author: ADAMS, Justice.

text:
    J. GORDON NEELY ENTERPRISES, INC. v. AMERICAN NATIONAL BANK OF HUNTSVILLE, A National Banking Corporation.
    79-914.
    Supreme Court of Alabama.
    Aug. 7, 1981.

      David H. Culver of Culver & Miller, Huntsville, for appellant.
    S. Dagnal Rowe of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellee.
   ADAMS, Justice.

This is an appeal from a judgment of the Circuit Court of Madison County, entered after a nonjury trial, finding that American National Bank of Huntsville (American National), defendant below, was not liable in conversion to J. Gordon Neely Enterprises, d/b/a Midas Muffler (Neely), plaintiff below. The conversion count was based upon a total of 21 checks drawn by Neely, 19 made payable to American National and two made payable to B. Louise Bradshaw. The amount on each of twelve checks was raised and nine checks were unaltered, and all were illegally cashed or deposited by Bradshaw, a former part-time bookkeeper for Neely. The lower court found that American National acted within commercially reasonable standards when it cashed or deposited these checks for Bradshaw, and that Neely’s negligence substantially contributed to the material alterations. Furthermore, American National properly paid out on the unaltered checks, since they were bearer paper and were validly negotiated upon delivery. Accordingly, it held in favor of American National. We affirm.

Mr. and Mrs. Neely, the owners and operators of J. Gordon Neely Enterprises, became acquainted with Bradshaw in 1976 when, as a Kelly Girl, she was hired by the company’s stockholder accountant to assist him with their account. Mrs. Neely became friendly with Bradshaw and hired her part-time to teach her how to keep the corporate books. Since 1960, Mrs. Neely had performed all of the in-house bookkeeping duties by herself.

The corporate bank account was maintained at First Alabama Bank of Huntsville, N.A. (First Alabama), but Neely accepted Bradshaw’s recommendation that the company open a second checking account at American National for personal expenditures and for the corporate payroll. She explained that cheeks could be drawn on the First Alabama account to fund the second account at American National. Bradshaw also kept her personal checking account at American National. Mr. and Mrs. Neely signed the bank signature card and the corporate resolution, which stated, among other things, that American National was authorized to pay out funds, on either bearer or order paper, to any of the signatories. Bradshaw was entrusted with these documents to return them to the bank, and without the knowledge or authorization of the Neelys, signed the signature card and added her name in a noticeably different type.

The following incidents complained of took place between February 25, 1977, and January 27, 1978. Bradshaw filled out checks drawn on the First Alabama account, except for two drawn on the American National Account, made payable to American National and with a large space to the left of the amount written on the designated lines. Mrs. Neely signed these checks being fully aware of these large gaps. She admitted that she never left spaces like that on her personal or corporate checks because it could facilitate alterations, but Mrs. Neely never questioned Bradshaw’s practice of doing so because she yielded to Bradshaw’s superior knowledge.

Bradshaw altered the checks either by adding a digit or two to the left of the original amount, or by raising the first digit after using liquid erasure. She then made a split deposit by depositing the original amount into Neely’s American National payroll account, and depositing to her account the difference between the original and altered amounts. On some occasions she took the difference in cash without depositing it to her account. On those checks that were not raised, she either cashed them and kept the money, or deposited them to her account, or deposited part of the check into the Neely account and kept the rest.

Prior to Bradshaw’s employment, Neely’s bank statements were mailed to it. But afterwards, Bradshaw arranged with both banks to allow her to pick them up. After a while, Mrs. Neely complained to the banks about this, and eventually the statements were mailed. After Bradshaw picked up the monthly statements and items, she real-tered them to reflect the original amounts by using liquid erasure. Together, the two women reconciled the statements with Mrs. Neely calling out the information from her journal entry and with Bradshaw responding from the bank statements and items. Consequently, Mrs. Neely never saw the altered checks or the statements. Even when the statements were mailed, Mrs. Neely never opened them and she never reconciled the statements without Bradshaw. A new accountant hired in the latter part of 1977 discovered the defalcations, totalling $17,005.18.

Neely filed a complaint against Bradshaw and American National for conversion, and the trial court severed the claims. A consent judgment was entered against Bradshaw for $8,000.00. Neely withdrew its jury demand, and the allegations against American National were heard without a jury. The trial court entered a judgment in favor of American National from which Neely appeals.

The issue is whether the lower court erred in holding American National not liable in conversion to Neely when it paid out proceeds to one not named as a payee and when it remitted proceeds on altered checks.

First, Neely contends that the bank converted its funds because it paid out proceeds to Bradshaw when she was not named as payee. We disagree. The checks at issue were made payable to the order of American National as opposed to being drawn to J. Gordon Neely Enterprises, and none of them was endorsed restrictively "For Deposit Only” into Neely’s specially designated and numbered account. The bank’s expert witnesses testified that a check drawn payable to the order of a bank is recognized in the banking profession as equivalent to a check made payable to the order of cash. Legally, therefore, the instrument becomes bearer paper, Code 1975, § 7-3-111, and is properly negotiated by delivery alone, Code 1975, § 7-3-202(1). Since these checks were bearer paper and were validly negotiated when Bradshaw delivered them for presentment, American National is not liable for paying to her the proceeds even though she was not named as payee.

Neely also relies heavily upon the proposition that
It is generally held that a check or draft drawn to the order of a bank precludes the diversion of the proceeds of it to a use other than that of the drawer, and that such diversion can be justified only by proof of authority from drawer.

10 Am.Jur.2d Banks § 560 (1963).

However, overlooked by Neely, cited within the same paragraph from which it quotes, is the following:

[B]ut ... if the drawer has clothed his agent with apparent authority to receive the proceeds of such check, the bank is not negligent in, and is not liable to the drawer for, paying, in reliance upon such apparent authority, the proceeds of such cheek to such agent contrary to his actual authority, if the agent should misappropriate such proceeds.

10 Am.Jur.2d Banks § 560 (1963).

The record in this case amply supports the finding that Bradshaw was apparently, if not actually, authorized to receive the money; therefore, the proceeds were not diverted to a use inconsistent with the drawer’s intentions.

Neely clothed her with the authority to act on its behalf by entrusting her to pick up and to return the documents necessary to open the American National checking account. Additionally, from the bank’s perspective, Bradshaw was actually authorized to withdraw and to receive the corporate funds because the corporate documents on file at the bank explicitly granted her the authority to do so. Although her typewritten name on these forms was different in type from Mr. and Mrs. Neely’s, there was testimony at trial upon which the trial court could conclude that the bank’s actions were commercially reasonable in this regard.

Bradshaw also received ostensible authority to act for the company when it allowed her to make bank deposits and when it permitted her, albeit reluctantly, to pick up the monthly statements. Moreover, aside from the authority granted by Neely’s corporate resolution, it was shown to be customary in the community for a bank to pay cash to an employee out of the corporate account or to make a split deposit into the employee’s account out of the corporate check. Often, the employee is sent to get the money for the office petty cash box out of the corporate account. The employee’s deposit into the personal account out of the business account may very well represent the employee’s pay.

In sum, the lower court did not err in not holding American National liable, because the bank paid the proceeds out on properly negotiated bearer paper and because it did not unlawfully divert those funds beyond the drawer’s intentions inasmuch as the facts indicate that Bradshaw was apparently authorized to receive the money.

Next, Neely alleges that American National is liable for paying out on altered instruments. Both parties rely upon Code 1975, § 7-3-406, stating:

Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.

Neely argues that American National did not pay the instruments according to commercially reasonable standards because the checks allegedly bore visible marks of alteration. American National contends that Neely is precluded from asserting the material alterations as a basis for liability because Neely’s negligence substantially contributed to the alterations by leaving large spaces to the left of the amount designation, and by entrusting the same employee with writing the checks and reconciling the bank statements without the protection of internal corporate controls.

We must first resolve whether American National acted in a commercially reasonable manner, because unless the bank acted reasonably it cannot assert the defense that Neely’s negligence substantially contributed to the alterations. Commercial Credit Equipment v. First Alabama Bank, 636 F.2d 1051 (5th Cir.1981); First Federal Sav. & Loan Ass’n. v. Alabama Nat. Bank, 372 So.2d 350 (Ala.Civ.App.1979); East Gadsden Bank v. First City Nat. Bank of Gadsden, 50 Ala.App. 576, 281 So.2d 431 (1973). American National produced expert witnesses testifying that although some of the words and numbers on the amount designation lines were slightly misaligned, and although a few checks visibly contained liquid erasure, the bank did not violate reasonable commercial standards when it paid out on these particular checks to Bradshaw. It was stated that the decision of whether to pay a particular check that may have appeared to be somewhat irregular on its face was based entirely upon a judgment call under the particular circumstances of that check. Based upon the judgment call surrounding the decision to pay each check, and after examining the checks exhibited, the trial court concluded that American National had acted in a commercially reasonable fashion under the circumstances. Inasmuch as this fact issue was found in favor of American National, the nonjury finding will stand on appeal because it was not plainly and palpably erroneous. Stagg v. Van Sant, 390 So.2d 620 (Ala.1980).

