author: SHORES, Justice.

text:
    Ricky McDONALD, et al. v. ROYAL GLOBE INSURANCE COMPANY, a corporation.
    80-224.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    Rehearing Denied April 23, 1982.
    Ted Taylor and Roger S. Morrow, Pratt-ville, for appellant Ricky McDonald.
    Dan Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellant Coaches Corner, Inc.
    Harry Cole and David E. Allred of Hill, Hill, ’ Carter, Franco, Cole & Black, Montgomery, for appellee Royal Globe Ins. Co.
   SHORES, Justice.

Coaches Corner, Inc., is a night club located in Montgomery, Alabama. On January 21, 1979, a fracas occurred when the manager noticed two Corley boys in the club. One of them had previously been barred from the club and, because of this, the manager, Michael Murphy, asked the Corley boys to leave. Murphy testified that when he did, Ricky McDonald, who was standing with the Corley boys, cursed him and said if Murphy made the Corleys leave, he would also have to make McDonald leave. According to Murphy, the three surrounded him, and a fight ensued. Murphy said that he was hit first, but McDonald contradicted this. In any event, several people were involved in the “free-for-all,” including Ralph Huekabee, the assistant manager of the club, who came to Murphy’s assistance. McDonald ended up in the hospital for a week.

The incident occurred on January 21, 1979. Murphy swore out an arrest warrant against McDonald. That ease was tried in the Montgomery city court in late May, 1979. In October, 1979, a nolle prosequi was entered on the city court case.

Ricky McDonald’s father called Murphy sometime in May, 1979, and told him that, unless he dropped the charges against his son and paid his hospital expenses, he would sue him.

In November, 1979, McDonald and the Corleys filed a damage suit alleging assault and battery against Coaches Corner, Inc., Michael Murphy, Ralph Huekabee, Bobby Crew, and Jonathon Rowe. Coaches Corner hired a lawyer and, in December or January, asked Palomar Insurance Corporation, an authorized agent of Royal Globe Insurance Company (Royal Globe), to forward to it a copy of the policy in question here. Palomar never sent a copy, but one of its employees testified that he delivered the original to Coaches Corner. Murphy testified that Coaches Corner never received it, and he had never seen it.

The Corleys dismissed their claims, and McDonald dismissed his claim against Rowe. The jury returned a $75,000 verdict against Coaches Corner, Inc., Murphy, and Huekabee, in favor of McDonald.

The summons and complaint were received by Royal Globe on January 15, 1980. Coaches Corner and Royal Globe entered into a non-waiver agreement before Coaches Corner filed an answer to the complaint.

Royal Globe filed a declaratory judgment action against all parties to the damage suit to determine whether it had an obligation to defend Coaches Corner, Murphy, and Huekabee in the suit and whether it had liability for the judgment rendered against them. Defendants Coaches Corner, Murphy, Huekabee, Crew, and Rowe answered the complaint for declaratory judgment suit with a denial and asserted a counterclaim, seeking damages and attorney fees incurred in the defense of the damage suit.

The trial court granted summary judgment in favor of Royal Globe and against Murphy and Huekabee. The case was submitted to a jury on the issue of Royal Globe’s insurance coverage of the acts complained of in the damage suit and its duty to defend Coaches Corner in the suit brought against it by Ricky McDonald. The jury answered, as indicated, the following special interrogatories:

“Were the injuries and damages to Ricky McDonald at Coaches Corner on January 21, 1979 inflicted during an ‘occurrence’ within the meaning of the provisions of the policy of insurance which read as follows: ‘Occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.’ Yes X No--
“Did Coaches Corner, Inc. comply with the following provisions of the policy of insurance which read as follows: ‘4.(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. (b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.’ Yes_No X.
“If your answer to Question Number 2 is ‘no’ then are you reasonably satisfied from the evidence that Coaches Corner, Inc. has shown excuses which would reasonably justify delay? Yes X No _..
“Are you reasonably satisfied from the evidence that Royal Globe Insurance Company breached its contract of insurance with Coaches Corner, Inc. and if so, is Coaches Corner entitled to any damages incurred by having to retain an attorney? Yes X No -. If so, the amount of such damages are assessed at $1,775.00 dollars.”

The trial court entered a judgment based on the verdict, holding that liability coverage was due to be afforded to . Coaches Corner by Royal Globe, and that the late notice of the occurrence was reasonably justified. It also entered judgment in favor of Coaches Corner on its counterclaim in the sum of $1,775.00.

Thereafter, Royal Globe filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court entered an order granting Royal Globe’s motion for judgment notwithstanding the verdict as to Royal Globe’s complaint and as to Coaches Corner’s counterclaim.

Coaches Corner and Ricky McDonald appealed from this order, and Murphy and Huckabee appealed from the court’s order granting summary judgment against them.

In granting the J.N.O.V., the trial court held as a matter of law that Coaches Corner failed to show a reasonable excuse for not giving Royal Globe timely notice of the incident made the basis of the damage suit against it by Ricky McDonald. That is the dispositive issue on the Coaches Corner-Ricky McDonald appeal.

The pertinent policy provisions are:

“4. Insured’s Duties in the Event of Occurrence, Claim or Suit.
“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
“(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
“5. Action Against Company. No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy. . . . ”

Does the above present an issue of fact for a jury on the reasonableness of the delay in notifying Royal Globe of the incident, or do these facts show as a matter of law that the delay was unreasonable? We hold that a fact issue was presented, and we reverse.

There is no disagreement on the applicable rule of law. In Southern Guaranty Insurance Company v. Thomas, 334 So.2d 879 (Ala.1976), we said:

“Where facts are disputed or where conflicting inferences may reasonably be drawn from the evidence, the question of the reasonableness of a delay in giving notice is a question of fact for the jury. Provident Life & Accident Insurance Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934). Conflicting inferences concerning the reasonableness of a delay may sometimes be drawn where the insured offers evidence of mitigating circumstances.
“ ‘However, where an insured fails to show a reasonable excuse or the existence of circumstances which would justify a protracted delay, the Court should as a matter of law hold that there has been a breach of the condition as to notice. . .. ’
Zurich General Accident & Liability Insurance Co. v. Harbil Restaurant, Inc., 7 A.D.2d 433, 184 N.Y.S.2d 51, 53 (1959). Accord, Provident Life & Accident Insurance Co. v. Heidelberg, supra; Annot., 18 A.L.R.2d 443, 504ff. See also Lennon v. American Farmers Mutual Insurance Co., 208 Md. 424, 118 A.2d 500 (1955), where it was held that
“ ‘[w]here the facts are undisputed and only one conclusion is reasonably possible, the question whether or not the insured under a liability policy complied with the requirement of notice is a question of law for the court; but where the facts are disputed or more than one conclusion is reasonably possible, the question is one for the jury.’ ”

334 So.2d 879, 882-883.

In granting the J.N.O.V., the trial court held that the insured had failed, as a matter of law, to show a reasonable excuse justifying the delay in notifying the insurer under the rule announced in Southern Guaranty.

In that case, however, the insured was repeatedly advised by his own lawyer to bring his policy to him and failed to do so and failed to notify the insurer although specifically advised by the injured party’s lawyer to notify his carrier. He was also informed unequivocally that suit would be filed against him. It was also undisputed that he had in his possession the policy itself. Here, on the other hand, the evidence was in sharp dispute as to whether the original policy was ever delivered to the insured and, when a copy was sought, it was not delivered because the agent said the policy was due to expire in a week or so, and a new one issued anyway. Additionally, distinguishing this case from Southern Guaranty, Murphy testified that, because of the nature of his business, he is threatened with suit frequently but is seldom sued. Therefore, he said, he did not take seriously the threatening call from McDonald’s father.

Under all of these circumstances, we cannot agree with the trial court that the excuses offered for the delay were unreasonable as a matter of law.

This result is consistent with this Court’s holding in Stonewall Insurance Company v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973); State Farm Fire and Casualty Company v. Hartford Accident and Indemnity Company, 347 So.2d 389 (Ala.1977), and Pinson Truck Equipment Company, Inc. v. Gulf American Fire and Casualty Company, 388 So.2d 955 (Ala.1980).

The judgment granted notwithstanding the jury verdict is reversed.

We now turn to the appeal from the summary judgment granted in favor of Royal Globe and against Murphy and Huck-abee.

Apparently, summary judgment was granted in favor of Royal Globe and against Murphy because the trial court concluded, as a matter of law, that the act complained of in the McDonald suit was intentional from the standpoint of Murphy and, thus not covered under the policy. Murphy owns a substantial block of stock in Coaches Corner and is the general manager of Coaches Corner. Thus, he is an insured as defined in the policy:

“(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such.”

The policy provides coverage for an occurrence, which is defined as “an accident . . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

Again, we cannot agree. First, we note that intent is not a necessary element of assault and battery, which is the tort which the McDonald complaint alleged, and the trial court in that case so charged the jury. A.P.J.I., “Assault and Battery,” § 5.00. Honeycutt v. Louis Pizitz Dry Goods Company, 235 Ala. 507, 180 So. 91 (1938). Therefore, we cannot say as a matter of law that the injury inflicted by Murphy on McDonald was expected or intended by Murphy. Whether it was or not presents an issue of fact. Hartford Fire Insurance Company v. Blakeney, 340 So.2d 754 (Ala.1976); Smith v. North River Insurance Company, 360 So.2d 313 (Ala.1978); Armstrong v. Security Insurance Group, 292 Ala. 27, 288 So.2d 134 (1973); Lawler Mach. & Foundry Company, Inc. v. Pacific Indemnity Insurance Company, 383 So.2d 156 (Ala.1980). Therefore, it was error to grant summary judgment on this issue as to Murphy.

