author: WATKINS, Judge.

text:
    Leroy MILLER v. UNDERWRITERS AT LLOYD’S LONDON, ENGLAND.
    No. 13884.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Donald H. Lee, Seal, Lee, Branch & Brown, Bogalusa, for plaintiff.
    William A. Porteous III, Porteous, Tole-dano, Hainkel & Johnson, New Orleans, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a suit brought by Leroy Miller to recover for the destruction by fire of a certain tenant dwelling owned by plaintiff, which loss plaintiff contends was covered by a fire insurance policy issued by Underwriters at Lloyd’s, London, England. Defendant contends there was no coverage because the policy described the property as “owner occupied” and because the property had been “vacant or unoccupied” for more than 60 days in violation of the “permission granted clause” in the policy. The trial court found there was coverage under the policy, and rendered judgment accordingly, awarding plaintiff the sum of $5,000.00. We reverse, and dismiss plaintiff’s suit.

The property that was destroyed by fire on November 13, 1978, was located- at 1505 Dan Street, Bogalusa, Louisiana. Plaintiff and his wife lived in the Pooles Bluff Community, some four miles away. Plaintiff’s agent, James Stevenson, president of GAR Real Estate & Insurance Agency, Inc., Bo-galusa, Louisiana had secured fire coverage on the tenant dwelling since 1969. He was fully aware of the fact it was not occupied by Miller. The last policy issued was a surplus line insurance policy with the insurer being defendant, Underwriters at Lloyd’s. This policy which commenced February 1, 1978, was obtained by GAR through Dupuy Busching General Agency, Inc., Jackson, Mississippi, an insurance broker. The policy was delivered to First Financial Services, Bogalusa, mortgagee of the tenant property, and a certificate of insurance was delivered to Miller. Both the policy and certificate indicated the property was “owner occupied”. In addition, a “permission granted clause” was contained in an endorsement attached to the policy, which clause read as follows:

“PERMISSION GRANTED CLAUSE (OCCUPANCY CLAUSE): In the event the property insured under this policy becomes vacant or unoccupied or if there is a change of occupancy from that indicated in the policy for more than 60 days, then the insured must notify the Company in writing and the insured’s failure to so notify the Company in writing will render the coverage on that item null and void and the insured shall be entitled to a pro rata return premium as of that date, except, if this policy shall cover more than four dwellings of four families or less, the vacancy or unoccupancy period is extended to 90 days. Vacancy or unoccu-pancy of part of the units of a multiple family dwelling shall not be deemed as vacancy or unoccupancy.”

The last tenant to reside on the premises was Gus Tynes, who moved out about June 27, 1978. All utilities were cut off, and all furnishings removed. Miller went to the V.A. Hospital intermittently for about a month after Tynes vacated the premises. He then commenced a rather protracted period of repairs to the premises, the repairs still having been in progress, although proceeding extremely slowly, at the time of the fire. Miller testified that he slept on the premises in a sleeping bag on several occasions.

We find that the premises were not owner occupied in compliance with the terms of the policy. Clearly the premises were occupied by a tenant, not by the owner at the time when the policy was issued and the certificate of insurance was delivered to Miller. Miller appears not to have called GAR’s, Dupuy Busching’s, or Underwriters’ attention to the incorrectness of the description “owner occupied”. We would find lack of owner occupancy alone sufficient reason to hold there was no coverage, but in addition, we see, Miller failed to notify Underwriters of the fact that the property had been “vacant or unoccupied” for more than 60 days, thereby violating the permission granted clause of the policy.

Appellee cites Burrell v. Seguros America Banamex, S.A., 316 So.2d 177 (La. App. 4th Cir.1975), writ refused 320 So.2d 561 (1975), to support his claim. In that case it was held that an apartment was not “vacant or unoccupied”, as the daughter of the insured owner visited the apartment to clean it and to exchange clothes once a week. Appellee argues that similarly in the present case Miller visited the tenant house to make repairs. However, both the policy in the present case and that in Burrell in the “vacant or unoccupied” clause used the disjunctive “or”. In the present case, the premises were clearly “vacant”, as the tenant, Tynes, had moved everything out. In Burrell, clothes and furniture were still in the apartment. Furthermore, even if the disjunctive had not been used, the premises in the present case were much more clearly “unoccupied”, as there is no showing that Miller visited the house regularly to make repairs, and, more important, the making over a long period of time of rather extensive repairs, which were of such a nature that they could not have been easily made had there been a tenant occupying the house, is much less consistent with an analysis of occupancy than the visiting of an apartment to clean it and exchange clothes.

Furthermore, we see, in Boyette v. Underwriters at Lloyd’s, London, 372 So.2d 592 (La.App.3d Cir.1979), a more recent case than Burrell, although the product of a different circuit, the reasoning in Burrell was questioned. In Boyette, some items of furniture and some clothes were moved onto the insured premises by the owner s son and daughter-in-law after the premises had been unoccupied for from two to three months. The house was consumed by fire before further steps were taken to move in. It was held that the premises were “unoccupied”. In the present case, there were no furnishings on the premises, and thus the facts more strongly indicate lack of occupancy than those that the Third Circuit was confronted with in Boyette.

We note that in the present case the insurance agent, GAR, was largely responsible for the mistake found in the policy and certificate in their indicating that the premises were “owner occupied”, as that description was apparently taken from the application prepared by GAR. Furthermore, only the certificate (which did not contain the permission granted clause), was delivered to Miller, the failure to deliver at least a copy of the policy to Miller (the original was delivered to the mortgagee) being the result of apparent negligence on the part of GAR. We are thus faced with the question of whether or not GAR’s negligence was imputable to Underwriters.

A similar problem arose in Security Transfer Co. v. Insured Lloyds Company, 225 So.2d 284 (La.App. 4th Cir.1969). Security held a surplus line automobile collision policy under which Insured Lloyds was the insurer. An insurance agency in New Orleans, Leaman & Reynolds, had obtained the policy through a broker in Bossier city, which signed and delivered the policy on behalf of Insured Lloyds. The policy required that proof of loss be filed with Insured Lloyds within 60 days after the occurrence of loss. Security’s insured tractor was damaged in a collision, and Security reported the collision to Leaman & Reynolds and also the adjuster. Insured Lloyds was never notified by Security, the agent, or the adjuster, within the required 60 days, and proper investigation of the collision was thereby prevented. Insured Lloyds contended that it had had no notice, and refused payment of the loss. It was held that notice to the agent, Leaman & Reynolds, which had obtained the policy of insurance as surplus line insurance, was not notice to Insured Lloyds or the broker, as Leaman & Reynolds was an agent of Security, not an agent of Insured Lloyds. Similarly, in the present case we hold that GAR was acting as Miller’s agent not Underwriters’ agent in obtaining the surplus line insurance through the broker, Dupuy Busching, and that Underwriters is in no way responsible for GAR’s negligence. We might arrive at a contrary conclusion had a policy of insurance obtained through a surplus line broker as intermediary not been involved, or had the local agent GAR used a form supplied to it by Underwriters in applying for the policy of fire insurance. Cf. Tiner v. Aetna Life Ins. Co., 291 So.2d 774 (La.1974). However, unlike the facts presented in finer, there is nothing in the present case that would indicate that any form of agency, either under the statutory laws regulating insurance or under the Codal laws regulating mandate, existed between GAR and the insurer, Underwriters. Thus, GAR’s negligence was in no way imputable to Underwriters.

The trial court found that there had been proper occupancy within policy provisions and that in any event the mistake of the agent GAR was imputable to Underwriters. We cannot agree. Under the facts of this case, as to which there is no dispute, we find for the foregoing reasons that the legal conclusions reached by the trial judge were incorrect.

We, therefore, reverse the judgment of the trial court, and dismiss plaintiff-appel-lee’s suit, at his cost.

REVERSED.


source: Caselaw Access Project

license: Public Domain

text:
    A. A. HOME IMPROVEMENT CO., INC. v. HIDE-A-WAY LAKE CLUB, INC. & Crystal Systems, Inc.
    No. 52739.
    Supreme Court of Mississippi.
    May 20, 1981.
    Bobby J. Garraway, Lumberton, for appellant.
    J. Edmand Pace, Ray M. Stewart, Stewart, Burks & Pace, Picayune, for appellees.
   Appeal from Chancery Court, Pearl River County; Michael Sullivan, Chancellor.

Before ROBERTSON, P. J., and SUGG and BOWLING, JJ.

