author: BEATTY, Justice. TORBERT, Chief Justice

text:
    The CITY OF BIRMINGHAM, A Municipal Corporation v. Russell Lee THOMPSON.
    79-787.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Rehearing Denied Sept. 25, 1981.
    Milford G. Bass, Jr., James K. Baker, and Herbert Jenkins, Jr., Birmingham, for appellant.
    D. Leon Ashford and John W. Haley, Birmingham, for appellee.
   BEATTY, Justice.

The question is whether, under the following facts, the City of Birmingham (Birmingham) is liable for a tort allegedly committed by one of its employees. We hold that Code 1975, § 11 — 47-190, the statute governing municipal tort liability, permits plaintiff Thompson’s cause of action, and we affirm the judgment in his favor.

Plaintiff was incarcerated in the Birmingham City Jail on the charge of destroying private property. While plaintiff was in jail, he was allegedly beaten by police officers for refusing to change into a prison uniform. Plaintiff brought suit against Birmingham, alleging that an assault and battery was committed on him by a Birmingham police officer and further alleging that agents, servants, or employees of Birmingham were present or in the vicinity of the alleged assault and battery, and that those persons negligently caused or negligently allowed the assault and battery.

At the close of both plaintiff’s and defendant’s case, defendant moved for a directed verdict. As grounds, defendant argued, among other things, that the evidence failed to establish that the injury was occasioned by the “neglect, carelessness or un-skillfulness of some agent, officer or employee of the [defendant] engaged in work therefor and while acting in the line of his duty.” Both motions for directed verdict were denied.

Plaintiff agreed that the case would not be submitted to the jury on the theory that Birmingham’s agents or servants negligently caused or allowed the battery, but the case was submitted to the jury with instructions including the following:

So, basically, as I understand the Plaintiff’s claim — the attorneys will have an opportunity to take exception to my remarks in just a moment — the Plaintiff’s theory, as advanced by his pleadings, is either one or two propositions. First of all, even that if you will find that the Plaintiff failed to carry out a reasonable request or order of the Defendant in the operation of its jail facility, then the defendant would not be entitled to use any more than what would be considered reasonable force to carry out its rules and regulations.
The second option, or second theory advanced by the Plaintiff in this, is that even after a full and fair consideration of all evidence, if you are reasonably satisfied that the force used by the Defendant’s agent, Officer Taylor, was in the process of repelling or meeting force exerted by the Plaintiff, still, in that event, the defendant would not be entitled to use any more force than was reasonably necessary to repel the force of the Plaintiff.
It is very difficult, and I don’t know how you define excessive force, but I’d say excessive force is more force than is reasonably necessary under the circumstances for the defendant to carry out its rules and regulations dealing with the proper management of its prisoners who are under its care, custody and control.

The jury returned a verdict for plaintiff in the amount of $25,000. Defendant filed a motion for JNOV, or, in the alternative, for a new trial, assigning as one ground the failure of the evidence to establish that plaintiff’s injury was caused by the neglect, carelessness or unskillfulness of Birmingham’s agent, officer or employee. The trial court denied defendant’s motion and defendant appealed.

The case was submitted to the jury with instructions regarding not only the officer’s privilege to use force against his prisoner, but also the consequences of the officer’s exceeding the privileged force. Plaintiff asserts that an officer using excessive force against a prisoner has committed a negligent tort which falls within the definition of “unskillfulness.”

We agree with that conclusion, even though it means that a battery may be committed by “unskillfulness,” i. e., a form of negligence.

In the early case of Chapman v. State, 78 Ala. 463 (1885) the question was whether the presenting of an unloaded gun at a person in such a menacing manner as to terrify him and within such a distance as to have been dangerous had it been loaded, would support a criminal charge of assault. Calling attention to the conflict of authorities due to the failure to observe the distinction between civil and criminal cases, this Court held that a civil, but not a criminal, action would lie:

A civil action would rest upon the invasion of a person’s “right to live in society without being put in fear of personal harm;” and can often be sustained by proof of a negligent act resulting in unintentional injury. [Citations omitted.] An indictment for the same act could be sustained only upon satisfactory proof of criminal intentión to do personal harm to another by violence. [Citations omitted.]

And in Thomason v. Gray, 82 Ala. 291, 3 So. 38 (1887), an action of assault and battery, the following jury charges were given upon plaintiff’s request:

(1) “Even if the jury believe, from the evidence, that the plaintiff was in fault in bringing on the difficulty, yet, if they believe, from the evidence, that the defendant’s retaliation was disproportionate to, and excessive of, the necessity or provocation received, they must find for the plaintiff.” (2) “If the jury believe, from all the evidence, that the defendant brought on the difficulty, then he cannot invoke the doctrine of self-defense.” . ..

In commenting upon the propriety of the action and of these charges, this Court stated:

There may, no doubt, be cases of assault and battery, as well as of mere assault, which would sustain a civil action for damages, and yet not be punishable criminally, by indictment. An assault with an unloaded gun or pistol might be one of this character; as would also a battery resulting from the fault or negligence of the defendant, without any criminal intent. 2 Green. Ev. § 85; Chapman v. The State, 78 Ala.Rep. 463. ... In civil actions, . .. the rule obtains, that if the defendant was the aggressor, and brought on the difficulty, he can not invoke the doctrine of self defense, because it would be allowing him to take advantage of his own wrong. So, the doctrine [of self defense] being based on necessity, the party resorting to it can go no further, in doing damage or violence to his adversary, than what is reasonably necessary and unavoidable. His retaliation can not innocently be disproportionate to the necessities of the occasion, or excessive of the provocation received.... [Emphasis added.]

And in Carlton v. Henry, 129 Ala. 479, 29 So. 924 (1900), in applying the facts of the case to the applicable law of assault and battery, this Court declared that:

The act of Henry in thrusting the plaintiff being done in carrying out the unlawful purpose of beating the servant, was in itself unlawful and amounted to an actionable assault and battery without regard to whether it was designed to injure plaintiff. In the civil as distinguished from the criminal action an intent to injure is not essential to the liability of the person committing the assault. [Citations omitted.] . . .

The distinction was again commented upon in McGee v. State, 4 Ala.App. 54, 58 So. 1008, 1009:

[W]e think that, at times, courts have fallen into error in applying, or in attempting to apply, the rules applicable only to civil actions for assaults and batteries or trespass to the person to the facts in criminal prosecutions. In a criminal prosecution for an assault and battery, except as hereinafter shown, the intent to injure is one of the essential elements of the offense; in civil actions, the intent, while pertinent and relevant, is not essential. [Citation omitted.]

Accord, Birmingham Ry., Light & Power Co. v. Coleman, 181 Ala. 478, 61 So. 890 (1913); Pizitz v. Bloomburgh, 206 Ala. 136, 89 So. 287 (1921); Honeycutt v. Louis Pizitz Dry Goods Co., 235 Ala. 507, 180 So. 91 (1938).

In Burge v. Forbes, 23 Ala.App. 67, 70, 120 So. 577 (1929), a civil action for assault based upon an arrest during which the officer pointed a pistol at the plaintiff, the court stated:

The intention to do immediate harm to the person of plaintiff appears not to be essential in an action for a civil assault.

The opinion of Professor Prosser expressed in his notable treatise, Handbook of the Law of Torts, § 8 (4th ed. 1971), that the concept of a “negligent assault and battery” is outmoded, has served neither to overrule the well-established Alabama doctrine nor that of other jurisdictions. The contemporary rule in Connecticut, for example, is that an actionable assault and battery may be committed under circumstances showing a reckless disregard of consequences, or committed negligently. Russo v. Porga, 141 Conn. 706, 109 A.2d 585 (1954); Cf. Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975). See 6A C.J.S. Assault and Battery, § 5 at 322 (1975).

This case was submitted to the jury on the theory that an agent of the City of Birmingham had used “excessive force” upon the plaintiff, that is, a force which was excessive. That is the equivalent of asserting an assault and battery not measured or patterned for the circumstances, or an unskilled response, whether the force used was, as the trial court charged, exerted because of the plaintiff’s failure to respond to an order, or because the force was exerted in meeting a counterforce of the plaintiff. In either case, the lack of a response measured by the circumstances could have been due to his “unskillfulness” as an officer confronted by either of those circumstances. As “unskillful” is used in § 11-47-190, it means “lacking in skill or proficiency.” Webster’s Third New International Dictionary at 1510. Cf. Thomason v. Gray, supra. An assault and battery committed under either circumstance, because “unskilled,” would be a negligent assault and battery because it would fall below that response which a skilled or proficient officer would exercise in similar circumstances. Hence, the cause of action alleged and proved fell within the conduct for which the legislature has prescribed a remedy under § 11—47-190.

The defendant contends that the trial court erred in refusing to give certain requested jury charges which dealt with assault and battery. We have examined these charges and have found that they were either abstract or were covered by the court’s oral charge.

To the city’s argument concerning the admissibility of two photographs of the plaintiff which were taken shortly after the incident in question, we must state that it does not appear that the trial judge abused his discretion in allowing their admission. See generally C. Gamble, McElroy’s Alabama Evidence, § 207.01(2) (3rd ed.1977).

The judgment is affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., dissents.

TORBERT, Chief Justice

(dissenting).

I cannot agree that a battery may be a negligent tort.

