author: SHORES, Justice. JONES, Justice EMBRY, Justice

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY v. Thad Ira PIGOTT, as Administrator of the Estate of Patrick Pigott, deceased, et al.
    79-543.
    Supreme Court of Alabama.
    Feb. 6, 1981.

      Olin W. Zeanah and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    James G. Lee of Lee, Barrett & Mullins, Tuscaloosa, for appellees.
   SHORES, Justice.

This is a declaratory judgment action by Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau) which seeks a determination regarding its rights and obligations concerning Thad Ira Pigott, as administrator of the estate of Patrick Pigott, deceased, under the uninsured motorist and medical payment provisions of certain automobile liability insurance policies issued by that insurance company. The trial judge held that Patrick Pigott, an unborn child at the time of an automobile accident in which his mother was involved, was an insured within the meaning of these policy provisions. From the judgment so holding this appeal is taken.

The issue to be resolved is whether Patrick Pigott, deceased, an unborn child at the time of the accident in which his mother was involved, was at that time, within the meaning of the policies, a relative of the named insured, Thad Ira Pigott, and a resident of the named insured’s household.

This case was submitted to the trial court on a stipulation of facts and documentary evidence. The facts are that Tamera (“Tammy”) Faye Pigott was insured in an automobile accident on Alabama Highway 69 near Northport, Alabama, on January 3, 1979. She was riding as a passenger in an automobile driven by Brenda Jean Jones, an uninsured motorist. As a result of the accident, Brenda Jones died and Tammy Pigott was rendered comatose.

At the time of the accident, Tammy Pi-gott was residing with her natural mother, Anita Boyd Pigott, and her adoptive father, Thad Ira Pigott, and was pregnant, of which fact Thad Pigott was unaware. She was then unmarried and had never been married.

On March 8, 1979, Tammy Pigott while still in a comatose state, gave birth to Patrick Pigott, who died one day later. Hospital records show that Patrick Pigott’s gestational age at birth was between 28 and 30 weeks. Due to her comatose condition, Tammy Pigott was declared non compos mentis and Thad Ira Pigott was appointed guardian of her estate and administrator of the estate of Patrick Pigott. Suit was brought against Edward Morgan, as administrator of the estate of Brenda Jones, and others, by Thad Ira Pigott, individually, as guardian of the estate of Tammy Pigott, and as administrator of the estate of Patrick Pigott, deceased, alleging, inter alia, injuries to the unborn child and the resultant death of Patrick.

Four policies of automobile liability insurance issued by Farm Bureau to Thad Ira Pigott, as named insured, on four automobiles owned by him, were in effect on the date of the accident. The provisions of these policies pertinent to this case, identical in each policy, read as follows:

INSURING AGREEMENT III — UNINSURED MOTORIST
Coverage M — Damages for Bodily Injury Caused by Uninsured Automobiles.
The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages except punitive damages (other than for death) from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile....
******
(a) Insured. The unqualified word “Insured” means
(1) the First Named Insured as stated in the policy and while residents of the same household, the spouse of any such Named Insured and relative of either. ...
INSURING AGREEMENT I — THE AUTOMOBILE
******
Coverage C — Medical Payments.
To pay the reasonable expense of necessary medical, dental, x-ray, eyeglasses, hearing aids, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident. ...
******
DEFINITIONS — INSURING AGREEMENTS I AND II
Named Insured — means the individual so designated in the declarations and also includes the spouse, if a resident of the same household.
Insured — under Coverages A, B, C, C — 1, and C-2, the unqualified word “insured” includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the automobile, provided the actual use of the automobile is with the express permission of the named insured, and (4) under Coverages A and B any person or organization legally responsible for the use thereof by an insured as defined under the three subsections above.
Relative — means a relative of the named insured who is a resident of the same household.

Construing these provisions under the facts as stipulated, the trial court concluded:

[T]he Court having considered same finds that the unborn fetus, Patrick Pigott, was a resident of the same household of Thad Ira Pigott and his spouse at the time of said accident, and that said unborn fetus was, therefore, an insured under the medical pay provisions and uninsured motorist provisions of the policies of insurance issued by Plaintiff Alabama Farm Bureau Mutual Casualty Insurance Company, to Thad Ira Pigott, said policies being identified by agreement in this cause, and it is so ORDERED.

Farm Bureau appealed and points out that the gestational age of 28 to 30 weeks at birth, on March 8, 1979, placed the unborn child at a gestational age of 19 to 21 weeks on January 3, 1979, the date of the accident. Citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), which held that viability occurs at the earliest at the 24th week of pregnancy, appellant asserts the unborn child was not viable at the time of the accident. Advancing its argument, appellant contends the unborn child, lacking viability, was only a “potential human life” and “not a person in being at that stage of its existence,” Eich v. Town of Gulf Shores, 293 Ala, 95, 300 So.2d 354 (1974), and, consequently, could not have enjoyed the legal status of an insured person under the policies in question on the date of the accident, the event activating coverage.

Appellees counter with the argument that viability is not the issue, citing cases holding that, under the “relation back” doctrine, an unborn child may inherit property, Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939); share in life insurance proceeds payable to wife and children, Sauerbier v. Union Cent. Life Ins. Co., 39 Ill.App. 620 (1891); and his demise will support an action for wrongful death, Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973), regardless of viability. We agree that it is unnecessary to consider questions of viability in order to determine whether Patrick Pigott, deceased, was an insured under the pertinent policy provisions on the date of the accident.

Appellees note that Thad Ira Pigott, as administrator, has an available tort action against the uninsured motorist under the authority of Wolfe, supra, which held that a wrongful death action may be maintained for injuries to a fetus subsequently born alive, but who then dies from the injuries. Appellees add that Thad Ira Pigott, as administrator, would have been financially protected if Brenda Jones, the uninsured motorist, had complied with Alabama’s “Motor Vehicle Safety-Responsibility Act” (§ 32-7-1, et seq., Code 1975) by purchasing liability insurance, since damages awarded in a wrongful death action against Brenda Jones would be paid by her liability insurer, had she been insured.

Appellees’ argument is that policy considerations underlying our uninsured motorist statute (§ 32-7-23, Code 1975) are to provide the same protection to the injured party which would be available if the uninsured motorist had carried liability insurance.

This interpretation of the doctrine of coextensive coverage and this policy construction of our uninsured motorist statute were rejected in State Farm Automobile Insurance Company v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). Appellees in that case urged this Court to adopt the rationale of Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), wherein the Florida Supreme Court stated:

“When uninsured motorist coverage was obtained by Shelby Mullis ... for himself as the named insured, for his spouse and for his or his spouse’s relatives who are residents of his household, they were given the same protection in case of bodily injury as if the uninsured motorist had purchased automobile liability insurance in compliance with the Financial Responsibility Law.”

In response to that argument, this Court stated that “[w]e, however, cannot divine such an intent from the language of our Alabama statute. If it is deemed desirable to require insurance companies in Alabama to provide coverage to a certain class of persons in all policies under our ‘Motor Vehicle Responsibility Act,’ we think it necessary that the legislature say so specifically.”

Appellant, in Reaves, supra, argued that uninsured motorist coverage was required only for the named insured, even though the liability provisions of the policy in question extended coverage to others, including relatives of the named insured who were residents of the same household. In rejecting appellant’s argument, this Court said that once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds. Thus, the mandated reciprocal extent of uninsured motorist coverage is determined by the extent of liability coverage for which the parties have contracted in the same policy, once minimal statutory liability coverage is provided, and not by the extent of liability coverage which would have been provided in the policy of the third-party tort-feasor, if that tort-feasor had liability insurance.

It was also held in Reaves that Alabama’s Uninsured Motorist Statute, Tit. 36, § 74(62a), Code 1940 (now § 32-7-23, Code 1975), mandated uninsured motorist coverage for “persons insured thereunder,” that is, persons insured under the liability provisions of the policy. Thus, a class of insureds named in the provisions of an automobile liability policy in Alabama are provided uninsured motorist coverage regardless of whether that class is specifically named in the policy providing uninsured motorist coverage.

Therefore, the Court must look to the terms for which the parties contracted in order to ascertain the extent of coverage under uninsured motorist provisions. The specific inquiry in this case hinges on the definition of an insured under the pertinent policy provisions, as a relative of the named insured who is a resident of the same household. Appellee contends that the phrase “resident of the same household” is ambiguous, Crossett v. St. Louis Fire and Marine Insurance Co., 289 Ala. 598, 269 So.2d 869 (1972), and asks the Court to apply the well-settled rule in Alabama that where terms of an insurance policy are ambiguous, they are to be construed in favor of the insured. Mutual Life Insurance Co. of New York v. Barrett, 215 Ala. 142, 110 So. 275 (1926). We agree and adopt the construction given that phrase by the South Carolina Supreme Court in Buddin v. Nationwide Mutual Insurance Co., 250 S.C. 332, 157 S.E.2d 633 (1967):

“The insurance policy here included Horace E. Buddin as the named insured and as an additional insured ‘any relative resident of the same household.’ Any person qualifying as a resident of the same household of the insured is an additional insured under the policy. The policy here is one that extends coverage and includes as an insured any relative resident of the same household and is not a clause excluding from coverage a relative resident of the same household. The courts have uniformly held that where the clause is one of inclusion it should be broadly construed for the benefit of the insured while in exclusion cases the same clause is given a more restrictive interpretation .... This is necessary because in both situations the courts favor an interpretation in favor of coverage. The touchstone is that the phrase ‘resident of the same household’ has no absolute or precise meaning, and, if doubt exists as to the extent or fact of coverage, the language used in most policies will be understood in its most inclusive sense.”