AFFIRMED.


author: HAWKINS, Justice,

text:
    Leo DUNAWAY v. STATE of Mississippi.
    No. 52500.
    Supreme Court of Mississippi.
    May 27, 1981.
    Keith Starrett, Magnolia, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Appellant Leo Dunaway was convicted by the Circuit Court of Pike County of the crime of manslaughter by culpable negligence in the operation of an automobile under Mississippi Code Annotated § 97-3-47 (1972), and sentenced to serve a term of 8 years, with 4 years suspended. We affirm. The accident occurred on October 20, 1979, appellant was indicted by the grand jury on October 21, 1979, and his trial was held at the March Term, 1980 of that court, on March 26.

Appellant does not challenge the sufficiency of the evidence to support the verdict. He assigns two errors:

First, the amendment of the indictment by the State over appellant’s objection at the conclusion of the State’s case, without placing the order for amendment on the minutes of the court.

At the conclusion of the trial, and before submission of the case to the jury, the State made a motion to amend the indictment by adding the name “Jr.” to the name of the victim “Earl N. O’Neal,” which the court permitted the State to do on the face of the indictment, over the objection of the defendant. No point was made at that time to the trial judge that an order authorizing the amendment had not been placed on the minutes as provided by Mississippi Code Annotated § 99-17-15 (1972). Furthermore, in his motion for a new trial, appellant did not assign this error.

Under our decisions in Jones v. State, 279 So.2d 594 (Miss.1973) and Sturgis v. State, 379 So.2d 534 (Miss.1980), this assignment of error cannot be first raised on appeal. In Sturgis, p. 537, we said:

“It is clear from this language that, under the circumstances above presented, a defendant must specifically bring the absence of an order on the minutes of the court allowing the amendment to the attention of the trial court, or the error will be waived and it may not be raised for the first time on appeal.”

Second, the court erred in overruling the motion to dismiss the indictment for the reason that the trial on the indictment constituted double jeopardy. The only reason we discuss this assignment is to emphasize to enterprising defense counsel what the learned circuit court judge stated: “. .. it just won’t work,” under circumstances such as revealed in this case.

A patrolman gave the appellant a uniform traffic citation following the fatal collision, notifying him to appear before Justice Court Judge C. D. Williams on October 22, 1979. Nothing further was done by the State in reference to this citation. On January 7, 1980, appellant’s counsel wrote Judge Williams: “You will find enclosed a check of Leo Dunaway’s wife in the amount of $237.50 which is the amount we discussed that would be necessary to pay the fines called for by the above ticket.”

The docket of the Justice Court shows the defendant having pleaded guilty to a charge of “R. D.” on the 8th of January, 1980. No affidavit was ever lodged against appellant in that court, however, as required by Mississippi Code Annotated § 99-33-3 (1972), and no warrant was ever issued for his arrest under that citation, or on any charge. The appellant never appeared in that court; the judge simply accepted the fine. Neither the arresting officer, the county attorney, nor any person representing the State ever requested that court to take any action. Except for this citation, every action taken by that court was triggered by appellant or his wife, by and through his counsel. We, therefore, hold that no jurisdiction was ever in the justice court to compel appellant to pay any fine in the absence of the affidavit, and furthermore, the activity of appellant or his wife, by and through his counsel, to circumvent a prosecution under an indictment for manslaughter by voluntary payment of a traffic citation precludes any assertion of a constitutional violation of double jeopardy. The State of Mississippi is entitled to due process of law in its prosecutions.

This case is therefore affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    COMMERCIAL NATIONAL BANK v. FLEETWOOD HOMES OF MISSISSIPPI, INC.
    No. 52628.
    Supreme Court of Mississippi.
    May 27, 1981.

      L. Carl Hagwood, Campbell & DeLong, Philip B. Terney, Robertshaw & Merideth, Greenville, for appellant.
    Jerome C. Hafter, Lake, Tindall, Hunger & Thackston, Greenville, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The appellee, Fleetwood Homes of Mississippi, Inc., filed a. bill of complaint in the Washington County Chancery Court on November 10,1978. On November 9,1979, the cause was transferred by order of the chancery court to the circuit court upon a finding by the chancellor that appellee had an adequate remedy at law. On December 10, 1979, the entire court file was transferred from the chancery clerk’s office to the circuit clerk’s office and the circuit clerk marked the cause filed. Appellee did not file a declaration in the circuit court within thirty days after the cause was transferred; however, discovery continued after the transfer and appellee had the case set for trial.

On July 1, 1980, appellant, Commercial National Bank, filed a motion to dismiss on the ground that appellee failed to file a declaration within thirty days of the transfer of the case from chancery court to circuit court as required by section 11-1-39 Mississippi Code Annotated (1972).

The circuit court dismissed the case without prejudice and appellant argues on direct appeal that the dismissal should have been with prejudice. Appellee filed a cross-appeal solely to preserve its alternative positions that the circuit court should have held (1) appellee had complied with section 11-1-39, or (2) if the pleadings filed by appel-lee were defective, appellee should have been permitted to amend by filing a declaration. Appellee concedes its cross-appeal should be considered only if we hold the dismissal without prejudice was error.

Appellant relies on Warren v. Smith-Vaniz, 382 So.2d 1088 (Miss.1980). In that case Warren filed a bill of complaint on April 6, 1978, on a cause of action which accrued on July 1, 1975. The case was transferred to the circuit court on August 23, 1978, where the pleadings lay dormant until April 16, 1979, when the defendants filed a motion to dismiss because Warren failed to file a declaration within thirty days of the transfer as required by section 11-1-39. Warren filed a declaration on April 23, 1979, which was given a new docket number, and defendants asserted a plea in bar to the declaration invoking the three year statute of limitations on open accounts. On May 4, 1979, the court entered its order in the transferred cause sustaining the motion to dismiss without prejudice. On June 12, 1979, the court sustained the plea in bar stating it had dismissed the case on May 4, 1979, because a declaration had not been filed within' the time required by section 11-1-39.

The issue before the Court in Warren, supra, was whether the trial court properly sustained the plea in bar. The question of whether the case which had been transferred from chancery court to circuit court should have been dismissed with prejudice was not before us on appeal.

Appellant relies on the following statement in Warren:

Although we think the order of dismissal should have been with prejudice, this error was cured by the circuit judge’s later order of June 12 sustaining the plea in bar. (382 So.2d at 1089).

This statement was not necessary for decision of the issue then presented to the Court. The only issue was whether the three year statute of limitations had run between the accrual of the cause of action on July 1, 1975, and the filing of the declaration on April 23, 1979.

The decision in Warren was rendered on April 23, 1980, after the present case had been transferred to circuit court. Before Warren was published in the June 5, 1980, Southern Reporter Advance Sheet, appellant had not raised any objection to the transfer procedure. The case had been set for trial on July 28,1980, at 9:00 a. m. by an order entered during the May, 1980 term continuing the case and granting a definite presetting for the July, 1980 term.

Appellee argues that dismissal with prejudice would cause a grossly inequitable result in barring a viable cause of action, well within the statute of limitations, on the basis of alleged technical defects in the form of the pleadings. Appellee contends that if section 11-1-39 is construed to require dismissal with prejudice of any cause of action from chancery to circuit court, or vice versa, when the plaintiff or defendant has not filed an amended pleading to comply with the rules of pleading in the transferee court, such construction would make the statute highly penal.

Mississippi jurisprudence does not favor penal statutes and in Quick Shops of Mississippi, Inc. v. Bruce, 232 So.2d 351 (Miss. 1970), we held that it is a fundamental principle of statutory construction that statutes penal in nature must be strictly construed. In Entrican v. King, 289 So.2d 913, 914 (Miss.1974) we said:

Since penalties are not favored in the law, no penalty will be imposed unless it shall be clearly provided for, and statutes will be strictly construed against the imposition of penalty.

If we construe the statute as contended by the appellant, and as indicated by our decision in Warren, the statute would be highly penal. This is particularly true because the statute, if so construed, would cause a forfeiture, on procedural grounds, of a viable cause of action.

Section 11-1-39 does not provide for a dismissal of the action where the plaintiff or complainant fails to file his declaration or bill of complaint in the transferee court. If a complainant or plaintiff fails to file his declaration or bill in the court to which the case has been transferred within thirty days or within such time as the transferee court shall fix, the case would be in the same posture as if no case had been filed and would be subject to dismissal without prejudice.

The statute was not intended as a penal statute and we should not give it a construction which would make it penal so as to defeat a viable cause of action or a defense on procedural grounds. We therefore hold that a case transferred from circuit to chancery court, or vice versa, shall stand dismissed without prejudice if the complainant or plaintiff fails to file his declaration or bill in the transferee court within thirty days or within the time fixed by the transferee court.

We therefore decline to follow the dictum in Warren quoted above and affirm the action of the trial judge in dismissing the case without prejudice.