After resolving the threshold question of the commercial reasonableness of the bank’s actions, we must next determine whether Neely, by its negligence, substantially contributed to the facilitation of the alterations. The Uniform Commercial Code does not define the negligence which will support the defense of § 7-3-406, and instructs that it is an issue strictly left to the fact-finder on a case by case approach. Code 1975, § 7-3-406, Comment 3. The official comment does advise, however, that “[n]eg-ligence usually has been found where spaces are left in the body of the instrument in which words or figures may be inserted.” Code 1975, § 7-3-406, Comment 3. See also Goldsmith v. Atlantic Nat. Bank of West Palm Beach, 55 So.2d 804 (Fla.1951); Leonard v. National Bank of West Virginia at Wheeling, 150 W.Va. 267, 145 S.E.2d 23 (1965). It is undisputed that Mrs. Neely signed the checks fully aware of the large gaps in front of the amount.

Similarly, two other examples of negligence are supported by the record: no inquiry was made into Bradshaw’s veracity, although it was rumored that previously she had been in trouble with embezzlement in Tennessee, see Commercial Credit Equipment v. First Alabama Bank, supra; and Neely failed to maintain internal controls so that the employee writing the checks was not also the principal person reconciling the bank statements, see Von Gohren v. Pacific Nat. Bank of Washington, 8 Wash.App. 245, 505 P.2d 467 (1973); Huber Glass Co. v. First Nat. Bank of Kenosha, 29 Wis.2d 106, 138 N.W.2d 157 (1965); Annot., 67 A.L.R.3d 144, 152 (1975).

Although each state defines it separately, Alabama construes the phrase “substantially contributes,” Code 1975, § 7-3—406, to mean that the drawer’s negligence must proximately cause the making of the alteration. Commercial Credit Equipment v. First Alabama Bank, 636 F.2d 1051 (5th Cir.1981); East Gadsden Bank v. First City Nat. Bank of Gadsden, 50 Ala.App. 576, 281 So.2d 431 (1973). Particularly pertinent to this case is the following description of proximate cause:

When a person by his negligence produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be anticipated to occur, the original act of negligence is then regarded as the proximate cause of the injury which finally results.

Goodwyn v. Gibson, 235 Ala. 19, 21, 177 So. 140, 142 (1937), cited with approval in Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 289, 267 So.2d 132, 138 (1972). Based upon a thorough and sifting review of the record, we conclude that the accumulation of Mrs. Neely’s negligent conduct set in motion an unfortunate chain of events which proximately culminated in the alterations, thus establishing Neely’s substantial contribution.

We will not disturb these findings that Neely’s negligence substantially contributed to Bradshaw’s alterations, because they are not clearly and patently erroneous. Therefore, because American National acted in a commercially reasonable manner and Neely’s negligence substantially contributed to the material alteration resulting in the bank’s payment to Bradshaw, Neely cannot recover from American National.

Based upon the foregoing analysis and conclusions, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SENTELL, Clerk.

license: Public Domain

text:
    OPINION OF the CLERK.
    Opinion No. 37.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — PREFIL-ING FEES — CITATION FOR CONTEMPT AND PETITION TO MODIFY FINAL DECREE — AGREEMENT FOR MODIFICATION OF FINAL DECREE

Mrs. Katie H. Phillips, Deputy Register of the Family Court, Montgomery County, has submitted to me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code, 1975, the following questions:

1. When a lady files a citation for contempt (to be heard on our non-support docket), and thereafter the former husband files an answer to citation and petition to modify requesting that the court either decrease or terminate his payments, should not the husband be required to pay a docket fee? When a situation such as this occurs the citation for contempt must be delayed for hearing, or transferred to the Domestic Relations Docket for disposition at the time that the husband’s modification is heard. The non-support judge does not normally entertain petitions for modification.
2. Is it necessary to require a double docket fee when a party files a citation for contempt and petition to modify in one pleading requiring only one hearing and actually one filing and process, when the subject matter is related such as contempt regarding visitation and modification of custody and visitation or contempt regarding failure to support and modification of amount or method of payments?
3. When parties submit an agreement for modification of final decree, when no petition is filed, and the judge ratifies, approves and incorporates the agreement into a modified decree, does this not require a filing fee?

The first and third questions are answered in the affirmative. The second question is answered in the negative.

I

Clarification of Clerk’s Opinion No. 25, March 12, 1980, Ala., 381 So.2d 58, was requested in the instances stated in the first and second questions.

Opinion No. 25 stated that a petition for rule nisi and a petition to modify could not be included in the same pleading under one prefiling fee and that there should be separate petitions filed and two prefiling fees charged

Rule 7, Alabama Rules of Judicial Administration, is as follows:

“Fees for Miscellaneous Filings
Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

The “filing,” the collection of which is authorized by Rule 7, is the filing of a case. Opinion of Clerk, No. 1, April 26, 1977, Ala., 345 So.2d 1329; No. 3, May 4, 1977, Ala., 345 So.2d 1338.

It appears from the statement of facts submitted with the first question that the citation for contempt and the petition to modify are entered upon different dockets, are normally heard by different judges and are treated by the court as separate cases.

The basic differences between contempt proceedings and proceedings to modify a final decree were stated in Opinion of Clerk, No. 25, March 12, 1980, Ala., 381 So.2d 58.

A proceeding in contempt is sui generis. State ex rel. Payne v. Empire Life Ins. Co., Ex parte Shearn Moody, Ala., 351 So.2d 538 (1977). It is neither a “civil action” nor a “criminal prosecution” within the ordinary meaning of those terms. International Brotherhood of Electrical Workers v. Davis Constructors and Engineers, Inc., Ala., 334 So.2d 892 (1976).

It is my opinion that, under the facts stated in connection with the first question, a docket fee should be charged on the filing of the petition to modify.

II

It appears from the second question that the court treats proceedings for contempt and modification of the final decree as one case. In this event, only one docket fee should be charged.

III

Clarification of Opinion No. 30, October 20, 1980, Ala., 389 So.2d 1154, was requested in connection with the third question.

Opinion No. 30 stated that there is no authority to collect a docketing fee on modification of a final decree, which contains only an agreement for modification, ratified by the judge, but without any petition being filed.

In Opinion No. 30, it did not appear from the question that the agreement of the parties invoked the jurisdiction of the court to enter a new decree. The judge merely approved the agreement but did not render a decree on the basis of the agreement.

It is my opinion that when an agreement between the parties invokes, as a substitute for a petition, the jurisdiction of the court to modify a final decree by the rendition of a new decree, a filing fee should be paid on the filing of the agreement.


author: PER CURIAM. JONES, Justice

text:
    Richard ARRINGTON, Jr., in his capacity of Mayor of the City of Birmingham, et al. v. ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Alabama Branch, Inc., et al.
    80-261.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      James K. Baker, City Atty., Birmingham, for appellants.
    T. M. Conway and Thomas A. Carraway of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
   PER CURIAM.

Plaintiffs sought declaratory and injunc-tive relief from the operation of City of Birmingham Ordinance 77-257, as amended by Ordinance 79-140. Plaintiffs’ suit challenges the amended ordinance as violative of state and federal statutes, as well as state and federal constitutional provisions. Defendants’ appeal is from a decree which adjudges the amended ordinance invalid and enjoins its enforcement. We affirm.

HISTORY OF THE CASE

In 1974, the Birmingham City Council adopted Ordinance 74 — 2, which required assurance of nondiscriminatory employment practices by those contracting with the City of Birmingham. Ordinance 74 — 2 was amended on May 3, 1977, by Ordinance 77— 81 to include a requirement that, within thirty days of an award of a city contract, the contracting party provide an analysis of its workforce by race, sex, and national origin. Additionally, the amended ordinance authorized the mayor to “promulgate such additional rules and regulations as he [might] determine to be reasonably necessary to insure compliance with or to promote the objectives of” the amended ordinance.

In October 1977, former Birmingham Mayor David Yann, pursuant to the authority granted in Ordinance 77-81, instructed the city engineer to include in the bid specifications for city contracts a requirement that the general or prime contractor agree to expend at least ten percent of the contract amount with certain minority subcontractors or suppliers. The specification had its genesis in the 1977 Public Works Employment Act, popularly known as the PWEA, 42 U.S.C. § 6701, et seq. (Supp. III 1979). The PWEA required that a local government unit awarded PWEA funds assure that at least ten percent of the contract amount would be expended with minority business enterprises.

On November 30,1977, Associated General Contractors of America, Alabama Branch, Inc., along with several contractors doing business in the Birmingham area, brought suit against Birmingham, its may- or, and other city officials, seeking to have declared invalid Ordinance 77-81 and the mayor’s regulation requiring the ten percent minority commitment. Additionally, plaintiffs sought an order preliminarily enjoining defendants’ enforcement of the ordinance and the mayor’s regulation. Plaintiffs’ complaint alleged that the city’s ordinance and regulation violated the due process and equal protection guarantees of the federal and state constitutions, federal statutes forbidding discrimination on account of race, and the state competitive bid law. After a hearing, the circuit court entered an order denying plaintiffs’ motion to preliminarily enjoin enforcement of Ordinance 77-81, but granting plaintiffs’ motion to preliminarily enjoin enforcement of the mayor’s regulation.

Nine days after the circuit court declared the mayor’s regulation void and enjoined its enforcement, the Birmingham City Council adopted Ordinance 77-257. Later, on August 28, 1979, the Council amended the ordinance to change certain bid requirements and to provide further for waiver of the ordinance provisions. Shortly thereafter, following the election of Richard Arrington, Jr., to succeed David Vann as Mayor of Birmingham, plaintiffs sought to permanently enjoin the enforcement of Ordinance 77-257, as amended, by amending their complaint of November 30, 1977, to put at issue the validity of the amended ordinance and to substitute the then appropriate city officials as parties defendant.