The majority holds that an officer using excessive force against a prisoner has committed a negligent tort. I believe, however, that the majority’s ruling is not sustained by the authorities. A battery is an intentional and nonconsensual touching of another, W. Prosser, Handbook of the Law of Torts § 9 (4th ed.1971), or the touching by one person of the person of another in rudeness or anger. Wilson v. Orr, 210 Ala. 93, 97 So. 133 (1923). Although a police officer is privileged to use that force the officer reasonably believes necessary to overcome resistance to his lawful authority, a police officer is guilty of a battery when he exceeds the privileged force by committing unwarranted violence on the person of his prisoner. Evans v. Walker, 237 Ala. 385, 187 So. 189 (1939); 6A C.J.S. Assault and Battery § 27 (1975); Restatement (Second) of Torts §§ 117, 132 (1965). .

The Restatement (Second) of Torts defines “battery” as follows:

§ 18. Battery: Offensive Contact
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

Restatement (Second) of Torts § 18 (1965) (emphasis supplied). Comment g further explains that an actor whose conduct is reckless or negligent “does not become liable [for battery] if it causes only an offensive contact.” Restatement (Second) of Torts § 18, Comment g (1965). It is therefore clear that a battery is an intentional tort, see, W. Prosser, Handbook of the Law of Torts § 9 (4th ed.1971), but the majority holds that it is possible to have a negligent battery, citing, among the cases, Honeycutt v. Louis Pizitz Dry Goods Co., 235 Ala. 507, 180 So. 91 (1938), and Pizitz v. Bloomburgh, 206 Ala. 136, 89 So. 287 (1921). As the majority suggests, these cases do appear to recognize that there can be a negligent assault and battery. The cases, however, are grounded on negligence principles, and I believe that the term “assault and battery,” as used in these cases, indicates only that recovery was sought for personal injury directly resulting from defendant’s alleged negligence.

The Bloomburgh opinion did not include facts; however, in Honeycutt this Court applied the facts to determine whether the plaintiff’s case was properly submitted to the jury on an assault and battery count. Defendant, as part of a holiday promotional program, sent an employee, dressed as Santa Claus, to distribute various items. The employee, while standing on the rear of a truck, threw candy into a crowd of several hundred, and one piece of candy struck plaintiff in the eye. Under these facts, this Court found sufficient evidence for plaintiff’s verdict on the assault and battery count by holding:

It is settled in this jurisdiction that to maintain a civil action for an assault and battery, it is not essential that the infliction of the injury upon the plaintiff should be intended. And it can often be sustained by proof of a negligent act resulting in unintentional injury.
If the missiles thrown — the lollypops [sic] — were of such'nature and character as that they were liable to produce injury, and were thrown into the crowd of women and children with such force as to cause injury, the jury was warranted in finding the defendant liable under the third count of the complaint [for assault and battery].

Honeycutt v. Louis Pizitz Dry Goods Co., 235 Ala. 507, 509, 180 So. 91, 92 (1938) (citations omitted, emphasis supplied). From the foregoing, it is clear the Honey-cutt court simply approved a count for negligent infliction of personal injury.

The tort law evolutionary process explains the older references to assault and battery as negligent torts. The subject is discussed by Dean Prosser:

The procedural distinction between trespass and case has long been antiquated, although some vestige of it still survives in a few states which retain common law pleading in a modified form. Modern law has almost completely abandoned the artificial classification of injuries as direct or indirect, and looks instead to the intent of the wrongdoer, or to his negligence. The first step was taken when the action on the case was extended to include injuries which were not intended but were merely negligent, and were inflicted directly and immediately. Because of the greater convenience of the action, it came to be used quite generally in all cases of negligence, while trespass remained as the remedy for the greater number of intentional wrongs. Terms such as battery, assault and false imprisonment, which were varieties of trespass, came to be associated with intent, and negligence emerged as a separate tort. The shift was a gradual one, and the courts seem to have been quite unconscious of it. When, in the nineteenth century, the old forms of action were replaced in most jurisdictions by the modern code procedure, the new classification remained. There is still some occasional confusion, and some talk of a negligent “assault and battery,” but in general these terms are restricted to cases of intent.

W. Prosser, Handbook of the Law of Torts § 8, at 29-30 (4th ed.1971) (footnotes omitted). As a footnote to the foregoing discussion, Professor Prosser wrote: “A later example of this use of an outmoded terminology [negligent assault and battery] is Honeycutt v. Louis Pizitz Dry Goods Co., 1938, 235 Ala. 507, 180 So. 91, which finds assault and battery where plaintiff was negligently, but not intentionally, struck by a lollipop.” W. Prosser, supra, at 30 n.15. I agree with Professor Prosser’s analysis of cases using the terms “negligent assault and battery,” and I would hold that assault and battery are purely intentional torts.

The question then becomes whether Code 1975, § 11-47-190, permits municipal liability for an intentional tort. I believe that the very recent case of Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980), settled the question. I take Neighbors as an unassailable authority that § 11-47-190 precludes a suit against a municipality for an intentional tort, and I would hold that defendant was entitled to have its motion for directed verdict granted.

In Neighbors, the issue was whether a municipality could be liable for malicious prosecution. Mr. Neighbors was arrested by Birmingham police officers on a charge of public drunkenness. He was acquitted of the charge, and subsequently he filed suit for malicious prosecution against Birmingham and the police officers. The trial judge dismissed the complaint for failure to state a claim, and Mr. Neighbors appealed. We affirmed the trial judge because § 11-47-190 made municipalities liable only for the “neglect, carelessness, or unskillfulness” of their employees. The court gave effect to the plain meaning of the statute and held that Birmingham could not be liable for malicious prosecution.

The Neighbors court, discussing the importance of Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), said:

Appellant insists that McCarter v. City of Florence, [216 Ala. 72, 112 So. 335 (1927), which held that a municipality was not liable for malicious prosecution] was overruled by this Court’s decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), a decision which he contends absolutely abolished governmental immunity in Alabama. We do not agree. Jackson abolished the judicial doctrine of municipal immunity, but recognized “. . . the authority of the legislature to enter the entire field, and further recognize[d] its superior position to provide with proper legislation any limitations or protections it deems necessary . . . . ” 294 Ala. 592, at 600, 320 So.2d 68, at 75.
In so holding, Jackson gave effect to former Tit. 37, § 502, now Code 1975, § 11-47-190, a legislative effort to impose liability on municipalities for the negligence of their employees, which had been thwarted by the interpretation placed on it by the courts.
Section 11-47-190 remains the pertinent legislative enactment. It limits the liability of municipalities to injuries suffered through “neglect, carelessness or unskill-fulness.” To construe that language to include an action for malicious prosecution would be to expand the words beyond their normal meaning. This we decline to do.

Neighbors v. City of Birmingham, 384 So.2d at 113-14. The rule to be gleaned from the Neighbors case, then, is that by enacting § 11-47-190 the Legislature abolished municipal immunity from liability for negligent torts and not for intentional torts.

The Neighbors case did however, call into question the continued viability of one rule presumably implicit in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). In Jackson, it was alleged that a Florence police officer negligently assaulted (Count I) or willfully and wantonly assaulted (Count II) the plaintiff by the use of excessive force. We reversed in whole the trial judge’s sustaining of defendant City’s demurrer and its motion to dismiss. If our reversal in Jackson could be construed as approving Count II, which alleged an intentional tort, then I believe Neighbors settled that § 11-47-190 does not allow suit against a municipality for the intentional tort of its agent.

In the area of municipal immunity from lawsuit, the legislative province is clear. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). The Legislature has the right to restrict municipal liability, and I would not interpret the legislative directive making municipalities liable for “neglect, carelessness or unskillfulness” to include liability for intentional conduct. As such, I would hold that Code 1975, § 11-47-190, gives no cause of action for what have traditionally been regarded as intentional torts.

Here, plaintiff alleged and sought to prove that, in an effort to coerce compliance with the jail’s rules, defendant’s police officer beat and kicked plaintiff without justification, and that the blows caused plaintiff serious injury. In other words, plaintiff’s theory of recovery is that defendant’s police officer used excessive physical force on plaintiff’s person. Therefore, plaintiff does not seek recovery for defendant’s negligence, but instead, seeks recovery for the intentional tort of battery. For this reason, § 11 — 47—190 precludes plaintiff’s cause, and I would hold that the trial court should have granted defendant’s motion for directed verdict.

      Code 1975, § 11-47-190, provides in pertinent part:
      No city or town shall he liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VAN PAC CARRIERS, INC. v. Sushan K. ANAND.
    No. 80-144.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Rehearing Denied Oct. 2, 1981.
    Dennis Riley of Camp & Riley, Huntsville, for appellant.

      Danny D. Henderson of Henderson & Grace, Huntsville, for appellee.
   PER CURIAM.

This appeal comes to us from the Circuit Court for Madison County. Sushan K. Anand, plaintiff, brought an action in tort and contract against Van Pac Carriers, Inc., and two other defendants, Wheaton Van Lines, Inc., and Aerospace Movers, Inc., because of damage done to his household goods incurred while they were being moved from Scottsboro, Alabama, to Port Le Cortez, Honduras, and then to New Orleans, Louisiana. The trial court granted a motion to dismiss as to Wheaton Van Lines, Inc. The ease proceeded to trial by jury, and a verdict was returned against Van Pac Carriers, Inc., and Aerospace Movers, Inc., in the amount of $10,127.58. Aerospace did not appeal, so we are concerned only with Van Pac Carriers (defendant). Defendant appealed the denial of its motions for a directed verdict and for new trial or, in the alternative, judgment notwithstanding the verdict.