We do not reach the cross assignments of error because they were filed solely to preserve the alternative positions of appellee.

AFFIRMED.

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

      . § 11-1-39. Proceedings in transferred causes.

      When the papers have been deposited in the court to which the cause was transferred, all the parties to the proceeding shall take notice of the fact of the transfer; and the complainant or plaintiff shall file his declaration or bill in the court to which the cause was transferred within thirty days, unless the court, judge, or chancellor shall restrict the time or grant further time; and the defendant shall plead within thirty days thereafter, unless the time, by like means, be restricted or extended. And the cause shall be proceeded with as if it had been originally begun in that court, as of the date on which the cause was originally instituted.


text:
    Richard Tommy HUTCHINS v. Mary Louise Hawkins McDANIEL and Alfred Ray McDaniel.
    No. 52768.
    Supreme Court of Mississippi.
    May 27, 1981.
    Barry H. Powell and Ann Moore, Jackson, for appellant.
    Robert W. King, King & Spencer, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Roy Lee THOMAS v. STATE of Mississippi.
    No. 52715.
    Supreme Court of Mississippi.
    May 27, 1981.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Oren Eugene BUSKIRK v. Jutta Susanne BUSKIRK.
    No. 52712.
    Supreme Court of Mississippi.
    May 27, 1981.
    Gary L. Carnathan, Carnathan, Davidson & Wright, Tupelo, for appellant.
    Thomas J. Gardner, III, Tupelo, for ap-pellee.
   Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Eddie Ray PARKER v. STATE of Mississippi.
    No. 52654.
    Supreme Court of Mississippi.
    May 27, 1981.
    Elbert E. Haley, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Rehearing Denied July 29,1981.
   Appeal from Circuit Court, Claiborne County; John W. Prewitt, Judge.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Billy JORDAN v. Al RICE, President, Board of Supervisors of Lee County, Miss.
    No. 52733.
    Supreme Court of Mississippi.
    May 27, 1981.
    John L. Long, Tupelo, for appellant.
    W. P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Joseph MESSNER et al. v. Billy DAVIS et al.
    No. 52734.
    Supreme Court of Mississippi.
    May 27, 1981.
    John L. Long, Tupelo, for appellant.
    W. P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    CRESTLAWN MEMORIAL PARK, INC. v. CITY OF OCEAN SPRINGS, a Mississippi Corporation.
    No. 52716.
    Supreme Court of Mississippi.
    May 27, 1981.
    Lyle M. Page, Page, Mannino & Peresich, Biloxi, for appellant.
    James W. Wilson, Ocean Springs, for ap-pellee.
   Appeal from Special Eminent Domain Court, Jackson County; O. L. McLeod, County Judge.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    James N. EMBRY v. Harry L. BAKER, Sr., et al.
    No. 52690.
    Supreme Court of Mississippi.
    May 27, 1981.
    Everette G. Truly, Adams, Forman, Truly, Ward, Smith & Bramlette, Natchez, R. M. Truly, Jr., Fayette, for appellant.
    John E. Mulhearn, Jr., Mulhearn & Mulh-earn, Natchez, for appellee.
   Appeal from Circuit Court, Jefferson County; Edwin E. Benoist, Jr., Judge.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


author: BEATTY, Justice.

text:
    DORCAL, INC., an Alabama Corporation v. XEROX CORPORATION et al.
    79-777.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied May 22, 1981.

      Clement J. Cartron, III, of Cartron & Pearson, Huntsville, for appellant.
    John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   BEATTY, Justice.

Appellant Dorcal, Inc. appeals from a lower court judgment finding that appellee Xerox Corporation was not guilty of fraud and deceit in the leasing of one Xerox 6500 color copier. We affirm.

I.

On July 6, 1977, appellant Dorcal, Inc., a graphics design business specializing in commercial advertising and technical artwork, entered into an agreement with ap-pellee Xerox Corporation for the leasing of one Xerox 6500 color copier. Prior to entering this agreement, the principal owners of Dorcal, Dorothy Babb and Carol Frances Allen, were contacted by Butch Patrick, a regional sales representative for Xerox, concerning the availability of the 6500 color copier. At that time, Mrs. Babb and Mrs. Allen had not yet formed Dorcal and were merely in the preliminary stages of establishing their graphics design company. When contacted by Mr. Patrick, they were informed that the Xerox 6500 color copier was a “damn good machine” with multiple applications in their line of work. In addition, Mr. Patrick provided them with a brochure which represented that the 6500 color copier was displacing traditional color processes by providing a rapid, high-quality means of color reproduction. The brochure also delineated various innovative uses of the 6500 color copier in other specialized fields. For example, the brochure represented that the color copier was used by a federal agency to record the progress of tree diseases by making direct color copies of leaves; by a pharmaceutical firm to make color copies of microdilution plates for lab records; by hospitals to make color enlargements of 35mm color slides of vascular pathology and histology specimens for diagnostic and training purposes; by a prominent jewelry manufacturer to prepare immediate catalog papers by copying actual pieces of jewelry and catalog information on the same sheet; and by a fashion design firm to prepare original designs for soft-goods, drapery, floor covering and wallpaper manufacturers. On the basis of these representations, Mrs. Babb and Mrs. Allen, then operating under the informal name of BaCall Graphics, contracted to lease a Xerox 6500 color copier for one year. When their business was subsequently incorporated under the name Dorcal, Inc., this lease agreement became binding on appellant Dorcal.

Under the terms of the lease agreement, Xerox was responsible for servicing the machine while Dorcal was responsible for “general maintenance.” In addition, Dorcal agreed to pay a minimum monthly rental charge and certain other specified charges for equipment placement or removal, equipment transportation, accessories and supplies.

Although Dorcal ordered the 6500 color copier for delivery on August 1, 1977, the copier was not delivered and installed until September 29, 1977. From that time until the middle of December 1977, Dorcal experienced only minor problems with the copier and was completely satisfied with the quality of its color reproductions; however, from mid-December 1977 until it ceased using the machine on May 24, 1978, Dorcal encountered repeated difficulties with the operation of the machine. Dorcal became increasingly displeased with the functioning of the color copier, frequently complaining of the appearance of magenta streaks and cyan spots on its color copies. In addition, Dorcal complained of the copier’s inability to reproduce certain specific colors and half tones.

In an effort to alleviate these difficulties, Dorcal contacted various representatives of Xerox and requested that the copier either be repaired or replaced. As a result of these requests, Xerox made numerous service calls and had several technical representatives inspect the machine. The frequency of these service calls and inspections, as recorded by Dorcal, varied from every two to fourteen days, with approximately twenty service calls being made over the four-months period extending from February 1st to May 24th, 1978. When Dorcal was never able to achieve a satisfactory servicing of the machine, it ceased using the copier on May 24, 1978.

On September 21, 1978, Dorcal filed a complaint in the Circuit Court of Madison County seeking damages against Xerox for pecuniary injuries allegedly sustained in the leasing of the Xerox 6500 color copier. Specifically, Dorcal sought damages for breach of express warranty, breach of implied warranty, fraud by misrepresentation, fraud by suppression of a material fact, fraud by intentional deceit, willful deceit with intent to induce Dorcal to alter its position, and breach of the lease agreement. Dorcal demanded judgment in the amount of $150,000 for loss of income; loss of extensive advertising expenses; loss of good will and business reputation; loss of current and prospective accounts; and loss of considerable supplies and labor.

In response to Dorcal’s complaint, Xerox filed a motion to dismiss which was overruled by the trial court on October 20,1978. Xerox did not file its answer to the complaint until December 21, 1978, ninety-one days after the filing of the complaint and sixty-two days after the trial court overruled the motion to dismiss. In its answer Xerox entered both general and specific denials and asserted the defense of contributory negligence. In addition, Xerox asserted a compulsory counterclaim seeking damages from Dorcal for breach of the lease agreement and for failure to pay certain fees and charges incurred under the terms of that agreement.

No additional pleadings were filed by the parties until September 18, 1979 when Dorcal filed its answer to Xerox’s counterclaim. Prior to that time, on March 27, 1979, Dorcal filed a demand for a jury trial pursuant to Rule 38(b), ARCP. On September 10, 1979, the trial court granted Xerox’s motion to strike the demand as being untimely filed. Dorcal again asserted its demand for a jury trial on November 2,1979 by filing a motion requesting the trial court to reconsider its decision of September 10th. That motion was overruled by the trial court and the cause proceeded to trial with the trial court hearing evidence ore tenus.