The amended complaint charged that the ordinance violated the equal protection and due process guarantees of the state and federal constitutions, as well as 42 U.S.C. §§ 1981 and 1983 (1976 Ed.); 42 U.S.C. §§ 2000d to d—4 (1976 Ed.); and the Alabama Competitive Bid Law, Code 1975, § 41-16-50 (Supp.1980). Defendants put at issue each count of plaintiff’s complaint, and after a hearing on the merits, the trial court, with findings of fact and conclusions of law, found for plaintiffs and permanently enjoined enforcement of the challenged ordinance. This appeal resulted.

THE CHALLENGED ORDINANCE

Ordinance 77-257, as amended by Ordinance 79-140, commences with a finding that, due to historical patterns and practices of racial discrimination, minority business enterprises (MBE) have not obtained an equitable share of contracts or subcontracts let by the City of Birmingham. The ordinance further finds that official policies of overt discrimination against minorities have ceased, but that existing policies and programs of the City have not eliminated the lingering effects of such past discrimination. As set forth in the ordinance, the purpose of the enactment was to “encourage, facilitate and effect greater participation by minority business enterprises in construction contracts let by the city.”

A “minority business” is defined by the ordinance to be any business enterprise in which minority group members hold at least fifty percent ownership or, in the case of a publicly owned business, one in which at least fifty-one percent of the stock is owned by minority group members. “Minority group members,” as used in the ordinance, means United States citizens who are Blacks, Spanish speaking, Orientals, Indians, Eskimos, or Aleuts. For all construction contracts let by the City and exceeding the amount of $20,000, the ordinance sets a goal of fifteen percent to be expended with bona fide MBE contractors, subcontractors, or suppliers of goods or services. The ordinance requires that a contractor make a good faith effort to meet the fifteen percent goal. However, the inclusion with the contractor’s bid of a specific plan to expend at least ten percent of a contact amount with MBEs is accepted as sufficient evidence of a good faith effort to meet the fifteen percent goal.

Any bid not accompanied by a list of proposed MBE subcontractors is considered nonresponsive, unless accompanied by a request for a waiver. Under the ordinance provisions, a contractor may be granted a waiver of the MBE participation requirements for the following reasons:

(1)Lack of a qualified MBE in the Birmingham Standard Metropolitan Statistical Area.
(2) Inability to obtain reasonably competitive prices from available MBEs in the Birmingham Standard Metropolitan Statistical Area.
(3) Failure of MBEs to give notice of their desire to participate as subcontractors with respect to a specific contract.

Each time a contractor makes a request for payment under the contract, he must submit a signed writing which lists his participating minority subcontractors, the work they performed and the amounts paid to them. Finally, the ordinance provides that a contractor’s noncompliance with ordinance terms constitutes a breach of the contract by the contractor.

FINDINGS OF THE TRIAL COURT

The circuit court found as follows:

The evidence shows that it is the practice of the Plaintiff contractors not to make an open solicitation of subcontractor bids but to deal and subcontract with firms seeking subcontract work from the contractor or to seek prices from subcontractors with whom the contractor has had experience... as to quality of work, performance and ability to obtain bonds. Since the implementation of the Ordinance, it has been shown the procedures required by the City have been time consuming at a cost to the contractor but without meaningful interest or participation by potential MBEs, if in fact available.
The Ordinance and City procedure have established the pre-bid conference to be a “hiring hall” to bring prospective contract bidders and qualified MBEs together so that each may become aware of the other’s interest in a particular contract to be let and to provide information to all as to generalities of the proposed construction. If no MBE gives written notice of a desire and ability to participate in respect to the contract discussed at the pre-bid conference, all contractors are entitled to an MBE waiver in accordance with the Ordinance.
Notwithstanding this procedure, the evidence has shown that few, if any, MBEs actually attend the pre-bid conferences. This non-attendance, however, has not resulted in the automatic granting of waivers. Instead, the City has required a detailed demonstration by the contractor that a qualified MBE is not available. The Ordinance has been interpreted by the administering city officials to require 10% MBE commitment and participation. This practice has resulted in the Ordinance being a mandatory quota with a waiver provision instead of a goal. A close reading of the interaction of the Ordinance provisions leads to a similar conclusion.
It has further been shown that the affirmative action aspects of the Ordinance and its administration have created MBE brokerage businesses. The sole participation in City contracts of these businesses is to provide a business entity or front as an MBE who receives a subcontract, generally for materials, adds a commission and, thereafter, subcontracts . . . the purchase to a bona fide subcontractor or supplier. This practice has been brought to the attention of the administering City officials, but no evidence has been presented that this abuse has been stopped or attempted to be stopped. These MBE commission brokers are a fraud on the legitimate minority businesses and the taxpaying public.

COMPETITIVE BID LAW CLAIMS

Plaintiffs assert that Ordinance 77-257, as amended, conflicts with Code 1975, § 41-16-50 (Supp.1980), which provides in part:

§ 41-16-50. Contracts for which competitive bidding required; manner of awarding contracts generally; award of contracts to resident bidders; negotiation of contracts; joint contracts.
(a) All expenditure of funds of whatever nature for labor, services or work, or for the purchase or lease of materials, equipment, supplies or other personal property involving $2,000.00 or more, made by or on behalf of . . . the governing bodies of the municipalities of the state and the governing boards of instru-mentalities of counties and municipalities, including waterworks boards, sewer boards, gas boards and other like utility boards and commissions . . . shall be made under contractual agreement entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder. . . .

Code 1975, § 41-16-50(a) (Supp.1980).

Plaintiffs complain that, contrary to the statutory mandate, the ordinance requirements not only inhibit fair and open competitive bidding, but also may result in the award of a city contract to someone other than the lowest responsible bidder.

This Court has not had occasion to construe § 41-16-50; however, we have interpreted the statute governing competitive bidding on state contracts, i. e. § 41-16—20. Section 41-16-20, like § 41-16-50, requires that the contract be awarded to the lowest responsible bidder in open competitive bidding, see, Code 1975, § 41-16-20 (Supp.1980), and we believe cases construing § 41—16—20 are instructive in the instant case.

In White v. McDonald Ford Tractor Co., 287 Ala. 77, 248 So.2d 121 (1971), this Court recognized the state authorities’ broad discretion in determining whether a bidder is the lowest responsible bidder. The Court indicated, however, that the authorities’ discretion is not unbounded. The Court said:

[W]e do not mean to imply that this Court or some other court would not have the authority to declare a contract as being void because the “specifications” were written in such a manner that full and fair competition was excluded. It is fair to say that the legislative intent in passing the Competitive Bid Law was to get the best quality equipment at the lowest possible price, and the executive authorities should carry out this intent of the legislature.

287 Ala. at 86, 248 So.2d at 129.

While bid specifications are permissible where their purpose is reasonably related to contract requirements or the quality of the product or service in question, we believe that intrusive specifications wholly unrelated to contract requirements or to product suitability or quality unduly inhibit fair and open competition.

Defendant Birmingham contends that the evidence shows the ordinance has never been applied so as to exclude the lowest responsible bidder. The ordinance, however, does not require that the lowest responsible bid be accepted. Indeed, under the ordinance, the lowest bid is not considered at all unless it is accompanied either by a waiver request, or by a list of proposed MBE subcontractors. Additionally, the ordinance deters participation in the bidding process because, as the circuit court found, the ordinance requirements are time consuming and costly to contractors. As a result, we hold that the ordinance frustrates the open competitive bidding process required by Code 1975, § 41-16-50 (Supp.1980).

Of course, it is of no consequence that the ordinance contravenes the competitive bidding statute if the ordinance provisions are required by the United States Constitution. That is, the dispositive issue is whether Birmingham’s affirmative action program is constitutionally required or whether the program is merely constitutionally permissible. Our study of recent federal decisions convinces us that the program is not constitutionally required, and, furthermore, even if some affirmative action program were required, we believe that the program here imposed is not constitutionally sound.

The case of Associated General Contractors v. San Francisco Unified School District., 616 F.2d 1381 (9th Cir.), cert. denied, - U.S. -, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980), provides guidance for our resolution of the question. In that case, plaintiffs challenged an affirmative action policy adopted by the San Francisco Board of Education. Under the policy, the school district was required to award twenty-five percent of the dollar volume of certain construction contracts to minorities, either by letting the contract to a minority general contractor, or by requiring the general contractor to utilize the specified percentage of minority subcontractors. The twenty-five percent set-aside applied only to projects funded by PWEA funds, although receipt of PWEA funds was conditioned on a minority participation of only ten percent. The district court held the set-aside illegal, except as to the ten percent minority participation requirement for federally funded projects, and the school board appealed.

The United States Court of Appeals for the Ninth Circuit found the minority participation requirement in conflict with the California Education Code, which requires that a construction contract be awarded to the “lowest responsible bidder.” Furthermore, the Court sustained the code provision against constitutional attack on the basis of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), finding the competitive bid law race-neutral on its face and without discriminatory purpose. Finally, the Court found no constitutional duty to institute “stacked deck” affirmative action programs, that is, programs which deny some nonminorities the relevant benefit by imposing a preference for minorities. Since the affirmative action program was not constitutionally compelled, the competitive bid provision of the California Education Code was a constitutional exercise of state power, and the Court of Appeals affirmed the district court’s decision by holding that the set-aside policy violated the California Code provision.