The dispositive issues on this appeal are whether defendant’s liability extended beyond the original contract to ship plaintiff’s household goods to Honduras; and if it did not, whether the plaintiff established at trial that the damage that occurred to his possessions happened under the original contract with the defendant. We answer both in the negative and reverse.

The facts pertinent to this appeal are as follows. Plaintiff, for business purposes, decided to move his family and household goods from Scottsboro, Alabama, to Honduras. Plaintiff expected to remain in Honduras for six months. On July 5, 1977, the defendant packed and removed plaintiff’s goods for shipment. Plaintiff testified that the packing was done roughly, and at one point he ordered the movers to stop packing. Plaintiff, however, received assurance that the movers were competent. The movers were allowed to finish packing the remove plaintiff’s goods for shipment.

Plaintiff made arrangements for payment of the shipping charges and was issued a bill of lading providing for shipment to Honduras through New Orleans, Louisiana. Plaintiff also paid an insurance premium for protection against damage to his goods. During the second week in July 1977, plaintiff and his family left for Honduras. Plaintiff testified that he was promised delivery in three to four weeks. The goods did not arrive in Honduras until October 1977, near the end of plaintiff’s stay. Upon learning of arrival of his goods, plaintiff went to the office of Honduran Line, which actually delivered the plaintiff’s goods to Honduras, and instructed it to send the goods back under the same terms and conditions. Plaintiff did not sign any papers with Honduran Line, nor was he issued a new bill of lading. The goods were sent back and plaintiff claimed and inspected them in New Orleans. In New Orleans, plaintiff made payment to Honduran Line for shipment of the goods from Honduras. Plaintiff inspected some of his goods and found them to be damaged. Isaiah Knight was hired by the plaintiff to move his goods from New Orleans to Scottsboro, Alabama, and later to Georgia. After plaintiff inspected some of his goods in New Orleans, subsequent inspection when the goods reached Scottsboro, Alabama, revealed additional damage.

The first question we consider is whether defendant’s liability extended beyond the original contract providing for shipment of plaintiff’s goods to Honduras. Although it dealt with interstate commerce, we believe the principle stated in Clark v. Louisville & N. R. R. Co., 216 Ala. 637, 114 So. 295 (1927), to be applicable to the instant case. In Clark, this court stated that “ ‘The obligation of the initial carrier ceases when the goods reach the destination in good.condition to which they were originally intended or consigned.’ ” Clark, 216 Ala. at 639, 114 So. at 297. This Court stated also in Clark:

The owner of goods shipped — and pri-ma facie the consignee is the owner — may change his instructions as to their destination, and substitute a different place of delivery; but this ... he must do during the transit, and not after their destination has been reached, and the terms of the carrier’s obligation have been fulfilled. [Citation omitted.]

Clark, 216 Ala. at 640, 114 So. at 297. In American Cotton Products Co. v. New York Cent. R. Co., 142 Misc. 821, 255 N.Y.S. 672, at 681 (1932), it was noted that a “carrier’s obligation terminates when the goods reach the original destination. Hence, transit beyond this original destination usually requires a new contract.”

Plaintiff contends that defendant’s liability for his goods continued until the goods were returned from Honduras to New Orleans. We find, after a review of the record, that this contention is without merit. By his own testimony, plaintiff established that when he re-shipped his goods back to New Orleans, he dealt with Honduran Line, and not defendant. Further, plaintiff testified that he made payment to Honduran Line for the return shipment, and that no payment was made to the defendant for that shipment. The fact that apparently a new bill of lading erroneously was not issued does not help the plaintiff under the facts of his case. Under the above-cited authority, it is clear that with delivery of the plaintiff’s goods to Honduras, a new contract for shipment elsewhere had to be made. The plaintiff produced no evidence to allow the jury to believe that Honduran Line was acting as an agent for defendant on the return shipment from Honduras to New Orleans. The most that plaintiff’s evidence showed was that he mistakenly assumed that because Honduran Line was used by the defendant to ultimately deliver the plaintiff’s goods to Honduras, it could bind the defendant as its agent when plaintiff ordered his goods sent back.

Having determined that defendant’s responsibility under the contract for shipment ended when plaintiff’s goods reached Honduras and he ordered them re-shipped, we next consider whether the verdict against the defendant for damage to the goods was supported by evidence in the record. Plaintiff testified that he first inspected some of his goods in New Orleans, after they had been returned from Honduras. In New Orleans he discovered some items were damaged. After the goods were shipped from New Orleans, plaintiff discovered that additional items had been damaged, when the goods were inspected in Scottsboro, Alabama.

Both plaintiff and defendant agree that for defendant to be held liable for damage to plaintiff’s goods, the plaintiff must establish: “(1) delivery to the carrier in good condition; (2) arrival in damaged condition, and (3) the amount of damages.” Ed Miniat, Inc. v. Baltimore and Ohio Railroad Company, 587 F.2d 1277 (D.C. Cir. 1978). We believe that plaintiff did not establish that his goods arrived in damaged condition in Honduras, the place at which defendant’s responsibility under the contract ended. By his own testimony plaintiff admitted he did not inspect his goods until they were returned to New Orleans. He further admitted that he had no idea as to where the damage to his goods occurred. Nor do we find the testimony of plaintiff’s expert witness helpful in establishing liability of the defendant. Isaiah Knight testified that he observed some of the damaged goods in New Orleans and later also helped plaintiff unpack some of the crates at plaintiff’s house. He testified that in his opinion part of plaintiff’s goods were packed improperly. We find nothing in Mr. Knight’s testimony that establishes defendant’s shipping or packing of the goods resulted in their damage.

We have held consistently that a verdict cannot be founded upon speculation or conjecture. Walston v. Birdnest Apartments, 395 So.2d 45 (Ala.1981); Matthews v. Mountain Lodge Apartments, 388 So.2d 935 (Ala.1980). In the instant case, the trial court erred in denying defendant’s motion for a directed verdict. The judgment is, therefore, due to be reversed and rendered.

REVERSED AND RENDERED.

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


text:
    TENSAW LAND & TIMBER COMPANY, INC., a Corporation v. Charles M. STODDARD, if Living, and His Heirs or Devisees, if Deceased; Demonstration Plantation Company; Robert Kerlin, etc.
    80-396.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Rehearing Denied Oct. 2, 1981.
    Sidney S. Schell and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellant.
    Herndon Inge, Jr., of Inge, McMillan & Inge, Mobile, for appellees.
   PER CURIAM.

On the first appeal of this case, the judgment in favor of the adverse possession claimant (Tensaw Land & Timber Company, Inc.) was reversed and the cause remanded for further proceedings. Kerlin v. Tensaw Land & Timber Company, Inc., 390 So.2d 616 (Ala.1980). Upon retrial, a judgment was entered in favor of the record title holder (Robert Kerlin). Our thorough review of the record, assisted by our study of the excellent briefs of counsel, constrains us to hold that the evidentiary deficiency noted on the first appeal has not been overcome; and the heavy burden which the law casts upon an adverse possession claimant to prove his case through the principle of tacking has not been met.

AFFIRMED.

AH the Justices concur except ADAMS, J., not sitting.


author: SHORES, Justice.

text:
    RELIANCE INSURANCE COMPANY, a corporation v. SUBSTATION PRODUCTS CORPORATION, a corporation. STATE FARM FIRE AND CASUALTY COMPANY, a corporation v. SUBSTATION PRODUCTS CORPORATION.
    79-747, 79-788.
    Supreme Court of Alabama.
    Sept. 18, 1981.

      Lyman H. Harris and Tommy Yearout of Lorant, Harris & Yearout, Birmingham, for appellant Reliance Insurance Co.

      Thomas A. Woodall of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellant State Farm Fire & Cas. Co.
    John Martin Galese and Michael L. Chambers, Birmingham, for appellee.
   SHORES, Justice.

This is a consolidation of appeals by defendants State Farm Fire and Casualty Company and Reliance Insurance Company from a final decree in a nonjury trial in favor of the plaintiff Substation Products Company for fire loss. The court found that the defendants were jointly and severally liable in the amount of $187,496.51.

On November 1, 1977, Substation Products Company leased a lot and office building/warehouse at 2912 Lomb Avenue in Birmingham to James H. Dennis, Sr. The lease provisions prohibited Dennis from subleasing or assigning without written consent by Substation and obligated Dennis to insure the premises for 90% of the full insurable value of the building and to provide that the insurance should run jointly in favor of the lessor and lessee and should be applied to the restoration of the building. Dennis was required to give Substation a copy of the insurance policy and proof of payment thereon.

Prior to Dennis’s going into possession, Substation installed heaters and lights as improvements on the property at a cost of $2,100.00. , Dennis, without the prior written consent of Substation, assigned his interests in the lease to Dennis Mining, a corporation wholly owned and managed by Dennis. Dennis Mining then made improvements to the office portion of the building valued at approximately $17,-000.00.

In July, 1978, Dennis contacted Terry Henley (who was also a defendant in this lawsuit), an insurance agent for State Farm, and applied for insurance on the property. Through the efforts of Henley, State Farm issued a special multi-peril policy insuring Dennis Mining Supply and Equipment. The effective policy period was July 24, 1978, to July 24, 1979. The policy insured the building for $175,000.00 with an 80% co-insurance clause and the contents for $25,000.00 with the same co-insurance provision. There was conflicting testimony whether Henley knew that Substation, not Dennis, was the owner of the property. Substation was named as mortgagee in the policy. The State Farm policy stated that it was “void if, ... before or after loss, the insured . . . willfully concealed or misrepresented any material fact or circumstance ... or the interest of the insured ... or any fraud by the insured.”