At trial Dorcal offered, among other things, the testimony of seven different customers who contracted with Dorcal for color reproduction services. As a general rule, these individuals testified concerning the poor quality of the color copies produced by the 6500 color copier and the unacceptability of these copies for business purposes. Several of these witnesses also testified as to letters they had written to Dorcal expressing their intent to take their business elsewhere in the future. Dorcal also offered the testimony of Paul Putman, a certified public accountant, who conducted a ratio analysis of Dorcal’s business records to determine the extent of lost revenues resulting from the inoperability of the color copier. On the basis of his calculation, which he admitted were purely subjective, Mr. Putman estimated that Dorcal lost revenues in the amount of $17,152.58.

In rebuttal, Xerox presented the testimony of several technical representatives who dealt with Dorcal. Each of these individuals had inspected or serviced the machine on some prior occasion. Each testified that, in their opinion, the color copier was functioning normally at the time they inspected it. In addition, Rebecca Farmer (a color analyst), Ronald D. Ivey (a senior technical representative) and Richard Hamiter (a service technician) individually testified that the major difficulty with the machine appeared to result from Dorcal’s constant adjustment of the machine to achieve specific colors. Ms. Farmer stated that, in her opinion, Dorcal’s expectations as to the machine’s capabilities were much too high.

On June 30, 1980, the trial court entered its final judgment stating that it was of the opinion that neither party was entitled to recover from the other. It, therefore, found in favor of Xerox on Dorcal's complaint and in favor of Dorcal on Xerox’s counterclaim. Dorcal now appeals.

II.

The fundamental issue concerns the trial court's action in striking Dorcal’s demand for a jury trial. At the very outset, we recognize the intention of the Alabama Rules of Civil Procedure that nothing abridge the fundamental right to a jury trial as declared by our Constitution and by statute. Rule 38(a), ARCP; Mobley v. Moore, Ala., 350 So.2d 414 (1977). However, Rule 38(d), ARCP provides in clear and unambiguous terms that “[t]he failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury.” The formal requisites of this demand are delineated in 38(b) as follows:

Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 30 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party, and such demand shall be deemed to be a demand for a struck jury.

The question in this case is whether Dorcal’s demand was properly filed within the time limitation established by this rule.

Dorcal contends that its initial demand for a jury trial was timely insofar as it was filed prior to service of the “last pleading” directed to the issues. As authority for this proposition, Dorcal relies heavily on the recent decision of Baggett v. Sims, Ala., 387 So.2d 792 (1980) wherein this Court held that a demand for a jury trial is effective to compel a jury trial on all issues if made within 30 days after service of a reply to a compulsory counterclaim. Dorcal argues that since its demand was filed prior to its answer to Xerox’s compulsory counterclaim, the trial court erred in striking the demand as being untimely filed. We disagree.

In reviewing the propriety of the trial court’s action in striking Dorcal’s jury demand, it is imperative that we focus upon the date of service of the parties’ respective pleadings. Rule 38(b) establishes a time limitation for making a jury demand which is entirely dependent upon the date of service of the “last pleading directed to such issue.” In Veizaga v. National Board for Respiratory Therapy, 27 FR Serv.2d 426 (N.D.Ill.1979), the court, construing the comparable federal rule, noted that this rule does not limit the right to demand a jury to nondefaulting parties, and does not require the last pleading directed to the issues to have been timely filed. In this way, Rule 38(b) has been said to be “unlimited in the generality of its ostensible scope.” Christiansen v. Interstate Motor Lines, 20 F.R.D. 105 (D.Neb.1956) (also construing Rule 38(b), FRCP).

At the time Dorcal filed its original demand, the only pleadings confronting the trial court were Dorcal’s complaint and Xerox’s answer and compulsory counterclaim. Of these pleadings, Xerox’s answer and counterclaim was quite clearly the last pleading directed to the issues. To be sure, Xerox’s compulsory counterclaim constituted a pleading to which a responsive pleading was required; however, when Dorcal made its initial demand it had not yet filed its reply to the compulsory counterclaim, and there was no basis for assuming that it would ever do so. By the time Xerox filed its motion to strike the jury demand, 211 days had already elapsed since the filing of its answer. In view of these facts, the trial court could reasonably have concluded that the complaint, answer and counterclaim represented the final pleadings of the parties.

It is well-recognized that where the complaint and answer are the only pleadings directed to the issues, the time for making a jury demand runs from the date of service of the answer. Ex parte Reliance Insurance Co., Ala., 380 So.2d 266 (1980); 9 C. Wright and A. Miller, Federal Practice and Procedure § 2320 (1971); 2B W. Barron & A. Holtzoff, Federal Practice and Procedure § 878 (1961). An analogous situation exists here where a complaint, answer and compulsory counterclaim have been filed, but the complaining party has failed to reply to the allegations of the counterclaim. Since it is impossible for the trial court to predict whether an additional pleading will eventually be filed in response to the counterclaim, the answer asserting the counterclaim must be considered the “last pleading directed to such issue.” The thirty-day limitation must, therefore, run from the date of service of the answer.

In the instant case, Dorcal filed its demand for a jury trial ninety-six days after service of the answer. Under these circumstances, the demand was clearly untimely, cf., Larson v. General Motors Corp., 134 F.2d 450 (2nd Cir. 1943), and potentially subject to being stricken upon motion. Herzig v. Twentieth Century-Fox Corp., 129 F.Supp. 845 (S.D.Cal.1955); Barker v. Upjohn Co., 263 F.Supp. 985 (S.D.Tex.1966). In view of the pleadings confronting the trial court, we cannot hold that its action in striking the demand filed 96 days after service of the answer constituted a clear abuse of discretion. By failing to file its demand within thirty days after the answer, Dorcal effectively waived its right to demand a jury.

When Dorcal subsequently filed its belated reply to the compulsory counterclaim, a new “last pleading” was introduced bearing upon Dorcal’s right to demand a jury trial. By being permitted to file its reply to the counterclaim 271 days after service of the answer containing it Dorcal effectively extended the time for filing the “last pleading,” and thus the time in which to demand a jury. Cf., Dasho v. Susquehanna Corp., 461 F.2d 11 (7th Cir. 1972). This pleading did not, however, have the effect of reviving the former demand. On the basis of the pleadings previously confronting the court, that demand had been properly stricken and was no longer in existence.

Since Dorcal had previously failed to plead or otherwise defend, Xerox could have precluded this additional pleading by securing an entry of default on the counterclaim pursuant to Rule 55(a), ARCP. The general effect of an entry of default is that of a decree pro confesso or a judgment by nil dicit at common law. 6 Moore’s Federal Practice ¶ 55.03[2] at 55-32 (2nd ed. 1976); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2681 (1971). Under a decree pro confesso, the defaulting party loses his standing in court, cannot appear in any way, cannot adduce any evidence and cannot be heard at the final hearing. Clifton v. Tomb, 21 F.2d 893 (4th Cir. 1927). By failing to avail itself of this procedure, Xerox permitted Dorcal to file its reply to the compulsory counterclaim, thereby establishing an additional time period within which to demand a jury trial. Pursuant to Bag-gett v. Sims, supra, a jury demand made within 30 days after service of this reply would have been effective to compel a jury trial on all issues raised by the pleadings.

Nevertheless, Dorcal failed to file a jury demand within 30 days after service of its reply. Instead, on November 2, 1979, 45 days after service of the reply, Dorcal filed a motion requesting the trial court to reconsider its action in striking its original demand. Since we agree that the trial court’s former action was appropriate in view of the pleadings then confronting the trial court, this motion was properly overruled. Even if the demand had been reinstated, it would have been made beyond the new 30-day time limit. Having reviewed the entirety of the parties’ respective pleadings, we conclude, therefore, that the trial court acted properly in striking Dorcal’s request for a jury trial.

III.

A secondary issue raised by Dorcal concerns the trial court’s action in sustaining Xerox’s objections to the testimony of James V. Burris, the owner of a photocopying business not a party to the instant case. Like Dorcal, Mr. Burris had leased a Xerox 6500 color copier and had incurred repeated difficulties with his machine. When Dorcal sought to question Mr. Burris concerning these difficulties, the following transpired:

Q And does your business and has it in the past had the services of a Xerox 6500 Color Copier?
A Yes, it has.
Q Okay sir. Would you describe the service that you have received on your machine?
A We have had the machine for just over two years, it’s on an annual contract. It’s renewed each year. So far we have renewed it. If you want a one word description I would say certainly something less than satisfactory.
Q Have you had any repeat problems with your machine?
MR. ANGE: Just for the record we object, it relates to another machine at another place of business, and doesn’t seem to me to be material or relevant to this case. And we object on that basis.
MR. CARTRON: May I respond to that? I am offering it for the purpose of showing intent, scheme or design.
THE COURT: I sustain it.
Q Have you had the machine replaced in the past?
A Yes.
MR. ANGE: We object to that, Your Honor, whether his was—
THE COURT: Sustained.

