text:
    Dwayne MURRAY v. STATE of Mississippi.
    No. 52632.
    Supreme Court of Mississippi.
    Sept. 9, 1981.

      Carver A. Randle, Indianola, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Hezeki Cathey and the appellant Dwayne Murray were indicted by the grand jury of Sunflower County on a charge of aggravated assault upon Willie Winters, a corrections officer with the Mississippi Department of Corrections at Parchman. From this conviction and sentence of 15 years with 5 years suspended by the circuit court of that county, Murray has perfected this appeal.

On February 3, 1980, Cathey and the appellant Murray were inmates at the Mississippi Department of Corrections in Parchman, housed in C Unit of Camp 24.

At approximately 10 minutes before 9:00 o’clock that evening, officers Willie L. Winters and Frank Grammer were sitting at a desk in the day room, a large central control area, designated as Zone 5. Zone 5 was surrounded by four quarter areas, designated respectively as Zones 1, 2, 3 and 4, and separated by a glass partition, enabling the officers to view all zones. Metal partitions separated the remaining zones. The door to Zone 1 was used by the officers to enter the day room, and this door was not locked. The doors from the day room to the other zones were locked.

Cathey was in the Zone 2 area and knocked on the window or door, attracting the officers attention. When Cathey told him he wanted to go to another zone and write a letter, Officer Grammer unlocked the door.

While the officers attention was thus diverted, Murray, who was in Zone 1, came through the unlocked door, armed with a “shank” and grabbed Officer Winters. During this time Cathey, also armed with a shank, grabbed Officer Grammer. A “shank” is a homemade weapon of sharpened steel, apparently on the order of a spike, about the size of a sharpened pencil.

Murray then pulled Officer Winters away from the desk, and with the shank at his throat told him, “Officer, I want the keys. Lay on the floor and give me the keys.” Murray wanted the zone door keys in Officer Winters’ back pocket, and Murray told him to turn over. Winters did as he was told, and Murray, still holding the shank on him, removed Winters’ keys.

After Murray got the keys, he went to Zone 4 and attempted without success to unlock the door. Still threatening Winters with the shank, Murray handed the keys to Winters and told him to open the door. Winters did so and Murray told the inmates to come out.

Winters and Murray then unlocked the Zone 3 door and walked to Cell 41 confining one Shelby Myers, and Murray told Myers to come out. Myers remained, and Winters and Murray proceeded to Cell 39, which was vacant. Murray left Winters there and returned to Zone 5, the day room.

During this time another inmate, Theodore Fields, acting as peacemaker, kept telling Murray not to hurt Winters. He also told Murray and Cathey, “This is not going to work; let the officer go.” The other inmates, though curious, did not participate in any of this conduct.

Fields, Cathey and Officer Grammer then got Winters out of Cell 39, and they all went to Zone 5. Murray was no longer threatening anyone, and the officers were told to call the administrator, the warden, the commissioner, and the governor. Cath-ey then surrendered his shank to Grammer, and a few minutes later Murray also surrendered his.

Officer Winters said Murray never touched him with the shank, and testified as follows:

Q. Did he (Murray) at any time harm you or attempt to harm you?
A. No more than hold the shank on me.
Q. Just held it on you?
A. He stated that if I gave him the keys in the beginning that I wouldn’t be hurt, and so I gave him the keys.

Officer Winters testified further:

Did you ever try to talk to him at the time he allegedly held the shank on you? Q-
A. No, I didn’t. I couldn’t talk to him — I didn’t try to talk to him because he had his mind set on give him the keys and it wasn’t anything going to happen to me, so I gave him the keys.

Murray did not testify. Cathey did, however, and the only reason for this conduct by these inmates came from Cathey, who testified that there was some problem with heating and plumbing, for which they wanted some attention.

Prior to trial the defendant filed a written motion to reduce the charge against him from aggravated assault to simple assault, which was overruled.

When the State rested, Murray’s counsel moved for a directed verdict, assigning the State had failed to prove the elements of the crime for which Murray was charged. This motion was overruled, was not renewed when both sides rested, and no request for a peremptory instruction was filed. The jury returned a guilty verdict of aggravated assault, the only issue submitted to it, and the circuit judge sentenced Murray to a term of 15 years, with 5 years suspended.

A motion for a new trial on the ground of insufficiency of the evidence was overruled, and this appeal has been taken. The only error assigned states that the trial court erred in overruling the motion for a new trial. The brief of appellant does not contain a single citation of legal authority, and is of no benefit whatever to appellant or this Court. In the ordinary civil case such a brief submitted by appellant’s counsel would result in an affirmance of the lower court.

In 1974, the Legislature revised the statutory crimes of assault and assault and battery. 1974 Miss. Laws, Ch. 458 (codified in Mississippi Code Annotated § 97-3-7 (Supp.1980)). The first paragraph of this act defines simple assault and provides the punishment therefor. The pertinent portions read as follows:

(1) A person is guilty of simple assault if he ... (c) attempts by physical menace to put another in fear of imminent serious bodily harm; ... a person convicted of simple assault upon a law enforcement officer .. . while such law enforcement officer ... is acting within the scope of his duty and office shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both. The second paragraph of the act deals

with aggravated assault and the punishment therefor, the pertinent portions of which read as follows:

(2) A person is guilty of aggravated assault if he ... (b) attempts to cause ... bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; ... a person convicted of aggravated assault upon a law enforcement officer . . . while such law enforcement officer ... is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both. The serious question before this Court

from an examination of the record is whether the accused is guilty of aggravated assault or the lesser offense embraced therein of simple assault.

To be guilty of aggravated assault under facts as revealed in this record it is necessary that the accused “attempted to cause bodily injury to another with a deadly weapon.” The key word is “attempt,” and the question is: did the defendant attempt to cause bodily injury to Winters with a deadly weapon?

This Court has had numerous occasions to define the word “attempt” and its application to the particular types of cases Williams v. State, 209 Miss. 902, 48 So.2d 598 (1950); Dill v. State, 149 Miss. 167, 115 So. 203 (1928); Wigginton v. State, 136 Miss. 825, 101 So. 856 (1924); Miller v. State, 130 Miss. 730, 95 So. 83 (1922); Powell v. State, 128 Miss. 107, 90 So. 625 (1921); Thompson v. Krutzer, 103 Miss. 388, 60 So. 334 (1912). Generally “attempt” means an intent to do a certain thing, and some actual, overt effort to put the intent into effect.

Two cases in this Court best delineate “attempt” as applicable to this case. In Jones v. State, 172 Miss. 597, 601-02, 161 So. 143, 144 (1935), this Court stated: “. . . an attempt implies both purpose and an actual effort to carry that purpose into execution.”

In Bucklew v. State, 206 So.2d 200, 202 (Miss.1968), we stated:

Under the general law it has been pointed out that an attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime; (2) a direct ineffectual act done toward its commission; and (3) the failure to consummate its commission.
* * sk * * *
In a considerable number of cases it has been said that the act must be such as will apparently result, in the usual and natural course of events if not hindered by extraneous causes, in the commission of the crime itself, and an act apparently adapted to produce the intended result is sufficient to constitute the overt act essential to an attempt, (emphasis added)

Further, in Bucklew, in reversing a judgment of conviction, we stated:

Moreover, there is nothing in the record to show that there was any extraneous cause that prevented the mayor from attempting to collect the money due the automobile company.

From this record can we say there was an actual, unequivocal intent on the part of Murray to stab this officer? He had the means and every opportunity to do so. See: Hydrick v. State, 246 Miss. 448, 453, 150 So.2d 423, 425 (1963). Can we say that there were extraneous events which prevented his stabbing Officer Winters? We must answer both questions in the negative.

Conduct as revealed in this record cannot be viewed in anything less than the most somber and serious light.

We are compelled, however, to hold the defendant was clearly guilty of attempting by physical menace to put Winters in fear of imminent serious bodily harm, and punishable as such, as opposed to the offense for which he was convicted.

The case is therefore reversed solely for proper sentencing by the circuit court of attempt by Murray by physical menace to put Officer Winters, a law enforcement officer acting in the scope of his duty and office, in fear of imminent injury.

Reversed and remanded for sentencing of the crime of simple assault upon a law enforcement officer acting in the scope of his duty and office.

REVERSED AND REMANDED.

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

BOWLING, J., took no part.

      . The pertinent portions of the indictment read as follows:
      That Hezeki Cathey and Dwayne Murray late of the County aforesaid, on the 3rd day of February, 1980, in the County aforesaid, did unlawfully, wilfully and feloniously commit an aggravated assault upon Willie Winters, a Correctional officer with the Mississippi Department of Corrections at Parch-man, Mississippi, while the said Willie Winters was acting within the scope of his duty and office, when the said Hezeki Cathey and Dwayne Murray unlawfully, wilfully, knowingly, purposely and feloniously grabbed the said Willie Winters and threatened bodily harm upon Willie Winters with a deadly weapon, to-wit: a sharp pointed metal instrument known as a “shank” for the purpose of causing serious bodily injury to the said Willie Winters.