In late August, 1978, State Farm decided to cancel the policy because a Dunn and Bradstreet report on Dennis Mining revealed adverse financial background information. The report also indicated that Dennis Mining rented the property. State Farm’s fire underwriter, Mack Terry, was instructed to cancel the insurance and mail to Substation a ten-day notice of cancellation. At the request of Henley, Terry agreed to refrain from mailing Substation notice of cancellation and allowed Henley to see if he could obtain a request for cancellation from Dennis.

Henley obtained the properly-signed cancellation request form from Dennis Mining but then lost it. There was disputed testimony whether Substation and Henley had conversations concerning the State Farm coverage after Dennis had signed the cancellation request. Substation maintained that they made numerous telephone calls to Henley informing him of their ownership of the property and requesting a copy of the State Farm policy. There is evidence that Henley repeatedly assured them that the policy would be forthcoming. Henley denied any such conversations.

The policy was received by Substation in late September or early October, 1978. Substation did not review the details of the policy but merely cheeked the amount of the coverage and that their name appeared on the policy.

After Henley had received the cancellation request form, insurance was written on the property by other carriers, through the efforts of a friend of Henley, Tony Craft. Craft was an insurance salesman for The Nolen Agency, which serves as an agent for several insurance companies, including Reliance.

In November, 1978, Reliance issued a policy which cited Dennis Mining as named insured and as owner of the building and contents. The policy provided $150,000 limits at 90% co-insurance on the building and $90,000 for contents. It had an effective date of November 30, 1978, through November 30, 1979. Substation was not mentioned in the policy.

There was conflicting evidence whether Craft had knowledge of both the prior State Farm policy and Substation’s interest in the land at the time of issuance.

After receipt of the original policy, Dennis requested additional coverage on some other items. On December 28, 1978, Craft gave Dennis a letter confirming the changes and increases written on a separate “inland marine” policy. The copy of the letter introduced at trial included the words “Added Substation Products as lienholder on property” in the body of the letter but in a different typeface. Craft denied typing the language onto the letter. An employee of Dennis, Andy Shaddix, testified that he reminded Craft at the time of delivery of the letter that the language had to be included and that he and Dennis watched him type it in.

On January 2,1979, the building and contents were severely damaged. The cause was arson.

After the fire, State Farm instructed Henley to prepare a new cancellation form to replace the lost one, to back date it to August 21, 1978, and have Dennis sign it. Thereafter, Substation was visited by a State Farm investigator who informed them that State Farm would not pay the claim to Substation because Dennis had cancelled the policy on August 21, 1978.

Thereafter, however, on or about January 18, 1979, State Farm notified Dennis of the rescission of the policy based on two factors: (1) Alleged misstatements of no prior cancellations by Dennis Mining; and (2) alleged misstatements that Dennis Mining had no prior losses.

Accompanying the rescission letter was a check for the return premium made payable to Dennis personally. In February, 1979, Reliance cancelled its policy, retroactive to November 30, 1978.

On January 18, 1979, Substation filed a complaint against State Farm, Henley, Reliance, Craft, The Nolen Agency, and Dennis, seeking damages for misrepresentation and breach of contract. Following a petition to the Supreme Court, Ex parte Reliance Insurance Co., 380 So.2d 266 (Ala.1980), the Court ordered a jury trial for Craft and Nolen, and Reliance filed a cross bill against Dennis. Dennis then filed a separate suit against Reliance, Nolen, Craft, State Farm, and Henley. The cross bill and Dennis’s suit concerned the Reliance policies on the contents of the building. Reliance wanted them declared null and void, and Dennis wanted to recover on them. Dennis’s suit was dismissed for failure to have asserted it as a compulsory counterclaim to the Substation suit, and his motion to consolidate his suit with the Substation suit was denied. After the court heard the Substation suit ore tenus, in its final decree it ordered:

1. That the Reliance Insurance Company policy as originally issued on or about November 30, 1978, was in full force and effect on the date of the fire loss, to-wit: January 2, 1979, to the extent of the coverages originally set forth therein.
2. That the “inland marine” policy issued, or bound, and the increases in coverages occurring in late December, 1978, were not in force on the date of the fire, to-wit: January 2, 1979, and therefore, Reliance is not bound to afford coverage to Dennis Mining & Equipment Company thereupon.
3. That the Plaintiff is entitled to a joint and several judgment against State Farm Fire & Casualty Company and Reliance Insurance Company in the amount of $187,496.51.
4. All other relief prayed for by the parties in this action, not specifically set forth hereinabove, is otherwise denied and overruled.

Reliance and State Farm appealed.

In its appeal, Reliance first argues that the court committed reversible error by reforming the policy of insurance issued by Reliance and naming Substation as an insured because Substation failed to meet the burden of defeating the presumption that the written instrument was the true agreement of the parties. Reliance contends that according to Alabama law, Substation had the burden by proving a mutual mistake beyond a reasonable doubt and by clear, convincing, and satisfactory evidence and, consequently, that Substation did not meet its required burden of proof because of the great weight of disputed evidence. In support of its contention, Reliance cites Hammer v. Lange, 174 Ala. 337, 56 So. 573 (1911), which states:

“The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing—in the language of some judges, ‘the strongest possible’—or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt.”

174 Ala. at 340, 56 So. 573.

We hold that proof “beyond a reasonable doubt” is not required in a case like this. To apply it would impose a criminal law standard in a civil case. It has long been the law in Alabama that in order to warrant relief by reformation, the burden on the complainant is to show by clear, exact, convincing, and satisfactory evidence that the instrument does not express the true agreement of the parties, and also what, in fact, the parties intended that the wording should contain. Nall v. Nall, 382 So.2d 575 (Ala.Civ.App.1980); Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974); Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12 (Ala.1971).

Reliance then argues in effect that even if the standard is less than that of beyond a reasonable doubt, the evidence in favor of a mutual mistake was not as credible as that against it, and as such the court should be reversed. We cannot agree.

Where a trial court has heard evidence ore tenus, its findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust, and such rule is especially applicable in cases in which the trial court makes its findings of fact after hearing conflicting evidence; every presumption will be indulged in favor of the court’s findings, and those findings will not be disturbed unless palpably wrong. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980).

Also, on an appeal from a judgment entered without any specific findings of fact, the Supreme Court assumes that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence. O’Connor v. Rabren, 373 So.2d 302 (Ala.1979).

There was sufficient evidence presented that if believed by the court would meet the standard of proof required. Craft was the agent of Reliance and, therefore, Reliance is charged with his knowledge. If the trial court believed the testimony of Dennis and Shaddix in conjunction with other circumstantial evidence, Craft not only had a copy of Dennis’s prior State Farm policy in his file at the time he wrote the fire insurance on the building, but also had been told to name and protect Substation’s interest in the property. Also there was evidence that Craft had added Substation’s name on the December 28, 1978, letter confirming coverage thereto as a “lein [sic] holder.” Therefore, since there was evidence that Dennis intended to insure Substation’s interest in the property, manifested by his instructions to Craft, and there was evidence that Craft intended to protect the interest of the owner of the property, we can find no reason to reverse the trial court’s reformation of the policy.

Reliance also argues that the trial court erred in not declaring the insurance policy void because under our law, misrepresentations will void a policy of insurance if the representations are false, made with actual intent to deceive, or increase the risk of loss for the hazard assumed, and the insurer detrimentally relied on the representations. Reliance also notes that the policy itself provided:

4. Concealment or fraud. This policy is void if insured has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.

We agree that the general rule is that an intentional misrepresentation by the applicant of material facts relied on by the insurer permits the insurer to avoid the policy. However, the well-recognized exception to this rule is: The policy is not avoided if the insurer knows the facts, or the falsity of the statements, or has sufficient indications that would put a prudent person on notice so as to induce an inquiry which, if done with reasonable thoroughness, would reveal the truth. Banker's Life and Casualty Co. v. Long, 345 So.2d 1321 (Ala.1977).

As pointed out previously, there is conflicting evidence as to the representations that Dennis made to Craft at the time of the issuance of the initial insurance. If the evidence was viewed in the light most favorable to Dennis, his statements during that period, although ambiguous, e. g., “I don’t owe a penny to anyone on anything,” do not amount to actual misrepresentations.

Also the evidence as discussed under Reliance’s first argument was enough to show that Reliance, through its agent, Craft, had sufficient indications so as to induce further inquiry, and, therefore, fall within the exception to the general rule.

Therefore, we cannot find that the court was palpably wrong in not holding that the initial insurance policy was void. Furthermore, although Reliance spent considerable time in its brief pointing out misstatements made by Dennis regarding coverage for a drill rig, such misrepresentations concerned additional coverage under the “inland marine” policy, and came after the initial fire policy covering the building at 2912 Lomb Avenue. The trial court did not permit recovery by Dennis on these increases and only sustained the November 30, 1978, policy as to coverage originally set forth therein; therefore, we need only examine the statements made concerning the initial policy to review the trial court’s decision under the ore tenus rule.

Reliance next argues that the court committed reversible error by failing to grant Reliance a jury trial on its cross bill for declaratory judgment filed against Dennis and Dennis Mining.