It was, likewise, error to grant summary judgment in favor of Royal Globe and against Huckabee on the ground that the injury to McDonald was intended by Huck-abee, if Huckabee is an insured under the policy. However, based upon the record before us, Huckabee is not an insured, being neither an executive officer, director, nor shareholder in Coaches Corner, Inc. (testimony of Murphy at R. 287). This is uncon-tradicted. Therefore, it was not reversible error to grant summary judgment on the coverage question in favor of Royal Globe and against Huckabee.

The order granting judgment notwithstanding.the verdict in favor of Royal Globe is reversed. The order granting summary judgment in favor of Royal Globe and against Murphy is reversed. The order granting summary judgment in favor of Royal Globe and against Huckabee is affirmed.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Augustus KENDALL and Betty Kendall v. BAY LA LAUNCH COMMUNITY ASSOCIATION, INC.
    80-558.
    Supreme Court of Alabama.
    March 19, 1982.
    Rehearing Denied April 23, 1982.
    Robert G. Kendall of Johnston, Johnston & Kendall, Mobile, for appellants.
    Robert A. Wills of Wills & Vargo, Bay Minette, for appellee.
   SHORES, Justice.

Bay La Launch Estates, Units I and II, is a subdivision which has been platted and recorded in the probate court in Baldwin County. The real property which is the subject of this suit is designated on both plats as “Park C,” lying on the west side of a forty-foot canal. This park and two others in the subdivision were specifically reserved for the use of the lot owners.

Bay La Launch Community Association, Inc., is a nonprofit corporation whose members are persons who own lots in the subdivision. The complaint filed by the corporation alleged that the Kendalls, who own two lots in the subdivision, had barricaded the southern entrance to Park C and blocked entry by the members of the corporation. It sought an order requiring the Kendalls to remove the barricade and permanently enjoining them from interfering with its use by lot owners. It also sought an order restoring possession of the property designated as Park C on the plat.

The Kendalls filed an answer and counterclaim whereby they alleged that a dispute existed between the parties as to the location of the boundary line between the lots owned by the Kendalls and Park C and the road leading thereto.

The complaint was thereafter amended to ask the court to declare the existence and extent of the public road lying along and between the canal and the eastern boundaries of Lots 1, 2, 3, 4, 5, and 6 of Block One of Bay La Launch Estates, according to the recorded plat.

The court found that the plat indicated a road or public way of not less than sixty feet in width leading to the lot designated as Park C on the plat. The case proceeded to a trial. Three different surveys were admitted into evidence. They are in agreement only as to the location of the southeast corner of Lot 3. They disagree slightly as to the boundary line between Lots 4, 5, and 6 and the road easement. One survey establishes it six feet west of the line as shown on the plat. Another puts it twelve feet farther west. The recorded plat itself does not show the angle of the baseline as it projects from the southeast corner of Lot 3.

The court adopted one of the three surveys, referred to as the Givens survey. As indicated, there are discrepancies among the surveys. However, there is evidence which, if believed as the trial judge obviously did, justified the conclusion that the Givens survey correctly depicts the true boundary line between the lots and the road. Givens testified that his survey accurately depicted the line and was based upon physical evidence found on the ground itself.

We have said repeatedly that, in boundary line disputes between coterminous lands, we uphold a trial judge’s finding on disputed facts, unless it is palpably erroneous or manifestly unjust. Ray v. Robinson, 388 So.2d 957 (Ala.1980); Jemison v. Belcher, 368 So.2d 849 (Ala.1979).

We find no reversible error.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: MADDOX, Justice. MADDOX, Justice.

text:
    Winnie ALLEN, as Executrix of the Estate of Anna Z. Knight, Deceased v. The MOBILE INFIRMARY and Dr. Jeff Lousteau.
    80-699.
    Supreme Court of Alabama.
    March 19, 1982.
    Rehearing Denied April 23, 1982.

      Norman J. Gale, Jr. of ■ Clay, Massey, Street & Gale, Mobile, for appellant.
    James J. Duffy, Jr., and Edward C. Greene of Inge, Twitty, Duffy & Prince, Mobile, for appellee Mobile Infirmary.
    Broox G. Holmes and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Charles Stakely, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee Dr. Jeff Lousteau.
   MADDOX, Justice.

This is a medical malpractice action. Plaintiff sued The Mobile Infirmary and Dr. Jeff Lousteau, and alleged alternatively that defendants either negligently (first cause of action), or recklessly (second cause of action), allowed a respirator tube to be pulled from the throat of plaintiff’s decedent, which plaintiff alleged caused decedent’s post-operative distress and ultimately led to her death some fifteen days later. Defendants filed a motion for summary judgment, which was granted by Judge Braxton Kittrell in the Circuit Court of Mobile County. After a careful review of the record, including affidavits and depositions, we reverse.

Plaintiff Winnie Allen is the executrix of the estate of her mother, Anna Knight, the decedent. Mrs. Knight underwent surgery on April 27, 1979, at The Mobile Infirmary to alleviate vessel blockage following the insertion of a permanent pacemaker. The anesthetic was administered by defendant Dr. Lousteau. As already stated, the plaintiff claimed that Dr. Lousteau and The Mobile Infirmary were negligent and reckless in the post-operative care of her mother, in that the decedent pulled the respiratory equipment from her throat and nose, thereby causing respiratory difficulty, which ultimately resulted in her death. Defendants Lousteau and The Mobile Infirmary deny that any action taken by them was malpractice. They filed affidavits from the nursing staff and doctors at The Mobile Infirmary to support their contention that no genuine issue of fact was presented.

Summary judgments are rarely appropriate in negligence cases. For summary judgment to be appropriate, the defendants must make a strong showing from the facts that the plaintiff could not prevail under any set of discernible circumstances. Folmar v. Montgomery Fair, 293 Ala. 686, 309 So.2d 818 (1975), Raley v. Royal Insurance Co. Ltd., 386 So.2d 742 (Ala.1980). When there is a scintilla of evidence supporting the position of the party against whom summary judgment is sought, the motion should be denied. Coggin v. Starke Brothers Co., Inc., 391 So.2d 111 (Ala.1980). Plaintiff presented at least a scintilla of evidence by filing an affidavit of Dr. Linda E. Norton, a licensed physician with a specialty in forensic pathology. Dr. Norton stated:

“It is my opinion that between 11:10 a. m. and 11:30 a. m. on April 27, 1979, the decedent developed post-operative respiratory distress leading to hypoxia, hypo-tension, left cerebral infarction, and ultimately to death.
“It is my further medical opinion that immediate endotracheal intubation may well have prevented this death.”

Aptly stated, the rule in Alabama regarding the propriety of summary judgment is:

“[A] plaintiff who shows a condition which a jury could find was unsafe, and who further shows the relationship of the parties and other evidence from which a jury could find a lack of due care, and that the alleged injury was proximately caused thereby, is entitled to have a jury, which has been properly instructed on the law by the court, decide the issues in the case. Winn-Dixie v. Godwin, Ala., 349 So.2d 37 (1977).”

Coggin v. Starke Brothers Co., Inc., 391 So.2d 111 (Ala.1980).

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

REVERSED AND REMANDED.

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

ON REHEARING

MADDOX, Justice.

On original deliverance this Court quoted from an affidavit given by Dr. Linda E. Norton. Appellees, in their petition for rehearing, correctly point out that this affidavit was filed after the entry of summary judgment. We have re-examined the evidence submitted in opposition to the motion for summary judgment and conclude that summary judgment was inappropriate, even without considering affidavits filed in opposition to the motion after the motion was granted.

We reiterate again that summary judgment is rarely appropriate in a negligence action. Folmar v. Montgomery Fair, 293 Ala. 686, 309 So.2d 818 (1975).

The reference to the affidavit of Dr. Linda E. Norton in the original opinion should not be considered.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED AND DENIED.

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


text:
    ALABAMA CITY BANK OF GADSDEN v. Walter J. VAUGHN.
    80-768.
    Supreme Court of Alabama.
    March 19, 1982.
    Rehearing Denied April 23, 1982.

      F. Michael Haney of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.
    John T. Robertson of Henslee & Bradley, Gadsden, for appellee.
   SHORES, Justice.

This is an appeal by the defendant, Alabama City Bank of Gadsden, from a judgment entered on a jury verdict in favor of the plaintiff, Walter J. Vaughn, for the sum of $18,600.00. Vaughn initially brought suit against the bank, alleging the conversion by the bank of $15,000.00 and also alleging $15,000.00 due on open account. Later, Vaughn amended his complaint by adding count three, alleging fraudulent representations by the bank.

Evidence was presented by way of Vaughn’s testimony that, in the fall of 1975, Vaughn sold the business known as E Z Stop Grocery to a man named Gentle. In order for Gentle to get a loan at the Alabama City Bank of Gadsden, Vaughn cosigned a promissory note with Gentle and agreed to put $15,000.00 into a certificate of deposit to be held by the bank as collateral on the note for four years. Vaughn stated that later, in February, 1976, he sold his one-half interest in a building for $15,-000.00. He said he placed that $15,000.00 in cash in a safe deposit box which already contained $4,000.00 or $5,000.00 at the time. To that total, Vaughn added $14,000.00 which he obtained from Coupon Redemption Company, so as to bring the total amount of cash in his safe deposit box to about $34,000.00.

