author: BEATTY, Justice.

text:
    CECIL CREWS CHEVROLET-OLDSMOBILE, INC., a Corporation, v. Fannie Lou WILLIAMS.
    No. 79-403.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    J. Marise Mims of Boggs & Mims, Clan-ton, and Michael Murphy, Centreville, for appellant.
    Steven W. Ford and J. Douglas McElvy of Ford, McElvy & Ford, Tuscaloosa, for appellee.
   BEATTY, Justice.

On December 7, 1977 the plaintiff, Mrs. Fannie Lou Williams, filed suit in the Circuit Court of Bibb County against the defendant, Cecil Crews Chevrolet-Oldsmobile, Inc., (Crews Oldsmobile) for fraud, misrepresentation, and breach of warranty, and against the defendant, General Motors, for breach of warranty. Both claims arose out of the sale of a 1977 Oldsmobile Cutlass Supreme. The case was tried before a jury which returned a verdict for Mrs. Williams against Crews Oldsmobile, in the amount of $30,000.00 and for Mrs. Williams against General Motors in the amount of $20,000.00. Crews Oldsmobile and General Motors filed motions for judgment notwithstanding the verdict or in the alternative for new trial. Crews Oldsmobile’s motion was denied. A remittitur of the judgment against General Motors to the amount of $2,500.00 was stipulated to by Mrs. Williams and General Motors and was granted by the trial court. Crews Oldsmobile filed this appeal on March 3,1980. This Court determined that the judgment appealed from was not a final order and dismissed the appeal on July 22, 1980. The plaintiff then filed a Rule 60(a) motion to correct clerical error or omission and/or to correct the record on appeal. The plaintiff also filed a supplemental record with this Court, showing that a final judgment had been entered. This Court granted the motion and reinstated Crews Oldsmobile’s appeal. We affirm the judgment of the trial court.

On July 16, 1977, Mrs. Williams purchased a six cylinder Oldsmobile Cutlass Supreme from Crews Oldsmobile. The purchase culminated a series of visits by Mrs. Williams, her husband and their son to Crews Oldsmobile.

The evidence adduced at trial conflicted, but according to the Williamses’ testimony the following events transpired. During the week of July 9, 1977 Mrs. Williams, her husband and their son visited Crews Oldsmobile and talked to Steve Crews, vice-president and employee of Crews Oldsmobile. The Williamses told Steve Crews at that time that they were interested in an eight cylinder car and he replied that he did not have one at that time. All three left and returned to Crews Oldsmobile later in the week and again told Steve Crews they were looking for an eight cylinder car. They test-drove an eight cylinder Monte Carlo, but left without making a purchase. The Williamses returned on July 16, 1977 intending to purchase the Monte Carlo. After some disagreement over its price, the Williamses, accompanied by Paul McCrary, a salesman of Crews-Oldsmobile, began looking through the lot for another car. Paul McCrary pointed out one car to the Williamses, but they rejected it because it did not have an eight cylinder engine. The Williamses both testified that they expressed again that they were not interested in buying a six cylinder car. Paul McCrary then showed them a new Cutlass Supreme, which had a six cylinder engine. After negotiating the price of this car with Steve Crews, Mrs. Williams purchased the car. The total price was $6,541.31, $2,635.00 being paid by check and $3,906.31 being allowed on the trade-in of another vehicle. She contends that if she had known this car had six cylinders, she would not have purchased it.

At the time of the sale, Mrs. Williams was given an odometer disclosure statement on which the word “eight” was written out in the space designating the number of cylinders. The document was signed by Steve Crews. Mrs. Williams also received a carbon copy of the application for title. In the space on that application for the number of cylinders the number “8” was typed. Cecil Crews, the president of Crews Oldsmobile, signed the application for title. Thus, both documents she received at the time of the sale showed the car to have eight cylinders.

Mrs. Williams did not discover that the vehicle had a six cylinder engine until she was given the window sticker several days after the purchase. Upon her discovery she called Crews Oldsmobile to complain. Subsequently Mrs. Williams encountered many problems with the car. It began “shaking and shimmying” and finally after several attempts at repair by Crews Oldsmobile and other mechanics in Tuscaloosa and Montgomery, it was discovered that there was a dent in the drive shaft. Mrs. Williams traded the vehicle for another on October 28, 1977.

Paul McCrary, however, testified that to his knowledge, engine size was never discussed by the Williamses while negotiating their purchase. Moreover, he stated that he showed the Williamses the sticker, which clearly showed the car to have six cylinders, and read off the standard equipment and the options of the vehicle prior to their purchase of it. Steve Crews similarly testified that the Williamses never mentioned engine size. He admitted filling out the odometer disclosure statement, and urged that when he wrote that the car had eight cylinders, he merely made a mistake. He explained that this was probably due to the fact that 1977 was the first year that a six cylinder Cutlass had been built, and that he had not sold many. Cecil Crews, who typed and signed the application for title on which was typed that the car had eight cylinders, explained that the number “8” was a typographical error which had been corrected to be read “6.” He stated that Mrs. Williams was given one copy and the original one was sent to the State of Alabama to prepare the certificate of title. The certificate of title clearly showed the car to have six cylinders. Crews Oldsmobile on appeal contends that the evidence was insufficient to support a verdict based on fraud.

The definition of legal fraud is found in Code of 1975, § 6-5-101:

Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.

It has been held that whether the representations were made willfully, recklessly or mistakenly, in order to be actionable fraud there must be (1) a false representation, (2) the false representation must concern a material existing fact, (3) the plaintiff must rely upon that false representation, and (4) the plaintiff must be damaged as a proximate result. International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977); Mathis v. Jim Skinner Ford, Inc., Ala., 361 So.2d 113 (1978).

Our review of the record convinces us that there was sufficient evidence, if believed by the jury, to support a finding in favor of Mrs. Williams based upon fraud. The testimony of Mrs. Williams, as previously related, was that she had repeatedly told Crews Oldsmobile that she wanted an eight cylinder car, that she was shown and sold a six cylinder; that she was given two documents at the time of the sale which falsely stated that the car had eight cylinders; that she relied on the implied and actual representations of Crews Oldsmobile that this car had eight cylinders; and that if she had known the car had only six cylinders, she would not have purchased it. Although the testimony presented by the defendant conflicted with that of the Wil-liamses, the jury resolved the conflict in favor of the plaintiffs. The trial court then denied the defendant’s motion for a new trial. That ruling strengthened the presumption of correctness which accompanies a jury verdict. A reviewing court will not reverse a jury verdict unless the evidence is so preponderant against the verdict as to clearly indicate that it was wrong and unjust. Walker v. Cardwell, Ala., 348 So.2d 1049 (1977); Royal Chevrolet Company v. Kirkwood, Ala.Civ.App., 373 So.2d 858 (1979). We do not find such a preponderance of evidence here.

Crews Oldsmobile contends that even if this Court finds that fraud was committed, the evidence presented was insufficient to support an award of punitive damages. Generally punitive damages may be awarded when the fraud is malicious, oppressive or gross and the misrepresentation is made with knowledge of its falsity and with an intent to injure. Hall Motor Company v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). Although in Hall Motor Company, supra, punitive damages were denied because of the absence of evidence that the seller of an automobile knew the car which he sold was defective, this Court later recognized that,

Hall does, however, clearly establish the right of the plaintiff to punitive damages when the fraud is malicious, oppressive, or gross, and the misrepresentation is made with knowledge of its falsity and with the purpose of injuring him.... [Boulevard Chrysler-Plymouth v. Richardson, Ala., 374 So.2d 857 (1979).]

In Boulevard Chrysler-Plymouth, supra, a $30,000.00 verdict was returned against the appellant, Boulevard, on the ground that instead of the promised “new” car, the ap-pellee-buyer received a damaged car. The appellee had told Boulevard’s salesman that he wanted a “new” car and the salesman replied that he had a car, “like you want.” In fact, the buyer received a car which had not been sold at retail, but which had been damaged and repaired prior to the sale. Boulevard was fully aware of the damage and repair to the car. This Court held that the evidence there was sufficient to support the award of punitive damages and allowed the $30,000.00 verdict to stand.

In Royal Chevrolet Company v. Kirkwood, Ala.Civ.App., 373 So.2d 858 (1979), the appellee-buyer instructed Royal Chevrolet to order an automobile with a 231 cubic-inch engine. He was delivered an automobile with a 200 cubic-inch engine, but was informed that the automobile was as ordered. Although there was a dispute as to whether the appellee actually agreed to the ordering of the smaller engine, the Court found that there was sufficient evidence to support a finding of fraud, and allowed the appellee to recover punitive damages.

In the case at bar there was sufficient evidence from which the jury could conclude that implied representations that the car had eight cylinders were made to Mrs. Williams. After repeatedly informing Crews Oldsmobile’s salesman that she wanted only an eight cylinder car, she was shown this six cylinder car with no explanation. Moreover, Mrs. Williams was actively misled by the two documents she received at the time of the sale, which showed the car to have eight cylinders. Since there was evidence from which the jury could have reasonably concluded that Crews Oldsmobile sold Mrs. Williams an automobile substantially different from the one she requested, and did so with the knowledge of the disparity and intentionally represented to her that it was as she requested, we find that the award of punitive damages was not improper.

Crews Oldsmobile finally urges that the verdict of $30,000.00 was excessive since the actual amount of the injury here was around $1,000.00. This Court has repeatedly held that the imposition of punitive damages in cases of this kind is “discretionary with the jury acting with regard to the enormity of the wrong and the necessity of preventing a similar wrong.” E. g, Neil Huffman Volkswagen Corporation v. Ridolphi, Ala., 378 So.2d 700 (1979) (there this Court approved a $27,500.00 verdict rendered for fraud and misrepresentation in the sale of a used automobile when the actual damages proved were no more than $3,650.00); J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967) (there this Court approved a $20,000.00 verdict including punitive damages awarded for fraud and deceit in the sale of a used automobile). Moreover, a jury’s verdict is presumed to be correct, and will not be set aside as excessive, unless the amount is so great as to plainly indicate that it was the result of passion, bias, prejudice or improper motive.” U-Haul Company of Alabama v. Long, Ala., 382 So.2d 545 (1980).