This issue has been before this Court on a petition for writ of mandamus in Ex parte Reliance Insurance Co., 380 So.2d 266 (Ala.1980). The petition sought to set aside an order issued by the trial court which, pertinent to this appeal, denied Reliance, Nolen, and Craft the right to a jury trial and refused Reliance’s motion for permission to file a cross claim, adding as an additional party, Dennis Mining. This Court directed the trial court to grant the motion for the cross bill to add Dennis Mining as an indis-pensible party.

As to the issue of the right of Reliance to a jury trial, we held:

Reliance filed its answer to Substation Products’ complaint on May 11. A jury demand was not made at that time. On June 4 Reliance filed a cross-bill in which it requested that Dennis Mining Supply and Equipment, Inc., be added as an indispensable party. No other new issues were raised in this cross-bill. On June 12, Reliance made a demand for a jury trial on all issues triable by a jury.
For Reliance’s June 12 jury demand to be timely it must have been made within thirty days following Reliance’s answer to Substation Products’ complaint. It would also have been timely if the cross-bill had contained new issues not raised in the Substation Complaint. Since neither of the above has occurred Reliance’s jury demand must be found not to have been timely filed.

On January 24, 1980, the trial court allowed Reliance to file its cross bill adding Dennis Mining as a party, and it was served in open court on Dennis in behalf of himself, individually, and of Dennis Mining. On February 21, 1980, Reliance again filed a demand for a jury trial on all issues raised in the cross bill. Substation’s motion to strike the jury demand was granted by the trial court.

Reliance argues that a jury trial should have been granted because the cross bill does in fact contain new issues because the original complaint filed by Substation against Reliance dealt only with the policy of insurance which covered the building, while the cross bill against Dennis and Dennis Mining sought to have all the policies issued by Reliance to Dennis Mining declared void, including those covering the equipment and automobiles. Therefore, it argues that since the cross bill was the first pleading which brought into issue the other insurance policies, its filing of a demand for a jury trial on February 21, 1980, was timely and should have been granted.

We note, however, that the very same cross bill was before this Court in Ex parte Reliance Insurance Co., supra. The argument which Reliance now makes could have been presented at that time before the prior judgment was rendered on the merits.

The elements of res judicata are a prior judgment rendered by a court of competent jurisdiction; the prior judgment rendered on the merits; the parties to both suits substantially identical; and the same cause of action present in both suits. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978).

Additionally, a judgment in a former action between the same parties is not only conclusive of questions actually litigated, but also of those which could have been litigated in the former suit. Educators’ Inv. Corp. of Alabama, Inc. v. Autrey, 383 So.2d 536 (Ala.1980).

Therefore, we find the principles of res judicata to be present here thereby precluding Reliance’s asserting error by the trial court’s denial of a jury trial.

State Farm argues that the court erred in holding State Farm liable to Substation under the policy issued to Dennis Mining because of several reasons.

First, State Farm argues that Dennis Mining had no insurable interest in the building since the lease agreement between Substation and Dennis precluded any transfer of interest without written approval by Substation, and no such approval was given. Therefore, since Dennis Mining did not have an insurable interest in the premises, the policy was void and can provide no basis for recovery for Substation.

State Farm also contends that Dennis’s misrepresentations to State Farm of his company’s and Substation’s interest in the insured premises were material misrepresentations which voided the policy ab initio as to Dennis, as it follows that Substation cannot be entitled to recovery unless its rights were separate from the named insured.

We note that Substation was designated as mortgagee in the policy, and the mortgage clause in the policy states: “[Tjhis insurance as to the interest of the mortgagee (or trustee) only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property.”

However, State Farm believes that Substation cannot benefit from the mortgagee clause because Substation was not and never had been the mortgagee, and, therefore, its own claim was derivative of Dennis’s claim.

State Farm lastly reasons that notwithstanding their prior argument, any protection that Substation might have through the mortgagee clause is cut off due to Substation’s acquiescence in Dennis’s misrepresentations evidenced by its knowledge that the policy was issued to Dennis Mining, not to Dennis individually, and also that the policy listed Substation as mortgagee and not owner.

Once again, after applying the ore tenus rule as set out in O’Connor v. Rabren, supra, we cannot find that the trial court erred in holding State Farm liable to Substation under the policy issued to Dennis Mining.

First of all, there was sufficient evidence, both direct and circumstantial, presented to show that Substation had waived the approval requirement through its knowledge of Dennis Mining being the actual tenant, manifested by its acceptance of Dennis Mining’s rental checks. As such, an insurable interest would clearly exist.

Also, there was enough evidence, albeit disputed, for the trial court to find that State Farm, through its agent, Henley, had knowledge of Substation’s interest as owner of the premises and that State Farm, notwithstanding that knowledge, mistakenly noted Substation’s interest as mortgagee on the policy.

Errors or omissions made by employees of State Farm, whether in the preparation or processing of the application or in the actual issuance of the policy, cannot be the basis for its later denial of the claim. See, United Security Life Ins. Co. v. St. Clair, 41 Ala.App. 243, 130 So.2d 213 (1961).

Therefore, the fact that Substation’s name only appeared in the policy as mortgagee does not preclude the trial court from finding that it did have a recoverable interest under the policy. However, it is important to note that the trial court in its ruling found that State Farm and Reliance were jointly and severally liable to Substation. Therefore, the court could have found State Farm liable to Substation in tort rather than under a contract theory. Because there was no finding of fact by the judge, there is no way to know precisely what he based his determination upon.

This raises an issue jointly argued by the defendants. Both maintain that a review of the two policies clearly discloses that the trial court committed reversible error in holding that State Farm and Reliance were jointly and severally liable to Substation.

The Reliance policy under “other insurance” provides:

(a) If at the time of loss there is other insurance written in the name of the insured upon the same plan, terms, conditions and provisions as contained in this policy, herein referred to as Contributing Insurance, the Company shall be liable for no greater proportion of any loss than the limit of liability under this policy bears to the whole amount of insurance covering such loss.
(b) If at the time of loss there is other insurance other than that as described in (a) above, the Company shall not be liable for any loss hereunder until:
(1) the liability of such other insurance has been exhausted, and
(2) then for only such amount as may exceed the amount due from such other insurance, whether collectible or not.

The State Farm “other insurance” clause provides:

1. Loss by fire or other perils not provided for in 2 below: If at the time of the loss, there is other insurance available to the insured or any other interested party covering such loss or which would have covered such loss except for the existence of this insurance, then the Company shall be liable as follows:
a. If such insurance is Contributing Insurance, defined as any insurance written in the name of the insured, upon the same plan, terms, conditions and provisions as contained in this policy whether collectible or not, the Company shall be liable for no great- • er proportion of any loss than the limit of liability under this policy bears to the whole amount of insurance covering such property.
b. If such insurance is Specific Insurance, defined as any insurance other than that described as Contributing Insurance in a. above, the Company shall not be liable for any loss hereunder until the liability of such Specific Insurance has been exhausted, and then shall cover only such amount as may . exceed the amount due from such Specific Insurance (whether collectible or not) after application of any contribution, coinsurance, average or distribution or other clauses contained in policies of such Specific Insurance affecting the amount collectible thereunder, not exceeding however, the applicable limit of liability under this policy.

The defendants argue that since the trial court has held them jointly and severally liable, the other insurance provisions of each policy must be considered in awarding Substation damages, and that where each policy contains such a pro rata clause, any judgment against the two companies must prorate the loss between the two insurers. In support, they cite Nationwide Mutual Fire Insurance Co. v. Wilborn, 291 Ala. 193, 279 So.2d 460 (1973), which states:

If the policies of two insurance companies are in force at the date of the loss and the status of the two insurers is that of insurers of the same property of the same insured against the same hazard, they are each proportionately and severally liable for the loss at the ratio which the amount of their respective policies bears to the whole insurance covering the property against the perils involved.

279 So.2d at 466.

State Farm and Reliance have correctly identified the law in Alabama in regard to when more than one insurance company is found liable to an insured under their policies. If Substation had only sued under the respective policies, such would have to be the case here. However, Substation also included tort claims in its complaint against State Farm and Reliance. In its action against State Farm, Substation claimed:

COUNT FOUR
1. The Plaintiff adopts and incorporates herein all of the words, figures, and allegations contained in Count One above and adds thereto the following:
2. That the Defendants Henley and State Farm concealed material information from the Plaintiff in that the said Defendants concealed the fact that Dennis had requested a cancellation of the State Farm policy.
3. That the said Defendants Henley and State Farm misrepresented during the months of September and October, 1978 that the policy of insurance issued by State Farm in which the Plaintiff was designated as a loss payee was in full force and effect.
4. That the Plaintiff relied upon such representations and relied upon the concealment of material facts as alleged above and did not obtain other or different insurance for its protection.
5. That in reliance thereupon and as a result of a fire loss on or about January 2, 1979, the Plaintiff has been materially damaged and substantially damaged in the amount of $175,000.00.
WHEREFORE, Plaintiff demands judgment against State Farm Fire and Casualty Company and Terry Henley in the sum of $175,000.00, interest and costs. Plaintiff demands punitive damages of $500,000.00.
COUNT FIVE
1. The Plaintiff adopts and incorporates herein all of the allegations' contained in Counts One and Four of this Complaint and adds thereto the following:
2. That it is believed and upon such information and belief averred that the Defendant State Farm Fire and Casualty Company has entered into a written agreement or covenant with Dennis either in his individual capacity or doing business as Dennis Mining Supply and Equipment, Inc. wherein and whereby said Dennis will make no claim against said policy of insurance issued by State Farm.
3. That such agreement is an attempt to alter, modify, abrogate or prejudice the rights of the Plaintiff in and to said policy of insurance and the benefits to be derived therefrom under the terms therein contained.
4. That the refusal of the Defendant State Farm Fire and Casualty Company to pay the Plaintiff’s fire loss under the terms and conditions of its policy of fire insurance coupled with State Farm Fire and Casualty Company’s concealment of material facts coupled with the lack of notice of cancellation to the Plaintiff coupled with its side agreement or separate covenant with Dennis amounts to and constitutes bad faith for which the Plaintiff claims damage in the amount of $175,000.00 and punitive damages in the amount of $500,000.00 and the costs of this action.