We believe the San Francisco Unified School District case is in all material respects factually identical to the ease at bar. Although in that case the affirmative action program was imposed by an agency having no legislative powers, rather than, as here, by a city council having limited legislative power, a city council has no more authority than an agency to initiate programs in violation of state law or policy. See, Busch Jewelry Co. v. City of Bessemer, 269 Ala. 180, 112 So.2d 344 (1959), City of Mobile v. Madison, 40 Ala.App. 713, 122 So.2d 540 (1960). Thus, we follow the Ninth Circuit interpretation of relevant case law to conclude that Birmingham Ordinance 77-257, as amended, is invalid because the ordinance contravenes Code 1975, § 41-16-50 (Supp.1980), without constitutional justification.

FEDERAL CONSTITUTIONAL AND STATUTORY CLAIMS

Even assuming either the nonexistence or the unconstitutionality of the competitive bid law, still Ordinance 77-257 must itself pass constitutional muster before its provisions can stand. We believe that the affirmative action program proposed by the ordinance does not comport with the constitutional requirements announced in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), and Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Specifically, we hold that the ordinance violates Title VI and the Equal Protection Clause of the 14th Amendment because (1) the Birmingham City Council is not a competent body to identify and address past constitutional or statutory violations; (2) even if the council were a competent body to identify and address past constitutional or statutory violations, the council has not compiled the necessary record to demonstrate the need for the affirmative action program; and (3) even if the council were a competent body which had compiled the necessary record to demonstrate the need for an affirmative action program, the remedy imposed is not carefully tailored to rectify the continuing effects of past illegal discrimination.

Neither Fullilove nor Bakke gives this Court an absolute statement as to the equal protection analysis which should be applied in cases which question the constitutionality of affirmative action programs. Nevertheless, we believe that the approach of Justice Powell is fairly representative of a more rigorous standard of review, and for purposes of this opinion we will employ the analytical framework proposed by him.

We are reluctant to belabor the reader by quoting Justice Powell at length; however, we recognize that he most succinctly states his own reasoning and approach in cases involving equal protection challenges to governmentally imposed race preferences. For example, in the Fullilove case, Justice Powell wrote:

The question in this case is whether Congress may enact the requirement in § 103(f)(2) of the Public Works Employment Act of 1977 (PWEA), that 10% of federal grants for local public work projects funded by the Act be set aside for minority business enterprises. Section 103(f)(2) employs a racial classification that is constitutionally prohibited unless it is a necessary means of advancing a compelling governmental interest .... For the reasons stated in my Bakke opinion, I consider adherence to this standard as important and consistent with precedent.
Racial preference never can constitute a compelling state interest. “ ‘Distinctions between citizens solely because of their ancestry’ [are] ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ ” Loving v. Virginia, 388 U.S. [1], at 11, [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] quoting Hirabayashi v. United States, 320 U.S. 81, 100, [63 S.Ct. 1375, 1385, 87 L.Ed. 1774]. Thus, if the set-aside merely expresses a congressional desire to prefer one racial or ethnic group over another, § 103(f)(2) violates the equal protection component in the Due Process Clause of the Fifth Amendment. . . .
The Government does have a legitimate interest in ameliorating the disabling effects of identified discrimination. . . . The existence of illegal discrimination justifies the imposition of a remedy that will “make persons whole for injuries suffered on account of unlawful . . . discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 [95 S.Ct. 2362, 2372, 45 L.Ed.2d 280] (1975). A critical inquiry therefore, is whether § 103(f)(2) was enacted as a means of redressing such discrimination. But this Court has never approved race-conscious remedies absent judicial, administrative, or legislative findings of constitutional or statutory violations. . . .
Because the distinction between permissible remedial action and impermissible racial preference rests on the existence of a constitutional or statutory violation, the legitimate interest in creating a race-conscious remedy is not compelling unless an appropriate governmental authority has found that such a violation has occurred. In other words, two requirements must be met. First, the governmental body that attempts to impose a race-conscious remedy must have the authority to act in response to identified discrimination. . . . Second, the governmental body must make findings that demonstrate the existence of illegal discrimination. . . .
Our past cases also establish that even if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the governmental purpose. . . .

Fullilove v. Klutznick, 448 U.S. at 496-498, 100 S.Ct. at 2784-2785 (Powell, J., concurring) (citations and footnotes omitted). See also, Regents of the University of California v. Bakke, 438 U.S. at 287-320, 98 S.Ct. at 2746-2763.

Thus, when affirmative action programs are challenged, the questions are whether:

(1) The governmental body imposing the plan has the authority and capability to remedy past constitutional or statutory violations;
(2) The body compiled the record necessary to support the conclusion that past illegal conduct existed and that adverse residual effects of the conduct continue to exist; and
(3)The plan imposed is narrowly tailored to address the residual effects of the identified past violations.

Undoubtedly the Ordinance 77-257 set-aside is a racial classification resulting in a discriminatory preference for the named minority groups. Although the ordinance states that the racial preference is a goal, rather than a mandatory quota, nevertheless, a contractor is required to submit, along with his bid, either a specific plan for ten percent MBE participation in the contract, or a request for administrative waiver of the ten percent requirement. The result is that ten percent of city construction work, by dollar amount, is reserved for minority businesses.

The City’s stated purpose for imposing the racial classification was to “encourage, facilitate and effect greater participation by minority business enterprises in construction contracts let by the city.” While the City’s purpose is meritorious, it is indeed a grave measure to accomplish that purpose through discrimination against nonminorities. For this reason, the reallocation of burdens and benefits by the ordinance classification is constitutionally permissible only as the remedial response to specific illegal action against those to be benefited by the classification.

Necessarily, the Birmingham City Council must be invested with some remedial power before it can properly identify and redress past illegal conduct. Defendant Birmingham contends that the City Council, having limited police powers, is an entirely appropriate and competent body to find and address constitutional and statutory violations. In this case, we disagree.

Here, we are dealing neither with the broad remedial powers of Congress conferred by the 13th, 14th, and 15th Amendments, cf. Fullilove v. Klutznick, 448 U.S. at 483, 100 S.Ct. at 2777; 448 U.S. at 500, 100 S.Ct. at 2786 (Powell, J., concurring), nor with the limited powers of a court. Cf., Franks v. Bowman Transport Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). As Justice Powell said, “[Isolated segments of our vast governmental structures are not competent to make ... decisions [as to the propriety of race-conseious remedial action], at least in the absence of legislative mandates and legislatively determined criteria.” Regents of the University of California v. Bakke, 438 U.S. at 309, 98 S.Ct. at 2757 (footnote omitted). The governmental entity involved here, a municipality, derives all of its power from the state, and no municipality can legislate beyond what the state has either expressly or impliedly authorized. Colvin v. Ward, 189 Ala. 198, 66 So. 98 (1914). We see nothing in the limited police power granted municipalities by the state to warrant the conclusion that municipalities possess the broad remedial power to vindicate constitutional or statutory violations by employing racially discriminatory preferences, but we are not now called upon to answer that question. Certainly the state has not granted cities the power to initiate legislation in direct contravention of state law and policy favoring open competitive bidding on city contracts.

Even assuming the Birmingham City Council were competent to act, we believe the council failed to compile the necessary record to justify the ordinance. Although the ordinance commences with a declaration that historical practices of racial discrimination have resulted in minorities’ receiving an inequitable share of city construction contracts, we interpret the pertinent ease law to require more than a conclusory legislative preamble to justify the council’s imposition of discriminatory racial classifications. To hold that race-conscious remedies may be imposed without competent and particularized findings of record “would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination.” Regents of the University of California v. Bakke, 438 U.S. at 310, 98 S.Ct. at 2758. If all that is required is some statement of justification, unsupported by studies or hearings of record, then there is no substance to the requirement that the race-conscious remedy be justified by findings of past discrimination.

Defendant Birmingham presented no evidence that the ordinance was the considered response to hearings, reports, debates, or empirical studies. In fact, those persons primarily responsible for implementation and enforcement of the ordinance — the former city engineer, the acting city engineer, and the purchasing agent — all testified that they knew of no studies conducted to determine the need or justification for the ordinance. The record reflects that the ordinance was passed shortly after the circuit court’s injunction against enforcement of the mayor’s regulation requiring ten percent MBE participation. The council appears to have simply adopted the voided regulation, with some minor substantive changes and post hoc findings of past discrimination. As far as the record shows, Birmingham failed to establish that the findings were anything other than an unsubstantiated conclusion by the council.

Our opinion is not changed by the argument that the council was, by its findings, simply admitting its own past wrongs. The council members cannot speak for past city administrations and officials. Furthermore, even if it were appropriate for the City to admit its own misdeeds, absent sufficient findings, it was inappropriate and unnecessary for the City to acknowledge that discrimination has existed in Birmingham; however, past societal discrimination alone is insufficient justification to support the specific remedy dictated by the ordinance set-aside. See, 438 U.S. at 310, 98 S.Ct. at 2758.

