enforcement of the law which deprived Al-bertson’s of its property rights and of the equal protection and due process of law guarantees of the Constitutions of the United States and the State of Alabama. We need not again address the issue of the constitutionality of the Sunday Blue Laws on their face, because the record supports without question a finding that their application to Albertson’s amounted to an unequal, invidious, and discriminatory enforcement of the law as to it. On this basis, the judgment of the trial court is affirmed.

On two successive Sundays, Albertson’s manager and assistant manager were arrested for violation of the Sunday Blue Laws. Albertson’s then filed this action seeking an injunction. After a full hearing, the trial court entered the order appealed from.

The sheriff testified that he cannot interpret and apply the laws uniformly. Although the evidence shows that there are literally hundreds of businesses which operate on Sunday in violation of the law, the sheriff testified that in the fourteen years he has been sheriff, he and his deputies had made only about eight arrests and, except for the Albertson’s arrests, no other arrests for violations had been made during the past five years. The mayor of Dothan testified that the city had adopted all the misdemeanor statutes of the State of Alabama as ordinances of the city, but neither he nor the police chief of the city could interpret the laws and enforce them fairly and uniformly. The mayor testified that the city police department had made one arrest in the last several years, but that was “thrown out,” and the city had not made any more arrests. The sheriff, mayor, chief of police, and district attorney had had meetings about enforcing the laws, and “we felt like the best way to handle it was that we would enforce the law if the citizens would come in and get the warrant; we felt like that was the best way to do it. In other words, we decided that instead of doing the thing on our own at that particular time, that we would just let the citizens come in and file a complaint and get a warrant. Then we would enforce the law that way.”

There was further testimony that attention focused on Albertson’s after it ran some newspaper advertisements indicating that it would be open on Sundays.

Albertson’s is licensed to operate a drug store, a delicatessen and restaurant, a convenience store, and a grocery store. It is entitled to operate a grocery store on Sunday by Act No. 365, passed by the 1976 legislature, if it employs no more than four employees. It contended that it was employing no more than four employees in its grocery operation on the Sundays involved, but the court found otherwise. In view of the decision reached by the trial court and our holding here, that issue need not be addressed.

In a case strikingly similar on the facts, the Court of Criminal Appeals reversed a conviction for violation of the Sunday Blue Laws in Simonetti v. City of Birmingham, 55 Ala.App. 163, 314 So.2d 83 (1975), holding that the unequal enforcement of the law offended the equal protection clause of the Constitution of the United States. There, the court found, as the trial court has in this case, that the city did not enforce the Blue Laws equally, but instead had a pattern of not enforcing them on a nondiscriminatory basis. The Court of Criminal Appeals quoted with approval an opinion by Judge Pointer, United States District Judge for the Northern District of Alabama, in a case brought by Lawhon Furniture Company, alleging discriminatory enforcement of the Sunday closing laws by the Jefferson County Sheriff’s Department. Judge Pointer said:

“The question then, becomes, in order to make out the case, must the plaintiff prove [an] intentional sort of malicious discrimination and enforcement, or is it sufficient if the plaintiff proves that whatever the reason or justification, nevertheless in actual fact it works out unequally and invidiously toward him or it. I think it is the latter. And if the Sheriffs Department, as I’m convinced under the evidence, cannot fully enforce this type of law throughout the entire county on a completely equal basis, then it should not be permitted to let its forces be directed as against one particular company in effect unequally, that is what it turns out to be, and again not from any intent to harm, but simply as the sheer result of the fact that there are other items, much more important that the Sheriff’s Department could be doing ultimately than dealing with the victimless crime involving a number of its patrol cars in this type of investigative work. * * * Either you have got to do it more equally than you have done ... or not do it.”

55 Ala.App. at 172, 314 So.2d 83.

We think Judge Pointer is correct and agree with his reasoning.

As the Court of Criminal Appeals noted in Simonetti, a statute may be constitutional, and yet run afoul of the Constitution if it is unevenly applied. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Supreme Court of the United States addressed this principle:

“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”

The evidence in this case falls squarely within the above prohibition. Therefore, we affirm the trial court’s holding that Albertson’s rights under the Constitutions of this state and the United States were violated by the unequal enforcement of the Sunday closing laws by the defendants in this case. So long as the law is unevenly enforced in Houston County and in the city of Dothan, the injunction granted by the trial court is due to remain in place.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Glossie GIBBONS v. Dorothy ALLEN, et al.
    80-135.
    Supreme Court of Alabama.
    July 24, 1981.

      Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, and Michael Figures of Crawford, Figures & Irby, Mobile, for appellant.
    J. Myron Smith and Theron O. McDowell, Jr., Prattville, John M. Higgins, Clanton, and Joseph M. Sarto of Howell, Sarto & Howell, Prattville, for appellees.
   BEATTY, Justice.

This is an appeal from a decree ordering the sale of certain real property for division. We reverse and remand.

The plaintiffs-appellees filed their complaint on December 6, 1978, alleging that they and the defendants were tenants in common of certain real estate in Autauga County, that it could not be equitably divided without a sale of it for division, and prayed for that sale and division of the proceeds. The complaint was amended on January 15, 1979, in order to realign some of the parties. On May 17, 1979, six of the defendants filed an answer and counterclaim to the amended petition, followed by the filing, on June 1, 1979, of an answer on behalf of certain minor defendants.

On July 18, 1979, one of the defendants, Glossie Gibbons, filed a request to purchase the interest of the plaintiffs in the subject property. The cross-plaintiffs filed a motion to strike this request on August 6, 1979, whereupon on August 7, 1979, the defendant Gibbons filed his amended request to purchase the interest of “the plaintiffs and any defendants who wish to sell the property ... at the reasonable and fair market value. .. . ” The defendants filed their answer to the cross-claims on August 7, 1979, and Gibbons filed his answer to the amended petition on October 15, 1979.

On November 9, 1979, the plaintiffs filed a motion to strike Gibbons’s request to purchase, alleging that Act 79-334 (Code of 1975, § 35-6-103) was unconstitutional on the ground of equal protection. The cross-plaintiffs filed a like motion to strike on similar grounds, alleging also that the acts destroyed the right of tenants in common, at their election, to a sale at public outcry to the highest and best bidder, or to a private sale in a free market.

On December 17, 1979, the trial court, following a hearing on the request to purchase and the motions to strike, entered a decree granting those motions. The reasons given for this action may be summarized as follows:

1. A denial of equal protection, in that plaintiffs and the defendants belong to the same class, but the statute allows only the defendants to purchase the property;

2. A denial of due process of law, in that the allowance of a value fixed by court-appointed appraisers denies to plaintiffs any procedure for questioning the basis of values ascertained;

3. A denial of the right of free alienation of an interest in land in the market place through a public or private sale.

The plaintiffs moved for a final hearing on March 5,1980, and on March 8,1980, the trial court set the cause for a final hearing on April 25, 1980.

Apparently the necessity for subsequent pleading delayed the final hearings, viz., a second amended petition for sale for division was filed on July 7, 1980. Glossie Gibbons filed his answer on July 28, 1980, and the defendants-cross-plaintiffs answered on September 11, 1980. On August 14, 1980, the trial court ordered the final hearing to occur on September 12. 1980, and on that date ordered the sale.

This case is analogous to Kittrell v. Benjamin, Ala., 396 So.2d 93 (1981) and Madison v. Lambert, Ala., 399 So.2d 840 (1981), wherein similar attacks were made upon the constitutionality of § 35-6-103. The exhaustive analyses in those cases explain away any denial of either due process or equal protection to those who are parties to the proceeding. With regard to the objection that the values of the interests fixed by appraisers cannot thereafter be questioned, we take note that, under § 35-6-101 the Court is required to appoint competent appraisers. And under § 35-6-101, payment is to be approved by the Court. Nothing contained in those statutes prevents objection to the competence of the appraisers or to the amount set by them as the values of the interests to be purchased, as explained in Madison, supra. Should any such issues arise, the Court is not without authority to resolve them according to its traditional practice.

We note also that this petition was filed on December 6,1978, before the effective date of § 35-6-100, which was July 17, 1979. The date of the final hearing in this case, however, was September 12, 1980.

In Kittrell, this same factual situation was considered, i.e., whether § 35-6-100 was applicable to the facts inasmuch as the action was filed before the statute’s effective date. Section 35-6-100 states:

Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.

We held in Kittreh that these facts did not require retrospective application because of the language “the date set for trial of the case .... ” In other words,

[i]f § 35-6-100 was effective prior to the date set for trial and if the defendants’ request was made “not later than 10 days prior to the date set for trial,” § 35-6-100 should have been applied. [396 So.2d 95.]