Substation’s tort claim against Reliance states:

COUNT SEVEN
1. The Plaintiff adopts each and every word, figure and allegation contained in Count One of the Original Complaint, and adds thereto the following:
2. That during the month of November, 1978, the Defendant RELIANCE was an insurance company acting through its agents, Tony Craft (CRAFT) and The Nolen Agency (NOLEN) in connection with its writing of fire insurance policies within the State of Alabama. -
3. That at such time, the Defendant CRAFT, was over the age of 19 years and was doing business within Jefferson County, Alabama for the Defendant NO-LEN, a corporation.
4. That the said CRAFT and NOLEN at such time and place were licensed agents for RELIANCE.
5. That the said RELIANCE, CRAFT and NOLEN solicited certain fire insurance business on property owned by the Plaintiff as described in Count One of the Complaint, and were fully informed that the Plaintiff was the owner of such property.
6. That the said RELIANCE, CRAFT and NOLEN failed to adequately underwrite and insure such property, in that the said Defendants knowing the true ownership of said property, failed to name the Plaintiff as the insured under such policy of fire insurance which was actually issued by RELIANCE. That such failure to properly and adequately name the Plaintiff as the named insured amounted at such time to negligence of the said Defendants.
7.That as a proximate consequence of the negligence of the said Defendants, the Plaintiff has been damaged in the amount of $150,000.00, interest and the costs of this action, in that it has suffered a fire loss, while said policy was in full force and effect, and that the defendant RELIANCE has failed and refused to pay the Plaintiff as a result of not being named as the named insured upon such policy.
WHEREFORE, Plaintiff demands judgment against RELIANCE, CRAFT and NOLEN in the amount of $150,-000.00, interest from to-wit: January 2, 1979 at the legal rate, lost rents and profits, and reasonable attorney’s fees and costs.

State Farm argues that the exoneration of Henley in the final decree also exonerated State Farm of any liability of any tort of misrepresentation because its only liability would be through the theory of respondeat superior. We agree from the evidence presented that State Farm’s liability under the misrepresentation count would be under the rule of respondeat superior, and the judgment exonerating the servant Henley relieves the master State Farm. See, Griffin v. Bozeman, 234 Ala. 136, 173 So. 857 (1936).

In addition, Substation claims that the conduct of State Farm in ordering, directing and participating in back dating a cancellation notice and its action in attempting to rescind the policy even after it had been served with the lawsuit in this action clearly establishes the tort of bad faith. We do not agree. The evidence is too much in dispute to allow a determination that the actions of State Farm were to such a degree as to amount to the exercise of bad faith.

However, evidence was introduced at trial from which the trial court could have found that State Farm was negligent through the actions of Terry in the processing, issuing, and later attempted cancellation of the policy. These actions could be found to be the proximate cause of Substation’s damages. ARCP 15(b) states in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. .. . [Fjailure so to amend does not affect the result of the trial of these issues.

Therefore, the court would not have been in error if it found State Farm liable for negligence in its actions regarding Substation.

There was also sufficient evidence presented to warrant a finding by the trial court that Reliance was negligent in its actions in underwriting and insuring the property after it had knowledge of the true owner.

Therefore, we find no reversible error in the trial court’s finding State Farm and Reliance jointly and severally liable to Substation.

Lastly, both defendants argue that the trial court committed error in awarding Substation $187,496.51 as damages. We agree.

The amount of the award is not supported by the evidence, whether it is founded on tort or contract theories of recovery. If recovery is based on the insurance policies, the correct measure of damages is the actual cash value of the property at the time of loss, but not exceeding the cost of repair or replacement of the building with goods of like kind within a reasonable time after loss. Commercial Union Assurance Company v. Ryals, 355 So.2d 684 (Ala.1978).

"Substation relied upon the general contractor who built the insured building to prove the cost of repair. On direct examination, he testified that it would have cost $147,345.00 to repair the building at the time of the loss. On cross-examination, he admitted that the figure could be reduced by at least $14,000 because the footings and foundations could be reused. He also testified that the use of salvage would reduce his estimate by another $10,000. Therefore, the amount necessary to replace the building totaled $123,345.00.

Actual cash value means what the property is worth in money, allowing for depreciation. Glens Falls Insurance Co. of New York v. Garner, 229 Ala. 39, 155 So. 533 (1934). The cash value of the property can be determined through the correlation of the evidence. Evidence was produced which established that Substation paid $165,000.00 for the lot and building in 1976. Of that amount, $39,600.00 was for the land. There was no evidence produced to show whether the building and property increased or decreased in value since that time. There was evidence that Substation made improvements to the property of $2,100.00 before it leased the property to Dennis. If Dennis had exercised his option to purchase the premises, Substation would have received a total of $170,500.00 over a three-year period. That figure would include the land valued at $39,600.00, which when subtracted makes the value of the building $130,900.00. There was also evidence that Dennis Mining made improvements totaled at $17,000.00. That figure was also available to be added into the total, but even if it were, the total would be $147,900.00.

Because the cost of replacement is less than the actual cash value, the figure of $123,345.00 would be the correct measure of damages under the policies, plus interest at the rate of six per cent per annum from the date the companies denied coverage.

Substation claims that the proper measure of damages under a tort claim would be the cost of rebuilding the property as of the date of trial plus any exemplary damages found by the court to be appropriate. As discussed previously, the only liability State Farm and Reliance could have under a tort theory would be for negligence in not providing Substation the insurance coverage to which it was entitled. We can find no action on the part of State Farm or Reliance to warrant the finding of exemplary damages. Therefore, the correct measure of damages under tort would be compensatory or the amount that would have been recoverable under the insurance coverage to which it was entitled, but denied through the defendant’s negligence. See 16 Appleman, Insurance Law and Practice, 1968 Ed., § 8831, page 457.

Finding no evidentiary basis to substantiate the judgment for $187,496.51, we remand the issue of damages to the trial court for a determination consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

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


text:
    Ex parte RELIANCE INSURANCE COMPANY. (Re James H. DENNIS, Sr. v. RELIANCE INSURANCE COMPANY, et al.)
    79-794.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    Lyman H. Harris and Tommy Yearout, Birmingham, for petitioner.
    David Shelby, William C. Wood, Jr., Jack B. Porterfield, Jr., and John M. Galese, Birmingham, for respondents.
   SHORES, Justice.

This is a petition for a writ of mandamus or, in the alternative, a writ of prohibition to dismiss the reinstatement of respondents’ (James H. Dennis, Sr., and Dennis Mining and Equipment Company) lawsuit, due to res judicata. This is a companion case to Reliance Insurance Co. v. Substation Products Corp., and State Farm Fire and Casualty Co. v. Substation Products Corp., 404 So.2d 598 (Ala.1981), and the detailed facts regarding the actions of the parties are found therein.

Pertinent to this opinion is the sequence of actions of the parties after the initial lawsuit was filed by Substation Products Corporation on January 18, 1979, against State Farm Fire and Casualty Company, Reliance Insurance Company, and James H. Dennis, Sr.

On February 9, 1979, Substation filed an amendment to its complaint, adding as defendants Tony Craft and The Nolen Agency-

On May 11, 1979, Reliance Insurance Company filed its answer to the complaint. In its answer, Reliance Insurance Company raised as its fifth defense that it had been induced to write the policy of insurance in question by fraudulent misstatements of fact material to the acceptance of the risk and hazard to be assumed by the coverage applied for. Reliance also stated that the policy was issued in reliance upon such misstatements and as a result of such misstatements, and that the policy would not have been issued if the facts had been known at the time of the application, and had the misrepresentations not been made. Further, the defense was raised that the policy was void.

On June 4,1979, Reliance Insurance Company filed and the trial court heard Reliance’s motion for permission to file a cross-claim, adding an additional party. Reliance sought through its motion to, among other things, add the named insured, Dennis Mining Supply and Equipment, Inc., as a party to the action. Moreover, on June 4,1979, Reliance Insurance Company filed a cross-bill for declaratory judgment against James H. Dennis, Sr., and Dennis Mining Supply and Equipment, Inc. Reliance averred in its cross-bill, among other things, that it was induced by Dennis to issue policies of insurance to Dennis Mining Supply and Equipment, Inc., to insure said company against loss by fire. Reliance stated that the objects of insurance were certain buildings, equipment, vehicles and inventory, which Dennis represented that he and his company owned, free and clear of any mortgage or encumbrance, when in fact he and his company did not own many of the items insured. Reliance further stated that Dennis misrepresented his record of prior claims and that as part of a scheme to defraud Reliance, Dennis failed to inform Reliance that there was other insurance with other companies on some of the items that he was purchasing insurance on from Reliance. Reliance further claimed in its cross-bill that Dennis fraudulently misrepresented facts, omitted facts and concealed facts which were material to the acceptance of the risk by Reliance and were material to the hazard Reliance was induced to assume, and that all of the policies should be declared null and void.