After reviewing the evidence, we find that the verdict was not so excessive as to indicate a clear abuse of discretion on the jury’s part. Thus, the award of damages was proper.

Let the judgment be affirmed.

AFFIRMED.

MADDOX, JONES and SHORES, JJ., concur.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Denny Joe INMAN v. Napolean GOODSON and Lena Bell Goodson.
    No. 79-448.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      G. Houston Howard, II of Howard & Dunn, Wetumpka, for appellant.
    Stephen M. Langham, Prattville, for ap-pellees.
   MADDOX, Justice.

This is an appeal from a judgment declaring that an option to sell property which was the homestead of the grantor and his wife was void because the option was not signed by the wife.

Plaintiffs Napolean and Lena Bell Good-son are husband and wife. They were married in 1937. They own approximately fifty-six acres of land in Autauga County, Alabama. Mr. Goodson acquired approximately twenty acres of the property in 1944, and in 1949, the Goodsons constructed their home on this property. Thereafter, in 1953, they acquired an additional twenty acres as tenants in common, and, in 1966, Mr. Goodson acquired the final twenty acres.

Although the parcels are contiguous, the tract on which the homeplace is located is separated from the other property by U.S. Highway 31. The tract on which the home-place is located, at the time of trial, contained approximately sixteen acres; it lies west of the highway and the remaining forty acres lies east of the highway. The forty-acre tract is the property which is the subject of this action.

In early June, 1978, Mr. Inman, the appellant and option-holder, contacted Mr. Goodson about purchasing the forty-acre tract. Goodson showed Inman the property and they discussed the terms of a proposed sale. According to Inman, Goodson agreed to sell him an option to purchase the land at a price of $1,000 per acre. According to Goodson, no agreement was reached.

There was evidence that Goodson only had a second grade education and could not read and write, but could “scratch his name a little.” There was also evidence that Mrs. Goodson handled the business affairs for the family.

On June 13, 1978, Inman brought an option contract to Goodson’s house. Goodson told Inman that his wife was in the hospital and, for that reason, he could not sign “the paper.” Inman then drove Goodson to the hospital. There is some dispute as to what happened when they arrived at the hospital.

The appellant contends that Goodson walked down the hall at the hospital and met a woman. Inman did not know Good-son’s wife and, therefore, assumed that this woman was Mrs. Goodson. In fact, she was the Goodsons’ daughter, Yvonne Goodson Bates. The appellee contends that Inman knew that Mrs. Goodson was in intensive care because of a bleeding ulcer, and had, in fact, seen her in her hospital room with tubes in both arms and in her nose. Good-son further contends that Inman then talked the daughter into signing her mother’s name to the option, telling her that it did not matter who signed the paper. Goodson claimed that he could not read and that Inman did not inform either him or his daughter of the contents of the document which they signed. Regardless of whose version is correct, the option contract was signed by Mr. Goodson and his daughter, who signed her mother’s name.

Several days after Inman acquired the option, he assigned it to Lester Skidmore. Five days prior to the expiration of the term of the option, Skidmore elected to exercise it. The Goodsons refused to convey the property. They subsequently filed the declaratory judgment action which is the subject of this appeal. Prior to the trial of the action, Skidmore assigned the option back to Inman.

The trial court heard the evidence in this case without a jury and issued the following order:

(1) That the option purportedly executed by the Plaintiffs Napolean Goodson and Lena Bell Goodson on the 13th day of June, 1978, granting Defendant Denny Joe Inman the exclusive right of purchasing certain real property located in Au-tauga County, Alabama, is void as a matter of law.
(2) That the aforementioned option is void due to the fact that the real property which is the subject of the option constitutes the homestead of the Plaintiffs and was not signed by the wife, Plaintiff Lena Bell Goodson.
(3) That Defendant Lester J. Skidmore is not entitled to recover from Plaintiff Napolean Goodson on the Counter-Claim filed by the said Defendant and said Counter-Claim is hereby dismissed.
(4) That Defendant Denny Joe Inman is not entitled to the relief prayed for in his Counter-Claim.
(5) That the cost incurred herein be paid by Defendant Denny Joe Inman.

Thus, the issue before this Court on appeal is whether the option contract was invalid because it did not contain the signature of the wife, Lena Bell Goodson.

Code 1975, § 6-10-3 states:

No mortgage, deed or other conveyance of the homestead by a married person shall be valid without the voluntary signature and assent of the husband or wife, which must be shown by his or her examination before an officer authorized by law to take acknowledgments of deeds, and the certificate of such offer upon, or attached to, such mortgage, deed or other conveyance, which certificate must be substantially in the form of acknowledgment for individuals prescribed by section 35-4-29.

The trial court, applying this statute, found that the subject property “constitutes the homestead of the plaintiffs,” and declared that the option was void. The crucial question thus presented is: What is the meaning of the word “homestead” in the statute, and what is the effect of a conveyance of a larger tract which includes the “homestead”?

This court has had an opportunity to consider the effect of an alienation of property by one spouse without the assent of the other wherein property is retained which has a value greater than that required to constitute the homestead.

This first opportunity was presented in Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742 (1916). In that case, it was stated:

When the owner of a homestead which is greater in value than $2,000, or in area than 160 acres, sells a portion thereof, leaving, including the dwelling and land contiguous thereto, the maximum value or area allowed by law for the homestead, this amounts to the selection of a homestead to the exclusion of the alienated tract, and the provisions of the Code (section 4161) with respect to the alienation of homesteads have no application. This proposition does not seem to have been heretofore considered by this or any other court, but its propriety cannot be doubted, and it is in harmony with our statutes and decisions. — De Graffenried v. Clark, 75 Ala. 425; Marks v. Wilson, 115 Ala. 561, 22 So. 134; Jaffrey v. McGough, 88 Ala. 648, 8 So. 333.

Likewise, in Drake v. Drake, 262 Ala. 609, 80 So.2d 268 (1955), this Court stated:

It is evident that the homestead referred to in § 205 of the Constitution of 1901 and in Code of 1940, Title 7, §§ 625 and 626, as amended, means that a homestead which cannot be alienated without the wife’s consent is one that does not exceed in value $2,000 and in area 160 acres.

More recently, in Allagood v. DuBose, 286 Ala. 559, 243 So.2d 668 (1971), this Court opined, quoting from Rhodes v. Schofield, 263 Ala. 256, 82 So.2d 236 (1955):

“Where the conveyance is of a larger tract, including the homestead, which has not been selected or set apart, the conveyance is valid as to the excess over and above the quantity to which the owner is entitled by way of exemption. ‘In such case (it is said), the legal title to the whole passes to the grantee, with the reserved power in the grantor to withdraw the exempted portion from the operation of the conveyance, by some proper act of selection, by which it is separated from the other.’ De Graffenried v. Clark, 75 Ala. 425; McGuire v. Van Pelt, 55 Ala. 344. See Estes v. Metropolitan Life Ins. Co., 232 Ala. 656, 169 So. 316; Moses v. McClain, 82 Ala. 370, 2 So. 741; Farley v. Whitehead, 63 Ala. 295.”

It is clear that a spouse does not have to sign a conveyance of property by the other spouse which is in excess of and which reserves unto them an amount of property with a value equal to or greater than that required to constitute homestead. In the present case, the option contract did not affect the sixteen acres on which the Good-sons resided. This property appears to have a value in excess of that required for homestead, but if it does not, the grantor could withdraw the exemption portion from the operation of the option contract under procedures as stated in Allagood; thus, the trial court erred in holding, as a matter of law, that the option was invalid because Mrs. Goodson did not sign it. Consequently, the judgment of the trial court is due to be reversed. Our reversal of the judgment, however, is based upon a determination by us that the trial court misapplied the law to the facts. In making our determination, we have focused on the only issue which the trial court considered. We therefore, do not decide whether the option holder would be entitled to specific performance, what effect the signing of Mrs. Goodson’s signature by her daughter would have on the option, whether Skidmore’s assignment of the option back to Inman was an assignment of the cause of action so that Inman could exercise the now expired option, the effect of the Goodsons’ being tenants in common as to twenty of the forty acres, or any other issue which might be raised during any subsequent adjudication of the rights of the parties relative to the option contract.

REVERSED AND REMANDED.

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


text:
    Richard A. KEMPANER v. Aubrey THOMPSON, as Executor of the Estate of Edward Lee Thompson, deceased.
    79-451.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      Charles C. King, Huntsville, for appellant.
    Macon L. Weaver, Huntsville, for appel-lee.
   MADDOX, Justice.

This appeal will examine the question whether a joint tenant who feloniously kills his cotenant can acquire property rights which accrue to him by reason of the death.

Edward Lee Thompson and Peggy Thompson were husband and wife. Each had been previously married and each owned an interest in a lot and house.

On April 12, 1974, each executed a deed conveying their two houses and lots to themselves, “for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple.” Lot 19 of Lakewood Manor Subdivision, the subject property, was owned by Edward Lee Thompson, individually, prior to his marriage to Peggy Thompson.

Edward Lee Thompson was killed on May 17, 1974, and his wife, Peggy Thompson, was indicted for murder in the second degree. Peggy Thompson was subsequently convicted of manslaughter in the first degree and sentenced to five years imprisonment. Thompson v. State, 364 So.2d 681 (Ala.Cr.App.1976).

During the course of her criminal trial, Peggy Thompson was represented by Kem-paner and Dan Moran. As compensation for that representation, Peggy Thompson conveyed Lot 19 of Lakewood Manor Subdivision to Kempaner and Moran. On August 27, 1975, Moran and his wife, Barbara, conveyed their interest in the property to Kem-paner.