Under the facts in this case the request of Glossie Gibbons was timely filed.

Accordingly the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.

REVERSED AND REMANDED.

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


text:
    BALDWIN MUTUAL INSURANCE CO., INC., a corporation v. BLUME, INC., a corporation.
    80-216.
    Supreme Court of Alabama.
    July 24, 1981.
    James R. Owen of Owen & Ball, Bay Minette, for appellant.
    Michael J. Salmon, Gulf Shores, for ap-pellee.
   MADDOX, Justice.

Plaintiff Blume, Inc., a corporation, sued Baldwin Mutual Insurance Co., Inc., a corporation, claiming that the company had insured the subject premises against loss or injury by fire, windstorm or other perils as set forth in the policy, and that the subject property was damaged by windstorm on September 12, 1979 (Hurricane Frederic), and that it was entitled to recover the sum of $32,500 interest and costs.

The case was tried before a jury. The insurance company primarily contended that the policy did not insure a loss resulting “directly or indirectly from flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind.”

It is quite apparent that the critical issue for the jury to decide was whether plaintiff’s damage was caused by “windstorm” or water.

The issues on this appeal do not concern any evidentiary rulings by the trial court. Appellant states the issue as follows: “Did the court err to reversal in its refusal to charge the jury that the burden of proof in the instant case was upon the plaintiff”? We have carefully reviewed the oral instructions given by the court to the jury, and we have reviewed the objections raised by the defendant in connection with those instructions. The defendant requested the following written instructions:

The Court charges the Jury that the insurance policy in this case does not cover loss resulting directly or indirectly from flood, surface water, waves, tidal water, overflow of a body of water or spray from any of these, whether or not driven by wind.

The trial judge refused to give this requested written instruction.

Counsel’s objection to the court’s oral instruction and to the court’s failure to give his requested instruction was as follows:

MR. OWEN:
Judge, we except, because I don’t believe you charged the Jury as to the burden is on the Plaintiff to prove every material allegation of the Complaint. Second, I’m afraid you left the Jury with the impression that they have to give them everything or give them nothing, which of course, is not true. They can give them anything up to thirty-two five but there is testimony by Mr. Hoik that the windstorm, if they believed him, they could give him up to thirty-five hundred dollars under his testimony or they can give them less. But it’s something for them to determine what part, if any, or what percentage, if any, was caused by windstorm and what percentage, if any was caused by flood and thereby reach their verdict. If it was all by windstorm then they are entitled to all of it, and if it is all by flood then they are not entitled to anything. I’m afraid you left them with the impression that they have to give it all or nothing.

Did the court err to reversal in refusing to instruct the jury as to the burden of proof? We think not. In the case of City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980), this Court discussed a similar exception to the failure of the court to give additional instructions. There this Court said:

It is not necessary for us to determine whether the substance of 27.05 and 27.06 was covered by the trial court’s oral instruction on contributory negligence because the law of this state requires that an objection to the failure to charge on a particular subject (forgetfulness and assumption of the risk in the instant case) must be by way of a requested written charge. . . .

With regard to defendant’s written requested instruction, we note that counsel for defendant did not object to the trial court’s failure to give his written requested instruction and state the matter to which he objected and the grounds for his objection. Rule 51, A.R.C.P. Furthermore, after an examination of the entire cause, including the pleadings, the issues presented to the jury, and the oral instruction by the court, the error which appellant complains of has not probably injuriously affected the substantial rights of the company. Rule 45, A.R.A.P. The judgment is due to be affirmed.

AFFIRMED.

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


text:
    Samuel WILKINS v. INSURANCE COMPANY OF NORTH AMERICA, etc., et al.
    80-226.
    Supreme Court of Alabama.
    July 24, 1981.
    Rehearing Denied Aug. 21, 1981.
    Lloyd W. Gathins of Emond & Vines, Birmingham, for appellant.

      Jack J. Hall of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees Ins. Co. of North America, Alfred Norris and A1 Pearson.
    Larry W. Harper of Porterfield, Scholl, Clark & Harper, Birmingham, for appellees J. D. Mason and Maurice Oxner.
   PER CURIAM.

Affirmed on the authority of Fowlkes v. Liberty Mutual Insurance Company, 392 So.2d 803 (Ala.1980).

AFFIRMED.

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