      . It should be noted this problem apparently did not escape the draftsman of the indictment or the state’s instruction defining the crime with which Murray was charged. The indictment never uses the word “attempt,” using instead “threaten.” The state’s instruction number two first uses the word “threaten,” as opposed to “attempted,” and then goes on to state the crime of aggravated assault might have been defined had Murray in fact injured Winters in some manner.


source: Caselaw Access Project

license: Public Domain

text:
    J. W. STUDDARD v. STATE of Mississippi.
    No. 52951.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    William W. Smith, Cunningham, Smith & Ferrell, Booneville, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Tishomingo County; Fred Wicker, Judge.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, BOWLING and HAWKINS, JJ.


text:
    Harold F. THOMPSON v. Thelma G. (Thompson) SIMMONS.
    No. 52944.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    Robert M. Dreyfus, Jr., Goldman & Goldman, Meridian, for appellant.
    Lawrence W. Rabb, Meridian, for appel-lee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

AFFIRMED.


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

text:
    In the Matter of Wayne Eugene RITTER v. STATE of Alabama.
    77-798.
    Supreme Court of Alabama.
    June 12, 1981.
    Stay Denied Sept. 23, 1981.
    See 102 S.Ct. 25.
    Judgment Vacated Oct. 13, 1981.
    See 102 S.Ct. 376.
    John L. Carroll, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.
   On Application for Rehearing

SHORES, Justice.

The application for rehearing is denied. The opinion of the Court dated May 8, 1981 is extended so that the opinion shall read as follows:

Reversed and remanded to the Court of Criminal Appeals with directions to that Court to grant a new trial under the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980).

We believe this result is compelled by the decision of the Supreme Court of the United States in Beck and is consistent with the interpretation of that decision reached by the Court of Appeals for the Fifth Circuit in Evans v. Britton, 639 F.2d 221 [1981] (1981), which involved Ritter’s partner in this crime.

REVERSED AND REMANDED; APPLICATION FOR REHEARING DENIED; OPINION EXTENDED.

FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur in decision and in denial of rehearing.

TORBERT, C. J., concurs specially in decision, with opinion, and concurs in denial of rehearing.

JONES, J., with whom MADDOX and ADAMS, JJ., concur, concurs in part and dissents in part in decision, with opinion.

MADDOX, J., with whom JONES and ADAMS, JJ., concur, concurs specially in denial of rehearing, with opinion.

TORBERT, Chief Justice

(concurring specially).

Although I agree with the result reached by the majority, I do not wish to be understood as being in favor of abolishing or otherwise modifying the traditional rule that a jury instruction on a lesser included offense is appropriate if, and only if, there is evidence of a lesser included offense. See, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

JONES, Justice

(concurring in part and dissenting in part in decision):

The majority of the Court, by directing that the Court of Criminal Appeals reverse the judgment of conviction and sentence and remand the case for a new trial, has mandated that all pre-Beck death penalty convictions and sentences be set aside and new trials ordered. As to the judgment of conviction in the instant case, I respectfully dissent.

This death penalty case was remanded by the United States Supreme Court for this Court’s reconsideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

Beck declared unconstitutional the application of the provision of the Alabama Death Penalty Act which precludes the trial court from instructing the jury on lessor included offenses, where, as was the case in Beck, the evidence is susceptible of a finding of such an offense. Here, as in Beck, the jury was instructed, pursuant to Alabama Code 1975, § 13-11-2(a), to return either a verdict of guilty with a sentence of death or a verdict of not guilty, precluding the option of finding the defendant guilty of a noncapital offense.

Unlike Beck, Ritter’s evidence of record fails to support any finding other than a verdict adjudging the defendant guilty of the capital offense as charged. Unquestionably, had the death penalty statute not included the “preclusion of lesser included offenses” clause (thus conforming the statute to Beck on remand [1980] 396 So.2d 645 (Ala.1980), Ritter would not have been entitled to a jury instruction on lesser included offenses.

As Ritter’s counsel suggests, however, this does not end our inquiry; it merely establishes one of the premises upon which the ultimate dispositive issue must be answered. Another essential premise is the further objective fact that the death penalty statute, under which Ritter was tried, convicted, and sentenced to die, did include the “preclusion” clause, the operative effect of which may have unduly restricted Rit-ter’s defense with respect to proof of facts and circumstances sufficient to invoke lesser included offenses instructions.

Stated another way, whether the instant record would have entitled Ritter to a lesser included offenses instruction (thus offering the jury a third optional finding) is not the issue; rather, the issue is whether Ritter was unconstitutionally denied the benefit of a trial under a valid death penalty statute permitting evidence which would warrant a jury verdict of guilty of a lesser included offense under appropriate instructions.

The State summarizes its argument as follows:

“There was absolutely no evidentiary basis at Ritter’s trial for any lesser included offense instruction. There was no evidentiary dispute about any element of the capital offense, because Ritter confessed to and admitted every element of the capital offense, and he did so both before and during the trial. In addition, Ritter pleaded guilty and his valid guilty plea was accepted by the trial court and entered in the official judgment entry and minutes of the court. The trial court did submit the case to a jury since only a jury can sentence a capital defendant to death, but Ritter’s voluntary guilty plea still conclusively establishes his guilt and removes any factual issue from the case.”

Ritter’s “fundamental fairness” argument is premised on the proposition that the “preclusion” clause operated to bar or to discourage alternative trial strategy, including the offering of evidence which would support a noncapital offense verdict. He argues:

“. . . The very existence of the provision precluding jury consideration of lesser included offenses would almost invariably affect a capital defendant’s strategy, the presentation of evidence and even, as in this case whether actively to contest the charges against him. It is clearly constitutionally impermissible for the state to tell a capital defendant that he may not present evidence of lesser included offenses at trial, and then seek to prevent the defendant from complaining of this unconstitutional prohibition on the grounds that he failed to present such evidence.”

Although I disagree with the majority’s reversal of Ritter’s conviction, I reject the State’s contention as an overly simplistic approach. Surely, the presence of the factual issue of lesser included offenses in Beck does not limit the application of its holding to only those cases in which the evidence of record supports such a finding. We do not read Beck as suggesting that a pre-Beck capital defendant was required to so posture his trial strategy as to affirmatively invoke the application of the lesser included offense doctrine, or failing to do so, forfeit the protective cloak of Beck.

While the State, in my opinion, has interpreted Beck far too narrowly, I believe, as to the judgment of conviction, Ritter’s counsel has given it an overly broad interpretation. Although his argument is persuasive and, undoubtedly, one that ordinarily will prevail, I do not read Beck nor the Supreme Court’s remand of the instant case, as mandating reversal in every case in which the defendant has been convicted and sentenced to death under Alabama’s death penalty statute.

I would hold that the test for answering the issue here presented for our consideration is whether the evidence of record is susceptible of any reasonable hypothesis giving rise to the application of the lesser included offenses doctrine. Because such hypotheses may arise from either the presence or the lack of evidence adduced at trial, this test cannot be met unless the record of trial affirmatively precludes every reasonable hypothesis other than that of the defendant’s guilt of the capital offense as charged. Any reasonable doubt must be resolved in favor of granting the defendant a new trial.

Therefore, on review of this case, and other pre-Beck capital convictions henceforth, I would apply the following objective standard: The conviction is affirmable if, and only if, a composite of the testimony, after indulging every reasonable doubt in favor of the defendant, affirmatively reveals a clear, unequivocal and undisputed chain of events comprising all of the elements of the capital offense to the total exclusion of any reasonable fact or circumstance supportive of a lesser included offense. The inference of such a hypothesis necessarily arises unless the proof of record establishes defendant’s guilt of the capital offense fully and undisputably, affirmatively precluding every reasonable inference to the contrary.

Applying this standard of review to the instant case, I am unable to perceive from the proof of record before us any possible hypothesis other than that of the defendant’s guilt of the capital offense as charged in the indictment.

Aided by the Court of Criminal Appeals’ summary of the evidence in Evans and Ritter v. State, 361 So.2d 654, 656-661 (Ala.Cr.App.1977), and Ritter v. State, 375 So.2d 266, 267 (Ala.Cr.App.1978), and by this Court’s opinion, after return of the case from remand (Ritter v. State, 375 So.2d 270, 273 (Ala.1979)), I have again made an independent review of the entire record in a painstaking search for the slightest hint that Ritter was restricted, or otherwise influenced, in the conduct of his defense by the omnipresence of the statutory edict that the jury either sentence him to die or set him free. I find none.

Indeed, to the minutest detail, the State’s proof of each and every element of the capital offense is verified and amplified by Ritter’s own testimony. In addition to pleading guilty of the capital crime as charged, he took the witness stand — against advice of counsel and following the trial court’s thorough admonition as to his constitutional rights — and recounted in great detail his and his companion’s trail of crime leading up to and including the murder of the pawnshop proprietor during a planned armed robbery of the victim, agreeing in advance to kill the robbery victim if necessary.

The posture of this record affirmatively precludes any reasonable hypotheses other than that of Defendant’s guilt of the capital crime as charged in the indictment. Where, as here, the voluntary testimony of a mentally competent defendant affirmatively eliminates any possible inference which would support a finding of guilty of a non-capital lesser included offense, we are constrained to hold that the unconstitutional provision excised by Beck visited no impermissible restraint upon the Defendant in the conduct of his defense, including his right to actively contest the charges against him.

To hold otherwise would be tantamount to allowing the Defendant, by way of a new trial, to raise factual issues wholly contrary and in direct contradiction to those established by his own sworn testimony in the original trial. His option to so testify in the original trial cannot be said to have been impermissibly encouraged by the constitutionally invalid “preclusion” clause.