On January 29, 1976, Aubrey Thompson, as executor of the estate of Edward Lee Thompson, commenced an action in the Circuit Court of Madison County against Peggy Thompson, Richard Kempaner, Dan Moran and Barbara Moran. This action sought to have the joint tenancy with right of survivorship deed executed between Peggy Thompson and Edward Lee Thompson set aside and further to have the deed from Peggy Thompson to Kempaner and Moran set aside on the ground that Peggy Thompson had feloniously killed her husband and thereby forfeited all interest in the property-

Under a pretrial order, Dan and Barbara Moran were dismissed as parties to the action. On August 30, 1979, the case was submitted to a jury on the issue of whether Peggy Thompson had feloniously killed Edward Lee Thompson. The jury returned a verdict which found that “the death of Edward Lee Thompson was caused feloniously by the criminal agency of Peggy Thompson.” On December 7, 1979, the trial court entered the judgment which is the subject of this appeal. On February 6, 1980, Dan and Barbara Moran filed an application to intervene as parties defendant and this application was denied.

The appellant raises three issues on appeal:

(1) Did the trial court err in declaring that the felonious killing of one joint tenant by his cotenant renders void the deed by which their interests were created?

(2) Does the felonious killing of one joint tenant by his cotenant divest the subsequent grantee of the surviving joint tenant of his interest in the property, and, if so, is the grantee divested of his entire interest or only the one-half interest which had belonged to the deceased joint tenant?

(3) Did the trial court err in ruling that Moran and his wife were not necessary parties to the disposition of a declaratory judgment action in which the grantee of the Morans was divested of his entire interest in the property?

In Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), this Court held:

In summary, we hold that § 19, as now amended, recognizes joint tenancy, with right of survivorship, as a valid estate in realty or personalty, and that it differs from the common law estate of the same name only in so far as (1) the statutory requirement that the intention to have the right of survivorship must be clearly expressed in the instrument of conveyance, and (2) elimination of the common law unity of time. We further hold that such estate is destructible as at common law.

There appears to be no dispute in this case that the Thompsons intended to and did create a valid joint tenancy with right of survivorship. What is in dispute is the effect of the felonious killing of Edward Lee Thompson by Peggy Thompson on that estate.

This issue does not appear to have been addressed in this state. In Hanna v. Riggs, 333 So.2d 563 (Ala.1976), this Court dealt with the issue of whether a beneficiary under a life insurance policy was entitled to the proceeds under the policy when the beneficiary had caused the insured’s death. There was a question as to whether the killing was, in fact, felonious. Thus, the Court, in Hanna, never reached the issue presented by the present case, although the opinion could be read as holding that if the killing were felonious then the beneficiary could not recover. In any event, Hanna did not in any way involve a joint tenancy estate.

Likewise, a similar issue was presented in Weaver v. Hollis, 247 Ala. 57, 22 So.2d 525 (1945). In Weaver, it was held that the felonious killing of a wife by her husband would preclude the husband from sharing in the estate of the wife under the statute of descent and distribution. The basic rationale expressed in Weaver is that one should not be allowed to profit from his wrongdoing.

Although not decided by a court in Alabama, other jurisdictions have considered the question presented by this case and have reached varying results. See, generally, Annot., 42 A.L.R.3d 1116 (1972). Several jurisdictions have allowed the surviving joint tenant who killed the deceased joint tenant to acquire the entire estate. Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514 (1950); Anderson v. Grasberg, 247 Minn. 538, 78 N.W.2d 450 (1956); Oleff v. Hodapp, 129 Ohio St. 432, 195 N.E. 838 (1934); and Di Lallo v. Corea, 19 Pa.D. & C. 282 (1933).

Several other jurisdictions have reached the opposite result and held that a joint tenant who feloniously kills his cotenant cannot receive any interest in the property. Sikora v. Sikora 160 Mont. 27, 499 P.2d 808 (1972); Merrity v. Prudential Insurance Company, 110 N.J.L. 414, 166 A. 335 (1933); Bierbrauer v. Moran, 244 App.Div. 87, 279 N.Y.S. 176 (1934); and Re Estate of Bobula, 25 App.Div.2d 241, 269 N.Y.S.2d 599, rev’d on other grounds, 19 N.Y.2d 818, 280 N.Y.S.2d 152, 227 N.E.2d 49 (1966).

A third result has been reached in other states. This result has been to treat the felonious killing of one joint tenant by the other as working a severance of the joint tenancy and creating a tenancy in common as to the property. In other words, the property would be divided between the parties such that the surviving joint tenant would receive one-half of the property and the estate of the deceased joint tenant would receive one-half of the property. Johansen v. Pelton, 8 Cal.App.3d 625, 87 Cal.Rptr. 784 (1970); Bradley v. Fox, 7 Ill.2d 106, 129 N.E.2d 699 (1955); Re Estate of Shields, 1 Kan.App.2d 688, 574 P.2d 229 (1977); and Re King’s Estate, 261 Wis. 266, 52 N.W.2d 885 (1952).

At common law a joint tenancy was severed by any act which destroyed any of the four unities of time, title, interest and possession which were required for a joint tenancy to exist. Under the holding in Nunn v. Keith, the four unities are no longer required to be present for a joint tenancy to exist. Nunn held, however, that the joint tenancy estate is destructible as at common law.

At common law, one way in which the joint tenancy could be severed was by the death of one of the joint tenants. Of course, this normally vested the entire estate in the survivor. Thus, in the present case, the joint tenancy between Mr. and Mrs. Thompson was severed by his death. The question presented is whether that severance will operate in furtherance of the survivorship provision of the joint tenancy or whether that severance will operate to create a tenancy in common as to the property since the severance was created by the felonious act of the surviving joint tenant.

As noted above, there are three theories as to the amount of the estate to which the surviving joint tenant should be entitled when the surviving joint tenant has feloni-ously caused the death of the deceased joint tenant. One theory would allow Mrs. Thompson or her successors in interest to acquire the entire estate. The second theory would deny Mrs. Thompson or her successors any interest in the property. The third theory would sever the joint tenancy, and create a tenancy in common and allow her to “retain” a one-half interest in the property.

Given the rationale expressed in Weaver v. Hollis that one should not be allowed to profit by his wrongdoing, and the holding in Nunn v. Keith that the common law doctrine of destructibility of joint tenancies is recognized in Alabama, the result most consistent with Alabama law is the third alternative; that is, where one joint tenant feloniously causes the death of his fellow joint tenant the joint tenancy is severed and a tenancy in common is thereby created. As a result of the severance of the joint tenancy and the creation of the tenancy in common, the surviving joint tenant will “retain” a one-half interest in the property and a one-half interest in the property will pass to the estate of the deceased joint tenant.

In this case, we hold that at the time of Edward Lee Thompson’s death Peggy Thompson owned a one-half interest in Lot 19 at Lakewood Manor Subdivision and the remaining one-half interest in that property was owned by the estate of Edward Lee Thompson. Thus, Peggy Thompson could have conveyed to Kempaner and Moran no more than a one-half interest in the property. The judgment of the trial court which awarded the entire interest in the property to the estate of Edward Lee Thompson is erroneous and is due to be reversed.

The final issue raised by the appellant is whether the trial court erred in ruling that Dan and Barbara Moran were not necessary parties to the disposition of the declaratory judgment action. Under Rule 19, ARCP, a person must be joined if he claims any interest relating to the subject of the action. In the present action, both parties, in brief, agree that the Morans conveyed whatever interest they had in Lot 19, Lakewood Manor Subdivision to Kem-paner; therefore, the trial court did not err in ruling that the Morans were not necessary parties to the disposition of the action.

Based on the foregoing, the judgment of the trial court is due to be affirmed in part and reversed in part and judgment rendered in accordance with this opinion.

AFFIRMED, IN PART; REVERSED AND RENDERED, IN PART.

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


author: SHORES, Justice.

text:
    MOBILE COUNTY BOARD OF SCHOOL COMMISSIONERS et al. v. MOBILE COUNTY EDUCATION ASSOCIATION, etc. et al.
    No. 79-492.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellants.
    B. F. Stokes, III of Stokes & McAtee, Mobile, for appellees.
    William J. Baxley, Joel E. Dillard and Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for amicus curiae Alabama Ed. Ass’n.
   SHORES, Justice.

Mobile County Education Association (MCEA) is a professional association which represents the majority of teachers in the Mobile County school system. It filed a complaint against the Board of School Commissioners of Mobile County (the Board), requesting injunctive relief, alleging that the Board had failed to comply with § 16-8-10, Code of Alabama 1975, which MCEA claims requires the Board to consult with MCEA before adopting any policy.

The Board answered, contending that § 16-8-10, Code, had no application to the Mobile County public school system because § 270 of the Constitution of 1901 precluded its application to that county.

The trial court, after a hearing, entered judgment holding that § 16-8-10 was applicable to the Board, and the Board had violated that statute. The trial court found, specifically, that:

[T]he Defendants on numerous occasions, in fact violated the provisions of Title 16-8-10 by amending or adopting written policies without consulting with the Plaintiff;
[T]hat any matter involving the substantive rights of the employees of the Mobile County School Board, such as, but not limited to, salary increases or decreases, ordinary leave, sick leave or maternity leave policy, hours of employment, termination procedure, promotion procedure, mode of dress, etc. would be considered a matter of written policy within the purview of said statute;
[T]hat with respect to any addition, alteration or deletion of any written policy, the professional organization representing the majority of the certified employees of the School Board shall be entitled to at least fifteen (15) days notice of any such proposed addition, deletion, change or alteration;
[T]hat there are certain emergency conditions which could arise and that if there are bona fide emergency conditions, the Defendant School Board would be authorized to take such emergency action as it deems necessary.

The Board appealed and argues that the trial court erred in holding that § 16-8-10 applies to it because it argues § 270 of the Constitution prohibits the application of this general act of the legislature to Mobile County. It also argues on appeal, although not argued below, that if § 270 does not prevent the application of § 16-8-10 to Mobile County, Local Act 480, Acts of Alabama, Regular Session 1969, does. It finally argues that if § 16-8-10 does apply to Mobile County, the Board has substantially complied with its provisions. We affirm.