■ On the same day, June 4, 1979, the trial court entered an order denying and overruling Reliance Insurance Company’s motion for permission to file a cross-claim, adding the additional party.

On July 10, 1979, Reliance filed a petition for writ of mandamus and this Court, on January 11, 1980, ruled that Reliance was entitled to file a cross-bill against James Dennis and Dennis Mining. On January 24, 1980, Reliance filed its cross-bill for declaratory judgment against James Dennis and Dennis Mining Supply and Equipment, Inc. On the same day, the cross-bill was served in open court on James Dennis individually, and on behalf of Dennis Mining Supply and Equipment, Inc.

On January 29, 1980, five days after the cross-bill was filed, James H. Dennis and Dennis Mining Supply and Equipment, Inc., filed a separate lawsuit in the Jefferson County Circuit Court against Reliance Insurance Company, The Nolen Agency, Inc., Tony Craft, State Farm Fire and Casualty Company, and Terry Henley. The lawsuit filed on January 29 is the case involved here. In that case, the claim against Reliance was based upon the same insurance policies which cover the same automobiles, equipment, inventory and office contents which were at issue in Reliance’s cross-bill against James H. Dennis and Dennis Mining Supply and Equipment, Inc. Except for a fraud and misrepresentation claim against four other defendants, the only distinction between the cross-bill, Reliance sought to have the policies declared null and void while, in the lawsuit, Dennis sought to recover on the policies.

On March 11, 1980, the lawsuit by James H. Dennis and Dennis Mining Supply and Equipment, Inc., against Reliance and the other defendants was dismissed on the grounds that the claim contained therein should have been asserted by Dennis as a cross-claim in the other suit.

On March 28, 1980, Dennis filed a motion to consolidate the suit which had been dismissed with Substation’s still pending suit. The trial court denied the motion.

On that same day, March 28,1980, Dennis filed a motion to set aside the order for dismissal entered on March 11, 1980.

On May 19,1980, the trial court entered a final decree in the original suit.

On June 27, 1980, the lawsuit by James H. Dennis and Dennis Mining Supply and Equipment, Inc., against Reliance and other defendants was reinstated.

Reliance then petitioned this Court for a writ of mandamus, asserting that the claim by James H. Dennis and Dennis Mining Supply and Equipment, Inc., against Reliance Insurance Company should be dismissed because of Rule 13, ARCP, and the doctrine of res judicata. We agree.

Rule 13(a), ARCP, provides that
[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

The Committee Comments to Rule 13(a), ARCP, provide that “a counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.”

In explaining this “logical relation test” it has been stated that it is where

both the original claim and the counter claim arise out of the same aggregate of operative facts in either of two respects: the first alternative being that the facts taken as a whole serve as the basis for both claims; the second alternative being that the sum total facts upon which the original claim rests create legal rights in a party that would otherwise remain dormant.

O’Donohue v. Citizens Bank, 350 So.2d 1049, 1054 (Ala.Civ.App.1977); Revere Copper and Brass, Inc. v. Aetna Casualty & Surety Co., 426 F.2d 709 (5th Cir.). “Basically, it allows a court to apply Rule 13(a) to any counterclaim which should be tried with the original claim in order to avoid a substantial duplication of effort.” Diamond v. Terminal RR Alabama State Docks, 421 F.2d 228 (5th Cir.)

There is no question that as to the defendant Reliance, Dennis and Dennis Mining’s lawsuit bears a logical relationship to the cross-claim filed by Reliance in the original lawsuit. Both claims “arise out of the same aggregate of operative facts.” The insurance policies upon which Dennis bases his claims are the same policies Reliance in its cross-claim sought to have declared null and void. The parties, Dennis, Dennis Mining, and Reliance, are the same. The property in question and the fire are the same.

In their brief, respondents claim that Rule 13(a), ARCP, is inapplicable in this situation because the parties were co-defendants in the initial action, and any claim filed against a co-party is a cross-claim, which is always permissive.

It is true that according to Rule 13(a), ARCP, cross-claims are permissive, and a co-party may either plead a cross-claim in the original action or reserve it for an independent litigation. However, once a co-party has filed a cross-claim, the party against whom a cross-claim is asserted must plead as a counterclaim any right to relief that he has against that co-party which arises from the same transaction or occurrence. Rule 13(g), ARCP, and Committee Comments.

Also, while it is true that if the party against whom a cross-claim is asserted neglects to assert a compulsory counterclaim, the court can grant leave to amend the pleadings to raise it, if the counterclaim is not asserted in that lawsuit, then it cannot thereafter be litigated in another action. See, Rule 13(a), ARCP, and Committee Comments; Redmond v. Harrelson, 355 So.2d 356 (Ala.1978).

At the time Reliance served its cross-claim upon Dennis and Dennis Mining, Reliance became an “opposing party” as to them, and any action arising out of the same aggregate of operative facts that Dennis and Dennis Mining had against Reliance would necessarily have to be brought as a compulsory counterclaim or lost.

The record shows that at no time did Dennis or Dennis Mining attempt to assert a counterclaim against Reliance. There was only an attempt at consolidation of the two lawsuits, and that even took place after the second suit had already been dismissed.

Therefore, the writ of mandamus directing the trial court to dismiss the claim of James H. Dennis, Sr., and Dennis Mining Supply and Equipment Company against Reliance Insurance Company is granted.

This ruling in no way affects that portion of the lawsuit against the four other defendants concerning the fraud and misrepresentation claims. As to those defendants, the petition for writ of mandamus is denied.

WRIT GRANTED IN PART; DENIED IN PART.

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


author: TORBERT, Chief Justice.

text:
    LARRY TERRY CONTRACTORS, INC. v. Price BOGLE.
    80-76.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    Danny D. Henderson of Henderson & Grace, Huntsville, for appellant.
    Jerry Knight, Decatur, for appellee.
   TORBERT, Chief Justice.

Plaintiff Bogle brought suit against defendants Terry, Haynes, and Bolden. A later amendment added defendant Larry Terry Contractors, Inc. The jury verdict was for plaintiff against defendant Larry Terry Contractors, Inc., but the jury did not return a verdict against the other defendants. Larry Terry Contractors, Inc. appealed.

Plaintiff’s vehicle collided with a dump truck driven by defendant Haynes. At the time, Mr. Haynes was employed by defendant subcontractor Ussery Terry. Defendant Larry Bolden worked as a flagman for defendant Larry Terry Contractors, Inc., and was responsible for controlling highway traffic so that dump trucks could safely enter the highway from the construction site. The construction site, on the east side of an overpass, could be seen by persons traveling from the west only after they had topped the bridge. Plaintiff crossed over the bridge and was unable to stop his truck before it collided with the corporate defendant’s dump truck, which was entering the highway. Plaintiff filed suit, alleging that defendants negligently caused or negligently allowed the dump truck to collide with plaintiff’s vehicle.

The dispositive issue on appeal is whether the verdict can stand against defendant-employer, Larry Terry Contractors, Inc., when defendant-employee, Larry Bolden, was exonerated from personal liability. Appellant contends that the verdict is inconsistent under Alabama law, and after a careful review of the record, we agree.

This Court, citing Walker v. St. Louis-San Francisco Ry. Co., 214 Ala. 492, 108 So. 388 (1926); Southern Ry. Co. v. Lockridge, 222 Ala. 15, 130 So. 557 (1930); and Hawkins v. Barber, 231 Ala. 53, 163 So. 608 (1935), stated:

The rule that prevails is that, when the principal and his agent are sued in joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.

Louisville & N. R. Co. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938). In the present case, appellees, contend there is evidence from which the jury could have found negligence on the basis of the acts of a non-joined defendant, thus supporting the verdict against appellant. We have, however, reviewed the record and particularly the pre-trial order, the evidence presented at trial, and the jury charge, and find that the record in the case supports appellant’s contention that the only theory on which Larry Terry Contractors, Inc. was tried was one of respondeat superior. This being the case, a verdict against appellant would properly stand only if a verdict was rendered against employee Bolden.

There are circumstances in which a principal may be liable where the agent is exonerated. Otts v. Gray, 287 Ala. 685, 255 So.2d 26 (1971). That case, upholding a jury verdict for the agent but against the principal, was grounded on a theory other than vicarious liability, and the present case does not fall within its rule. The verdict against Larry Terry Contractors, Inc. is inconsistent under Alabama law and cannot stand.

REVERSED AND REMANDED.

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


text:
    J. F. FOUNTAIN and Frank Fountain v. G. P. PHILLIPS and Inez B. Phillips.
    80-227.
    Supreme Court of Alabama.
    Sept. 18, 1981.

      Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellants.
    Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   TORBERT, Chief Justice.

This appeal is from a summary judgment granted in favor of the plaintiffs in an action to quiet title to certain “Row Crop Land.” For the reasons set out below, we reverse.

The suit was filed in 1973 by Gilmer P. Phillips, now deceased, and his wife, Inez B. Phillips, against Frank Fountain and his father, J. F. Fountain, seeking to quiet title in certain real estate in Etowah and St. Clair Counties. The defendants’ answers and counterclaims averred that they held interests in the real estate by virtue of a series of lease agreements and options to purchase. Both plaintiffs and defendants filed motions for summary judgment. The trial court found that the Fountains, defendants, had no interest in the land and granted summary judgment for the plaintiffs. Because of the complexity of the facts and the inartfulness of the lease and option to purchase agreements, the facts as alleged by each party are set out extensively below.