While I would affirm the judgment of conviction, I, nonetheless, would reverse the judgment of sentence and remand to the Court of Criminal Appeals with instructions to remand this cause to the circuit court for a new trial on the issue of sentence in accordance with this Court’s opinion in Beck after remand.

My differentiation between the conviction and the sentence is based primarily on the lack of a bifurcation of the pre-Beck jury proceedings with respect to the finding of guilty and the fixing of the sentence. While it can be said that the United States Supreme Court’s Beck mandate does not conclusively require a reversal of Ritter’s conviction, I think its mandate is equally clear that the sentencing procedure, which is influenced by factors other than absence or presence of lesser included offenses criteria, is impermissibly tainted, requiring a sentence hearing pursuant to the restructured proceedings established by Beck after remand.

MADDOX and ADAMS, JJ., concur.

MADDOX, Justice

(concurring specially in denial of rehearing).

I concur in this Court’s action, on application for rehearing, to extend its prior opinion to indicate that its reversal of Ritter’s conviction was grounded on this Court’s interpretation of what the Supreme Court of the United States mandated in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). This Court considered Ritter’s case, in light of Beck only because the case was remanded here at the request of the Attorney General. In brief, the Attorney General sets out the facts:

On June 20, 1980, the United States Supreme Court issued its decision in Beck v. Alabama, [477 U.S. 625] 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). On June 23, 1980, the State filed a letter in the United States Supreme Court arguing that Rit-ter’s case was distinguishable from Beck, because there was no evidentiary basis for a lesser included offense in Ritter’s case. In view of that difference, the letter requested that the Court remand Ritter’s case to the Alabama Supreme Court for reconsideration in light of Beck, rather than reversing it on authority of Beck.

In view of the above, it is obvious that this Court, which had affirmed Ritter’s conviction [Ritter v. State, 375 So.2d 270 (1979)], now holds Ritter is entitled to a new trial because the United States Supreme Court has mandated it in Beck. Obviously, I do not believe that Ritter is in the same situation as Beck was; therefore, I joined with Mr. Justice Jones in his dissenting views which he expressed on original delivery.

I still adhere to my original view that under the facts of this case, Ritter is not entitled to a new trial to determine his guilt or innocence of the capital offense. He is only entitled to a sentencing hearing before a jury. That there was absolutely no evidence of Ritter’s guilt of a lesser included offense is plain, and had an instruction on lesser included offenses been given in this case, the principle announced in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), would be applicable. There, the Supreme Court of the United States held that the Louisiana death penalty scheme which required juries in all first degree murder cases to also be instructed on manslaughter and second degree murder even if there was not a scintilla of evidence to support such a verdict was unconstitutional.

I think a majority of this Court has misread Beck to require a new trial in a case like Ritter’s where the record of trial affirmatively precludes any possibility that the defendant could have adduced any evi-dentiary support for a lesser included offense. My difference with the majority in this point aside, however, I agree with the majority’s basis for its extension of the opinion on rehearing.

I would also add one additional point on which there is no disagreement among the members of the Court: The order of remand by the Court of Criminal Appeals, as mandated by this Court, is not to be understood as requiring the trial court to instruct the jury on lesser included offenses unless such an offense is supported by the evidence upon retrial of this cause.

JONES and ADAMS, JJ., concur.

      . As shown later in this opinion, I accept defense counsel’s contention as to the judgment of sentence.

      . See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

      . See Brady v. Maryland, 373 U.S. 83, 84, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).


author: TYSON, Judge.

text:
    Wayne Eugene RITTER, alias v. STATE of Alabama.
    1 Div. 837.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
   AFTER REMAND BY THE SUPREME COURT OF ALABAMA

TYSON, Judge.

The prior opinions in this case are reported as Evans and Ritter v. State, Ala.Cr.App., 361 So.2d 654 (1977), and Ritter v. State, 375 So.2d 266 (Ala.Cr.App.1978), affirmed 375 So.2d 270 (Ala.1979).

On mandate of the Supreme Court of Alabama in Ritter v. State, 403 So.2d 154 (Ala.1981), and authorities cited therein, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM. JONES, Justice EMBRY, Justice

text:
    Samuel Bert REESE, II, a minor, etc. v. RANKIN FITE MEMORIAL HOSPITAL, et al.
    79-129.
    Supreme Court of Alabama.
    July 10, 1981.
    Rehearing Denied Aug. 21, 1981.

      Clifford Emond, Jr., and Lloyd W. Gath-ings of Emond & Vines, Birmingham, for appellants.
    Sam M. Phelps and Eugene A. Beatty of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee Rankin Fite Memorial Hospital.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellee Dr. Aubrey L. Sewell.
   PER CURIAM.

Defendants Rankin Fite Memorial Hospital and Dr. Aubrey Sewell filed motions in the Circuit Court of Marion County seeking to dismiss Samuel Reese’s complaint. This is an appeal from a final judgment granting those motions.

On February 5, 1979, Samuel Bert Reese, II, a minor by and through his father, filed a medical malpractice action against Rankin Fite Hospital and Dr. Sewell. Reese’s complaint alleged that the hospital and the doctor negligently administered excessive amounts of oxygen to Reese immediately following his birth on August 18, 1968. Reese further alleged that he suffered total and permanent blindness as a result of the alleged negligence. On June 12, 1979, Reese amended his complaint to include a count for breach of contract implied-in-fact. Dr. Sewell and Rankin Fite Hospital moved to dismiss on the grounds that the action was timed barred under Code 1975, § 6-5-482. The hospital further asserted sovereign immunity as a ground for dismissal. On October 3, 1979, the judge granted the dismissals. Reese appeals.

This appeal involves a constitutional attack, both state and federal, upon § 6-5-482, the statute of limitations of the Alabama Medical Liability Act. The following issues are presented:

1. Does § 6-5-482 violate § 45 of the Alabama Constitution, which requires that: (1) each act shall contain a single subject; and (2) the subject must be clearly expressed in the title of the act?
2. Does § 6-5 — 482 violate the equal protection provisions of the Alabama and the United States Constitutions?
3. Does § 6-5 — 482 constitute special legislation violative of §§ 104, 105, and 108 of the Alabama Constitution?

Section 6-5—482 provides in pertinent part:

(a) All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation. . .; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission or failure complained of; except, that in the case of a minor under four yeas of age, such minor shall have until his eighth birthday to commence such action. [Emphasis added.]

This appeal more specifically concerns subsection (b) as it addresses the effect of the minority of the plaintiff in medical malpractice actions.

In the recent case of Thomas v. Niemann, 397 So.2d 90 (Ala. 1981), the Court held that § 6-5—482 does not violate the single subject/express title requirement of § 45 of the Alabama Constitution. We reaffirm that holding.

Reese next argues that § 6-5—482 violates the due process and equal protection provisions of both the state and federal constitutions. We cannot agree. The basis of this argument is that the statute treats minors injured through medical malpractice differently from minor victims of other torts. He points out that over one hundred years ago by act now carried in the Code at § 6-2-8, the legislature provided that the statute of limitations was suspended during minority and that the removal of that suspension for medical malpractice claims rendered the Medical Malpractice Act unconstitutional on equal protection grounds. Again, we cannot agree.

The policy considerations leading up to the passage of the Alabama Medical Liability Act are stated in the legislation itself. The preamble to § 6-5—482 in Acts 1975, No. 513, § 2, reads as follows:

It is hereby declared by the Legislature of the State of Alabama that the availability of medical liability insurance at reasonable rates for the medical profession, medical institutions, and other health care providers is essential to provide adequate health services to the people of Alabama, and without such insur-anee, medical services by the medical profession may be curtailed, and that while the need for such insurance is increasing, availability is limited and likely to become increasingly so, unless remedial legislation is enacted. The Legislature further finds and declares that by reason of complicated and highly technical medical concepts, and the existence of sophisticated medical techniques, decisions with respect to optional procedures of diagnosis and treatment have become increasingly complex and are necessarily made on the basis of professional judgment, on which opinions may and often will reasonably vary. It is the purpose of this act to insure that the citizens of the State of Alabama are able to receive necessary health services by providing an environment in which the medical profession can be assured of medical liability insurance coverage and be afforded reasonable protection against personal liability for consequences proximately resulting from decisions with respect to diagnosis and treatment arrived at in the bona fide exercise of professional judgment.

To withstand an equal protection challenge, the Court need only find that the classification made by the legislature is not arbitrary or unreasonable. As this Court recently held in Tyson v. Johns-Manville Sales Corporation, 399 So.2d 263 (Ala. 1981):

A statutory discrimination between classes is held to be relevant to a permissible legislative purpose if any state of facts reasonably may be conceived to justify it.

The Medical Liability Act was the legislature’s response to a crisis which developed nationwide in the 1970’s. We cannot say that the equal protection provisions of the Constitution restrict its authority to withdraw the legislative grace given minors in § 6-2-8 in the field of medical malpractice claims.

We note that a number of other states passed similar legislation during this period. While we might have drafted a different act, we cannot substitute our judgment for that of the legislative branch, whose enactments come to us clothed with a presumption of validity. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), stated this principle as follows:

At the outset reference may be made, as is often done, to the principles by which courts are guided when it is sought to strike down as violative of the constitution a legislative act. Uniformly, the courts recognize that this power is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283.
Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are vio-lative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom.