We also conclude that Ordinance 77-257 is not narrowly drawn to advance the purported objective of ameliorating the effects of past discrimination. A glance at the ordinance suffices to establish that it was not drafted to address identified past discrimination. Included as beneficiaries of the ordinance are individuals who are “Blacks, Spanish speaking, Orientals, Indians, Eskimos, and Aleuts.” Assuming that the city council had sufficient evidence before it to justify a race-conscious preference for Blacks, nothing in the record supports the conclusion that the other named minority groups were entitled to remedial relief. Cf., Fullilove v. Klutznick, 448 U.S. at 537-9, 100 S.Ct. at 2805-06 (Stevens, J., dissenting).

The United States Supreme Court and other courts have considered various factors when deciding whether a race-conscious plan is sufficiently narrow to comport with equal protection guarantees. Factors considered are “(i) the efficacy of alternative remedies . . . (ii) the planned duration of the remedy . . . (iii) the relationship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or workforce . . . and (iv) the availability of waiver provisions if the hiring plan could not be met.” 448 U.S. at 510-11, 100 S.Ct. at 2791 (Powell, J., concurring). We believe that, viewed in light of these factors, the ordinance must fall.

We do not rule on the efficacy of non-discriminatory alternatives. At trial the issue was contested, but the trial judge did not rule on the question. Additionally, we do not address the issue of the availability of a waiver of ordinance requirements. The ordinance provisions include a waiver, although the plaintiffs contend the waiver is not applied as set down in the ordinance.

However, using factors considered by other courts, we note several infirmities in the ordinance set-aside plan. The ordinance has no time limit, and presumably the ten percent set-aside will remain in force until repealed. Additionally, there is no evidence of written regulations or guidelines. Implementation and enforcement of the ordinance are left to the discretion of administering officials. Finally, there is no indication in the record that the ten percent MBE set-aside has any relationship to the number of minority contractors available and equipped to do city construction work. Certainly, the ordinance is demonstrably broader than necessary.

Defendant Birmingham argues that Fullilove is dispositive of every issue in this case and is absolute authority that the ordinance set-aside is constitutional. In Fullilove, the Court upheld the ten percent set-aside proposed by the Public Works Employment Act of 1977. Since the Birmingham ordinance is modeled on the federal law, defendant continues, the ordinance is undoubtedly constitutional.

Although Fullilove is guidance for our resolution of the issues in this case, the result in Fullilove does not dictate our result here. In short, Fullilove turned on the Congressional authority to legislate race-conscious remedial measures. The Congressional authority is rooted in the 13th, 14th, and 15th Amendments, and without doubt the City of Birmingham has no coextensive power. Furthermore, the PWEA was limited in duration, and its provisions were implemented through extensive regulations. Although the factual differences between the instant case and Fullilove seem few, they are material.

In conclusion, we note that our decision does not and cannot foreclose the City’s enforcement of federal statutes or constitutionally imposed administrative regulations. Nor do we conclude that no municipality or state governmental entity may initiate a constitutionally sound affirmative action program. We only decide the case before us.

AFFIRMED.

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

JONES, SHORES and BEATTY, JJ., dissent.

ADAMS, J., not sitting.

JONES, Justice

(dissenting).

I would reverse on the authority of Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). In my opinion the trial court’s reliance upon Central Alabama Paving, Inc. v. James, 499 F.Supp. 629 (M.D.Ala.1980), is misplaced. The following observation from James distinguishes it from the instant case:

If the “set-aside” or goals or quotas prescribed in this case by DOT — at least to the extent that they applied to racial minorities — had been enacted by Congress, this Court would feel bound by Fullilove and would hold such goals to be consistent with the Constitution.

Fullilove, therefore, constrains me to uphold the constitutional validity of the challenged ordinance, a lawful exercise of the City’s legislative prerogative. See also, Local Union No. 35 v. City of Hartford, 625 F.2d 416 (2d Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981).

SHORES and BEATTY, JJ., concur.

      . Ordinance 77-257, as amended, provides:
      Participation By Minority Business Enterprises in Construction Contracts
      Sec. 4-1-51 Findings and purpose.
      (a) Due to historical patterns and practices of racial discrimination, minority business enterprises have not obtained an equitable share of contracts or subcontracts let by the city for construction and for the purchase of goods, materials, equipment or services. Though past official policies of overt discrimination against minorities have now ceased, the existing policies and programs of the city have not effectively eliminated the lingering present effects of this past discrimination. The city has a compelling interest in eradicating the present effects of past discrimination, and in promoting equality of economic opportunity among and between all of its citizens. Because approximately 50 percent of Birmingham’s citizens are racial minority citizens, the economic improvement and advancement of the minority community is vital to the economic health of the community as a whole and promotes the general health and welfare of all citizens of the city.
      (b) The purpose of this article is therefore to encourage, facilitate and effect greater participation by minority business enterprises in construction contracts let by the city and boards and agencies thereof. For purposes of this section, “minority business” means any business enterprise, whether individually owned or a partnership, joint venture or corporation, at least 50 percent of which is owned by minority group members, or, in the case of a publicly-owned business, at least 51 percent of the stock is owned by minority group members. “Minority group members” are citizens of the United States who are Blacks, Spanish speaking, Orientals, Indians, Eskimos and Aleuts.
      Sec. 4-1-52 Goal of fifteen percent participation established.
      (a) It is a goal of the City of Birmingham that at least 15 percent of each construction contract let by the city, the amount of which exceeds $20,000, be expended with bona fide minority business enterprises as contractors and subcontractors or suppliers of goods or services. Each contractor bidding on a city construction contract shall be required to make a good faith effort to achieve such goal. The inclusion with the contractor’s bid of a specific plan to expend at least 10 percent of a contract amount with minority business enterprises shall be accepted as sufficient evidence of a good faith effort to meet such goals. Provided, however, that as to such construction contracts of $100,000 or more, excepting contracts let for street or sewer improvements, no more than 50 percent of such plan for minority business participation shall be for the supply of goods or materials unless a waiver of this provision is obtained from the city engineer as hereinafter provided in subsection (c) hereof.
      (b) Each bidder for such a contract with the City of Birmingham must submit with his bid a listing of each minority business enterprise and the work proposed to be performed or the goods or services proposed to be furnished by each and the price contracted therefor. The bid of any bidder not providing this information shall be considered non-responsive.
      (c) At or before the time for filing the statement required by subparagraph (b) above, a written request for a waiver or partial waiver of the goal may be submitted to the city engineer. Each contractor requesting a waiver shall be afforded an opportunity by the city engineer to present evidence supporting his request for such waiver and be furnished a written ruling upon such request within two (2) days (Saturdays and Sundays and city holidays excluded) of the time of receipt of such request. The city engineer may grant a waiver for either of the following reasons:
      (1) Lack of qualified minority business enterprises in the Birmingham Standard Metropolitan Statistical Area (SMSA).
      (2) Inability to obtain reasonably competitive prices from the available minority business enterprises in the Birmingham Standard Metropolitan Statistical Area (SMSA), based on prevailing prices on the open market as determined by the city engineer. In all cases where a waiver is requested on the basis that the bid of a minority business enterprise is excessive, there shall be submitted to the city engineer at the time of such request a statement signed by the person requesting the waiver listing the names and bid amount of each person or firm bidding on the same portion or part of the contract as bid by such minority business enterprise.
      Where no minority business enterprise or its authorized representative gives written notice of a desire and ability to participate as a subcontractor or supplier of goods or services with respect to a specific contract at the pre-bid conference with respect thereto or by 10:00 a. m. of the second day (Saturdays, Sundays, and city holidays excluded) following such pre-bid conference, each contractor submitting a bid shall be entitled to a waiver.
      (d) Upon each request for payment under the contract, each contractor must provide to the city engineer in a signed writing the name or names of minority enterprises participating in the contract, the nature of the work or services such enterprises have performed or provided, and the amounts paid to such enterprises at the time of such request.
      (e) Failure to comply with the terms of this article or to utilize (as may be modified by the waiver) minority business enterprises as stated in the bid shall constitute a breach of contract with the City of Birmingham, upon which breach the city shall have the right to cancel the contract, or to withhold from unpaid sums under the contract such amounts as may be necessary to complete the work contracted for with appropriate minority business enterprise participation, should the contractor fail to fully correct such breach within 15 days of written demand for such correction by the city engineer. (Ord. No. 77-257, as amended by Ord. No. 79-140, 8/28/79).

      . The exactitude with which constitutional or statutory violations must be identified may vary with the nature and authority of the governmental body involved. Fullilove v. Klutznick, 448 U.S. at 515 n. 14, 100 S.Ct. at 2794 (Powell, J., concurring). See, 448 U.S. at 477-8, 2773—75. In view of the limited power conferred upon municipal governments, we believe that, before initiating an affirmative action program such as the one before us, the Birmingham City Council must compile a record to support a finding of past illegal discrimination.

      . As was said by Justice Powell,
      Race-conscious remedies, popularly referred to as affirmative-action programs, almost invariably affect some innocent persons. . . . Respect and support for the law, especially in an area as sensitive as this, depend in large measure upon the public’s perception of fairness. ... It therefore is important that the legislative record supporting race-conscious remedies contain evidence that satisfies fair-minded people that the [legislative] action is just.