Out of that total, Vaughn testified that he purchased a bulldozer for $5,000.00, a front-end loader for $5,300.00, and a lowboy for $1,800.00.

He stated that sometime later he took $15,000.00 in $100 bills out of his safe deposit box, put a rubber band around the money, which was about one and one-half inches thick, folded it, put it in his pocket, and carried it with him for about two days until he gave it to his wife. Other witnesses testified that they saw Vaughn with the stack of $100 bills during that time.

Mrs. Vaughn testified that she took the stack of money and put it in a hiding place in a closet, where it remained for about two weeks. She then took the money and went with Vaughn to the bank. At the bank, she gave the money to Vaughn and waited in the car while he went in alone.

Vaughn testified that, once in the bank, he was approached by a man who offered to help, but whom he cannot now identify. The man had an office at the bank and, after being led into it, Vaughn gave the man the $15,000.00 in cash in order to pay off the two notes. The man counted the money, placed it in his desk drawer, left the office and came back with the two notes.

Vaughn said that he then asked about how to receive the interest on the $15,000.00 certificate of deposit and was told that he would have to cash in the present certificate of deposit and purchase a new one in order to receive the interest at that time. Vaughn testified that the man, after receiving Vaughn’s consent, left the office and returned with two cashier’s checks, one for $15,000.00, representing the principal amount of the certificate of deposit, and the other for $790.00, representing the accrued interest thereon.

Vaughn said that he endorsed both checks and the certificate of deposit and returned them to the man. The man was to have used the $15,000.00 in cash to pay off the two notes, the $15,000.00 cashier’s check to purchase a new $15,000.00 certificate of deposit for Vaughn, and the remainder of the $15,000.00 in cash plus the $790.00 cashier’s check was to be used to deposit $2,000.00 to Vaughn’s account at the bank. Vaughn also received a slip to enable him to get “$300 something dollars” back in cash from the bank teller.

About a month and a half later, Vaughn was approached by Ferrell Cornutt, executive vice president of the bank, concerning the certificate of deposit. After some discussion, Cornutt checked the records of the bank and later gave a written statement to Vaughn indicating that no money of Vaughn’s was held by the bank.

The bank records indicate a much different transaction than that testified to by Vaughn. They show that, on February 1, 1977, certificate of deposit number 969 was cashed, with the bank issuing to Vaughn and his wife a cashier’s check in the amount of $15,000.00 for the face amount of the certificate and a cashier’s check in the amount of $790.00, representing accrued interest on the certificate after computing the penalty for early withdrawal. Records further reflect that the proceeds from the certificate of deposit had been used to pay the loans reflected by the promissory notes executed by Vaughn.

An officer of the bank, although he had no recollection of the transaction, was identified by his writing and his stamp as being the person with whom Vaughn dealt. He testified that the transaction could not have occurred as Vaughn described because the bank’s procedures dictated that, if a customer attempted to make a payment in money, he would be taken to a note teller for handling of the cash transaction. Also, there would be no necessity to reissue a certificate of deposit in order to change the manner in which the interest was paid.

At the close of Vaughn’s evidence, the trial court granted the bank’s motion for a directed verdict on the allegations of fraud. At the close of all the evidence, the trial court, after denying both parties’ motions for a directed verdict, submitted the other two counts to the jury. The jury initially returned a verdict against the bank for “$15,000.00 plus interest.” After additional instructions from the court, the verdict was returned against the bank for $18,600.00. The bank’s motion for a new trial was overruled. This appeal followed. We affirm.

The bank first argues that Vaughn failed to prove that the bank ever had possession of Vaughn’s money and that, therefore, the trial court erred in failing to grant the bank’s motion for a directed verdict.

‘A court should never direct a verdict when the evidence is such as to afford a reasonable inference of the existence of any fact unfavorable to the right of the party asking the affirmative charge to the verdict.’ . .. Jones v. Bell, 201 Ala. 336, 77 So. 998 (1917).”

State Farm Mutual Automobile Insurance Company v. Boyer, 357 So.2d 958, 962 (Ala.1978).

Aftér a review of the evidence, we hold that there was sufficient evidence presented through Vaughn’s testimony to afford a reasonable inference that the bank had possession of Vaughn’s money and, therefore, the court was correct in refusing to grant the bank’s motion for a directed verdict.

The bank next argues that the following charges

“Ladies and gentlemen . . ., I charge you that if you are reasonably satisfied from the evidence that an agent or employee of Defendant- wrongfully appropriated fifteen thousand dollars in cash which was the property of the Plaintiff, then you must render a verdict — A judgment in favor of the Plaintiff in the amount of fifteen thousand dollars.
“Ladies and gentlemen of the Jury, I charge you that if you are reasonably satisfied from the evidence that an agent or employee of Defendant misplaced fifteen thousand dollars in cash which was the property of the Plaintiff, then you must render a judgment in favor of the Plaintiff in the amount of fifteen thousand dollars.”

given at the request of Vaughn, were prejudicial mistakes of the law, unsupported by the evidence and should mandate reversal.

Rule 51, Alabama Rules of Civil Procedure, provides, in part, as follows:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

The record fails to show a compliance by the bank with this part of Rule 51, ARCP. Therefore, error, if any, connected with these charges is deemed waived. Windsor v. General Motors Acceptance Corporation, 295 Ala. 80, 323 So.2d 350, 353 (1975).

Appellant bank next argues that the trial court’s labeling of some of the requested charges as “the charges of the plaintiff” violates Rule 51, ARCP, and thereby mandates reversal.

While it is true that Rule 51, ARCP, very plainly provides “[tjhose requests marked ‘given’ shall be read to the jury without reference as to which party filed the request,” and we note that its violation could constitute reversal, depending upon the facts of each case, it is also true that the bank once again did not timely object to the trial court’s labeling of the written charges as per Rule 51, ARCP. Hogan v. Alabama Power Company, 351 So.2d 1378 (Ala.Civ.App.1977). Therefore, its objection has come too late and must be. deemed waived.

The bank then asserts that Vaughn’s attorneys persistently attempted to bring in evidence relating to criminal convictions of prior bank officers which the attorneys knew were inadmissible and, as a result, a mistrial or new trial should have been granted by the trial court.

A review of the record, however, only reveals to us that most discussions on this point occurred outside the presence of the jury and there was only one situation where Vaughn’s counsel, in the jury’s presence, specifically sought to bring out whether there were other occasions where money had “disappeared or been misappropriated or miscredited at the bank.” At that time, the bank objected, was overruled, and the question was repeated. Another objection was made and overruled and the witness answered “not personally, I don’t have.” At that time, there followed a discussion outside the presence of the jury and, upon the jury’s return, the trial court instructed them to disregard the statements and questions of the attorneys.

“There cannot be reversal of judgment because improper questions are propounded to witnesses unless it is shown that in response to them improper evidence is elicited and admitted.”

Smith-Kelly Supply Company v. Bryant, 285 Ala. 712, 235 So.2d 848, 850 (1970). We find no error here either.

The judgment is affirmed.

AFFIRMED.

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


text:
    Julia L. ASAM v. AMERICAN LIBERTY INSURANCE COMPANY, et al.
    80-855.
    Supreme Court of Alabama.
    March 19, 1982.
    Rehearing Denied April 23, 1982.

      Julia L. Asam, pro se and supplemental brief by Eric A. Bowen, Montgomery, for appellant.
    Sam M. Phelps of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.
   SHORES, Justice.

This is an appeal from an order discharging Julia L. Asam’s $250,000 garnishment claim against American Liberty Insurance Company. Asam had earlier obtained a default judgment against American Liberty’s insured, Willard O. Stanley, d/b/a Poodle Palace, in the amount of $250,000. Asam’s complaint against Stanley alleged the following:

“COUNT ONE
“1. On or about the 7th day of August, 1976, Plaintiff and Defendant entered. into an agreement by which Defendant promised to feed, water, care for, and transplant two hundred fifty (250) white mice, which were being used in the carrying on and operating a research cancer project.
“2. Defendant breached the agreement by failing to feed, water, care for, and transplant said mice according to his agreement with the Plaintiff causing the loss of said mice to the damage of the Plaintiff.
“Wherefore Plaintiff demands judgment against Defendant in the sum of Two Hundred Fifty Thousand and No/100 ($250,000.00) Dollars, interest and costs.
“COUNT TWO
“1. Sometime between the 7th day of August, 1976, and the 18th day of October, 1976, Defendant converted to his own use two hundred fifty (250) white mice being used in cancer research project of the value of Two Hundred Fifty Thousand and No/100 ($250,000.00), the property of Plaintiff.
“Wherefore Plaintiff demands judgment against Defendant in the sum of Two Hundred Fifty Thousand and No/100 ($250,000.00) Dollars, interest and costs.”

After obtaining her default judgment, Asam then filed her garnishment claim against American Liberty. American Liberty answered that it was not liable to Stanley under the policy of insurance and was not responsible to pay any sums for or on behalf of Stanley. The court agreed and discharged American Liberty. Plaintiff appeals. We affirm.

The two issues pertinent to this appeal are:

(1) Were the actions of Stanley covered by the policy with American Liberty so as to make American Liberty subject to Asam’s writ of garnishment?

And, if so, (2) did Stanley fail to perform the notice condition of the policy, thereby breaching the condition precedent to the company’s liability?