157 S.E.2d at 635.

Appellees also urge as persuasive authority the decision of the Kentucky Court of Appeals in Orange v. State Farm Mutual Automobile Insurance Co., 443 S.W.2d 650 (Ky.1969), holding that an unborn child was a “member of the family of the insured residing in the same household as the insured” for purposes of a “family” or “household” exclusion clause of an automobile liability insurance policy. The Kentucky court based its decision on the biological relationship of the fetus to the insured and said it believed no useful purpose would be served by analyzing the various ways in which the words “family” and “household” had been defined and construed in the cases argued by the insured. We agree.

We agree with the trial court that the unborn child, subsequently born alive and named Patrick Pigott, was within the class of insureds under the uninsured motorist provisions of the four policies of automobile liability insurance issued by Farm Bureau to Thad Ira Pigott and, therefore, Thad Ira Pigott, as administrator of Patrick Pigott’s estate, does have a claim against Farm Bureau arising out of the accident, under these provisions.

Farm Bureau also asks for a declaration of the status of Thad Ira Pigott, as administrator, under the medical payments provisions of the four policies. The Alabama Motor Vehicle Safety-Responsibility Act mandates automobile liability and uninsured motorist coverage only. It does not require medical payments coverage. Bill-ups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So.2d 1097 (Ala.1977). Therefore, the question is one of contract construction to which the analyses and conclusions relating to the uninsured motorist provision, supra, equally apply. The unborn child was an insured under the medical payments provisions on the date of accident, and consequently, Thad Ira Pigott, as administrator of Patrick Pigott’s estate, has a cause of action arising out of the accident for benefits under those provisions.

The judgment appealed from is affirmed.

AFFIRMED.

MADDOX, BEATTY and ADAMS, JJ„ concur.

JONES, J., concurs specially.

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

JONES, Justice

(concurring specially):

I concur with the opinion of the Court. I reiterate several points for emphasis:

1) The reason “viability” is not an issue lies in the fact that the presumption of viability never comes into play because of the live birth of the child. It is incongruous on its face to contend that the presumption against viability at the time of injury prevails when that presumption has been conclusively rebutted by the fact that the child was born alive.

2) As the opinion correctly points out, there are two potential sources of coverage for uninsured motorist protection: a) By the terms of the policy, and b) by the mandate of the Uninsured Motorist Statute. At the very least, all persons prescribed by the Statute are covered as insureds for uninsured motorist protection whether or not such persons are included within the policy definition of insured. By the same token, the policy may include additional insureds and broader coverage than that mandated by the Statute. The important point, here, is that the coverage provisions of the policy of insurance, both as to who is insured and for what benefits, are identical to that mandated by the Statute. Thus, this Court’s interpretation of the definition of “insured” contained in the uninsured motorist provisions of the policy (resident of the named insured’s household) is dispositive of the issue presented.

3) If there is a point of difference between my approach to this issue and that of the majority opinion, it lies in my conclusion that the term “resident of the same household,” in the context here presented, is not ambiguous. To be sure, whether or not it is ambiguous is of no consequence in the result to be obtained in the instant case; and I readily concede that this same term may be ambiguous in other contexts. Here, however, the plain wording of this definition, when applied to the simple, undisputed facts of this case, leaves room for but one conclusion: This child, at all times material to the coverage issue, was a member of some household, and this was the household of his mother, which, in turn, was the household of the named insured. This abstract fact is not altered by the circumstance that the child existed as an unborn child in its mother’s womb at the time of injury, or by the further circumstance that he died on the second day following birth without having arrived “home” alive. The law that gives this child a cause of action for his injury had he lived and thus supports a wrongful death action) is the same law, operating with the same force of reason, that says he was a member of the named insured’s household for purposes of uninsured motorist coverage as defined by the policy of insurance. To say otherwise would be to reach the nonsensical conclusion that this child existed as a person, suffered death wrongfully at the hands of another; but, because of the untimely circumstances of his injury and death, he was never a member of any earthly household.

EMBRY, Justice

(dissenting):

I cannot agree that the phrase “resident of the household” is ambiguous. Appellant acknowledges the rule of construction regarding ambiguous language in contracts but asserts the equally applicable and well-settled principles enumerated by this court in Home Insurance Co. v. Pettit, 225 Ala. 487, 143 So. 839 (1932), wherein it was established that, in construing an insurance policy:

... the first important canon of construction is to ascertain, if possible, the real intention of the contracting parties. To arrive at that intention, the circumstances under which the contract was made, the object and purposes the parties had in mind, and words employed to express their meaning, should be given consideration. Words employed in the contract should be given their plain, ordinary, everyday meaning, unless it appears from the instrument itself, or from something in the circumstances of the case, to indicate to the judicial mind that words were used in some technical sense.

The word “household” has a well-known legal meaning in Alabama law. The term means or contemplates a number of persons dwelling under the same roof and composing a family. The words “household” and “family” are often used interchangeably. Pettit, supra. “Family” includes such persons as habitually reside under one roof and form one domestic circle. Blow v. State Farm Mutual Automobile Insurance Co., 284 Ala. 687, 228 So.2d 4 (1969).

A determination of whether a person is a “resident or member of the household” within the meaning of a liability policy is dependent upon several factors: (1) living under the same roof; (2) in a close, intimate and informal relationship; (3) the intended duration is likely to be substantial; (4) the duration of the relationship is consistent with the informality of that relationship; and (5) from all of which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon. Lecus v. American Mutual Insurance Co. of Boston, 81 Wis.2d 183, 260 N.W.2d 241 (1977); Pamperin v. Milwaukee Mutual Insurance Co., 55 Wis.2d 27, 197 N.W.2d 783 (1972).

Given these guidelines, I do not believe the parties contracting for the insurance policies which are here to be construed would have contemplated an unviable fetus to be a “relative of the named insured who is a resident of the same household,” within the plain, ordinary and everyday meaning of that language. This court has stated that the rule that an insurance policy should be liberally construed in favor of the insured, does not permit a strange or unusual construction of policy language in its favor. Commercial Standard Insurance Co. v. New Amsterdam Casualty Co., 272 Ala. 357, 131 So.2d 182 (1961). To stretch the phrase “resident of the same household,” so that it encompasses an unviable fetus would be an exercise in verbal gymnastics and would torture logic, unwarranted under the circumstances.

Appellees urge as persuasive authority the decision of the Kentucky Court of Appeals in Orange v. State Farm Mutual Automobile Insurance Co., 443 S.W.2d 650 (Ky.1969), holding that an unviable fetus was a “member of the family of the insured residing in the same household as the insured” for purposes of a “family” or “household” exclusion clause of an automobile liability insurance policy. The Kentucky court based its decision solely on the biological relationship of the fetus to the insured and said it believed no useful purpose would be served by analyzing the various ways in which the words “family” and “household” had been defined and construed in the cases urged by the insured. I cannot adopt that view. To refuse to ascertain the accepted meaning of the terms of the policies is to disregard the intention of the contracting parties. While blood relationship can certainly be a factor in determining if one is a member of a “family” or “household,” I think the phrase “resident of the same household,” given its ordinary, everyday meaning, connotes a relationship involving some degree of social interaction in which a fetus could not engage.

Appellees also cite Peterson v. Nationwide Mutual Insurance Co., 175 Ohio St. 551, 197 N.E.2d 194 (1964), for the proposition that a fetus can be within the class of insureds under an automobile liability policy. The subject of scrutiny in Peterson was an automobile liability policy containing a family compensation clause which extended coverage to any “person” injured in an accident in the described automobile, with the term “person” further undefined in the policy. Peterson is not relevant to the facts of this case because of the difference in the policy language construed by the Ohio court.

Based on the authorities and reasons discussed, I would hold that the unviable fetus, subsequently born alive and named Patrick Pigott, was not within the class of insureds under the uninsured motorist provisions of the four policies of automobile liability insurance issued by Farm Bureau to Thad Ira Pigott and, thereafter, Thad Ira Pigott, as administrator of Patrick Pigott’s estate, does not have a claim against Farm Bureau arising out of the accident, under these provisions.

Farm Bureau also asks for a declaration of the status of Thad Ira Pigott, as administrator, under the medical payments provisions of the four policies. The Alabama Motor Vehicle Safety-Responsibility Act mandates automobile liability and uninsured motorist coverage only. It does not require medical payments coverage. Bill-ups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So.2d 1097 (Ala.1977). Therefore, the question is one of contract construction to which my analyses and conclusions relating to the uninsured motorist provisions, supra, equally apply. The fetus was not an insured under the medical payments provisions on the date of accident and, consequently, Thad Ira Pigott, as administrator of Patrick Pigott’s estate, has no cause of action arising out of the accident for benefits under those provisions.

I would reverse the case and enter judgment here in conformity with my views expressed in this dissent.

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


source: Caselaw Access Project

author: SHORES, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    FEDERATED GUARANTY LIFE INSURANCE COMPANY, INC., a corporation v. Steve BRAGG a/k/a John S. Bragg.
    No. 78-817.
    Supreme Court of Alabama.
    Feb. 13, 1981.
    T.W. Thagard, Jr., and David R. Boyd, of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, and Kenneth T. Fuller, of Cassady, Fuller & Marsh Enterprise, and J. Thaddeus Salmon, Montgomery, for appellant.
    James Harvey Tipler, of Tipler & Tipler, Malibu, Cal., and Frank J. Tipler, Jr., of Tipler, Fuller & Sikes, Andalusia, and Gareth A. Lindsey, of Lindsey & Head, Elba, for appellee.
    John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for Association of Alabama Life Ins. Co. as amicus curiae.
   SHORES, Justice.