        Fullilove v. Klutznick, 448 U.S. at 506, n. 8, 100 S.Ct. at 2789, n. 8 (Powell, J., concurring).


author: JONES, Justice.

text:
    RESTA CORPORATION v. John CHILDERS.
    80-390.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      James H. Porter of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellant.
    Julian D. Butler of Butler & Potter, Huntsville, for appellee.
   JONES, Justice.

This is a contest over the distribution of the proceeds of a property damage insurance policy between the lessor and lessee of a warehouse.

In July of 1976, Appellee John Childers, through the efforts of his real estate agent, leased an empty warehouse to Appellant Resta Corporation. With regard to insurance coverage for the premises, the lease provided:

“5. [Lessee] will be responsible for any injury to any person or persons in or about the demised premises, and it agrees to indemnify Lessor against all claims and judgments for loss, damage or injury to property or persons resulting by reason of Lessee’s use and occupanc[y] of the demised premises. Lessee shall obtain liability insurance in the amount of One Hundred Fifty Thousand and No/100 ($150,000.00) Dollars and property damage insurance in the amount of Fifty Thousand and No/100 ($50,000.00) Dollars naming Lessor as co-insured, and submit to Lessor a duplicate insurance policy or certificates certifying same.
“22. It is understood and agreed that lessee shall obtain fire and extended insurance on the premises and the name of the Lessor shall appear as party in interest. Insurance coverage shall be in the amount of Fifty Thousand and No/100 ($50,000.00) Dollars for the building. Lessee shall furnish a copy of said policy to the Lessor.

Lessee’s insurance agent was provided a copy of the lease and was requested to prepare an insurance policy to comply with the terms of the lease. Lessor received a letter from Lessee’s insurance agent, which stated in part:

“We have bound effective 8/11/76 a new multi-peril package policy through the Home Insurance Company covering 601 Holmes Avenue N. W. for Robert Res-ta/Resta Corporation d/b/a Resta & Associates. The amount of this coverage is $50,000.00 on the building and $300,000.00 personal liability . . .
“Your interest as lessor is covered in the policy for insurance on the building. As soon as the policy is received we will send you a copy of it... ”

Copies of this letter were sent to both Lessee and Lessor’s real estate agent. The “multi-peril package” referred to in the insurance agent’s letter consisted of coverage for “Business Personal Property” and “Building(s).” “Provisions applicable to Sections I, II and III” were attached to the first page of the policy as was an “Additional Perils Endorsement” applicable to Coverage A and B (A and B being the general terms, “Business Personal Property” and “Building(s)”). The pertinent portion of that endorsement states:

“PERILS INSURED AGAINST
“11. Weight of Ice, Snow or Sleet which results in physical injury to the building^) covered or containing the property covered, but excluding loss, except as the direct result of the collapse of a building^) to awnings, gutters, downspouts, outdoor radio and televisions antennas and aerials, including their lead-in wiring, masts and towers, outdoor signs, fences, swimming pools, walks, roadways or other paved surfaces, curbs, piers, bulkheads, wharves or docks, beach or diving platforms or appurtenances, retaining walls not constituting a part of the building(s), or outdoor equipment whether such property is specifically described in the Declarations or not.”

During the 2V2 years following the execution of the lease for the warehouse, Lessee made several changes and installations to better equip the building for its printing business.

On January 1, 1979, the roof of the warehouse collapsed under a weight of ice and snow, damaging both the building and Lessee’s personal business property. Lessee received $250,000.00 under the “Business Personal Property” provisions of the insurance policy, but estimates its total loss to be between $540,000.00 and $550,000.00. The insurance Company also issued a check in the amount of $45,439.93 payable jointly to Lessor and Lessee for “property damage” under the “Building(s)” terms of the insurance policy (the $50,000.00 coverage less expenditures for debris removal).

Lessor claims the proceeds of the $45,-439.93 check on the basis of paragraphs 5 and 22 (quoted above) of the lease and the provisions of the insurance policy which indicate Lessor as the insured party in interest.

Lessee maintains, however, that the “additional perils endorsement,” the only portion of the policy providing coverage for damage due to snow and ice accumulation, was purchased by Lessee on its own initiative and for its own protection and was not required ny the “extended insurance” terms of the lease.

No agreement could be reached as to the disbursement of the funds. The check, therefore, was endorsed by both parties and deposited with the Circuit Court of Madison County and a declaratory judgment action was instituted by Lessor.

After a hearing ore tenus, the trial court, finding that Lessor is entitled to the insurance proceeds, stated in part:

“The lease requires both property damage insurance (paragraph five) and fire and extended insurance (paragraph twenty-two). It is the opinion of the court that these two phrases, when read in conjunction with each other, require insurance protection from property damage caused by the weight of ice and snow.
“The actions of the parties, and particularly of [Lessee], subsequent to the lease agreement are in accord with this interpretation. The lease required [Lessee] to send to [Lessor] a copy of the policy purchased for [Lessor’s] protection. The copy sent to [Lessor] provides coverage for the snow and ice damage suffered. The amount of coverage for building damage caused by snow and ice is $50,-000.00. This amount coincides with the amount required by the lease. [Lessee’s] intention to comply with the lease by providing protection against snow and ice damage is further evidenced by the letter of its [insurance] agent. . ., sent to [Lessor] with the insurance policy. [The agent] assures [Lessor] that his ‘interest as lessor is covered by the policy of insurance on the building.’ He further described the policy as being a ‘multi-peril package.’ Nowhere does he inform [Lessor] as he could have if that had been [Lessee’s] interpretation, that not all of the perils insured against and set out in the policy were insured for [Lessor’s] benefit.

This appeal followed.

Citing Murray v. Webster, 256 Ala. 248, 54 So.2d 505 (1951), and Bell v. Barefield, 219 Ala. 319, 122 So. 318 (1929), Lessee summarizes its primary contention:

“The general rule ... is, in the absence of anything in the instrument creating the estate, or of agreement to that effect, between the parties, no duty rests upon the one or the other to insure for the benefit of a remainderman . . ., and insurance taken by one with an insurable interest in the property who pays the premiums thereon out of his own funds, is a personal indemnity to the insured .. . . ” [Emphasis in brief.]

Lessor answers:

“In this appeal, [Lessee] relies solely upon what it alleges to be the rule in Alabama that ‘in the absence of and agreement to insure between the lessor and lessee, the proceeds of an insurance policy taken out by one of them or his privy cannot be claimed, in whole or in part, by the other, even though the policy covers the value of the interest of both in the property.’ (emphasis supplied). If the rule as stated by [Lessee] is the law of Alabama, the hypothesis that begins the rule would render the rule inapplicable to this case. As stated by [Lessee], the rule applies ‘in the absence of an agreement to insure between the lessor and lessee. Judge Snodgrass found, quite specifically, that there was an agreement between Childers, the lessor, and Resta Corporation, the lessee, to provide the insurance coverage in question, that is, the weight of snow and ice. For this Court to apply that which [Lessee] contends to be the rule, this Court would have to find that Judge Snodgrass was incorrect in his determination of the existence of an agreement between the parties.” [Emphasis in brief.]

We agree with Lessor and affirm.

Our holding in the instant case in no way weakens or modifies Murray and Bell. We reaffirm the holding of each of these cases. In both Murray and Bell, there was no agreement between the parties that the occupant of the property would insure the interest of another. Here, the trial court, amply supported by the evidence found a specific agreement binding Lessee to provide the disputed coverage. Thus, the premise of Lessee’s reliance on Murray and Bell is missing.

Indeed, when the two pertinent “insurance” provisions of the lease are construed together, coupled with the conduct of the parties giving effect to these provisions, a finding contrary to that made by the trial judge would, at the very least, be against the great weight and preponderance of the evidence. See Charles H. McCauley Associates v. Snook, 339 So.2d 1011 (Ala.1976) and Marcrum v. Embry, 291 Ala. 400, 282 So.2d 49 (1973).

That Lessor had an insurable interest in his own building is beyond debate. That Lessee provided $50,000.00 of property damage (“Building(s)”) insurance is an objective fact, as is the roof-collapse damage to the building. Moreover, the proceeds paid by the insurance company accorded with the conduct of the parties with respect to the lease agreement and the terms of the insurance contract. While the difference in the terminology between “extended insurance coverage” and “additional perils endorsement” may have significance within the insurance industry, such difference, if any, is not determinative of the legal issue of coverages between Lessor and Lessee in view of Lessee’s contractual obligation under the lease to provide Lessor with building-risk insurance.

While we would hesitate to classify Lessor’s reliance on the ore tenus rule as misplaced, any inference of fact contrary to the trial court’s findings would surely be a strained one. To be sure, an argument could be made that the trial judge was compelled by the evidence to draw but a single inference: that the “insurance” provisions of the lease are clear and unambiguous, requiring Lessee to insure against the very risk here in controversy; but this we need not decide.

Finding evidentiary support for the trial judge’s findings of fact, and finding no error in his application of the law to those facts, we affirm the judgment.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Dan BUSSEY and Gabie Bussey v. Howard BUSSEY.
    79-916.
    Supreme Court of Alabama.
    Aug. 28, 1981.

      Ray F. Robbins, II, of Gaines, Cleckler, Robbins & Goodrich, Talladega, for appellants.
    Huel M. Love of Love, Love, Lawrence & Wood, Talladega, for appellee.
   ALMON, Justice.

This is an appeal from a judgment fixing the boundary line between adjoining land owners. We reverse.