246 Ala. at 9-10, 18 So.2d 810.

We hold that the Medical Liability act does not offend either the due process or the equal protection provisions of the state or federal constitutions.

The last argument made is that the act violates §§ 104, 105, and 108 of the state constitution. Again, we disagree. All three of these constitutional provisions deny to the legislature power to enact special, private, or local laws. Such laws are defined in § 110 of the Constitution. The Alabama Medical Liability Act does not fall within the constitutional definition of special, private, or local laws. Rather, it is a general law as defined by that section: “A general law within the meaning of this article is a law which applies to the whole state. . . . ” It operates throughout the state alike on all the people or all the people of a class. Holt v. Mayor of Birmingham, 111 Ala. 369, 19 So. 735 (1896).

The judgment appealed from is affirmed.

AFFIRMED.

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

JONES, J., concurs specially.

FAULKNER and EMBRY, JJ., dissent.

BEATTY, J., recused.

JONES, Justice

(concurring specially):

I concur to affirm. This is a hard case because of its facts. How is a blind child (blind allegedly as the consequence of the medical malpractice made the basis of the claim) to be held responsible for not bringing his claim within the one-year grace period under the act? In other words, the statute, literally construed, gives this minor exactly the same length of time to bring his suit as it gives to an adult. The “eighth birthday” provision is of no comfort because this child was eight years of age before “the expiration of one year from [September 23, 1975 — the effective date of the Act].”

Did the Legislature intend such a harsh result under these circumstances? While I may entertain serious doubts that it in fact so intended, the Act is not ambiguous in this regard. It differentiates between adults and minors only to the extent that it permits “a minor under four years of age [at the time of injury] . . . until his eighth birthday to commence such action.” Here, of course, because his eighth birthday was less than one year after September 23,1975, the last date for timely filing would have been September 23, 1976.

The only question, then, is whether the statute as written exceeds constitutional bounds. A majority of this Court says, “No”; and I agree. The strongest argument against constitutional validity, in my opinion, is the one not addressed by either the majority or the dissent: that the statute’s limitation of action applicable to minors is violative of § 13 of the State Constitution. Indeed, this was the basis for my dissent in Boehlert v. Royal Globe Insurance Company, 297 So.2d 108 (Ala. 1981).

There, I felt that the right of action for wrongful death, though created by statute, had become part of the organic fabric of our law; and, its legislative origin notwithstanding, the fundamental character of the right of action was embraced within the proscription of § 13. My reasoning is founded upon the simple proposition that the legislative branch does not occupy an inferior role to that of the judicial branch of our government — that the two branches, along with tradition and custom, constitute the three equal sources of our law. Once a right, whatever its source, acquires, through time-tested usage, the status of a fundamental right, it falls within the protective cloak of § 13; and the courts are mandated to invalidate any legislative abolition of such rights. In my opinion, the right of action for wrongful death meets this “fundamental right” test, thus my dissent in Boehlert v. Royal Globe Insurance Company, supra.

The legislative abolition of a cause of action for wrongful death, however, is a totally different proposition from that of a legislative modification of a time within which an action may be commenced. Here, no cause of action has been abolished. Instead, the statute of limitations with respect to minors has been changed; and the validity of this change is subject only to the test of reasonableness. Given the “pure” statute of limitations interpretation of the health care malpractice statute (see my concurring opinion in Thomas v. Niemann, 397 So.2d 90, 93 (Ala. 1981)), I cannot conclude that the two-year period of limitation from the accrual of the cause of action (in this instance, one year from the effective date of the Act) for a minor eight years of age is unreasonable.

EMBRY, Justice

(dissenting):

The Alabama Constitution of 1901 provides in Article IV at § 45: “. . . Each law shall contain but one subject which shall be clearly expressed in its title, except general appropriation bills, general revenue bills and bills adopting a code, digest or revision of statutes.. . . ”

Act No. 513, Acts 1975, contains sixteen sections. Of those, § 4 creates a new statute of limitations for medical liability actions; § 5 prohibits ad damnum clauses in medical liability complaints; § 6 establishes the duty of care owed to a patient by a physician, surgeon, dentist and hospital; § 8 allows parties to a medical liability claim to settle the claim by arbitration; § 10 allows defendants in medical liability actions an optional method for payment of judgments in excess of $100,000; and § 11 provides that advance payments in medical liability actions by the defendant or his insurer are not admissible until there is a final judgment in favor of the plaintiff. These sections relate to medical liability actions and are codified at Code 1975, §§ 6-5-482 through 6-5-487.

I am of the opinion that Act No. 513 is unconstitutional because it contains more than one subject, in contravention of the provisions of § 45 of the Constitution of Alabama of 1901. It is evident from the title as well as the provisions of the act that the act deals with both medical liability actions and medical liability insurance. Thus, it is apparent the act deals with, at the very least, two separate subjects. As will be seen, it is my opinion that it deals with even more and runs afoul of § 45:

The purposes of the “single subject” requirement Const. of Ala., 1901, § 45, are generally stated as: (a) notification to the public of the nature of the pending legislation; (b) avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title, and; (c) prevention of logrolling legislation. [Citations omitted.] The title of a bill need not specify every provision contained. The “one subject” test of § 45 is satisfied when the bill’s provisions are all referable to and cognate of the subject of the bill.

Opinion of the Justices, 294 Ala. 555, 564, 319 So.2d 682, 691 (1975).

I am not able to conclude that the provisions of Act No. 513 satisfy the “one subject” test. Although there may be some relationship between medical liability and insurance covering such liability, it is clear that this act is susceptible to the very danger sought to be avoided by the constitutional prohibition against an act containing more than one subject. Provisions of this act cover a wide diversity of topics ranging from the statute of limitations, the amendment of the suspension of limitations as to minors, the form of a complaint and the duty of care applicable in medical liability actions, to the organization, regulation, and reporting requirements of medical liability insurance carriers. Therefore, Act No. 513, Acts 1975, with its § 4 relating to the statute of limitations, and special suspension of limitations as to minors is unconstitutional as originally enacted, in my judgment.

Section 4 was codified as Code 1975, § 6-5-482, when Act No. 20, Acts 1977, adopted the 1975 Code. I would therefore consider whether Act No. 20, adopting the 1975 Code effective 31 October 1977, made Code 1975, § 6-5-482, constitutionally valid. An act adopting a code of laws is not constitutionally required to contain only one subject, Gibson v. State, 214 Ala. 38, 106 So. 231 (1925); Bluthenthal v. Trager & Co., 131 Ala. 639, 31 So. 622 (1901); therefore, as of 31 October 1977, Code 1975, § 6-5-482, was constitutionally enacted.

Section 6-5-482 provides:

(a) All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claims, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions, namely, sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30 and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action. (Acts 1975, No. 513, § 4.)

A statute of limitations is generally viewed as a remedial statute so that the statute in effect at the time suit is filed rather than the one in effect at the time of the accrual of the cause of action applies unless the later statute clearly states to the contrary. Street v. City of Anniston, 381 So.2d 26 (Ala. 1980). Furthermore, the legislature may create or shorten periods of limitation provided a reasonable time is allowed for existing causes of action to be brought. Street, supra; Coleman v. Holmes, 44 Ala. 124 (1870). This enactment does not, however, provide such a reasonable time for existing causes of action to be filed. At the time Code 1975, § 6-5-482, became effective by virtue of Act No. 20, Acts 1977, on 31 October of that year, it provided only that actions might be commenced on claims accruing before 23 September 1975 within a year after 23 September 1975. Therefore, at the time it became a part of the Code, it was ineffective to provide a year from 23 September 1975 within which to file claims accruing before 23 September 1975. Prior to 31 October 1977, since Act No. 513 was constitutionally infirm, a plaintiff was allowed two years from the act or omission giving rise to a cause of action for medical malpractice in which to commence an action. If the cause of action were not discovered, or could not reasonably have been discovered by the plaintiff within two years, then the plaintiff was allowed an additional six months from the time of discovery to commence an action, provided the action was commenced within six years after the act giving rise to the cause of action. Tit. 7, § 25(1), Code 1940 as amended (Recompiled 1958).

Additionally, because Samuel Bert Reese, II, was a minor at the time of the acts complained of, Tit. 7, § 36, Code 1940 as amended (Recompiled 1958) (presently Code 1975, § 6-2-8), suspended the running of the limitations period as to him until he attained majority. When this action was commenced on 5 February 1979, Samuel Bert Reese, II, was 11 years old and therefore under provisions of law prior to the effective date of § 6-5 — 482 his action was timely commenced. Because no provision was made for a reasonable time in which to commence an action on a claim in existence prior to 31 October 1977, and which was not barred prior to 31 October 1977, Code 1975, § 6-5-482, is ineffective as against those claims. The statute of limitations applicable to such claims was the statute in effect prior to the effective date of Code 1975, § 6-5-482: 31 October 1977.

I would hold Act No. 513, Acts, 1975, Code 1975, § 6-5-480 et seq., Medical Liability Actions, invalid in its entirety. Not only would I do this on the bases that I attempted to articulate in my dissent in Thomas v. Niemann, 397 So.2d 90 (Ala. 1981), but in addition would hold that the act is in violation of the equal protection and due process provisions of the Alabama and United States Constitutions.

For the reasons I have stated, I would reverse the judgment below and remand the case for trial on its merits.

FAULKNER, J., concurs.

      . Similarly, the Alabama Workmen’s Compensation Act provides a one-year statute of limitations for all claimants, including minors.