On February 1,1978, Federated Guaranty Life Insurance Company (Federated) filed a complaint seeking to rescind two $10,000 life insurance policies on the life of Steve Bragg, also known as John S. Bragg (Bragg). The action sought a declaration of the rights and responsibilities of the parties under these two policies. Federated contended that the policies were invalid because Bragg had made material misrepresentations in the applications for insurance and, therefore, it contended that it was legally entitled to a declaration of invalidity-

To that complaint, Bragg filed a general denial and a counterclaim alleging that, on November 8, 1976, Federated issued a $10,-000 life insurance policy, representing that Federated would waive premiums in the event of disability. Bragg alleged that this representation was false. Only one of the two $10,000 policies carried a waiver of premium provision. Bragg demanded a jury trial of all issues and sought punitive damages.

At the conclusion of Federated’s case, Bragg made an oral motion to dismiss Federated’s declaratory judgment action, contending to the trial court that Federated’s complaint did not state a justiciable controversy and was moot. The following colloquy took place.

MR. FULLER [Federated’s attorney]: Please the Court, under the allegations of Mr. Lindsey’s [Bragg’s attorney] counterclaim and under the position taken, the plaintiff attempted to cancel the policies and it was never acquiesced and never submitted to or they were never agreed to by the defendant in this case, as the evidence clearly indicates, and it’s the position of the counterclaim for that they are claiming benefits under the policy saying that we denied benefits under the policy. Therefore, once they kept the policy and did not surrender them or did not consent to the cancellation, then the policies were still outstanding and represented claims or liabilities of this company and I think the law under all of these cases says that the public policy is that disputes be settled in Court and that’s why you come in and say under the Statute, it clearly says, when a policy can be cancelled, that is under misrepresentation. Now, under his motion, if he wants to stipulate that the policies were lawfully cancelled, then I will agree that it’s a moot case.
MR. LINDSEY [Bragg’s attorney]: I will stipulate that they are terminated.
MR. FULLER: If he wants to stipulate that they were cancelled under the basis of the allegations of our complaint, then we would gladly accept that. But that’s not what he’s saying. He’s saying we illegally cancelled them. And therefore, the only testimony is that they are still outstanding.
THE COURT: All right. Let me rule, unless you all want to say something else. I am going to surprise you. I am going to grant the motion.
MR. FULLER: All right, sir. We except to the Court’s ruling. Now, did I understand by the Court’s ruling that you are saying the policies are legally can-celled?
THE COURT: No, I didn’t say that.
MR. FULLER: I would like to get that straight.
MR. LINDSEY: He said your bill for declaratory judgment is dismissed.
THE COURT: I didn’t say they are legally cancelled, all I am saying is that as I understand, his motion had to do with declaratory judgment and that complaint does not go to the jury. It is dismissed.
MR. FULLER: All right. You are dismissing my complaint for declaratory judgment and that will not be a question for the jury?
THE COURT: Right.
MR. FULLER: Yes. Contract liability under those policies because if the Court dismissed my complaint today, then it is my position that a counterclaim is automatically gone because I have either legitimately cancelled my policies or I have not. And if I have not the position that we have taken and under a bill of declaratory judgment, then they should determine that Mr. Bragg has got coverage. That’s our position. If the Court dismisses my complaint, then we say — then our position is that you say we have legally cancelled the policies and we have no further contractual liability thereon.
THE COURT: That’s what you’re saying—
MR. FULLER: That’s all I'm asking the Court to clarify on its ruling here because that’s what I have come to this Court and asked for.
THE COURT: All I’m going to say into the record is I will let the higher court straighten that aspect out. All I’m saying is that the declaratory judgment is dismissed. We are still in here on the counterclaim.
MR. FULLER: All right, sir. We except to the Court’s ruling and we make known that the counterclaim should fall or should fall on the dismissal of the primary complaint in this case and we would move for a summary judgment on it.

The judge then explained his ruling in more detail as follows:

THE COURT: Let me tell you what I am tempted to do. I am tempted to clarify this kind of lawsuit so that if and when I get to the jury, the jury can understand what I am charging them on — it is my opinion if they do go to the jury on the counterclaim — that whatever the result of that counterclaim is going to be dispositive of the issue whether or not these policies are in effect.... All I am going to say into the record is that I will let the higher court straighten that aspect out. All I am saying is that the declaratory judgment is dismissed. We are still here on the counterclaim.

The court subsequently charged the jury:

The only issue before you is the counterclaim — the issue before you is going to be was there a legal fraud practiced on Steve Bragg by Federated Guaranty Life Insurance Company.

Thereafter the jury returned its verdict on Bragg’s counterclaim against Federated in the amount of $500,000. Federated appealed. We reverse and remand.

We hold that the trial court erred in dismissing Federated’s declaratory judgment action. It is clear from the record before us that no determination has ever been made on the issues presented by that action. It was Federated’s contention in its complaint that Bragg had misrepresented the true condition of his health without knowledge on Federated’s part and, immediately upon learning the true condition of Bragg’s health, Federated notified Bragg that it was rescinding the two policies because of this misrepresentation. It sought from the court a determination that the misrepresentation allegedly made by Bragg to it concerning his health was sufficient to entitle Federated to rescind and cancel the policies. This issue has never been resolved. The trial court was wrong in its conclusion that a determination of whether or not Federated had misrepresented its intention to honor the waiver of premium provision was dispositive of this issue.

The position of each party as we understand it is as follows: Federated contends that because of the alleged fraud perpetrated upon it by Bragg, it was entitled to a rescission of the policies. Bragg, by way of counterclaim, contends that he was entitled to recover in tort from Federated based upon its alleged misrepresentation that it would honor the waiver of premium provision in the policies, which, he contends, it never had any intention to do from the beginning. Within the context of the issues as framed in this case, if the jury determines that Federated is correct in its contention that the contracts of insurance are invalid because of the misrepresentations allegedly made by Bragg with respect to his health, then the issue presented by Bragg by way of his counterclaim would not be reached by the jury.

Federated is entitled to have the issue raised by its action for declaratory judgment resolved by the trier of the facts, in this instance, the jury. The declaratory judgment act which has been in effect in this state since 1935 has for its purpose “to settle and to afford relief from uncertainty and insecurity with respects to rights, status and other legal relations and is to be liberally construed and administered.” Code of Ala. 1975, § 6-6-221. Section 6-6-223 specifically provides that any party to a contract may bring a declaratory judgment action to determine the validity of that contract. It was that statutory remedy which Federated sought by way of its action asking that the court declare the contracts of insurance invalid in this instance. It seems to be Bragg’s position that because he had not filed a claim under the policy provision providing for waiver of premiums, the declaratory judgment action was moot. We cannot agree. It has frequently been noted that the declaratory relief provided for in the declaratory judgment acts is especially useful in insurance policy disputes. Borchard’s Declaratory Judgments (2nd ed. 1941). Neither party to an insurance contract should be compelled to wait until the events giving rise to liability have occurred before having a determination of the rights and obligations under the policy. Professor Borchard has said:

The fact that insurance contracts are often of long duration, involve fiduciary relationships, depend upon representations, facts and conduct which the company finds it difficult to control, look to future contingencies and benefits and, in the event of loss, create new relationships between the insurer, the injured person or beneficiary and the insured or principal debtor, has produced legal uncertainties which the declaratory action has done much to allay.

Borchard’s Declaratory Judgments (2nd ed. 1941), p. 634. Under the facts of this case, either party to the contract was entitled to bring an action for declaratory judgment. When Federated returned the premiums submitted to it by Bragg after its attempted rescission of the contract, Bragg was entitled to have the validity of the policies determined. Likewise, inasmuch as Federated took the position that the contracts had been legally cancelled and Bragg denied that they had, then Federated was likewise entitled to have that issue determined. As Professor Borchard states:

Instead of awaiting the pleasure of the accuser or claimant in bringing his demand or claim to adjudication, legislators and courts have found that social peace is promoted by taking under judicial cognizance the desire of the party charged or in jeopardy to be relieved of the peril, the insecurity and the uncertainty created by an unjust claim, actual or potential. The procedure for declaratory adjudication has thus served as a stabilizer of legal relations.

Borchard’s Declaratory Judgments, supra, p. 645.

Uncertainties created by claims of misrepresentation in the issuance of insurance policies are peculiarly suited to resolution by way of declaratory judgment actions. The policies involved in this case provide that the policy shall be incontestable after a period of two years from the date of issue, except for nonpayment of premiums. Because of that provision, Federated would be bound by the terms of the policy to pay the life insurance proceeds to Bragg’s beneficiary notwithstanding the misrepresentations allegedly made with respect to the condition of his health at the time of issue, if not raised within two years of the date of issue. Therefore, Federated had a compelling reason to seek a judicial determination of its liability under these policies, and the trial court erred in dismissing its action for declaratory relief.

At 26 C.J.S. Declaratory Judgments § 161 (1956), pp. 374-375, the following appears:

[I]t is the duty of the judge to adjudicate the decisive issues involved in the controversy ... and to make binding declarations concerning such issues, thus putting the controversy to rest, and ordinarily it should make such an adjudication regardless whether the decision is for or against plaintiff. . .. [Ojrdinarily, where plaintiff is not entitled to a favorable declaration, the court should render judgment embodying such determination and should not merely dismiss the action.