In 1935, L. J., and Esther Bussey purchased a parcel of land in Talladega County, Alabama, from Blance Best. They conveyed this parcel to one of their sons, Gerald, in 1964. In 1972, Gerald sold the property to his brother Dan and his wife, Gabie. The coterminous parcel of land was purchased in 1955 from B. S. Storey by Howard Bussey, Dan and Gerald’s brother. The two parcels, both of which were used for farming, were situated so that the western boundary of Howard’s property formed the eastern boundary of Dan’s property. Due to an error in the deed descriptions, however, the boundary lines overlapped. (See appended diagram supplied by this Court, not to scale.) This error was discovered in 1962 when Howard had his property surveyed. No issue was made of the error at that time. A second survey, conducted in 1974 at Howard’s request, yielded the same result. Notwithstanding the results of this survey, Dan continued his practice of farming over the boundary line described in his deed eastward up to an old barbed wire fence located on what is alleged to be Howard’s property. In those areas where the barbed wire fence no longer exists, either a hedgerow or turnrow was, or is visible. In 1975, Howard filed suit, alleging a dispute over the common boundary and requesting the court to establish the true line. Dan and Gabie answered by alleging that they or their predecessors in title had adversely possessed the strip of land in question and therefore the old fence and hedgerow had become the true boundary between the two parcels.

The court granted Howard’s motion to permit Moody Ray to enter upon the property and survey the boundaries. Ray’s survey showed that the boundary line according to the description in Howard’s deed was approximately 250 feet west of the common boundary asserted by Dan and Gabie.

Upon completion of the testimony, the trial court determined that neither L. J. Bussey, nor his son and successor to title Gerald, had the requisite intent to adversely possess the land in question. The court based its finding on the silence of both L. J. and Gerald subsequent to the two surveys of Howard’s property. The court further determined, without explanation, that their possession was not continuous. Accordingly, the court entered a decree which established the boundary line as that found by Moody Ray in his survey.

At trial, the deposition of L. J. Bussey was offered and admitted into evidence. He testified that he has been familiar with the property and property lines in question for more than sixty-three years. According to L. J., he, Gerald and Dan have farmed up to the old fence and hedgerow that established the common boundary line between the properties presently owned by Dan and Howard for more than forty years. He stated that the fence and hedgerow had established the common boundary between the two parcels for at least sixty and probably closer to one-hundred years. He also testified that during the time he farmed the property now owned by Dan, that Howard had helped him cultivate the land and did so up to the common boundary of the fence and the hedgerow. During the past sixty years no one else to his knowledge has claimed ownership west of the fence until now.

Sam Allen Smith testified that he had rented from Storey the property now owned by Howard. He farmed the property for fifteen years and during that time he farmed up to the barbed wire fence which he understood to be the property line. The fence was the same one described by L. J. Bussey.

Mildred Smith, one of Dan and Howard’s sisters and no relation to Sam Allen Smith, testified she was fifty-nine years old and had been raised on the property in question. She further testified that the old fence established the common boundary line between the two properties and that it was customary for the owners and lessees to farm up to that fence.

An aerial photograph of the property was introduced into evidence during the testimony of two Agricultural Stabilization and Conservation Service employees. The photograph showed the common boundary as the barbed wire fence. Mary Forrest testified that the boundary had been placed on the map based upon the Service’s information and investigation. Maurice Christopher stated that the photograph reflected the boundary as he had known it for more than thirty years.

Howard Bussey testified that there was a visible turnrow between the two parcels prior to the time he purchased his property from Storey in 1955, but that it had not remained due to subsequent cultivation.

The foregoing makes it clear that from the time L. J. purchased his property in 1935 until Howard purchased his land from Storey in 1955, L. J. Bussey farmed the land up to the barbed wire fence. Property owners, lessees and others in the community considered the fence to be the true boundary between the two tracts.

The law says that where a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Sylvest v. Stowers, 276 Ala. 695, 166 So.2d 423 (1964). In this instance the twenty-year prescriptive period was satisfied. It is beyond dispute that L. J. Bus-sey met the above stated requirements and hence gained title of the land up to the barbed wire fence by adverse possession. Such was the case before Howard had purchased his property from Storey. The fact that L. J. and Howard later farmed the adjoining properties as one continuous field in no way changes this result. The applicable rule was stated in Mardis v. Nichols, 393 So.2d 976 (Ala.1981), as follows:

“For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is &' finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title.”

In the present case, Dan and Gabie entered into possession of the entire property up to the barbed wire fence and hence such possession along with transfer of the deed was sufficient to raise the privity essential to allow tacking of their predecessor’s claim of title by adverse possession to their own claim. It is clear from the deposition of L. J. Bussey, the father of the principal litigants, that he did in fact possess and intended to possess the property up to the old wire fence.

It follows, therefore, that the trial judge’s determination of the issues before him was erroneous and is due to be reversed. The case is remanded to the Circuit Court to make a determination of the exact location of the common boundary, which has been described as being an old barbed wire fence and hedgerow, and to establish the same as the true boundary between the properties involved.

REVERSED AND REMANDED.

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

APPENDIX


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    STATE of Alabama v. Idelle BURTON.
    79-948.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Thomas Coleman, Birmingham, and J. Brent Thornley of Maddox, MacLaurin, Nicholson & Thornley, Jasper, for appellant.
    Morris W. Savage and Charles R. Stephens of Bankhead, Savage & Stephens, Jasper, for appellee.
   EMBRY, Justice.

This appeal by the State of Alabama is from a judgment entered upon a jury verdict awarding damages in the amount of $95,200 to Idelle Burton, a portion of whose property was condemned for a right-of-way to be used in the reconstruction of a public highway. We reverse.

The State presents as its version of the issues for review the following:

I
Did the trial court err in overruling appellant’s motion for new trial where the highest amount of damages testified to was $65,000.00 and the jury returned a verdict of $95,200.00?
II
Did the trial court err in its oral instructions to the jury at the close of the case that they were to give the property owner the benefit of the doubt if they were undecided between two figures for damages and return a verdict for the higher of the two amounts?
III
Is there reversible error where a jury verdict is based on sympathy for the defendant?
IV
Is the sale of a parcel of property admissible where the land was enhanced by the condemnation proceeding, and where the consideration was cash and the exchange of an automobile? [Citations omitted.]

Although not necessary in order to decide this case we think it appropriate to comment regarding issue I. From a review of the evidence, it appears there was evidence which would authorize the jury to award damages in the amount of its verdict of $95,200. In the court’s oral instructions to the jury the following statement was made:

I further charge you in this connection that the property owner in this case is entitled to the benefit of the doubt. If in attempting to arrive at a verdict in this case, you have two figures in your mind which you cannot decide, you should give this property owner the benefit of the doubt and give her the highest figure, for the simple reason that should you learn next week that you were mistaken and that you didn’t give her enough, then you cannot come back and undo that and do it over. So, in that respect, and in that respect only, you should give this property owner the benefit of the doubt, if you have any doubt about it — the difference of the value of the property before it was taken and after it was taken.

As was proper, outside the presence of the jury, the following objection was made, and exception taken, by counsel for appellant:

. . .Your Honor, first of all I would like to ask if the Court did as it indicated to me from the first request as to what the Court charge was going to be — You indicated you were going to charge that the burden was on the owner to show damages and I don’t believe that was done.
Then, my only exception to the charge would be, and I’m not positive about my grounds of this. Where Your Honor says that if you arrive at two different figures in your deliberation, you will give the property owner the highest figure and you will give her the benefit of the doubt if you have such a doubt. Now, I would like to except to that. Is Your Honor familiar with that charge that you gave?
COURT: That’s an old country charge that we use out here in the country.
MR. COLEMAN: I haven’t heard that before and I would like to except to that, Your Honor.

The only corrective action taken by the trial court following the objection and exception reads as follows:

I forgot to mention one factor in this case which is a little peculiar, whereas in eases of this kind as far as the burden of proof is concerned. The burden of proof in this case is not on the State of Alabama to establish the value of the property taken, the burden of proof in this case, is on the property owner to reasonably satisfy you from the evidence of how much she is entitled to, if any.

It is the judgment of this court that the attempted corrective statement of the trial court is insufficient to correct the error inherent in the statement about giving the property owner the benefit of the doubt, etc. In effect, that charge placed the burden of proof on the State of Alabama to establish the value of the property taken, even though the trial court later stated that the State did not have that burden. It is the landowner who bears the burden of proving damages in a condemnation proceeding. Alabama Power Co. v. Hamilton, 342 So.2d 8 (Ala.1977). A charge which misplaces that burden of proof is reversible error. Smith v. Civil Service Board of the City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974); Associated Doctors Health & Life Ins. Co. v. Hanks, 44 Ala.App. 92, 203 So.2d 148 (1967).

If, for the sake of argument, one were to conclude that the complained of instruction did not shift the burden of proof with regard to value of property taken, it was otherwise extremely prejudicial and almost amounted to a directed verdict in behalf of the property owner as to the amount of damages to be awarded. Under the evidence in this case, it is true that an award of $108,600 could be justified. It is also true that the erroneous instruction undoubtedly infected the jury’s verdict. With an instruction to resolve any doubt in favor of the property owner and give her the highest figure if the jury had two figures in mind about which they could not decide, certainly the jury could not impartially regard testimony which would have awarded only $65,000 or $48,600; these figures being among several testified to regarding the proper amount of damages to be awarded for taking the Burton property.