      . I have used the “eight years of age” reference because of the particular facts of this case. Admittedly, the literal provisions of the Act apply the two-year period of limitations to all persons, including minors whose causes of action accrue on or after their fourth birthday. Nothing I have said, however, is to be construed as passing upon the reasonableness of the one year limitation for a minor between four and eight years of age.


author: ADAMS, Justice.

text:
    William C. PERDUE v. Ora GATES and Estes Wilson Realty Corp., a corporation. Richard A. BOYKIN, Sr. v. Ora GATES and Estes Wilson Realty Corp., a corporation.
    79-554, 79-555.
    Supreme Court of Alabama.
    July 17, 1981.
    Rehearing Denied Aug. 28, 1981.

      Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, Mobile, for appellant William C. Perdue.
    Sidney H. Schell of Reams, Tappan, Wood, Vollmer, Philips & Killion, Mobile, for appellant Richard A. Boykin, Sr.
    Emmett R. Cox and R. Joel Potter of Nettles, Cox & Barker, and M. A. Marsal of Seale, Marsal & Seale, Mobile, for appellee.
   ADAMS, Justice.

These appeals come to us from judgments on jury verdicts in favor of plaintiffs, a real estate saleslady and the broker holding her license, on suits to recover commissions on the sale of land. Defendants, seller and remote partial-interest buyer of the property in question, appeal the denial of their motions for judgment notwithstanding the verdict or, in the alternative, for new trial. The cases present procedural questions regarding the right of defendants to appeal from the denials of their post-trial motions, as well as questions relating to the law of “procuring cause” in real estate sales. After careful consideration of the law and the facts, we reverse.

I. Facts

A. The Negotiations

William C. Perdue (hereinafter Perdue) and his sister Ann Perdue Ballard inherited a sizable tract of beach-front property in Gulf Shores, Alabama. In April of 1972, Ora Gates (hereinafter Gates), a licensed real estate saleslady (Gates did business as a saleslady under the supervision of Estes Wilson Corporation, also a plaintiff, but not an active party) heard that Perdue and his sister might be interested in selling the property. Gates telephoned Perdue and told him she knew someone who might be interested in buying it. Perdue told her that he was interested in selling and that she could speak to her prospective buyer. Gates then contacted Richard A. Boykin, Sr., (hereinafter Boykin) who told her that he was interested and asked her to secure more information. The two men agreed to pay her $25,000.00 each should a sale go through. The exact nature of this agreement is in dispute, but it was certainly not an exclusive listing. Gates testified at trial that Perdue and Boykin agreed to pay the commission “when Boykin purchased the property.” She asserted that Boykin told her from the outset that he would have associates with him.

Perdue and Boykin began negotiations and went to the property to inspect it. There was evidence that Richard A. Boykin, Jr., (hereinafter Boykin, Jr.), Boykin’s son, went out to the property and was otherwise involved in the negotiations on his father’s behalf at this stage. Perdue told Gates that there was an option on the property, but he would get out of it if he ethically and legally could. He did so, apparently sometime in May 1972. Boykin, along with Boykin, Jr., and Lykes Boykin, an attorney from Washington who was a friend, but not a relative of defendant Boykin, made an offer to Perdue and Mrs. Ballard in May or June of 1972. This offer was refused. Apparently negotiations continued thereafter, but on June 26, 1972, Boykin wrote a letter “withdrawpng] entirely our previous proposals.”

From this point the evidence is confusing and conflicting. Because we are viewing the evidence in the light most favorable to plaintiff/appellee Gates, we will give her version of events with occasional references to denials by Boykin, Perdue and others. Gates testified that she arranged meetings between Boykin and Perdue, wrote letters to them, and generally had about thirty or forty contacts with each of them between April and September 1972.

Gates testified that Boykin told her that he was working with Jack Nicklaus’s business manager and was arranging financing with some people from Ohio. Boykin denied this, saying he never talked to anybody from Ohio until later in the fall, when an Ohio man whom he had never met called him from the Holiday Inn at Gulf Shores, Alabama. Gates said she also negotiated with Perdue’s brother-in-law, Mr. Ballard, while Perdue was in Europe. She testified that sometime after June 26,1972, (the date of Boykin’s letter withdrawing his offer) Boykin called her one night “and said he was at his son’s apartment and there were two men there from Mississippi who had come to talk to him about the Perdue property.” He asked her to reopen negotiations with Perdue, which she did. Boykin denied this.

Gates arranged a meeting between Per-due and Boykin at a motel sometime in August 1972. She testified that Boykin informed her that the meeting was very satisfactory and that he would make a new offer. Soon after that, Perdue telephoned Gates and told her that another option, to last for 60 days, had been taken on the property as of September 7, 1972. Gates related this to Boykin, and he dictated a letter to Perdue to the effect that he was still interested in the property. During the latter part of October, she called Boykin to tell him the option was about to expire and to ask him what he wanted her to do, “and he said, I want you to just sit still because this property is coming back to us.” On November 8, 1972, she wrote Boykin a letter suggesting that if he made another offer he should give Perdue a check as evidence of his good faith. This letter included the statement “If you want it — I hope it comes back to you.” Gates testified that in her letter she was quoting Boykin’s earlier instructions to her.

Unbeknownst to Gates during this period, Perdue was also negotiating with W. A. McClung and P. L. Blake (hereinafter McClung and Blake) through another Mobile area real estate broker, James D. McCown. These negotiations had begun in late 1971. On February 11, 1972, McCown wrote to Perdue detailing an offer from McClung and Blake to purchase the property in question. These parties were also working with parties in Atlanta, including James Jones and Donald Nichols, who were directors or officers of various corporations, including Trans-Georgia Corporation and Trans-North Corporation. The latter was incorporated on January 15,1973. McClung and Blake were the holders of two options on the Perdue property described above. On November 30, 1972, McClung and Blake exercised their option, for which they had paid $5,000.00, enclosing an earnest money deposit of $50,000.00. Testimony at trial indicated that the two exercised their option only after ensuring that the Atlanta parties would, in turn, purchase the property-

Boykin testified that he did not think about the Perdue property again after withdrawing his offer until a man named Fergus called him from Gulf Shores and asked him to discuss his ideas for development of the property. Boykin, Jr., and Lykes Boykin were apparently also at this meeting. Fergus was from Ohio, and Boy-kin testified that shortly after this first meeting, he went to Ohio to join Fergus and some others in a partnership called Gulf Shores Properties. Boykin could not produce a copy of the partnership agreement, nor did he remember the date of the agreement. Boykin, his son, and Lykes Boykin each bought an llV&% interest in Gulf Shores Properties for $30,000.00. In a letter dated December 27, 1972, John Kessler (a partner in Gulf Shores Properties), sent Boykin, Jr., “a first draft of the contract pertaining to the Perdue property,” with Trans-North Corporation listed as seller and Kessler, John and Robert Fergus, and Boy-kin Sr. and Jr. named as buyers. James P. Jones was listed as the person to receive communications concerning the contract for seller and Kessler to receive communications concerning the contract for buyer. Jones’s address was given as 100 East Broad Street, and Kessler’s, as 88 East Broad Street, both in Columbus, Ohio. Defendants objected to the introduction of this contract draft, but apparently it was admitted along with its cover letter. This James Jones is the same one listed with an Atlanta address in the Trans-North articles of incorporation.

On January 19, 1973, Samuel M. McMillan, a Mobile attorney, wrote a letter to John F. Rogers, the Ballards’ son-in-law and their attorney. (The Ballards were co-owners of the property in question.) One of the statements in the letter included the following: “As you know, it is the present intention that the property will be transferred to it immediately after McClung and Blake purchase it. Mr. James Jones, attorney for Trans-North Corporation, told me that he would deliver a corporate resolution to you.”

B. The Sales

On the morning of January 25, 1973, Per-due and Mrs. Ballard and their spouses executed a warranty deed conveying the property to McClung and Blake for $4,000,-000.00. That afternoon McClung and Blake conveyed the entire property, approximately 1800 acres, for approximately $5,000,-000.00 to Trans-North Corporation.

On January 29, 1973, Trans-North Corporation conveyed part of the property, approximately 1300 acres, to Gulf Shores Holding Co., for approximately $3,600,-000.00.

II. Procedural Threshold

Defendants raise contentions on appeal that amount to challenges to the sufficiency of the evidence. One further ground raised was the allegedly improper closing arguments by plaintiffs’ counsel. However, this matter was not sufficiently preserved in the record for us to consider it.

Defendants moved for summary judgment and for directed verdicts at the close of plaintiffs’ cases. The motions were denied. After verdicts for plaintiffs, defendants moved for judgment notwithstanding the verdicts (JNOV) and, in the alternative, for new trials. These motions remained pending for 90 days and were denied perforce by Rule 59.1, Alabama Rules of Civil Procedure (A.R.C.P.).

To test the sufficiency of the evidence on appeal, a party must have moved at trial for JNOV under Rule 50(b), A.R.C.P. Great Atlantic and Pacific Tea Company v. Sealy, 374 So.2d 877 (Ala.1979). A motion for directed verdict is a prerequisite for a motion for a JNOV. Id.