See also Johnson v. Sweeney’s Lane Church of God, Inc., 270 Ala. 260, 116 So.2d 899 (1960).

We hold that Federated is entitled to a declaration of whether it is entitled to rescind these policies based upon the alleged misrepresentation made by Bragg in his applications for insurance.

REVERSED AND REMANDED.

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

TORBERT, C.J., and FAULKNER, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

I concur specially in order to explore more fully the majority’s holding that if Federated prevails in its declaratory judgment action on the basis of Bragg’s alleged misrepresentation, then the issues presented by way of Bragg’s fraud counterclaim will not be reached. I would go further and hold that Federated was entitled to a directed verdict on Bragg’s counterclaim.

Federated’s declaratory judgment action is brought in order to have its duty under the insurance contracts judicially determined. Federated alleges that Bragg materially misrepresented his health in the insurance applications. For this reason, Federated believes it is entitled to rescind the policy. See Code 1975, § 27-14-7.

In order for Federated to prevail in the declaratory judgment action, it must prove more than Bragg’s misrepresentation of his health. Federated must show that “the insured had notice that he suffered from the disease, constructive notice being insufficient, and that such denial of the existence of the condition was made with knowledge that the denial was false or that the facts concealed were material to the risk.” Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 242, 326 So.2d 726, 731 (1976). The insurance policy is not avoided if the insurer knows or has reasonable notice that the statements in the insured’s application are false. Bankers Life and Casualty Co. v. Long, 345 So.2d 1321 (Ala.1977). The insurer’s burden, then, is to show that the insured intentionally and fraudulently misrepresented his health.

Bragg’s counterclaim, distilled, alleges that on November 8, 1976, Federated entered into an insurance contract with him promising life insurance and, in the event of his disability, waiver of premium payments, all in exchange for his promise of regular premium payments. Bragg claims that Federated never intended to perform its obligations under the contract, but instead that at some later time Federated intended to disavow the agreement. More specifically, Bragg contends that, at the time the insurance contract was entered into, Federated misrepresented an existing material fact, i. e., its intent to perform, and that he relied on, and was damaged by, Federated’s misrepresentation that it would honor the policy.

The relative positions of the parties thus stated, it becomes apparent that Bragg proved no set of facts entitling him to relief on his fraud claim. Federated, before Bragg made claim on the policy and after learning of alleged misstatements in the policy application which might entitle it to avoid the policy, attempted to return previously paid premiums, refused to accept further payment, and instituted this declaratory action to have its contractual obligations adjudicated. Certainly the filing of this action for declaratory relief, even before a claim was made on the policy, cannot be regarded as a breach of the insurance contract. The policy thus being in full force and effect, no alleged fraudulent scheme by Federated has been consummated. Bragg adduced no evidence that Federated refused to waive premium payments. Thus, Bragg showed no damage to support his claim of fraud. Damage is an essential element in an action for fraud, Old Southern Life Insurance Co. v. Woodall, 348 So.2d 1337 (Ala.1977), and until Bragg is damaged, his cause of action does not accrue.

The case of Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976), is instructive here. In Woodall, the insured’s husband brought suit against the insurer in fraud. The insured’s husband, who paid the policy premiums, claimed the insurance company fraudulently induced him to continue premium payments, even though the insurance company had information which would allow it to seek rescission of the contract. At the time of the insured’s first claim under the policy, the insurer became aware that the insured had been hospitalized a number of times for a heart problem which she had failed to disclose on her application. The insurance company did not seek cancellation of the policy, but instead, with information of the insured’s heart condition in hand, denied the claim on the ground of some collateral policy exclusion, and continued to accept the premium payments tendered by plaintiff. We held that these facts presented a scintilla of evidence that the insurance company continued to accept premium payments while never intending to fulfill its obligations under the policy. We stated:

If, in fact, Mrs. Woodall had suffered from heart disease, and that fact was known to her, and she falsely stated in the application that she had not suffered from that malady, the company may have been entitled to terminate the policy in its entirety. However, the failure of the company to base its denial on this ground, and rather its basing the denial on the ground that the condition for which she was hospitalized was one which had occurred less than six months after the policy was issued, and was therefore excluded, is evidence from which the jury could have found that the company fraudulently and with intent to deceive Mr. Woodall continued to accept premiums on the policy, having in its possession from the time the first claim was submitted information which would permit it, on proper proof, to completely terminate all coverage under that policy.

Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 242, 326 So.2d 726, 731 (1976).

Unlike the Woodall case, in the instant case Bragg made no claim under the policy. Federated has never refused to honor its lawful contractual obligations under the insurance policy, but instead it seeks by way of this declaratory action to determine whether any obligation is owed. In so doing, Federated is simply following the procedure dictated by Woodall.

I would additionally hold that the trial court erred when it failed to grant a directed verdict in favor of Federated on Bragg’s fraud counterclaim.

FAULKNER, J., concurs.


author: PER CURIAM. MADDOX, Justice BEATTY, Justice

text:
    Thadeus Lamar JOHNSON v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, a corporation, et al.
    CER-20.
    Supreme Court of Alabama.
    Aug. 15, 1980.
    Rehearing Denied Feb. 6, 1981.
    Betty C. Love and B. Greg Wood of Love, Love & Lawrence, Talladega, for petitioner.
    Edgar M. Elliott and Thomas A. Woodall, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for respondents.
    Lanny S. Vines, of Emond & Vines, Birmingham, amicus curiae for Alabama Trial Lawyers Ass’n.
    Bibb Allen and John M. Laney, Jr., of London, Yancey, Clark & Allen, and John H. Morrow and Stephen E. Brown, of Bradley, Arant, Rose & White, Birmingham, amicus curiae for American Ins. Ass’n, Alliance of American Insurers and Fireman’s Fund Ins. Co.
    Larry W. Harper of Porterfield, Scholl, Clark & Harper, Birmingham, amicus curiae for Employers Ins. Co. of Alabama and Employers Mut. Liability Ins. Co. of Wisconsin.
    George M. Van Tassel, Jr., and Charles E. Sharp, of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, amicus curiae for Liberty Mut. Ins. Co.
    William F. Gardner of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, and James D. Pruett, Gadsden, amicus curiae for Goodyear Tire & Rubber Co.
    Frank J. Tipler, Jr., and W. Sidney Fuller of Tipler, Fuller & Sikes, Andalusia, and Kelly, Knowles & Lee, Geneva, and G. A. Lindsey, Elba, amicus curiae for John F. Coleman, et al.
   PER CURIAM.

Pursuant to Rule 18, ARAP, the United States District Court for the Northern District of Alabama, Southern Division, requests this Court to answer a question of law which that court deems determinative of an action before it and on which there is no clear controlling precedent in the decisions of this Court.

The Federal District Court, in support of the certificate, submits the following facts:

Plaintiff Thadeus Lamar Johnson was injured under circumstances such that compensation was payable (and, in fact, paid) to him under Chapter 5 (Workmen’s Compensation) of Title 25 of the 1975 Code of Alabama. He brought this action to recover damages from his employer’s workmen’s compensation insurance carrier and the carrier’s employee, alleging that the carrier’s employee negligently performed a safety inspection of the premises. Defendants have moved for summary judgment, claiming statutory immunity.

On the basis of the above facts, the following question is presented (CER-20):

“Whether, under the principles stated in Grantham v. Denke, 359 So.2d 785 (Ala.1978), Sections 25-5-1(4), 25-5-11, and 25-5-53 of the Alabama Code are unconstitutional to the extent they provide immunity from suits for negligent safety inspections to (1) the workmen’s compensation carrier and (2) the employee of the workmen’s compensation carrier who performed the inspection.”
We reframe the question:
May the legislature constitutionally immunize from tort liability a workmen’s compensation carrier (and its employees) for injuries resulting to employees of the insured from negligent inspections performed by the carrier?

We answer, “No,” on the authority of Fireman’s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala.1980).

QUESTION ANSWERED IN THE NEGATIVE.

BLOODWORTH, FAULKNER, and EM-BRY, JJ., concur.

JONES, ALMON, and SHORES, JJ., concur in the result.

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

MADDOX, Justice

(dissenting).

I dissent for the same reasons I expressed in my dissent in Grantham v. Denke, 359 So.2d 785 (Ala.1978). I also call attention to the scholarly dissent by Mr. Justice Beatty in Fireman’s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala. ) 1980). I also call attention to the law review article entitled Election and Coemployee Immunity Under Alabama’s Workmen’s Compensation Act, 31 Ala.L.Rev. 1 (1979).

BEATTY, Justice

(dissenting):

I dissent in accord with the views expressed in my dissent in Fireman’s Fund American Insurance Company v. Coleman, Ala., 394 So.2d 334 (1980).

TORBERT, C. J., and MADDOX, J., concur.


author: JONES, Justice. SHORES, Justice MADDOX, Justice

text:
    Carol RAMEY v. Dr. Thomas M. GUYTON.
    79-383.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Rehearing denied Feb. 6, 1981.

      Stanley A. Cash of Huie, Femambucq, Stewart & Smith, Birmingham, for appellant.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellee.
   JONES, Justice.

This medical malpractice suit comes before this Court on appeal from summary judgment granted in favor of Defendant-Appellee on statute of limitations grounds.