Section 270 of the Constitution of 1901, which was also contained in the 1875 Constitution, is a part of Article XIV, which mandates that the legislature “establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years.”

Section 270 provides:

The provisions of this article and of any act of the legislature passed in pursuance thereof to establish, organize, and maintain a system of public schools throughout the state, shall apply to Mobile county only so far as to authorize and require the authorities designated by law to draw the portions of the funds to which said county shall be entitled for school purposes and to make reports to the superintendent of education as may be prescribed by law; and all special incomes and powers of taxation as now authorized by law for the benefit of public schools in said county shall remain undisturbed until otherwise provided by the legislature; provided, that separate schools for each race shall always be maintained by said school authorities.

The official proceedings of the Constitutional Convention of 1901 make clear that § 270 was designed to allow Mobile County to retain in its control its license tax for the sale of liquor, which it had imposed since 1852. The following is excerpted from those proceedings:

MR. WHITE (Jefferson) — . .. We are proud of Mobile, but I do not feel that I can discharge my duty and be true to myself without opposing the adoption of this Section. There may be a good reason for it. If there is I have never heard it. If there is a good reason for it I know that the distinguished gentlemen who represent Mobile upon the floor of this Convention can give us that reason and give it to the people of the State just why Mobile, the richest city in the State; just why it is allowed to withhold from the public treasury its license tax for the sale of vinous, spirituous and malt liquors amounting to $44,000 last year.... Is it right that every city or every other county in the State to pay the license derived from the sale of spirituous liquors into the State Treasury and yet it be withheld by the county of Mobile?
MR. PILLANS (Mobile) — Mobile County procured this authority to put a license on liquor dealers in 1852, many years before the State put license on them for any purpose, and therefore did not withhold from the State Treasury, but taxed her own people for the schools.
MR. WHITE — That I suspect is no doubt true.... How long Mobile imposed the tax before it was imposed by the balance of the State, I do not know, but I do know that it has been imposed for a long time since the State has been imposing it upon other counties, or upon that industry in other counties.
MR. HOWZE — If this section were left out of the Constitution, would it affect the right of Mobile to retain the license under the act authorizing it?
MR. SMITH — Undoubtedly.
MR. HOWZE — Would not you be entitled to keep that money under the act if it were not in the Constitution?
MR. SMITH — I think not. Your present article creates a school system and provides for the regulation of public schools and provides how the funds for that school system shall be applied, and it is with reference to that that the act was passed.

The delegates from Mobile to the Constitutional Convention of 1901 were justifiably concerned about preserving to Mobile County its practice of withholding from the state treasury the proceeds of the liquor licenses. Section 270 was the result of their successful efforts in that regard. But as this Court observed in Board of School Commissioners of Mobile County v. Hahn, 246 Ala. 662, 22 So.2d 91 (1945):

The limitation on legislative power embodied in Section 270 of the Constitution is restrictive in its scope and purpose, and is to be strictly construed....
Said section also preserves to said county [Mobile], and this was its controlling thought, the existence of its local board and “all special incomes and powers of taxation as now [then] authorized by law for the benefit of public schools in said county, * * * until otherwise provided by the legislature.” Otherwise stated, the school system of said county is left open and subject to the discretion and plenary power of the legislature, without the constitutional mandate to continue its existence.
... The power of the legislature to enact laws for the benefit of public employees is plenary, except as limited by the Constitution....

246 Ala. at 665, 22 So.2d 91.

See, also, Board of School Commissioners of Mobile County v. Caver, Ala., 355 So.2d 712 (1978).

The legislature in adopting § 16-8-1, et seq., Code, has exercised its authority to establish county boards of education, their composition, election, and qualifications. By Section 16-8-10, the legislature mandated that such boards establish a written educational policy for the county in the following language:

§ 16-8-10. Educational policy of county.
The county board of education shall, upon the written recommendation of the county superintendent of education, determine and establish a written educational policy for the county and shall prescribe rules and regulations for the conduct and management of the schools. Before adopting written policies the board shall directly, or indirectly through the superintendent, consult with the professional organization representing the majority of the certified employees and in addition shall also consult with professional assistants, principals, teachers and interested citizens. The county board must establish such policies and adopt such rules and regulations and file them with the state superintendent of education. Such written policies, rules and regulations, so established, adopted or promulgated shall be made available to all teachers employed by the county board. Any amendments to such policies, rules and regulations shall be developed in the same manner, filed with the state superintendent and furnished to the teachers employed by the local board within 20 days after adoption thereof.

Section 270 does not preclude the application of § 16-8-10 to Mobile County. In fact, the reports required by this legislation to be made to the state superintendent of education are contemplated by Section 270; thus that constitutional provision is not offended by § 16-8-10.

The Board’s argument that Local Act 480 takes precedence over § 16-8-10 was not raised below and is not, therefore, before us. We note, however, that we find no inconsistency in the two.

The last argument advanced by the Board is a factual one, decided adversely to it by the trial court.

The Board argues that if § 16-8-10 is applicable to it, the trial court erred in holding that it had not complied with it. There is evidence to support the trial court’s finding that the Board has not complied with the provisions of § 16-8-10 in that it has not consulted with MCEA in formulating educational policy.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Ann Darden HENTZ et al. v. Eva Jones DARDEN, etc.
    No. 79-516.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Edward Still, Birmingham, for appellants.
    Joyce E. May and Raymond C. Winston, Birmingham, for appellee.
   MADDOX, Justice.

This appeal presents the issue of whether the trial court properly applied the dead man’s statute, Code 1975, § 12-21-163, to exclude testimony regarding a telephone conversation between witnesses and a deceased person.

The question of the applicability of the dead man’s statute arose in an action to determine the ownership of certain land situated in Jefferson County.

Robert Darden, Sr., died intestate in 1936, survived by his wife and seven children; his wife died intestate in 1962, survived by seven children. One of the children, Robert Darden, Jr., referred to herein as Bob Dar-den, and his wife, Eva, obtained quitclaim deeds from the other heirs. When Bob Darden died, his wife, Eva, claimed all right, title and interest in the property.

During the trial, Ann Darden Hentz, one of the plaintiffs, and a sister to the deceased, Bob Darden, attempted to testify about a telephone conversation between her and Bob Darden. She testified that she and her brother, Bill Darden, were in Birmingham and that Bob and Eva Darden were in New York. The defendant, Eva Darden, objected to the testimony on the grounds that the dead man’s statute prevented the use of the testimony; the court sustained the objection.

The plaintiffs made the following offer of proof:

MR. STILL: Your Honor, we make an offer of proof that this witness would testify that during that telephone conversation, Bob requested that Bill had contact with other family members and talked to them about executing quitclaim deeds to Bob for the purpose of simply having transactions involving the land so that deeds, quitclaim or deeds or contracts of various sorts, did not have to be sent around to each family member all over the United States.

Bill Darden’s testimony regarding the same telephone conversation was similarly excluded. Plaintiffs again made the following offer of proof:

MR. STILL: Your Honor, we again make an offer of proof that the same terms as I said with the previous witness that this witness would testify that the four of them discussed the procedure by which the property, particularly the Lew-isburg 40 acres that we are talking about here, would be transferred to the name of one person so that that one person would carry out any transactions relating to the property without the necessity of sending around deeds or consent forms or contracts to each person who happened to hold any interest in the property.

Marilyn Darden, a witness for the plaintiffs, was asked about a visit she made to the home of her uncle and aunt, Bob and Eva Darden, in New York in 1967. The following is shown by the transcript of the evidence:

Q Did you ever have occasion to visit your uncle’s home in Massapequa, New York?
A Yes, sir, I did.
Q That is your Uncle Bob, I am talking about?
A Right.
Q Do your remember when that happened to be?
A Well, there were a number of times when I lived in New York, and the last time I visited him there was in the summer of 1967.
Q Were you living in New York at that time?
A No. I was up there for a visit with a friend of mine.
Q All right. How long did you spend with your uncle at his house?
A I believe I went over one evening or maybe perhaps in the afternoon, one evening.
Q Was there anyone else there?
A Yes, sir. My cousin, Joy, and my aunt Eva.
Q During the evening, did any of the conversation deal with the Lewisburg property or the CuIIam Street property?
MR. WINSTON: Judge, we are going to object to that as getting back into the type of conversations we contend violate the Dead Man’s Statute as well as this being hearsay.
THE COURT: I am going to sustain the objection to the question in the form that it is posed on those grounds.
MR. STILL: Your Honor, we would make an offer of proof that during this conversation at the home of Bob and Eva, that they discussed with Marilyn the ownership.
THE COURT: You mean, they both spoke the same words at the same time?
MR. STILL: No, sir.
THE COURT: You say they discussed.
MR. STILL: Well, there was a discussion between the three of them, Your Honor, regarding the ownership of the Lewisburg property, the Cullam Street property, all the property that was owned jointly by the brothers and sisters and then the nieces and nephews. And that during that conversation, Bob suggested to Marilyn that the only way in which the property could reasonably be handled was to transfer ownership to one person for the purpose of — Well, for an ease of transferring title to any third party who might wish to buy the property. And that this was the sole reason for any sort of quit deed to be executed by the relatives to Bob.
THE COURT: All right. The objection made to the question as posed is still sustained, notwithstanding offer of proof.

The issue is squarely presented: Does the rule of evidence found in the dead man’s statute preclude the testimony of plaintiff’s witnesses regarding transactions between them and Bob Darden, now deceased, and his wife, Eva Darden? For the purpose of addressing this issue, we accept as fact that the plaintiffs could prove what they offered to prove, that is, that Eva Darden was present when her deceased husband made the statements attributed to him.