It is not necessary to address the latter issue because we hold that the claim by Asam against Stanley was not covered under the terms of the insurance policy.

In her brief, Asam contends that three types of coverage in the insurance policy are applicable to her loss. These are: (1) the comprehensive general liability policy; (2) the general policy floater covering animals in the care, custody, and control of Mr. Stanley; and (3) the commercial umbrella insurance liability policy.

The general liability policy, in pertinent part, provides coverage as follows:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury or (B) property damage to which this insurance applies, caused by an occurrence. . . . ”

An “occurrence” is defined in the policy as an “accident, including continuous or repeated exposure to conditions, which results • • • in . . . property damage neither expected nor intended from the standpoint of the insured.”

The general liability policy also contains certain exclusions pertinent to this appeal:

“This insurance does not apply:
“(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
“(k) to property damage to
“(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control....
“(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
“(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or
“(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured. . . . ” (Emphasis added.)

In Employers Insurance Company of Alabama v. Jeff Gin Company, 378 So.2d 693, 695 (Ala.1979), this Court held that:

“It is a general rule of construction that exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage for the insured. Further, such exceptions must be construed most strongly against the company drafting and issuing the policy.”

Additionally, the Court held that:

“It is a fundamental rule of insurance law that courts construe insurance contracts in a manner to give effect to the intent of the parties; however, any ambiguities in the policy are to be resolved in favor of the insured. Billups v. Alabama Farm Bureau Mutual Casualty Insurance Company, 352 So.2d 1097 (Ala.1977). This Court has frequently held that provisions of insurance policies must be construed in light of the interpretation that ordinary men would place on the language used. Universal Underwriters Insurance Company v. Marriott Homes, Inc., 286 Ala. 231, 238 So.2d 730 (1970).”

378 So.2d at 695.

Asam argues that exclusion (k) is ambiguous when read with exclusions (a) and (m). She asserts that, while exclusion (k) provides an exclusion for property damage to property in the care, custody, or control of the insured, the fact that exclusions (a) and (m) provide exceptions to exclusions for a warranty of fitness and quality and for property that has been physically injured or destroyed should cause the clauses to be interpreted to mean that damage to physical property (e.g., a tin can) would not be covered, but coverage would be provided for workmanship and/or destruction of or injury to animals. She concludes that this reasoning is valid because the obvious intent of the parties would be to provide liability insurance to Stanley’s business and both parties knew at the outset that his principal occupation concerns the care and custody of animals.

After careful review of the insurance policy, we find that the exclusions provided under the general liability policy are not ambiguous and can be logically read independently of the others.

For example, exclusion (a) provides an exception for situations where Stanley could be liable after selling items used in conjunction with his business, such as equipment, grooming instruments, medication, and the like. Also, exclusion (m) could apply to situations where Stanley undertook to repair an item and failed to do so. In these contexts, exclusions (a) and (m) do not create ambiguity when read along with (k).

Therefore, we hold that the exclusion in the policy for liability assumed under contract is valid and avoids coverage under the general liability policy.

Asam alternatively claims that the commercial umbrella excess liability policy should apply because it specifically covers liability assumed under contract and has no exclusion that would prohibit coverage.

The policy reads in pertinent part:

“The company will indemnify the insured for ultimate net loss in excess of the retained limit hereinafter stated which the insured may sustain by reason of liability imposed upon the insured by law, or assumed under any contract or agreement by the named insured or by any officer, director, stockholder or employee of the named insured while acting within the scope of his duties as such, for damages because of (a) Personal Injury, (b) Property Damage . . . caused by or arising out of an occurrence happening anywhere in the world during the policy period.” (Emphasis added.)

The pertinent exclusion to this policy states:

“This policy does not apply:

“To the insured’s liability for bodily injury or property damage, direct or consequential, and expenses on account of loss arising out of real and personal property held by or in the care, custody or control of the insured in any capacity as trustee, guardian, executor, administrator, custodian, escrow tenant or otherwise.” (Emphasis added.)

Asam reasons that the wording of the umbrella policy indicates that the policy’s purpose was not to just provide excess coverage, but rather to expand the coverage to protect against gaps in the underlying policies and would thereby include the present situation. In support, Asam cites the New Jersey Supreme Court case of Bryan Construction Company v. Employers Surplus Lines Insurance Company, 60 N.J. 375, 290 A.2d 138 (1972).

While we find sound reasoning in Asam’s argument that the umbrella policy does more than just provide excess coverage, we are nevertheless constrained to hold that Asam’s situation with Stanley falls directly within the cited exclusion to the policy, thereby prohibiting coverage.

We also hold that the general property floater, which insures “animals on insured premises while in his care, custody and control with a $500 maximum per animal subject to a $5,000 policy limit” against certain specified perils, does not provide coverage here simply because Asam failed to prove that any of the specified perils caused the loss of the mice.

The judgment is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    John Allen WOODARD and Pauline Woodard v. Albert LeWayne WOODARD and Gloria June Woodard.
    80-813.
    Supreme Court of Alabama.
    April 2, 1982.
    Rehearing Denied April 30, 1982.

      Douglas P. Corretti of Corretti & New-som, Birmingham, for appellants.
    David R. Donaldson of Gorham, Mauk & Donaldson, Birmingham, for appellees.
   TORBERT, Chief Justice.

This case concerns the ownership of approximately 110 acres of property in Shelby County, Alabama. The trial court, hearing the evidence presented ore tenus, held that fifty to fifty-five acres of the land had been released by the plaintiffs to the defendants, ordered the defendants to pay $10,000.00 on a past due note, plus interest, to the plaintiffs, and ordered the defendants to recon-vey the remaining property to the plaintiffs. The plaintiffs, John Allen Woodard (John) and Pauline Woodard, appeal. For the reasons set out below, we affirm.

The case arose out of a real estate transaction between John and his nephew, Albert LeWayne Woodard (Wayne). In this transaction, John and his wife contracted on December 29, 1976, to convey to Wayne and his wife, Gloria June Woodard, approximately 110 acres of property. A warranty deed, the purchase money note, and a mortgage were all executed and delivered at that time. The contract agreement stated that Wayne would pay $100.00 as earnest money and would execute a promissory note and purchase money mortgage for $125,-000.00. This note was payable in yearly installments with $50,000.00 to become due on December 29, 1977, $10,000.00 to become due on December 29, 1978, $30,000.00 to become due on December 29, 1979, $30,-000.00 to become due on December 29, 1980, and a final payment of $29,974.51 to become due on December 29, 1981. One important aspect of the contract was that upon payment of each installment, a specified portion of the 110 acres would be released from the plaintiffs’ mortgage. Further, the contract stated that Wayne, as the purchaser, would obtain title insurance in the amount of the purchase price and if the title insurance “does not show a good and merchantable title, free of encumbrances, unless herein excepted, then, and in said event Purchasers and Sellers agree that Purchasers may void the purchase money first mortgage and promissory note given. .. . ”

Though the first annual payment was not due for another year after the signing of the contract, Wayne began making smaller, varying payments to John throughout 1977 at irregular intervals. The evidence showed that one week after the first installment was due, the defendants paid to the plaintiffs two checks totalling $18,590.00. The evidence showed that this brought the total paid to the plaintiff to approximately $40,000.00. At this time, Wayne signed a $10,000.00 note to the plaintiffs upon agreeing that this would suffice as temporary payment until the next payment became due on December 29, 1978.

One of the defendants, Wayne, testified that upon receipt of the two checks and the note, the plaintiffs signed a document entitled “Partial Satisfaction of Recorded Lien,” releasing fifty to fifty-five acres, of the tract from the. mortgage. This document was notarized at a local bank. The description of the property released by this document was identical to that property described in the original contract that was to be released after payment of the first installment.

Subsequent to the signing of this partial release, the defendants attempted to use this property to secure a loan so as to renovate a dwelling thereon. The prospective lender required title insurance, however, and when Wayne attempted to secure such title insurance, problems arose due to numerous questions in the chain of title. Wayne testified that he hired three different law firms in attempts to clear the title, and an attorney for the title company testified that that company had spent over eighty man-hours in a futile attempt to clear the title.

Wayne testified that as a result of these title problems, he decided to rescind the contract with his Uncle John as allowed under the contract. Upon explaining the problems with the title to John, Wayne testified that John expressed his children’s desire to move back onto the property to build a house and said that he had a prospective buyer for another part of the land. Although John denied that he had agreed to rescind the contract as to the remainder of the unreleased property, he did admit that he and his children had moved back onto the property, had begun cutting timber thereon, and had begun to pay the property taxes thereon.

Wayne proceeded to file a bill to quiet title in February 1979 to the property released. A default judgment was taken the following June in Wayne’s favor. He then went to a mortgage company to borrow money on the property to renovate the structure on that property. It was discovered, however, in the process of examining the deed and release, that errors existed in the legal descriptions, which described land that was not part of the tract.

Defendants then took to John and his wife a corrective deed and a corrective partial release to sign, in order to correct the faulty descriptions in the original contract and release. These documents were executed and notarized; they described fifty to fifty-five acres of the tract contained in the original conveyance.

Plaintiffs subsequently filed this action, charging that the defendants were in default under the terms of the purchase money mortgage, charging that the defendants obtained releases of real property in the mortgage by fraudulently representing to the plaintiffs that the instruments were needed to obtain title insurance, praying for a judgment of $500,000.00, and asking that the releases be set aside. The trial court held, however, that the release was valid, there being no evidence of fraud, but ordered the defendants to reconvey the remainder of the 110-acre tract, upon which payment was found to be in default, to the plaintiffs, and to promptly pay to plaintiffs the past due $10,000.00 note, plus interest. Plaintiffs appeal this decision and we affirm.