Here, defendants moved for directed verdicts at the close of plaintiffs’ cases, but not “at the close of all the evidence.” Rule 50(b). Defendants did, however, submit the following written jury instruction to the trial court: “The Court charges the jury that you must find for the Defendant.” Under prior practice, such an instruction was known as an affirmative charge. Williams v. First Farmer & Merchants National Bank of Troy, 237 Ala. 132, 185 So. 737 (1938). This Court has noted that “a request for an affirmative charge is the substantial equivalent of a motion for directed verdict.” Pruitt v. Pruitt, 343 So.2d 495, at 500 (Ala.1976). Defendants point out that the Fifth Circuit Court of Appeals, in construing the Federal Rule 50(b), has held that a request for an affirmative charge satisfies the requirement for a directed verdict motion. Jack Cole Company v. Hudson, 409 F.2d 188 (5th Cir. 1968).

In Jack Cole, supra, the court considered defendants’ appeal of a denial of their motion for JNOV, despite plaintiff’s contention that defendants failed to lay the predicate for the motion by moving for a directed verdict at the close of all the evidence. The Fifth Circuit noted that defendants had made and argued a motion for directed verdict at the close of plaintiff’s evidence and had requested that the jury be instructed to find for them. The court considered the merits of the denial of the motion for JNOV after holding that:

There can be no doubt that the trial judge was well aware of the reasons for the requested jury instruction, and, under the circumstances, we hold that this constitutes a sufficient predicate for the subsequent motion for judgment notwithstanding the verdict. Roberts v. Pierce, 398 F.2d 954, 956 (5th Cir. 1968).

Jack Cole, at 191.

In the cases at bar, defendants Boykin and Perdue moved for summary judgments on the ground that “the undisputed facts show that the plaintiffs herein have no cause of action.” The motion was denied. At the close of plaintiffs’ cases, defendants orally moved for directed verdicts, and the parties argued the motions. The court denied the motions, stating that “there is a glimmer of a scintilla, which under the law requires the Court to leave the case before the jury.” (Defendants argue here that “a glimmer of a scintilla” is arguably less than a glimmer or a scintilla, the proper standard. We pretermit discussion of this alleged error because we reverse on other grounds.)

When defendants submitted the affirmative charge set out above, they gave no grounds therefor and did not object to the trial court’s failure to give the charge. If they were appealing the refusal to give this charge, we would hold against them under Rule 51, A.R.C.P. In this posture the equivalence of a request for the affirmative charge to a motion for directed verdict is somewhat dubious, especially in light of Rule 50(a)’s requirement that “a motion for directed verdict shall state the specific grounds therefor.” The Fifth Circuit has observed that “The rule [that a motion for directed verdict at the close of all the evidence is a prerequisite for a motion for JNOV] is a strict one, however, and we and other courts have taken a liberal view of what constitutes a motion for directed verdict for these purposes.” Quinn v. Southwest Wood Products, 597 F.2d 1018, at 1025 (5th Cir. 1979) (footnote omitted). Because defendants had repeatedly made their arguments against the sufficiency of plaintiffs’ evidence, we choose to follow the rationale of Jack Cole, supra, and conclude that this case is in an appropriate posture for consideration of the denial of defendants’ motions for JNOV.

A further peculiarity arises here, in that defendants’ motion was denied not by affirmative act of the trial judge, but by operation of Rule 59.1, A.R.C.P., which provides that a post-trial motion pending for more than 90 days is deemed to be denied. The parties here argue whether such a denial of a JNOV and new trial carries the usual effect of strengthening the presumption in favor of a jury verdict. See, e. g., Walker v. Cardwell, 348 So.2d 1049 (Ala.1977). If such is not the case, the purpose of Rule 59.1 will be undercut, in that denial of post-trial motions by operation of law will probably receive less respect than other final judgments. On the other hand, the rationale for strengthening the presumption of correctness is that the trial judge, who has observed the proceedings, issues an order that the jury verdict is indeed not contrary to the great weight of the evidence and the law; we have no such affirmative statement here.

Both Perdue and Boykin filed on December 17, 1979, motions for JNOV, or, in the alternative for new trial. On March 13, 1980, they filed motions for special setting on the motions for new trial. These later motions noted that the 90-day period prescribed by Rule 59.1 was about to expire. The motions recited that the JNOV/new trial motion had been argued on Thursday, February 28, that the judge had been out of town the following day, and that he had been out of the office due to illness for the week of March 3. The motion further notes that the court reporter told counsel for defendant that the judge had denied the motion on Thursday, February 28, 1977, but that there was neither a minute entry nor a written note by the judge of such an order.

Under the circumstances, we feel compelled to give great deference to the jury verdict and to the evidence in plaintiff’s favor. Nevertheless, “Evidence which affords nothing more than mere speculation, conjecture, or guess is wholly insufficient to warrant the submission of a case to the jury.” Headrick v. United Insurance Company of America, 279 Ala. 82, 181 So.2d 896 (1966).

III. Analysis

A. The Law

Plaintiffs proceeded below, and on appeal, on the theory that Gates was the procuring cause of the sale by Perdue and of the purchase by Gulf Shores Holding Co., and that she was, therefore, entitled to her commission. As alternative causes of action she alleged that Boykin and Perdue each owed her $25,000.00 by open account or for work and labor done, but these counts are not before this Court on appeal. The court instructed the jury on a “straw intervening purchaser” theory of recovery to the effect that if the intervening purchase was a device planned to deprive Gates of her commission, she could recover. Plaintiffs deny having proceeded on this theory, but we will consider whether it supports her verdict and judgment.

In Mellos v. Silverman, 367 So.2d 1369 (Ala.1979), a real estate commission case which hinged upon an exclusive right to sell, this Court made a footnote reference to procuring cause (which was not necessary to Mellos):

Procuring cause refers to a cause originating with a series of events which without break in their continuity result in procuring a purchaser ready, willing and able to buy on the owner’s terms. Absent contractual provisions otherwise, the broker’s activities must be the procuring cause of the sale. 12 Am.Jur.2d Brokers §§ 189, 190.

Mellos v. Silverman, at 1371.

Plaintiffs cite Foote v. Moore, 342 So.2d 906 (Ala.1977), for a definition of procuring cause. In Foote, this Court approved a jury instruction

that in determining whether a broker has earned a commission for procuring a purchaser, it is enough that the effort of the broker, acting upon the purchaser, [is] the efficient cause of the purchaser’s offer to purchase, but the broker’s efforts need not be the sole cause.

Foote, at 908.

Other Alabama cases use this language of efficient, but not necessarily sole cause, as well as noting that the question is whether the broker has produced a purchaser who is ready, willing and able to buy. There is also much authority that these are questions of fact. See, e. g., Alabama Fuel Sales Co. v. Vulcan Energy Resources Corp., 339 So.2d 1007 (Ala.1976); Marx v. Lining, 231 Ala. 445, 165 So. 207 (1936); Bailey v. Padgett, 195 Ala. 203, 70 So. 637 (1915); Handley v. Shaffer, 177 Ala. 636, 59 So. 286 (1912).

There is conflicting authority on whether a realtor is entitled to a commission for introducing a prospective buyer who brings in partners or other parties as co-purchasers. Defendants rely heavily on English v. William George Realty Co., 55 Tex.Civ.App. 137, 117 S.W. 996 (1909), and on Marshall v. White, 245 F.Supp. 514 (W.D.N.C. 1965), both of which held brokers not entitled to commissions. We note to the contrary, however, Cumberland Savings and Trust Co. v. McGriff, 61 Fla. 159, 54 So. 265 (1911), and Hill v. Capps, 248 Miss. 601, 160 So.2d 186 (1964). See 12 Am.Jur.2d Brokers § 191 (1964). In general, the cases where a commission is allowed are those where the sale takes place through the efforts of the broker in conducting negotiations between the seller and buyer, with the co-buyer coming into the transaction incidentally.

In Zetlin v. Scher, 241 Md. 590, 217 A.2d 266, at 268-9 (1966), the Maryland Court of Appeals allowed a commission on a straw party theory, holding in accordance with an earlier Maryland decision

that there was sufficient evidence from which the trier of fact could have found that the actual purchaser was one whose name did not appear on the contract.

Such is not the state of the evidence in the case at bar.

For Gates to succeed on a straw party theory, she must show by a preponderance of the evidence that McCIung and Blake, Trans-North Corporation, and perhaps even Gulf Shores Properties were acting as agents of Boykin. Zetlin v. Scher, supra. Not only was there little or no evidence to this effect, but also the evidence indicated independent reasons for each party to purchase and resell.

B. Application to the Case at Bar

Gates asserts that she was in fact the procuring cause of the whole sale. When confronted with the fact that McCIung and Blake were negotiating with Perdue long before she introduced Boykin to Perdue, she answers that these negotiations were unfruitful — the first option lapsed, and the second was not exercised until Trans-North agreed to purchase from McCIung and Blake. She points to the connection between Jones of Trans-North and Kessler of Gulf Shores Properties (per the neighboring addresses, noted above) and apparently surmises that the decision to purchase by Trans-North was effected by the decision to purchase by Gulf Shores Properties. Finally, she asserts that the involvement of the Boykin group, both financially and as local developers, was the cause of the decision by Gulf Shores Properties to buy. Defendants argue that there was no evidence negating that all of these parties could have bought without involvement of any of the later parties. We need not indulge in such matching of speculations.