If the plaintiffs could, in fact, show that Eva Darden, wife of the deceased and grantee under the deeds, was present and could give her husband’s version of the transaction, the dead man’s statute would not apply. The rule of evidence, under these circumstances, was stated in Homewood Dairy Products Co. v. Robinson, 254 Ala. 197, 48 So.2d 28 (1950):

In the matter here material several states have interpreted their statutes, respectively, which prohibit testimony by an interested witness as to a transaction with or statement by the deceased person under circumstances there stated. The concensus [sic] of opinion is that the transaction with or statement by a deceased person is not such within such statute when it was with him and one or more others associated with the deceased in the transaction, for such other one still living may give his version of the transaction, and, therefore, the reason for the exclusion does not exist. Johnson v. Townsend, 117 N.C. 338, 23 S.E. 271; Goss v. Austin, 11 Allen, Mass., 525; Fulkerson v. Thornton, 68 Mo. 468; Peacock v. Stott, 90 N.C. 518; Kale v. Elliott, 18 Hun., N.Y. 198; Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792; McConnon & Co. v. Kuhlmann, 220 Mo.App. 821, 278 S.W. 822; Paddock v. Potter, 67 Vt. 360, 31 A. 784.

If the plaintiffs could prove, as they offered to do, that the statements made by the deceased husband were made in the presence of his wife, who was one of the grantees under the quitclaim deed, then the statement would not have been within the dead man’s statute. In making this determination, we do not decide that any alleged statements by the deceased in the telephone conversations were, in fact, made in the presence of the deceased’s wife, nor do we hold that the trial judge could not determine whether they were made in her presence prior to ruling on the competency of the evidence.

Regarding the conversation between the deceased and his niece, Marilyn Darden, Eva Darden seeks to sustain the trial court’s ruling with the argument that the plaintiffs “did not prove that [she] was associated with the deceased during any conversations between Marilyn Darden and the deceased, Bob Darden.... ” The record shows that the plaintiffs offered to prove that there was a discussion between Bob and Eva Darden and Marilyn Darden concerning the ownership of the subject property.

The judgment of the trial court is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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

      . At the time the testimony regarding the telephone conversation was offered, there was testimony that Eva Darden was a party to the conversation. When Eva Darden later testified, however, she appeared to deny that she was present, but her testimony was somewhat equivocal, as is shown by the following:
      Q You were present when Ann Hentz and Bill Darden were testifying about some conversation that took place?
      A I was.
      Q Do you recall the conversation?
      A I know there were conversations. I found references in the letters to them. If they called, I am sure I greeted them, but I do not think we even had an extension. And they asked to speak to him. I let them speak to him.
      Q Were you on the telephone during these conversations?
      A No. I think it would have been impossible, because as I remember, we did not even have an extension.

      . Rule 43(c), ARCP, provides a procedure for making a record of excluded evidence. Since this case was tried by the court without a jury, the court could have authorized the court reporter to take and report the evidence in full and thereby provide this court with a better opportunity to review its ruling. See Rule 43(c), ARCP.


text:
    Quida JONES v. LEE COUNTY COMMISSION.
    No. 79-631.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    C. Kerry Curtis of Curtis & Curtis, Phe-nix City, and Charles E. Floyd;,Phenix City, for appellant.
    Phillip E. Adams, Jr., Opelika, for appel-lee.
   BEATTY, Justice.

Appeal from the grant of a motion to dismiss the plaintiff’s complaint on the ground that the complaint showed upon its face that it was filed more than one year after the time of the alleged injury to the plaintiff. We reverse and remand.

The plaintiff’s complaint alleged that she was injured on July 18, 1977 when the automobile she was driving was struck by a motor vehicle owned by Lee County and operated at that time by a Lee County deputy sheriff in line of duty. After alleging negligence and wanton conduct on the part of the deputy, the plaintiff alleged the filing of a claim, dated June 29, 1978, with the Lee County Commission as required by Code of 1975, § 6-5-20; that the commission received the claim prior to the expiration of one year after the collision, and that within the ninety days next preceding the filing of the complaint itself the county commission had notified the plaintiff of the disallowance of the claim.

The trial court cited §§ 6-2-7 and 6-2-39 as authority for holding that the motion to dismiss should be granted. Those statutes follow:

§ 6-2-7. When a right exists but a demand is necessary to entitle the party to an action against any officer, agent or attorney, the limitation commences from the commission or omission of the act giving the right of action and not from the date of the demand.
§ 6-2-39.
(a) The following must be commenced within one year.
(7) All actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of responde-at superior.

Section 6-5-20, with which the plaintiff alleged compliance, states in parts (a) and (b):

(a) An action must not be commenced against a county until the claim has been presented to the county commission, disallowed or reduced by the commission and the reduction refused by the claimant.
(b) The failure or refusal of such a county commission to enter upon its minutes the disallowance or reduction of the claim for 90 days is a disallowance.

The interplay of these respective statutes has thus presented an anomalous situation. Although one may have a cause of action against a county, § 6-5-20 prevents the filing of suit (“An action must not be commenced”) until the claim has been presented to the county commission. Since § 6-2-7 commences the running of the statute of limitations of one year from the date of the injury, the failure of the commission to take any action conceivably could reduce a plaintiff’s allowance of time within which to bring the action to, perhaps, one day rather than one year. For example, if the plaintiff, having one year in which to file suit, waited until the day before the one-year statute had run and then filed his claim, the statute would run and his claim would be extinguished even though the county commission had ninety days in which to make a decision.

We do not believe the legislature intended such a result, especially in view of § 6-2-12 which appears to us to apply to the statutory prohibition contained in § 6-5-20(a):

When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not computed as a part of the limitation time.

This statute expressly excludes that part of the statutory prohibition, i. e., the time period utilized by the county commission under § 6-5-20, up to a period of ninety days. This result follows because the commencement of an action against the county is statutorily prohibited by § 6-5-20 “until the claim has been presented ... disallowed or reduced by the commission and the reduction refused by the claimant.”

Accordingly, in actions against a county the applicable statute of limitations is tolled for that period of time referred to in § 6-5-20(a), up to a total of ninety days. That is, the interval of time between the presentment of the claim and the time when the county commission disallows or reduces the claim is not computed as a part of the applicable limitation. See generally, Annot., 3 A.L.R.2d 711 (1949). As stated therein at 716:

As a general rule the statute of limitations does not begin to run until the claimant has a cause of action, and a claimant has no cause of action until he is free to bring suit on his claim.

As we stated at the beginning of this opinion we are reviewing the grant of a motion to dismiss. The well-understood position of an appellate court reviewing the grant of a motion to dismiss is, taking the allegations of the complaint most strongly in favor of the pleader, to determine whether the plaintiff could prove any set of facts in support of his claim which would entitle him to relief. Rule 12, ARCP, and commentary.

The plaintiff has alleged an injury which occurred on July 18, 1977. The one-year statute began to run against her cause of action on that date, and ordinarily would have operated to preclude her cause of action on July 18, 1978. She alleged that her claim was filed with the county commission on June 29,1978. On that date the running of the statute was tolled. Then she alleged that within the ninety days next preceding the filing of her complaint the commission notified her of its disallowance. Under those allegations if the commission had waited until the expiration of ninety days to disallow, or September 28, 1978, still the plaintiff would have had until October 17, 1978, to file her action because the interval of time between June 29, 1978 and July 18, 1978 would be applied to the remaining time under the statute of limitations of one year. She alleged that her action was filed on October 5, 1978. Coupling that allegation with the others it is possible that she could prove that the commission’s denial, even if it occurred in less than ninety days, nevertheless took place on a date “within the ninety days next preceding the filing of the complaint” which preceded the expiration of the limitation period. Those allegations, if proved, would be sufficient upon which to base compliance with the statute of limitations.

Accordingly, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Wayne DUNCAN v. STATE of Alabama.
    No. 79-784.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      Sam L. Webb, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

Wayne Duncan, a juvenile, appeals from an order transferring his case from the juvenile division to the criminal division of the Jefferson County Circuit Court for prosecution as an adult on the charge of robbery-murder. He specifically contends that there was not sufficient evidence presented at the hearing on the motion to transfer to warrant a finding of probable cause. We affirm the trial court’s decision.

At the hearing on the motion to transfer, the parties stipulated to the following:

On July the 2nd, 1977, at approximately 2:20 in the morning the body of James Thomas Moore, white male, was found in the 1900 Block of Fourth Avenue North; that he is deceased; and that the cause of death resulted from stab wounds or what appeared to be stab wounds ....

Wayne Duncan was charged with the robbery-murder of James Thomas Moore.

The State’s first witness was Bobby Joe Mack, a juvenile who served time with Duncan in the juvenile detention center in August 1977. Mack recalled that while he and Duncan were in detention, Duncan came to him and told him that he (Duncan) had a problem and needed to talk to someone about it. Mack stated that Duncan proceeded to tell him that he had followed a white man into an alley in downtown Birmingham, intending to rob him, but that they had “had a tussle,” and Duncan had stabbed the man to death. Mack related that Duncan said he took seven or eight hundred dollars and a gold watch from his victim. Mack also recalled Duncan saying that he threw the knife he had used upon a building.

Mack testified that about a month and a half after seeing Duncan in the detention facility, he was sent to Mt. Meigs, where he again served time with Duncan. At Mt. Meigs, Mack said that Duncan showed him two gold watches, one of which Duncan told him belonged to his murder victim. No watch was introduced into evidence.

On cross-examination Mack stated that he was presently residing in Draper Prison after a conviction for grand larceny and buying and receiving stolen property. Mack further revealed that he did not tell anyone about Duncan’s confession until a Bessemer policeman, Officer Sisco, showed him (Mack) a statement made by Duncan which accused Mack of murdering someone. Mack also testified that Sisco told him that he believed Duncan had done the robbery-murder, and that “somebody was going to take the rap, me or him,” meaning Mack or Duncan.