This Court will presume correct the findings of the trial court when the case is presented ore tenus. The trial court’s judgment will not be disturbed on appeal if it is supported by the evidence or any reasonable inference therefrom, unless it is plainly and palpably erroneous and manifestly unjust. Knapp v. Knapp, 392 So.2d 527 (Ala.1981); Mayo v. Andress, 373 So.2d 620 (Ala.1979); Kjelstrom v. First National Bank of Montgomery, 335 So.2d 647 (Ala.1976). There is no doubt that sufficient evidence was presented to support the trial court’s findings.

The plaintiffs contend that the defendants perpetrated a fraud on them in connection with the execution of the corrective partial release. To establish a cause of action for fraud, the plaintiffs must prove that the defendant knowingly made a false representation of a material, existing fact on which the plaintiffs relied and acted to their detriment. Ames v. Pardue, 389 So.2d 927 (Ala.1980); Roberts v. Carroll, 377 So.2d 944 (Ala.1979). Here, the facts indicate that the acts of the defendants did not constitute fraud. Indeed, the evidence strongly suggests that the defendants wanted only to correct the errors in the original contract description of the property subsequently released to them after they had made the required payments of the first year. The description of the property contained in the corrective deed was identical to the description found in the corrective partial release. It described about fifty to fifty-five acres of that land in the original conveyance, with corrections to exclude property that was included in the original conveyance, but that was not owned by John Woodard. Wayne explained to the plaintiffs what they were signing and showed them on the map what property was involved. John admitted that when he took the instruments to be notarized, he told the notary that he knew what he was signing. The corrective release given to the defendants was only a correction to properly describe that property that should have been released after the completion of payment of the first installment. Thus it is evident that there was ample evidence to support the trial court’s finding that no fraud existed.

Plaintiffs also contend that it was error for the trial court to hold that the parties entered into a valid agreement to rescind the contract for sale of the property and, in the alternative, if such contract was rescinded, then it should have been totally rescinded, forcing the defendants to recon-vey all 110 acres to the plaintiffs. These contentions are without merit.

The sales contract stated that if the title insurance showed no good and merchantable title, free of encumbrances, then the purchase money first mortgage could be voided. When the defendants could not obtain this title insurance, due to numerous problems in the chain of title, the defendants had an unquestionable right to rescind their agreement and to cancel the indebtedness. Wayne then explained to John that he was having trouble obtaining title insurance and that this would prevent him from continuing with the payments. From that point, the plaintiffs reclaimed possession of the unreleased property, their children moved back onto the property, they cut timber on the property, they paid taxes on the property, and they exercised other incidents of ownership. These acts, in addition to the signing of the corrective instruments, suggested, as stated by the trial court, that “the final intent of the parties was to convey the realty which was released to defendants and for a retention of the balance of the property by the plaintiffs.”

Plaintiffs also contend that in order for there to be a rescission of the contract, the defendants “cannot hold onto such part of the contract as may be desirable on [their] part and avoid the residue, but must rescind in toto, if at all.” Thompson v. Fourth Nat. Bank of Montgomery, 214 Ala. 452, 108 So. 69 (1926). While this is a true statement of contract principles in Alabama, it has no application to contracts that are of themselves divisible in nature. The divisibility of a contract is dependent upon the intent of the parties “as found from the apportionability of the contract’s consideration, the subject matter and object of the entire contract, and any other pertinent facts surrounding its making.” Village Inn Pancake House of Mobile, Inc. v. Higdon, 294 Ala. 378, 318 So.2d 245 (1975). It is clear that the contract in the present case was divisible. The original sales contract provided for a release from the purchase money mortgage of a certain, specifically described portion of the property after the payment of each installment. This clearly shows that the parties intended the contract to be divisible and considered each parcel to be a completed sale upon payment of the installment. When Wayne completed the 1977 installment by paying approximately $40,000.00 in cash and signing a $10,000.00 note, the property described in the contract was released and the sale as to that parcel was complete.

We have reviewed plaintiffs’ other contentions and find them completely without merit and subject to the same rules of law as stated above. We find that the holding of the trial court was based upon competent and supporting evidence. For these reasons, the decision of the trial court is due to be affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Monroe ROBERTSON v. CITY OF TUSCALOOSA, et al.
    81-77.
    Supreme Court of Alabama.
    April 2, 1982.
    Rehearing Denied April 30, 1982.

      Thomas S. Wilson, Tuscaloosa, for appellant.
    H. Burton Flanagan, Tuscaloosa, for ap-pellees.
    J. Russell Gibson, III of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee City of Tuscaloosa.
   FAULKNER, Justice.

This is an action against the City of Tuscaloosa, the Tuscaloosa Humane Society and one of its employees for negligently, wantonly, or intentionally killing a cow. The trial court granted a summary judgment in favor of the defendants. We affirm in part, reverse in part, and remand.

On November 26, 1979, the Humane Society received reports about a black angus cow at large in the city limits of Tuscaloosa. The cow escaped the place it was being boarded by jumping over a fence. The cow crossed three major streets, McFarland Boulevard, Skyland Boulevard, and Highway 82. The Humane Society employees searched for the cow several hours.

The employees finally enclosed the cow in a backyard in a local neighborhood, but the cow jumped a chain link fence and crossed through several backyards in the subdivision. The Humane Society employees finally used a tranquilizer gun, firing three tranquilizing darts at the cow. The tranquilizer used was a drug named “Rompun,” allegedly only intended to be used on horses. The cow died, and Robertson, the owner of the cow, contends that the use of “Rompun” killed the animal.

Robertson brought this action against the City of Tuscaloosa, the Tuscaloosa Humane Society, and one of its employees for negligently, wantonly, or intentionally killing the cow. On March 5, 1981, almost five months after filing the complaint, Robertson amended his complaint to add a cause of action under Code 1975, § 3-4-6(b). The defendants made a motion to strike the amended complaint. The trial court granted the motion to strike. The defendants made a motion for summary judgment, which the trial judge granted. Robertson appeals.

Three major issues are presented on appeal.

1) Whether the trial court erred in failing to permit Robertson to amend his complaint.
2) Whether the trial court erred in holding that the City of Tuscaloosa could delegate its duties concerning the regulation of animals, and thus not be liable for the injuries, under the law of independent contract.
3) Whether the loose cow constituted a nuisance so that the defendants were justified in killing it.

I

The Alabama Rules of Civil Procedure permit a party to amend his or her complaint without leave of court, subject to disallowance. ARCP 15(a). “[B]ut, such amendments shall be freely allowed when justice so requires.” Id. We hold that the trial court did not abuse its discretion in disallowing the amendment because the cause of action under § 3-4 — 6(b) is no longer viable.

Section 3-4-6(b) permits an owner of livestock to recover five times the amount of damages done if an owner of land injures trespassing livestock. The legislature, in 1951, enacted a complete change in Alabama’s range laws. Under the prior statutory scheme, such as the predecessor to § 3-4-6(b), the burden was on the landowner to fence stock out. Now the burden is on the livestock owner to fence stock in. Monfee v. Seymore, 392 So.2d 1198 (Ala.Civ.App.1980). When the Alabama legislature enacted the new stock law, it repealed all laws on the same subject matter. Id. In Monfee v. Seymore, the Court held that § 3-4-6(a) was repealed by the 1951 stock laws. We hold that the same is true for § 3-4-6(b).

II

The trial judge held that the duty of animal control was a delegable duty of the City of Tuscaloosa, making the Humane Society an independent contractor. The general rule is that a municipality is not liable for the negligence of independent contractors. See Davis v. Kansas City, 204 Kan. 524, 464 P.2d 154 (1970); Bannister v. Farmer’s Alliance Mutual Insurance Co., 630 P.2d 1279 (Okl.1981); Baccari v. DeSanti, 70 A.D.2d 198, 431 N.Y.S.2d 829 (1979). There are exceptions to this rule, but none of them are applicable in the present action.

A municipality may be liable for the negligent acts or omissions of its independent contractor if the contractor is performing a nondelegable duty. Id. See 18 McQuillin, Municipal Corporations, § 53.71 (3d ed. rev. 1973). A nondelegable duty is usually a specific duty imposed on the municipality by statute. Baccari v. DeSanti, 70 A.D.2d 198, 431 N.Y.S.2d 829 (1979). In the present case, under Code 1975, § 11-47— 110, the city has the “power” to exercise control over animals. But § 11-47-110 does not impose a duty on the municipality to control animals. The rule in most jurisdictions is that a city is not liable for injury caused to animals by its employees or contractors, even if the injury is malicious and intentional. 18 McQuillin, Municipal Corporations § 53.80(g) (3d ed. rev. 1973). Clearly, the regulation and control of animals is a delegable duty.

A municipality’s liability for torts of independent contractors is the same as the liability of an individual. Davis v. Kansas City, 204 Kan. 524, 464 P.2d 154 (1970). The municipality’s immunity is subject to an exception for activities performed by an independent contractor which are inherently dangerous or ultrahazardous. Clark v. City of Chicago, 88 Ill.App.3d 760, 43 Ill.Dec. 892, 410 N.E.2d 1025 (1980). Furthermore, a municipality is liable if it has a duty to maintain reasonably safe premises. See Tyler v. King, 287 Ala. 162, 249 So.2d 821 (1971). Neither exception is applicable to the facts of the present case. Therefore, the trial court did not err in holding that the City of Tuscaloosa was not liable for the acts of its independent contractor.