We see no benefit to the trial court or to the litigants, on retrial of this case, to be derived from our addressing errors assigned as issues III and IV.

For the stated reasons, this action is due to be and is hereby reversed and remanded.

REVERSED AND REMANDED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

In Louisville and Nashville Railroad Co. v. Garrett, 378 So.2d 668 (Ala.1979), we held that to preserve an error for review as to a charge to the jury, Rule 51, ARCP, requires that the party claiming error must not only enter an objection, but also state the grounds therefor. Here the appellant objected and recited the objectionable portions of the jury charge. While we uphold the principle in Louisville and Nashville, supra, an exception may arise where the error is one of substantive law and is clearly erroneous, as well as prejudicial. Gardner v. Dorsey, 331 So.2d 634 (Ala.1976). This is the case here. It is for these reasons I agree that the trial court is due to be reversed.


author: WRIGHT, Presiding Judge.

text:
    Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins, Deceased, v. Michael William HANDLEY, Joseph P. LoBianco, and LoBianco Trucking Company Inc., a corporation.
    Civ. 2239.
    Court of Civil Appeals of Alabama.
    June 4, 1980.
    Rehearing Denied July 9, 1980.

      Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler and M. A. Marsal, Mobile, for appellant.
    Richard W. Vollmer, Jr., and Patricia K. Olney of Reams, Tappan, Wood, Vollmer, Philips & Killion, P. C., Mobile, for appellee Michael William Handley.
    Jasper P. Juliano and W. J. McDaniel of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellee Joseph P. LoBianco and LoBianco Trucking Co., Inc.
   WRIGHT, Presiding Judge.

This is a wrongful death case.

Joseph Ray Rollins, the fourteen-year-old son of plaintiff Roger Rollins, was killed in an automobile accident on June 21, 1977.

The accident occurred in Baldwin County, Alabama, at an intersection of U. S. Highway 31 and Alabama Highway 181. Both highways are non-limited access highways. Highway 181 is four-laned at the intersection while Highway 31 is two-laned with a turn lane. The intersection is controlled by stop signs on Highway 181.

The evidence showed that at the time of the accident the left lane of Highway 181 was blocked at the intersection by a disabled truck. The truck was loaded with pulpwood. Defendant Handley stated he approached the intersection and stopped behind the disabled truck and at least one other automobile. Upon determining that the traffic in the left lane was stalled, Handley moved into the right lane to proceed through the intersection. There was conflicting testimony as to whether Hand-ley stopped at the stop sign before proceeding into the intersection, but it is uncontro-verted that he had moved onto Highway 31 when his automobile was struck from the left by a tractor-trailer truck driven by the defendant LoBianco and owned by the defendant LoBianco Trucking Company, Inc.

The truck was deflected by the impact across Highway 31 and into an automobile which was parked at a roadside fruit stand. The automobile was pushed toward the fruit stand where it struck and killed the plaintiff’s son.

The plaintiff brought this action for wrongful death against the defendants in Mobile County Circuit Court. After a two-day trial the jury returned a verdict in favor of the plaintiff against the defendant Handley and awarded damages in the amount of $5,000.

Plaintiff’s motion for new trial was denied and the plaintiff appeals.

Plaintiff contends that the trial court erred to reversal in admitting the testimony of the investigating officer that he did not charge Handley with running a stop sign.

Generally evidence that no charge was made against a driver as a result of a traffic accident would be inadmissible in the trial of a civil case arising out of such accident. See, Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla.1956); Balls v. Crump, 256 Ala. 512, 56 So.2d 108 (1952). However, where the relevance of the evidence is shown it may be admissible. Here, the officer testified under cross-examination by counsel for defendant LoBianco that defendant Handley admitted to him that he ran the stop sign.

Thereafter, counsel for Handley asked the officer if he charged Handley with running a stop sign. Counsel for LoBianco and plaintiff’s counsel objected generally. The trial court allowed the officer’s answer as rebuttal to the testimony elicited by counsel for LoBianco.

Where evidence is admissible for some purpose, a trial court will not be put in error for failure to sustain a general objection. Cities Service Oil Co. v. Griffin, 357 So.2d 333 (Ala.1978); Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963). We consider this evidence admissible to impeach the officer’s prior testimony that Handley admitted running the stop sign. In any event, there was no prejudice to plaintiff in view of the verdict. The jury did find that defendant Handley was negligent. When a successful plaintiff appeals, the issues are limited to the sole question of adequacy of damages. Caudle v. Sears, Roebuck & Co., 236 Ala. 37, 182 So. 461 (1938).

We find no merit in plaintiff’s contention that the trial court erred in refusing his requested charge concerning the prima facie speed limit in a business district set out in § 32-5-91(b)(5), Code of Alabama (1975). “Business district” is defined by the Code as: “The territory contiguous to a highway when 50 percent or more of the frontage thereon for the distance of 300 feet or more is occupied by buildings in use for business.” § 32-1-1(3), Code of Alabama (1975).

The evidence in the record shows only one business, the fruit stand, within three hundred feet of the intersection. This area was clearly not a “business district” as defined by the statute and the charge was properly refused.

Plaintiff also contends that the trial court erred in refusing his requested charge concerning the prima facie speed limit of fifteen miles per hour when approaching and traversing an intersection where the driver’s view is obstructed. § 32-5-91(b)(3), Code of Alabama (1975).

According to the statute, a driver’s view is deemed to be obstructed when “at any time during the last 50 feet of his approach to such intersection, he does not have a clear and uninterrupted view to such approach to such intersection and of the traffic upon all of the highways entering such intersection for a distance of 200 feet from such intersection.” § 32-5-91(b)(3), Code of Alabama (1975).

Plaintiff argues that the disabled pulpwood truck created an obstruction which brought the intersection under this statute. There was testimony that a pulpwood truck was stopped in the left turn lane of Highway 181 as defendant LoBianco approached the intersection and as defendant Handley entered the intersection. Plaintiff contends that the pulpwood truck loaded with wood created an obstruction and brought the speed of LoBianco within the limits of the statute. We do not agree. A vehicle stopped at the intersection in a lane of traffic controlled by a stop sign does not comprise an obstruction to an approaching driver’s view of all traffic approaching the intersection for a distance of 200 feet within the meaning of the statute. According to the evidence, the Handley vehicle either was already stopped at the intersection as LoBianco approached within fifty feet or was nearing the intersection and failed to stop. LoBianco stated the latter and stated he saw the Handley vehicle as it approached and expected it to stop. There was no evidence that there was any obstruction of LoBianco’s view of the approaches to the intersection for a distance of 200 feet within the meaning of the statute.

Plaintiff contends that the trial court erred in refusing to give his requested jury charges concerning the “sudden emergency doctrine.” The substance of the sudden emergency doctrine is that a person who is faced with a sudden emergency, not of his own making, will not be held to the same correctness of judgment as if he were faced with normal and ordinary conditions. Birmingham Railway, Light & Power Company v. Fox, 174 Ala. 657, 56 So. 1013 (1911). It is a question for the jury whether an emergency situation exists, whether it was created by the one seeking to invoke the rule, and whether or not his conduct under all the circumstances amounts to negligence. Clark v. Farmer, 229 Ala. 596, 159 So. 47 (1935); Birmingham Railway, Light & Power Company v. Fox, supra.

The instruction given in this case on the sudden emergency doctrine reads as pertinent:

If a person, without fault of his own, is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation, . . . but the standard of care required in an emergency situation is that care which a reasonably prudent person would have exercised under the same or similar circumstances.

Plaintiff objected to the court’s oral charge on sudden emergency with the general objection that there was no evidence to support it. Though we tend to agree that there was little if any reason why it should have been given, we see no injury to plaintiff in giving it. This is so, because the doctrine certainly could not be applied to defendant Handley, and clearly was not. It might be argued that Handley’s sudden entry into the intersection presented defendant LoBianco with a sudden emergency. Gleichert v. Stephens, 291 Ala. 347, 280 So.2d 776 (1973). However, there was no evidence of negligence thereafter by Lo-Bianco, nor that he was responsible for its happening. According to the undisputed evidence, he had no further control over his truck after the collision except using full brakes. It is undisputed that he did that.

In any event, as we stated, plaintiff’s objection was general and did not designate to which defendant the doctrine did or did not apply. We find no material injury to plaintiff in the court’s oral charge. Rule 45, ARAP.

The same ruling applies to the requested written charges of plaintiff. The charge given is an approved charge in Alabama Pattern Jury Instructions. APJI, Civil, 28.-15. The requested charges only tended to amplify it and failed to designate to which defendant they were to be applied. We find no reversible error in that plaintiff did recover judgment. Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974).

Plaintiff last complains of error in failure to grant a new trial for inadequacy of damages. He recognizes that the award of damages in a wrongful death action is punitive and a matter solely within the discretion of the jury. However, he contends the controlling case law epitomized by Louisville & Nashville R. R. Co. v. Street, 164 Ala. 155, 51 So. 306 (1909) and Crenshaw v. Ala. Freight, Inc., 287 Ala. 372, 252 So.2d 33 (1971) should be superseded. We disagree on principle and refuse the request for want of authority.

Finding no reversible error, the judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.