Plaintiff began seeing Defendant Guyton professionally on August 18, 1970, and last saw him on August 27, 1975. At the last visit, Dr. Guyton prescribed “Ortho-No-vum” birth control bills for Ramey. Plaintiff took these pills daily until August 5, 1976, when she suffered a stroke. The parties stipulated that in the fall of 1976, Plaintiff’s mother told Plaintiff that the doctors who had examined Plaintiff in Huntsville, Alabama, after Plaintiff’s stroke, had informed her (Plaintiff’s mother) that the birth control pills could have caused Plaintiff’s stroke. Suit was filed on August 1, 1978.

Based on this sequence of events, the trial Court found that the action was not timely filed under the provisions of § 6-5-482, Ala. Code 1975. We do not agree. We find the action to have been timely filed for the reasons set out herein, and, therefore, we reverse the judgment and remand the cause for further proceedings in accordance with this opinion.

Under § 6-5-482, medical liability actions “must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act . ...”

Appellee contends that the two-year portion of the statute bars the action. Ap-pellee cites August 27, 1975, the date of Plaintiff’s last visit to Dr. Guyton and the date the prescription was written, as the day the action accrued. If this date were accepted as the accrual date, then the suit clearly would be outside the two-year period. We cannot agree with this contention. We find that the cause of action accrued on the day Plaintiff suffered the stroke. It was then that the harm occurred, thus triggering the two-year statute of limitations. Plant v. R. L. Reid, Inc., 294 Ala. 155, 313 So.2d 518 (1975); Brotherhood of Locomotive Firemen and Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962); Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925). We find it patently unreasonable to attempt to fix the accrual date at the time the prescription was written, which act produced no concurrent injury to the Plaintiff.

We agree with Appellee that suit was not filed within six months of the discovery of the harm. However, we find this point to be immaterial in light of our finding that suit was filed within two years of the accrual of the action which, in this case, was contemporaneous with the occurrence of the injury. The six-month discovery provision is not triggered in the instant case because Plaintiff filed suit within two years of the accrual of the cause of action.

The medical malpractice statute has been held constitutional under circumstances where the negligent act or omission and the harm occurred simultaneously, the cause of action thus accruing at that point. Street v. City of Anniston, 381 So.2d 26 (Ala.1980); Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972). The case now before us differs factually from these earlier cases in that here the negligent act and the resultant harm did not coincide. Thus, the accrual date of the cause is delayed to the date when the injury occurred. See Plant v. R. L. Reid, Inc., supra.

To agree with Appellee’s contention concerning the running of the statute would take the prior cases beyond their proper factual context. We decline to do so. Rather, in order to give § 6-5^483 constitutional validity in the context of the present case and to concur with the rationale of the earlier cases, which couple the running of the statute of limitations with the occurrence of injury, we construe this section as providing for the statutory period to commence running concurrently with the accrual of the cause of action even where that accrual does not coincide with the occurrence of the negligent act. As stated previously, the cause of action in the instant case accrued on August 5,1976, when Plaintiff suffered the stroke. Thus, suit filed on August 1, 1978, clearly was timely filed, even within the shorter two-year period; and there is no need under these facts to look to the four-year extended period and the six-month discovery provisions.

We reaffirm the tenets set out by this Court in Plant v. R. L. Reid, Inc., supra, which states:

“Under the provisions of [the Medical Malpractice Act], the time for bringing suit commences when the cause of action accrues, which is at the time of the wrongful act or omission producing injury. The ‘plaintiff’ has a cause of action at that point.... The medical malpractice statute is a traditional statute of limitation in that the accrual of the cause of action starts the running of the period....
“... In tort actions, the breach of duty does not produce a cause of action until such breach proximately results in injury or damage.... The soundness of this rule has rarely been questioned and the malpractice statutes are not inconsistent with it.” (Emphasis added.)

In keeping with Plant’s interpretation of the Medical Malpractice Act, and consistent with the prior medical malpractice statute of limitations cases barring those actions commenced more than two years after the accrual date, we hold that the trial Court erred in granting summary judgment where the suit was commenced within two years from the time of the accrual of the cause of action. Plant’s reference to the Medical Malpractice Act was in response to the contention that the act then considered (the Builders and Architects Act) was analogous to the Medical Malpractice Act. In revisiting our treatment of this contention, it must be remembered that Plant took as its premise the invalidity of the seven-year period as declared in Bagby Elevator and Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974) (here the four-year period). It is this point that is addressed in Mr. Justice Bloodworth’s dissenting opinion in Plant:

“. . . I have concluded that Act 788, as construed by our holding in Bagby Elevator and Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974), now provides that such actions must be commenced within four (4) years after the final completion of the improvements, unless the cause of action is not discovered and could not reasonably have been discovered within such period, when an additional six (6) months is allowed. It is my view that the Act now constitutes an ‘open end’ statute with no period of limitation of years within which to bring the action under the exception, except the six (6) months after discovery of the cause of action, etc.
“Due to the fact that plaintiff, in the instant case, did not bring her action within the six (6) months’ period, I would affirm the trial court’s judgment holding her action to be barred.
“I would reserve my judgment as to whether the same reasoning, which impels the majority to reach their conclusions with respect to Act 788, also applies to the ‘Medical Malpractice Act.’ ”

The point of difference, then, between Mr. Justice Bloodworth’s dissent and the majority opinion is unlike the remaining dissenters in Plant who “... have found no constitutional problem raised by such ‘shield’ statutes.”

Garrett v. Raytheon Co., Inc., 368 So.2d 516 (Ala.1979), presented the question: “When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure?” Mr. Justice Blood-worth, speaking for the majority, answered: “We conclude that it begins to run when the plaintiff is exposed to radiation and an injury occurs.” (Emphasis added.)

Thus, while rejecting the “discovery of injury” rule, Raytheon remained true to the common law “accrual” principle, observing:

“... there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff’s injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action ‘accrues,’ and the statute of limitation begins to run, ‘when, and only when, the damages are sustained.’ Over sixty years ago, Justice Sayre so expressed it in his opinion for the Court in Kelly, et al. v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).”

In order to accord constitutional validity to § 6-5^482, we retain the application of the time-tested, traditional rule, and hold that the statutory language, “act or omission or failure giving rise to the claim” operates to commence the running of the statute from the time the cause of action “accrues.” “The cause of action ‘accrues’ as soon as the party in whose favor it arises is entitled to maintain an action thereon.” Raytheon, supra. Applying this principle to the instant case, we hold the earliest the Plaintiff was entitled to maintain her action was on August 5, 1976, and thus her suit, filed on August 1, 1978 was within the statutorily prescribed two-year period.

REVERSED AND REMANDED.

FAULKNER, EMBRY and BEATTY, JJ., concur.

SHORES, J., concurs specially.

TORBERT, C. J., and MADDOX and AL-MON, JJ., dissent.

SHORES, Justice

(concurring specially):

In Street v. City of Anniston, 381 So.2d 26 (Ala.1980), we held that the four-year provision of § 6-5-482(a) barred the plaintiff’s claim, based upon an act of misdiagnosis occurring more than four years before the action was brought. In that opinion, we stated under Garrett v. Raytheon, 368 So.2d 516 (Ala.1979), “legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period.” Thus, in this case, legal injury occurred with the act of prescribing the Ortho No-vum, and this “act or omission” on Dr. Guyton’s part continued or was repeated each time the plaintiff took a pill as prescribed.

Injury of the Raytheon type could occur only when the patient was exposed to the drug and, under that opinion, the date of injury was measured from the last exposure. Here the date of injury must be measured from the date the last pill was taken, which was within four years of the date suit was filed. In this regard, the case before us is distinguishable from Street.

In Street, we found no constitutional barrier to the legislature’s measuring the time for bringing an action from some point other than date of injury. It has done so in this field by measuring the time from the “act or omission or failure giving rise to the claim ... provided . .. that in no event may the action be commenced more than four years after such act ....”

The question then becomes: Did Dr. Guy-ton commit any act or omission made the basis of this claim within four years of the date of filing the suit? Yes — he prescribed daily doses of Ortho Novum, and the patient followed his prescription by taking daily doses thereof.

This was a continuing act as long as the prescription was valid and outstanding. On this basis, I would concur, but cannot agree, that the statute does not bar the action because it was brought within two years after the plaintiff suffered the stroke. It is not a bar because the claim is based upon the impliedly continuing act of the defendant, which act or omission [i. e., failure to discontinue the prescription] took place within the statutory period.

MADDOX, Justice

(dissenting).

This case is indistinguishable from Street v. City of Anniston, 381 So.2d 26 (Ala.1980). In Street, this Court held that under Alabama’s Medical Liability Act, the statute of limitations begins to run from the time of the negligent act or omission. In Street, the act or omission was the doctor’s alleged negligent diagnosis. Here, the alleged act or omission was the doctor’s prescription of an alleged harmful drug. The limitations statute is constitutional because the legal injury occurs and, therefore, the cause of action accrues, at the time of the act or omission. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979).

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

      . This Court’s holding in Garrett v. Raytheon Co., Inc., infra (hereinafter discussed), is in a factually analogous context. There, the cause of action accrued, and thus the statute was said to begin to run, on the date of the Plaintiffs last exposure to radiation.

      . For the statutory creation of a “discovery of injury” rule for injuries or death caused by exposure to asbestos, see Act No. 80-566, Acts of Alabama, Regular Session, 1980.


author: JONES, Justice.

text:
    AUTO-PLAZA, INC. v. CENTRAL BANK OF ALABAMA, N. A.
    79-704.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    Rehearing Denied Feb. 20, 1981.