As a general rule, the doctrine of res inter alios acta operates to exclude evidence of acts and declarations of nonparties, or dealings of parties with nonparties, on grounds of irrelevancy. Loftin’s Rent-All, Inc. v. Universal Petroleum, Ala.Civ. App., 344 So.2d 781 (1977). This rule is based, in part, upon the presumption that such collateral facts are incapable of affording any reasonable presumption or inference as to the principal matters in dispute. Id. This general rule is subject, however, to the limitation that when one’s motion or intent is at issue, his acts, statements and conduct on other occasions which have a bearing upon his motion or intention upon the occasion in question are competent evidence. See generally, 29 Am.Jur.2d Evi dence § 365 (1967). In fraud cases, where intent, knowledge and scienter constitute essential elements of the offense, evidence of similar frauds and misrepresentations are commonly admissible. Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961); Johnson v. Day, 230 Ala. 165, 160 So. 340 (1935); 37 Am.Jur.2d Fraud and Deceit § 456 (1968). In passing upon the admissibility of such collateral matters, great latitude must be extended so as to afford the admission of any relevant evidence bearing upon the ultimate issue of fraud. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975).

In the instant case, the trial court sustained Xerox’s objection to Mr. Burris’s testimony on grounds that the testimony was irrelevant and immaterial. Though we recognize the need to admit any probative evidence, however slight, bearing upon the issue of Xerox’s fraud, questions of materiality, relevancy and remoteness rest largely within the discretion of the trial court. Costarides v. Miller, Ala., 374 So.2d 1335 (1979); Knabe v. State, 285 Ala. 321, 231 So.2d 887 (1970). Therefore, its ruling concerning relevancy must not be disturbed on appeal unless such discretion had been grossly abused.

We are not convinced that the trial court acted improperly in sustaining the objection to Mr. Burris’s testimony, especially in view of Dorcal’s meager offer of proof. In response to Xerox’s objection, Dorcal merely stated that it was offering the testimony “for the purpose of showing intent, scheme or design.” This offer of proof did not refer to any specific comparisons proposed to be proved through the witness nor was it otherwise specific enough to make its relevancy apparent to the trial court. Redwine v. State, 258 Ala. 196, 61 So.2d 724 (1952). Without more, we hold that the trial court did not abuse its discretion in sustaining the objection.

IV.

The final two issues raised by Dorcal basically challenge the trial court’s conclusion that Xerox was not guilty of any culpable conduct. Dorcal contends that the trial court wholly ignored the legal principles applicable to the evidence. We agree that there was testimony which indicated that Xerox may have misrepresented the capabilities of the color copier; however, there is equally compelling evidence which indicated that Dorcal’s difficulties with the Xerox 6500 color copier resulted from operator error and misuse. Likewise, there is evidence that the machine functioned normally, although not within Dorcal’s expectations. The trial court, hearing the testimony ore tenus, resolved this conflicting evidence in favor of Xerox. We are simply not persuaded that this decision was palpably erroneous or manifestly unjust.

We, therefore, conclude that the judgment of the lower court is due to be, and it is hereby, affirmed.

AFFIRMED.

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


text:
    Sylvester GREEN and Linda Green v. STANDARD FIRE INSURANCE COMPANY OF ALABAMA, a corporation.
    80-18.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied May 22, 1981.

      Roy M. Johnson, III of Perdue, Johnson, Boone & Johnson, Birmingham, for appellants.
    Tom E. Ellis of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.
   BEATTY, Justice.

A declaratory judgment was rendered in favor of the plaintiff, Standard Fire Insurance Company of Alabama (Standard Fire), and against the defendants (the Greens), holding that Standard Fire was not obligated to pay any sum to the defendants, nor to defend any suits against them arising out of an automobile accident, because the defendants’ insurance policy had been can-celled prior to the date of the accident. We affirm in part, reverse in part and remand.

On February 6,1978 Standard Fire issued a policy of automobile comprehensive, collision and liability insurance to Sylvester and Linda Green. The policy had a expiration date of February 6,1979. On November 14, 1978 a notice was mailed to the Greens at the proper address stating that their policy was being cancelled effective November 26, 1978. On December 6, 1978, Linda Green was involved in a car accident which would be covered by the policy if it were still in effect.

Standard Fire brought a declaratory judgment action in the Shelby County Circuit Court on February 8, 1979, claiming that it had no obligation to pay any claims to the Greens or to defend any suits against them under the cancelled policy. The Greens filed a counter-claim asserting that they were covered by the policy at the time of the accident. Ford Motor Credit Company, a lienholder on the Green’s car, consented to a judgment against it in favor of the plaintiff.

At trial after the plaintiff had presented its evidence, the defendants moved for a directed verdict, which motion was denied. The defendants presented no further evidence. The trial court then rendered judgment in favor of the plaintiff, finding that Standard Fire was not obligated to pay any sum to the Greens nor to defend any suits arising out of the automobile accident in question. The defendants moved for a new trial or in the alternative for a judgment notwithstanding the verdict, both of which were denied. This appeal ensued.

Standard Fire filed a motion to strike a portion of the reply brief filed by the defendants with this Court on the ground that the reply brief contains material outside the record. In their reply brief the defendants included two documents which were not in evidence, but which they contended were examples of possible reasonable inferences of what the cancellation notice sent to the defendants and an insurance statement received by the defendants must have resembled. Although the defendants clearly stated in brief that these documents were not in evidence and thus did not attempt to deceive the Court, it is well settled in Alabama that an appellate court will not consider matters outside the record. American Benefit Life Insurance Co. v. Ussery, Ala., 373 So.2d 824 (1979). This Court is limited to a review of the record alone and “the record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record.” Cooper v. Adams, 295 Ala. 58, 322 So.2d 706 (1975). Since the evidence here was improperly submitted, the plaintiff’s motion to strike is hereby granted and the proffered evidence will not be considered.

It is clear that when an insurer seeks judgment declaring that it is not required to defend in a pending lawsuit growing out of an automobile accident, the insurer has the burden of proving the allegations of its complaint. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Cofield, 274 Ala. 299, 148 So.2d 226 (1962). The primary issue here is whether the plaintiff met its burden of proving that the liability portion of the insurance policy in question was effectively and legally can-celled.

Code of 1975, § 27-23-21, reads as follows:

(a) No notice of cancellation of a policy of automobile liability insurance shall be effective unless it is based on one or more of the following reasons:
(1) Nonpayment of premium;
(b) This section shall not apply to any policy of automobile liability insurance which has been in effect less than 60 days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy.

Code of 1975, § 27-23-23, continues by stating:

No notice of cancellation of a policy to which section 27-23-21 applies shall be effective unless mailed or delivered by the insurer to the named insured at least 20 days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation accompanied by the reason therefor shall be given. Unless the reason, or reasons, accompany or are included in the notice of cancellation, the notice of cancellation shall state, or be accompanied by a statement, that upon written request of the named insured, mailed or delivered to the insurer not less than 15 days prior to the effective date of cancellation, the insurer will specify the reason, or reasons, for such cancellation.

The policy in question became effective on February 6, 1978 and the cancellation notice was mailed on November 14, 1978. Thus it is clear that the policy had been in effect more than 60 days prior to the time notice of cancellation was mailed.

The defendants correctly urge that in order to prove a valid cancellation of an automobile liability insurance policy the plaintiff must prove that cancellation was based on one of the reasons listed in Code of 1975, § 27-23-21. See American Service Mutual Insurance Co. v. Grizzard, Ala.Civ. App., 356 So.2d 191 (1978). The defendants contend that the plaintiff’s complaint merely stated that the policy was cancelled “at the agent’s request,” and that since “at the agent’s request” is not a valid ground for cancellation under § 27-23-21, the plaintiff failed to show a valid reason for the cancellation. At trial, however, one Mr. Cahall, testifying for the plaintiff, stated:

Q (BY MR. TOM ELLIS) My question is: do you know the reason given to all parties who received notice of the cancellation? Do you know that? That is the first question?
A Yes, sir.
Q The next question is: what was the reason?
A Non payment of premium.

Although the attorney for the defendants then objected to the question and the objection was sustained, the general rule in Alabama is that when a question is asked of a witness calling for inadmissible matter, it is mandatory upon the party against whom it is offered to object after the question is asked, but before the answer is given. C. Gamble, McElroy’s Alabama Evidence, § 426.01(3) (1977). This Court recognizes that in some situations the witness may answer so quickly that the objector does not have a reasonable chance to make his objection. In that situation, however, the proper solution is for the offended party to both object to the answer and to make a motion that the answer be excluded or stricken from the record. See Strickland v. Strick land, 285 Ala. 693, 235 So.2d 833 (1970); C. Gamble, McElroy’s Alabama Evidence, § 426.01(3) (1977). No motion to strike the answer was made in this case, and thus there was evidence before the trial court on which it could base a finding that the cancellation was based on nonpayment of premiums which is a valid ground under Code of 1975, § 27-23-21.