In addition to Mack’s testimony, the State showed that the deceased had received and cashed his paycheck on Friday, July 1, prior to his death in the early morning hours of July 2. The deceased had visited a bar on the night of Friday, July 1, where he was “flashing money around.” He left the bar around 1:00 a. m. and his body was discovered a few blocks away about 2:20 a. m. The deceased’s wallet was not found with the body, but was discovered two blocks from the body and was turned in to police as lost and found property-

The State offered the testimony of two auxiliary policemen, both of whom testified that on the night of Saturday, July 2, 1977, the night after the murder, the defendant, Wayne Duncan, was present in the alley where the deceased’s body had been found and that the defendant tried to lead one of them down that alley. The officer did not follow him more than 10-12 feet into the alley. One officer testified that he knew there had been a murder in that alley the night before, and he believed that the ploy used by the defendant, of luring people into the alley, could have been the same action used in the murder of Mr. Moore the previous night.

Based on the above evidence, the trial court granted the motion to transfer Duncan to the criminal division of the Jefferson County Circuit Court.

The order of the trial court was made pursuant to Code of 1975, § 12-15-34, and correctly reflects a consideration of the six factors in § 12-15-34(d), which are required to be considered prior to granting a transfer motion. See Young v. State, Ala., 387 So.2d 825 (1980). In addition to those six considerations, § 12-15-34(f) states:

When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion, which shall include a finding of probable cause for believing that the allegations are true and correct. [Emphasis added.]

Thus, a trial court can grant a motion to transfer only after considering the six factors in § 12-15-34(d) and expressly finding that there is probable cause to believe the allegations or charges against the child are true.

Here the trial court did specifically find probable cause to exist. The only issue on appeal is whether sufficient evidence was presented at the hearing to support the finding of probable cause.

A hearing on a motion to transfer has been said to be properly classified as a probable cause hearing. Winstead v. State, Ala., 371 So.2d 418 (1979); Brown v. State, Ala., 353 So.2d 1384 (1978). Such a hearing is not designed to determine the guilt or innocence of the child accused of the crime, but is instead a hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult. Brown, supra. The finding of probable cause is an essential element of the decision to transfer.

Probable cause has been defined by this Court as that which would “warrant a man of reasonable prudence and caution in believing that the offense has been committed and that the person in question is the offender.” Vincent v. State, Ala., 349 So.2d 1145 (1977).

Since the purpose of a hearing of this type is not to determine guilt or innocence, the strict standard of proof beyond a reasonable doubt has been held not to apply. Brown, supra. The only standard which must be met is whether a reasonable man would believe the crime occurred and that the defendant committed it. This Court has further held that we will not interfere with a lower court’s order transferring a juvenile to circuit court unless that order is clearly' erroneous. Williams v. State, Ala., 361 So.2d 1157 (1978).

Although we find the evidence to be far from overwhelming, we recognize that this hearing was not one at which guilt had to be proven beyond a reasonable doubt. Since there was some evidence on which the trial judge could base his finding that probable cause existed, we cannot say that his determination was clearly erroneous.

Let the judgment be affirmed.

AFFIRMED.

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


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte HARTFORD INSURANCE COMPANY. (Re The HARTFORD INSURANCE CO. v. Joey Vic LAGANO). Ex parte Orlin B. KING et al. (Re Orlin B. KING et al. v. Joey Vic LAGANO). Ex parte DIE CASTERS EQUIPMENT CORPORATION. (In Re DIE CASTERS EQUIPMENT CORPORATION v. Joey Vic LAGANO).
    Nos. 79-819—79-821.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      George Huddleston, III, William T. Mills, II & John W. Clark, of Porterfield, Scholl, Clark & Harper, Birmingham, for petitioner Hartford Ins. Co. in 79-819.
    Lyman H. Harris and Michael J. Evans of Lorant, Harris & Yearout, Birmingham, for petitioners Orlin B. King, et al. in 79-820.
    Robert M. Girardeau, Birmingham, for petitioner Die Casters Equipment Corp. in 79-821.
    Lanny S. Vines and Lloyd W. Gathings of Emond & Vines, Birmingham, and Robert M. Girardeau, Birmingham, for respondent in 79-819.
    Lanny S. Vines and Lloyd W. Gathings and Bibb Allen, Birmingham, for respondents in 79-820.
    Lanny S. Vines and Lloyd W. Gathings, Birmingham, for respondents in 79-821.
   BEATTY, Justice.

This action was initiated in the Circuit Court of Jefferson County on September 9, 1976, and arose out of an occurrence wherein the plaintiff’s hand was injured and later amputated after being caught in a die cast machine. The original complaint contained allegations against The Hartford Insurance Company, as the workmen’s compensation carrier for the plaintiff’s employer, and several individual defendants who were corporate officers of the plaintiff’s employer or co-employees of the plaintiff. The defendant, Die Casters Equipment Corporation, manufacturer of the die cast machine involved in the accident, was substituted as a party defendant by amendment.

The case was set for a peremptory call on October 23, 1979, at which time the circuit court required the plaintiff to show cause why the case should remain on the active docket. The court heard arguments of the parties on October 23, 1979. The plaintiff contends that the court at that time indicated that the case would remain on the active docket. Unknown to the plaintiff, however, the case was dismissed for want of prosecution.

The plaintiff subsequently discovered that the case had been dismissed and on May 30,1980, filed a motion to reinstate the case. The motion was opposed by the defendant Hartford Insurance Company; however, the trial court granted the motion and restored the case to the active trial docket. The defendants then filed motions to reconsider reinstatement, which were denied after a hearing on the matter. All the defendants filed notices of appeal from the order which reinstated the case. The plaintiff filed a motion to dismiss the appeals on the ground that the trial court’s order was interlocutory. This Court dismissed the appeals in September 1980. The defendants filed petitions for writs of mandamus or, in the alternative, writs of prohibition, as alternative remedies, after the plaintiff moved to dismiss the appeals. It is these petitions which are presently before the Court. The sole issue presented is whether this Court should grant the petitions for writs of mandamus and thereby require that the trial court’s order reinstating this case be vacated. We deny the writs.

The petitioners-defendants contend that the plaintiff’s motion to reinstate should not have been granted because the motion failed to state any valid ground for setting aside a dismissal.

Rule 41, ARCP, deals with dismissals. The committee comments on that rule state that a dismissal may be set aside “like any other judgment, on proper motion under Rule 60(b).” Rule 60(b), ARCP, provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four months after the judgment, order, or proceeding was entered or taken....

The petitioners contend that the plaintiff failed to present a valid 60(b) motion and that even if the plaintiff did present a motion under 60(b), the motion was pursuant to Rule 60(b)(1), and therefore it was untimely and the trial court was without jurisdiction to grant the motion.

It is clear that under the new Rules of Civil Procedure, nomenclature of a motion is not controlling. Thus, the trial court properly considered the motion as a 60(b) motion, even though the original motion for relief was designated as a “Motion to Reinstate.”

As grounds for the motion plaintiff argued: (1) that the law dealing -with workmen’s compensation and co-employee immunity was unsettled in this state; furthermore, that the same issue was pending before this Court in Johnson v. American Mutual Liberty Ins. Co., 394 So.2d 1 (Ala. 1980), and that the custom in the Jefferson County Circuit Court was to hold a case in abeyance until the pending issues had been resolved; (2) that the plaintiff could show activity in the prosecution of the case in recent months; and (3) that his counsel did not know of the dismissal of the case until he discovered a cost bill which had earlier been received by a member of his law firm, but which had inadvertently been overlooked.

The plaintiff’s third ground that he was unaware of the dismissal because an attorney in the firm representing him inadvertently overlooked the cost bill, states a 60(b)(1) ground for setting aside a dismissal, i. e., mistake, inadvertence or excusable neglect. It is clear that such a claim is barred, since motions under Rule 60(b)(1) must be made within four months after the order was entered.

The plaintiff contends, however, that his motion to reinstate was made pursuant to Rule 60(b)(6), ARCP, under which relief may be granted within a “reasonable time.” Operating as a “catch all” provision, Rule 60(b)(6) allows a dismissal to be set aside for “any other reason justifying relief.” This provision is designed to operate exclusive of the specific grounds listed in Rule 60(b)(1) through (5), and a party may not escape the time limits of Rule 60(b)(1) merely by characterizing his motion as a Rule 60(b)(6) motion. United States v. Cirami, 563 F.2d 26 (2d Cir. 1977).

It is important to note that Rule 60(b)(6) contains two very important prerequisites to its application: first, the motion must be based on some reason other than those stated in clauses 60(b)(1) through (5) and second, the reason urged for relief must be such as to justify relief. 7 Moore, Federal Practice, § 60.27[1] p. 343 (2d ed. 1972). While it is true that the plaintiff’s third ground for relief was a Rule 60(b)(1) ground, the other grounds given are reasons other than those listed in Rule 60(b)(1) through (5).

Relief is justified under a Rule 60(b)(6) motion when a party is able to show exceptional circumstances sufficient to entitle him to relief. Textron, Inc. v. Whitfield, Ala., 380 So.2d 259 (1979); Nunn v. Stone, Ala.Civ.App., 356 So.2d 1212 (1979). The decision of whether to grant or deny the motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Textron v. Whitfield, supra; Pierson v. Pierson, Ala., 347 So.2d 985 (1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court’s decision will not be disturbed unless it is determined “that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.” Textron v. Whitfield, supra, quoting Nunn v. Stone, supra.

Since the trial court heard the evidence on the relative harm to each party and on the confusing state of the law and was well aware of the custom in the Jefferson County courts of keeping cases in abeyance until the determination of a pending issue, we believe that it was in the best position to determine whether exceptional circumstances existed. A review of the record discloses no abuse of discretion.

Mandamus itself is an extraordinary remedy which should only be granted when there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner. McDowell-Purcell, Inc. v. Bass, Ala., 370 So.2d 942 (1979). Absent any abuse of discretion, mandamus does not lie. For these reasons the petitions for writs of mandamus must be denied.

WRITS DENIED.

JONES and SHORES, JJ., concur.

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

MADDOX, Justice

(concurring specially).

I concur completely that mandamus should not be granted in this case, and I agree with the principles of law stated in the opinion, but I file this special concurrence because it appears that these claims may involve the right of an employee covered under Workmen’s Compensation to sue a third party which the legislature has immunized against suits; if these claims do involve suits against parties the legislature has immunized, no cause of action would exist. See my dissents in Beasley v. MacDonald Engineering Company, 287 Ala. 189, 249 So.2d 844 (1971), and Grantham v. Denke, 359 So.2d 785 (Ala.1978).