Whether “procuring cause” is defined in terms of breaks in continuity, of efficient cause, or of a buyer ready, willing, and able to purchase, we find no evidence that Gates was the procuring cause of a sale by Perdue or of a purchase by Boykin. Even though there is evidence that she continued to try to effect a sale from Perdue to Boykin throughout the period, and even though Boykin’s alleged statement that “the property is coming back to us” indicates that he expected to get an interest in the property, Gates’s relation to the transaction as a whole is too attenuated for us to affirm a jury verdict that she was the procuring cause.

McCown, the other real estate salesman involved, received approximately $150,-000.00 in commission for effecting the sale from Perdue and Ballard to McCIung and Blake and the sale from McCIung and Blake to Trans-North. Even if we were to accept Gates’s causal chain theory, she did not show any connection of Boykin with Trans-North to explain why Trans-North was involved. Assuming- that McCIung and Blake were the “two men from Mississippi” about whom Gates testified, and assuming that Boykin, contrary to his testimony, brought in the “financing from Ohio,” why did they bring in the Georgia corporation? Furthermore, even if McCIung and Blake were the two men from Mississippi who allegedly met with Boykin, Sr. and Jr., the fact that they were negotiating prior to the Boykins’ involvement makes the supposition that they brought Boykin into their purchase equally as probable as the supposition that Boykin brought them into his. “It cannot be said that one fact can be inferred when the existence of another inconsistent fact can be drawn with equal certainty.” Griffin Lumber Co. v. Harper, 247 Ala. 616 at 621, 25 So.2d 505 (1946).

Finally, the fact that each intervening party (most of whom she had never met), gained from the transaction makes improbable Gates’s contention that she was the procuring cause of the entire transaction. These successive profits also destroy the straw man theory, which cannot stand for lack of any evidence that the prior parties were Boykin’s agents or that the purpose of this complicated transaction was to cut Gates out of her commission.

Plaintiff has the burden of proving her case by the preponderance of the evidence, or, expressed alternatively, her burden is to prove that the facts which she posits are more probably true than not. Ex Parte Acton, 283 Ala. 121, 214 So.2d 685 (1968). “We must not allow a verdict to stand which is rested on pure speculation and conjecture.” Howell v. Roueche, 263 Ala. 83 at 87, 81 So.2d 297 (1955).

Plaintiff Gates has failed to meet her burden in the instances noted above and throughout the entire presentation of her case. Therefore, the judgment is due to be, and is hereby, reversed and the cause is remanded to the circuit court for entry of a judgment in accordance with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    ALLSTATE INSURANCE COMPANY v. Ralph P. EAGERTON, Jr., as Commissioner, etc.
    79-879.
    Supreme Court of Alabama.
    July 24, 1981.
    Rehearing Denied Aug. 21, 1981.
    Lee H. Zell and Susan Salonimer of Ber-kowitz, Lefkovits & Patrick, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, Montgomery, and John J. Breckenridge and J. Wade Hope, Asst. Attys. Gen. and Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
    John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Thomas J. Groark, Jr., Allan B. Taylor and Josephine Marchetti of Day, Berry & Howard and Peter Mear, Hartford, Conn., for Aetna Cas. and Sur. Ins. Co. as amicus curiae.
   SHORES, Justice.

Allstate Insurance Company (hereinafter Allstate) filed an action for declaratory judgment against the Commissioner of Revenue seeking a determination that it was not a holder of unclaimed funds within the meaning of the Alabama Uniform Disposition of Unclaimed Property Act, Ala.Code 1975, § 35-12-20, et seq. By answer, the commissioner asserted that under the provisions of the Act, Allstate was obligated to deliver the sum of $20,649.68 to the State of Alabama. Of this claimed sum, $16,741.19 was based on Allstate’s records which reflected drafts in that aggregate amount, issued by the company from June 1,1967, to December 3, 1970, which were never endorsed nor presented for payment by the respective payees and were subsequently cancelled by Allstate. The remainder was based on the commissioner’s estimate of the volume of unpresented and cancelled drafts for the period from April 27, 1965, through December 31, 1966, for which period no Allstate records were in existence. The parties filed a joint stipulation of facts, and the case was submitted to the trial court upon the stipulation, together with the testimony of one witness.

By its final decree, the trial court held that unpresented drafts issued and subsequently cancelled by Allstate totaling $16,-741.19 represented funds subject to the provisions of the Act and, as such, were deliverable to the commissioner. The trial court also held that the company was not to be considered a “holder” within the meaning of the Act of the remaining, estimated sum assessed by the commissioner. The court thus ordered that Allstate deliver to the commissioner the sum of $16,741.19.

The following facts were stipulated:

1. Plaintiff Allstate Insurance Company (“Allstate”) is a corporation organized and existing under the laws of the State of Illinois, has its principal place of business in the State of Illinois, and is doing business in the State of Alabama. Allstate is an insurance corporation within the meaning of the Uniform Disposition of Unclaimed Property Act, Code of Alabama (1975) §§ 35-12-(20-48) (the “Act”), § 35-12-21(5).

2. Defendant Ralph P. Eagerton, Jr., as Commissioner of the Department of Revenue of the State of Alabama (the “Commissioner”) is charged with the administration and enforcement of the Act.

3. Allstate offers various lines of insurance, including casualty coverage. It is legally liable under the terms of its casualty insurance contracts to make payments only upon proof of the occurrence of specified events in defined circumstances. Allstate’s liability under all of its casualty insurance contracts runs only to its policyholders and other covered individuals as defined in the contract, and thus all payments under such contracts are made directly to or on behalf of such individuals. For example, as a casualty insurer, Allstate is required to pay a first-party claimant (its own insured or such other person as may be provided policy coverage) only if it is established that such claimant in fact has sustained a loss or incurred expenses for which an Allstate insurance policy provides coverage. Similarly, Allstate is required to pay a third-party claimant only if an Allstate policyholder or other covered person has been found liable to such claimant for damages resulting from specified acts or omissions as to which the particular Allstate insurance contract affords coverage. However, Allstate frequently finds it advisable to offer payments in full or partial settlement of any claims prior to the establishment of liability under the terms of its policies.

4.For the period between January 1, 1965 and December 31, 1970, Allstate prepared and issued drafts for the purpose of full or partial claim settlements. Such drafts were payable through a bank in the state of the reporting Allstate regional office .... Each provided on its face that it would be “void if not presented within six months after [the] date of issue.” In addition, each bore the following endorsement legend:

Endorsement hereof acknowledges that this payment is offered and received in full satisfaction of the claim shown on the other side; and that upon acceptance and payment of this draft the Allstate Insurance Company is hereby released and discharged of said claim.

Finally, each draft, when prepared, recited that it was in full settlement of all or a specified portion of the claim to which it was attributable.

5.During all periods relevant to the matters at issue in this action, the following accounting and banking procedures have been applicable to Allstate’s preparation of drafts:

(a) When a claim is first reported by a policyholder or claimant, Allstate verifies coverage applicability and, where appropriate, opens a numbered claim file, estimates the amount of its potential liability with respect to the claim, debits an expense account designated “Incurred Claims and Claims Expense (Allocated)” (“ICCE(A)”) in the amount of the estimate and credits a liability account designated “Reserve for Losses” in an identical amount. If a draft is prepared for the purpose of partially or fully settling the claim, Allstate debits the “ICCE(A)” account and credits a liability account designated “Drafts Outstanding” in the amount of the draft. At the same time, an entry is made debiting the “Reserve for Losses” account and crediting the “ICCE(A)” account in order to adjust the “Reserve for Losses” account to zero if the draft was issued for the purpose of partially settling the claim.

(b) If a draft is not presented within the six month period after its date of issue, Allstate immediately initiates a procedure to indicate on its own records that the draft should not be honored. (For convenience, this procedure, whether initiated because of the passage of six months after date of issue or for some other reason, is called “cancellation,” and drafts as to which the procedure is completed are called “canceled drafts.”) . . .

(c) If the draft is delivered to the payee and if the payee accepts the draft by endorsing it and presenting it for collection, the draft proceeds through the banking system to the bank through which the draft is payable. The bank in turn presents the draft to Allstate for payment. Allstate either approves and pays the draft within 24 hours or notifies the bank that the draft will not be honored. Allstate will in no event honor a draft (1) which is presented more than six months after date of issue and canceled on Allstate’s records, (2) which is canceled for some other reason, or (3) which is not properly endorsed by the payee.

(d)If a draft is properly endorsed and timely presented by the payee, and otherwise approved for payment by Allstate, the appropriate accounting entry is to debit “Drafts Outstanding” and credit a cash account. If a draft is not presented prior to cancellation or is not properly endorsed, Allstate reverses the entry explained previously regarding the issuance of a draft. When Allstate determines that a claim file should be closed, the “Reserve for Losses” account is debited for the amount, if any, remaining as a reserve and the “ICCE(A)” account is credited. Thus, when a claim is closed, Allstate has no amount recorded in any of its liability accounts with respect to such claim.

6. Pursuant to the provisions of §§ 35-12-31 and 35-12-33 of the Act, Allstate, for the period between January 1, 1965 and December 31, 1970, filed reports with the Commissioner respecting “unclaimed and abandoned” funds, within the meaning of § 35-12-23 of the Act, which it held. Thereafter, Allstate duly delivered such funds to the Commissioner. These funds consisted of checks issued by Allstate to various payees within the State of Alabama, which checks were not negotiated during a seven-year period following their respective dates of issue. . . .