The defendants also urge that the liability policy was not effectively cancelled because the notice of cancellation did not clearly state the reason for cancellation nor did it contain a provision that upon written request made not less than 15 days prior to the effective date of cancellation, the insurer would specify the reason for cancellation.

The plaintiff contends that the notice of cancellation provided sufficient notice that the reason for the cancellation was nonpayment of premiums when it stated:

If the premium has been paid, premium adjustment will be made as soon as practicable after cancellation becomes effective. If premium has not been paid, a bill for premium earned to the time of cancellation will be forwarded in due course.

Such a clause however is not intended to give notice of the reason for cancellation. Rather it is included to inform the insured that in the event there is an unearned premium at the time of cancellation, the insurer will be in the position of a debtor and will be obligated to pay that unearned premium which arose as a consequence of the cancellation. Boston Insurance Company v. Rash, 263 Ala. 201, 82 So.2d 177 (1955). That clause could appear on a notice or cancellation regardless of the reason for the cancellation.

Thus, the above-quoted statement in the policy in question was not a statement which gave notice of the reason for cancellation, but was a statement which gave notice that “as soon as practicable after cancellation” the insurance company would “settle up” with the policyholder.

It is well settled in Alabama law that the right of the insurer to cancel an insurance policy is strictly construed and the condition imposed upon it with respect to giving notice of cancellation must be strictly performed. Trans-America Insurance Co. v. Wilson, 262 Ala. 532, 80 So.2d 253 (1955). In this case, the insurer failed to meet the affirmative duty imposed by Code of 1975, § 27-23-23, of giving notice of the reason for the cancellation. There was no language on the notice to inform the insured of the reason for cancellation and there was no statement that the insured provide the reasons therefor. For this reason, the cancellation of the automobile liability policy was ineffective. Thus, the portion of the trial court’s decision which held that the plaintiff owed no duty to defend any suits against the defendants arising out of the automobile accident in question must be reversed and remanded to the trial court.

The defendants in their brief concede that the plaintiff did not have to meet the requirements of Code of 1975 §§ 27-23-21, 27-23-23 when cancelling the collision and comprehensive coverages since those Code sections specifically apply to automobile liability policies. The defendants however contend that the issues of the comprehensive and collision coverage should also be decided in their favor because the plaintiff did not prove that the Greens were refunded their unearned premiums. The Greens urge that although the plaintiff could cancel these portions of the policy for any reason, the plaintiff, in doing so, had to prove that it refunded the unearned premiums and thus did equity itself. They contend that because there was no such proof, the plaintiff was not in court with “clean hands” and was not entitled to the relief sought.

While this Court recognizes that the maxim “He who seeks equity must do equity” is still a valid principle, Newton v. Roe, 290 Ala. 191, 275 So.2d 135 (1973), it is not clear that any inequity was done in this case. Although the defendants urge that the plaintiff failed to prove that it refunded the defendants’ unearned premiums, a careful reading of the defendants’ own counterclaim reveals the following statement:

On about December 7, 1978, the plaintiffs mailed to the defendants a check in the amount of Sixty-four and 23/100 Dollars ($64.23), which represented “a return of unearned premium for the policy in question.” Said check, issued by the plaintiffs, has not been accepted by the defendants.

Certainly this- Court will take notice of this statement which appeared in the defendants’ counter-claim, whether the plaintiff pleaded the payment of unearned premiums or not. Moreover, the defendants raise the defense of “unclean hands” for the first time in brief on appeal. The general rule is that a defense not asserted in the trial court cannot be raised for the first time on appeal. Whitman v. Knapp, 285 Ala. 57, 228 So.2d 814 (1969). The defendants had ample opportunity at trial to prove that unearned premiums were not refunded, and failed to do so. For these reasons the portion of the trial court’s decision dealing with the collision and comprehensive coverages must be affirmed.

Accordingly, the judgment is hereby affirmed in part, reversed in part and the cause is remanded.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: PER CURIAM.

text:
    Lizzie B. LARKIN, et al. v. T. RUFFIN.
    80-25.
    Supreme Court of Alabama.
    May 22, 1981.

      Perry Hubbard and Jay Guin of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellants.
    Marcus E. McConnell, Jr. and William C. Brewer, III, Livingston, for appellee.
   PER CURIAM.

This is alternatively a petition for writ of mandamus, a petition for writ of certiorari, or an appeal by Lizzie Larkin and Berniece M. Delaine, executrixes under a 1964 will of Martha McAboy, from a probate court judgment which vacated and revoked a pri- or order admitting the 1964 will to probate and expunged the same from the records. The court based its order on a finding that the judgment admitting the 1964 will to probate had been procured by fraud on the court and was, therefore, void. We reverse and remand with instructions to reinstate the original decree.

The following are the salient facts: On August 15, 1961, Martha McAboy executed a will in which she left her estate, property which she inherited from her husband, the father of her four stepchildren, to those four stepchildren. On May 26, 1964, Mrs. McAboy executed a new will in which she left the estate to only two of her stepchildren, Berniece DeLaine and Lizzie Larkin. Both of these wills were drafted by Ira Pruitt, Jr. A few days later, on June 2, 1964, Mrs. McAboy returned to Pruitt’s office and revoked the May 26, 1964, will and republished her 1961 will by signing a statement written across the 1964 will saying:

This will is void and withdrawn, June 2, 1964, and my old will is republished.
Martha Nixon McAboy
Witnesses:
Ira Pruitt, Jr.
Ira D. Pruitt
Martha McAboy died in 1972.

A copy of the 1964 will had been delivered by the testatrix to Larkin shortly after its execution. Sometime in 1974, Attorney Robert Upchurch, doing a title search for Sumter Plywood Corporation, discovered that no will of Martha McAboy had been admitted to probate. In 1974, Larkin and DeLaine asked him to probate the last will of Martha McAboy. At that time, Mr. Up-church went to the law offices of Pruitt and Pruitt and sought to obtain the last will of Martha McAboy. Mr. Pruitt testified that it was the practice in the office to retain the original of all wills and to keep such wills in the vault. He looked in the vault and discovered the 1961 will and delivered Jt to Mr. Upchurch. He did not at that time discover the original of the 1964 will with the republication of the 1961 will written across the face thereof. In fact, this document was not discovered until 1980, after the current proceedings were commenced.

Thus, Mr. Upchurch was faced with a situation in which he had a 1961 original will and a copy of a 1964 will which purported to revoke the 1961 will. The original of the 1964 will could not be found, although Mr. Pruitt advised him that a copy of the will would not have been delivered unless the original had been duly executed.

Mr. Upchurch testified that it was finally determined, after some hesitation and delay, to probate the 1964 will as the last will and to prove it as a lost will, the original executed copy never having been located. Both he and Mr. Pruitt testified that Mr. Pruitt told him that he had no independent recollection of attesting the 1964 will.

Thus, the 1964 copy was offered for probate, and its execution was proved by a number of witnesses who were present in Pruitt’s office when the will was drafted and executed and were present in court on the date of the hearing set for the probate thereof. That testimony was recorded and reduced to writing, and is in the record before us. It is sufficient under the law to meet the requirements for establishing a lost will. Allen v. Scruggs, 190 Ala. 654, 67 So. 301 (1914).

Although a proof of will form had been prepared for Ira Pruitt, it was never executed and, in fact, was withdrawn at the conclusion of the hearing. However, because the decree admitting the will to probate had been prepared in advance by Mr. Upchurch at his office, it recited that Ira Pruitt had testified as an attesting witness when, in fact, he had not. This recitation was inadvertently left in the final decree signed by the probate judge, who was not learned in the law, but who testified that she was not misled or deceived in any way by Mr. Upchurch. It was her recollection some four years later that Mr. Upchurch had indicated that Mr. Pruitt would come by and execute the proof of will form some-'' time later. This was never done. Neither Mr. Upchurch nor Mr. Pruitt nor the beneficiaries under the 1964 will knew that the 1961 will had been republished and the 1964 will revoked until sometime in 1980, following the commencement of these proceedings. In 1980, some three and one-half years after the order admitting the 1964 will to probate, and more than five years after the death of the testatrix, this proceeding to set aside and vacate the order admitting the 1964 will to probate was commenced by T. Raffin, a nephew of the testatrix. He sought to have the same set aside, alleging that the judgment admitting the same to probate was void because it was procured by a fraud perpetrated on the court.