TORBERT, C. J., concurs.


author: JONES, Justice. MADDOX, Justice

text:
    JEFFERSON COUNTY, etc. et al. v. Thomas S. O’RORKE et al., etc.
    No. 79-827.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Edwin A. Strickland, County Atty., and Gregory T. Bittner, Asst. County Atty., and James M. Tingle, Birmingham, for appellants.
    Robert H. Adams and Douglas Corretti of Corretti & Newsom & Rogers, Birmingham, for appellees.
   JONES, Justice.

Plaintiffs-Appellees Thomas S. O’Rorke, Marion Bradford, Kidd W. Reid, Jack E. Held and C. Ray Dudley filed an application on September 19, 1979, for rezoning of property which they own in the Blue Lakes Estates (Cahaba Heights area) of Jefferson County, Alabama. The subject property consists of 17 acres, located in the southeast guadrant of the intersection of Interstate Highway 459 and U. S. Highway 280 in southeast Jefferson County. Prior to the application, the property was zoned under two classifications: 11 acres as A-l (Agriculture); and 6 acres as R-l (single-family Residential). Appellees’ application requested that the property be rezoned to C-P (Commercial Preferred).

A hearing before the Jefferson County Planning and Zoning Commission, an advisory commission to the Jefferson County Commission, was scheduled for October 11, 1979. Prior to the hearing before the Planning and Zoning Commission, a field and engineering report was submitted to that body on October 8, 1979. The report noted that access to the property would be off Blue Lake Road, that there were no sewage facilities available to the property and that development of the property could adversely affect nearby residential areas because of drainage problems.

A committee report, containing a staff recommendation prepared by three zoning commission staff members, was also submitted to the planning and zoning body prior to the October 11 hearing. While unanimous in their support for the rezoning request, the staff members noted that their position was subject to change in light of information to be presented at subsequent public hearings.

On October 11, 1979, the Jefferson County Planning and Zoning Commission held a hearing on the proposed rezoning. Subsequently, the Commission recommended that Appellees’ application be denied.

The Jefferson County Commission reviewed the case on November 13, 1979. At that time, the County Commission had before it the Field and Engineering report, the staff committee report, the recommendation of the Planning and Zoning Commission, letters of opposition to the rezoning from nearby property owners, a traffic study done for Appellees and a report from Environmental Health Consultants, Inc. On November 20, 1979, the three-member Jefferson County Commission denied Ap-pellees’ request for rezoning by a vote of two-to-one.

Plaintiffs-Appellees thereafter commenced this action on December 17,1979, in the Circuit Court of Jefferson County, Alabama. On June 17, 1980, the Circuit Court entered a judgment enjoining Appellants from enforcing any zoning classification on Appellees’ land more restrictive than that originally sought by Appellees — C-P (Commercial Preferred). The court further found that the County Commission’s actions in denying Appellees’ rezoning request were arbitrary and capricious. We affirm.

I. Issues Fairly Debatable

A basic axiom of the law in zoning cases is that a trial court will affirm the decision of a duly constituted municipal body so long as the court finds that decision to be based upon a “fairly debatable” rationale. Aldridge v. Grund, 293 Ala. 333, 302 So.2d 847, cert. den. 421 U.S. 1007, 95 S.Ct. 2411, 44 L.Ed.2d 676 (1974); Waters v. City of Birmingham, 282 Ala. 104,209 So.2d 388 (1968).

We concede the ease with which this case might be reviewed through a liberal interpretation of the phrase “fairly debatable.” However, we are unable to find refuge in Appellees’ contentions by hiding under the “fairly debatable” standard. That an issue is “debatable” answers but half of the dichotomy. It must also be “fairly” debatable. Admittedly, any definition of the term “fairly debatable” will be a subjective one as applied to a given fact situation.

Stating the rule is elementary; applying the rule is more demanding. Appellants strongly urge the existence of a “fairly debatable” issue concerning Appellees’ proposed “on site” sewage disposal system. Appellants’ position is that the prospective uncertainties concerning the intricate operations of such a multifaceted endeavor lend credence to their assertions. Were this to be the case, Appellees would then be faced with a requirement of specifying to Appellants’ satisfaction a scheme so complete and so much in detail as to be unassailable against all inquiry. Obviously, this would be impossible.

At the risk of oversimplification, we see this as a situation where failure by Appel-lees to implement a manageable “on-site” sewage system will leave them with a multimillion dollar office complex outside the purview of accessibility. Stated another way, if the system performs, the structure is operational. If it doesn’t, it’s not. The mere inability of Appellees to respond in minute detail to every extreme situation hypothesized by Appellants concerning this sewage system does not raise a “fairly debatable” flag. At any rate, the expert testimony adduced on behalf of the landowners is clear to the conclusion that an adequate and workable “on-site” sewer system can be constructed to accommodate the proposed structure pursuant to prescribed health standards.

As to Appellants’ arguments concerning increased traffic flow in the area around Appellees’ land as well as the lack of commercial development east of U. S. Highway 280, suffice it to say that we have reviewed their contentions on these issues and find them to be without merit. The preponderance of the evidence of record supports the trial court’s de novo finding of the absence of any fairly debatable issue.

A close examination of the facts relating to Appellees’ property reveals, among other things, the following: 1) Immediately across U. S. Highway 280 from the property is a tract of land consisting of approximately 232 acres zoned C-l (Commercial) and scheduled for future use as a regional mall-type shopping center and office complex for Southern Services Company; 2) Diagonally across U. S. Highway 280 and 1-459 from the property is a 52-acre tract zoned C-P (Commercial Preferred), upon which South Central Bell is presently constructing its future headquarters for its State of Alabama operations; 3) U. S. Highway 280 is a heavily traveled, four-lane highway which furnishes a principal route from north of the City of Birmingham to the southern part of Jefferson County and the State of Alabama and then to Georgia and Florida; 4) Interstate Highway 459 is currently under construction adjacent to the property and, when completed, will serve as the southern by-pass for the Jefferson County interstate system for highway and local traffic moving in an east-west direction around the City of Birmingham; and 5) The noise and vehicular fumes from U. S. Highway 280 and 1-459 (when completed) will be extremely heavy.

The trend of the law across the United States seems to be toward a more practical application of the “fairly debatable” rule. The development of interstate highways and busy thoroughfares has considerably changed the residential character of many areas. With this change has come the realization that “outmoded zoning regulations can become unreasonable, and the zoning authority’s failure to suitably amend or modify their ordinances can become arbitrary, in which event courts can and should grant appropriate relief.” II Metzenbaum, Law of Zoning, 1125 (2d Ed. 1955).

Whether a zoning authority acted reasonably and fairly or capriciously and arbitrarily is always a matter for the courts to determine. Dugan v. City of Jacksonville, 343 So.2d 103 (Fla.App.1977). Refusal to rezone from residential is not “fairly debatable” when the subject premises are no longer useful for residential purposes as a result of significantly changed conditions in the immediate area. Stokes v. City of Jacksonville, 276 So.2d 200 (Fla.App.1973). See, also, Lakewood Development Co. v. Oklahoma City, 534 P.2d 23 (Okl.App.1975), for an analysis of the “fairly debatable” concept.

“ ‘There must be a substantial and reasonable relationship between the need for zoning restrictions and the public health, morals, safety or welfare to justify interference, by exercise of the police power, with an owner’s right to the enjoyment of his property. Only in the presence of such necessity will he be required to make a personal sacrifice for the good of the people

Davis v. Sails, 318 So.2d 214, at 225 (Fla. App.1975), quoting from City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953).

When a zoning restriction exceeds bounds necessary for the welfare of the public, it must be stricken as an unconstitutional invasion of property rights. Burritt v. Harris, 172 So.2d 820 (Fla.1965). In City of Boca Raton v. Boca Villas Corp., 371 So.2d 154 (Fla.1979), the Florida Supreme Court stated:

“... even though there was expert testimony adduced in support of the City’s case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City’s position. Of course that is not the case. The trial judge still must determine the weight and credibility factors to be attributed to the experts .... ”

While we might easily recite an entire treatise on the “do’s” and “dont’s” of zoning, suffice it to say we are satisfied that the evidence and documents of record, in light of the cited authorities, amply support the actions of the trial judge in granting Appellees’ rezoning claim. Likewise, we are cognizant of our recent holding in Cale v. City of Bessemer, 393 So.2d 959 (Ala. 1980), in which, applying these same principles, we affirmed the trial court’s finding that the property there in question was correctly zoned for residential use. The dissimilarity of Cale, supra, and the instant case is readily apparent on the face of the record in each case. In Cale, the trial court’s de novo finding of a fairly debatable issue was amply supported by the evidence of record.

Therefore, we respond to Appellants’ contentions on this appeal as follows: 1) The trial court’s conclusion that the issues before the Jefferson County Commission, while debatable, are not “fairly” debatable is amply supported by the evidence; consequently, the traditional presumption of propriety afforded the zoning authority’s determination is not present here; 2) the trial court’s finding — that relegating the use of Appellees’ land, in effect, to nothing more than a “buffer zone,” in view of its surroundings, amounts to arbitrary and capricious action by the Jefferson County Commission — is sustained by the proof; 3) the trial court is supported by the record in its determination that there was no practical, suitable, or realistic use for Appellees’ property under an “Agriculture” or “Residential” zoning classification; and 4) the trial judge did not exceed his authority in reversing the actions of the County Commission.

AFFIRMED.

SHORES and BEATTY, JJ., concur.

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

MADDOX, Justice

(concurring specially).