7. In 1978, the Commissioner, through his authorized representatives, conducted an examination of certain records maintained by Allstate at its Birmingham, Alabama District Claims Office. Specifically, the records examined by the Commissioner’s representatives consisted of approximately 40,000 claim files, each of which . . . was opened by Allstate in response to a report of a claim by one of its policyholders or by a claimant. . . .

8. Subsequent to the examination of records . . . the Commissioner . . . initially advised Allstate that it was considered to be a holder of additional “unclaimed and abandoned” funds, within the meaning of § 35-12-23 of the Act, totaling $24,828.91. The Commissioner further advised Allstate that it was required by the provisions of the Act to remit such funds to the State of Alabama.

9. Of the original $24,828.91 in additional funds claimed by the Commissioner to be held and owing by Allstate, $20,371.45 represented certain drafts prepared between January 1, 1967 and December 31,1970.... More than six months had elapsed from the date of issue of each such draft. None of these drafts had been endorsed and presented by the respective payees, and all such drafts have been canceled by Allstate. All claim files in which such canceled drafts were recorded have been closed by Allstate, and no fixed liability has been established with respect to any claim in response to which any such draft was issued. The remaining amount of additional funds claimed by the Commissioner to be held and owing by Allstate ($4,457.46) represented an estimated sum for the period from April 27, 1965 through December 31, 1966, for which no Allstate claim files are in existence....

[11., 12. The Commissioner no longer claims funds represented by drafts in the following categories:

(a) Drafts Cashed. . . .

(b) Drafts Replaced by Subsequent Drafts. . . .

(c) Drafts Issued to Non-Residents. . . .

(d) Drafts Issued for Unrendered Services. . . .

(e) Drafts Issued in Error. . . .]

14. Allstate drafts totaling $16,741.19, as referred to in the preceding paragraph, fall into the following categories:

(a)Drafts Issued in Payment of Claim-Related Services. A single draft in the amount of $22.50 was reissued by Allstate and not presented for payment. The payee, the Jefferson County Probate Court, returned the second, reissued draft for cancellation, stating, through its senior accountant, that no amount was due and owing from Allstate to the Court.

(b) Drafts Issued in Response to Claims Under Insurance Policies. Drafts totaling $15,854.73 were issued to Allstate policyholders or to third parties, whose last known address is in the State of Alabama, in response to claims under automobile and homeowners’ insurance policies. These drafts were canceled by Allstate due to the failure of the payee(s) to endorse and present them for payment within six months of the date of issue, as is required by the terms stated on the face of the drafts. Of this total, $353.25 represents drafts issued to policyholders as reimbursement of policy deductibles recovered by Allstate through subrogation procedures; $3,570.65 represents drafts issued to third parties for the purpose of settling claims for property damage or personal injury arising out of an occurrence involving an Allstate policyholder; and the remaining $11,930.83 represents drafts issued for the purpose of settling claims by policyholders for medical care or property damage.

(c) Draft Cancellations Noted in Wrong File. Certain of the claim files cited by the Commissioner contain notations of the cancellation of a draft issued from another, unidentified file. The cited files contain no copy of the draft and no notation of the payee’s identity, the date of issue of the draft, the reason for issue, or the reason for cancellation. The total of the items falling into this category is $863.96.

The uniform act provides in pertinent part, as it relates to insurance corporations:

(a) Unclaimed funds, as defined in this section, held and owing by an insurance corporation shall be presumed abandoned if the last known address, according to the records of the corporation, of the person entitled to the funds is within this state. . . .
(b) “Unclaimed funds,” as used in this section, means all moneys held and owing by any insurance corporation unclaimed and unpaid for more than seven years after the moneys became due and payable as established from the records of the corporation. [Emphasis added.]

Ala.Code 1975, § 35-12-23.

Are the amounts represented by the un-presented drafts “moneys held and owing . . . unclaimed and unpaid” for more than seven years as the statute reads? We think not. It is true, as the commissioner argues, that for a period of six months after they are issued, Allstate is required to pay the drafts if properly endorsed and presented, and it can be argued that by failing to endorse and present the drafts for payment, the payee abandons the funds. However, it is equally true, as Allstate argues, that after the passage of six months, a payee has no claim on the draft, but simply has an unliquidated and unconceded claim on the underlying policy of insurance. Thus, Allstate by virtue of these drafts does not hold “moneys owing” after the passage of six months. If the drafts were issued in payment of fixed amounts due under the insurance contract, such as the face amount of a life insurance policy, the face amounts might well be “unclaimed funds” within the meaning of the act, but that is not the case before us. Here, the company retains the right to reject and litigate all claims not “settled” by accepting and presenting the drafts within six months. This is true even though the drafts are negotiable, a fact which is irrelevant to the issue in this ease. Under the stipulated facts, the drafts were issued for the purpose of settling unliqui-dated claims and do not constitute an ac-knowledgement by the company that it is liable to the payee in that amount.

Kane v. Insurance Co. of North America, 38 Pa.Cmwlth. 42, 392 A.2d 325 (1978), involved a similar set of facts:

Turning to that class of property consisting of the proceeds of uneashed checks and drafts issued by INA, the following findings of fact made by Judge Takiff of the court below, Kane v. Insurance Company of North America, No. 771, Dec. Term, 1962, filed January 20, 1976, are material:
“48. At various times since 1941, the Respondent [INA] issued checks, drafts and credit memoranda to various persons. Neither the persons to whom such checks, drafts and credit memoranda were issued, nor any one in their behalf, has claimed the amounts of such checks, drafts and credit memoranda. . . .
“50. No claim for the amounts of such checks, drafts and credit memoranda has been made for more than seven successive years, and the whereabouts of the persons entitled to claim such amounts have been unknown for the said period of time.
“51. INA issued cheeks, drafts and credit memoranda at the rate of about one million items per year.
“52. Except as recited in the following findings, [53-57] the only evidence as to the circumstances surrounding the issuance of these drafts is advice copies sent to the cashier of the company, showing the draft number, issue date, payee and a general notation of purpose, all intended to serve for a test comparison whenever the original is presented.
“53. The checks, drafts and credit memoranda fall into three categories:
“a) third party drafts; issued to third parties under a liability policy under which the company agreed to indemnify the insured against any loss by reason of liability imposed by law for damages payable to a third party.
“b) first party drafts; issued to the insured himself to cover injury to his own health or property under a policy protecting the same.
“c) drafts for goods and services; issued for goods or services performed or to be performed.
“54. As a matter of practice, the company might issue these drafts (a) either as payment of an agreed settlement of a claim under one of its policies, or as an offer of settlement not later accepted by the third party or the policyholder, or (b) as payment for goods or services already received or as an offer to pay for goods or services to be received later.
“55. With respect to third party drafts, the policy in connection with which a claim draft was issued did not impose any liability upon INA until the policyholder had become legally obligated to pay damages to a third party.
“56. With regard to first party drafts, in some instances these drafts were issued with respect to policies of insurance providing that no suit might be brought thereon unless started within twelve months of an insured loss.
“57. As to no item here in litigation and of the types described in' findings 52(a), 52(b) and 52(c) has the policyholder in the second case or any third party claimant in the first or third category brought any action under the policy or against the policyholder, respectively.”

392 A.2d at 328.

In that case, the court held that the funds did not escheat to the state under the Pennsylvania statute, which is not materially different from our own, and reasoned as follows:

The fatal flaw in the Commonwealth’s case is its failure to prove that those persons to whom the checks, drafts and credit memoranda were payable, or to whose accounts they were credited, were unqualifiedly entitled to same. The findings of the court below that at least some of the items in question were drawn in anticipation of unliquidated claims never made, or liabilities never incurred, leaves the Commonwealth, whose rights in an escheat proceeding are derivative, In the Matter of the Inquisition of Escheat of the Estate of Sarah Desilver, Deceased, 5 Rawle 111 (Pa.1835); Murdock v. John B. Stetson Co., 32 Pa.D. & C.2d 300 (C.C.P.Phila.1963); State ex rel. Parsons v. Standard Oil Co., 5 N.J. 281, 74 A.2d 565 (1950), in the position of attempting to create unliquidated claims where none exist. See Sennett, supra 432 Pa. 525 at 530, 247 A.2d 774 at 777; Texas Co. v. State ex rel. Coryell, 198 Okl. 565, 180 P.2d 631 (1947). It can claim no more than the interest of the unknown or absentee owner.

392 A.2d at 329.

We think this reasoning applies to this case. The drafts in this case were offered in settlement of unliquidated and unconced-ed claims. They do not represent moneys due and owing to the payee. Therefore, the amounts thereof do not represent funds abandoned to which the commissioner is entitled under the act.

The judgment of the trial court is reversed, and the cause is remanded.

REVERSED AND REMANDED.

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

      . As used in this Stipulation, the words “for the purpose of settlement,” or words of similar import, are not intended to indicate that the drafts were or were not issued pursuant to a separate negotiated settlement agreement whereby Allstate agreed to pay a certain amount and the claimant released Allstate from liability on the claim. [This statement appears in the stipulation.]

       This fact distinguishes this case from Blue Cross of Northern California v. Cory, - Cal.App.3d -, 175 Cal.Rptr. 901 [1981]. In that case it is expressly stated: “When Blue Cross mailed a check to . . . [a] . . . subscriber, it was not as an offer to settle an unliquidated claim, but as payment of an unconditional obligation.” (Footnote 3, finding number 7.)