Ill

A summary judgment should be granted only when, after viewing the evidence in favor of the nonmoving party, it appears that there is no material issue of fact and the nonmoving party cannot prevail. Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). A summary judgment is improper if there is a scintilla of evidence to support the nonmoving party. Amason, 369 So.2d at 549. A scintilla of evidence exists to support Robertson’s contention that the Tuscaloosa Humane Society and its employee negligently or intentionally killed his cow. Therefore, the granting of a summary judgment in favor of the Humane Society and its employee was improper.

A nuisance is “anything dangerous or offensive, or unwholesome.” Code 1975, § 11 — 47-117. Whether the cow presented a dangerous condition that warranted killing the animal is a question of fact. Furthermore, whether the employee of the Humane Society was negligent in using the drug Rompun is a question of fact for the jury.

Robertson urges this Court to hold that an authority may kill only an animal which is infected with a disease. Code 1975, § 22-10-1(1); § 22-10-3. Section 22-10-1 merely enumerates those conditions which are nuisances per se. Section 22-10-3 permits a county board of health to destroy an animal which is infected with a disease defined in § 22-10-1(1). But, this section does not limit the power of an agency in charge of regulating animals to kill an animal in other appropriate circumstances. When the health and safety of the community are endangered by animals, those animals may be destroyed. Whether the circumstances in a particular case justify destruction of an animal is, again, a question of fact.

The judgment below is affirmed in part; reversed in part; and remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . “(b) If any person injures or destroys any such animal, he shall be liable to the owner for five times the amount of injury done, to be recovered before any court of competent jurisdiction.”


text:
    Brenda B. PAYNE v. ALABAMA CEMETERY ASSOCIATION, INC., a Corporation d/b/a Remount Park Cemetery, Ross-Clayton Funeral Home, Inc., a Corporation, et al.
    80-636.
    Supreme Court of Alabama.
    April 23, 1982.

      Ruben K. King and L. Gilbert Kendrick, Montgomery, for appellant.
    Dennis R. Bailey and James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett and Charles Price, Montgomery, for appel-lee Ross-Clayton Funeral Home, Inc.
    William I. Hill, II of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee Arthur King.
   TORBERT, Chief Justice.

This appeal is from a summary judgment granted in favor of defendants. Ross-Clayton Funeral Home, Inc. (Ross-Clayton), Alabama Cemetery Association, Inc., and Arthur King, in an action for damages by plaintiff, Brenda B. Payne, for trespass and for the negligent or wanton destruction of the bodily remains of plaintiff’s mother, which was alleged to have caused the plaintiff to become mentally and emotionally upset, sick, and nervous. We reverse and remand.

The appellant’s mother, Emma Lee Payne (Emma Lee), died and was buried in Remount Park Cemetery in Montgomery, Alabama, in 1953. Her funeral was conducted by Lee Funeral Home. Twenty-two years later, on August 20, 1975, Alzada Payne, mother of Emma Lee, died. At that time, Brenda went to Ross-Clayton to make funeral arrangements, but did not pick out a casket at that time. Later, Brenda returned with her great-aunt, Laura Mae Payne (Laura Mae), to complete arrangements and to choose a casket. While there, they spoke with Herman Waters, manager of Ross-Clayton, and discussed an insurance policy covering the cost of the funeral and most of the incidental expenses. Appellant contends that during this visit Mr. Waters asked them to pick out a casket, but took them “out in the back yard” to an old barn where a number of old caskets were stored. Laura Mae and Brenda testified in their depositions that these caskets were old, had dirt on them, and appeared to have been in the ground at some point. When Mr. Waters asked if they saw one they wanted, they said that they wanted a new casket and were taken back inside.

Once inside, they chose a casket and began to complete the funeral arrangements. According to appellant and Laura Mae, Al-zada wanted to be buried above Emma Lee. This required that the vault containing the coffin and bodily remains of Emma Lee be dug up and removed from the gravesite so that the grave could be deepened to hold two vaults instead of one. Appellant contends that she requested Fletcher Haynes, now deceased, to do the vault work for her grandmother’s burial, since he had previously handled all of that type work for the Payne family, but that Waters stated that Ross-Clayton would take care of all the arrangements. Ross-Clayton, however, contends that the appellant requested Lacy King to do the work and, as a result, they contacted him for the job. A contract was then signed for Ross-Clayton to handle the entire funeral arrangements in return for the proceeds of the burial insurance policy and $285.50 in cash.

A short time later, Ross-Clayton sent a car to take Laura Mae to Remount Park Cemetery to discuss the details of the burial. When she arrived at the gravesite, she found Lacy King and his two sons. Laura Mae testified in her deposition that she did not know that Fletcher Haynes would not be doing the vault work until she arrived at the cemetery. At that time she asked Lacy King who he was and he replied, “[W]e do work for Ross and Clayton.” After talking to King, he assured Laura Mae that he could do the work, so she consented and showed him what she wanted done.

About three hours later, Lacy King visited Brenda and Laura Mae and informed them that he and his sons had finished the vault work. He asked them to come to the cemetery to see the work and when they declined he told them he had done something he was not supposed to do. Brenda and Laura Mae testified in their depositions that King informed them that he had opened the casket, that Emma Lee’s under-garmets remained in good condition, and that her hair had grown. He then promised that he had “fastened her back up,” lowered her back into the vault, and turned everything else over to his son Arthur to finish. Laura Mae and Brenda promised not to say anything to Ross-Clayton about the incident, because, Laura Mae said in her deposition, “[Djuring the family hour, you cannot discuss what has happened. You have to get yourself composed to get yourself together. Death is not an easy thing, especially a loved one.”

The funeral of Alzada Payne proceeded without further incident. It was handled totally by Ross-Clayton and to the satisfaction of the appellant.

On or about Mother’s Day, 1979, James Payne, brother of Alzada Payne, visited her grave and noticed that it was sinking. Both Laura Mae and Brenda called Mr. Waters at Ross-Clayton, because, Laura Mae said, “[T]hey knew the ones that did the work. They sent them out.” A time was then arranged to open the grave to determine the cause of the sinking.

Present at the opening were James Payne, Brenda Payne, Laura Mae Payne, Brenda’s two sons, Mr. Waters, a Mr. Harris (to open the grave) and a helper (Field Barnette, who works for the cemetery), and Arthur King (son of Lacy King and one of the two sons alleged to have been present when Lacy King deepened Emma Lee’s grave); Lacy King had died in 1977. Upon opening the grave, it was discovered that the vault and casket of Emma Lee Payne were missing. Mr. Waters informed the Paynes of that fact and then left. Laura Mae then approached Arthur King and inquired where the remains of Emma Lee and her casket were. Laura Mae and Brenda said that though he stated he did not know, he was very nervous and they said, “He was shaking. He was absolutely shaking. During the time they were opening that thing, he was shaking.”

Shortly thereafter, a meeting was arranged between Brenda and Laura Mae, and Rufus Lewis, Calloway Ross, and Mr. Waters, all of Ross-Clayton, and the wife of Lacy King. At the start of the meeting, only Brenda, Laura Mae, and Rufus Lewis were present. Brenda testified in her deposition:

“Q. Who spoke first for your family?
“A. Mr. — my mother spoke first. She asked Mr. Lewis, said, we were over there trying to get — find out that happened to my mother’s grave— well, vault and casket. And Mr. Lewis said, well, I am sure we can come to some conclusion. And he said, you know, Mr. Waters and everything, he took care of all the arrangements. He said, what is the problem. And we told him, you know, what Mr. Harris had told us: There was nothing there.
“Q. Who told him?
“A. My aunt told him.
“Q. She did the talking?
“A. Yes. She did the talking for the first part. And she said, there is nothing there. She said, there should be something. So he said, well, Mrs. Payne, he said, after twenty-five years, do you expect for anything to be in the ground. She said, I most certainly do. She said, if it is nothing but a piece of tin, she said, something should be there. He said, well, I guess you are right.
“Q. Who said that?
“A. Mr. Lewis. So then he up and said, well, how much money you all want. And we said, well, we can’t disclose [discuss?] that. We are on — we have to talk to a lawyer, you know.
“Q. Who said that?
“A. Mr. Rufus Lewis.
“Q. I mean, who said: We can’t discuss that?
“A. My aunt said, we can’t discuss that. We have to get a lawyer. Said, but in the meantime, only thing that we really want to know, what happened to everything. That is what we want to know.”

Shortly after this conversation, Arthur King arrived and he and the others entered the meeting. Upon questioning Arthur King and receiving no answers to her questions, Laura Mae became quite upset and left. Plaintiff alleges that as she and Laura Mae were leaving, they engaged in a curious conversation with one of Ross-Clayton’s employees. Brenda testified:

“A. . . . And so we left. I said, well, I will talk with you all later. So we left. And as we were getting in the car, Mr. Griffin, one of the employees over there—
“Q. What is his first name?
“A. I don’t know his first name.
“Q. He is an employee where?
“A. He is employed at Ross and Clayton. He turned to my aunt as we were getting in the car. And he said, Mrs. Payne, he said I am so sorry this happened. But, he said, they know what they did with it; they are just so low down they won’t tell you. My mamma said, well, that is all right.
“Q. Who did he tell this to?
“A. He told it to my aunt. I was at the driving — I was right there. I was under the driving wheel, and she was on the passenger side.
“Q. Who did you understand the they meant in that sentence?
“A. Ross and Clayton.”