In April 1971, Frank Fountain and the plaintiffs entered into a written lease agreement with a ninety-day grace period for late payment and an option to purchase covering approximately 1,237 acres of “Row Crop Land.” At that time, Frank Fountain additionally held- a lease-sale contract dated September 1969, covering an additional 140 acres called the “Dairy Land.”

In the spring of 1972, Frank experienced financial difficulties and had trouble meeting his payments on the lease. It is at this point that the factual controversy begins. In their depositions, defendants Frank and J. F. Fountain contend that an oral agreement was made, under which it was agreed that J. F. Fountain would take over payment of Frank’s lease and option agreement with the plaintiffs. Gilmer Phillips, however, testified in his deposition that the April 1971 Lease-Option Agreement was in default in excess of the ninety-day grace period and that he sent Frank Fountain a letter informing him of that fact. He further testified that Frank Fountain gave him checks on several occasions that “bounced,” and contends that at no time did he orally agree for J. F. Fountain to assume payment of the rent for Frank Fountain. Defendants, in turn, contend that no letter from Gilmer Phillips was ever received by them to inform them of default, and state that all rental payments to Phillips were paid when due.

On July 29, 1972, in a handwritten lease on “Phillips Cattle Farm” stationery, J. F. Fountain and Gilmer Phillips agreed that J. F. Fountain would pay $2,000 for “all crops on land rented by Frank Fountain, as per contract due 1972.” In addition, J. F. Fountain agreed to rent this same land for the coming year, 1973, for $4,620, to be paid in two equal installments due January 1 and July 1, 1973. This contract also included a rental agreement for the 140 acres of “Dairy Land” to begin on January 1, 1973. The defendants contend that at this time an option to purchase was also contracted for, the possession of which written contract remained with Gilmer Phillips and is not now to be found. Phillips, however, contends that no option to purchase ever existed ' between J. F. Fountain and the plaintiffs in connection with the July 1972 lease. Phillips further contends that J. F. Fountain altered the contract by adding a ninety-day grace period after the contract had been signed.

In the fall of 1973, Gilmer Phillips told J. F. Fountain that the plaintiffs had rented eighty acres of the “Dairy Land” to a Mr. Riddle for $800. Plaintiffs contend that this was done with the approval and consent of J. F. Fountain at a time when his rental agreement was not in default. Phillips states that J. F. Fountain requested that the plaintiffs rent whatever part of the “Dairy Land” they could, since he could not use it all. One-half of the rent would then be applied to the one-year lease. J. F. Fountain, however, testified in his deposition that a disagreement arose as a result of the plaintiffs’ renting this land to Mr. Riddle, and that after some debate the parties decided to put into writing an instrument containing the option to purchase (1,377 acres: 1,237 acres of “Row Crop Land,” plus 140 acres of “Dairy Land”) and the rent reduction agreement. Though all of this was denied by Gilmer Phillips, a handwritten, initialed copy of this agreement was introduced as evidence in the trial court.

J. F. Fountain further testified that he became concerned about the option to purchase that he claims was executed in July 1972 and subsequently lost. Mr. Fountain stated that the plaintiffs, after some discussion, told him to come to their house and that they would have a new option to purchase already written out. He further testified that upon arrival at the Phillipses’ home, they presented him with an old typed agreement which they subsequently modified. Again, the plaintiffs deny that they ever signed such an agreement, but a copy of the disputed contract, partially typed and partially handwritten, was introduced as evidence in the trial court.

In January 1973, J. F. Fountain timely delivered a check to Gilmer Phillips for the January 1973 rental payment Gilmer Phillips, however, states that at this time J. F. Fountain advised him not to cash the check as it was no good and that it would soon be redeemed for cash. Mr. Phillips contends that at this point in time J. F. Fountain forfeited any and all rights that he had to the rented real estate. J. F. Fountain, on the other hand contends that the $1,900 check, the correct amount under the rent reduction agreement, was valid and that he never indicated to either of the plaintiffs that the check was no good.

Subsequently, Mr. Phillips rented the remainder of the “Dairy Land” to one Mr. White and the “Row Crop Land” to one Mr. McCullough. J. F. Fountain contends that he vigorously disagreed to this, but Mr. Phillips states that no disagreement existed and that both, defendants had already forfeited their rights to this property when the new leases were signed.

Finally, in February 1973, Gilmer Phillips entered into a sale contract with a “Jenny Gertz, Trustee” for the real estate in question. The sale price in this contract was considerably higher than the amount provided in the original Frank Fountain option and/or in the option claimed by J. F. Fountain to have been executed in December 1972. J. F. Fountain testified in his deposition that also in February, in the Phillipses’ home, Mr. and Mrs. Phillips returned the $1,900 check to him and informed him that “someone had offered them considerably more money for the land and they said they didn’t want to sell it to me.”

Shortly thereafter, J. F. Fountain filed the December option, the rent modification agreement, and the July 1972 lease agreement in the probate office of St. Clair County. While checking title to the property as required by the Gertz sale contract, it was discovered that these instruments had been recorded. This suit, to quiet title in Mr. and Mrs. Phillips, followed.

On February 13,1979, the Fountains filed a motion for summary judgment. This motion was never ruled upon by the trial court. On August 21, 1980, Mr. and Mrs. Phillips filed a motion for summary judgment. In support of this motion, the deposition of Gilmer Phillips was offered into evidence. The defendants did not offer any additional evidence to rebut the deposition of Mr. Phillips, though numerous documents and the depositions of Frank Fountain, J. F. Fountain, and Hubert Burns (Mrs. Phillips’ brother and the original attorney for Mr. and Mrs. Phillips) were already before the court. On October 21, 1980, the trial court, after reviewing the interrogatories, depositions, and exhibits before it, entered sum-, mary judgment for the plaintiffs.

Two issues are presented on appeal.

(1) Whether materials not formally intro-' duced in support of or in opposition to a motion for summary judgment, but “on file” as evidence of record, should be considered by the trial court when ruling on such a motion.

(2) Whether there was a genuine issue as to any material fact so that the plaintiffs would not have been entitled to a judgment as a matter of law.

We answer both in the affirmative.

The plaintiffs, in their brief, contend that since the depositions of Hubert Burns, Frank Fountain, and J. F. Fountain were not offered by either party in support of or in opposition to the plaintiffs’ motion for summary judgment, then they “were not considered by the trial judge in ruling on Plaintiffs’ Motion For Summary Judgment and, in fact, should not have been considered.” Plaintiffs rely heavily on Rule 56(e), ARCP, in support of this proposition. The rule provides:

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the af-fiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. [Emphasis supplied.]

Rule 56(e), ARCP.

Plaintiffs would have this Court hold that unless a party formally introduces material in support of or in opposition to a motion for summary judgment, then that material cannot be considered. This contention is without merit.

Rule 56(c), ARCP, provides:

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. [Emphasis supplied.]

It is the law in Alabama, as well as in federal courts, that a trial court may properly consider any material that would be admissible at trial and all evidence of record as well as material submitted in support of or in opposition to the motion when ruling on a motion for summary judgment. Morris v. Morris, 366 So.2d 676 (Ala.1978). See also, 10 C. Wright & A. Miller, Federal Practice and Procedure § 2721 (1973). We therefore hold that all evidence of record, as well as that evidence formally submitted in support of or in opposition to a motion for summary judgment, should be considered in ruling on the motion.

A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the moving party is entitled to a judgment as a matter of law. Butler v. Michigan Mutual Insurance Co. [1981] 402 So.2d 949 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Whitehead v. Davison Oil Co., 352 So.2d 1339 (Ala.1977).

The burden is thus upon the moving party to clearly show that the non-movant could not recover under any discernible circumstances, Whitehead v. Davison Oil Col, 352 So.2d 1339 (Ala.1977); Browning v. Birmingham News, 348 So.2d 455 (Ala.1977); Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Co., 293 Ala. 719, 310 So.2d 200 (1975), and all reasonable doubts concerning the genuine issue of material fact must be resolved against the moving party. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979);. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976); Lovelace v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

This burden is substantially increased by the scintilla evidence rule. The scintilla rule requires that a summary judgment not be granted if there is a scintilla of evidence supporting the position of the non-movant. Browning v. Birmingham News, 348 So.2d 455 (Ala.1977); Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). A scintilla of evidence requires only a mere gleam, glimmer, spark, the least bit, or the smallest trace in support of the non-moving party to defeat a summary judgment motion. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979).

Applying the law to these facts, it is quite clear that several genuine issues of material fact remain. The depositions of the parties are in direct conflict in several instances and factual questions remain pertaining to the validity and possible alterations of the lease-option documents pertaining to the real estate in question.

Since there does exist a genuine issue as to a material fact, summary judgment should not have been rendered. Accordingly, this case is reversed and remanded.

REVERSED AND REMANDED.

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

      . If the facts are as claimed by Gilmer Phillips, then whether or not J. F. Fountain had immediately forfeited his rights to the property would depend upon the factual Issue of whether the ninety-day grace period was in the original July 1972 contract, or was added by J. F. Fountain after the parties had executed the contract.


text:
    Ex Parte Katherine HOOD and William Hood. (In re CITY OF BESSEMER v. Katherine HOOD. and CITY OF BESSEMER v. William HOOD).
    80-764.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    David A. Sullivan, Birmingham, for petitioners.
    J. H. McEniry, III, Bessemer, for respondent.
   SHORES, Justice.

The petition for writ of mandamus/prohibition is denied. See,

WRIT DENIED.

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