The proponents of the 1964 will challenged the jurisdiction of the probate court on the ground that it lacked authority to entertain the present challenge to the probate proceedings, and secondly, if the probate court has jurisdiction in these proceedings, the action was untimely. They also contested the proceedings on the merits, alleging the absence of any fraud in the procurement of the decree.

Without deciding, as the appellant contends, that the probate court lacked jurisdiction to entertain an attack on a judgment more than three years beyond the entry thereof, Ex parte Dozier, 262 Ala. 197, 77 So.2d 903 (1953), we reverse and remand the cause because, after a complete and thorough examination of the record, we are unable to find any testimony which supports a finding that any fraud was perpetrated on the court. Assuming, again without deciding, that the probate court had jurisdiction, it would not exceed that of a court of general jurisdiction, which has the power to set aside judgments only upon a showing of actual fraud, which has been defined as follows:

“The jurisdiction extends to the vacation of the judgments or decrees of courts which have been procured by fraud. But the final judgment or decree of a court of competent jurisdiction is impeachable only for actual fraud in its procurement. ... McDonald v. Pearson, 114 Ala. 630, 643, 21 So. 534, 537 (1897). ‘[T]he fraud ... must be fraud which you can explain and define upon the face of a decree, and ... mere irregularity, or the insisting upon rights which, upon a due investigation of those rights, might be found to be overstated or overestimated, is not the kind of fraud which will authorize the court to set aside a solemn decision which has assumed the form of a decree signed and enrolled.... It is not sufficient merely to raise a suspicion or to show what is sometimes called “constructive fraud,” but there must be a false and fraudulent representation, or a fraudulent affirmative act, or a fraudulent concealment of a fact, for the purpose of obtaining an undue and an unjust advantage of the other party, and procuring an unjust and unconscionable judgment .. .. ’
“An elementary principle is that fraud is not to be presumed when parties do not stand in fiduciary relations, and will not be imputed when the facts and circumstances from which it is supposed to arise are fairly and reasonably consistent with honesty of intention. 1 Story Eq.Jur. § 190.”

Farrell v. Farrell, 243 Ala. 389, 10 So.2d 153, 155-156 (1942). (Some citations omitted.)

There is no evidence of actual fraud on the court in the instant case. It is uncontroverted that not until 1980 was it discovered that the 1964 will had been revoked and the 1961 will republished. No party present at the 1976 hearing to probate that will was aware that it did not constitute the last will and testament of Martha McAboy. If T. Ruffin knew it, he made no effort to bring it to the court’s attention until the five-year statute would have prevented its admission to probate. Alabama Code of 1975, § 43-1-37.

The judgment appealed from is reversed, and the cause is remanded with instructions to the probate court to vacate its order and to reinstate the 1976 order establishing the 1964 will as the last will and testament of Martha McAboy.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    John HARRIS, Administrator of the Estate of Mary Priscilla Darby, Deceased v. Aught DIAL.
    80-46.
    Supreme Court of Alabama.
    May 22, 1981.
    T. Michael Putnam of Potts, Young & Blasingame, Florence, for appellant.

      John O. Morrow, Jr. of Wilson & Morrow, Florence, for appellee.
   BEATTY, Justice.

In an action for money had and received, the plaintiff was awarded a judgment by the trial court. The intervenor/defendant appealed. We affirm.

Sometime during 1967, Mary Priscilla Darby had Aught Dial, the plaintiff, come to her home and sign a signature card on her checking account in her bank. The face of this card bore the signatures and addresses of both Mrs. Darby and the plaintiff. The reverse side of this card, which also bore their signatures, contained a “joint account with right of survivorship” agreement.

When Mrs. Darby became ill in 1979, plaintiff Dial began to draw blank checks (as to payee) on the account in order to pay her bills. These he delivered to Mrs. Belle Moore, a sister of Mrs. Darby. Mrs. Darby died in October, 1979. At that time Mrs. Moore had in her possession a blank check drawn on that account and given to her by Dial. She executed this check by making it payable to her own account in the amount of $33,000.00.

Subsequently the plaintiff initiated this action to obtain that sum of money and named Mrs. Belle Moore as defendant. Mr. Harris, as administrator of Mrs. Darby’s estate, also claimed that money and was allowed to intervene. During the course of pleading Mrs. Moore filed a motion of inter-pleader, paid the disputed sum of $33,000.00 plus partial accrued interest into court, and the claims against her were dismissed. Following a final hearing based upon a written stipulation, testimony ore tenus, and certain exhibits, the trial court awarded the money paid .into court plus accrued interest, less costs, to the plaintiff, Aught Dial.

The only witness examined at the hearing was the plaintiff himself who was called to testify in his own behalf. The intervenor contends that the trial court erred in sustaining objections to questions addressed to the plaintiff during his cross-examination. The record discloses this exchánge:

Q. Were there any bank employees there at the time you signed it [the signature card]?
A. No, sir. I was at her house.
Q. And both of you signed it there at her house?
Q. Yes, sir.
A. And you said, in responsé to Mr. Wilson’s question, that it was an authorization to sign the checks, is that what she told you at that time? MR. WILSON: Now, we object to what she told him.
THE WITNESS: I don’t know what—
THE COURT: SUSTAIN THE OB- ' JECTION.
Next question.

The defendant contends that by sustaining this objection the trial court erroneously refused him the opportunity to examine the validity of the joint account because, he states, Mrs. Darby’s statements made at that time would have disclosed her motive or reason for establishing the account, and were indicative of her intent to make a gift or not.

The defendant also argues that another “possible objection” upon which the trial court relied involved the “dead man’s statute.” Under the record before us we cannot determine whether this “possible” objection was the ground upon which the trial judge based his ruling sustaining the objection. From an examination of the record, however, we do find that counsel for the intervenor immediately followed the question to which objection was sustained with this question:

Q. Did Mrs. Darby make any other statement to you at the time that you signed the authorization card? MR. WILSON: Now we object, Your Honor, please, to any statement— any other statement or any statement in regard to who made it. [Emphasis added.]
THE COURT: Well, he asked if other statements were made and that calls for a yes or no answer. I OVERRULE THE OBJECTION.
Q. Were other statements made?
A. No.

Thus the claimed error in sustaining objection to the first question is without merit because the intervenor was later allowed, over objection, to obtain an answer from the witness based upon substantially the same question. Assuming arguendo that the trial court’s first ruling was error, nevertheless any such error was cured when the trial court subsequently allowed cross-examination upon the same subject. Spurlock v. J. T. Knight, 246 Ala. 283, 20 So.2d 525 (1945). Although our examination satisfies us that the record reflects no issue respecting the application of the dead man’s statute, our discussion of the alleged error pretermits the necessity for discussing that point.

In any case, the witness answered “No,” that is, that no additional statements were made. Counsel, therefore, was accorded an opportunity to cross-examine on the subject of Mrs. Darby’s purpose and intent, the record disclosing an extensive cross-examination of Dial following that answer, including the following:

Q. What did you tell me the purpose of this account was?
A. To write checks so if anything happened to her, I could sign her checks.

Next, the intervenor contends that the judgment awarding money to Dial was contrary to the evidence. There is no dispute about the establishment of the joint account in 1967, nor any concerning the date of Mrs. Darby’s death, October 4, 1979. When she died the provisions of Code of 1975, § 5-1-25 were in effect:

(a)When a deposit shall be made in any bank doing business in this state in the names of two persons payable to either of such persons, or payable to the survivor of them, the said deposit shall, upon the death of either of said persons, become the property of and be paid in accordance with its terms to the survivor, irrespective of whether or not the funds deposited were the property of only one of said persons, irrespective of whether or not at the time of the making of such deposit there was any intention on the part of the person making such deposit to vest the other with a present interest therein, and irrespective of whether or not only one of said persons during their joint lives had the right to withdraw such deposit and irrespective of whether or not there was any delivery of any bank book, account book, savings account book or certificate of deposit by the person making such deposit to the other of such persons.
(b) This section shall apply to certificates of deposit, as well as to savings accounts and checking accounts and shall also apply where a deposit is made in the names of more than two persons where there is a provision for survivorship.
(c) Nothing contained in this section shall be construed to prohibit the person making such deposit from withdrawing or collecting the same during his lifetime, nor shall the fact that such person had the right to withdraw or collect said deposit during his lifetime operate to defeat the rights provided in this section for the person or persons surviving such depositor.