      W. Eugene Rutledge, Birmingham, for appellant.
    Arthur J. Cook and James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   JONES, Justice.

Appellant Auto-Plaza, Inc., is an Alabama corporation located in Etowah County, Alabama, and formerly engaged in the business of selling new and used cars.

In August of 1976, Auto-Plaza assumed a mortgage and mortgage note due Appellee Central Bank from a corporation known as Alder Acres, Inc. This property had previously been leased by Auto-Plaza as a service department and body shop. The “Alder Acres” mortgage note provided for payments to be made on the first day of each month from its assumption in August of 1976. Until April of 1980, Auto-Plaza wrote approximately 42 checks for payments on this mortgage and note, none of which were made on the first day of the month as required by the mortgage note.

On August 16, 1978, Auto-Plaza mortgaged to Central Bank additional property on which the main buildings used by Auto-Plaza in its dealership were located. This mortgage indebtedness, evidenced by a note, was in the amount of $250,000. While this mortgage note provided for payments to be made by the 16th of each month, only 5 of the 20 payments made prior to this dispute were made on the 16th. No late charges were assessed by Central on any of the payments made subsequent to the 16th of each month, because no installment payment was made “more than 15 days in arrears.”

Auto-Plaza did not make either the May 1,1980, payment on the Alder Acres note or the May 16, 1980, payment on the $250,000 note. On May 19, 1980, Central exercised its option to accelerate the indebtedness under both mortgages and commenced foreclosure proceedings. A check was written by Auto-Plaza for these two payments on May 20, 1980, and mailed to Central Bank. When the payment was received a day or so later, Central refused it because foreclosure had already begun.

On May 23, 1980, Auto-Plaza filed a complaint for a temporary injunction, permanent injunction, damages, costs and fees. The complaint alleged that the mortgages were not in default despite the fact that the monthly mortgage payments had not been made on the date shown on the face of the mortgages and mortgage notes.

Following the trial of the case, the circuit court entered an order denying the injunction and authorizing foreclosure to take place on June 13,1980. On that same date, but prior to the foreclosure sale, this Court granted Auto-Plaza’s petition for a stay of the foreclosure, pending this appeal. We affirm and dissolve the stay order.

I. The Mortgagor’s 15-Day “Grace Period.”

Auto-Plaza asserts that foreclosure of the $250,000 mortgage by Central Bank was unwarranted because it was entitled to a 15-day grace period after the 16th of each month within which to make its monthly payment. We disagree.

Auto-Plaza bases its “grace period” contention on the following language contained in the $250,000 mortgage.

“It is understood and agreed that a late charge of five cents ($.05) per dollar will be paid by the maker(s) on each installment more than 15 days in arrears.” We fail to see how this provision affords

the mortgagor a grace period. We interpret its terms as unambiguous; and we hold that this provision merely subjects Auto-Plaza to a late charge for any installment paid more than 15 days after the due date (i. e., the 16th of each month).

In Kinmon v. J. P. King Auction Company, Inc., 290 Ala. 323, 276 So.2d 569, at 570 (1973), this Court stated:

“[I]t is elementary that it is the terms of the written contract, not the mental operations of one of the parties, that control its interpretation.”

Central Bank, while denying the existence of any grace period, submits the following provision, contained in the $250,000 mortgage, as affording propriety to its foreclosure of that mortgage:

“Upon failure to pay any installment of principal and/or interest when due or if any of the conditions and requirements in said mortgage be not complied with, the entire principal sum at the option of the holder, shall become due and payable. Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default.” (Emphasis added.)

Central contends, and we agree, that the provision cited from the $250,000 mortgage gives it the right to foreclose that mortgage if any installment due on the note secured by the mortgage is not paid when it becomes due. Consequently, the mortgagee’s action in foreclosing this mortgage was justified and was not subordinate to any 15-day grace period.

II. Equitable Estoppel

Auto-Plaza insists that the doctrine of equitable estoppel in pais forbids foreclosure of either the Alder Acres mortgage or the $250,000 mortgage. In essence, Auto-Plaza contends that the mortgagee’s systematic acceptance of late payments, as a matter of law, estops its right to foreclose without notice.

Central, citing Hale v. Ford Motor Credit Company, 374 So.2d 849 (Ala.1979), counters with the proposition that a mortgagor, by his own default, cannot raise an estoppel and destroy the option of a mortgagee to exercise his rights to accelerate maturity of the debt, and to foreclose the mortgage pursuant to acceleration and nonwaiver of acceleration provisions contained in the mortgage.

Hale, supra, at p. 852, presented the question:

“Where a security agreement containing non-waiver acceleration, and non-modification clauses is in default in payment, is the secured party required to give notice to the buyer prior to repossession when past due payments have been repeatedly accepted .. . ?”

The facts in Hale were that the purchaser of an automobile financed his purchase through Ford Motor Credit Corporation. While each installment payment made by the buyer was after the date specified in the note as the due date, as of the date of repossession, the buyer was in default in one partial monthly payment and one full monthly payment. Prior to repossession, Ford Motor Credit had made letter demands of Hale as to the defaulted partial monthly-payment on three separate occasions and as to the defaulted full monthly payment on one occasion. The Court held, under these circumstances, that “[t]he inadvertence of the debtor here cannot raise an estoppel against the contractual interest of the creditor under the express terms of the security agreement. Cf. Draughon v. General Finance Credit Corp., Ala., 362 So.2d 880 (1978).”

Auto-Plaza attempts to distinguish Hale on two grounds: (1) The purchaser in Hale never tendered to the creditor the amount due. In contrast, says Auto-Plaza, its May, 1980, payment on the $250,000 mortgage was made within the 15-day “grace period,” and the amount due Central Bank for the May payment on both mortgages was tendered by Appellant and rejected by the bank. (2) Auto-Plaza alleges an agreement with Central Bank to hold in abeyance all legal action pending a May 27, 1980, meeting between them to resolve their financial problems. Central says that this was an issue of fact which was resolved by the trial court adversely to Auto-Plaza.

We reject the respective contentions of the instant parties with respect to the application vel non of the equitable estoppel doctrine as a matter of law. On the one hand, the inclusion in the security instrument of a nonwaiver of the acceleration clause does not, of itself and under all circumstances, preclude, as a matter of law, the operative effect of the equitable principles inherent in the doctrine of estoppel. By virtue of its very definition, equitable estoppel may be invoked to vary the express terms of a contract where, because of certain subsequent conduct of the parties, enforcement of its literal provisions would work an injustice. Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976). On the other hand, the mere making of late payments by the debtor and their acceptance by the creditor does not alter, as a matter of law, the express terms of either the acceleration or the nonwaiver of acceleration clauses of the security agreement. Putman Realty & Auction, Inc. v. Bailes, 371 So.2d 658 (Ala.1979).

Ordinarily, then, the applicability vel non of the equitable estoppel doctrine is a fact issue. Like other issues of fact, it may be reduced to a question of law, if the evidence adduced is not susceptible to different reasonable inferences; i. e., the fact finder is precluded from making a factual determination of whether estoppel exists in a particular case only where the evidence, or any reasonable inference therefrom, fails to furnish a scintilla in support of its application. Draughon v. General Finance Credit Corp., 362 So.2d 880, at p. 884 (Ala.1978), states:

“Because the doctrine of estoppel is for the protection of innocent persons, it is essential that the party claiming the benefit of estoppel does not predicate his claim on his own dereliction of duty or wrongful conduct.
“Where a party seeks an equitable remedy, such as equitable estoppel, the party’s conduct must reflect the maxim of ‘clean hands,’ for any unconscientious conduct arising out of the subject matter of the suit will bar their action. Anders v. Sandlin, 191 Ala. 158, 67 So. 684 (1914).
“In this case, the plaintiff not only changed his residence without notifying the defendant, but he also concealed his phone number so as to avoid ‘creditors’ calls. We think that this conduct bars the plaintiff’s assertion of estoppel [as a matter of law].”

Draughon, supra (cited in Hale), is an example of a factual situation unsusceptible to inferences from which the fact finder could invoke the doctrine of equitable es-toppel in favor of the debtor.

Putman Realty & Auction, Inc. v. Bailes, supra, is an example of an evidentiary situation susceptible of different reasonable inferences, giving rise to a factual determination of the estoppel issue. The Putman Court, at p. 659-60, observed:

“The law is to the effect that where evidence of estoppel is present and susceptible to different reasonable inferences, the issue is one for the jury [citing Draughon ].
“The [trial] judge ... correctly instructed the jury concerning the defendants’ burden of proving that they justifiably relied upon the prior conduct of [the seller] as evidencing an intention upon her part not to insist upon prompt payment of monthly installments.
“We find that the verdict of the jury is supported by credible evidence ....”

Here, we will assume, without deciding, that an issue of fact, bearing on the applicability of estoppel, is presented by the evidence. We hold, consistent with Central Bank’s secondary contention, that the evidence of record amply supports the trial court’s finding, sitting without a jury, that the elements of equitable estoppel were not present; and, thus, Central Bank was not estopped to enforce its right of foreclosure according to the terms of the two security instruments. The presumption of correctness rule is not overcome by a preponderance of evidence favorable to Appellant; nor do we view the judgment appealed from as palpably wrong or manifestly unjust. Garrison v. Grayson, 284 Ala. 247, 224 So.2d 606 (1969).

Consequently, the action of the trial court in denying Appellant’s request for injunc-tive relief was proper; and its judgment, therefore, is due to be affirmed.