This action was subsequently filed on January 30, 1980, by Brenda Payne against the Alabama Cemetery Association, Ross-Clayton, and, by subsequent amendment, Arthur King (originally an unnamed defendant). The complaint, as amended, alleged trespass and the negligent or intentional destruction of the bodily remains of Emma Lee Payne. On May 5, 1981, the trial court entered an order stating that no issue of material fact existed between the parties and granting the defendant’s motion for summary judgment.

A party moving for summary judgment has imposed upon him the burden of clearly showing that the non-movant cannot recover under any discernible set of circumstances and that there is no genuine issue of material fact. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981); Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). The party moving for summary judgment must be entitled to a judgment as a matter of law, Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974), with all reasonable inferences concerning issues of material fact to be drawn in favor of the non-movant. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

The scintilla of evidence rule substantially increases the burden for sustaining a motion for summary judgment. Under the scintilla of evidence rule, no summary judgment can be granted if a scintilla of evidence exists to support the non-movant’s position. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981); Browning v. Birmingham News, 348 So.2d 455 (Ala.1977). The scintilla of evidence rule provides that there need be only a gleam, glimmer, spark, the least bit, or the smallest trace of evidence in support of the non-moving party. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979).

Applying the law to the facts of this case, appellees contend that several grounds exist to bar appellant from recovery and thus make the granting of summary judgment appropriate. The affidavits submitted by Ross-Clayton in support of summary judgment relate to the contention that Lacy King was not an employee or servant of the funeral home or Alabama Cemetery Association, but was instead an independent contractor. Yet, the depositions of Brenda Payne and Laura Mae Payne were sufficient to show at least a scintilla of evidence to the contrary. Both Brenda and Laura Mae stated that Ross-Clayton told them that they would take care of all the funeral arrangements, even after they had requested Fletcher Haynes as their vault man. They both stated that all moneys paid for the funeral were paid directly to Ross-Clayton. Laura Mae testified that when she first saw Lacy King, and his sons at the cemetery, he told her, “[W]e do work for Ross and Clayton” and he said that he had been sent by Ross-Clayton to do the vault work. Both parties also testified that Lacy King requested that they not mention to Ross-Clayton the fact that he had opened Emma Lee’s casket.

The fundamental test of whether a laborer is an employee or an independent contractor is whether there is a reserved right of control rather than the actual exercise of that right. Whether the laborer in question is an employee or an independent contractor depends on the facts of each particular case, thus making it impossible to state an absolute rule. Hodges & Co. v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972); Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970); W. P. Brown & Sons Lumber Co. v. Crossley, 230 Ala. 403, 161 So. 536 (1935). A review of the facts makes it evident that sufficient evidence existed to defeat a motion for summary judgment based upon the independent contractor/agency issue.

Plaintiff’s action is grounded upon the legal rights vested in the next of kin to maintain an action for unwarranted interference with a buried body. We hold that such an action may be grounded in a non-trespass tort as well as in trespass. The plaintiff, being the nearest relative present, is a proper party to bring the action in tort, irrespective of any other possible theory of recovery. Southern Life & Health Ins. Co. v. Morgan, 21 Ala.App. 5, 105 So.2d 161, cert. denied, 213 Ala. 413, 105 So. 168 (1925). Appellees allege, as another ground for af-firmance, however, that appellant’s non-trespass claim is barred by the applicable one year statute of limitations. Code 1975 provides in pertinent part:

“(a) The following must be commenced within one year:
“(5) Actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section; and
“(7) All actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of respondent superior.”

Code 1975, § 6-2-39. Code 1975 further provides:

“All civil actions must be commenced after the cause of action has accrued within the period prescribed in this article and not afterwards, unless otherwise specifically provided for in this Code.”

Code 1975, § 6-2-30. Appellees contend that since the one-year statute of limitations period begins to run after the cause of action has accrued, and since the bodily remains and casket of Emma Lee apparently disappeared in 1975, this action, brought in January 1980, is barred by the statute and thus the granting of summary judgment was proper. Appellant, however, contends that the statute of limitations should not have begun to run until May 13, 1979, when she first discovered the coffin and bodily remains of her mother to be missing.

The time when the statute of limitations begins to run was analyzed thoroughly by this Court in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979). In that case it was stated that the statute of limitations begins to run in favor of the party liable from the time the cause of action accrues, and the cause of action accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon. 368 So.2d at 518. The plaintiff’s ignorance of a tort or injury does not postpone the running of the statute of limitations until that tort is discovered. Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).

The statute, however, will not begin to run until some injury occurs which gives rise to a maintainable cause of action. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979); Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925); West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909). As pointed out in Garrett v. Raytheon Co., the basic principles set forth by Corona Coal and West Pratt Coal on one hand, and Garrett v. Raytheon Co. on the other, are the same. In actions such as the case at bar, the act complained of does not itself inflict a legal injury at the time it is done, but plaintiff’s injury only follows as a result and a subsequent development of the defendant’s act. “In such cases, the cause of action ‘accrues,’ and the statute of limitation begins to run, ‘when and only when, the damages are sustained.’ ” Garrett v. Raytheon Co., 368 So.2d at 519. See also, Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).

Here, it was discovered in 1979 that the grave supposedly containing Emma Lee and Alzada Payne was sinking. It was then discovered that the bodily remains of Emma Lee were missing. At that particular point the plaintiff’s injuries accrued, as she had nothing of which to complain until the discovery of the missing body and casket. This stands in contrast to an injury of the type found in Garrett v. Raytheon Co., where the progressive nature of the injury has not made itself manifest at the time of the last exposure. In cases of that nature, the statute of limitations begins to run whether or not the full amount of damages is apparent at the time of the first legal injury. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979); Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468 (1973). We therefore hold that the statute of limitations did not begin to run until May 13, 1979, when it was discovered that the bodily remains and casket of Emma Lee were missing and the injury to the plaintiff actually occurred.

Appellee Arthur King contends that summary judgment was proper as to him because a son cannot be responsible for the acts of his father. Although he vehemently denies being present at the time Lacy King opened the grave of Emma Lee in 1975, Laura Mae testified that she saw him at the cemetery with Lacy King and that Arthur was said to be helping him at that time. Both Brenda and Laura Mae testified that Lacy King informed them, upon arrival at their house, that he had lowered Emma Lee back into her vault and had turned everything over to his son Arthur to finish. This would undoubtedly make Arthur a proper party to the suit and raise a scintilla of evidence to prevent summary judgment.

Arthur King also contends that the one-year statute of limitations has run as to him, by virtue of the fact that he was substituted as a party defendant for one of the fictitious parties after the one-year statute had run. King states that appellant discovered that Emma Lee’s bodily remains and casket were missing on May 13, 1979, but that he was not added as a party defendant until December 18, 1980. Appellee contends that the plaintiff knew his identity at the time the suit was filed and that under the rule of Hinton v. Hobbs, 349 So.2d 28 (Ala.1977), such amendments to the pleadings will not be allowed to relate back pursuant to Rule 9(h), ARCP. There is no evidence, however, that Arthur King raised this issue at the trial level and he will not be allowed to add this new theory on appeal. Engel Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 321 So.2d 679 (1975).

Since we hold that appellant may maintain a non-trespass tort action for the unwarranted interference with a buried body, we need not reach appellee’s contention that Brenda Payne could not bring an action in trespass since she did not own the quasi-property rights in Emma Lee’s burial plot. It being clear that there do exist genuine issues as to material facts, and that the claims were not time-barred, it was error to grant summary judgment. Accordingly, the decision of the trial court is due to be reversed.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

      . Brenda testified that since her aunt, Laura Mae, had raised her from childhood, she often referred to Laura Mae as her mother instead of her aunt.


author: MADDOX, Justice.

text:
    SOUTHERN SLAG PRODUCTS COMPANY v. Lynn Edward THOMAS, et al.
    80-658.
    Supreme Court of Alabama.
    April 23, 1982.

      G. Daniel Evans of Evans & Lyerly, Birmingham, for appellant.
    Richard O. Jones, Tuscaloosa, for appel-lees.
   MADDOX, Justice.

This is an appeal from a judgment in the trial court denying plaintiff/creditor’s request to have certain conveyances from a defendant/debtor/husband to his wife set aside as being fraudulent and made for the purpose of avoiding the satisfaction of a $19,312.03 debt.

The trial court made the following findings of fact and conclusions of law:

“The Court finds from the evidence presented at the trial of this cause that the conveyances described in the pleadings and proof presented to the Court as having taken place from the Defendant, Lynn Edward Thomas, to the Defendant, Mary Anne Z. Thomas, were supported by a fair, adequate and valuable consideration given by the said Mary Anne Z. Thomas, and that such conveyances were not made by the parties Defendant for the purpose of hindering, delaying or otherwise preventing the party Plaintiff from collecting the indebtedness owed by the Defendant, Lynn Edward Thomas, to the Plaintiff, and accordingly, the Court finds that the Plaintiff has not been defrauded as a result of said conveyances of real property. The Court further finds that the Plaintiff has failed to meet its burden of proof to establish that there has been any other voluntary transfers of real and personal property by the Defendant, Lynn Edward Thomas, to the Defendant, Mary, Ann Z. Thomas, without adequate and valuable consideration being given the same and such being made in an effort to hinder, delay or defraud existing creditors.”