The trial court found that the County acted arbitrarily and capriciously in refusing to rezone the subject property. In making that determination, it is apparent that the trial court applied the principle set forth in City of Birmingham v. Norris, 374 So.2d 854 (Ala.1979). Consequently, I concur in the result and vote to affirm the trial court’s decision under the principle of law that an appellate court ordinarily does not review or interfere with the exercise of discretion by the court below in cases involving decisions of administrative bodies. 73 C.J.S. Public Administrative Bodies and Procedure § 252, p. 617 (1951).


author: SHORES, Justice. JONES, Justice

text:
    CITIZENS BANK AND SAVINGS COMPANY, a Corporation v. WOLFE SALES COMPANY, INC., a Corporation.
    79-886.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Robert E. Cooper, Fine, McDowell & Cooper, Russellville, for appellant.
    Charles W. Cochran, III, Keller & Cochran, Florence, for appellee.
   SHORES, Justice.

On September 10, 1974, Juston Clement borrowed $20,000 from the Citizens Bank and Savings Company of Russellville (Bank). The loan was secured by a pledge of personal property — restaurant buildings (modular structures) and equipment owned by Clement. Subsequently, Wolfe Sales Company, Inc. (Wolfe) sold certain restaurant equipment to Clement, taking in trade certain equipment pledged as security to the Bank. Wolfe took a security interest in the new equipment which it sold to Clement. Clement thereafter defaulted on his obligations to both the Bank and Wolfe.

In July, 1976, Wolfe petitioned the circuit court of Lawrence County (Case No. 76-219) for a writ of seizure to allow it to remove equipment from the restaurant in Moulton. On August 4, 1976, Wolfe’s employees, pursuant to the court order, entered the premises and removed the equipment. Thereafter, on August 13, 1976, the Bank intervened in Case No. 76-219 in the circuit court of Lawrence County, alleging that it had a prior, superior lien on the equipment claimed by Wolfe. The Bank sought an injunction prohibiting Wolfe from disposing of the equipment.

Wolfe filed a motion to dismiss the Bank’s petition for intervention. This motion was set for hearing on September 8, 1976. On that date, the court entered the following order:

Defendant [Clement] having been adjudicated bankrupt and all matters having been determined in that suit, case dismissed. Costs are taxed to plaintiff, Wolfe Sales Company, Inc., for the collection of which execution may issue.

Thereafter on June 13, 1978, the Bank filed the present action against Wolfe alleging that Wolfe’s employees in removing the equipment pursuant to the court’s order “inflicted excessive damage to the realty to which the items were attached.”

Wolfe filed an answer denying the allegations in the Bank’s complaint and affirmatively raised the statute of limitations. It also filed a motion for summary judgment based on the pleadings, affidavit of John J. Wolfe, and the record and pleadings in Case No. 76-219. John Wolfe’s affidavit asserted that only those items of equipment authorized by the court order were taken. He also asserted that in the removal of the equipment, no damage was caused to the premises. He said the employees of Wolfe were accompanied by the sheriff at all times, who controlled the keys to the premises at all times.

The Bank offered no counter affidavits and, after a hearing, the trial court granted Wolfe’s motion for summary judgment on May 2, 1980. Thereafter, the Bank filed a motion asking the court to set aside its summary judgment and, as grounds therefor, alleged that it had located “two additional material witnesses who had specific knowledge about the facts and circumstances concerning the plaintiff’s suit against the defendant.”

The court denied the Bank’s motion to set aside the summary judgment and entered its order from which this appeal was taken:

The Court, after consideration of the motion of the plaintiff, finds that these two (2) witnesses were reasonably available to the plaintiff prior to the hearing on the motion for summary judgment heretofore held by the Court and even in the event had they not been available based on the Court’s study of their offered depositions and/or affidavits, finds that the motion for summary judgment would have still been granted by the Court.

We affirm. From the record before us, it is clear that the action sued upon is governed by the one-year statute of limitations set out in § 6-2-39(a)(5), Code of Alabama 1975. The allegations of the plaintiff’s complaint show trespass on the case, as distinguished from trespass. As such, the claim is barred by the one-year statute of limitations. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So.2d 166 (1961); Trognitz v. Fry, 215 Ala. 609, 112 So. 156 (1927).

In Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973), this Court, speaking through Justice Merrill, quoted from Louisville and Nashville R. Co. v. Johns, 267 Ala. 261, 101 So.2d 265 (1958), which quoted from an unpublished opinion of this Court in Sibley v. Odum, 257 Ala. 292, 58 So.2d 896 (1952):

“ ‘Trespass and case are not defined by statute. Their elements are of common law origin. Trespass is one of the ancient writs. Case arose to meet a situation not covered by any of those writs. Trespass is of three aspects: (1) vi et armis (personal injuries by force directly applied); (2) de bonis asportatis (the carrying away of the goods of another); (3) quaere clau-sum fregit (direct injuries to the freehold).
“ ‘They all carry the necessary element of an intentional (or wanton, its equivalent in law), direct application of force by the defendant or under his authority. Unless there is such direct force, there can be no trespass in any aspect.
“ ‘Case is when injury occurs to the person or property of another when as to the defendant so charged there is no intentional direct application of force, but either a negligent unintentional application, or when the act was intentionally committed by one who is guilty of a trespass, but the defendant is legally responsible for such willful act of the other on such principle as respondeat superior. In that event the one is guilty of a trespass and for such trespass the other is responsible in case, because he did not commit a trespass and there was no writ which provided a remedy.’ ”
One of the most recent cases to consider this question is City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682, where the suit charged that the city’s employees, while acting in the line and scope of their employment, willfully or wantonly caused or allowed the city’s sewer line to overflow and flood plaintiff’s house. The question was whether the action was in trespass or in case. The Court of Civil Appeals held that it was an action in case rather than in trespass and was barred by the one-year statute of limitations.

290 Ala. at 20, 273 So.2d 182.

The Alabama Rules of Civil Procedure abolishing common law forms of action and replacing them with one form of action did not abolish substantive remedies, Mobley v. Brundidge Banking Co., 347 So.2d 1347 (Ala.Civ.App.1977), nor did they eliminate the distinctions between trespass and trespass on the case insofar as those distinctions make a difference in the applicable statute of limitations. Cochran v. Hasty, 378 So.2d 1131 (Ala.Civ.App.1979).

The judgment appealed from is affirmed.

AFFIRMED.

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

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result):

I concur in the result. Section 6-2-39(7) limits the time within which this suit should have been brought to one year irrespective of whether the action be classified as trespass or trespass on the case.


author: JONES, Justice.

text:
    Fred M. MATTHEWS v. S. A. MARTIN & MARTIN MOTORS.
    No. 79-912.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      W. J. Causey, Jr., Monroeville, for appellant.
    J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellees.
   JONES, Justice.

This appeal challenges the trial court’s granting of Defendants’ motion for a new trial. Plaintiff Fred M. Matthews filed suit for damages, alleging fraud by Defendants in the sale of a used truck. (The tendencies of Plaintiff’s proof were to the effect that Defendants sold Plaintiff a 1970 model Dodge diesel truck with a market value of $5,000, representing the same to be a 1974 model, for a purchase price of $14,000.) Defendants filed a counterclaim seeking $850 for money advanced and $3,023.65 for work and labor done. (Plaintiff’s offer of judgment for the latter sum was accepted by Defendants.)

Upon the trial of the cause, the jury returned a verdict for $50,000. Defendants’ timely motion for a new trial was granted. Plaintiff appeals. We affirm.

The trial court’s order appealed from did not specify any ground contained in Defendants’ motion, but our review of the record substantiates the Appellant’s contention for the ground most probably relied upon: the trial court’s failure to instruct the jury on the mutual rescission of the sales contract. Defendants contend that the trial judge correctly granted the motion for a new trial in that the evidence established a rescission of the contract as a matter of law; or, alternatively, the evidence presents a fact question for the jury under appropriate instructions. Plaintiff, on the other hand, says that certain of the requisite elements of mutual rescission are lacking; and, consequently, the trial court did not err initially in failing to give instructions on the law of rescission.

Because this case is due to be retried, a detailed recital of the evidence is inappropriate. Suffice it to say that we agree with Appellees’ alternative contention that the trial court should have instructed the jury on the Defendants’ defense that Plaintiff elected to rescind (and, thus, exercised his election of remedies). Lacey v. Edmunds Motor Company, 269 Ala. 398, 113 So.2d 507 (1959); see, also, Tuscaloosa Motor Company v. Cockrell, 272 Ala. 387, 132 So.2d 745 (1961).

Our holding is not a rejection of the precedents cited by Appellant to the effect that mutual rescission of a contract cannot rest solely upon the unilateral action of one of the parties. Indeed, a unilateral “rescission” is but an offer to rescind. It is settled law, which we here reaffirm, that rescission occurs only where the acts of one party are fully acquiesced in by the other. San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374 (1974). The same requisites that form the test for a binding contract form the test for mutual rescission. Otherwise stated, a mutual rescission consists of the same requisite elements as a legal contract. These elements include a meeting of the minds to mutually release, fully settling all rights under the contract. Reliance Life Insurance Company v. Garth, 192 Ala. 91, 68 So. 871 (1915).

While the acts of each party must be unequivocal and positive, mutual assent to abandon a contract may be inferred from all the circumstances surrounding their conduct. San-Ann Service, Inc. v. Bedingfield, supra. The “unequivocal and positive” standard is to be applied by the factfinder in weighing conflicting inferences which may be drawn from the evidence and does not necessitate an explicit statement by one party that he concurred in the acts of abandonment of the contract by the other. Both the initial offer to rescind and its subsequent acceptance is subject to proof by circumstantial evidence so long as such evidence reveals a course of conduct from which the factfinder may reasonably infer mutual assent to abandon the contract, settling all their respective rights thereunder.

In conclusion, we caution that our holding is not a comment upon the weight to be accorded any of the evidence of record or evidence which may be adduced upon retrial of this cause. We hold merely that the evidence presented an issue of fact on Defendants’ asserted defense of rescission; thus, the trial court did not err in ordering a new trial on the ground that Defendants/Appellees were entitled to a comprehensive jury instruction on the law of rescission.

AFFIRMED.

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