AFFIRMED.

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

      . See the late charges provision of this mortgage quoted in Part I of this opinion.

      . In addition to the general discussion of the doctrine of estoppel contained in Draughon and Putman, see Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976), for a listing of the elements of estoppel.


author: FAULKNER, Justice. BEATTY, Justice

text:
    CITY OF RAINBOW CITY, a Municipal Corporation v. SOUTH HAWK, INC., a corporation, et al. Ralph SLATE, Jr., et al. v. SOUTH HAWK, INC., a corporation, et al.
    79-595, 79-596.
    Supreme Court of Alabama.
    Feb. 6, 1981.

      James F. Hinton, Gadsden, for appellant City of Rainbow City.
    William D. Hudson of Wilson & Hudson, Gadsden, for appellants Ralph Slate, Jr., et al.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   FAULKNER, Justice.

These are appeals from a summary judgment in the Circuit Court of Etowah County for defendant, South Hawk, Inc. We affirm.

These cases arise out of a controversy over a zoning ordinance as applied to a small triangular strip of land situated between Rainbow Drive (U.S. 411) and Lumb-ley Road in Rainbow City. The property is zoned R-l Residential, and is less than the minimum residential lot size. South Hawk, Inc., the owner of the property, contends that the strip is suitable only for commercial use. South Hawk’s original application for a zoning variance for commercial purposes was ultimately denied in a jury trial. After subsequent applications (unaccompanied by requests for variances) to construct for either commercial or residential purposes were denied, South Hawk began construction of a commercial structure on the property.

On October 19,1979, the City of Rainbow City filed a petition to enjoin the construction of the commercial building. South Hawk answered and counterclaimed, seeking an injunction to keep the City from enforcing its zoning ordinance as to the property in question. Surrounding property owners filed a petition to intervene. South Hawk then filed a motion for summary judgment supported by affidavits. The judge granted the motion, holding that “a literal enforcement of the zoning laws of Rainbow City constitutes an effective taking or confiscation of private property in violation of the constitutional rights of the property owner.” Thereafter, the judge granted intervention, giving intervenors all post judgment remedies. Post trial motions were denied and appellants, Rainbow City and intervenors, appeal.

The sole issue to be determined is whether summary judgment was properly granted.

Rule 56(e), ARCP, provides in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

This rule has been the subject of much discussion in our eases. In Worley v. Worley, 388 So.2d 502 (Ala.1980), we recently described the procedure for summary judgment as follows:

[T]he initial burden of proving the nonexistence of any genuine issue of material fact rests upon the moving party. If the movant successfully bears this burden and shows, by the material on file, that there is lacking any genuine issue of material fact, it then becomes the responsibility of the party opposing the motion to produce evidence to the contrary. If the opposing party fails to do so, the court is left with no other recourse but to conclude that no genuine issue of material fact exists .... This is one reason we have held that it is perilous for a nonmov-ing party to neglect to file evidentiary materials or affidavits in opposition to a motion for summary judgment, (citations omitted)

South Hawk’s motion for summary judgment was supported by affidavits including the following factual allegations. The lot is wedged between two public highways, one of which is heavily traveled. It is located approximately one mile south of the downtown intersection of Rainbow Drive and Highway 77. No residences have been constructed between this intersection and the property since before the zoning ordinance was adopted in 1973. Ninety-eight percent of the property owners in this area have petitioned the city to rezone the area to general business. City Council minutes reflect that at one meeting a motion to rezone passed 5 to 1; however, subsequent minutes show that when the city engineer presented plans for rezoning, the motion to accept failed for lack of a second. The unplatted strip is: (1) 25% short of the minimum lot requirement; (2) . not suitable or adaptable for residential property; and (3) under contract of sale to Zippy Mart for $28,500.00, which is substantially more than residential market value.

Rainbow City’s only evidence was the affidavit of the City Clerk consisting of statements to the effect that a variance procedure existed under present statutes, that South Hawk was aware of the procedure, and that in the clerk’s opinion a variance for residential purposes would have been granted had it been requested.

Clearly, the City's affidavit fails to contradict the evidence as proffered by South Hawk. Under these circumstances we have “no alternative but to consider [the] evidence uncontroverted.” Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). Summary judgment was properly granted.

Other issues raised by the parties need not be addressed for purposes of this appeal. We find that the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

MADDOX and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting).

Summary judgment- must be in itself appropriate under the pleadings and evidence, regardless of whether or not the movant’s evidence is contradicted. Here it was a question of fact as to whether a variance (1) was appropriate, or (2) would be granted by the Board of Adjustment.

MADDOX, J., concurs.


text:
    Theo WORD v. Virgil SMITH, etc.
    79-876.
    Supreme Court of Alabama.
    Feb. 6, 1981.

      John Edmond Mays, Decatur, for appellant.
    William D. Hudson of Wilson & Hudson, Gadsden, for appellee.
   JONES, Justice.

Appellant Theo Word appeals from a final judgment of the trial court denying injunctive relief and holding him liable under the terms and conditions of a delinquent mortgage indebtedness. We affirm.

The sole issue presented is whether a mortgage made to a party other than the one actually advancing the money secured by the mortgage is valid. We hold, under the evidence of record in this case, that it is.

Appellee Virgil Smith is President and majority stockholder of American Aid Life Insurance Company. Pursuant to a contract with his company, Smith, in March of 1979, loaned Mr. and Mrs. Word $10,000 from his “personal” account. According to the contract, Smith would advance funds from his “personal” account and American Aid Life Insurance would take mortgages in its name to secure these loans. Additionally, American Aid Life Insurance would “service” the debt.

On March 7, 1979, the Words signed a mortgage for $10,000 which also covered subsequent advances up to $80,000. On the same day, the Words signed an open-ended promissory note acknowledging receipt of $10,000 and permitting the maximum allowable credit advances, the obligee being American Aid Life Insurance Company.

Subsequently, additional monies (for a total of $52,000) were advanced by Smith to the Words. All funds received by the Words were from Smith’s “personal” account. Smith, acknowledging receipt of two payments, both of which were less than the amount then due under the mortgage, sought, through the named mortgagee, to foreclose the mortgage. Theo Word brings this action seeking injunctive relief.

The case was tried to the court without a jury on May 19, 1980. The trial court entered its order on July 8, 1980, finding the mortgage in question to be valid and directing the register to hold a reference for the purpose of determining the total amount due on the mortgage debt. On July 18, 1980, the register reported to the court that the total amount due on the mortgage was $56,222.54. This report was confirmed and adopted by the trial court on July 29, 1980. After allowing Word credit for $32.55 with interest thereon, the trial court found the total amount due under the mortgage and note to be $56,186.99.

Appellant asserts that because all the money advanced him came from Smith individually, rather than from American Aid Life Insurance Company, there was no consideration for his mortgage to American Aid Life. Such contention is. without merit.

In Willingham v. Lankford, 257 Ala. 595, 598, 60 So.2d 387, 389 (1952), this Court stated:

“‘The validity of the contract is not affected, because the consideration may not have moved from the party to whom the obligations of the contract are extended, and in whom the right of enforcement resides. It is not uncommon, that the consideration for a contract moves from one person, while its promises and obligations are made to another, and the validity of such contracts, when accepted by the party to whom the promise or obligation is made, cannot be questioned.’ Wimbish v. Montgomery Mutual Building & Loan Ass’n, 69 Ala. 575(4). That principle seems to be well established generally ... [a]nd is illustrated in what is termed contracts with a third party beneficiary.”

The Willingham Court cited with approval 59 C.J.S. Mortgages § 88 (1949), which reads in pertinent part:

“. .. The consideration need not go directly from the mortgagee to the mortgagor. So, where there is a consideration as between the creditor and mortgagor, the note and mortgage may be taken in the name of any consenting third person....”

We are unpersuaded by the argument that Smith’s personal loans to Appellant, under these facts, invalidated his mortgage with American Aid Life Insurance Company for lack of consideration.

The trial court correctly found ample consideration to support this transaction; therefore, its order based on such determination is due to be, and hereby is, affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    HUNTSVILLE MOBILE HOMES ESTATES, INC. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    No. 80-21.
    Supreme Court of Alabama.
    Feb. 6, 1981.
    Carl E. Johnson, Jr., of Bishop, Sweeney, Colvin & Johnson, Birmingham, for appellant.
    Ronald C. Forehand, Asst. Atty. Gen., Stanley W. Foy, Montgomery, for appellee Alabama Public Serv. Commission.
    J. Douglas Harris, of Harris & Harris, Montgomery, for AGS & Co., Inc., interve-nor.
   PER CURIAM.

This is an appeal by Huntsville Mobile Homes Estates, Inc., from an order of the Madison County Circuit Court affirming the Alabama Public Service Commission’s denial of HMHE’s application for a motor carrier certificate of public convenience and necessity.

Because of our disposition of this appeal, pursuant to our statutorily prescribed scope of review (§ 37-1-124, Code 1975), a recital of the factual background of this case would serve no useful purpose. We affirm.

Where evidence is heard ore tenus by a hearing examiner, his findings of fact have a presumption of correctness; and, if it adopts the hearing examiner’s findings of fact, the Public Service Commission’s order is entitled to the same presumption. Ross Neely Express, Inc. v. Hornady Truck Lines, Inc., 387 So.2d 782 (Ala.1980); Alabama Public Service Commission v. Redwing Carriers, Inc., 366 So.2d 1111 (Ala. 1979); Redwing Carriers, Inc. v. Alabama Public Service Commission, 356 So.2d 129 (Ala.1978).