The appellee, in brief, stated substantial facts, which we, after examining the record on appeal, conclude were sufficient to support the trial judge’s findings and conclusions:

“Mr. and Mrs. Thomas were married on February 5, 1977. The three (3) lots in Woodland Forrest Subdivision were purchased in September of 1977 and title to the three (3) parcels of real estate was initially held by Lynn Edward Thomas and Mary Anne Z. Thomas, jointly with rights of survivorship. The lots were purchased at a price of Thirty-Two Thousand and 00/100 ($32,000.00) Dollars, divided into a Two Thousand Two Hundred and 00/100 ($2,200.00) Dollars cash down payment and the execution of a promissory note with a mortgage on the subject lots securing the remaining Twenty-Nine Thousand Eight Hundred and 00/100 ($29,800.00) Dollars. Mr. Thomas testified that the Two Thousand Two Hundred and 00/100 ($2,200.00) Dollars down payment for the lots came from wedding gifts to Mary Anne Z. Thomas from various members of her family. Mr. Thomas stated that a Five Thousand Five Hundred and 00/100 ($5,500.00) Dollars deposit was made in Mrs. Thomas’ bank account on September 22, 1977 and that this money came from Mary Anne Z. Thomas’ brother to be used by her for the down payment on the lots. He stated that he did not pay any consideration toward the purchase of the lots but, rather, that the consideration had all come from Mary Anne Z. Thomas by way of her family.
“Mrs. Thomas testified that the money to purchase the lots ‘came from my family.’ She stated that some of the money for the down payment came to her from her family at the time of her marriage to Lynn Thomas and the rest when she told her family she needed the money to buy the lots. The money from her family came to her in the form of a check made out to her only and Lynn Thomas’ name was not included. In response to why title to the lots was taken jointly, Mrs. Thomas stated that the only reason was that she and Lynn Thomas were married. She stated that she and her husband had an understanding as to the lots which was that “They were my lots.” She testified that this understanding was based on the facts that the down payment for the lots was coming from her via her family and that the mortgage payments to satisfy the remaining indebtedness were to be paid out of her income. All payments came out of her salary [$25,000 annually] regardless of who physically wrote the check. When asked whether she expected Lynn Thomas to pay her back for the consideration she was paying for the purchase of the real estate, Mrs. Thomas answered “No, because they were my lots.”
“Concerning the market value of the three (3) lots in question, Mr. Thomas stated that, though he had estimated them to be worth Fourteen Thousand and 00/100 ($14,000.00) Dollars, Fourteen Thousand and 00/100 ($14,000.00) Dollars and Sixteen Thousand and 00/100 ($16,-000.00) Dollars respectively at the time of his deposition, he had formulated a revised estimate after investigating the matter further. Mr. Thomas went on to testify that his most recent estimate of the market value of the lots was Ten Thousand and 00/100 ($10,000.00) Dollars, Ten Thousand and 00/100 ($10,000.00) Dollars and Nine Thousand and 00/100 ($9,000.00) Dollars respectively.
“Mr. Thomas testified that the house and lot involved in this action were purchased in May of 1979 and that record title to the property was initially held by Lynn Edward Thomas and Mary Anne Z. Thomas jointly with rights of survivor-ship. He testified that the house was purchased with a one hundred percent (100%) YA loan thereby taking advantage of his status as a veteran. Mr. Thomas went on to state that the monthly mortgage payments came out of his wife’s income. Upon being called as a witness, Mrs. Thomas told the court that the only reason title to the house and lot was held jointly was to take advantage of Lynn Thomas’ veteran’s benefits in getting a one hundred percent (100%) VA loan and that she and Mr. Thomas had agreed to change it over to her name as soon as the VA requirements would allow it. As with the lots in question, Mrs. Thomas made all required mortgage payments on this property and all prepaid items and closing costs incurred by the Thomases as a result of the purchase of the house and lot were paid with money received from Mrs. Thomas.”

Other testimony was introduced that Mrs. Thomas had stated to her husband as early as May, 1979, that she wanted to have the property transferred to her because she was making all the payments on the mortgages and had supplied the money for the down payment.

The couple maintained two joint bank accounts from which the various mortgage payments were made. Testimony was given at trial that Mr. Thomas primarily used an account in a Moundville bank and Mrs. Thomas primarily used an account in a Tuscaloosa bank, but that Thomas had written checks on and transferred funds deposited in the Tuscaloosa account.

Mr. Thomas is the president and majority stockholder of Southeastern Solar Systems of America (S.E.S.S.A.) which was incorporated in July of 1977. (At the time of trial, S.E.S.S.A. was no longer in operation and had not been served with notice of the suit. Therefore, S.E.S.S.A. is not a party defendant.) In the operation of his corporation, defendant had become indebted in the amount of $19,312.03 on an account with plaintiff Southern Slag Products Company under a personal guaranty to plaintiff on any and all debts of S.E.S.S.A.

On November 27, 1979, plaintiff sent Mr. Thomas a mailgram demanding full payment by December 1, 1979. On December 6,1979, plaintiff’s attorney wrote a letter to Mr. Thomas demanding S.E.S.S.A.’s outstanding balance to be paid within ten days. On December 27, 1979, Mr. Thomas’s attorney replied that Mr. Thomas had a previous personal agreement with Southern Slag whereby all future orders placed by S.E.S. S.A. would be paid in full plus an amount equal to ten percent (10%) of the order placed, to be applied to the outstanding balance. Mr. Thomas’s attorney stated that unless he heard from the plaintiff, that Mr. Thomas would continue to satisfy the debt according to the personal agreement. On December 28, 1979, Lynn Thomas conveyed all his interest in the four lots and one residence to Mary Anne Z. Thomas by quitclaim deeds. The stated consideration for each conveyance was $10.00.

On August 12, 1980, plaintiff recovered a judgment against defendant Mr. Thomas in the amount of $19,312.03 in the Circuit Court of Tuscaloosa County. Plaintiff then brought this suit to have the conveyances set aside as fraudulent under Code 1975, § 8-9-6.

In Gurley v. Blue Rents, Inc., 383 So.2d 531 (Ala.1980), this court was presented with an almost identical issue of an alleged fraudulent conveyance between a husband and wife. There, this Court stated:

“In resolving this issue, we find it highly significant that we are dealing with a conveyance of real property between husband and wife, one of whom was in financial difficulty. Any time an alleged fraudulent conveyance involves a husband and wife, the approach which must be taken by the court is affected. Exactly how it is affected varies from state to state [In this regard see Annot. 35 A.L. R.2d 8 and 37 Am.Jur.2d Fraudulent Conveyances § 25 (1976) ]. In Alabama, the fact that a conveyance took place between a husband and wife does not raise any presumption of fraud, nor does it represent a badge of fraud. Instead, it alters the scrutiny with which the court must consider the conveyance. In Umphrey v. Barfield, 238 Ala. 11, 13, 189 So. 64, 65 (1939), this Court reasoned that ‘. . . while this relationship [the husband-wife relationship] is not within itself a badge of fraud, “yet under all the authorities, supported by reason and common sense,” transactions between persons occupying such relationship are to be jealously watched and must be subjected to closer scrutiny than would be required of a stranger.’ Thus, the very fact that Mr. and Mrs. Gurley were the sole parties to the conveyance should have completely changed the way in which the trial court viewed the conveyance. It was essential that the conveyance be more closely scrutinized.
“In addition, the relationship of the parties necessitated a shift in the burden of proof. This Court has held on numerous occasions that when a husband conveys certain property to his wife and that conveyance is attacked as a fraud on the husband’s existing creditors, the wife bears the burden of proving that the conveyance was based upon a valuable consideration, substantial and not merely nominal. Smith v. Wilder, 270 Ala. 637, 120 So.2d 871 (1960); Dutton v. Lindler, 238 Ala. 363, 191 So. 210 (1939). The wife is thus laden with the initial responsibility of proving the bona fide character of the underlying transaction.”

In order to meet the requisite burden of proof, the grantee/spouse is not limited to showing that the consideration that actually passed was sufficient, but may also present evidence of circumstances, salaries, financial contributions from other sources and relevant matters tending to prove that the ownership which was transferred was supported by adequate consideration. The grantee/spouse may present evidence tending to show that the original interest owned by the husband was a mere convenience and that the grantee/spouse initially purchased the property with funds from her own separate estate.

In this case, Mary Anne Thomas met the burden by testifying as she did at trial and in her sworn answers to interrogatories. Specifically, defendants answered plaintiff’s interrogatories concerning the consideration paid for the transfer of the property from Mr. Thomas to Mrs. Thomas as follows:

“Mary Anne Z. Thomas furnished all of the money at the time all of the real estate itemized above was purchased, and furnished all of the money for the payments that were required to be made on the mortgage indebtedness concerning the same.”

As we have already stated, we have reviewed the evidence concerning the reason why the titles were originally transferred “jointly with right of survivorship.” In resolving the issue presented, we have applied the rule that Mrs. Thomas, in this case, had the burden of proving that the conveyance was based upon a valuable consideration, substantial and not merely nominal. We have also applied the rule that “[wjhere the trial court makes findings after hearing witnesses ore tenus, every presumption will be indulged in favor of the court’s findings, and its findings will not be disturbed on appeal unless they are found to be palpably wrong.” Russell v. Russell, 361 So.2d 1053, 1054 (Ala.1978); Gurley v. Blue Rents, Inc., supra.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

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