That statute has been considered by this Court in Street, Admr. v. Hilburn, 295 Ala. 232, 326 So.2d 724 (1976) and by the Court of Civil Appeals, in Macon v. First National Bank of Ashford, Ala.Civ. App., 378 So.2d 1128 (1978) to give the survivor of such an account the right to the proceeds remaining at the death of the other, without any duty resting upon the survivor to show a donative intent upon the party furnishing the funds. Donative intent on the part of the owner of the funds, therefore, was irrelevant. The fact that this statute was amended by the legislature in 1980 to grant the bank the right to pay, and thus be protected, and not to govern the question of ownership of funds, does not operate to abrogate the property right in the funds which vested in Aught Dial at Mrs. Darby s death. The phrase any deposit heretofore ... made in any bank” contained in § 5-5A-41(a) can have no operation in a case in which one of the parties to the account died before its enactment and while another statute was operative giving the survivor property rights in that account. Indeed, Code of 1975, § 5-1A-8 expressly provides: “Nor shall the repeal of a prior act by Chapters 1A through 12A of this title affect any right accrued or established ... under the provisions of such pri- or act before the repeal thereof.” (Acts 1980, No. 80-658, § 5-13-4, p. 1337.)

Under the evidence that the plaintiff Dial was the survivor of the joint account with the right of survivorship, therefore, the trial court was correct in awarding the proceeds remaining at Mrs. Darby’s death to him. Accordingly, the judgment must be, and is, affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Harold Blake CHILDERS and Pauline Childers v. ASHBURN AND GRAY, INC., a Corporation.
    80-59.
    Supreme Court of Alabama.
    May 22, 1981.
    David H. Meginniss of Hornsby, Blankenship, Smith & Robinson, Huntsville, for appellants.
    John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   SHORES, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the defendant and against the plaintiffs in a personal injury action. On appeal, the plaintiffs contend that the trial court committed reversible error in its oral charge to the jury, and such error was properly preserved. We are constrained to agree and reverse and remand.

The facts out of which the case arose can be summarized as follows: The plaintiff was driving his car on Pulaski Pike and across Stringfield Road, through a green light facing the flow of traffic in his direction. Frank Phillips was driving east on Stringfield Road in a truck belonging to Ashburn and Gray. As Mr. Phillips approached the intersection, the traffic light facing the flow of traffic on Stringfield Road changed to red. Mr. Phillips tried to stop the truck but, as he applied the brakes, the brakes failed. Apparently, a hydraulic hose leading from the truck air chamber gave way. When the hose blew out, the truck lost its brakes, its emergency brakes, and its horn. Having no way to stop the truck or to sound the horn, the truck went through the red light and struck Mr. Child-ers’ car. After the accident, Mr. Childers went home, cleaned up, and then went to work. He testified that, thereafter, his neck became stiff and tight, his head started to hurt, and he found glass imbedded in his head. A few days later, his back began to hurt. Eventually, his physicians informed him that he had either osteoarthritis or Marie-Strumpell arthritis, which had been asymptomatic before the accident, but was not aggravated because of the accident.

At the close of the evidence, the trial court orally charged the jury as follows, in pertinent part:

I am going to read to you this rule of the road, the violation of which is negligence as a matter of law. [Section 32-5-212, Code 1975.] The fact that I read this statute to you is no indication that the statute has been violated. It is no indication from me that the statute has been violated, or that the violation of the statute was the proximate cause of the injuries or damages complained of by the plaintiff in this case. It is for you to decide whether or not this statute has been violated and whether or not the violation of the statute, if any, proximately caused the injuries complained of by the plaintiff in this case. The section reads as follows: [The trial judge then read the provisions of the statute]. Now, the violation of that, as I told you, is negligence as a matter of law; however, in order for it to be actionable it must be the sole and proximate cause of the injuries complained of by the plaintiffs in this case.

The court then proceeded to the conclusion of the oral charge. At the end of the charge, the plaintiffs noted their objection to the court’s charge in the following manner:

MR. HORNSBY: [W]e take exception to the charge of the court. . ..
And the Court stated to the jury that the violation of the Code section regarding the requirement for brakes or a dual system of the brakes is negligence as a matter of law, which was correct, but the Court went on to say that the violation of the statute must be the sole and proximate cause of the injuries complained of. We contend that it is error to say that it must be the sole and proximate cause. The charge should have been that it should be the proximate cause.

The law, of course, does not require that the plaintiffs prove that a violation of a rule of the road be the sole cause of injury, and the defendant concedes that. It simply argues that a reading of the entire charge compels the conclusion that the use of “sole cause” by the court, while error, is harmless error. We cannot agree that the error was harmless. There is no question that it was error. In a recent case, Fox v. Bartholf, 374 So.2d 294 (Ala.1979), in an opinion written by Chief Justice Torbert, this Court held:

“The jury must find the statutory violation proximately caused the injury. Cox v. Miller, 361 So.2d 1044 (Ala.1978); Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976); Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961).”

Because the trial court’s charge could have misled the jury, and exception being duly taken to it, the judgment appealed from is due to be and the same is reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Merrial Douglas BROWN v. Timothy Leon CARSON, et al.
    80-273.
    Supreme Court of Alabama.
    May 22, 1981.
    Charles R. Hare of Gullahorn & Hare, Albertville, for appellant.
    Donald N. Spurrier of Williams, Spurrier & Rice, Huntsville and Jack Livingston, Scottsboro, for appellees.
   PER CURIAM.

Affirmed pursuant to ARCP 51. See Odum v. Linsey, 365 So.2d 664 (Ala.1978). Cf. Childers, et al. v. Ashburn and Gray, Inc. 398 So.2d 682 (Ala.1981), released this date.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Christopher P. DEVINE v. Alice Beth Clark DEVINE.
    Civ. 2092.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    Rehearing Denied March 9, 1980.
    William Henry Agee of Agee & Ghee, Anniston, for appellant.
    J. Todd Caldwell, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce and child custody case.

In the judgment divorcing the parties, custody of two sons, ages seven and four, was given to the mother. The judgment recited that the evidence presented indicated that neither parent was unfit to have custody of the children and that there was not a clear preponderance of evidence favoring suitability of one parent over the other. Therefore the court determined that the interest of the children would be best served by indulging the “tender years” presumption and granting custody to the mother subject to liberal visitation by the father. The father appeals. The only issue is whether the use of the “tender years” presumption violates the “equal protection” rights of the father.

Though stated in different ways, the “tender years” doctrine is: where a child is of such tender age as to require the care and attention that a mother is especially fitted to bestow upon it, the mother, rather than the father, is presumed to be the proper custodian, unless for some reason she is unfit for the trust. The courts have been especially reluctant to take custody of an infant daughter from the mother unless misconduct is imputed to her. Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392 (1944).

This court has heretofore on at least two occasions considered the contention that use of the “tender age” presumption by a trial court was a denial of equal protection. The premise being that it is a constitutionally impermissible gender-based classification. We have held it not to violate the father’s constitutional right to equal protection of the law. Thompson v. Thompson, 57 Ala. App. 57, 60, 326 So.2d 124 (1975); Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. denied, 372 So.2d 341 (Ala.1979).

The husband contends that our recent decision in Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.1979), cert. denied, 376 So.2d 1101 (Ala.1979); and Clift v. Clift, 346 So.2d 429 (Ala.Civ.App.1977), cert. denied, 346 So.2d 439 (Ala.1977) have removed or eroded the application of the “tender years” presumption in this state. It is not correct that we have removed the application of that presumption. We specifically said in Jenkins that we did not “[Djiseard it as a concept worthy of weight in determining the best interest of a child in a particular case.’ We did recant our statement in a prior case that it was a “compelling presumption” upon the trial court.

The cases of Thompson, Clift and Jenkins have indicated that the doctrine has been diminished in efficacy by societal changes in parental roles. We consider that the “tender years” presumption has never been one of law. but rather one of fact subject to rebuttal by evidence of misconduct or unfitness of the mother. Hammac, supra. It is not a classification based upon gender, but merely a factual presumption based upon the historic role of the mother in maintaining and keeping the home, in succoring and caring for the children. Its basis probably goes deeper and lies in the biologic and thus primeval instinctual role of a mother. It is nature’s way of propagation. It is observable that a child reciprocates and flourishes in response to the mother’s role. If this be a gender classification, it was not made by the state. It is no more than fact recognized by the courts of this state after more than 150 years of experience. It has always been subject to rebuttal by evidence of its absence or abuse. Jenkins, supra.

There was no evidence in this case of abuse of the parent-child relationship in either parent. The court specifically said that neither parent appeared unfit. However, the scales of best interest of the children of tender age tipped in the mind of the court in favor of the mother in light of the tender age concept. We find no abuse of discretion in its conclusion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.