An order of the Alabama Public Service Commission is taken as prima facie just and reasonable; and may be set aside only if the Commission erred to the prejudice of the party seeking the application, or the order was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. § 37-1-124, Code 1975; Ross Neely Express, Inc. v. Hornady Truck Lines, Inc., supra; Redwing Carriers, Inc. v. Alabama Public Service Commission, supra.

Pursuant to our statutorily prescribed scope of review, we have reviewed the entire record and find no error upon which to predicate an order of reversal.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Arthur L. WEAVER and Frank Hammock v. Gladys P. GRANT et al.
    No. 79-452.
    Supreme Court of Alabama.
    Feb. 13, 1981.
    Tom Radney of Radney & Morris, Alexander City, for appellants.
    S. Sanford Holliday, Wedowee, for appel-lees.
   ADAMS, Justice.

This appeal is from the denial of a petition to probate a will in a will contest removed to the Circuit Court of Randolph County. At a hearing without a jury, the trial judge found that the purported second witness to the will did not intend his signature to be that of an attesting witness. Proponents and contestants of the will are the nieces and nephews of the would-be testatrix, Bernice Elder, who died in August of 1979.

On August 28, 1979, Joe Tom Burns, District Judge of Randolph County and a former practicing attorney in Wedowee, Alabama, visited Mrs. Elder’s home to discuss business matters. Judge Burns had served as guardian to Mrs. Elder’s son, who had recently died. It is unclear whether Mrs. Elder or her niece, Willie Belle Hargett, invited Judge Burns, but both were there when he arrived. A discussion arose concerning the need of Mrs. Elder to make a will. Judge Burns informed Mrs. Elder that he was a judge and could not ethically write a will for her, but he agreed to make some notes of her intentions and give these to an attorney who would then prepare her will.

Mrs. Elder dictated her testamentary intentions to Judge Burns, which he penned on a piece of note paper entitled “Who Called At Home.” She then insisted, over his objection, that he serve as executor of her estate. At this point, Judge Burns wrote “Joe T. Burns Executor” immediately following Mrs. Elder’s bequests. The paper was passed to Mrs. Elder, who signed it below the writing “Joe T. Burns Executor.” And, finally, Mrs. Hargett took the paper and signed it below Mrs. Elder’s signature. Mrs. Hargett also wrote her address and phone number below her name and the word “witness” above her name. All three participants were present during this entire procedure and witnessed all of the writings on the note paper.

Judge Burns then took the notes to S. Sanford Holliday, a practicing attorney, who prepared a will which contained the same bequests as dictated to Judge Burns. However, following a discussion with Judge Burns, Holliday made some additions to the will, such as the clause, “I intentionally make no provisions for my other nieces and nephews.” Mrs. Elder died a few days after her dictation to Judge Burns and before the will prepared by Holliday was executed.

The page of notes prepared by Judge Burns was subsequently submitted for probate; its proponents contended it constituted a validly executed will for Mrs. Elder. At a hearing, Judge Burns and Mrs. Har-gett testified to the effect that Mrs. Elder did not intend the notes to be her last will and testament, but merely sought to provide the drafting attorney information necessary to prepare her will. Judge Burns further testified that he wanted Mrs. Elder’s signature on the notes “So I could take it to somebody and let them know that she wanted it done like that instead of me wanting it done like that.” Other witnesses testified that Mrs. Elder expressed to them, following her meeting with Judge Burns and Mrs. Hargett, that she had made a will.

Following the hearing, the trial court found that Mrs. Elder had intended the notes to be her will and that her signature thereon was sufficient to give the notes the legal effect of a will. The court further found that the signature of Mrs. Hargett was sufficient to satisfy the requirement of one subscribing witness, leaving the sole issue of whether Judge Burns was the required second subscribing witness. Following briefs and arguments on this issue, the trial court denied probate, stating in its decree:

After considering the evidence, the Court finds that the alleged signature of Joe T. Burns as an attesting witness was not affixed to said alleged will with the intent to witness a will; that Joe T. Burns did not intend to be a witness to the execution of a will; and that Joe T. Burns, in putting his name on the alleged will, did not intend that his name be his signature. The Court further finds that Joe T. Burns did not have the requisite animus testandi to be a witness to the alleged will.

The sole issue on this appeal is whether the subscribing witness to a will must have an intent to attest the document for the will to be valid.

Appellants contend that no mental element is mandated by the attestation requirement of Code 1975, § 43-1-30, viz.:

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. [Emphasis added.]

We disagree.

“The purpose of this requirement is to remove uncertainty as to the execution of wills and safeguard testators against frauds and impositions. Elston v. Price, 210 Ala. 579, 98 So. 573 (1923); Riley v. Riley, 36 Ala. 496 (1860).” Culver v. King, 362 So.2d 221, 222 (Ala.1978). In addressing the problem of the location of the witness’s signature on the will, this Court observed: “[T]o ‘subscribe’ as used in the statute was not intended to be used in its literal, primary sense, but in its broader meaning to attest by signing the witness’ name as an act done with the intention of his witnessing the execution of the will.” Hughes v. Merchants National Bank of Mobile, 256 Ala. 88, 96, 53 So.2d 386 (1951) (Emphasis added).

The intention of a witness was also a key factor in a case somewhat similar to the instant one. In Elston v. Price, 210 Ala. 579, 98 So. 573 (1923), the would-be testatrix signed a document which she did intend to be a will, and one witness signed for the purpose of attestation. At the alleged execution of the will, Dr. B. F. Caffey signed a separate piece of paper for the purpose of certifying the would-be testatrix’s mental capacity. Although Dr. Caffey was present during the execution of the will and witnessed the other signatures, this Court held:

[T]he essential thing is that by the signature the witness meant to affirm the deceased executed the will in his presence. From the undisputed proof in this case this cannot here be said. ... Dr. Caffey was not requested to sign this instrument as a subscribing witness. He was there for the purpose of certifying as to the sanity of the testatrix.... He fully met the purposes of his visit by the execution of the certificate as to sanity, and we think it quite clear that his signature to the certificate under the circumstances here shown, cannot upon any reasonable grounds be construed to the effect that Dr. Caffey meant thereby to affirm that the deceased executed the will in his presence.

210 Ala. at 581, 98 So. 573 (Emphasis added).

In the instant case, Judge Burns visited Mrs. Elder for the purpose of taking notes that would later be used to prepare her will. The writing of his name as executor was merely part of the information to be passed on to the drafting attorney. Under these circumstances, it does not appear that Judge Burns meant to affirm an execution of Mrs. Elder’s will.

We have found no recent case addressing a fact situation similar to the instant one. However, the facts of Snelgrove v. Snelgrove, 4 S.C. Eq. (4 Des.) 274 (1812), are directly on point and its rationale appropriate. There, the proponents of the will claimed that a Mr. Cleary, who had penned the will in the presence and by the direction of the testator, should be deemed an attesting witness because he had written his name in the will as executor. The South Carolina court said:

It is evident that the testator did not look upon or consider Mr. Cleary as a subscribing witness to his will. He called three others to perform that function. He employed Mr. Cleary as his amanuensis. And the appearance of Mr. Cleary’s name on the face of the will is accidental. He chose to name him one of his executors; and of course Mr. Cleary in writing the names of the executors wrote his own name. But I cannot consider this as attesting and subscribing the will as a witness within the meaning of the statute .... I cannot consider the accidental circumstances, which placed Mr. Cleary’s name in his own hand writing on the face of the will as executor, in the presence of the testator, and the accidental circumstance of the testator’s afterwards signing in his presence, as constituting him a subscribing and attesting witness.

4 S.C. Eq. (4 Des.) at 283-84.

An attesting witness need not know the document he attests is a will. Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975), and Fulks v. Green, 246 Ala. 392, 20 So.2d 787 (1945). From this rule, appellant argues that a witness need not have any intent to witness the document. This does not necessarily follow. In each of these cases, there was at least an intent to witness some document, whether it be a will or not. This minimal intent requirement is still generally recognized.

Although a will may be attested validly in jurisdictions in which publication is not required notwithstanding that the witness is not aware that the instrument which he subscribes is a will, it is essential to the effectiveness of his attestation that he act with intent to attest the instrument. He must sign with the intention of performing the act necessary to become a witness to the execution of the instrument. It is, however, the intent manifested by the circumstances under which the witness signs, rather than his own concept of the purpose for which his signature is required, which is determinative.

79 Am.Jur.2d Wills § 267 (1975) (footnotes omitted). See Page on Wills § 19.129 (rev. ed. 1960). In the instant case, the evidence indicates that Judge Burns, by his signature, sought to inform the drafting attorney of whom Mrs. Elder desired to be the executor of her will. Thus, the trial court’s finding that there was no intent to witness anything at all is amply supported by the evidence.

As a leading authority on wills has stated:

Regardless of what it is that is attested, the witnesses must intend to act as witnesses, or the will is not valid. The mere presence of persons during the performance of the acts required by the statute, coupled with the fact that they sign the will, is not sufficient unless the witnesses have the requisite animus attestandi.

T. Atkinson, Handbook of the Law of Wills § 69 (2d ed. 1953) (footnote omitted).

We hold that an attesting witness must possess, at the minimum, an intent to witness some document. In denying the petition to probate the will, the trial court correctly considered Judge Burns’s intent in placing his name on the notes, although it is not necessary that a witness intend to attest a will per se.

AFFIRMED.

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